CITATION: (Dr. Kennedy v. College of Veterinarians of Ontario), 2010 ONSC 3622

DIVISIONAL COURT FILE NO.: DC08-00090

DATE: 2010-10-29

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, WILTON-SIEGEL and KOKE JJ.

B E T W E E N :

DR. BLAINE KENNEDY Appellant

– and –

COLLEGE OF VETERINARIANS OF ONTARIO Respondent

Gerry Smits For the Appellant

Bernard C. Leblanc for the Respondent College

HEARD at Hamilton: JUNE 3, 2010

REASONS FOR JUDGMENT

JENNINGS J.:

[1] Dr. Blaine Kennedy (“Dr. Kennedy”) appeals the decision of the Discipline Committee (the “Committee”) of the College of Veterinarians of Ontario (the “College”) dated August 7, 2008, and the penalty imposed by the Committee in the decision dated June 25, 2009. Dr. Kennedy asks that the decision of the Committee be set aside and a new hearing held. In the alternative he seeks an order that the penalty imposed be varied.

background

[2] In 2004 search warrants were executed on the premises of one Fred Rogers (“Rogers”) who was suspected of conducting the illegal manufacture and sale of veterinary products. Most of Rogers’ customers were involved with horse racing. A large quantity of labelled and unlabelled veterinarian drug products were seized along with documents, invoices and receipts. Rogers died not long after the execution of the second warrant.

[3] As a result of investigations carried out by the College, Dr. Kennedy, who practised as a veterinarian in Alberton, Ontario, was charged with misconduct. The allegations can be summarized as follows:

a) that he purchased drug products from Rogers who he knew or should have known was not licensed or legally authorized to sell the drugs;

b) that he administered veterinarian medicine to his clients from the drugs purchased from Rogers, thus representing to them that the drugs had therapeutic or clinical value, although many of the drugs were unlabelled or inadequately labelled and had questionable value;

c) that he refused or neglected to provide documentation and information required by notices from both the Ontario Racing Commission and the College;

d) that his licence to practice under the Racing Commission Act was revoked by the Ontario Racing Commission, which amounted to an act of professional misconduct, and;

e) that he failed to keep adequate or any records in respect of all of his transactions with Rogers.

[4] On September 20, 2005, as a result of the activities described in the College’s allegations, the executive director of the Ontario Racing Commission ordered an immediate suspension of Dr. Kennedy’s licences and issued a notice of proposed order to revoke the licences of Dr. Kennedy and to issue a life time suspension of Dr. Kennedy’s licences, pursuant to the provisions of the Racing Commission Act.

[5] On September 23, 2005, Dr. Kennedy requested a hearing pursuant to the Racing Commission Act. The hearing was held and on May 1, 2006, the Ontario Racing Commission released its ruling, upholding the director’s decision to revoke Dr. Kennedy’s licences, suspending the licences for 7 years and imposing a fine of $25,000.

[6] In November 2007, the College commenced its hearing and, on August 7, 2008, the Committee released its decision finding Dr. Kennedy guilty of professional misconduct on all charges.

[7] On June 25, 2009, the Committee released its decision on penalty. It suspended Dr. Kennedy’s licence to practice veterinary medicine for a period of two years and thereafter put him on a period of supervision for three years. It required him to pay the College’s costs in the sum of $25,000 and it issued a written reprimand.

key issues

[8] In his notice of appeal Dr. Kennedy listed 33 potential grounds of appeal, but at the hearing before us, the appellant’s counsel advised he would make submissions on three issues only:

1. Was Dr. Kennedy denied procedural fairness because:

a) the Committee gave inadequate reasons for its decision?

b) the Committee considered the findings of the Ontario Racing Commission decision in its proceedings? and;

c) hearsay evidence was admitted during the proceeding before the Discipline Committee?

2. Was the penalty imposed by the Discipline Committee excessive?

3. Was the imposition of costs ordered by the Committee excessive?

jurisdiction

[9] Under s.35(1)(a) of the Veterinarians Act R.S.O. 1990 c.D3 a party to the proceeding before the Committee may appeal to the Divisional Court from the decision or order of the Committee.

standard of review

[10] We accept the position of the parties that the standard of review of reasonableness does not apply where we must consider whether the issues raised in the appeal relate to the requirements of natural justice or procedural fairness. With the other issues that are raised on this appeal, the standard of review is reasonableness.

analysis

[11] The principal submission made on behalf of the appellant was that the reasons for judgment precluded meaningful review.

[12] The significant deficiency we were urged to find was that the Committee failed to properly articulate the reasons why it disbelieved Dr. Kennedy’s evidence where it conflicted with evidence of the College’s witnesses.

[13] The Committee set out twelve questions regarding factual issues that were relevant to its determination that Dr. Kennedy was guilty of five acts of professional misconduct. It then proceeded to set out in turn the evidence upon which it relied in answering each question in the affirmative. The reasons given for each of these findings satisfy the test set out below for appellate review.

[14] In particular, the evidence of Dr. Kennedy’s involvement in dealings with Rogers was virtually overwhelming. It consisted in part of admissions made by Dr. Kennedy to the College’s investigators that he had purchased drugs from Rogers and in part of Dr. Kennedy’s account payable records for purchases from Rogers of at least $20,000 for the years 2000 and 2001. Some 35 months of records for subsequent periods of time were never produced by Dr. Kennedy, although the College had requested their production on more than one occasion.

[15] The evidence further included 8 invoices bearing the initials “BK” seized from Rogers and covering the sale of illicit drugs for the period after 2001 totalling $11,640. There was also evidence of unlabelled drug bottles found in Dr. Kennedy’s possession, similar to bottles seized from Rogers. The Committee did not accept Dr. Kennedy’s explanation that the initials “BK” on the invoices did not refer to him. The Committee did not accept Dr. Kennedy’s explanation that the bottles had been given to him by a client for disposal.

[16] The Committee also concluded that Dr. Kennedy was not truthful and therefore did not accept his evidence. On this issue of credibility, the Committee explained its findings in these words at paragraph 10 of its reasons:

The evidence and explanations given by Dr. Kennedy regarding these events was not believable. His explanation of how some of the drugs came into his possession; his failure to produce the records requested by the CVO investigator and his failure to produce most of his financial records for the relevant period, leaves the discipline panel to conclude that he was not honest in his testimony. Parts of his evidence were inconsistent with the evidence he gave under oath before the ORC. For these reasons, the discipline panel did not believe he was truthful and they did not accept his evidence.

[17] Dr. Kennedy submits that the analysis of the credibility issue was inadequate, relying upon

Law Society of Upper Canada v. Neinstein, [2010] 99 O.R. (3d) and

Paulis v. Smith et al. (2010), ONSC 216065 May 25, 2010.

[18] Counsel relies in particular upon the statement by Cunningham ACJ in Paulis at paragraph 23:

A failure, however, to properly articulate how credibility concerns are resolved, constitutes a reversible error.

[19] Counsel submits that the finding that Dr. Kennedy gave evidence before the Committee inconsistent with the evidence given by him under oath before the Ontario Racing Commission, was not particularized in any detail.

[20] Counsel for the College fairly concedes that the reasons were not perfect but submits that they were more than adequate, given that the tribunal was composed of non lawyers. He submitted that during his cross-examination of Dr. Kennedy before the Committee, he impeached on only one inconsistency between Dr. Kennedy’s evidence and the evidence that Dr. Kennedy gave to the Ontario Racing Commission and he took us in the record to that passage. It is clear from the record that the inconsistency went to the heart of the case before the College, the purchase of drugs from Fred Rogers. We accept counsel’s submission that because of that there was no reason for the Committee to further particularize the inconsistency and it must have been clear to Dr. Kennedy and his counsel.

[21] In our opinion, in the context of its decision, the Committee performed an adequate analysis of the evidence to support its credibility finding. The reasons for the finding are set out in the passage above. They are based on findings made in respect of the twelve questions addressed by the Committee. The reasons for the credibility finding are sufficient for appellate review. The reasons passed the test of both Law Society of Upper Canada v. Neinstein and Paulis v. Smith (supra).

[22] In his argument before us, counsel for Dr. Kennedy appeared to abandon the submission in his factum that Dr. Kennedy was denied natural justice when the decision of the Ontario Racing Commission was filed as an exhibit on the hearing before the Committee. He agreed with a suggestion from the Court that the decision from the Ontario Racing Commission was relevant to the charge under s.30 of the Veterinarians Act. There is no suggestion that, apart from being used to impeach Dr. Kennedy, the decision of the Ontario Racing Commission played any part in the findings of the Committee.

[23] The objection to hearsay evidence concerned part of the investigation carried out by Investigator Griffis who was engaged in the investigation of Dr. Kennedy along with other investigators. Mr. Griffis was on a disability leave at the time of the hearing and was not able to testify. He did testify at the hearing before the Ontario Racing Commission and was cross-examined. Much of the evidence given by other investigators was based on observations of what Mr. Griffis did in their presence during the investigation. That is not true hearsay. With respect to statements made by Griffis in their presence, which might well be hearsay, the evidence was admissible before the Committee pursuant to the provisions of s.28(7) of the Veterinarians Act R.S.O. 1990 c.V.3. and s.15(1) of the Statutory Powers Procedure Act R.S.O. 1990 c.S.22. Further, it is to be noted that the panel did not refer to any hearsay evidence emanating from Mr. Griffis in its reasons for decision and clearly did not give undue weight to it.

[24] With respect to the penalty imposed by the Committee, this was a matter squarely within the Committee’s expertise and mandate and its decision is entitled to considerable deference.

[25] The appellant submits that the Committee did not consider a related case of a veterinarian, Dr. J. F., who received an eight months’ suspension for what we were told were more serious offences. Dr. J. F’s penalty was the subject of a joint submission on penalty based on an agreed statement of facts. Dr. J. F. cooperated with the College and produced the records that were asked of him. Unlike Dr. Kennedy, Dr. J.F. had not previously been found guilty of professional misconduct and suspended from practice as a consequence.

[26] We cannot find any error in principle made by the Committee in the penalty imposed. We cannot say it is unfit or unreasonable.

[27] Although the costs imposed are substantial, the hearing ran over eight days and the penalty hearing two days. We accept the submissions in paragraph 131 of the respondent’s factum that the costs awarded were reasonable given the circumstances of this case and previous decisions of this court as set out therein.

conclusion

[28] The appeal is dismissed. In the absence of an agreement on costs, the parties may make written submissions, not to exceed three pages, to be filed with the Registrar of the Court in Toronto within 15 days of the release of these reasons.

JENNINGS J.

WILTON-SIEGEL J.

KOKE J.

RELEASED: October 29, 2010