CITATION: Van Arem v. College of Veterinarians of Ontario, 2024 ONSC 7072
DIVISIONAL COURT FILE NO.: 633/23
DATE: 20241218
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Davies, Jensen JJ.
BETWEEN:
Dr. Brian Van Arem and Dr. Peter Vatcher
Appellants
– and –
College of Veterinarians of Ontario
Respondent
Reid Lester, for the Appellants
Gaetana Campisi, for the Respondent
HEARD at Toronto:[^1] December 3, 2024
BY THE COURT
REASONS FOR JUDGMENT
1. Overview
[1] Dr. Brian Van Arem and Dr. Peter Vatcher are veterinarians. Dr. Van Arem owns the Toronto Equine Hospital at Woodbine Racetrack. Dr. Vatcher worked at the Toronto Equine Hospital with Dr. Van Arem for many years.
[2] The College of Veterinarians of Ontario received a complaint from the owner of several racehorses stabled at Woodbine that Dr. Van Arem and Dr. Vatcher were not (a) keeping proper medical records, (b) disclosing their fees, (c) obtaining informed consent for treatment, or (d) performing adequate medical examinations.
[3] The complainant also told the College that Dr. Vatcher had been injecting his horses with an unauthorized concoction of vitamins and amino acids before races. The complainant said that he purchased vials online and gave them to Dr. Vatcher to administer. Dr. Vatcher was accused of administering a drug from an “unknown, unregistered or untrustworthy source.”
[4] Following a five-day hearing, the Discipline Committee of the College found that Dr. Van Arem and Dr. Vatcher engaged in professional misconduct. The Discipline Committee also found that Dr. Van Arem and Dr. Vatcher engaged in dishonourable and unprofessional conduct. In particular, the Discipline Committee found that they failed to keep proper medical records as required under the Veterinarians Act, R.S.O. 1990, c. V.3 and the regulations under that Act. The Discipline Committee noted that their record-keeping practices showed a serious and persistent disregard for their professional obligations. The Discipline Committee also found that Dr. Vatcher failed to give his clients proper fee estimates and failed to document his clients’ informed consent to medical procedures being performed.
[5] The Discipline Committee found that the complainant gave Dr. Vatcher vials of the pre-race substance purchased online but was not satisfied on a balance of probabilities that Dr. Vatcher administered the substance to the horses. Nevertheless, the Discipline Committee found that Dr. Vatcher’s conduct was dishonourable and unprofessional because he took the vials from the complainant on several occasions and left the complainant with the impression that the substance would be administered.
[6] Dr. Van Arem was given a one-month suspension and a reprimand. The Discipline Committee ordered that Dr. Van Arem was required to serve the suspension during the thoroughbred race season. Dr. Van Arem was also ordered to complete various assessments and educational programs before returning to practice. Dr. Van Arem was also ordered to undergo four unannounced record reviews within 18 months of returning to practice. Finally, Dr. Van Arem was ordered to pay $24,634.95 in costs.
[7] Dr. Vatcher was given a two-month suspension and a reprimand. He was ordered to complete the same assessments, programs and record reviews as Dr. Van Arem. Dr. Vatcher was ordered to pay $36,449.92 in costs.
[8] Dr. Van Arem appeals his one-month suspension. He argues the suspension was a disproportionate penalty in light of the nature of the findings.
[9] Both Dr. Van Arem and Dr. Vatcher appeal the costs orders. They argue the Discipline Committee failed to adequately consider the impact of their offers to settle on costs. They also argue the Discipline Committee failed to fairly quantify the amount of time spent during the five-day hearing on uncontested matters, which unnecessarily increased the costs of the proceedings.
[10] For the following reasons, we dismiss the appeals.
B. Dr. Van Arem’s penalty appeal
[11] Dr. Van Arem has a statutory right to appeal the penalty decision of the Discipline Committee on any question of law, question of fact or question of mixed fact and law: Veterinarians Act, s. 35(1)(a). As a result, the appellate standards of review apply: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 2 S.C.R. 653, at para. 37.
[12] The burden is on Dr. Van Arem to establish that the Discipline Committee made an error in principle or that the penalty was “clearly unfit.” A regulatory penalty will not be “clearly unfit” unless it is disproportionate or falls outside the range of penalties for similar offences in similar circumstances: Mitelman v. v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para. 18; College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 56.
[13] Dr. Van Arem argues the one-month suspension was disproportionate and outside the range of penalties imposed in other comparable cases. We disagree.
[14] Counsel for Dr. Van Arem relied on two cases to support his position that a suspension is outside the range: Fletcher v. Flanigan, 2023 47343 (ON HPARB) and Betts v. Mogavero, 2023 2519 (ON HPARB). Both cases involved issues related to inadequate record keeping and both were resolved without a suspension. However, those cases are distinguishable from this case. Neither involved a contested disciplinary hearing. Both were resolved at the investigative stage by the Complaints Committee of the College before the matters were referred for a discipline hearing. In Fletcher, Dr. Flanigan undertook to complete various remedial programs and the Complaints Committee accepted her undertaking. In Betts, the Complaints Committee decided to provide advice to Dr. Mogavero about his professional obligations but did not refer the matter to a discipline hearing.
[15] The fact that other cases involving allegations of inadequate record keeping have been resolved without a suspension does not support a finding that imposing a short suspension after a contested hearing is outside the range. At most, Fletcher and Betts stand for the proposition that, in some cases, a resolution without a suspension may be appropriate.
[16] The Discipline Committee had the jurisdiction to suspend a member’s licence and we are satisfied that that a suspension was within the appropriate range: Veterinarians Act, s. 30(5)(c). The College relied on several cases involving allegations of inadequate record keeping where suspensions were imposed. Some cases were from the Discipline Committee of the College of Veterinarians: College of Veterinarians of Ontario v. Verijlenberg (October 11, 2017, unreported), College of Veterinarians of Ontario v. Kim (July 6, 2017, unreported). Others were from the Discipline Committee of the College of Physicians and Surgeons: Ontario (College of Physicians and Surgeons of Ontario) v. Baranick, 2017 ONCPSD 35 and Ontario (College of Physicians and Surgeons of Ontario) v. Zadra, 2017 ONCPSD 24. Some of the cases only involved findings related to inadequate record keeping, which resulted in short suspensions. Other cases involved more serious allegations of misconduct beyond the inadequate record keeping, which resulted in longer suspensions. Taken as a whole, the cases relied on by the College demonstrate that a suspension is within the range of penalties imposed in other comparable cases.
[17] We are also satisfied that a suspension is a fit penalty given the Discipline Committee’s findings in relation to the aggravating and mitigating factors in Dr. Van Arem’s case.
[18] The Discipline Committee made findings that Dr. Van Arem’s misconduct was serious. The Discipline Committee found that Dr. Van Arem’s medical records were “woefully deficient.”
[19] The Discipline Committee considered the fact that Dr. Van Arem admitted that he engaged in professional misconduct. He did not, however, admit the facts underlying the allegation of misconduct. And the Discipline Committee found that Dr. Van Arem did not grasp the signifance of his misconduct.The Committee was “deeply troubled” by Dr. Van Arem’s testimony. The Committee found that Dr. Van Arem tried to minimize the seriousness of his misconduct and tried to deflect blame for the deficiencies in his records. For example, the Committee rejected Dr. Van Arem’s argument that rules related to record keeping are less important and more difficult to follow in a busy equine practice at a racetrack. The Committee noted that the failure to keep proper records in any setting “puts the animals at risk and makes it significantly more challengeing to justify a treatment or procedure after the fact.” Those findings were open to the Committee to make.
[20] The Discipline Committee also rejected Dr. Van Arem’s evidence that his records were deficient because of problems with the record-keeping software. The Discipline Committee found that Dr. Van Arem’s records were missing key information that was required “to ensure continuity of care and the utmost safety for the horses.”
[21] In the end, the Discipline Committee found that “it was appropriate to impose a sanction that would make clear to the Members that their conduct was not appropriate, it should not be minimized, and that it could have had negative consequences for the animals in their care.”
[22] The Discipline Committee concluded that a brief suspension (coupled with the other remedial terms) was necessary to deter Dr. Van Arem and other members of the College from engaging in similar misconduct in the future. That finding was open to the Discipline Committee and the penalty imposed was fit.
[23] Counsel for Dr. Van Arem made two new arguments during the hearing of this appeal. First, he argued that even if the one-month suspension was not disproportionate, the requirement that he serve the suspension during the racing season was disproportionately punitive. Second, he argued that it was procedurally unfair for the Discipline Committee to dictate when the suspension was to be served without giving Dr. Van Arem notice that they were considering such a condition.
[24] We are not prepared to consider these new arguments. They were not in Dr. Van Arem’s Notice of Appeal. Nor were they developed in his factum. It would be unfair to allow Dr. Van Arem to raise new issues at the hearing without notice to the College. We appreciate that Dr. Van Arem changed counsel after his notice of appeal and factum were filed. However, if Dr. Van Arem wanted to advance a new argument after he retained new counsel, it was incumbent on him to file an amended Notice of Appeal and seek leave to file an amended factum so the College would have an opportunity to fully respond to his new arguments.
C. Costs Appeal
[25] Dr. Van Arem and Dr. Vatcher advance two arguments on their appeal from the costs order. First, they argue the Discipline Committee failed to properly account for their offers to settle. Second, they argue the Discipline Committee did not give sufficient weight to the fact that most of the hearing time was devoted to the allegation of illegal doping, which the College did not prove.
[26] The Discipline Committee had broad discretion to order costs. In the context of a regulated profession, requiring a member who has been found to engage in professional misconduct to pay costs protects the other members of the profession bearing the expense of the prosecution: Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, at para. 24. This Court will not interfere with the costs decision unless the Committee made an error in principle or was plainly wrong: Kennedy v. College of Veterinarians, 2018 ONSC 3603 (Div. Ct.), at para. 24.
[27] We see no error in principle in the costs decision.
[28] The Discipline Committee considered the offers and admissions made by Dr. Van Arem and Dr. Vatcher. The Committee acknowledged that Dr. Van Arem and Dr. Vatcher admitted they engaged in professional misconduct. The Committee found that a full hearing was nonetheless required because Dr. Van Arem and Dr. Vatcher were not prepared to admit the facts underlying the misconduct allegation. This finding was open to the Discipline Committee.
[29] While Dr. Van Arem and Dr. Vatcher made offers to settle that involved longer suspensions than they received, they never agreed to facts that would support the findings of professional misconduct. It is, therefore, not reasonable to characterize their offers as “better” than what the Discipline Committee found.
[30] We also see no error in how the Discipline Committee apportioned the costs in relation to the issues on which the College was successful and those on which it was not successful. The College’s costs were $181,342.88. The College sought roughly $60,000 from Dr. Van Arem and roughtly $48,000 from Dr. Vatcher. The College argued that Dr. Vatcher should pay less in costs because he successfully defended the allegation of administering a drug from an unknown or unreliable source.
[31] The Discipline Committee determined that approximately half the hearing time was spent dealing with whether Dr. Vatcher administered the pre-race drug to the complainant’s horses. The Discipline Committee found that Dr. Van Arem and Dr. Vatcher should not be ordered to pay any costs for time spent on that allegation.
[32] The Discipline Committee then decided how to apportion the remaining half of the costs ($90,671.44). The Discipline Committee found that it was appropriate to order Dr. Van Arem and Dr. Vatcher to pay two-third of those costs (which came to $61,084.87). The Discpline Committee apportioned 40 per cent of those costs to Dr. Van Arem and 60 per cent to Dr. Vatcher because Dr. Vatcher was found guilty of two counts of professional misconduct and Dr. Van Arem was found guilty of only one count of professional misconduct.
[33] Dr. Van Arem and Dr. Vatcher take issue with the Committee’s finding that only half the hearing time was spent on the unproven allegations about Dr. Vatcher administering the drugs purchased by the complainant to his horses. They argue that the vast majority of the time at the hearing was devoted to those allegations and only a few hours of the five days were spent on the other issues.
[34] Dr. Van Arem and Dr. Vatcher filed an affidavit from Dr. Vatcher which purports to break down the amount of time spent by each witness on issues related to the adequacy of the their medical records and whether Dr. Vatcher disclosed his professional fees to his clients. The College objects to the admissibility of the affidavit.
[35] Dr. Van Arem and Dr. Vatcher did not file a motion for leave to adduce fresh evidence. Nor did they address the admissibility of the affidavit in their factum. This Court will only exercise its discretion to admit fresh evidence on a statutory appeal if the evidence (a) could not, through due diligence, have been adduced at the hearing below, (b) bears on a decisive or potentially decisive issue, (c) is credible, and (d) could reasonably be expected to have affected the result: R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775.
[36] We find that the affidavit is not admissible because it would not affect the outcome of the appeal.
[37] The Discipline Committee’s findings about how much time was devoted to each issue is precisely the sort of finding that is to be afforded significant deference on appeal. The Discipline Committee heard the evidence and the submissions of counsel. The Discipline Committee is in the best position to characterize the focus of the hearing. Even if the Discipline Committee’s estimate is not precisely accurate, that would not constitute an error in principle that would warrant appeallate intervention.
D. Conclusion and Costs
[38] Dr. Van Arem’s appeal from the penalty decision is dismissed. The costs appeal is also dismissed.
[39] The parties agreed on the issue of costs. Based on that agreement, Dr. Van Arem and Dr. Vatcher shall pay a total of $5,000 inclusive of HST and disbursements to the College of Veterinarians of Ontario.
___________________________ Lococo J.
Davies J.
Jensen J.
Date: December 18, 2024
CITATION: Van Arem v. College of Veterinarians of Ontario, 2024 ONSC 7072
DIVISIONAL COURT FILE NO.: 633/23
DATE: 20241218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Lococo, Davies, Jensen JJ.
BETWEEN:
Dr. Brian Van Arem and Dr. Peter Vatcher
Appellants
– and –
College of Veterinarians of Ontario
Respondent
REASONS FOR JUDGMENT
BY THE COURT
Date: December 18, 2024
[^1]: In its factum, the College took the position that this appeal should be heard in the Central West Region, not the Toronto Region. An appeal to the Divisional Court must be heard in the region where the hearing below took place unless the parties agree otherwise or the Chief Justice of the Superior Court of Justice orders otherwise: Courts of Justice Act, R.S.O. 1990 c. C.43, s. 20. The College is located in Guelph, Ontario, which is in the Court’s Central West Region. However, the hearing below was held virtually. We did not need to decide where the hearing below took place because at the start of the hearing, the College consented to the matter being heard in Toronto.