Deemar v. College of Veterinarians of Ontario

92 O.R. (3d) 97

Court of Appeal for Ontario,

Lang, Juriansz and MacFarland JJ.A.

September 2, 2008

Professions -- Discipline -- Evidence -- Complaints Committee of College of Veterinarians referring complaint of professional misconduct on part of applicant to Discipline Committee -- Applicant filing expert report of witness who had recently been dismissed from employment as College's Registrar in acrimonious circumstances -- Discipline Committee correctly striking witness' report and excluding her evidence -- Witness not independent -- Permitting her to give evidence would give rise to reasonable apprehension of bias on part of Discipline Committee members hearing complaint -- Committee not erring in striking report of another expert retained by applicant on basis that it did not address issue of whether applicant was guilty of professional misconduct -- Applicant permitted to retain another expert witness -- Applicant not denied natural justice.

The Complaints Committee of the College of Veterinarians referred a complaint of professional misconduct on the part of the applicant to the College's Discipline Committee for a hearing. The applicant retained L as an expert witness and served a report from L on the College in advance of the hearing. L had been employed by the College as its Registrar, and her employment had recently been terminated in acrimonious circumstances. The Discipline Committee struck L's report and excluded her evidence on the grounds that her report contained advocacy and offered her opinion as to the credibility of a witness, and that her presentation of evidence could give rise to a reasonable apprehension of bias on the part of the members of the Committee hearing the matter. The Committee also struck the report of H, another expert retained by the applicant, on the basis that it dealt with issues which were irrelevant to the question before the Committee. The applicant applied for judicial review of those and other rulings. The Divisional Court allowed the application in part, holding that the College denied the applicant natural justice by failing to conduct a complete investigation of the complaint and by excluding the expert evidence. The court remitted the matter to a differently composed Discipline Committee and stayed the proceeding until a differently composed Committee could be created. The College appealed.

Held, the appeal should be allowed.

The Divisional Court erred in finding a denial of procedural fairness because of an inadequate investigation by the Complaints Committee. The Complaints Committee was not required to interview anyone; nor was it required to examine all records and other documents relating to the complaint, but only to make every reasonable effort to do so. The Divisional Court did not find that the Complaints Committee failed to make every reasonable effort to examine the documents.

The Divisional Court erred in finding a denial of procedural fairness because the Discipline Committee excluded the evidence of L and H. L's demonstrated lack of independence provided an ample basis for refusing to accept her as an expert witness. The fact that all of the Discipline Committee's members were on the College Council when the College terminated L's employment presented the Discipline Committee with a difficult dilemma. The Committee's ruling correctly balanced the interests of the applicant and the interests of the administration of justice generally, as the applicant was permitted to obtain a different [page98 ]expert opinion. The Committee correctly ruled that H's report was inadmissible because it did not offer an opinion relevant to the question of whether the applicant had engaged in professional misconduct.

The Divisional Court erred by staying the complaint proceeding until a suitable Discipline Committee could be composed. That remedy, if implemented, would unduly delay the proceedings.

APPEAL from the order of the Divisional Court, [2007] O.J. No. 2402, allowing in part an application for judicial review of pre-hearing rulings of a discipline committee.

Cases referred to Drummond v. Canada (Minister of Citizenship and Immigration), 1996 21995 (FC), [1996] F.C.J. No. 477, 112 F.T.R. 33, 33 Imm. L.R. (2d) 258, 62 A.C.W.S. (3d) 820 (T.D.), consd Other cases referred to Perricone v. Baldassarra, [1994] O.J. No. 2199, 7 M.V.R. (3d) 91, 50 A.C.W.S. (3d) 672 (Gen. Div.); R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, 108 D.L.R. (4th) 47, 159 N.R. 81, J.E. 83-1778, 66 O.A.C. 161, 85 C.C.C. (3d) 193, 25 C.R. (4th) 1, 21 W.C.B. (2d) 184 Statutes referred to Veterinarians Act, R.S.O. 1990, c. V.3, ss. 24 [as am.], 28, 30 [as am.] Rules and regulations referred to General Regulations, R.R.O. 1990, Reg. 1093, s. 17(1) [as am.]

Bernard C. LeBlanc and Lisa S. Braverman, for appellant. Leslie A. Vandor, Q.C., for respondent.

The judgment of the court was delivered by

[1] JURIANSZ J.A.: -- The College of Veterinarians of Ontario, with leave, appeals the order of the Divisional Court made June 13, 2007 granting, in part, Dr. Sherry Deemar's application for judicial review of various pre-hearing rulings of the College's Discipline Committee. The Divisional Court quashed the Discipline Committee's rulings restricting the expert evidence that Dr. Deemar could lead at her discipline hearing. The Divisional Court also remitted the matter to a differently composed Discipline Committee, and stayed the proceeding until a differently composed Committee could be created.

[2] Dr. Deemar sought judicial review before the Divisional Court of other rulings of the Discipline Committee. Dr. Deemar did not seek leave to appeal the Divisional Court's decision on those issues. The only issues relevant to the appeal are those raised by the College. [page99 ] Background

[3] On August 17, 2005, Ms. Susan Thom filed a complaint with the College about Dr. Deemar. In accordance with s. 24 of the Veterinarians Act, R.S.O. 1990, c. V.3 (the "Act"), the complaint was first considered and investigated by the College's Complaints Committee. The Complaints Committee then referred the complaint to the Discipline Committee for a formal hearing. It is the duty of the Discipline Committee to hear and determine allegations of professional misconduct or serious neglect made against a member of the College when a complaint is referred to it by the Complaints Committee pursuant to s. 30 of the Act. The Discipline Committee has the power to impose discipline on a member ranging from a reprimand to the revocation of licence.

[4] The Discipline Committee served a notice of hearing on Dr. Deemar on May 23, 2006, together with a statement of allegations that mirrored Ms. Thom's complaint. The statement of allegations reads as follows:

1. Dr. SHERRY DEEMAR ("Dr. Deemar") was, at all material times, a veterinarian licensed to practice veterinary medicine in the Province of Ontario. Dr. Deemar practiced at Buckingham Veterinary Hospital in Collingwood, Ontario.

2. On or about August 4, 2005, Ms. Susan Thom ("Ms. Thom") brought her dog Jake to Buckingham Veterinary Hospital ("BVH"). Jake had a rash on both sides of his face.

3. Ms. Thom asked Ms. Jennifer Todd ("Ms. Todd"), Dr. Deemar's auxiliary, if a veterinarian was available to see Jake. Ms. Todd told Ms. Thom that she would go to the back of BVH and see if the veterinarian could see Jake.

4. Upon returning, Ms. Todd advised Ms. Thom that the veterinarian could see Jake. At no time was Ms. Thom asked about Jake's medical history or any questions about the rash.

5. Ms. Todd took Jake from Ms. Thom and started taking him to the back of BVH. When Ms. Thom started to follow Ms. Todd, Ms. Todd told Ms. Thom to wait at the front reception area.

6. Approximately 10 minutes later, Ms. Todd returned with Jake. Ms. Todd advised Ms. Thom that the veterinarian diagnosed Jake with bug bites and he needed antibiotics. Ms. Thom asked Ms. Todd if the rash was contagious and Ms. Todd replied, "I don't think so".

7. Unsatisfied with Ms. Todd's response, Ms. Thom asked to speak directly to the veterinarian. Ms. Todd responded that the veterinarian was too busy to see her.

8. After Ms. Thom continued to press to speak with the veterinarian, Ms. Todd finally conceded that no veterinarian was present and that Ms. Todd had spoken with the veterinarian (Dr. Deemar) by telephone. After further brief discussion with Ms. Todd, Ms. Thom left BVH with Jake and spoke with her husband about the matter in the BVH parking lot. [page100]

9. Approximately 5 minutes later, Ms. Todd came out of BVH and spoke with Ms. Thom in the parking lot. Ms. Todd asked Ms. Thom if she could return to BVH to speak with the veterinarian who was on the telephone. Ms. Thom agreed.

10. During this telephone conversation, which took place between Dr. Deemar and Ms. Thom, Dr. Deemar advised Ms. Thom that she was out on a call seeing a horse and that this was the only way that they could help her. Ms. Thom explained that she was upset that Ms. Todd misled her that Dr. Deemar was in fact present at BVH.

11. Dr. Deemar encouraged Ms. Thom to take the antibiotics that Ms. Todd had prepared for Jake because, according to Dr. Deemar, Jake's face was swollen and he needed the medication. Ms. Thom responded that Jake's face was not swollen and that Dr. Deemar had not even been given an accurate description to order to make an appropriate diagnosis. After further discussion with Dr. Deemar, Ms. Thom left BVH.

12. Dr. Deemar engaged in professional misconduct within the meaning of paragraphs 1 (an act or omission inconsistent with the Act or the Regulation -- sections 19 and 33 of Ontario Regulation 1093 under the Veterinarians Act), 2 (standards of practice), 8 (making a misrepresentation to a client or a perspective client), 30 (failing to direct or supervise, or inadequately directing or supervising, an auxiliary), 31 (permitting, counselling or assisting any person, other than a member, to practice, or to attempt to practice, veterinary medicine), 32 (permitting, advising or assisting any person, other than a member, to perform any act or function which should properly be performed by a member), and 44 (disgraceful, dishonourable or unprofessional conduct) of subsection 17(1) of Ontario regulation 1093 under the Veterinarians Act.

[5] Dr. Deemar retained Dr. Barbara Leslie as an expert witness and served a report from her on the College in advance of the hearing. Dr. Leslie was employed by the College from 1989 until February 2006, when the College terminated her employment. She was the College's Registrar from February 2002 until the termination of her employment. The termination of her employment, while not for cause, was acrimonious. Following the termination, Dr. Leslie's counsel sent a draft statement of claim to counsel for the College seeking general and aggravated damages and other relief. At the time of the Discipline Committee's rulings at issue, the implicit threat of litigation had not been withdrawn.

[6] The College brought a motion to strike Dr. Leslie's report and to exclude her evidence. While the Discipline Committee did not question Dr. Leslie's expertise in the area of veterinary medicine, it allowed the motion.

[7] First, the Committee found that Dr. Leslie's report contained advocacy and offered her opinion as to the credibility of a witness. The Discipline Committee stated that "Dr. Leslie strays from the function of an expert and interprets information and draws conclusions related to her interpretation and, in doing so, takes on the role of advocate and possibly the role of the trier of [page101] fact". The Discipline Committee cited the decision of the Supreme Court of Canada in R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, [1993] S.C.J. No. 119, which stated, at para. 49, that "[i]t is a fundamental axiom of our trial process that the ultimate conclusion as to the credibility or truthfulness of a particular witness is for the trier of fact, and is not the proper subject of expert opinion." The Discipline Committee concluded that Dr. Leslie's advocacy was sufficient reason to exclude her expert report.

[8] Additionally, the Discipline Committee found that Dr. Leslie's presentation of evidence "could cause a reasonable person to have a reasonable apprehension of bias on the part of the members of the Committee hearing the matter". The Discipline Committee rejected Dr. Deemar's submission that Dr. Leslie's evidence and the contents of her report, or parts thereof, should be admitted into evidence, and its weight determined at the hearing. It did so because "[p]roceeding in that manner would abrogate the function and purpose of this hearing called to decide the matter and would also create the potential that members of the panel at the hearing would be exposed to Dr. Leslie's report [and] would be influenced by the wording Dr. Leslie uses".

[9] Dr. John Henry was another expert retained by Dr. Deemar. The Discipline Committee also struck his expert report. It noted that Dr. Henry's report was focused on three areas: (1) Whether the Complaints Committee should have offered alternative dispute resolution to Dr. Deemar; (2) whether the College should have compensated Dr. Deemar for legal expenses; and (3) the general propriety of the Complaints Committee having referred these allegations of professional misconduct to the Discipline Committee.

[10] The Discipline Committee found that Dr. Henry's report was inadmissible primarily because these matters were irrelevant to the question before the Discipline Committee -- i.e., whether Dr. Deemar had engaged in professional misconduct. The Discipline Committee left it open to Dr. Deemar to offer other relevant evidence from Dr. Henry at the hearing. The Discipline Committee's analysis was correct. The Divisional Court's Decision

[11] The ruling of the Divisional Court was brief, and can be set out in full: [page102]

We all agree the College denied procedural fairness and due process to which the appellant was entitled.

Our reasons for doing so include:

(i) The failure to undertake an investigation directed by the Complaints Committee in accordance with s. 24(1)(b) of the Act, which requires the Committee to examine all records and other documents relating to the complaint, and by failing to interview the complainant or Ms. Todd.

(ii) Striking the report of Dr. Leslie and refusing to receive her evidence in advance of the hearing.

An order shall go:

(i) Quashing the ruling which wrongly denied Dr. Deemar the right to call Dr. Leslie, the expert of her choice.

(ii) Quashing the ruling which struck the report of Dr. Henry.

(iii) Remitting the matter to a Discipline Committee composed in accordance with the Act but with the proviso that no member of that Committee shall have been a member of the Discipline Committee before or during the employment of Dr. Leslie.

Until such a committee is created, the matter is stayed.

[12] In addition, the Divisional Court awarded Dr. Deemar costs in the amount of $15,000, inclusive of fees, disbursements and GST. Issues

[13] The College raises the following issues: (1) Did the Divisional Court err in finding a denial of procedural fairness because of an inadequate investigation by the Complaints Committee? (2) Did the Divisional Court err in finding a denial of procedural fairness because the Discipline Committee struck the report of Dr. Leslie and refused to allow her to be called as an expert witness? (3) Did the Divisional Court err in quashing the ruling of the Discipline Committee finding that the expert report of Dr. Henry was inadmissible? (4) Did the Divisional Court err in staying the complaint proceeding until the composition of the Discipline Committee changed? (5) Did the Divisional Court err by failing to find Dr. Deemar's judicial review application was brought prematurely? [page103] (6) Did the Divisional Court have jurisdiction to make the award of costs that it did? Discussion

Issue one -- Did the Divisional Court err in finding a denial of procedural fairness because of an inadequate investigation by the Complaints Committee?

[14] The procedure before the Complaints Committee is governed by s. 24 of the Act. Section 24(1) provides:

24(1) The Complaints Committee shall consider and investigate complaints made by members of the public or members of the College regarding the conduct of a member or former member of the College, but no action shall be taken by the Committee under subsection (2) unless, (a) a written complaint has been filed with the Registrar and the member or former member whose conduct is being investigated has been notified of the complaint and given at least two weeks in which to submit in writing to the Committee any explanations or representations the member or former member may wish to make concerning the matter; and (b) the Committee has examined or has made every reasonable effort to examine all records and other documents relating to the complaint.

[15] As can be seen, the Complaints Committee has no authority to require a person to submit to an interview. The Complaints Committee was not required to interview the complainant. To the contrary, s. 24(1)(a) contemplates a "written complaint" and a response from the member under investigation "in writing". Nor was the Complaints Committee required to interview Ms. Todd.

[16] Section 24(1)(b) does not require the Complaints Committee to examine all records and other documents relating to the complaint, but only to make "every reasonable effort" to do so. In the absence of a finding that the Complaints Committee failed to make every reasonable effort to examine the documents, there was no basis for the Divisional Court's conclusion that Dr. Deemar was denied an adequate investigation by the Complaints Committee.

Issue two -- Did the Divisional Court err in finding a denial of procedural fairness because the Discipline Committee struck the report of Dr. Leslie and refused to allow her to be called as an expert witness?

[17] The only reason the Divisional Court gave for quashing the Discipline Committee's ruling regarding Dr. Leslie's evidence was that the ruling denied Dr. Deemar the right to call the expert of her choice. [page104]

[18] Dr. Deemar's right to choose her own experts is qualified by the jurisdiction of the tribunal to rule on the admissibility of evidence. The Discipline Committee gave multiple reasons for excluding Dr. Leslie's evidence.

[19] First, Dr. Leslie's report was largely advocacy. An illustration is that it submitted that the Discipline Committee should believe Dr. Deemar's auxiliary and disbelieve the complainant and offered a number of reasons why. The greater part of Dr. Leslie's report was of like nature. Certainly the report also expressed expert opinion on relevant issues. For example, Dr. Leslie opined that it is acceptable for a veterinarian "to delegate the tasks of history taking, inquiry, assessment, advising and dispensing of a prescription, to an auxiliary under indirect supervision".

[20] While the Discipline Committee might have struck the advocacy in the report and allowed Dr. Deemar to file the balance of the report, it chose to strike the whole report and disqualify Dr. Leslie from testifying.

[21] It is up to the trier of fact to qualify a proposed expert witness. The party tendering the proposed expert witness must satisfy the trier that he or she possesses not only the necessary expertise, but the requisite independence as well. For example, the trier may refuse to qualify a person of unquestioned expertise who is closely related to the tendering party.

[22] Here the Discipline Committee found that Dr. Leslie had "strayed from the function of an expert" and had taken on "the role of advocate and possibly the role of the trier of fact". The Discipline Committee noted that an expert must have a minimum requirement of independence and cited authority that "if the person rendering the evidence assumes the role of advocate, he or she can no longer be viewed as an expert in the legally correct sense . . .". Perricone v. Baldassarra, [1994] O.J. No. 2199, 7 M.V.R. (3d) 91 (Gen. Div.), at para. 22. Dr. Leslie's demonstrated lack of independence provided an ample basis for the Discipline Committee to refuse to accept Dr. Leslie as an expert witness.

[23] The Discipline Committee also determined that Dr. Leslie could not give any evidence at the discipline hearing because of her recent relationship with the College. Dr. Leslie had been the College's Registrar for most of the period during which the complaint against Dr. Deemar was under investigation. While Dr. Leslie had not personally dealt with the complaint, she was administratively responsible for it. The fact that all of the Discipline Committee's members were on the College Council when the College terminated Dr. Leslie's employment presented the Discipline Committee with a difficult dilemma. This combination of circumstances made it unseemly, at the very least, for Dr. Leslie to testify regarding [page105] the merits of the complaint. The Discipline Committee addressed the dilemma by ruling that Dr. Leslie could not appear as a witness. The Divisional Court, which also took the view that Dr. Leslie's appearance before the Committee's current members was untenable, sought to address the dilemma by halting the complaint proceedings until the composition of the Committee changed.

[24] A resolution of the dilemma required the balancing of the interests of the member and the interests of the administration of justice generally. Dr. Deemar's interest was in controlling her defence to the complaint. At the same time there was a public interest in the prompt disposition of allegations of professional misconduct against a member of a regulated profession.

[25] In my view, assuming the standard of review is correctness, the ruling of the Discipline Committee correctly balanced the interests of the member and the interests of the administration of justice generally. In ruling that Dr. Leslie could not appear as a witness, the Discipline Committee noted that Dr. Deemar had ample opportunity "to obtain a separate expert opinion that was equally valid". Thus, the Discipline Committee's decision struck a reasonable balance between the individual and public interests at stake.

[26] By contrast, the stay ordered by the Divisional Court frustrates the Discipline Committee's statutory duty to hear and determine the complaint, without consideration of the alternatives available to Dr. Deemar. In my view, this is not an acceptable option. The only other viable option would have been to leave the admissibility of Dr. Leslie's opinion to the members of the Discipline Committee hearing the complaint who would inevitably have reached the same conclusion. In my view, the option chosen by the Committee provided the fairest result for Dr. Deemar and allowed her to obtain other opinions that were readily available to her.

[27] I find support for that view that Dr. Deemar was accorded procedural fairness in the decision of Rothstein J., sitting as a trial judge of the Federal Court in Drummond v. Canada (Minister of Citizenship and Immigration), 1996 21995 (FC), [1996] F.C.J. No. 477, 33 Imm. L.R. (2d) 258 (T.D.). Rothstein J. judicially reviewed the decision of the Immigration Appeal Division excluding the evidence of an expert who had been a member of the Division until three months before the hearing. In upholding the Appeal Division's decision, Rothstein J. observed that while the tribunal must generally not reject evidence, there was reason to do so in this case. The expert had a collegial relationship with a presiding member, and the admission of his affidavit could give rise to a reasonable apprehension of bias. As well, Rothstein J. concluded that the Appeal Division could not have admitted the affidavit and then given it little or no weight because of the affidavit's "overtone of bias"; the affidavit had to be rejected in its entirety (para. 9). [page106]

[28] Despite the factual differences in Drummond, that case fortifies my view that the Discipline Committee's decision how to deal with the difficult situation confronting it was one that was correct in law. The Divisional Court erred by interfering.

Issue three -- Did the Divisional Court err in quashing the ruling of the Discipline Committee finding that the expert report of Dr. Henry was inadmissible?

[29] The Divisional Court gave no reason for quashing the Discipline Committee's ruling striking the affidavit of Dr. Henry. As stated above, it was for the Discipline Committee to rule on the admissibility of the expert reports tendered. The Discipline Committee decided Dr. Henry's report was not admissible because it did not offer an opinion relevant to the question at issue -- namely, whether Dr. Deemar had engaged in professional misconduct. That decision was based on an accurate reading of the report. The Divisional Court did not indicate any basis for interfering, and erred by quashing the ruling.

Issue four -- Did the Divisional Court err in staying the complaint proceeding until the composition of the Discipline Committee changed?

[30] The conclusion on this issue follows from my analysis of issue two. The Divisional Court erred by staying the complaint proceeding until a suitable Discipline Committee could be composed.

[31] Pursuant to s. 28 of the Act, a panel of the Discipline Committee must be composed of no fewer than three persons, at least one of whom is a person whom the Lieutenant Governor in Council has appointed as a member of the Council and at least one of whom is a person who is both a member of the College and a member of the Council. Thus, the disposition of the Divisional Court would delay the complaint proceeding until the Lieutenant Governor appoints a different layperson to the Council and the College holds an election in which new members are elected to the Council. This proposed remedy, if implemented, would unduly delay the proceedings. As already discussed, the remedy of ruling Dr. Leslie's evidence inadmissible was preferable.

Issue five -- Did the Divisional Court err by failing to find Dr. Deemar's judicial review application was brought prematurely?

[32] The College strenuously argued that the Divisional Court erred by failing to dismiss Dr. Deemar's application for judicial review on the grounds of prematurity. [page107]

[33] The Divisional Court has developed a consistent jurisprudence discouraging a piecemeal approach to the judicial review of administrative action to avoid delay and to permit all issues to be considered in the context of a full record. Early intervention is only justified in exceptional circumstances.

[34] While the Divisional Court did not say anything about the issue of prematurity, it is apparent the Divisional Court considered that the proceedings were tainted by a fatal jurisdictional defect in that the Discipline Committee lost jurisdiction by failing to accord Dr. Deemar natural justice. While the Divisional Court was wrong in that regard, it had jurisdiction to entertain the application. I would not fault it for hearing the application given the initial view it took.

Issue six -- Did the Divisional Court have jurisdiction to make the award of costs that it did?

[35] This issue is moot. The cost award by the Divisional Court in favour of Dr. Deemar will be set aside as a result of the appeal being allowed. Conclusion

[36] For the foregoing reasons, I would allow the appeal, set aside the order of the Divisional Court and replace it with an order dismissing Dr. Deemar's application for judicial review. I would fix partial indemnity costs in favour of the College in the amount of $15,000 in respect of the appeal, and in the amount of $5,000 in respect of the judicial review application before the Divisional Court. Both amounts are inclusive of disbursements and GST.

Appeal allowed.