CITATION: Covant v. College of Veterinarians of Ontario, 2021 ONSC 8193

DIVISIONAL COURT FILE NO.: 112/20

DATE: 20211216

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

King, Favreau, and Nishikawa JJ

BETWEEN:

Dr. Howard Covant

Appellant

– and –

College of Veterinarians of Ontario

Respondent

Jasmine Ghosn and Lorne Honickman, for the Appellant

Bernard LeBlanc and Anastasia-Maria Hountalas, for the Respondent

HEARD: October 26, 2021

Overview

[1] The Appellant, Dr. Harold Covant, appeals the decisions of the Discipline Committee of the College of Veterinarians of Ontario (the “College”). A panel of the Discipline Committee found that he engaged in professional misconduct by dispensing and reselling veterinary drugs through his clinic in a manner contrary to s. 33(2)(d) of R.R.O. 1990, Reg. 1093 under the Veterinarians Act, R.S.O. 1990, c. V.3 (the “General Regulation.”) and imposed a penalty consisting of an oral reprimand, a one-month suspension, and costs.

[2] The Appellant also appeals three interlocutory decisions made by the Discipline Committee during the proceeding, as further detailed below.

Procedural Background

[3] Dr. Covant is a veterinarian licensed to practise in Ontario, who owns and operates Bayview Seven Animal Hospital (“BSAH”) in Richmond Hill, Ontario. Dr. Covant has been a member of the College in good standing for over 30 years.

[4] On October 1, 2018, the Registrar of the College sent Dr. Covant a Notice of Hearing alleging that he was violating s. 33(2)(d) of the General Regulation by purchasing large amounts of veterinary drugs and dispensing and reselling those drugs to pharmacies. The Notice of Hearing alleged that Dr. Covant engaged in professional misconduct under s. 17(1) of the General Regulation, paragraph 1 (violating s. 33(2)(d)); paragraph 2 (failed to maintain the standard of practice of the profession); paragraph 44 (committing an act or omission relevant to the practice of veterinary medicine that would be regarded by members as disgraceful, dishonourable or unprofessional); and paragraph 45 (conduct unbecoming a veterinarian).

[5] The relevant provision, s. 33(2)(d) of the General Regulation, reads as follows:

(2) No member shall,

(d) knowingly dispense a drug for resale except where the drug is dispensed to another member or a pharmacist in reasonably limited quantities in order to address a temporary shortage experienced by that other member or pharmacist[.]

[6] The previous version of s. 33(2)(d) did not contain the limiting language pertaining to quantity and stated only that “No member shall knowingly dispense a drug for resale, where the drug was not dispensed to another member or a pharmacist.” The amendment to s. 33(2)(d) came into force on November 24, 2015: O. Reg. 233/15.

The Disclosure Decision

[7] Before the hearing on the merits, Dr. Covant alleged that the College had failed to make full disclosure and sought production of various documents relating to the amendment to s. 33(2)(d) including documents provided to the College’s Council, Council meeting minutes regarding the General Regulation, and any direction from the Ministry of Agriculture, Food and Rural Affairs to amend the regulation, among other things.

[8] In its decision dated August 16, 2019 (the “Disclosure Decision”), a panel of the Discipline Committee dismissed the motion, finding that the College had made full disclosure and that the records sought by Dr. Covant were either not relevant, not in the College’s possession, or outside the Committee’s jurisdiction to order.

The Constitutional Decision

[9] On January 20 to 22, 2020, a differently-constituted panel of the Discipline Committee heard Dr. Covant’s constitutional challenge to the amendment to s. 33(2)(d). Dr. Covant alleged that his rights under ss. 7 and 12 of the Canadian Charter of Rights and Freedoms and his right to procedural fairness were breached by the manner in which s. 33(2)(d) was amended. Dr. Covant further argued that the amended provision was ultra vires, overbroad and vague and that it constituted an improper restraint on trade and impaired public access to veterinary medications.

[10] In its decision dated February 25, 2020 (the “Constitutional Decision”), the Discipline Committee dismissed the motion, finding that s. 33(2)(d) was not vague, overbroad or ultra vires, and that there was no breach of procedural fairness in enacting the amendment.

The Expert Evidence Decision

[11] During the hearing of the merits, Dr. Covant brought a motion for leave to call a lawyer, Gilbert Sharpe, as an expert witness on the issue of adequate and effective notice of substantive regulatory changes to members of a self-regulatory body. Dr. Covant did not notify the College of his intention to call expert evidence until after the College had closed its case, which was contrary to the Discipline Committee’s Rules of Procedure.

[12] In its decision dated May 11, 2020 (the “Expert Evidence Decision”), the Discipline Committee dismissed the motion on the basis that the proposed expert evidence was neither relevant nor necessary. The panel ruled that the proposed expert evidence was essentially a legal opinion, proffered in an attempt to relitigate the Constitutional Decision. While the panel found that the evidence was tendered long after the deadline contemplated by the Rules, it nonetheless considered the substance of the proposed evidence and found that it would not assist the panel on the core issues.

The Merits Decision

[13] The hearing on the merits took place on March 10, 11 and May 25 and 26, 2020. The College called seven witnesses. Three of the witnesses were representatives of drug companies who supplied BSAH and two witnesses were pharmacists who purchased drugs from BSAH. The other witnesses were a former employee of BSAH and a representative of the College. Dr. Covant did not call any witnesses and did not testify.

[14] The issues to be determined at the hearing on the merits were whether Dr. Covant, through BSAH, resold drugs to pharmacies and, if so, whether it was done in reasonably limited quantities in order to address a temporary shortage.

[15] In the Merits Decision, two members of the panel, Dr. Kerry Lissemore and Mr. Andrew Glenny, found that Dr. Covant engaged in professional misconduct by violating s. 33(2)(d). The other panel member, Dr. Harold Kloeze, dissented and found that Dr. Covant did not engage in professional misconduct.

[16] The majority of the panel found that Dr. Covant, through his clinic BSAH, purchased animal drugs which he resold to various pharmacies on a regular basis and at a significant volume. Based on the evidence of the transactions, the sales were found not to be made in reasonably limited quantities. Further, the majority did not accept that the sales were made to address a temporary shortage. Because drug companies do not supply animal drug products to pharmacies, the situation was found not to constitute a temporary shortage. The majority concluded that Dr. Covant contravened s. 33(2)(d) and engaged in professional misconduct, in that he failed to maintain a standard of the profession. However, the majority did not find that Dr. Covant’s conduct amounted to conduct unbecoming or conduct that the profession would regard as dishonourable.

[17] The dissenting panel member found that the College did not prove on a balance of probabilities that Dr. Covant engaged in professional misconduct. He agreed that the evidence established that Dr. Covant, through BSAH, purchased animal drugs which he then resold to a number of pharmacies. While he found no evidence that the drugs were sold in large quantities in single transactions, he agreed that large quantities of drugs were sold over a period of time. The dissent found that the language of s. 33(2)(d) “relies upon the experience of the pharmacists” and that the public was not shown to be at risk. As a result, he concluded that Dr. Covant did not breach s. 33(2)(d).

The Penalty Decision

[18] At the subsequent penalty hearing, the College sought a public reprimand, a 12-month license suspension, and post-suspension inspection of Dr. Covant’s practice. Dr. Covant sought no penalty.

[19] In the decision dated December 2, 2020 (the “Penalty Decision”), the Discipline Committee ordered a public reprimand, a one-month suspension, a requirement that Dr. Covant complete an ethics course, and a post-suspension inspection. The Committee commented that Dr. Covant knew that the regulation had changed but showed little regard to abide by it. The Committee also ordered that Dr. Covant pay one-third of the College’s costs, totalling $94,235.12.

Issues

[20] This appeal raises the following issues:

(a) What is the appropriate standard of review of the Discipline Committee’s decisions?

(b) Is s. 33(2)(d) of R.R.O. 1990, Reg. 1093 valid?

(c) Was s. 33(2)(d) properly enacted?

(d) Did the panel make a palpable and overriding error in finding that Dr. Covant had engaged in professional misconduct?

(e) Was the penalty imposed clearly unfit?

Analysis

The Applicable Standard of Review

[21] As Dr. Covant’s appeal is a statutory appeal under s. 35 of the Veterinarians Act, the appellate standards of review apply: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 37.

[22] The parties do not dispute the applicable standards of review. The standard of review on issues of law is correctness. The Constitutional Decision is thus subject to a correctness standard of review. With respect to findings of fact and mixed fact and law, the standard is a palpable and overriding error. The Merits Decision, and the interlocutory decisions, are all subject to review on a standard of palpable and overriding error. The Supreme Court of Canada has described a “palpable and overriding” error to mean one that is “plainly seen” or “unreasonable or unsupported by the evidence.” Vavilov, at para. 37.

[23] The fitness of a penalty is also a question of mixed fact and law attracting a standard of review of palpable and overriding error: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171 (Div. Ct.), at para. 19. A reasonable penalty will be guided by proportionality and an assessment of the range of appropriate penalties according to the facts of the case and the penalties imposed in other cases. A “clearly unfit” penalty is one that falls outside the range of reasonableness: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 57, citing Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.), at para. 100.

Is Paragraph 33(2)(d) Valid?

[24] Dr. Covant challenges the Constitutional Decision on the basis that the Discipline Committee erred in law in concluding that s. 33(2)(d), as amended, was valid. Dr. Covant submits that s. 33(2)(d) is ultra vires, unconstitutionally vague and overbroad.

Consistency with the Enabling Legislation

[25] In Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at para. 24, the Supreme Court of Canada held that a successful challenge to the vires of a regulation requires that it be shown to be inconsistent with the objective of the enabling statute or the scope of the statutory mandate. The court outlined the guiding principles for assessing whether a regulation is ultra vires, which were summarized by this court in Hudson’s Bay Company ULC v. Ontario (Attorney General), 2020 ONSC 8046, 154 O.R. (3d) 103, at para. 37, as follows:

• Regulations are presumed to be valid, which places the burden on the challengers to demonstrate invalidity. Courts are to favour an interpretive approach that, where possible, reconciles the regulation with its enabling statute so that it is construed in a manner which renders it intra vires;

• The challenged regulation and the enabling statute should be interpreted using a broad and purposive approach;

• Judicial review of a regulation is usually restricted to the issue of whether the regulation is consistent with the statutory purpose or whether a condition precedent was not met before the regulation was made;

• Courts are not to assess the policy merits of the regulation or to decide whether it is “necessary, wise or effective in practice”;

• The motives for making a regulation are irrelevant;

• Under-inclusiveness is not a valid ground for challenging a regulation as ultra vires; and

• A regulation must be “irrelevant”, “extraneous” or completely inconsistent with the statutory purpose to be found ultra vires.

[26] Subsection 7(1) of the Veterinarians Act provides the College’s Council with broad authority to make regulations pertaining to licensing, standards of practice, and inspection, among other things. Under s. 7(1)(9), the Council may make regulations “regulating the compounding, dispensing and sale of drugs by members of the College… and prescribing the records that shall be kept in respect of such compounding, dispensing, and sale.”

[27] Paragraph 33(2)(d), as amended, creates a general prohibition against veterinarians buying and selling drugs, with the exception of dispensing drugs to other members or pharmacists in reasonably limited quantities to address a temporary shortage.

[28] In my view, the Panel did not err in concluding that the amendment to s. 33(2)(d) was “entirely consistent with the College’s authority to enact regulations regarding the sale and use of prescription drugs by its members.” The purpose of the amendment was to diminish the risk associated with veterinarians buying and selling drugs, with an exception when required to ensure that patients have access to the medications they need. The amended language of s. 33(2)(d) addresses a veterinarian’s ability to dispense drugs and thus falls squarely within Council’s regulation-making authority under s. 7(1)(9). Because s. 33(2)(d) relates directly to its statutory purpose, it is not ultra vires.

Vagueness

[29] Dr. Covant submits that s. 33(2)(d) is unconstitutionally vague because the terms “reasonably limited quantities” and “temporary shortage” do not permit veterinarians to assess the scope of prohibited conduct. Dr. Covant argues that because those terms are not defined in the regulation, the lack of precision creates the risk that veterinarians will contravene s. 33(2)(d) despite not intending to do so.

[30] The constitutional standard for vagueness is a very high threshold. In order for a provision to be found unconstitutionally vague, it must set “a standard that is not intelligible, cannot provide the basis for coherent judicial interpretation, and is not capable of guiding legal debate.” Mussani v. College of Physicians and Surgeons of Ontario (2003), 2003 45308 (ON SCDC), 64 O.R. (3d) 641, 2 Admin. L.R. (4th) 123 (Div. Ct.), at para. 80. Vagueness must not be assessed in a vacuum and must be considered “within a larger interpretive context developed through an analysis of considerations such as the purpose, subject-matter and nature of the impugned provision, societal values, related legislative provisions, and prior judicial interpretations of the provision.” Mussani, at para. 81.

[31] The panel did not err in finding that the language of s. 33(2)(d) does not meet the high threshold for vagueness. When s. 33(2)(d) is considered with the legislative purpose and context in mind, the terms “reasonably limited quantities” and “temporary shortage” are not impermissibly vague. The purpose, as noted above, is to limit the ability of veterinarians to dispense and sell animal drugs while nonetheless providing some access to those drugs when a short-term shortage arises.

[32] The panel correctly found that the amendment did not have to stipulate a specific quantum because whether a member engages in reselling contrary to s. 33(2) will depend on the circumstances. As will be further detailed below, under no circumstances could the significant quantities sold by Dr. Covant be considered “reasonably limited.”

[33] Moreover, it was not necessary to define the terms “reasonably limited quantities” and “temporary” because they can be interpreted according to their ordinary meaning. As the College points out, the term “reasonable” is used 14 times and the term “temporary” is used 15 times in the General Regulation. The terms are capable of coherent interpretation based on their common usage and context. “Temporary” means for a limited period of time, as opposed to permanently or on an ongoing basis. Based on the context, “reasonably limited quantities” would mean quantities proportionate to the temporary shortage.

Overbreadth

[34] Similarly, the panel correctly found that s. 33(2)(d) is not overbroad. When determining overbreadth, a Court must consider whether the means are necessary to achieve the objective or whether they are “broader than is necessary to accomplish that objective”: Mussani, at para. 86.

[35] Council’s rationale for amending s. 33(2)(d) to add “in reasonably limited quantities in order to address a temporary shortage experienced by that other member or pharmacist” was “to mitigate the risk of veterinarians engaging in the purchase and sale of drugs for purposes other than to ensure a substance required by patients is legitimately available via a pharmacy or other member.” The amendment to s. 33(2)(d) is sufficiently specific and is aimed at addressing that risk. As the panel found in the Constitutional Decision, s. 33(2)(d) does not unfairly capture activities that should not be prohibited. The amendment does not, for example, create an outright prohibition on selling animal drug products to other members or pharmacists.

[36] Accordingly, the panel did not err in law in finding that s. 33(2)(d) is not vague, overbroad or ultra vires the Veterinarians Act.

Was Paragraph 33(2)(d) Properly Enacted?

[37] Dr. Covant takes the position that as a self-regulatory body, the College has a contractual relationship with its members, resulting in a duty of procedural fairness or natural justice, both at common law and under the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”), when making rules that affect its members. Dr. Covant submits that the College’s Council breached this duty by failing to provide its members with adequate notice and consultation regarding amendments to the General Regulation. Dr. Covant further submits that under the doctrine of legitimate expectations, he and other members had an expectation that they would receive notice and be consulted about amendments to the General Regulation, which would affect standards of practice, before such amendments were made.

[38] The College’s position is that the amendments to the General Regulation were properly enacted pursuant to its governing statute and that no duty of procedural fairness is owed in recommending and approving changes to the Regulation.

[39] Subsection 7(4) of the Veterinarians Act sets out the notice requirements where a regulation is made or amended, as follows:

(4) The Council shall,

(a) forward a copy of each regulation made under subsection (1) to each member of the College; and

(b) keep a copy of each regulation made under subsection (1) available for public inspection in the office of the College.

[40] Subsection 43(1) states that notice is sufficiently given if delivered personally or by mail.

[41] In my view, the panel correctly determined that the amendments to the General Regulation, including s. 33(2)(d), were properly enacted. The panel found that the College, in exercising its regulation-making function, did not owe Dr. Covant or its members, a duty of procedural fairness akin to the duty owed in a disciplinary proceeding. As long as the Council followed the statutory requirements of s. 7 of the Veterinarians Act, as addressed further below, the College was not required to take any additional steps to fulfil any common law or statutory duty of procedural fairness.

[42] As noted by the College, s. 3(2)(h) of the SPPA states that the Act does not apply to a proceeding “of a tribunal empowered to make regulations, rules or by-laws in so far as its power to make regulations, rules or by-laws is concerned.”

[43] In addition, the case law relied upon by the Appellant, both before the Discipline Committee and on appeal, does not support his position. In Chalmers v. Toronto Stock Exchange (1989), O.R. (2d) 532, 40 Admin. L.R. 311 (C.A.), the Ontario Court of Appeal held only that a tribunal’s discipline proceedings must comply with the SPPA. In McGill v. Brantford (City of) (1980), 1980 1741 (ON SC), 28 O.R. (2d) 721, 111 D.L.R. (3d) 405(Div. Ct.), the court held that the SPPA did not apply to a council passing a by-law. Similarly, in Canadian Union of Public Employees v. Canada (Attorney General), 2018 FC 518, 49 Admin. L.R. (6th) 34, the Federal Court held that the regulation-making function did not engage the applicant’s procedural fairness rights.

[44] The panel observed that s. 29 of the Legislation Act permits a trier of fact to take judicial notice of the making, approval, filing, contents and publication of a regulation that is published on the e-Laws website or in the Ontario Gazette. The panel noted that the amendment was first approved on July 22, 2015, published in e-laws on July 27, 2015, and printed in the Ontario Gazette on August 8, 2015.

[45] The panel nonetheless considered Dr. Covant’s procedural fairness arguments and found that the amendments to the General Regulation, including s. 33(2), were validly made and subject to the appropriate approvals. The evidence before the panel included Council’s meeting minutes from June 6, 2012, which demonstrated that the proposed amendments were discussed by Council, reviewed by a consultant, and reviewed by the College’s legal counsel. The minutes further show that Council accepted the suggested draft changes, as amended, and forwarded them to the Ontario Ministry of Agriculture, Food and Rural Affairs, as is required by the College’s governing statute.

[46] Moreover, the panel’s finding that there was “nothing in the evidence to suggest that there was any irregularity or impropriety in the manner in which the Regulation was approved and ultimately enacted” is a finding of fact that is entitled to deference.

[47] The panel’s finding that the statutory requirements were met was supported by the evidence. The College adduced evidence that it sent out three emails advising members of the amendments to the General Regulation. Kimberly Huson, Executive Partner, Communications for the College, gave evidence that the first communication was sent on October 3, 2012 when the College provided its members with the opportunity to comment on the proposed amendments. This was followed by two further email communications on November 2 and 23, 2015. Members also received a letter and booklet regarding the amendments by mail dated November 2, 2015. Although the amendment to s. 33(2)(d) was not specifically included in the booklet, it stated that “[v]eterinarians should also review the entire new regulation with all the amendments, which could be viewed on the Government of Ontario’s e-laws website” and included a hyperlink to the complete amendments.

[48] Ms. Huson further testified that the communications software allowed her to confirm that someone at Dr. Covant’s email address had opened the email and clicked on at least one of the hyperlinks therein.

[49] The panel made no palpable and overriding error in finding that the College provided notice to its membership about the amendments in a manner consistent with the requirements under ss. 7(4) and 43 of the Veterinarians Act.

[50] At the hearing of the appeal, the Appellant’s counsel argued that because the College failed to produce any Council resolution approving the amendment to s. 33(2)(d) it was either not properly passed or the College failed to make full disclosure, warranting an adverse inference. This argument fails to recognize the process provided for in the Veterinarians Act which, as the panel found, was followed by the College.

[51] Moreover, the panel did not err in declining to draw an adverse inference. In the Disclosure Decision, the panel found that the College had conducted a thorough search and disclosed all non-privileged documents in which the proposed amendment to s. 33(2)(d) was discussed. The panel concluded from the absence of documents pertaining specifically to the amendment to s. 33(2)(d) that it attracted very little discussion at Council in comparison to other amendments, in particular, those that pertained to advertising. The Appellant has provided no basis to question the panel’s finding on the Disclosure Decision.[^1]

[52] In essence, the Appellant’s position is that the amendment to s. 33(2)(d) deprived him of a right or privilege that he previously had, which was to resell animal drug products to another member or to a pharmacist. The Appellant submits that he had a right to be consulted before this ability was removed or constrained. However, based on the language of both the previous and current version of s. 33(2)(d), veterinarians have always been prohibited from knowingly dispensing drugs for resale. The ability to dispense drugs to other members and pharmacists is an exception to that prohibition. The amendment clarified and narrowed this exception; it did not deprive Dr. Covant of an existing right. As a result, even if he was entitled to procedural fairness rights beyond the process identified in the legislation, they would not have been engaged.

[53] Accordingly, the panel correctly determined that the College did not owe a duty of procedural fairness to Dr. Covant in enacting the amendment to s. 33(2)(d). Moreover, the amendment to the General Regulation was enacted in accordance with the procedure required under its enabling legislation.

Did the Panel Err in its Finding of Professional Misconduct?

[54] Dr. Covant submits that the panel erred in finding that he engaged in professional misconduct because the allegations in the Notice of Hearing were not sufficiently specific, the College did not prove the alleged conduct, and/or the panel made palpable and overriding errors in assessing the evidence. Dr. Covant also asserts that the panel erred in finding that his conduct posed a risk to the public.

[55] Dr. Covent further submits that the majority erred in finding that he breached s. 33(2)(d), which limits sales to reasonably limited quantities to remedy a temporary shortage, because the evidence related only to his purchases, as opposed to his sales.

[56] As further detailed below, the panel made no palpable and overriding error in finding that Dr. Covant breached s. 33(2)(d) and that, as a result, he engaged in professional misconduct.

[57] There was ample evidence for the majority to find that Dr. Covant’s purchases of animal drug products came to the attention of the drug suppliers because of the volume of the purchases. The drug company witnesses all testified that BSAH purchased drugs in quantities that far exceeded other clinics in Ontario, and gave the following evidence:

• Rick Culbert, the Chief Executive Officer of Veterinary Purchase Co., testified that in 2016, BSAH purchased 4,565 units of Advantage II products for dogs and cats, which was the highest volume of Advantage II purchases of any single clinic in Ontario or Quebec. In comparison, the next highest amount was 2,340 units. BSAH also purchased a disproportionately high level of Caninsulin, at 1,719 units, compared to the next highest purchase of 515 units. Most clinics purchased less than 100 units of Caninsulin per year.[^2] Mr. Culbert wrote to Dr. Covant in November 2016 to ask him to stop sub-distributing the company’s products, which was possibly contrary to Health Canada regulations and under the Veterinarians Act.

• Serge Varin, a vice-president of operations and procurement at CDMV, a Quebec-based veterinary product distributor, testified that BSAH purchased 896 units of Caninsulin from CDMV in 2016. This represented 7.7 percent of all Caninsulin orders placed by Ontario clinics that year. In 2017, BSAH purchased 1,556 units of Caninsulin products, representing 31.7 percent of all orders placed by Ontario clinics over the same time period.

• Dr. Tamara Hofstede, Senior Manager, Veterinary Scientific Affairs, at Bayer Inc., confirmed that in 2016, BSAH purchased 155,771 units of Advantage products from Bayer. The next largest customer purchased 84,460 units in the same year. Between January 1 to April 30, 2017, BSAH purchased 54,748 units of Advantage products. The next largest customer purchased 11,202 units.

• Nathan Williams, a sales representative for the animal products division of Bayer, testified that Bayer came to believe that BSAH might be reselling Bayer’s products, through a software that Bayer used to track customers’ sales and that BSAH had installed on its system. Mr. Williams made notes in Bayer’s customer management system about conversations he had with BSAH staff regarding his concern that veterinarians selling products to pharmacists was contrary to the College’s rules.

[58] Contrary to Dr. Covant’s submissions, there was not only evidence of BSAH’s purchases before the panel, but also of its sales. In 2016, BSAH’s sales of Advantage products totalled $3,013.04. In 2017, BSAH’s sales of Advantage products totalled $144,318.08. A comparable clinic, in terms of size and geographic location, had sales of $14,470.87 in 2016 and $10,705.11 in 2017. In addition to the testimonial evidence, the panel had documentary evidence showing the volume of sales and purchases made by BSAH.

[59] The College also called as a witness a former office manager of BSAH, Vanessa Bastos, who testified that pharmacies would place orders for animal drugs with BSAH and that BSAH would then place orders with the drug wholesalers. Ms. Bastos testified that Mr. Williams, the Bayer representative, explained to her that the practice might contravene College rules. When Ms. Bastos asked Dr. Covant about it, he told her that it was a “grey area.” Ms. Bastos testified that Dr. Covant had instructed her not to discuss BSAH’s drug resales.

[60] In addition, the pharmacist witnesses, Wendy Chui and David Bedggood, confirmed that they ordered tens of thousands of dollars of veterinary drugs from BSAH over the course of more than one year. Ms. Chui, the owner of Canada Chemists, testified that she has been purchasing animal drug products from Dr. Covant since 2011. Ms. Chui admitted that she has never been unable to purchase veterinary drugs directly from drug companies because they refuse to supply pharmacists directly with animal drugs. While Ms. Chui characterized this as a “temporary shortage,” she acknowledged that the shortage was “continuous and “long-term.” Ms. Chui testified that she now places two orders per week with BSAH and that she buys drugs in bulk from Dr. Covant to keep them in stock.

[61] Mr. Bedggood, the former owner of Glen Shields Pharmacy, explained that he purchased animal drugs from Dr. Covant because drug companies do not sell directly to pharmacists. Mr. Bedggood testified that he placed orders with BSAH and that once the drugs were delivered to BSAH, an employee would pick them up. Glen Shields would then resell the drugs to their own clients.

[62] The pharmacists’ evidence was consistent with the evidence of Ms. Bastos and the drug company representatives that the companies would not supply pharmacists with animal drug products. The majority thus made no palpable and overriding error in finding that the evidence did not support the existence of a temporary shortage. The circumstances were permanent, and resulted from the regulatory environment and the drug companies’ internal drug safety policies and practices.

[63] As a result, I reject the Appellant’s argument that no breach of s. 33(2)(d) could be found because the College failed to adduce evidence, including expert evidence, as to what constitutes “reasonably limited quantities” or a “temporary shortage.” The panel had extensive evidence of the quantities of drugs purchased and sold by Dr. Covant, the manner in which BSAH sold the drugs, and the circumstances resulting in the pharmacists’ orders for the products. It was clear from the evidence that far from dispensing “reasonably limited quantities” to address “temporary shortages,” Dr. Covant was purchasing and selling disproportionate quantities, as compared to other clinics, on a regular and ongoing basis.

[64] For the same reasons, I disagree with the Appellant’s submission that he had inadequate notice of the allegations against him because the Notice of Hearing was insufficiently particularized.

[65] While the dissenting member found that there was no evidence of a risk to the public, he also found that s. 33(2)(d) relies on the experience of pharmacists. The College, however, regulates licensed veterinarians in the public interest. The College’s concern with Dr. Covant’s resale activities, which arose out of a customer complaint to Bayer, is consistent with that role. The fact that the pharmacists “may feel that they are providing a public good by allowing alternate access to pharmaceuticals” for pets does not undermine the College’s mandate. Nor does the College have to wait for harm to materialize.

[66] The risk that Dr. Covant’s conduct posed to the public was supported by the evidence that once BSAH sold the animal drug products to pharmacists, the drugs could not be tracked to the purchaser. Dr. Hofstede testified Dr. Covant’s practice concerned Bayer because it was no longer able to control the distribution channel and maintain quality control of the drugs, for example, by ensuring they were stored at the required temperature. Ms. Bastos also testified that once the drugs were sent to the pharmacist, BSAH did not track the patient or customer to whom the pharmacist distributed the product. Ms. Bastos testified that BSAH had no mechanism for tracking whether the products were being sold or used appropriately.

[67] The Merits Decision summarizes the evidence before the panel, sets out the panel’s findings of fact, and explains how the factual findings support a finding of professional misconduct. Moreover, the majority’s careful treatment of the standard to be met by the College and the evidence adduced at the hearing is evident in its finding that the College had not met its burden in demonstrating that Dr. Covant’s conduct amounted to conduct unbecoming a veterinarian.

[68] Accordingly, the panel made no palpable and overriding error in finding that Dr. Covant had engaged in professional misconduct by breaching s. 33(2)(d).

The Expert Evidence Decision

[69] The Appellant has not made clear what relief he is seeking in appealing the Expert Evidence Decision. In any event, the panel did not err in refusing to grant Dr. Covant leave to call Mr. Sharpe as an expert witness on the issue of adequate notice to a self-regulatory profession. The proposed evidence was irrelevant and unnecessary to the issues before the panel because the issue of whether the amendment was properly enacted had been addressed in the Constitutional Decision. Moreover, the proposed testimony would have been nothing more than a legal opinion and would not have assisted the panel.

Was the Penalty Imposed Clearly Unfit?

[70] Dr. Covant asserts that, given that this matter represented a “novel issue” which “stemmed from lack of disclosure and understanding of the amended Regulation,” the Committee should not have ordered any penalty or costs against him.

[71] The College submits that it made full disclosure of the relevant documents and that the language of s. 33(2)(d) is clear and intelligible. The College submits that the Panel’s penalty and costs order is reasonable and appropriate.

[72] While determining the appropriate penalty is inherently discretionary, in the regulated health profession context, the penalty must be proportionate to the findings made and guided by penalties imposed in other cases: Reid, at para. 100. Other relevant factors include ensuring public protection and confidence in the College’s ability to govern the profession, denunciation of the conduct at issue, specific and general deterrence and rehabilitation of the member. The Supreme Court of Canada has found that discipline committees have “greater expertise than courts in the choice of sanction for breaches of professional standards”: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 31. “Deference is owed to discipline committees because they are tribunals composed of members of the profession and of the public with the expertise to assess the level of threat to the public and the… profession posed by certain forms of behaviour”: Peirovy, at para. 73 (internal quotations omitted).

[73] The panel’s reasons in the Penalty Decision reflect that they considered penalties ordered in similar cases and weighed both the aggravating and mitigating factors in this case. The panel considered the fact that Dr. Covant knew about the regulatory change and “showed little regard to abide by the revised Regulation” and that following the College’s rules and regulations is a basic requirement of membership. However, the panel rejected a twelve-month suspension as “too severe” and distinguished the cases relied on by the College based both on the nature of the conduct at issue and the drugs being sold. The panel highlighted that in this case, there was no evidence of public harm. The panel found that a one-month suspension would be sufficient to achieve deterrence, while ensuring that Dr. Covant’s patients were not negatively impacted.

[74] Moreover, Dr. Covant did not testify to his lack of understanding of s. 33(2)(d) or any confusion caused by it.

[75] As a result, the Appellant has failed to demonstrate that the penalty was clearly unreasonable or demonstrably unfit. As the panel made no palpable and overriding error in determining the appropriate penalty, its decision is entitled to deference.

[76] In addition, the panel made no palpable and overriding in error in finding that this was an appropriate case for costs pursuant to s. 30(6.1) of the Veterinarians Act.

[77] The panel found that the College proved the bulk of its case and that Dr. Covant, because of his unsuccessful motions, was mainly responsible for the length of the hearing. Moreover, the panel properly rejected Dr. Covant’s position that the matter raised a novel issue. Although a breach of s. 33(2)(d) had not previously been the subject of discipline proceedings, it was clear that breaching the regulations could result in disciplinary action.

[78] In respect of the quantum, the panel noted that Dr. Covant’s motions were unnecessary, but also took into consideration its view that the College’s witnesses were unhelpful to the constitutional motion. The panel ultimately ordered Dr. Covant to pay one-third of the College’s actual costs and expenses, as opposed to the usual two-thirds. A costs decision is highly discretionary and best determined by the panel hearing the case. The Appellant has shown no palpable and overriding error, and the panel’s costs decision is entitled to deference.

Conclusion

[79] Accordingly, the appeal of all five decisions of the Disciplinary Committee is dismissed.

[80] At the hearing, counsel advised the court that the parties had agreed that the successful party would be entitled to costs of the appeal in the amount of $18,000, all-inclusive. The Appellant, Dr. Covant, shall pay the College’s costs of the appeal of $18,000 within 30 days.

“Nishikawa J.”

“King J.”

“Favreau J.”

Released: December 16, 2021

CITATION: Covant v. College of Veterinarians of Ontario, 2021 ONSC 8193

DIVISIONAL COURT FILE NO.: 112/20

DATE: 20211216

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

King, Favreau and Nishikawa JJ.

BETWEEN:

Dr. Howard Covant

Appellant

and

The College of Veterinarians of Ontario

Respondent

REASONS FOR JUDGMENT

Released: December 16, 2021

[^1]: It was unclear what relief the Appellant was seeking in appealing the Disclosure Decision. For the reasons stated above, the appeal is dismissed.

[^2]: The Advantage products are topical parasiticides. Caninsulin is used to treat diabetes in dogs and cats.