CITATION: Ontario College of Veterinarians of Ontario v. Dr. Ackerman, 2022 ONSC 4334

DIVISIONAL COURT FILE NO.: 838/21 DATE: 20221017

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

RSJ FIRESTONE, STEWART AND AKHTAR JJ.

BETWEEN:

COLLEGE OF VETERINARIANS OF ONTARIO

B. LeBlanc and A. Hountalas, for the College of Veterinarians of Ontario

Appellant and Respondent on Cross-Appeal

– and –

DR. KENT ACKERMAN

J. Naresh, and C. Barry, for Dr. Ackerman

Respondent and Appellant on Cross-appeal

HEARD at Toronto (by videoconference): June 20^th, 2022

S.A.Q. AKHTAR J.

FACTUAL BACKGROUND AND OVERVIEW

Introduction

[1] This is an appeal and cross-appeal of the findings and penalty decision made the Discipline Committee of the College of Veterinarians of Ontario (the “Committee”) against Dr. Kent Ackerman. After a contested hearing, the Committee suspended Dr. Ackerman’s licence to practice for eight months and imposed a series of conditions including attendance for therapy and continuous assessment on his return to practice.

[2] The College of Veterinarians of Ontario (“CVO”) appeals the penalty decision seeking an order that Dr. Ackerman be required to successfully complete the specific provisions contained in the decision before his suspension from practice is lifted (the “Penalty Decision”.

[3] Dr. Ackerman cross-appeals the Committee decision finding he committed professional misconduct (the “Liability Decision”). He argues the Committee’s findings were flawed by an erroneous credibility analysis and assessment of the evidence. He requests the Liability Decision be set aside with a substituted finding of not guilty. In the alternative, he seeks an order remitting the matter to the Committee for a new hearing.

[4] For the reasons set out below, the appeal and cross-appeal are dismissed.

Background Facts

[5] Dr. Ackerman is a veterinarian registered with the CVO. At the relevant times, he practiced at the King West Veterinary Clinic (“KWVC”) in Toronto. In July 2017, the CVO received a complaint from a member of Dr. Ackerman’s staff, Sonia Holicova, alleging that Dr. Ackerman routinely verbally abused his staff and another veterinarian at the clinic.

[6] After an investigation, the Registrar issued a Notice of Hearing on December 17, 2019. The Statement of Allegations alleged, among other things, that between 2015 and 2019, Dr. Ackerman engaged in professional misconduct by regularly verbally and sometimes physically abusing several members of his staff and another veterinarian at KWVC.

[7] The hearing on the merits of the complaints was conducted on 10-14 August and 18 August 2020 with Dr. Ackerman representing himself at the hearing.

[8] Nine witnesses were called by the CVO and each described being the subject of and/or witness to Dr. Ackerman’s abusive conduct. The allegations included Dr. Ackerman yelling, screaming at, and demeaning KWVC employees; and Dr. Ackerman physically hitting two of the employees when he disagreed with their actions. One witness testified that on several occasions Dr. Ackerman asked staff to alter records including fabricating off-label advice that had not been given to the client, changing the estimated volumes noted in drug records, and adjusting anaesthesia start and end times recorded in surgical logs. The witness testified that the purpose of these amendments was because procedures took longer than necessary.

The Witnesses

[9] Each witness’ evidence is described as follows:

[10] S.H. was a technician employed at KWVC from May 2017 to August 2017. She testified to poor treatment by Dr. Ackerman, including repeated yelling and screaming directed at her. S.H. testified she witnessed Dr. Ackerman also shouting at other staff members, including M.D. and Dr. A.G., and another veterinarian, Dr. K.H.

[11] S.H. presented a series of audio recordings which captured interactions between Dr. Ackerman and the relevant staff members. Some demonstrated Dr. Ackerman raising his voice and using a derogatory tone.

[12] M.D. worked at KWVC as a receptionist and Animal Care Assistant from June 2017 until August 2017. He testified that he walked out from the job after Dr. Ackerman made him feel uncomfortable. He said Dr. Ackerman hit his hands twice while he was attempting to restrain a dog in front of a client. M.D. described Dr. Ackerman’s speech as degrading and that he used the word “idiot” a great deal.

[13] E.B. worked at the clinic from March 2018 to February 2020, and previously from spring 2016 to spring 2017. She described witnessing a number of incidents of verbal abuse from Dr. Ackerman, saying that he would embarrass and physically abuse employees, as well as scream profanities. She witnessed poor treatment directed at S.J., Dr. K.H., and A.S.

[14] E.B. also testified that Dr. Ackerman would slap her hands away and give her little pushes and shoves. She recounted an incident where she was putting in an intravenous catheter and Dr. Ackerman slapped her hands out of the way because it was not going in the way he wanted. E.B. testified to witnessing Dr. Ackerman pushing another employee, Q.Q., across the x-ray room in the clinic, resulting in Q.Q.’s head hitting the wall. E.B. said she saw Dr. Ackerman asking Q.Q., who was from Afghanistan, if he wanted to drive a taxi or be a vet, and repeatedly joking that Q.Q. should be driving a taxi.

[15] E.B. also told the Committee that she recalled many occasions where Dr. Ackerman asked staff to change records, including fabricating off-label advice that had not been given to the client, changing, and estimating volumes recorded in drug logs, and altering surgical records of anaesthesia start and end times. E.B. testified that the records would be altered because procedures took longer than necessary. E.B. presented a text message exchange between herself and Dr. Ackerman in which she told him that she was upset that he had told S.J. that E.B. had a mental health condition.

[16] S.J. was an Animal Care Assistant at KWVC for 6 months until November 2018 and like others described Dr. Ackerman as being very aggressive. She said that on 12 November 2018, Dr. Ackerman insisted on taking a photo of her, saying she was not smiling. She recalled trying to smile for the photo while he was yelling at her. S.J. also testified that around November 13, 2018, Dr. Ackerman told her that another staff member, E.B., had been diagnosed with a mental health disorder.

[17] Q.Q. was a veterinary technician at KWVC from approximately June 2015 to March 2017. Q.Q. recalled seeing staff reduced to tears from the way Dr. Ackerman was treating staff. Q.Q. described an incident where Q.Q., E.B., and Dr. Ackerman were taking radiographs and that Dr. Ackerman pushed him away and yelled “what the hell are you doing”.

[18] Dr. A.G. was a veterinary technician at KWVC from August 2015 to June 2017. She recalled that staff were treated poorly by Dr. Ackerman almost daily and that staff turnover was high. She recalled Dr. Ackerman being aggressive with Q.Q. and that they had multiple arguments.

[19] Dr. K.H. was a veterinarian at KWVC from November 2016 to September 2017. Dr. K.H. described Dr. Ackerman as yelling at staff all the time. She recalled him yelling at S.H. and being deprecating and verbally abusive toward Q.Q.

[20] M.P. was a volunteer at KWVC from May 2018 to August 2018. She testified that Dr. Ackerman would yell at M.P. and E.B.

[21] S.S. was a client of Dr. Ackerman’s for 10 years and chose to discontinue her relationship with KWVC in 2017. S.S. described seeing Dr. Ackerman speak to receptionists, technicians, and other veterinarians in a way that implied they were stupid or incompetent and explicitly told her that was the case. S.S. described confronting Dr. Ackerman over medication she had ordered for her cat which had not arrived. In response, Dr. Ackerman lost his temper and yelled “Enough!”. This exchange so upset her that she decided to take her business elsewhere.

[22] Dr. Ackerman testified on his own behalf and denied the CVO allegations.

[23] With respect to the allegations of yelling at staff, Dr. Ackerman testified that he had to raise his voice to be heard clearly and was, on occasion, communicating with others who were not in the same room. He disagreed with the suggestion that he had physically slapped employees’ hands and testified that he would only do so if there was a safety issue. Dr. Ackerman denied altering drug logs but conceded that he did have an employee rewrite missed entries. He flatly denied requiring staff to alter the anaesthesia times.

The Liability Decision

[24] In a decision dated 7 December 2020, the Committee found that most of the allegations were proven, and that Dr. Ackerman had engaged in professional misconduct pursuant to paragraphs 28 (falsifying a record), 44 (act or omission that would be regarded as disgraceful, dishonourable or unprofessional), and 45 (conduct unbecoming) of s. 17(1) of R.R.O. 1990, Reg. 1093, under the Veterinarians Act, R.S.O. 1990, c. V.3.

[25] The Committee found the CVO’s witnesses to be credible and reliable. In contrast, the Committee found Dr. Ackerman’s testimony to be “somewhat jumbled and discontinuous which made assessment of his credibility and reliability difficult.”

[26] The Committee did not accept Dr. Ackerman’s testimony that he did not yell at staff but raised his voice to be heard clearly. It relied upon the audio recordings made by S.H., where Dr. Ackerman’s conversational speech was clearly audible, and his voice would suddenly increase in volume even though the staff he was speaking to were in the same room. The Committee concluded that Dr. Ackerman regularly yelled at staff and at Dr. K.H.

[27] The Committee further found that:

• Dr. Ackerman had yelled at M.D. and slapped his hands twice. It noted a lack of clarity on the safety issue, but held, that in any event, there had been an opportunity to manage any safety concerns before slapping M.D.’s hands a second time.

• Dr. Ackerman would frequently slap or push E.B.’s hands away if a procedure was not to his liking, and that there was no safety rationale for this.

• Dr. Ackerman required staff members to record inaccurate anaesthetic start and end times in veterinary records, though there was insufficient evidence to prove that the reason for the extended duration of the anaesthetisation was Dr. Ackerman’s yelling at and abusing staff members.

[28] The Committee noted that although there was strong evidence that Dr. Ackerman yelled at Q.Q. and made statements regarding his race and language skills that were interpreted by his colleagues as inappropriate and derogatory, the Committee respected Q.Q.’s position that Q.Q. did not find the comments inappropriate.

[29] The Committee found the allegation of Dr. Ackerman verbally abusing clients was not proven. Although there was strong evidence of a single instance of yelling at a client (S.S.), this was in the context of an argument where both raised their voices, and none of the other staff described further instances of Dr. Ackerman directing verbal aggression toward a client.

[30] The Committee rejected Dr. Ackerman’s argument that his actions did not constitute “professional misconduct” because they did not relate to medical judgment or skill. It concluded that his conduct amounted to a “chronic culture of verbal abuse”, would reasonably be regarded as unprofessional and disgraceful, and would harm the standing of the profession in the eyes of the public.

The Penalty Decision

[31] The hearing on penalty and costs proceeded on 23 June 2021, by which time Dr. Ackerman was represented by counsel. The CVO sought revocation of Dr. Ackerman’s licence, whereas Dr. Ackerman argued a suspension of 3 to 8 months was the appropriate sanction.

[32] On September 10, 2021, the Committee issued its decision on penalty, ordering Dr. Ackerman to attend for a recorded public reprimand and suspending his licence to practice veterinary medicine for eight months, as well as the following:

• Dr. Ackerman was required to attend therapy, at his own expense, with a psychotherapist or psychologist for the duration of the suspension and for six additional months after commencing practice again. The therapist was mandated with providing a written report to the Registrar prior to the end of the suspension and again at the end of the six months after Dr. Ackerman had resumed practice, setting out an assessment of Dr. Ackerman’s risk of harm to the public.

• Dr. Ackerman was ordered to undergo an assessment by a third-party psychologist or psychotherapist within sixty days prior to the end of the suspension to determine his status with respect to his post-traumatic stress disorder or other mental health disorders, as well as an assessment of his risk to the public.

• Dr. Ackerman had to successfully complete the PROBE: Ethics and Boundaries program with a grade of Unconditional Pass prior to the end of the suspension and to successfully complete the follow up PROBE Plus Program prior to the end of the six-month period after returning to work.

• Upon return to practice, Dr. Ackerman’s practice was to be subject to in-person assessment by a person appointed by the Registrar – first, within the first three months of Dr. Ackerman’s return to practice, and second, within the sixth month of Dr. Ackerman’s return to practice.

• In the event Dr. Ackerman returned to practice with no supervisory duties he would provide to his employer/supervisor a copy of the Liability Decision and Penalty Decision prior to commencing any such practice.

[33] Finally, Dr. Ackerman was ordered to pay $92,500 in costs to the CVO.

THE CVO APPEAL

The CVO Grounds of Appeal

[34] The CVO appeals the Committee’s penalty decision arguing that it is deficient is several respects including:

• Failing to include any measures to deal with the possibility of Dr. Ackerman failing to attend therapy or Dr. Ackerman being diagnosed as posing a risk of harm to the public.

• Failing to expressly state that the psychological assessment ordered as part of the decision be provided to the Registrar.

• Failing to include measures to cater for a scenario in which Dr. Ackerman fails to successfully complete the PROBE ethics course.

• Permitting Dr. Ackerman to continue to practice even if he does not successfully complete the PROBE course.

• Permitting Dr. Ackerman to continue practising even if any of the psychotherapy, psychological or therapy reports declare him to be a risk to the public.

[35] The CVO contacted Dr. Ackerman seeking his consent to request a reconsideration of the penalty decision (pursuant to Rule 36 of the Rules of Procedure of the Discipline Committee) so that these concerns could be addressed and remedied. However, Dr. Ackerman did not respond.

[36] The CVO argues that the Committee committed a palpable and overriding error by failing to include these provisions. Its failure to do so means that the public is not adequately protected if Dr. Ackerman fails to successfully take or complete the remedial steps the Committee itself recognised were necessary.

[37] The CVO appeals to this court to vary the Committee’s decision requesting the following mandatory enforcement provisions to be imposed:

(1) Dr. Ackerman’s licence to practice veterinary medicine should continue to remain suspended if he does not attend therapy as ordered and/or the therapist reports Dr. Ackerman poses a risk of harm.

(2) The psychological or psychotherapist assessments ordered by the Committee should be provided to the Registrar within 10 days. Dr. Ackerman’s suspension should continue if he fails to attend the initial assessment and/or if the assessor determines he is a risk to the public.

(3) Dr. Ackerman should remain suspended from practice until he successfully completes the PROBE course.

[38] In response, Dr. Ackerman argues, as a cross-appeal, that the Committee’s findings were fundamentally flawed and that he should not have been found guilty of professional misconduct.

[39] With respect to the CVO’s appeal Dr. Ackerman argues it has failed to demonstrate the Committee made a palpable and overriding error in its decision. He submits the decision as a whole provides the appropriate protection to the public. Moreover, he argues that the suspension imposed was on the higher end of the spectrum of sanctions available.

The Standard of Review

[40] This appeal is brought as of right under s. 35 of the Veterinarians Act.

[41] The standard of review for a statutory appeal is not disputed between the parties as appellate standards of review apply: Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.

[42] A reviewing court must find palpable and overriding error with respect to findings of fact or mixed findings of fact and law. When the issue in dispute is legal, the test is one of correctness: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171, at para. 19.

[43] In this case, there is no dispute that the test for reviewing the penalty is whether the Committee made an error in principle or the penalty was clearly unfit: Mittleman, at para. 41. For this court to intervene, the CVO must establish that the Committee’s decision was clearly unreasonable, demonstrably unfit or represented a substantial and marked departure from penalties in similar cases: 2099065 Ontario Inc. v. Ontario (Health and Long-Term Care), 2021 ONSC 4319, at para. 61.

Did the Discipline Committee Commit Palpable and Overriding Error?

[44] As described, the jurisprudence makes clear that great deference must be given to the Committee’s decision: in this case, the issues involved are factual and subject to review on the basis of palpable and overriding error.

[45] Upon review of the arguments, and for the following reasons, we find the CVO has failed to establish that the Committee made a palpable and overriding error of fact or imposed a penalty that was clearly unfit.

[46] The CVO’s position before the Committee was to demand that Dr. Ackerman’s licence to practice veterinary medicine be revoked to protect the public.

[47] After balancing the aggravating and mitigating factors presented by both parties, the Committee disagreed with this position. In rejecting the CVO’s arguments and imposing the suspension period that it did, the Committee took into account protection of the public.

[48] At para. 81, the Committee concluded:

Revocation, while not a career-ending event as the member may apply for reinstatement after two years, is a very severe punishment and should be reserved for the most egregious cases. The Panel considered whether the findings of professional misconduct against Dr. Ackerman and in particular those findings of verbal and physical abuse, warrant such a severe punishment and so reviewed the cases presented by Counsel. While the findings of professional misconduct are very serious and deserve strong action in order to protect the public, and while there are challenges in assuring rehabilitation and thus protection of the public, in the Panel’s opinion Dr. Ackerman has value to the profession and the imposed conditions of the penalty will adequately protect the public. The Panel did not find that revocation was warranted in this case.

[49] The Committee declined to find Dr. Ackerman to be “ungovernable” and concluded the penalty decision would protect the public by forcing Dr. Ackerman into rehabilitative measures. Moreover, the Committee acknowledged the suspension it had imposed represented the “upper limit” and was longer than similar cases presented and considered at the penalty hearing.

[50] Ultimately the Committee determined the protection of the public would be best served by ensuring Dr. Ackerman took rehabilitative measures which included therapy, psychotherapy, and the PROBE program. The follow up reports ordered by the Committee reflect its intentions.

[51] Whilst it might have been preferable for additional enforcement measures to be included in the Penalty Decision in the event of non-compliance, their lack of inclusion does not make the Committee’s decision unreasonable or unfit.

[52] We find the CVO’s argument amounts to the need to add details to the order as opposed to demonstrating that the penalty decision was unreasonable or unfit.

[53] The Committee considered all the factors in this case and concluded the penalty did not require the measures that the CVO now requests. We find no palpable and overriding error in the Committee’s approach or conclusion.

[54] Accordingly, there is no basis to interfere with the Committee’s decision and the CVO appeal is dismissed.

THE CROSS-APPEAL BY DR. ACKERMAN

[55] Dr. Ackerman cross-appeals the findings of the Committee arguing that the Committee’s decision was unreasonable.

[56] He argues the Committee conflated personal shortcomings with professional conduct and its evaluation of the evidence fell woefully short of the required standards.

[57] The crux of Dr. Ackerman’s argument is an attack on the way in which the Committee approached issues of credibility. According to Dr. Ackerman the Committee failed to set out any methodology used to gauge credibility and made conclusory statements when finding the CVO witnesses credible.

[58] He relies on this court’s decision in Stefanov v. College of Massage Therapists of Ontario, 2016 ONSC 848, 345 O.A.C. 265 (Div. Ct.), where Horkins J., writing for the Court, overturned a finding of professional misconduct related to inappropriate sexual touching, because the Discipline Committee had engaged in an incomplete analysis of the complainant’s reliability and failed to properly weigh Mr. Stefanov’s.

[59] Dr. Ackerman places the following series of examples before this court to demonstrate a similarly flawed assessment.

• The CVO alleged Dr. Ackerman yelled at his associates on a regular basis causing them to leave. The Committee upheld this complaint finding that there was no need to yell because the staff were in the same room. However, Dr. Ackerman had provided contrary evidence saying that he needed to raise his voice to be heard. He submits that these diametrically opposed accounts required the Committee to explain why they rejected Dr. Ackerman’s evidence.

• The Committee found Dr. Ackerman did not dispute slapping the hand of another auxiliary worker during the restraint of a dog. Dr. Ackerman says that the Committee materially misapprehended the evidence as he, at no time, accepted that he slapped anyone and only agreed he may have pushed the worker’s hand away for safety reasons.

• Dr. Ackerman also points to the finding that Dr. Ackerman yelled at one person privately and in the presence of clients calling her “stupid”, “inferior” or mentally ill or words to that effect. He says there is no specific evidence of those words and the Committee’s conclusions have not been explained in its reasons.

• Dr. Ackerman raises several other points where he criticises the Committee for its findings such as mistreatment of one employee, S.J., screaming at another, Q.Q. and pushing him in the chest. He submits that the Committee materially misapprehended his evidence of the alteration of the anaesthetic records.

[60] As described in the preceding paragraphs, the standard of review is one of palpable and overriding error with respect to findings of fact and of mixed fact and law. An error is palpable if it is plainly seen and if all the evidence need not be reconsidered in order to identify it, and overriding if it has affected the result. It is a “beam in the eye”, not a needle in a haystack: Hydro-Quebec v. Matta, 2020 SCC 37, at para. 33.

[61] Dr. Ackerman agrees considerable deference must be paid to the Committee’s findings of fact and determination of credibility. However, his approach suggests the opposite. Nor was the Committee obliged to consider and explain every argument advanced on Dr. Ackerman’s behalf.

[62] Notwithstanding these observations, the Committee dedicated over 31 pages of its decision to its analysis of the witnesses and over 20 paragraphs to Dr. Ackerman’s credibility. The Committee had more than sufficient evidence on which to base its conclusion and properly identified the reasons for its decision.

[63] For example, as noted, Dr. Ackerman complains that the Committee failed to explain why it rejected his evidence in favour of witnesses who claimed he yelled and screamed at them. This assertion is clearly contradicted by the Committee’s detailed reasons which refer to multiple witnesses’ testimony on the issue and corroborating evidence.

[64] One such instance can be found in the Committee’s findings regarding Q.Q., who cited several occasions where Dr. Ackerman yelled and belittled him. He gave evidence of being pushed by Dr. Ackerman during a radiograph session of a canary. E.B., who was present, gave direct evidence supporting Q.Q.’s account of Dr. Ackerman pushing him across the room when he and E.B. were taking a radiograph. She also corroborated Q.Q.’s account of Dr. Ackerman’s verbal treatment towards him.

[65] Similarly, the allegation that Dr. Ackerman yelled at staff was further corroborated by S.H. who recorded Dr. Ackerman’s shouting and testified that she and the staff were in the same room as Dr. Ackerman. The panel’s acceptance of her evidence signified a rejection of Dr. Ackerman’s assertions that he had to raise his voice because the staff were in another room.

[66] Dr. Ackerman’s claims that there was no specific evidence that the word “stupid” was uttered is contradicted by E.B.’s testimony that expressly indicates that it was. The Committee also held there was specific evidence that Dr. Ackerman commented on E.B.’s “mental health” which would provide a basis for their finding that even though no specific evidence of the words “inferior” or “mentally ill” were uttered, words “to that effect” were said.

[67] Moreover, whilst it is true Dr. Ackerman denied altering records, the Committee clearly relied on E.B.’s evidence that Dr. Ackerman instructed her and others to amend records to conceal the duration of his surgeries.

[68] Finally, Dr. Ackerman argues that the Committee failed to provide an explanation as to why it preferred S.H.’s evidence to his when determining the issue of whether he belittled S.J. However, it is hard to understand why the Committee should have done so when Dr. Ackerman did not actually deny uttering the words found to belittle S.J. but testified that he did not intend to do so.

[69] I conclude that Dr. Ackerman’s arguments amount to a disagreement with the Committee’s conclusions rather than demonstrating palpable and overriding error.

[70] Finally, although Dr. Ackerman conceded that the Committee had jurisdiction to proceed in his absence he argues that in the future, an absent party should be provided with transcripts. I disagree. Such an obligation would amount to a significant expenditure by the CVO solely to assist those who had chosen not to participate in the process and is not unfair in these circumstances.

[71] For these reasons, the cross-appeal is likewise dismissed.

COSTS

[72] Both parties agreed that if neither was successful in their appeal, there should be no order for costs. Accordingly, there shall be no costs ordered to either party.

___________________________ S.A.Q. AKHTAR, J.

I agree

RSJ FIRESTONE

I agree

STEWART J.

Date of Release: 17 October 2022

CITATION: Ontario College of Veterinarians of Ontario v. Dr. Ackerman, 2022 ONSC 4334

DIVISIONAL COURT FILE NO.: 838 /21 DATE: 20221017

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

RSJ FIRESTONE, STEWART AND AKHTAR JJ.

BETWEEN:

COLLEGE OF VETERINARIANS OF ONTARIO

Plaintiff/Applicant/Appellant

– and –

DR. KENT ACKERMAN

Defendant/Respondent

REASONS FOR JUDGMENT

S.A.Q. AKHTAR J.

Date of Release: 17 October 2022