Citation and Court Information
CITATION: Walia v. College of Veterinarians of Ontario, 2018 ONSC 6189
DIVISIONAL COURT FILE NO.: DC-17-0064-00 DATE: 20181016
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, HORKINS, THORBURN JJ.
BETWEEN:
DR. RAVIRAJ WALIA Applicant
– and –
COLLEGE OF VETERINARIANS OF ONTARIO Respondent
Dr. Raviraj Walia, self-represented
B.C. LeBlanc and M. Pearlston, on behalf of the Respondent
HEARD at Brampton: October 16, 2018
ORAL REASONS FOR JUDGMENT
THORBURN J. (Orally)
[1] This is an appeal of two decisions of the Discipline Committee of the College of Veterinarians of Ontario (“the Tribunal”). In the first, the Appellant, Dr. Walia was found guilty of professional misconduct after he performed corrective cherry eye surgery on a dog in his practice in Kitchener, Ontario on July 28, 2014. The second is the Tribunal’s decision on penalty and costs.
[2] We will deal with each of the Appellant’s submissions in turn:
1. What began as three allegations became nineteen and Dr. Walia was not given the opportunity to respond at the investigatory stage to the revised allegations
[3] When the complaint was forwarded to Dr. Walia, he was asked to respond to three issues. The expert was asked to prepare a report which the Complaints Committee considered. The Committee made a decision to refer nineteen separate allegations to the Disciplinary Committee for a hearing.
[4] According to Dr. Walia, if he had been given the opportunity to respond to the nineteen allegations at the investigatory stage, this matter would never have proceeded to a hearing.
[5] We start by noting that the nineteen allegations arose directly out of the Complainant’s letter of Complaint, the summary of the issues, the expert’s analysis of those issues, and Dr. Walia’s responses to all of these materials.
[6] Dr. Walia knew a year before the hearing what the allegations were and had time to prepare his defence in respect of all nineteen allegations.
[7] By the time of the hearing, Dr. Walia had ample opportunity to know the case he had to meet. He had received a copy of the complaint and expert reports, and had full disclosure from the College. The only decision taken at the investigatory stage was to refer the matter for a hearing before the Discipline Committee, a hearing that he had a full opportunity to participate in.
[8] Given what happened after a full hearing took place, we see no basis for the suggestion that had Dr. Walia had an opportunity to respond to all nineteen allegations at the investigatory stage, this matter would not have been referred to a hearing.
2. College Counsel’s role in drafting the Notice of Allegations and in being Counsel to the College
[9] According to Dr. Walia, counsel for the College was involved at both the investigatory and Disciplinary Hearing stages. He was involved in drafting the allegations, and appearing as counsel at the hearing on behalf of the College. According to Dr. Walia, his role in both these capacities raises a reasonable apprehension of bias.
[10] In this case, once the Complaints Committee had decided in principle to refer the allegations of professional misconduct to the Discipline Committee for a hearing, counsel for the College drafted the specific allegations for the Complaints Committee’s consideration. This process has been approved of by this Court in Berge v. College of Audiologists and Speech Language, 2016 ONSC 7034.
[11] For these reasons we do not accept Dr. Walia’s contention in respect to the second submission.
3. The Committee asked for and received all of Dr. Walia’s records in respect of the dog
[12] Dr. Walia alleges that he should not have been asked to provide all of his records but only those he saw as relevant. According to him, the College then used the records he provided against him. This was a fishing expedition.
[13] We see no merit to this submission (which according to the College was not raised before the Tribunal). If the records disclosed relevant evidence related to his treatment of the dog, they should have been disclosed.
4. Reasonable Apprehension of Bias by Virtue of Committee Membership
[14] The Appellant raises three concerns:
(1) The expert retained by the College had been a member of the Complaints Committee from 1999-2005;
(2) Two of the Complaints Committee members were also members of the Discipline Committee (although they did not preside over this proceeding); and
(3) One of the Discipline Committee members who did preside over this hearing also presided over a pre-hearing motion.
[15] With respect to the first issue of the expert, the Tribunal was aware of the fact that the expert had served on the Complaints Committee in the past and reasonably concluded that this did not raise a concern about bias such that they should not accept her as an expert. Furthermore Dr. Walia conceded before the Tribunal that the expert was properly qualified as an expert.
[16] With respect to the second issue, there is no conflict in respect of the two members of the Complaints Committee as those members did not sit as members of the Discipline Committee in this case.
[17] With respect to the third issue, the member who presided over the preliminary motion dealt with a preliminary matter that involved no consideration of or conclusion as to the merits. We reject the suggestion that because the member in question received College counsel’s factum, which dealt with a number of pre-hearing motions that the Appellant chose not to proceed with, the member was thereby disqualified from presiding at the hearing on the merits.
5. Standard of proof
[18] Dr. Walia submits that while the tribunal articulated the correct standard of proof, that is balance of probabilities, they did not properly apply that standard in their consideration of the evidence before them.
[19] We start by observing that it is not the role of this court to reweigh evidence or make assessments of credibility. Deference is owed to the Tribunal on these issues.
[20] In respect of the Tribunal’s assessment of the evidence, Dr. Walia asserts that the Tribunal did not allow him to make all of the submissions he wished to in respect to the records of the veterinarian who performed corrective surgery on the dog.
[21] We do not agree. The Tribunal allowed the Appellant to cross-examine the witness extensively in relation to these records. In any event, the Tribunal correctly pointed out to him that the focus of the hearing was Dr. Walia’s treatment of the dog.
[22] Dr. Walia also argues that the Tribunal’s assessment of the College’s expert was obviously flawed because her report contains an obvious error. We disagree with the Appellant’s interpretation of this report.
[23] In any event, the evidence as a whole (both that of experts and lay persons) amply supports the Committee’s decision.
6. Penalty
[24] Dr. Walia argued that the penalty was excessive and unwarranted because it did not accord with the College’s treatment in similar cases. According to Dr. Walia, in similar cases the matters had never even been referred for a hearing before the Discipline Committee.
[25] A Tribunal’s determination on penalty is owed considerable deference.
[26] Dr. Walia did not produce any cases in support of his position. By contrast, the Discipline Committee relied on similar cases produced by the College to support the penalty imposed (although they imposed a penalty lower than that sought by the College). As is evident from those cases, the penalty was reasonable.
7. Costs
[27] Dr. Walia alleges that costs are excessive. He claims he was not afforded the opportunity to test the amount sought by the College, because his request for back up documentation was refused on the grounds of solicitor client privilege.
[28] A Tribunal’s decision with respect to costs is owed significant deference.
[29] According to the College, they produced what they were required to produce to support their claim for costs. The College submits they are only required to file a Bill of Costs; they are not required to file documentation (such as dockets) to support the amounts outlined in the Bill of Costs. The transcript of the costs hearing discloses that College counsel advised the Tribunal that they could order him to produce a redacted version of his dockets to support the Bill of Costs that he had filed if they had a concern about the reasonableness of the amounts that he had claimed. The Tribunal made its award without requiring counsel to produce a redacted version of his dockets. In doing so the Tribunal emphasized the ways in which Dr. Walia’s conduct of his case had prolonged the hearing and contributed to the costs that the College incurred. From reading the Tribunal’s decision as a whole, we are satisfied that in this case, the Tribunal was able to assess the reasonableness of the costs claimed without requiring the production of redacted dockets.
[30] The Appellant also argued that the College’s request for costs was demonstrably excessive because it included time spent on preparing for twenty pre-trial motions when the Appellant only brought one pretrial motion. We reject this submission. The Appellant advised the College that he was bringing twenty pre-trial motions and the Tribunal set aside two days to hear those motions. When the Appellant filed material in relation to those motions, College counsel reasonably prepared to respond to those motions. On the first day set for the hearing of those motions, the Appellant requested a 90 day adjournment. It is only when the adjournment request was refused that the Appellant elected not to proceed with his motions.
[31] In summary, there are no grounds to interfere with the costs award in this case.
Conclusion
[32] For these reasons the Appeal is dismissed.
[33] “For reasons delivered orally by Thorburn J. this appeal is dismissed. The Respondent has requested its costs of this appeal on a partial indemnity basis fixed in the amount of almost $55,000. The Bill of Costs provided reveals that counsel incurred over $66,000 worth of legal time in relation to this appeal. This includes over 40 hours of time spent on preparing a very straightforward and simple (legally and evidentiary) motion for fresh evidence. In our view the request for costs is not just excessive, it is grossly disproportionate to the complexity of this appeal. While the Appellant raised a number of issues, these issues did not involve any difficult or complicated points of law or any difficult or complicated analyses of the evidence. In our view, a fair and reasonable amount to award the Respondent for its costs of this appeal is $6,000 all inclusive.”
Sachs J.
I agree _______________________________
Horkins J.
I agree _______________________________
Thorburn J.
Date of Reasons for Judgment: October 16, 2018
Date of Release:
CITATION: Walia v. College of Veterinarians of Ontario, 2018 ONSC 6189
DIVISIONAL COURT FILE NO.: DC-17-0064-00 DATE: 20181016
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, HORKINS, THORBURN JJ.
BETWEEN:
DR. RAVIRAJ WALIA Applicant
– and –
COLLEGE OF VETERINARIANS OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
THORBURN J.
Date of Reasons for Judgment: October 16, 2018
Date of Release: