CITATION: Dua v. College of Veterinarians of Ontario, 2021 ONSC 6917

DIVISIONAL COURT FILE NO.: 544/21

DATE: 2021/10/20

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. Sachs, R.D. Gordon and Kristjanson JJ.

BETWEEN:

Dr. Ashok Dua

Applicant

– and –

College of Veterinarians of Ontario and the College of Veterinarians of Ontario (Discipline Committee)

Respondents

E. J. Guiste, for the Applicant

Bernard LeBlanc, for the College of Veterinarians of Ontario

Lonny Rosen, for the Discipline Committee

HEARD at Toronto by videoconference: September 28, 2021

H. Sachs J.

Overview

[1] The Discipline Committee of the College of Veterinarians of Ontario (the “Committee”) ordered that Dr. Dua be suspended on an interim basis pending the outcome of discipline proceedings against him. The discipline proceedings arose after Dr. Dua was charged criminally with sexual touching and invitation to sexual touching in relation to a female minor, who is the daughter of the owner of a veterinary facility where Dr. Dua practised. On this application Dr. Dua seeks to stay and judicially review the interim suspension order. He does so on two primary bases. First, he argues that the Committee has no jurisdiction to make an interim order for suspension. Alternatively, he argues that there was no satisfactory evidentiary basis for making the order.

[2] The College alleges that the application should be dismissed on the basis of prematurity.

[3] For the reasons that follow, I would not give effect to the prematurity argument. In this case, the order in question prevents Dr. Dua from carrying on his profession until the discipline proceedings against him are concluded, which could be some considerable time in the future. There is no alternative way for Dr. Dua to challenge the basis for the order and the challenge to the order has not and will not interfere with the progress of the disciplinary proceedings. However, I would dismiss the application. Section 16.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) gives the Committee jurisdiction to make interim orders, including interim orders of a substantive nature. In this case there was a sufficient evidentiary basis for granting the order. The charges in question involve the sexual assault of a minor over a period of years. Dr. Dua has a discipline and criminal history for similar conduct and at the time of the alleged offences his license to practise was subject to a condition that he not be in the company of a female person under the age of 18 except in the presence of another responsible adult.

Factual Background

Prior Discipline and Criminal History

[4] On August 28, 1996, Dr. Dua was found to have engaged in professional misconduct because he inappropriately touched seven of his female staff members during the period from 1989 to 1993. The inappropriate touching included touching/massaging the neck and shoulders of staff members and one incident of touching a staff member’s breasts. On September 27, 1996, Dr. Dua’s license was suspended for 6 months, he was fined, and a monitoring condition was imposed. Dr. Dua appealed the penalty. The appeal was dismissed on January 21, 1999.

[5] On January 22, 1999, Dr. Dua was once again found to have engaged in professional misconduct consisting of sexual misconduct with twelve female minors. The conduct included paying them in order to engage in sexual activity with them; giving them cigarettes, alcohol or buying them lunches to induce them into engaging in sexual activity with him; having them show him their breasts; touching and fondling their breasts; removing their clothing; having then show him their pubic areas; asking them to touch his genitals and having sexual intercourse with them. Dr. Dua was also found to have obstructed the College investigation by offering to pay one of his victims to persuade the other victims not to testify against him. Dr. Dua’s license was revoked for his conduct. He appealed the Discipline Committee’s order to the Divisional Court and that appeal was dismissed on February 28, 2001.

[6] On July 30, 1999, Dr. Dua was criminally convicted on 29 counts for various sexual offences involving females between the ages of 12 and 16. Many of these convictions related to the same conduct that gave rise to the professional misconduct findings in January of 1999. Dr. Dua was also convicted on six counts of breach of a recognizance. On October 5, 1999, Dr. Dua was sentenced to 31 months in prison and made the subject of an order that for 10 years following his release from prison he was not to attend an area where a person under 14 could be reasonably expect to be present (with certain exceptions) and he was not to be employed or volunteer in a position that involved being in a position of trust or authority over a person under the age of 14.

[7] On November 24, 2003, Dr. Dua pled guilty to four counts of obtaining for consideration the sexual services of a person under the age of 18 years. He was sentenced to 8 months in prison followed by three years probation.

Dr. Dua’s Reinstatement

[8] On July 22, 2013, the College reinstated Dr. Dua’s license to practise veterinary medicine subject to various conditions, one of which was that for 10 years following his reinstatement he was not to be in the company of a female person under the age of 18 except in the presence of another adult.

The Present Discipline Proceedings

[9] On December 16, 2020, Dr. Dua was arrested and charged with various offences arising out of allegations that for several years up to and including December of 2020 he engaged in inappropriate sexual activity with a person under the age of 18 who was the daughter of the owner of a veterinary facility where Dr. Dua practised. He was also alleged to have obtained and administered drugs to the complainant during this conduct. The conduct is alleged to have taken place both inside and outside of the veterinary facility where Dr. Dua worked. Dr. Dua was released on bail on January 7, 2021 and after his release he continued to practise veterinary medicine at various clinics.

[10] The allegations were reported to the College, an investigator was appointed and on April 14, 2021 various allegations of professional misconduct were referred to the Discipline Committee for a hearing. These included inappropriate sexual conduct with a female minor; inappropriately obtaining and administering drugs to the female minor before, during and after the sexual conduct; being charged with various criminal offences; and breaching two of the conditions attached to his license, namely, failing to immediately report the criminal charges or allegations of misconduct to the College and being in the company of female under 18 alone in a clinical practice setting.

[11] On June 2, 2021, the College brought a motion before the Discipline Committee for an interim order suspending Dr. Dua’s license to practise veterinary medicine pending the final disposition of the discipline proceedings.

The Discipline Committee’s Decision on the Interim Suspension

[12] On June 2, 2021, the Committee held a hearing on the motion for interim suspension. It also considered two motions brought by Dr. Dua: a motion to stay the disciplinary proceedings pending the conclusion of the criminal proceedings and a motion prohibiting the College from relying on certain documents. On June 17, 2021, the Committee released its decision on all the motions, with reasons to follow. It granted the College’s motion for an interim suspension, it dismissed Dr. Dua’s motion for a stay and found that it was not necessary to decide the documents motion. On July 23, 2021, the Committee released its reasons, indexed as 2021 ONCVO 007.

[13] The evidence before the Committee on the interim suspension motion consisted of affidavits from College staff members and a law clerk that contained various exhibits, including an email from the female complainant. Dr. Dua also filed motion records containing affidavits. No cross-examinations were requested or conducted on these affidavits. In view of this, the Committee accepted “the information contained in the Motion Records as statements of facts or allegations, recognizing that none of the outstanding allegations have been proved.”

[14] The Discipline Committee first dealt with Dr. Dua’s motion respecting the use of documents. The documents at issue are documents that Dr. Dua produced to the College and are part of the Crown Disclosure Brief in relation to charges brought against the complainant’s family, where Dr. Dua was the victim, not the perpetrator. The charges are against the father, mother and brother of the complainant in the criminal proceedings, who are alleged to have forcibly confined and assaulted Dr. Dua with a weapon in December of 2020. According to Dr. Dua, they demanded $20,000 from him and said that if he did not pay the money they would call the police. Dr. Dua alleged on the motion before the Discipline Committee that the documents could not be relied upon without an authorization from the Crown. The Discipline Committee found that the impact of the information on the Committee’s decision “would be limited, potentially applying to the motivation of the complainant to make the complaint against the Member” and that most of the information in the Disclosure Brief was contained in other documents before them. Therefore, they could consider the College’s request for an interim suspension without considering the documents at issue and, thus there was no need to prohibit the College from relying on those documents.

[15] The Committee considered Dr. Dua’s submission that it had no jurisdiction to grant an interim suspension as its governing statute, the Veterinarians Act, R.S.O. 1990, c. V.3 contains no provision authorizing the making of an interim suspension in the face of professional misconduct allegations. The Committee decided that s. 16.1 of the SPPA provided the Committee with the requisite jurisdiction to make interim orders, including orders of a substantive nature. Since the SPPA did not provide a specific test for the granting of an interim order, it applied the common law test for the granting of such an order set out in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385. This is a three pronged test that requires a consideration of whether there is a serious issue to be tried; whether irreparable harm will result if the interim order is not made and whether the balance of convenience favours the granting of interim relief. The Committee found as follows with respect to each aspect of the test:

(a) Serious Issue to Be Tried: The Committee found that the threshold for meeting this factor is a low one, requiring that the case driving the request for interim relief not be frivolous or vexatious. The Committee found that the College met its burden by providing evidence of an accusation of criminal misconduct from the complainant and evidence that criminal charges had been laid in respect of that conduct. In doing so the Committee noted Dr. Dua’s previous discipline and criminal history in relation to similar conduct. The Committee found that “[w]hile the Member argues that this is a malicious allegation, is not serious, and has no chance of being proven, the Panel does not find this argument sufficiently persuasive to conclude that there is not a serious issue to be tried.” The Committee considered Dr. Dua’s assertion that the criminal charges were motivated by revenge for the fact that in 2017 Dr. Dua made and won a complaint against his former employer for unpaid salary. It found the argument to be unpersuasive due to the fact that the incident occurred three years ago and the fact that Dr. Dua’s counsel suggested that the reason Dr. Dua was at his former employer’s house in December 16, 2020 was because they were friends. The Committee also considered Dr. Dua’s contention that the accusations against him were made because he laid criminal charges against the complainant’s family. The Committee found that this explanation was also not persuasive given the fact that the complainant complained to the police at 21:08 on December 16, 2020, while the conduct giving rise to the charges against her family was allegedly occurring, but before any charges against her family were laid.

(b) Irreparable Harm: The Committee found that there were two risks of irreparable harm that would result if the interim suspension order was not granted. The first was the risk that Dr. Dua would reoffend, a risk that the Committee found to be a real one given Dr. Dua’s prior history. The Committee was not satisfied that the bail conditions would mitigate this risk given the fact that Dr. Dua is alleged to have breached the conditions imposed by the Discipline Committee when it reinstated his license. The second was the risk to the reputation of the College and the veterinary profession if Dr. Dua were too reoffend pending the disposition of the misconduct charges. According to the Committee, if this happened, a reasonable member of the public “would decide the College failed to adequately protect them and that this would harm the reputation of the College and veterinary profession…”.

(c) Balance of Convenience: The Committee found that this factor had to include a weighing of the public interest as well as Dr. Dua’s private interest. It also found that “where legislation is passed for protection of the public, the need to protect the public should be given more weight than the Member’s private interest.” The Committee considered the issue of harm to Dr. Dua if the interim suspension was granted. It found that the evidence did not satisfy it that Dr. Dua would face “financial ruin” and be unable to pay his lawyer to defend him in the disciplinary and criminal proceedings if the suspension were granted. With respect to the effect on Dr. Dua’s reputation, the Committee found that Dr. Dua’s reputation has already been severely affected by his prior history and by the current criminal charges. The Committee then weighed this harm against the public interest and concluded that “due to the very serious nature of the allegations, public interest protection consideration supported an interim order of suspension.” The Committee took into account the reports of Mr. Rocco Gizzarelli, that expressed the opinion that Dr. Dua was at low risk of reoffending. It noted that these reports “do not rule out the possibility that the Member has reoffended or that he is at risk of engaging in further misconduct.” In weighing the risk of reoffending the Committee took into account Dr. Dua’s past criminal and discipline history, which it regarded as “extremely serious and must be considered in light of the new allegations”. The Committee found that the conduct in question is “clearly related to the Member’s status as a practising veterinarian, as he came to know the Female Minor because of her work at her father’s clinic.” The Committee rejected Dr. Dua’s assertion that the public interest was protected by the 2013 Order, his bail conditions and a proposal that he be supervised by Dr. Dhaliwal. The Committee found that it could not be assured that Dr. Dua would adhere to the 2013 Order since the current allegations involved breaches of that Order and Dr. Dua asserted in his submissions before it that his right to practice from 2000 to 2011 “was wrongly taken from him only to be reinstated some 10 years later.” This indicated to the Committee that Dr. Dua lacked an understanding of the responsibilities and duties that must be fulfilled in order to enjoy the privilege (not the right) of practising veterinary medicine. Finally, the Committee found that “Dr. Dhaliwal is not a suitable supervisor as he has twice been found by the Discipline Committee to have engaged in professional misconduct related to sexual assault, and has been criminally convicted once.” As well the proposed supervision was by way of telephone calls as opposed to direct in person supervision. The Panel also rejected Dr. Dua’s submission that there was no evidence to support the risk to the public. In the end the Committee concluded that the “harm to the public if the order were not granted is greater than the harm that the Member would suffer if the order was granted. Such an order will serve the public interest, protect the public and enhance public confidence in the regulation of veterinary medicine.”

[16] The Committee also considered Dr. Dua’s request that the discipline proceedings against him be stayed until the outstanding criminal proceedings were determined. The Committee found that Dr. Dua had not met his evidentiary burden to justify a stay. The criteria to be met for a stay are the same as those for an interim suspension, but the evidentiary burden was on Dr. Dua. For essentially the same reasons it gave in relation to the interim suspension, the Committee found that Dr. Dua had not met this burden. The Committee also considered the relevant case law that found that professional proceedings need not be stayed because of risk to the right to silence in a criminal proceeding.

Should the Judicial Review Application be Dismissed on the Basis of Prematurity?

[17] The College maintains that Dr. Dua’s application should be dismissed on the basis of prematurity. The doctrine of prematurity is discussed by the Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at paras. 68-69:

[68] The application judge recognized the principle that unless exceptional circumstances exist, a court should not interfere in an administrative proceeding until it has run its course. The principle has particular force where adequate alternative remedies are available under the administrative scheme. Ordinarily an affected individual must pursue these remedies before seeking relief from the court:

[69] The rationales for this principle are well known. The principle respects administrative decision-making and the legislature’s intent that internal review processes be exhausted before the court intervenes. At the same time, the principle preserves the right of the court to intervene in those exceptional circumstances where the justice of the case calls for intervention. Stratas J.A. summarized the rationale for the principle in C.B. Powell at paras. 31-32, and I can do no better than quote his words:

Put another way, absent exceptional circumstances, courts should not interfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the judicial process will a reviewing court have all of the administrative decision-maker’s findings; these findings maybe suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge.

[18] In this case, it is acknowledged the interim suspension order that Dr. Dua seeks to judicially review will affect his right to practise veterinary medicine for the foreseeable future. No dates have been set for the misconduct hearing and no indication was given as to when that hearing would take place. On the other hand, the College admitted that these judicial review proceedings have not and will not contribute to a delay in scheduling those hearings. Even if Dr. Dua is successful at the end of the misconduct proceeding, this will not detract from the effects of the interim suspension order. Thus, the hearing of the application is not a waste of resources. Finally, there is no alternate internal remedy available to Dr. Dua to appeal or review the order in question.

[19] The College argues that this court should follow the lead of the Federal Court in what the College refers to as a virtually identical case – Benito v. Immigration Consultants of Canada Regulatory Council, 2019 FC 1628, 73 Admin. L.R. (6th) 276. Benito concerned the judicial review of an interim suspension of the applicants’ right to act as immigration consultants pending the completion of an administrative committee’s investigation of the applicants’ activities and a hearing on the merits. The Federal Court dismissed the application as premature on the basis that the applicants had not exhausted all of their available remedies before the administrative decision-maker. In particular, the applicants had failed to exercise their right to appeal their interim suspensions to the ICCRC Appeal Committee within 30 days.

[20] There is a fundamental distinction between Benito and this case. As already noted, in this case, Dr. Dua has no internal administrative remedies he can pursue.

[21] For these reasons, I find that the justice of this case demands that Dr. Dua’s application not be dismissed on the basis of prematurity.

Did the Committee have Jurisdiction to Grant the Interim Suspension?

[22] While this issue was framed and argued as a jurisdictional question, this does not rebut the presumption of reasonableness that is to be applied to the judicial review of an administrative decision maker’s decisions. The Committee decided that it did have jurisdiction to grant the interim suspension and that decision is to be reviewed by this Court on the standard of reasonableness. The decision involves a question of law, but not the type of legal question that Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 states must be reviewed on a correctness standard. This is not a constitutional question, it is not a question of law that is of central importance to the legal system as a whole, nor does it involve the jurisdictional boundaries between two or more administrative tribunals. (see Vavilov, at para. 53).

[23] Dr. Dua submits that the Veterinarians Act, R.S.O. 1990, c. V.3 is clear – the Discipline Committee has a narrow mandate that is set out at s. 30(1). That mandate is to “hold a hearing and determine any allegation of professional conduct or serious neglect on the part of a member or former member of the College specified in the resolution.” Once the Committee holds a hearing and makes a finding of professional misconduct s. 30(5) of the Act gives it the authority to impose penalties, including the suspension of the member’s license. The Veterinarians Act contains no provision allowing the Committee to impose an interim suspension pending the holding of a misconduct hearing. That is why in 2016 the College conducted a consultation aimed at soliciting the profession’s views regarding amending the Veterinarians Act to allow for interim suspensions when a case is referred to the Discipline Committee. As the consultation document acknowledges the current act only includes interim suspension provisions related to matters of incapacity or impairment. The consultation did not result in amendments to the Act.

[24] Dr. Dua acknowledges that s. 16.1 of the SPPA grants the Committee some jurisdiction to issue interim orders. However, he asserts that this jurisdiction is limited to procedural orders designed to control the discipline process, not substantive orders.

[25] As noted above, the Committee dealt with Dr. Dua’s jurisdictional objection and found that s. 16.1 of the SPPA did provide it with the necessary jurisdiction to grant an interim suspension. The question for this court is whether that decision was a reasonable one.

[26] The Committee first dealt with the 2016 College consultation and found that the purpose of that consultation was to fill a statutory gap – the inability of the Complaints Committee to grant an interim suspension. It was not directed at the Discipline Committee, which, by virtue of s. 16.1 of the SPPA does have the statutory authority to make interim orders. The Committee’s reading of the consultation document (which was filed by Dr. Dua) is consistent with the express wording of that document. In the section that asked the question “What is proposed?”, the answer reads “It is proposed that the College’s Investigations and Resolutions Committee (the proposed new name for the Complaints Committee) may make an interim order directing the Registrar to suspend or impose terms, conditions or limitations on a member’s license if,…(b) an allegation has been referred to the Discipline Committee”. The proposal was in no way related the Discipline Committee’s authority to grant such a suspension once a complaint had been referred to it.

[27] Section 16.1 of the SPPA provides as follows:

(1) A tribunal may make interim decisions and orders.

(2) A tribunal may impose conditions on an interim decision or order.

(3) An interim decision or order need not be accompanied by reasons.

[28] In its decision the Committee reviewed a number of cases that were decided by other administrative tribunals, including the Human Rights Tribunal of Ontario (“HRTO”) and the Ontario Labour Relations Board (“OLRB”). In these cases, the relevant tribunals addressed the issue of whether s. 16.1 allowed them to impose substantive interim orders and found that it did. The Committee impliedly adopted the reasoning in those cases. According to the Committee it was not provided with any cases in which it was determined that s. 16.1 of the SPPA cannot be used as authority to make substantive interim decisions.

[29] In Yazdanfar v. College of Physicians and Surgeons of Ontario (2009), 2009 30457 (ON SCDC), 251 O.A.C. 103, 97 Admin L.R. (4th) 89, the Divisional Court dealt with an application seeking to quash an interim order by the Executive Committee of the College of Physicians and Surgeons that imposed serious practise restrictions pending the hearing by the Discipline Committee of certain misconduct allegations. In the course of its reasons the Divisional Court found at para. 46:

Section 16.1 of the [SPPA] provides that the Disciplinary Committee may make interim orders during the conduct of the hearing, including adjusting the s. 37 [of the Regulated Health Professions Act, 1991] order, if the evidence unfolds that adjustments are warranted.

[30] Since the s. 37 order was a substantive order, this statement does provide authority from the Divisional Court that s. 16.1 provides a Discipline Committee with the statutory authority to make substantive interim orders.

[31] Toussaint v. Ontario (Health and Long-Term Care), 2010 HRTO 2102 is one of the cases the Committee relied upon in coming to the decision it did on the question of jurisdiction. In Toussaint, the HRTO dealt with the question of whether s. 16.1 of the SPPA provided the HRTO with the power to make substantive interim orders. In that case, as in this, if such a power existed it had to be derived from s. 16.1 as the Human Rights Code provided the Tribunal with no such authority. In dealing with the issue, the HRTO acknowledged that there were conflicting decisions in Ontario tribunals on the point. In doing so the HRTO noted that the OLRB decisions all held that s. 16.1 did confer the power to make substantive interim orders. At para. 15 the HRTO found:

In my view, the OLRB jurisprudence reflects the correct interpretation of s. 16.1, and is more consistent with the contemporary approach to statutory interpretation and the role of administrative tribunals.

[32] The reasons given by the Tribunal in Toussaint for coming to this view can be summarized as follows:

(d) The language of s. 16.1 is broad. It does not contain the word “procedural”.

(e) In both the SPPA and in legislation such as the Labour Relations Act and the Code [and the Veterinarians Act], there are specific “process powers”. If s. 16.1 in interpreted as being limited to procedural matters, this would render it redundant.

(f) Section 16.1 confers upon a tribunal the power to “impose conditions” on decisions or orders. These powers are more likely necessary when making orders of a more significant nature, rather than just controlling a hearing.

(g) Section 16.1 was a new provision added to the SPPA in 1994.

(h) The modern approach to statutory interpretation requires that the words of the statute be considered “in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” (R. Sullivan, Sullivan on the Construction of Statutes, 6th ed. (LexisNexis Canada, 2014), at §2.1.) The ordinary and grammatical meaning of the words of s. 16.1 suggest a broad power to make interim orders and the Legislature did not restrict the power in any way as it has done in other statutes (e.g., the Labour Relations Act). There would be no need to include a power to attach conditions to interim orders if the power was merely related to procedural matters. Further, “[i]t is unlikely that the Legislature would have found it necessary to add a mere power to make interim procedural orders to the SPPA in 1994, when the legislation included the power to make all kinds of interim procedural orders.” (Toussaint, at para. 25).

(i) Section 64(1) of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F provides that “[a]n Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.” In this case the object of the SPPA is to define “both minimum standards and general powers of administrative tribunals.” (Toussaint, at para. 26). Given the large role administrative tribunals play in the administration of justice, there is no principled reason to start with a presumption that those powers should be construed narrowly so as not to include the power to make interim substantive orders.

[33] The reasoning in Toussaint (and the other cases it followed) is intelligible, justifiable and transparent. Further, the conclusion the HRTO reached is consistent with the principles of statutory interpretation and falls well within the range of acceptable outcomes. The statute being interpreted is the same as the statute the Committee considered and there is nothing in that statutory scheme or the Veterinarians Act that would render the Committee’s decision unreasonable. In fact, if the Committee were left with no power to impose interim suspensions this could seriously undermine one of its principle objectives: to protect the public. For these reasons, I find that the Committee’s decision with respect to its jurisdiction to make interim suspension orders was a reasonable one.

Was the Committee’s Decision to Impose an Interim Suspension Reasonable?

[34] The Committee’s decision to impose an interim suspension is subject to review on the reasonableness standard.

[35] Dr. Dua does not suggest that the Committee applied the wrong test in coming to the decision it did. Rather he argues that the Committee’s decision lacked a proper evidentiary base and disregarded relevant evidence that he posed any risk of harm to his patients.

[36] According to Dr. Dua, the Committee’s decision is based on speculation and conjecture, not on real evidence. The Committee relied only on hearsay evidence, including a statement from the complainant in the criminal charges. According to Dr. Dua, the complainant’s evidence could not be relied upon. First, she was the daughter of the veterinarian who had employed Dr. Dua and against whom Dr. Dua had laid a successful complaint. Second, charges were pending against the complainant’s family for unlawfully confining and assaulting Dr. Dua in an effort to extract $20,000 from him. The only other evidence the Committee had in relation to the charges at issue was the fact that the police had investigated and laid charges against Dr. Dua for his alleged conduct against the complainant, but again, these charges were based on the evidence of the complainant. Dr. Dua’s prior discipline and criminal history was dated; his last conviction was in 2003.

[37] Section 15 of the SPPA provides the Committee with the authority to rely on hearsay evidence. Section 18.3(2) of the Veterinarians Act specifies that “findings of fact in a hearing shall be based exclusively on evidence admissible on matters that may be noticed under sections 15 and 16 of the [SPPA].” Thus, the Committee had the authority to rely on hearsay evidence.

[38] The Committee reviewed and gave reasons for deciding that Dr. Dua’s attacks on the reliability of the complainant’s evidence did not undermine the ability of the College to reach the evidentiary threshold required for imposing an interim suspension. It did not find Dr. Dua’s allegation that the charges against him were motivated by revenge persuasive enough to find that the College’s evidentiary burden on the three parts of the test for an interim suspension had not been met. First, they were laid three years after the unpaid wages complaint; second, Dr. Dua’s counsel indicated that by that time Dr. Dua and his former employer were friends; and third, the complainant made her report to the police that resulted in the charges before Dr. Dua complained to the police about her family’s behaviour. Its reasoning and conclusion on this issue were reasonable.

[39] Furthermore, it was reasonable for the Committee to find Dr. Dua’s previous discipline and criminal history a matter of serious concern. While Dr. Dua’s last criminal conviction was in 2003, the fact remains that the allegations that resulted in his prior discipline and criminal history involved similar behaviour to the allegations giving rise to the misconduct at issue (conduct that if repeated poses real public protection issues) and that when the alleged conduct was committed Dr. Dua’s license was subject to certain conditions that were breached. The Committee also considered Dr. Dua’s evidence as to how the public could be adequately protected and gave intelligible and justifiable reasons for why that proposal was not satisfactory. First, it did not find Dr. Dua’s evidence as to the low risk he posed of reoffending persuasive, Second, it did not accept that the supervisor he proposed would provide adequate protection both because of that supervisor’s previous history for similar behaviour and because of the nature of the supervision that supervisor would provide (not on site or direct).

[40] For these reasons I find that there is no merit to Dr. Dua’s assertion that the Committee did not have a proper evidentiary base for imposing the interim suspension and that it disregarded relevant evidence when it did so.

Other Issues

[41] Dr. Dua brought a motion to stay his suspension until the hearing of his judicial review application. The Divisional Court was able to schedule and dispose of Dr. Dua’s judicial review application in a timely enough way that that stay motion has become redundant. Since it was formerly adjourned to the hearing of the application, I would order that Dr. Dua’s motion for a stay be dismissed.

[42] Dr. Dua also sought to judicially review the Committee’s dismissal of his motion to stay the hearing of the professional misconduct hearing until after the disposition of his criminal proceeding. In my view there is no merit to Dr. Dua’s application on this point. The Committee’s decision on this issue applied the relevant case law and was reasonable. The Committee held the onus was on Dr. Dua to meet the three-part test for such a stay. While the Committee found that Dr. Dua met the first criterion (serious issue to be tried), it concluded that he did not meet the second or third. On the issue of irreparable harm, the Committee found that Dr. Dua did not produce enough evidence to make a finding that he would be financially unable to defend both the professional misconduct and the criminal proceedings at once and he did not satisfy them that his professional reputation would be irreparably damaged if the misconduct proceedings were allowed to proceed before the criminal proceedings were concluded. Given the evidentiary record before them, these conclusions were reasonable as was the Committee’s finding that the public interest favoured proceeding with the discipline hearing in a timely way.

[43] Dr. Dua also raised an issue about the role of the Discipline Committee’s counsel and argued that this role prejudiced his right to a fair hearing. The Committee reasonably found that there was no merit to this suggestion and that its counsel’s role was appropriately limited to assisting them in understanding the law and the evidence that were relevant to the decisions it had to make and was never directed at telling them what decisions it should make. Before us, Dr. Dua also asserted that the Committee’s counsel assisted the Committee in drafting its reasons. There is nothing inappropriate about a counsel who has been hired to assist an administrative tribunal with its task also assisting in the drafting of reasons as long as that role is limited to helping express the views of the Committee appropriately and does not encompass usurping the role of the Committee, which is to make a decision and to provide its reasons for doing so. In this case there is no basis for finding that the Committee’s counsel exceeded his proper role.

Conclusion

[44] For these reasons the application for judicial review is dismissed as is the motion for a stay. Dr. Dua argued that since the issue of the Committee’s jurisdiction to grant an interim suspension was a novel one, there should be no order as to costs. I disagree. The College is entitled to its costs of the application, which are fixed in the amount of $7500.00, all inclusive. The Committee did not ask for costs.

H. Sachs J.

I agree _______________________________

R.D. Gordon J.

I agree _______________________________

Kristjanson J.

Released: October 20, 2021

CITATION: Dua v. College of Veterinarians of Ontario, 2021 ONSC 6917

DIVISIONAL COURT FILE NO.: 544/21

DATE: 2021/10/20

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

H. Sachs, R.D. Gordon and Kristjanson JJ.

BETWEEN:

Dr. Ashok Dua

Applicant

– and –

College of Veterinarians of Ontario and the College of Veterinarians of Ontario (Discipline Committee)

Respondents

REASONS FOR JUDGMENT

Released: October 20, 2021