CITATION: Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039

DIVISIONAL COURT FILE NO.: 154/19

DATE: 20200521

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Pattillo, Penny and Favreau JJ

BETWEEN:

DR. JONATHAN MITELMAN

Appellant/Respondent on Cross-Appeal

– and –

COLLEGE OF VETERINARIANS OF ONTARIO

Respondent/Appellant on Cross-Appeal

Leo Klug for the Appellant/Respondent on Cross-Appeal

Bernard C. LeBlanc and Maya Pearlston for the Respondent/Appellant on Cross-Appeal

HEARD: May 13, 2020

PENNY J.

Overview and Issues

[1] This is an appeal and a cross-appeal under s. 35 of the Veterinarians Act, R.S.O. 1990, c. V.3 from a decision of the Discipline Committee of the College of Veterinarians of Ontario on penalty and costs dated February 10, 2019.

[2] The appellant, Dr. Jonathan Mitelman, submits that the penalty imposed upon him in the Decision, a twelve-month suspension on terms, should be set aside on the grounds that:

(1) the basis for the penalty imposed was not supported by the evidence;

(2) the penalty was not properly justified or explained in the Decision; and

(3) the penalty was, in any event, disproportionately harsh in the circumstances.

[3] The College, as cross-appellant, submits that the Committee erred in one aspect of its penalty by allowing Dr. Mitelman to own a mobile veterinary practice following the completion of his suspension.

[4] For the reasons that follow, I would dismiss both appeals.

Background

[5] At the outset of the discipline hearing, Dr. Mitelman pleaded guilty to the following two charges against him:

(1) engaging in false advertising by encouraging staff of his clinic to post fictitious testimonials online; and

(2) misleading clients in relation to charitable contributions allegedly made on behalf of their pets.

[6] Following an eleven-day hearing, the Committee found that Dr. Mitelman engaged in a number of additional serious acts of professional misconduct involving both standards of practice and ethical issues.

[7] In addition to the charges to which he pled guilty, the Committee found, among other things, that Dr. Mitelman:

(a) failed to follow client instructions in relation to critical aspects of an animal’s care. In one case Dr. Mitelman charged a client to euthanize a pet but failed to carry out the euthanization;

(b) failed to obtain his client’s informed consent to treatment and failed to explain the recommended treatment. The client was later billed for services she had not approved and which exceeded her stated budget;

(c) failed to maintain proper medical records in respect of at least six of his clients’ pets; and

(d) frequently failed to transfer records to other treating veterinarians in relation to a number of clients and their pets, thereby jeopardizing the ongoing care of the animals.

[8] This was not the appellant’s first conviction for professional misconduct by the College. In 2015, he was found guilty of a long list of serious professional misconduct and neglect allegations, including both treatment matters and professional matters (such as failing to keep, and falsifying, patient/pet records).

[9] Following the decision on liability for misconduct, there was a further three-day hearing regarding penalty and costs. At the penalty hearing, the College sought outright revocation of Dr. Mitelman’s licence as the only reasonable penalty. Dr. Mitelman submitted that an appropriate penalty would be a four-month suspension. Dr. Mitelman also conceded that appropriate terms on his licence might include a requirement for supervision and limiting his ability to own or operate a veterinary clinic. The parties also agreed that Dr. Mitelman would pay costs in the amount of $85,000.00 within three years.

[10] Following the penalty hearing, the Committee issued the Decision now under appeal. In the Decision, the Committee ordered that Dr. Mitelman’s licence to practise veterinary medicine be suspended for twelve months. The Committee’s penalty order also contained conditions and limitations on Dr. Mitelman’s licence to practise veterinary medicine. These included:

(i) a two-year period of mentorship post-suspension requiring that a mentor would have access to Dr. Mitelman’s medical records;

(ii) for a period of five years post-suspension, a requirement to advise the College and the mentor of new employers or work places prior to commencing working there; and,

(iii) for a period of five years post-suspension, a restriction against being an owner, part owner or director of any veterinary clinic.

[11] The College and Dr. Mitelman disagreed about the scope of the phrase “any veterinary clinic” in the five-year prohibition on ownership. The College, in particular, wanted to know whether the Committee intended this term to extend to any subcategory of veterinary “facility” within the meaning of the regulations, which includes both mobiles and clinics, or if it was to apply only to clinics. As such, the College asked the Committee to issue an addendum to clarify the matter.

[12] On March 19, 2019, the Committee issued an Addendum to its Decision in relation to this issue. The Addendum stipulates that it was not the Committee’s intention to limit Dr. Mitelman’s ability to own or part-own a mobile practice following his suspension. The Committee’s use of the phrase “any veterinary clinic” was intentionally used to signal that the limitation did not apply to all veterinary facilities, only bricks and mortar operations such as clinics and hospitals. Thus, the Committee clarified that the limitation did not apply to a mobile practice.

[13] In his appeal, Dr. Mitelman appeals only the penalty imposed by the Committee.

[14] The College cross-appeals the aspect of the order of the Committee which permits Dr. Mitelman to operate a “mobile” veterinary service independently during a five-year post-suspension period.

Standard of Review

[15] Dr. Mitelman’s appeal of the Decision of the Committee is being brought as of right under s. 35 of the Veterinarians Act. Since Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, it is clear that the threshold for review on a statutory appeal from an administrative tribunal is the appellate standard of review; that is, correctness in relation to an error of law and a palpable and overriding error with respect to findings of fact and mixed fact and law (except where there is an extricable error of law, in which case the standard is correctness), Housen v. Nikolaisen, 2002 SCC 33.

[16] A “palpable and overriding” error is an error that is “plainly seen” or “unreasonable or unsupported by the evidence.” Findings of mixed fact and law, where a legal principle is not readily extricable, are also reviewed on the palpable and overriding error standard. Where an appeal raises a pure or an extricable issue of law, that issue is reviewed on a correctness standard.

[17] A unique feature of this case is that the appeal is from penalty only. This engages a second question around the standard of review not addressed in Vavilov – what is the appropriate standard of review on an appeal of penalty alone?

[18] It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit.” The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances, College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56.

The Issues on Appeal

Was there evidence to support the Decision on penalty?

[19] The Committee relied, in its Decision, on:

(i) the nature of Dr. Mitelman’s misconduct,

(ii) public safety,

(iii) concerns regarding Dr. Mitelman’s practice, and

(iv) specific and general deterrence

for its imposition of a twelve-month suspension and the related conditions.

[20] The appellant takes particular issue with the Committee’s reference to public safety. Dr. Mitelman argues that there is “no evidence” that anything he did impaired public safety. On this basis he argues that there is no evidentiary foundation for a key element of the Committee’s findings in support of the twelve-month suspension and terms.

[21] I cannot agree with this argument for two reasons. First, while public safety was clearly referenced, it is only one of a number of factors relied on by the Committee in the Decision to support the penalty ordered.

[22] Second and more importantly, the very nature of the findings of professional misconduct made in the Committee’s earlier liability decision disclose that Dr. Mitelman engaged in practices that significantly impaired or posed a risk to public safety. The findings of the Committee were that Dr. Mitelman engaged in misconduct by:

(a) not following client instructions;

(b) charging for services that were not rendered or authorized;

(c) failing to maintain or transfer proper records necessary to the continuity of treatment (among other things); and

(d) engaging in false and misleading advertising and making misleading representations to clients which were calculated to promote the appellant’s business interests and development.

[23] The evidence from the liability phase of the hearing and the Committee’s findings in the liability decision were a part of the record of proceedings on the penalty phase. The Committee was not required to repeat all of this evidence or the findings on liability in its Decision on penalty. This was one hearing, broken down into two conceptual phases.

[24] The evidence of impairment to public safety was in the evidence at the liability hearing and is obvious from the Committee’s findings on liability. There is no merit to the argument that there was no evidence of impairment to the protection of the public. Impairment of public safety is a factor that could tend to support a more serious penalty.

Did the Committee support its conclusions on penalty with adequate reasons?

[25] Counsel for the appellant argued the ‘inadequate reasons’ ground of appeal on the basis that the Decision was not transparent, intelligible and justified. Transparency, intelligibility and justification are elements of the “reasonableness” standard in judicial review, not the appellate standard of review in a statutory appeal.

[26] No doubt some of the concepts involved in the Dunsmuir/Vavilov test in the context of the reasonableness standard of judicial review will be engaged in an appeal on penalty. Indeed, one of the hallmarks of an “unfit” sentence is that it is “clearly unreasonable”. But it is important to keep the two standards conceptually distinct. In the context of an appeal on sentence or penalty, the term “unreasonable” must be viewed in the context of the proportionality requirement. This is not what “unreasonable” means in the context of the reasonableness standard of judicial review generally.

[27] The starting point for the analysis of this ground of appeal, therefore, must be the same as it is for any other ground of appeal – was there an error of law or principle, or a palpable and overriding error of fact or mixed law and fact? Apart from the appellant’s first argument, which I have found is without merit, there is no suggestion of a palpable and overriding error of fact.

[28] Accordingly, the focus of analysis must be on whether any failure to provide adequate reasons in this case rises to the level of an error of law.

[29] To be sure, a failure to give adequate or sufficient reasons for a decision could be an error of law, but there is no free-standing right of appeal on the adequacy or sufficiency of reasons. If the court can discern the “why” of the decision from the record and whatever reasons have been given, it must not intervene on the basis of the reasons’ adequacy or sufficiency. This caution is applicable equally to the decisions of administrative tribunals, if not more so than in the criminal context, because the need for and extent of reasons for such tribunals varies with the context in which their decisions are made, MacLean v. British Columbia (Securities Commission), 2011 BCCA 455 at para 26, aff’d 2013 SCC 67.

[30] The essential purpose of reasons is to enable the losing party to know why the result was what it was and to permit appellate review. Reasons are not assessed against a standard of perfection. The reasons cannot be divorced from the context in which the decision was made nor the history and full record of the proceedings. This includes the evidence before the decision-maker, the submissions of the parties and other decisions pertinent to the matter in issue. If the reasons state their conclusions in brief compass and these conclusions are supported by the evidence, the decision will not be overturned merely because it fails to discuss every aspect or issue relevant to the case, R. v. Sheppard, 2002 SCC 26 at paras. 24-33.

[31] It is true that the Committee’s reasons on sentence are brief and do not assess in detail every factor, or every argument, that was raised in support of each party’s position on sentence or that might support the penalty ordered. However, no administrative tribunal (or court for that matter) is required to meet such a standard. This was a lengthy hearing. The Committee wrote lengthy and detailed reasons on liability. It had the benefit of written and oral submissions on sentence. The Committee was well aware of the issues in this case. The Committee considered the nature of Dr. Mitelman’s misconduct, public safety, concerns regarding Dr. Mitelman’s practice, his prior conviction for misconduct and specific and general deterrence – all appropriate considerations in the context of deciding penalty.

[32] The basis for the Committee’s conclusions on penalty is readily apparent to anyone with even a passing familiarity with the background to this case. I am not prepared to conclude that the reasons on penalty are so deficient as to amount to an error of law.

Was the penalty disproportionately harsh in the circumstances?

[33] I am also unable to agree with the appellant’s argument that the sentence was, on its merits, unfit as a matter of law.

[34] As noted earlier, the threshold for a reviewing court to intervene in a discipline committee’s decision on penalty is very high. The Committee was in a far better position than the court to determine the appropriate penalty for this particular case of professional misconduct.

[35] Both sides relied on penalty precedents from other cases which they argued were analogous to the case at bar.

[36] The appellant’s precedents were all at the low end of the scale and tended to reflect single counts of misconduct and joint submissions on penalty. The College provided case law specifically addressing the false advertising aspect of this matter. The case of Rhoads and Leonn v. College of Veterinarians of Ontario (11 January 2002), Guelph (Discipline Committee) contained some guidance on the appropriate penalty in matters of improper advertising. In that case the discipline committee said that it is in the interests of the public that members comply with the Act and that a breach of the provisions of the Act relating to advertising is a serious matter which, in most cases, would warrant a suspension of the member’s licence.

[37] Improper advertising was also a factor in Yazdanfar v. College of Physicians and Surgeons of Ontario, 2013 ONSC 6420, which included findings of false, misleading or deceptive advertising and, in some cases, advertisements containing superlatives and testimonials. The Divisional Court upheld the Committee’s finding that, in such a case, “only a revocation or a lengthy suspension together with strict terms, conditions and limitations would suffice to meet the proportionality test.”

[38] There was ample evidence and precedent before the Committee to support a suspension of considerable significance. The proven and admitted offences were serious and some went directly to Dr. Mitelman’s honesty and integrity. Dr. Mitelman was not a first offender. In all the circumstances, there is nothing unreasonable, in the proportionality sense of that term, about the penalty imposed in this case. The penalty was not “demonstrably unfit”, “clearly or manifestly excessive” or “clearly excessive or inadequate” nor did it represent a “substantial and marked departure” from penalties in similar cases.

[39] For these reasons Dr. Mitelman’s appeal is dismissed.

The Cross-Appeal

[40] A similar analysis may be applied to the College’s cross-appeal.

[41] The College argues that the post-suspension restriction of Dr. Mitelman’s practice to “clinics”, but not to “mobile” services, is unreasonable. Reasonableness as such, however, is not, as noted above, the issue. The question is whether permitting Dr. Mitelman to own a mobile veterinary service post-suspension constitutes an error of law or a palpable and overriding error of fact. There is no error of fact alleged, nor is one apparent in the Committee’s Decision. The issue, therefore, has to be whether this facet of the penalty order is based on an error of law.

[42] The enabling legislation itself distinguishes between “clinics” and “mobile services”. A good deal of the appellant’s problem, for which this penalty was being imposed, arose out of the management and administration of significant veterinary businesses, not the performance of veterinary services per se. There was ample basis in the record for the Committee to conclude that the limitation on ownership should apply to clinics but not to mobile services.

[43] The College argued that allowing Dr. Mitelman to operate a mobile veterinary service was inconsistent with so-called “supervision” requirements in the penalty order. I disagree. There were no “supervision” requirements. The order requires Dr. Mitelman to meet with a mentor appointed by the College for two years. Among other things, the mentor must have access to Dr. Mitelman’s medical records. Allowing Dr. Mitelman to operate a mobile service post-suspension is not inconsistent with this, or any of the Committee’s other penalty orders in this case.

[44] The Committee’s determination of penalty is a classic example of a question of mixed fact and law. There was no error of law (extricable or otherwise) in permitting Dr. Mitelman to own a mobile veterinary service post-suspension. There was no palpable and overriding error of fact. The cross-appeal is accordingly dismissed.

Costs

[45] Costs were agreed and are fixed, payable by Dr. Mitelman to the College, in the amount of $10,000.

Penny J.

I agree _______________________________

Pattillo J.

I agree _______________________________

Favreau J.

Released: May 21, 2020

DIVISIONAL COURT FILE NO.: 154/19

DATE: 20200521

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Pattillo, Penny and Favreau JJ

BETWEEN:

DR. JONATHAN MITELMAN

Appellant/Respondent on Cross-Appeal

– and –

COLLEGE OF VETERINARIANS OF ONTARIO

Respondent/Appellant on Cross-Appeal

REASONS FOR JUDGMENT

Released: May 21, 2020