COURT FILE NO.: DC-04-008096-00

DATE: January 21, 2005

SUPERIOR COURT OF JUSTICE – DIVISIONAL COURT – ONTARIO

RE: William Schilthuis, Applicant

and

The College of Veterinarians of Ontario, Respondent

BEFORE: LANE, MOLLOY and DONOHUE JJ.

COUNSEL: James W.W. Neeb, Q.C., for the Applicant

Bernard C. Leblanc, for the Respondent

HEARD: January 20, 2005

E N D O R S E M E N T

[1] The applicant William Schilthuis is a veterinarian with a practice in Goderich, Ontario. He originally brought an application for judicial review seeking to prevent the College of Veterinarians of Ontario (“the College”) from proceeding with two Notices of Hearing dated February 25, 2003 (“the Sadie Complaint”) and May 14, 2004 (“the Records Complaint”). At the outset of the argument, counsel for Dr Schilthuis advised he would no longer be seeking relief with respect to the Sadie Complaint, but rather was seeking relief only with respect to the Records Complaint.

[2] Prior to February 25, 2003, Dr. Schilthuis had been subject to disciplinary proceedings before the College, which had resulted in various orders against him, including that his practice be supervised for periods of time by monitors appointed by the College. By and large, the reports of those monitors were positive. The reports included occasional reviews of randomly selected medical records maintained by Dr. Schilthuis. No problems were reported. Although the reports by the monitors were made to the College, Dr. Schilthuis received copies.

[3] In June 2001, the College received a written complaint from Karen Popernitsch, whose two-year old dog Sadie died after what she alleged to be negligent treatment from Dr. Schilthuis over a period of about three months. The College commenced an investigation and sought information from Dr. Schilthuis at various times. In response to one of the College’s requests for his position, Dr. Schilthuis sent the College a letter dated September 25, 2002, with his detailed comments on the allegations against him. He enclosed with that letter, copies of medical records for approximately 40 other animals which he felt supported his position. After further consideration, the College decided to proceed to the next level, and issued a Notice of Hearing in respect of the Sadie Complaint.

[4] In addition, the College had concerns arising from some of the records submitted by Dr. Schilthuis in September, 2002, and sought expert advice in respect of those records and the standard of practice reflected by them. The expert opinions received were to the effect that Dr. Schilthuis fell below the acceptable standard of practice. Accordingly, the Executive Committee of the College referred further matters of alleged professional misconduct to the Discipline Committee, and the May 14, 2004 Notice of Hearing was issued. It is the decision to hold this hearing which is now the subject of this judicial review application.

[5] The applicant argues that the appropriate standard of review is one of reasonableness simpliciter. We disagree. Applying the functional and pragmatic approach established by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, we find the proper standard of review is one of patent unreasonableness. The particular factors supporting such a high level of deference are the expertise of the College and its Executive Committee, the purpose of the legislation involved, and the nature of the question the Executive Committee had before it. The College is charged with supervision and regulation of veterinarians in Ontario, with particular emphasis on the protection of the public. The Executive Committee exercises considerable discretion in determining which cases should proceed to a hearing before the Discipline Committee. This is a classic gatekeeper type role, which is heavily laden with policy related issues and therefore subject to a high level of deference by the court. The College is uniquely positioned to determine which cases are sufficiently serious that a formal hearing is required into alleged misconduct, and has far more expertise than a court in making such a determination.

[6] The applicant alleges it would be an abuse of process to allow this Records Complaint hearing to proceed. The primary point advanced in support of that argument is that the College’s concern giving rise to this Records Complaint is based entirely upon records voluntarily supplied by Dr. Schilthuis in the course of the College’s investigation in the Sadie Complaint. We see nothing unfair in this. Dr. Schilthuis voluntarily turned over these records. There was nothing private or privileged about these records vis a vis the College, which is the regulatory body overseeing the conduct of all veterinarians in Ontario. In its capacity as such, the College could have compelled the production of any and all of Dr. Schilthuis’s records in any event. Once those records were in the hands of the College, the College could not turn a blind eye to matters disclosed by the records, which the College considered to fall below an acceptable level of practice. Basing a further complaint on those records was well within the statutory authority and duty of the College, and does not support an allegation of abuse of process.

[7] The applicant further alleges that the Records Complaint is unfair, unreasonable, and an abuse of process because the records and events upon which it is based relate to a period of time during which Dr. Schilthuis was subject to monitoring by the College. During the very time these now challenged matters were taking place, Dr. Schilthuis was being supervised and receiving reports from monitors indicating no problems with his competence or record keeping. Dr. Schilthuis alleges that he relied on these reports to his detriment, and felt it was therefore appropriate to turn over the subject records to the College. He therefore submits that the College is estopped from relying on the records produced in proceeding with the Records Complaint.

[8] We do not agree. It may well be open to Dr. Schilthuis to rely upon the opinions and/or observations of the monitors in defence of the allegations against him. However, even leaving aside for the moment whether the College would be estopped by virtue of the comments or opinions of a monitor, there is no evidence here that any of the particular records of incidents that are the subject of the Records Complaint were ever the subject of review or comment by the monitors. The fact that they occurred during the same time frame as the monitoring of Dr. Schilthuis’s practice is not sufficient to give rise to an estoppel argument, even if such a remedy would be otherwise available.

[9] It would not be appropriate for this court to intervene to prevent an administrative body from proceeding with a hearing, in the absence of such unfairness that the damage to the public interest in proceeding would exceed the harm to the public in the enforcement of the legislation if the proceedings were halted. Such an order would not be appropriate unless allowing the hearing to proceed would violate “fundamental principles of fundamental justice which underlie the community’s sense of fair play and decency”, or where the proceedings are “oppressive or vexatious”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307 at paras 118-120. Nothing in this case comes close to approaching that standard. Indeed, we do not consider the College to have acted unfairly at all.

[10] In the result, therefore, we see no basis to interfere with the discretion of the Executive Committee of the College in deciding to proceed with a hearing in respect of the Records Complaint. We would have reached that conclusion regardless of whether the standard of review is reasonableness simpliciter or patently unreasonable. Accordingly, this application is dismissed.

[11] Given the way the argument unfolded, we heard all of the applicant’s submissions on the merits of the judicial review without dealing with the Respondent’s position, asserted in its factum, that this judicial review application ought to be dismissed on the basis that it is premature. We should not be taken as having ruled that it was appropriate to have brought this application in the first place. Since the Respondent’s position was not advanced by way of a motion to quash or preliminary objection, we simply did not get to it. After hearing the applicant’s submissions on the central issues in the proceeding, we were of the view that it was without merit and we did not call upon the respondent. Accordingly, we have not ruled on whether the applicant ought to have first advanced his arguments with respect to abuse of process before the College, before applying to this court for relief.

[12] Given the result, the respondent is entitled to its costs. We note that much of the case advanced by the applicant in his initial application was abandoned just prior to the argument of the application. However, the respondent was required to expend considerable time and effort responding to the original allegations, including assembling a factual record to rebut the less than complete factual picture put forward by the applicant. Further, new arguments were advanced by the applicant at the eleventh hour, which required additional efforts by respondent’s counsel on a rush and urgent basis. We have concluded there was no merit in the applicant’s position, to the extent that we did not need to hear from the respondent. However, it was necessary for the respondent to spend considerable time and effort preparing material to address the factual and legal issues raised by the applicant. It is appropriate that the costs award reflect this situation. That said, we were not presented with dockets or particulars to explain the approximately 100 hours which the respondent’s counsel and his associate would appear to have spent in responding to this matter.

[13] Considering the length of the hearing, the material filed, and the degree of legal and factual complexity involved, we are of the view that an appropriate award for costs is $15,000.00.

Lane J.

Molloy J.

Donohue J.

Date: January 21, 2005