Citation: Walia v. College of Veterinarians of Ontario, 2021 ONSC 4023

DIVISIONAL COURT FILE NO.: DC-19-80

DATE: 20210602

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Penny, McKelvey, Newton JJ.

BETWEEN:

Dr. Ravi Walia Applicant (Appellant)

– and –

College of Veterinarians of Ontario Respondent (Respondent)

Counsel:

Dr. Ravi Walia, Self-Represented with assistance of his daughter, Nikita Walia

Bernard C. LeBlanc and Maya Pearlston, for the Respondent (Respondent)

HEARD (by video conference): April 26, 2021

REASONS FOR DECISION

MCKELVEY J.:

Introduction

[1] This is an appeal of two decisions of the Discipline Committee of the College of Veterinarians of Ontario (“the College”). In the first decision, the appellant, Dr. Walia, was found guilty of professional misconduct following his treatment of a dog named Malcolm. The second decision deals with the tribunal’s decision on penalty and costs.

[2] On August 30, 2015, Malcolm, a three-year-old greyhound was taken to Dr. Walia’s veterinary clinic, Strasburg Animal Hospital, after injuring his left hind paw while running. Dr. Walia examined Malcolm and arranged for X-rays to be taken. It was alleged that Dr. Walia misinterpreted the X-rays of Malcolm’s paw, which led to him misdiagnosing and improperly treating the injury. Dr. Walia diagnosed a torn ligament when it was alleged the X-rays clearly reveal a displaced fracture in the left hind paw.

[3] On the basis of Dr. Walia’s alleged incorrect assessment, it was further alleged that he inappropriately used an empty toilet or paper towel roll as a soft splint on Malcolm’s foot.

[4] The next morning, on August 31, 2015, Malcolm’s owner called Malcolm’s usual veterinarians. That veterinarian made a request to Dr. Walia for a copy of Malcolm’s medical chart. Dr. Walia sent the records but failed to include Malcolm’s X-rays in the transfer. Later, because Dr. Walia had not sent the X-rays to Malcolm’s regular veterinarian, the clinic made another request for Malcolm’s X-rays to be transferred. These X-rays were finally received on September 3, 2015.

[5] The Complaints Committee of the College retained an independent expert to review the care provided to Malcolm. Based on their investigation, the Complaints Committee referred the matter to the College’s Discipline Committee. In their decision, the Discipline Committee found that Dr. Walia failed to appropriately treat Malcolm by failing to identify the fracture, misdiagnosing Malcolm as having a torn ligament, improperly immobilizing Malcolm’s foot with an empty toilet or paper towel roll and gauze, and failing to provide Malcolm’s X-rays to the other veterinarian within a reasonable time.

[6] In its second decision regarding penalty and costs dated July 27, 2019, the Discipline Committee ordered that Dr. Walia’s license to practice veterinary medicine be suspended for three months, that he successfully complete various forms of remediation related to his mismanagement of the case and that he pay $135,000 in costs to the College.

Applicable Standard of Review

[7] As Dr. Walia’s appeal of the decisions of the Discipline Committee is being brought as of right under s. 35 of the Veterinarians Act, R.S.O. 1990, c. V.3, the applicable standard of review is palpable and overriding error with respect to findings of fact and of mixed fact and law. With respect to issues of law, they are to be reviewed on a correctness basis in accordance with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

[8] At the conclusion of Dr. Walia’s argument, we advised the parties that we did not need to hear from counsel for the College. Dr. Walia was advised that we were not satisfied that he has established an error of law or a palpable and overriding error in the Discipline Committee’s decision finding professional misconduct. We further advised that we saw no error in principle with the sanction imposed on Dr. Walia. Dr. Walia was advised that his appeal was, therefore, dismissed with reasons to follow. These are those reasons.

Preliminary Issue Raised by Dr. Walia

[9] At the beginning of the hearing before this panel, Dr. Walia asked that the panel make an order disallowing College counsel, Bernard LeBlanc, from representing the College on the appeal. Dr. Walia takes the position that Mr. LeBlanc has a conflict and that there is a reasonable apprehension of bias given his previous role in the investigation and disciplinary proceedings. Mr. LeBlanc acted as the prosecutor before the discipline panel. He also participated in drafting the allegations made by the Complaints Committee against Dr. Walia.

[10] The issue of Mr. LeBlanc’s representation of the College was dealt with in another case involving Dr. Walia and the College. This decision, Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057, found that Mr. LeBlanc’s role as counsel to the College is both proper and common in disciplinary proceedings: at para. 23. As counsel who prosecuted the allegations in this case, there is nothing improper in Mr. LeBlanc responding to the appeal.

[11] The issue of Mr. LeBlanc’s representation of the College was also raised as a prehearing motion before the Discipline Committee, who dismissed the appellant’s motion. We see no error in the Discipline Committee’s ruling on this issue.

Was there a conflict of interest in Aaron Dantowitz acting as independent legal counsel for the discipline hearing because he acted as prosecutor in the case of Abdul v. Ontario College of Pharmacists?

[12] In our view, Mr. Dantowitz’s role as prosecutor in another case has no relevance to this matter and is not a basis to disqualify him from acting as independent legal counsel to the Discipline Committee.

[13] Dr. Walia also argues that Luisa Ritacca conducted herself improperly during the hearing on penalty and costs. The Discipline Committee considered Dr. Walia’s concerns and heard submissions from both himself and the College. It ultimately found that it had no concerns about the quality of assistance it received from the independent legal counsel up to that point in the hearing and saw no reason to take any action against her. We do not see any reason to interfere with that decision.

Application for Fresh Evidence

[14] The appellant has brought a motion to adduce fresh evidence. Specifically, the appellant seeks to introduce the supplementary affidavit of Ms. Rose Robinson dated January 11, 2018 into evidence on this appeal. This affidavit formed part of the appeal material. The College did not appear to object to this document. However, the College did respond to the inference Dr. Walia sought to make from the affidavit. The appellant’s theory was that the College only obtained X-rays by subsequent treating Veterinarians Glen Blier and Dr. Rob Hillerby after the Complaints Committee referred the allegations of professional misconduct to the Discipline Committee. However, as pointed out by the College, Dr. Walia had the opportunity to explore this issue at the discipline hearing given that both Dr. Blier and Dr. Hillerby testified as witnesses at the discipline hearing. This evidence, therefore, could reasonably have been put before the Discipline Committee in first instance. There was, in addition, no prejudice to Dr. Walia in responding to the allegations against him.

Are the by-laws of the College unconstitutional?

[15] It is not entirely clear what provisions of the by-law the appellant seeks to strike on constitutional grounds. The majority of the allegations contained in Dr. Walia’s constitutional motion repeat the same allegations in the main appeal, namely fraudulent and unreasonable conduct on the part of the College, including the falsification of evidence and the withholding of reasons by the Complaints Committee. He also submits the provisions authorizing costs orders are unconstitutional.

[16] Dr. Walia’s challenge to the by-laws is of a general and unspecified nature.

[17] In Mussani v. College of Physicians and Surgeons of Ontario, 2004 48653 (ON CA), [2004] 74 O.R. (3d) 1 (C.A.), the Court of Appeal for Ontario considered whether the provisions of the Health Professions Procedural Code were constitutional. In its decision, the court found that it is self-evident that the revocation of a health professional’s certificate of registration is a serious and even a draconian measure. Nonetheless, serious disciplinary measures, even draconian ones, are not prohibited by the Charter. The weight of authority is that there is no constitutional right to practice a profession unfettered by the applicable rules and standards that regulate said profession. The court concluded that there was no constitutionally-protected right to practice a profession. We have similarly concluded that Dr. Walia’s challenge to the constitutionality of the College by-laws is not a tenable one.

Was the Complaints Committee required to issue reasons?

[18] In referring this matter to discipline, the Complaints Committee did not issue reasons. This issue was also canvassed in Dr. Walia’s other appeal to Divisional Court with respect to his other discipline matter. In that decision, the Court noted that under s. 24(2) of the Veterinarians Act, the Complaints Committee’s powers are set out as follows:

(a) direct that the matter be referred, in whole or in part, to the Discipline Committee or, for the purposes of section 33, be brought to the attention of the Registrar;

(b) direct that the matter not be referred to the Discipline Committee or brought to the attention of the Registrar under clause (a); or

(c) take such action as it considers appropriate in the circumstances and that is not inconsistent with this Act or the regulations or by-laws.

[19] Section 24(3) goes on to state that the Complaints Committee must give its decisions in writing under s. 24(2)(b) and (c), but there is no such requirement when the decision is to refer a complaint to the Discipline Committee. As noted in the earlier decision, the Notice of Hearing set out the allegations of professional misconduct against Dr. Walia. He knew the allegations he had to respond to at the hearing and he had a full opportunity to defend against those allegations.

[20] As such, the Complaints Committee was not under a duty to give reasons for its decision in this case.

Was Dr. Walia given an opportunity to respond to the allegations against him?

[21] In this case, Dr. Walia received a copy of the original complaint as well as a “list of issues” that he was asked to address in response. He also received a copy of the independent expert report from the expert retained by the Complaints Committee to review the complaint. The allegations that appear in the Notice of Hearing arose directly out of the letter of complaint, the summary of the issues, the expert’s analysis of those issues, and Dr. Walia’s responses to all of those materials.

[22] Dr. Walia then had a full opportunity to respond to the allegations against him at the discipline hearing. In these circumstances, we do not see a basis to question whether he was given an adequate opportunity to respond to the allegations against him. The conclusions of the Discipline Committee are supported by their findings and the evidence that was accepted to support those findings.

Did the College falsify evidence against him?

[23] This allegation appears to be based on the fact that the initial list of issues prepared by the College was different than the allegations contained in the Notice of Hearing. It is asserted that the College prepared a “false” allegation that Dr. Walia failed to properly label his X-rays and that the College requested an excessive costs order.

[24] With respect to the claim that the College prepared a false allegation that Dr. Walia failed to properly label his X-rays, the College refers to the fact that para. 8(b) of the Notice of Hearing alleged that Dr. Walia failed to properly label the X-rays. The basis for that allegation was the expert’s opinion that Dr. Walia failed to meet the College’s standards of practice by not labeling Malcolm’s X-rays. However, prior to the start of the hearing, the College received clearer copies of the X-rays that showed the X-rays were in fact labelled. As a result, Dr. Walia was notified that this allegation was being withdrawn.

[25] This issue was raised as a prehearing motion by the appellant before the Discipline Committee panel. The panel dismissed the appellant’s motion and we see no error of law or palpable and overriding error of fact in their decision.

[26] With respect to Dr. Walia’s objection to the costs order, this will be dealt with separately.

Is the Discipline Committee’s costs decision reasonable?

[27] Dr. Walia submits that the $135,000 costs award is excessive, unjustified, and punitive. Dr. Walia referred to the fact that a total of four counsel were involved in prosecuting the action against him and that he should not be required to pay for more than one counsel. He also objects to the fact that docket entries were not provided to him.

[28] This Court has previously held that it is not necessary to receive or review in detail the docket entries of the party seeking costs: see Health Genetic Center Corp. v. New Scientist Magazine et al., 2019 ONSC 575, at para. 7. Further, it was reasonable in our review to have more than one time-keeper working on the file. Good practice may suggest that a more junior lawyer or time-keeper can do work more efficiently and cheaper on a file, rather than having all of the work done by more senior counsel.

[29] In considering the costs order, the discipline panel noted that the College’s total costs were $203,379.90. This included:

(a) Prosecution costs totalling $128,436.88;

(b) Independent legal counsel fees totalling $51,389.62;

(c) Fees for the panel’s attendance totalling $19,202.87; and

(d) Fees for the court reporter totalling $4,350.50.

[30] The discipline panel noted that its request for costs represented approximately 2/3 of the College’s actual costs and that M. Walia’s conduct “throughout the proceedings only served to lengthen the hearing process and overly complicate what could have been a relatively straightforward hearing.” In the end, the discipline panel found it appropriate to order that the member pay costs in the sum of $135,000 to the College. The Tribunal made its award without requiring counsel to produce a copy of his dockets. They made no palpable and overriding error in their decision on this point.

[31] A tribunal’s decision with respect to the costs is owed significant deference. We agree with the Discipline Committee’s comment that Dr. Walia’s conduct did serve to lengthen the proceedings and increase the costs of the hearing. Another factor in the award of costs is that the College must fund its expenses from the collection of fees from its membership. If the guilty party does not pay those costs, they must be recovered from the membership at large. We do not see any error in principle or palpable and overriding error of fact in the discipline panel’s order that Dr. Walia pay costs in the sum of $135,000. There is no basis for this Court to intervene.

Conclusion

[32] For the above-noted reasons, this Court dismisses the appellant’s appeal. In its submissions, the College has sought its partial indemnity costs which total $22,099.54 inclusive of HST and disbursements. These costs are claimed on a partial indemnity basis. We have concluded that it is reasonable to award costs payable by the appellant to the respondent in the sum of $10,000 all inclusive.

MCKELVEY J.

I agree

PENNY J.

I agree

NEWTON J.

Date Oral Judgment Released: April 29, 2021

Date of Release: June 2, 2021

CITATION: Walia v. College of Veterinarians of Ontario, 2021 ONSC 4023

DIVISIONAL COURT FILE NO.: DC-19-80

DATE: 20210602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Dr. Ravi Raj Walia Applicant (Appellant)

– and –

College of Veterinarians of Ontario Respondent (Respondent)

REASONS FOR DECISION

Date Oral Judgement released: April 29, 2021

Date Released: June 2, 2021