COURT FILE NO.: 535/07

DATE: 200806

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, PITT, AND molloy JJ.

B E T W E E N:

DR. MICHAEL VENNERI

Appellant

• and -

COLLEGE OF CHIROPRACTORS OF ONTARIO

Respondent

Paul J. J. Cavalluzzo and Stephen J. Moreau, for the Appellant

Chris Paliare and Karen Jones, for the Respondent

HEARD: May 13, 2008

MOLLOY J. :

REASONS FOR DECISION

Introduction

[1] Michael Venneri, a chiropractor, appeals from two decisions of the Discipline Committee of the College of Chiropractors of Ontario: (i) the “Discipline Decision” dated March 16, 2007, finding him guilty of professional misconduct; and (ii) the “Penalty Decision” dated October 19, 2007 ordering (in effect) a three month suspension of licence and directing that he take specified continuing education courses.

[2] The discipline proceedings flowed from a complaint by A.H. about Dr. Venneri’s treatment of her daughter in August and September 2000. Her daughter, (S.H.), was 49 years old at the time, but had been significantly mentally disabled from the age of 33 as a result of viral encephalitis. Dr. Venneri had administered to S.H. a series of treatments called Hyperbaric Oxygen Therapy (“HBOT”). The Discipline Committee found that these treatments were unnecessary for S.H., that Dr. Venneri failed to obtain a proper, informed consent for the treatments, and that he failed to properly assess S.H. before undertaking the treatments. The Committee also found that in providing HBOT, Dr. Venneri was acting outside the scope of practice as a chiropractor. The Committee concluded that Dr. Venneri fell below (sometimes far below) the standards of practice of the profession in respect of his assessment, treatment and record keeping and that his conduct was not only unprofessional, but “disgraceful and dishonourable”.

[3] The Discipline Committee found that S.H. lacked the mental capacity to understand the objectives of the HBOT planned by Dr. Venneri, or its complexities, effects, or side-effects. However, largely because S.H. did not testify at the hearing, the Committee stopped short of finding her completely incapable to consent to treatment and therefore did not find Dr. Venneri guilty of abusing S.H. either verbally, physically, emotionally or psychologically.

[4] The Committee imposed a suspension of nine months, but directed that this would be reduced to three months if Dr. Venneri completed approved courses on record keeping and healthcare ethics. Because Dr. Venneri’s counsel advises that he will be taking those courses, we are treating this penalty as, in effect, a three month suspension. In addition, Dr. Venneri was ordered to appear for an oral reprimand before the Panel, and to pay a fine of $2500.00. Those aspects of the penalty are not challenged.

[5] Counsel for Dr. Venneri submits that the Discipline Committee erred in four fundamental ways: (i) by finding Dr. Venneri guilty of misconduct for three matters with which he was not charged; (ii) by making two findings of misconduct without prior notice to Dr. Venneri; (iii) by either erring in law in its assessment of Dr. Venneri’s credibility or failing to give adequate reasons for its adverse findings of credibility; and (iv) by imposing a penalty that was too harsh in all of the circumstances.

[6] For the reasons that follow, I find no error by the Committee. The appeal is dismissed.

Standard of Review

[7] There is a full right of appeal to this Court from questions of law or fact or both: s. 70, Health Professions Procedure Code (“the Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 19 (“the Act”). Until the recent decision in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No.9, it was well-settled in the case law that the standard of review from professional discipline tribunals was one of reasonableness simpliciter: Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] S.C.R. 226. Counsel for both parties before us submitted, and we agree, that applying the criteria in Dunsmuir, the standard of review to be applied here is reasonableness.

[8] To the extent that the errors alleged involve a breach of natural justice or procedural fairness, the standard of review does not apply. The Committee is simply obliged to comply with natural justice and a failure to do so is sufficient grounds to quash its decision: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras 18-28. Included among the natural justice obligations of this tribunal is a requirement to give adequate notice to the member so that he knows the case he has to meet: Howe v. Institute of Chartered Accountants of Ontario (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483, (1994) 118 D.L.R. (4th) 129 (C.A.) and the requirement to provide adequate reasons for its decision. Reasons that amount to mere conclusions are not sufficient; the tribunal is required to set out its findings of fact and the principal evidence upon which those findings were based: Gray v. Ontario (Disability Support Program, Director) (2002), 2002 7805 (ON CA), 59 O.R. (3d) 364 at 374-375, 212 D.L.R. (4th) 353 at 364 (C.A.).

Findings of Credibility

[9] The Committee did a careful analysis of the credibility of each witness who testified. The Committee first correctly stated the legal standard and onus of proof and correctly found that the Bernstein standard of proof applied. Next it cited the Divisional Court’s decision in Re Pitts and Director of Family Benefits Branch (1985), 1985 2053 (ON SC), 51 O.R. (2d) 302 with respect to how tribunals ought to make determinations of credibility and set out the factors referred to in standard jury instruction on credibility, as stated in Pitts. Those factors include a consideration of whether a witness has an interest in the outcome of the case. The Committee then proceeded to consider each of the witnesses that appeared before it and provided reasons for its credibility findings for every one of them.

[10] With respect to Dr. Venneri, the Committee found (i) that his testimony was “inconsistent with his conduct as established by the evidence”; (ii) that he was unable to adequately explain his actions, behaviour and records; (iii) that the records clearly demonstrated deficiencies; (iv) that there was a lack of medical common sense in Dr. Venneri’s treatment of S.H. and in his evidence; and (v) that he had a “significant interest in the outcome of the case”.

[11] There was ample evidence before the Committee upon which it could reasonably come to those conclusions. We do not agree with the appellant’s submission that a finding that Dr. Venneri’s treatment and evidence did not make medical common sense is a finding of misconduct, as opposed to a finding of credibility. It is always open to the trier of fact to consider the testimony of a witness in light of what makes sense. If the explanation defies common sense, in this case “medical common sense”, that is a factor relevant to credibility. It is also clear from looking at the reasons as a whole that the Committee did not confuse poor record keeping with poor character or credibility. Dr. Venneri’s explanations were not consistent with his conduct, including deficiencies in his records with respect to things he said he did. It was appropriate for the Committee to take these into account. It was not necessary for the Committee to set out, at this point in its reasons, each of the situations in which they found Dr. Venneri’s

conduct was inconsistent with his testimony. The reasons must be considered as a whole, including the evidence the Committee accepted from witnesses it found to be credible and which was different from Dr. Venneri’s version of events.

[12] In considering the sufficiency of the reasons with respect to credibility, the court must bear in mind that this is a lay tribunal that must not be held to the same standard as a court: College of Chiropractors of Ontario v. Kovacs (2004), 191 O.A.C. (88) (Div.Ct.) at para 25; Re DelCore and Ontario College of Pharmacists (1985), 1985 119 (ON CA), 51 O.R. (2d) 1 (C.A.) at para 8.

[13] Counsel for Dr. Venneri argues that the reference by the Committee to Dr. Venneri having an interest in the outcome is a legal error that completely undermines its adverse finding of credibility against Dr. Venneri. I recognize that an interest in the outcome is not a particularly helpful criterion upon which to assess the evidence of a person against whom proceedings have been brought. A person wholly innocent of all charges against him will still have a very definite interest in having those charges dismissed. However, that does not mean that any consideration of the factor is a legal error. The fact remains that a person with no interest in the outcome may be more likely to be telling the truth than a person with a vested interest. Applying that consideration as a significant factor in a situation where the person is charged with an offence would be inappropriate. However, in this case, the Committee did not do that. The Committee itself said that Dr. Venneri’s interest in the outcome “while not a conclusive factor in assessing credibility, remained a factor in its assessment”. I do not consider this to be a legal error. Further, even if it was an error, it had no impact on the result. It is apparent from the Committee’s reasons that it had carefully considered the evidence of Dr. Venneri against the other evidence, including the evidence of his own conduct and what made sense, and concluded that Dr. Venneri was not telling the truth. They would inevitably have reached that conclusion with or without considering Dr. Venneri’s interest in the outcome.

[14] Taken as a whole, the Committee’s reasons for adverse credibility findings against Dr. Venneri are adequate to explain the conclusions it reached. This is not a situation in which the reasons are so sparse that meaningful appellate review is not possible.

[15] Accordingly, I find no basis to interfere with the decision of the Committee on this ground.

Performing a Controlled Act and Acting Outside the Scope of Practice

[16] The Committee’s jurisdiction is derived from ss. 26(2) and 36 of the Code which require that a “specific” allegation be referred to it. It is not sufficient that the charges of misconduct merely track the language of the Code provisions; the member is entitled to know with some specificity what he is alleged to have done that is improper.

[17] There were six counts against Dr. Venneri in the original Notice of Hearing. Count 5 was withdrawn by the College and Dr. Venneri was found not guilty of Count 3 (abusing a patient). The remaining four charges were:

• Count 1: failed to maintain the expected standards of practice in respect of assessment, treatment and/or documentation concerning S.H.;

• Count 2: committed professional misconduct by providing treatment to S.H. without consent;

• Count 4: committed professional misconduct by providing a treatment to S.H. that was not necessary; and

• Count 6: committed professional misconduct between August 2000 and May 29, 2001 in respect of the assessment and/or treatment and/or documentation and/or billing and/or communications with S.H. that would be regarded by the members of the profession as “disgraceful, dishonourable or unprofessional”.

[18] The Committee reviewed the evidence before it and made many findings of fact. Towards the end of its reasons, under the heading “Conclusions”, the Committee set out nine factual conclusions. Based on those findings, the Committee concluded that the College had proven the allegations in Counts 1, 2, 4 and 6.

[19] Those nine facts included findings that Dr. Venneri administered a drug, thereby performing a “controlled act” as defined by s. 27(2)(5) of the Act and that his administration of HBOT was “outside the scope of practice for a chiropractor”. Counsel for Dr. Venneri argues that these findings constitute findings of misconduct and must be quashed because they were not specifically set out in the formal charge. Alternatively, it is submitted that there was no notice to Dr. Venneri of the allegation of performing a “controlled act” and that this finding must be quashed. We do not agree with either argument.

[20] Prior to the hearing, the College provided Dr. Venneri with disclosure of the case against him. That disclosure included a Prehearing Conference Memorandum setting out six pages of particulars cross-referenced to the specific counts against Dr. Venneri. Further, on November 9, 2005, prior to the hearing, counsel for the College provided written Particulars of the allegations to counsel for Dr. Venneri. Those Particulars are specified to be “supplemented by” the information in the prehearing conference memorandum. With respect to Count 1 (standards of practice), the Particulars state that this includes the allegation of “practicing beyond the scope of practice for a chiropractor”. In the Prehearing Conference Memorandum, this is also described as acting beyond the scope of practice, and further states that the HBOT involves “administering a substance [oxygen] by injection or inhalation” which is a “controlled act” as defined in ss. 27(2)(5) of the Regulated Health Professions Act. In addition, Dr. Venneri was provided in advance with the expert opinion reports of the experts relied upon by the College which dealt with these very issues.

[21] Accordingly, it is abundantly clear that Dr. Venneri had timely and specific notice of the College’s allegations that he had administered a substance by inhalation in his HBOT treatment, that this was a controlled act in violation of s. 27(2)(5) of the Act, and that this was beyond the scope of practice for chiropractors in Ontario. Given the nature of the notice given, there was no requirement that these allegations be specifically incorporated into the actual counts on the Notice of Hearing. However, even if that was a requirement, the Particulars constitute incorporation of the allegations into the official counts.

[22] Therefore, there is no basis for interfering with the Committee’s findings with respect to these grounds.

Allegations Relating to S.H.’s Written Statement

[23] One of the nine factual conclusions made by the Committee near the end of its decision was as follows:

9. Dr. Venneri was dishonest and deceitful when he obtained a statement from Ms S.H. (Exhibit 19) to bolster his case. Further, Dr. Venneri altered Ms S.H.’s handwritten statement by making additions for self-serving purposes. His conduct in this regard debased and shames chiropractors and the chiropractic profession as a whole.

[24] The appellant submits that the Committee erred in making this finding because: (i) it was a finding of misconduct and was required to be specified in the formal charge; (ii) it was made without notice to Dr. Venneri that such a finding would be sought; and (iii) the statement from S.H. was created on June 22, 2001, which is outside the time frame of August 2000 to May 29, 2001 specified in the formal charges.

[25] I find no merit to the first point for the same reasons as stated above. The nine factual findings were just that -- factual findings. They were not findings of misconduct, but rather factual findings upon which the findings of misconduct were, in part, based.

[26] Dr. Venneri’s first response to the College with respect to the complaint against him was a letter dated July 3, 2001. He enclosed with that letter a typed statement signed by S.H. in which she, inter alia: praised Dr. Venneri and claimed that the HBOT treatments improved her walking, speech, thinking, energy and emotional well-being; criticized her mother for trying to control her life; asked the College to disregard her mother’s complaint as “irrational and unfounded”; and, claimed that she had been “forced to sign release forms” (referring to the release forms she had signed permitting the College to have access to Dr. Venneri’s patient file on her.

[27] On the issue of notice, I find that the College gave clear notice to Dr. Venneri that S.H.’s statement, and the manner in which he obtained it, were issues relied upon by the College in respect of the misconduct alleged in Count 6 (“disgraceful, dishonourable or unprofessional” conduct). In the Pre-Hearing Conference Memorandum, the College advised that S.H. had told the College’s investigators that she did not write or dictate the statement Dr. Venneri had sent to the College, that the document had been typed by someone else in a different room and that she did not know if it had been read to her before she signed it. She denied that she had ever been pressured by the College to sign release forms. In the Particulars provided to Dr. Venneri’s counsel on November 9, 2005, the College stipulated that its allegations in respect of Count 6 included that he “used Ms. S.H. to address requests from [the College] by having Ms. S.H. write and/or sign letters designed to frustrate the investigation of the complaint filed with the College”. Thus, Dr. Venneri had notice that the content of the statement and the manner in which he obtained it were alleged by the College to be “dishonourable”.

[28] The appellant alleges that even if there had been notice that the obtaining of the statement would be at issue, there was no notice that the College would be seeking a finding that Dr. Venneri altered the statement by making self-serving additions. It is true that no notice was given of any specific allegation to that effect, apart from S.H.’s general denial of some of the statements attributed to her and her inability to say whether the statement had been read to her before she signed it. However, the evidence on this issue arose at the hearing as a result of evidence called by the defence and with respect to which the College cannot be expected to provide notice.

[29] The College was ultimately successful in obtaining the patient file. In the file, was a hand-written statement from S.H., which contains some, but not all, of the material in the typed statement. The typed statement is signed by S.H. and witnessed by Tammy Tanguay, a patient of Dr. Venneri’s who was in his office the day S.H. was there and was asked to witness S.H.’s signature. Dr. Venneri himself admitted in his testimony that he and S.H. had “put together” the June 22, 2001 statement, that S.H. “sort of wrote” the handwritten statement, and that some of the words were hers and some were his.

[30] Dr. Venneri’s counsel called Tammy Tanguay as a witness at trial. She testified that she had been asked by Dr. Venneri to witness S.H.’s signature and that she had sat down with S.H. and gone over her handwritten statement with her as Dr. Venneri read it aloud. She said that S.H. did not dispute anything in it. On cross-examination, Ms Tanguay testified that she was then asked to wait while Dr. Venneri took the hand-written statement into another room to have his secretary type it up. When he returned with the “typed version”, S.H. signed it and Ms Tanguay witnessed her signature. She did not read the typed version. She acknowledged, and it is clear just from viewing the documents, that the typed statement contains many statements that are not in the handwritten version.

[31] In the face of this evidence, it was completely open to the Committee to conclude, as it did, that not only had Dr. Venneri acted improperly in obtaining the statement in the first place, he had altered the content of the statement before having S.H. sign it and Ms Tanguay witness it. Since this was evidence elicited from Dr. Venneri’s own witness, the fact that the Committee’s findings went further than the original allegations made by the College is not a breach of procedural fairness or natural justice.

[32] Finally, no objection was made by counsel for Dr. Venneri at the time of the hearing, that there had not been adequate notice of the College’s reliance on the circumstances of the S.H. statement in respect of the allegation of dishonourable conduct. Dr. Venneri knew it was an issue. That is why he called specific evidence in an attempt to address it. Further, there was no objection either upon receipt of the Particulars or during the course of the hearing with respect to the time frame covered by the formal charge and the date of the S.H. statement. Had such an objection been made, it would easily have been cured by an amendment without even need of an adjournment, since it is clear from the Particulars that the statement would be an issue. This is an appeal. The failure of the appellant to have raised these issues before the tribunal is, in these circumstances, fatal to its position in this Court: Re National Trust Co. and Bouckhuyt 1987 4098 (ON CA), [1987], O.J. No. 930 (C.A.) at paras 16-18; Protection Mutual Insurance Co. v. Beaumont, [1991] B.C.J. No. 1331 (B.C.C.A.) at pp. 6-7.

[33] In any event, even without the finding with respect to the alteration of S.H.’s statement, the Committee had ample evidence upon which it could reasonably conclude that the College had discharged its burden of proving Count 6. Given the other factual determinations of the Committee, that conclusion was inevitable, with or without the alteration of the statement.

Penalty

[34] The appellant argues that the nine month suspension of license is unreasonable and this Court should exercise its power to substitute a more appropriate penalty.

[35] As noted above, the nine-month suspension would only occur if Dr. Venneri elected not to take the recommended continuing education courses. He is going to take those courses. Therefore, the real penalty is a three-month suspension (along with the reprimand and fine which are not contested).

[36] The Committee gave careful and considered reasons for the penalties it imposed. It is clear from those reasons that the Committee recognized the mitigating circumstances, and in particular the numerous letters of reference and support from patients and peers in the chiropractic community. It was largely because of this that the Committee reduced the nine-month suspension to only three if Dr. Venneri completed the required continuing education programs.

[37] Notwithstanding these mitigating factors, the Committee held that given the seriousness of the conduct and the fact that it would negatively impact the public perception of the chiropractic profession, it was necessary to impose the length of suspension it did for purposes of general and specific deterrence.

[38] In coming to this conclusion, the Committee applied the appropriate considerations and committed no error in principle. The Committee is best able to assess the gravity of the misconduct and its consequences to the public and the profession, particularly in the area of determining the appropriate sanction. On issues of this nature, the Committee is entitled to considerable deference: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, 2003 S.C.C. 20 at paras 31-34 and 59-61. There is nothing unreasonable about the penalty imposed in light of the seriousness of the misconduct. We see no reason to intervene.

[39] The Committee had directed that there be a fifteen-day delay of the suspension so that patients can be given adequate notice to obtain an alternate care provider. On the appeal before this Court, his counsel asked that this be increased to thirty days. That is a reasonable request.

Conclusion and Order

[40] The penalty imposed by the Committee is modified to increase the delay in the commencement of the suspension to thirty days. In all other respects the appeal is dismissed. If costs cannot be agreed to between the parties, brief written submissions may be addressed to the court within thirty days.

MOLLOY J.

JENNINGS J.

PITT J.: (Concurring in the result; Dissenting on penalty)

[41] I have had the benefit of reading the reasons of my colleagues Jennings J. and Molloy J. and agree with most of what they have said.

[42] There are two areas in which I have some disagreement with them.

(a) I agree with my colleagues that the Tribunal’s reference to Dr. Venneri’s having an interest in the result of the proceeding, in assessing his credibility does not completely undermine the adverse finding of credibility made against him. However, I disagree with them that such reference was not an error in law. That reference was, in my view, in the language of the Court of Appeal “logically incoherent”, and not useful in the analysis of credibility, see R. v. S.D., [2007] O.J. No. 1251 (C.A.).

The College itself in College of Chiropractors v. Kovacs (unreported 2003 Decision) expressed their reluctance to use that approach in their assessment of creditability.

(b) The second area in which I disagree with my colleagues is the issue of penalty. The penalty imposed by the College was a suspension for a period of 9 months. My colleagues noted that the “real penalty is a 3 month suspension” since Dr. Venneri is going to take the courses that would result in a reduction of the suspension to 3 months.

[43] In my view, counsel for Dr. Venneri established by a comprehensive review of the cases that 9 months is not within the range of an appropriate penalty, and that in fact, 3 months is at the high end of the range. The 9 month suspension is in my view unreasonable.

[44] In deference to the Tribunal I accept that 3 months suspension in addition to the other requirements is an appropriate penalty and I would have so ordered.

PITT J.

Released: June 9, 2008

COURT FILE NO.: 535/07

DATE: 20080609

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, PITT, AND molloy JJ.

B E T W E E N:

DR. MICHAEL VENNERI

Appellant

• and -

COLLEGE OF CHIROPRACTORS OF ONTARIO

Respondent

REASONS FOR DECISION

JENNINGS J. and MOLLOY J.

(Concurring)

and

PITT J.

(Dissenting) J.

Released: June 9, 2008