CITATION: Dhaliwal v. College of Veterinarians of Ontario, 2025 ONSC 1931 DIVISIONAL COURT FILE NOS.: DC-23-65; DC-23-77; and DC-24-17

DATE: 20250319

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BEFORE: Heeney, D.L. Corbett and Sheard JJ.

BETWEEN:

Dr. Tej Daliwal

Appellant

– and –

College of Veterinarians of Ontario

Respondent

COUNSEL:

E.J. Guiste, for the Appellant

G. Campisi and D. Forster for the Respondent

HEARD at Brampton: October 7, 2024

HEENEY and SHEARD JJ.:

OVERVIEW

[1] Dr. Tej Dhaliwal appeals from decisions of the Discipline Committee (the “DC”) of the College of Veterinarians of Ontario (the “College”) involving three separate complaints. On each complaint, the DC held that Dr. Dhaliwal had engaged in professional misconduct and sanctions were imposed upon him. Dr. Dhaliwal appeals all six decisions.

[2] The appeals are identified by the name of the pet owner who lodged the complaint:

1. The “Henderson” appeal: DC-23-0065;

2. The “Patriki” appeal: DC-23-0077; and,

3. The “Mehrotra” appeal: DC-24-0017.

Interim Suspension Order

[3] By July 28, 2023, the DC had found Dr. Dhaliwal guilty of professional misconduct in respect of all three complaints and the College brought a motion in writing before the DC for an interim order either suspending or restricting Dr. Dhaliwal’s licence to practise veterinary medicine, pending the release of a determination on penalty on the Mehrotra proceeding (Ct. File No. DC-23-53).

[4] On August 14, 2023, an interim suspension order was made, suspending Dr. Dhaliwal’s licence to practice veterinary medicine (the “Interim Suspension Order”).

[5] Dr. Dhaliwal bought an application to judicially review the Interim Suspension Order and on December 11, 2023, on consent, the Interim Suspension Order was set aside on terms.

[6] On February 20, 2024, the DC released its decision on penalty in the Mehrotra proceedings and on February 21, the College lifted the restrictions on Dr. Dhaliwal’s licence, imposed as a term of the order setting aside the Interim Suspension Order.

Disposition

[7] For the reasons that follow, all appeals are dismissed in their entirety.

The Henderson Appeal

The Complaint

[8] In April 2017, Mary Henderson’s chihuahua, Coco, injured her front paw. Her veterinarian, Dr. Saini, referred her to Dr. Dhaliwal, who operated on Coco. Following surgery, the condition of Coco’s paw deteriorated and was later amputated.

[9] In May 2018, Ms. Henderson made a complaint to the College. The complaint was investigated and on March 6, 2019, the Complaints Committee (the “CC”) decided to retain an independent expert. On February 26, 2020, the CC decided to obtain a prosecutorial viability opinion from College counsel. On May 14, 2020, the CC referred the allegations to the DC and a Notice of Hearing was issued by the Registrar of the College on May 29, 2020.

The Allegations before the DC

[10] The Notice of Hearing alleged that Dr. Dhaliwal engaged in professional misconduct in that he:

a. failed to properly inform Ms. Henderson of his credentials and/or ought to have ensured that Dr. Saini properly and accurately informed Ms. Henderson of his credentials;

b. failed to obtain Ms. Henderson’s informed consent to surgery;

c. performed bone plating surgery which was not appropriate in Coco’s case; and,

d. failed to make or maintain proper records.

[11] A three-day hearing was conducted in June 2022. On February 28, 2023, the DC released its Decision and Reasons for Decision (the “Henderson Merits Decision”) in which it found that Dr. Dhaliwal had engaged in professional misconduct as alleged in the Notice of Hearing.

[12] The DC released its Decision and Reasons on Penalty and Costs on October 24, 2023 (the “Henderson Penalty Decision”) in which it:

(a) ordered Dr. Dhaliwal to appear before the DC to receive a reprimand;

(b) suspended Dr. Dhaliwal’s licence to practice veterinary medicine for six months and imposed terms, conditions, and limitations (“TCLs”) on his licence; and

(c) ordered Dr. Dhaliwal to pay costs to the College of $196,896.53, payable over 60 months.

Grounds of Appeal

[13] The main grounds of Dr. Dhaliwal’s appeal are that the DC erred in law:

(1) when it refused to grant his motion to dismiss the discipline proceeding on the basis of abuse of process by reason of delay;

(2) when it failed to dismiss the proceeding on the basis that the statutory provisions under ss. 24(1) and 24(3) of the Veterinarians Act had not been followed;

(3) when it allowed the College’s expert to give evidence at the discipline hearing;

(4) when it granted the Interim Suspension Order, more than six years after the occurrence(s); and

(5) when it imposed a penalty that was clearly unfit and, in particular, allowed the College to adduce evidence of prior complaints, which had not resulted in referrals to the DC.

Dr. Dhaliwal’s motion to dismiss

(i) Delay

[14] The DC dismissed Dr. Dhaliwal’s motion to dismiss the proceeding finding that: 1) there had been no unreasonable nor inordinate delay; 2) even if it had been persuaded that there had been delay, Dr. Dhaliwal suffered no prejudice as a result; and 3) in any event, a stay of proceedings would not be warranted.

(ii) Non-Compliance with the Veterinarians Act

[15] Dr. Dhaliwal also asserted that there had not been compliance with ss. 24 and 25 of the Veterinarians Act (the “Act”). The DC reviewed the procedures followed by the College and concluded that there was no merit to this allegation.

Admission of Expert’s Report and Testimony

[16] At the hearing, Dr. Dhaliwal objected to the DC receiving evidence from the College’s expert, Dr. Morrison. Dr. Morrison had prepared a first expert report in which he opined that he was unsure whether Dr. Dhaliwal had fallen below the standard of care. He was then asked to provide a second report, in which he was told to assume that the evidence of Ms. Henderson was true. In his second report, Dr. Morrison opined that if Ms. Henderson’s version of events was accepted by the DC, it was his opinion that Dr. Dhaliwal had engaged in professional misconduct.

[17] Dr. Dhaliwal objected to the DC admitting Dr. Morrison’s evidence on the grounds that he had produced conflicting reports and that in his second report, he was told to assume that the Ms. Henderson’s evidence would be accepted.

[18] The DC dismissed Dr. Dhaliwal’s objections and permitted Dr. Morrison to testify. The DC concluded that Dr. Dhaliwal’s objections may have related to the “credibility and persuasiveness of Dr. Morrison’s evidence, but not to its admissibility”.

Evidence at the Hearing

[19] Ms. Henderson, two treating veterinarians (Dr. George Wright and Dr. Bos), Dr. Dhaliwal, and Dr. Morrison testified at the hearing.

(a) Mary Henderson

[20] Ms. Henderson testified that she understood Dr. Dhaliwal to be a “Board-certified” surgeon (which, he acknowledged, was inaccurate) and that although she had signed a consent form that stated that she understood “the risks that may be involved” in the surgery, she had not been told of the risks.

(b) Dr. George Wright

[21] Dr. Wright treated Coco pre- and post-surgery. Dr. Wright noted that there appeared to be several additions to Coco’s medical records provided to the College in September 2018, as compared to the records provided to Ms. Henderson in October 2017.

(c) Dr. Alexandria Bos

[22] Dr. Bos, a Board-certified veterinary surgeon, surgically removed the plates and screws placed in Coco’s paw by Dr. Dhaliwal. Dr. Bos testified that the bone plating procedure performed by Dr. Dhaliwal was not appropriate for a dog of Coco’s size and presentation.

[23] Dr. Bos also testified to the need for “clear client communication” and that it was duty of the mobile surgeon (i.e., Dr. Dhaliwal) to address complications and follow up on the animal post-surgery.

(d) Dr. Dhaliwal

[24] In his testimony, Dr. Dhaliwal conceded that he did not speak with Ms. Henderson prior to Coco’s surgery and also acknowledged that his records were deficient. He testified that he understood that Dr. Saini, the referring veterinarian, would be responsible for post-operative follow-up with the pet and her owner. He also denied that he had told Dr. Saini to describe him as a “Board-certified” surgeon.

(e) Additional evidence

[25] At the hearing, the DC received evidence that Dr. Dhaliwal had been the subject of two earlier complaints, which had not been referred to the DC. In a decision released May 2016, the CC advised Dr. Dhaliwal that he ought to ensure that his qualifications are clearly specified on his client consent forms. In a decision relating to surgery performed in January 2017, the CC again advised Dr. Dhaliwal that he had a professional obligation to ensure that his clients understood that he was not a Board-certified surgeon. He was also advised that he was responsible for ensuring that clients provide fully informed consent for surgery.

(f) Dr. Cameron Morrison

[26] Dr. Morrison was called to give expert evidence respecting: 1) Dr. Dhaliwal’s decision to perform plating surgery on Coco; 2) the issue of informed consent, and 3) record keeping.

[27] In his first report, Dr. Morrison concluded that “if all facts are accurate…the minimum standards of practice” had been met. His opinion had been limited by lack of information in that some of the evidence available to him was “either unclear or not properly recorded in the patient record, but he gave Dr. Dhaliwal the benefit of the doubt.” He confirmed that his opinion would be affected if, in fact, Ms. Henderson had been told that Dr. Dhaliwal was a Board-certified surgeon and if she had not been informed prior to surgery of Coco’s “tissue compromise”.

[28] Dr. Morrison was asked to provide a second report in which he was asked to assume that Ms. Henderson’s versions of the events would be accepted by the DC. Using those assumptions, Dr. Morrison concluded that both Dr. Saini and Dr. Dhaliwal had failed to meet regulatory requirements and minimum standards of care and that it was not clear that Ms. Henderson had given informed consent to the surgery.

Henderson Merits Decision

[29] The DC concluded that Dr. Dhaliwal had engaged in professional misconduct in that:

1. he failed to obtain informed consent from or to communicate his credentials to Ms. Henderson;

2. he proceeded with surgery despite the condition of Coco’s paw, thereby falling below the standards of the profession; and

3. “he failed to maintain proper records of his interaction and treatment of Coco” (at para 83).

Henderson Penalty Decision

[30] On September 15, 2023, the DC heard oral submissions on penalty. At the time, Dr. Dhaliwal had been suspended since August 14, 2023, pursuant to the Interim Suspension Order.

[31] The DC noted that this case was one of three recent cases involving allegations of misconduct against Dr. Dhaliwal and that in the companion cases, a separate panel of the DC had made findings of professional misconduct against him, with penalties yet to be determined.

[32] The College sought a reprimand, a five-month suspension, and the imposition of TCLs.

[33] Dr. Dhaliwal opposed the imposition of a suspension, arguing that the TCLs would allow him to update his skills and competence in the areas of concern. He also argued that he should be considered a “first time offender” in that this was his first time before the DC on issues related to record-keeping, informed consent, and practice.

[34] Dr. Dhaliwal also argued that despite the findings made against him, he had an honest belief that his practice for obtaining consent was appropriate and in keeping with the standards. He also asked the DC to consider that Dr. Saini, who had also been involved in Coco’s care, had not been brought before the DC.

[35] The Henderson Penalty Decision (at paras. 23-31) sets out the following reasons for penalty:

(1) Dr. Dhaliwal’s “continued unwillingness to take responsibility for his actions” and seeking to “deflect blame for his failures on Dr. Saini and the College”;

(2) Dr. Dhaliwal had “been warned repeatedly about the importance of record keeping, informed consent, and accurate communications with clients”, referring to his “lengthy complaints history” and his having been “provided with specific guidance”, which he appeared to have “simply ignored”;

(3) the penalty was appropriate in that it provided specific deterrence to Dr. Dhaliwal and general deterrence to members of the profession; it helped to maintain public confidence in the College, which showed that it took the misconduct seriously; and it provided Dr. Dhaliwal with education and tools for remediation; and

(4) the six-month suspension was required because of Dr. Dhaliwal’s “disregard for prior advice” and “extensive, relevant complaints history”, which it considered to be a “serious aggravating factor”.

[36] At paras. 32-44, the DC explains its decision on costs.

[37] The College sought costs of $196,896.53, representing approximately two-thirds of its actual costs and expenses of the pre-hearing motions and the hearing itself.

[38] The DC considered that the College had been successful throughout the proceedings and that the “nature, quality and conduct of the defence significantly and unduly increased the costs of the proceeding” and that Dr. Dhaliwal, through his counsel, “took an extraordinary amount of time to cross-examine the College’s witnesses and to present” Dr. Dhaliwal’s evidence. The DC concluded that the membership at large should not bear the entire burden of the costs of the proceeding.

[39] Dr. Dhaliwal submitted that the quantum of costs was “nothing short of punitive”, relying on Jinnah v Albert Dental Association and College, 2022 ABCA 336 (“Jinnah”). The DC considered Jinnah but found that it was inconsistent with decisions in Ontario such as Walia v. College of Veterinarians of Ontario, 2018 ONSC 6189, and Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 (“Reid”).

Standard of Review

[40] On these appeals, the standard of review is set out in Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171 (“Mitelman”), at para.19:

[19] The appeal of the decisions of the DC is being brought as of right under s. 35 of the Veterinarians Act. The appellate standards of review apply to the DC’s decisions [Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para 37 [Vavilov], citing Housen v Nikolaisen, 2002 SCC 33, at paras. 10, 19, 26-37]. The appellate standard of review is palpable and overriding error with respect to findings of fact. This accords a high level of deference. 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.” Findings of mixed fact and law where the legal principle is not readily extricable are also entitled to deference and are reviewed on the palpable and overriding error standard. Questions of mixed fact and law involve the application of a legal standard to a set of facts. Where an appeal raises issues of law, the issues are reviewed on a correctness basis Vavilov, at para [37].

[41] Issues related to the DC’s assessment of evidence are questions of fact and therefore attract the palpable and overriding error standard: Mitelman, at para. 20 citing Gale v College of Physicians and Surgeons of Ontario, 2015 ONSC 1981, at paras. 8-9.

[42] With respect to the DC’s decision on penalty and costs, in the absence of any identifiable or extricable errors of law, the deferential standard of palpable and overriding error applies: Mitelman, at para. 20.

Issues to be decided on the Henderson Appeal:

(1) Did the DC err in dismissing Dr. Dhaliwal’s Abuse of Process Motion?

(2) Did the DC err in its decision concerning the admissibility of the expert evidence?

(3) Did the DC err in its decision respecting the Interim Suspension motion? and,

(4) Did the DC err in its decision on penalty and costs?

ANALYSIS

Issue 1: Did the DC err in dismissing the motion to dismiss the Complaint on the basis of abuse of process?

[43] The first issue raised by the appellant alleges that the DC erred in rejecting the appellant’s motion to dismiss the complaints for abuse of process. This issue is common to all three appeals.

[44] The alleged abuse of process relates to two separate allegations:

1. That the referral of the complaints by the CC to the DC failed to comply with ss. 24 and 25 of the Veterinarians Act; and,

2. That there was inordinate delay in the proceedings.

[45] We will deal with these issues in the order listed. While the underlying facts are somewhat different from one appeal to the next, the legal issues that arise are the same. Accordingly, while we will be considering the Henderson matter, specifically, as the first issue regarding statutory compliance is analyzed, our conclusions on that issue will apply equally to all three appeals. When we consider the second issue, regarding inordinate delay, we will first discuss it in the context of the Henderson appeal but will also separately review the relevant facts in the other two cases when we deal with them in our reasons.

1. Failure to comply with ss. 24 and 25 of the Veterinarians Act:

[46] The relevant parts of ss. 24 and 25 read as follows:

24 (1) The Complaints Committee shall consider and investigate complaints made by members of the public or members of the College regarding the conduct of a member or former member of the College, but no action shall be taken by the Committee under subsection (2) unless,

(a) a written complaint has been filed with the Registrar and the member or former member whose conduct is being investigated has been notified of the complaint and given at least two weeks in which to submit in writing to the Committee any explanations or representations the member or former member may wish to make concerning the matter; and

(b) the Committee has examined or has made every reasonable effort to examine all records and other documents relating to the complaint.

(2) The Complaints Committee in accordance with the information it receives may,

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

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

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

(3) The Complaints Committee shall give its decision in writing to the Registrar and, where the decision is made under clause (2) (b) or (c), its reasons therefor.

25 (1) Where the Complaints Committee has made a disposition of a complaint respecting a member or former member of the College under section 24, the Registrar shall send to the member or former member and to the complainant, by mail, by registered mail or by courier service, a copy of the written decision made by the Committee including reasons therefor, if any, together with notice advising of the right of review under subsection (2).

[47] The first argument made by the appellant relates to s. 24(1)(a), which requires, at the outset of the complaints process, that “a written complaint has been filed with the Registrar”. The record reflects that the initial complaint was received by Rose Robinson, who is the Principal, Investigations and Resolutions, at the College, who proceeded to open a complaints file, assign a file number, send a copy of the complaint to the appellant, and initiate an investigation of the complaint, all of which was done consistent with the provisions of the Veterinarians Act (the “Act”). The appellant argues, in effect, that in order to comply with the Act, the complaint must be received directly by the Registrar, personally.

[48] The DC, at para. 59 of its decision of February 28, 2023 in the Henderson matter, summarily dismissed this argument, in the following terms:

The uncontradicted and uncontroversial evidence before this Panel (which was the same affidavit evidence before the preliminary motions panel) was that Rose Robinson, a senior staff member with the College during the relevant time period, received Ms. Henderson's written complaint. It was Ms. Robinson's job, among other things, to receive complaints on behalf of the College's Registrar. The Panel is satisfied that there was no irregularity in the way Ms. Henderson’s complaint was filed. The Member’s argument on this point is simply without merit.

[49] There was ample evidence before the DC to support a finding that Ms. Robinson performed an intake function, and, as part of her job, was authorized to receive complaints on behalf of the Registar. We have been directed to no palpable and overriding error that led to the DC’s conclusion. We agree with the DC that there is no merit to this argument.

[50] The second argument, and the one which was the focus of most of the submissions on this appeal, relates to the requirement, in s. 25(1), that “a copy of the written decision made by the Committee including reasons therefor, if any” be sent to the appellant and the complainant. It is submitted by the appellant that the only thing that was sent by Ms. Robinson was a letter to him and to the complainant, notifying them that the CC had decided to refer the matter to a hearing. Nothing amounting to a decision of the CC, showing the specific allegations which they referred to the DC, was ever sent to the appellant.

[51] The letter sent by Ms. Robinson is Exhibit “R” to her affidavit of February 18, 2021. It is dated May 15, 2020, is addressed to the appellant, and includes the following statement: “I am writing to advise you that the Committee has decided to refer allegations of professional misconduct against you to the Discipline Committee of the College for a formal hearing.” It goes on to state “In the near future, you will receive an official Notice of Hearing.”

[52] The record confirms that the appellant did, indeed, receive the Notice of Hearing shortly thereafter, which contained particulars of all of the allegations of professional misconduct that he would be responding to.

[53] He also received a copy of the Minutes of the meeting of the CC of May 14, 2020, where it decided to refer the matter to the DC. It is Exhibit “U” to the same affidavit. It states that the following motion was moved, seconded and carried:

THAT THE COMPLAINTS COMMITTEE PANEL DISPOSES OF THE MATTER IN ACCORDANCE WITH PARAGRAPH 24(2)(A) OF THE VETERINARIANS ACT, R.S.O. 1990, CHAPTER V.3, BY REFERRING SPECIFIED ALLEGATIONS OF PROFESSIONAL MISCONDUCT AGAINST DR. TEJ DHALIWAL, THAT WERE DRAFTED FOR THE PANEL’S CONSIDERATION, TO THE DISCIPLINE COMMITTEE FOR A HEARING.

[54] Since the decision of the CC was to refer the matter under s. 24(2)(a) to the DC for a hearing, no reasons were given by the CC to the Registar, nor sent to the appellant. This is in accord with s. 24(3), which requires reasons only were a decision is made under ss. 24(2)(b) or (c).

[55] The appellant sought production of the allegations drafted by the committee’s counsel, but that was refused on the basis of solicitor/client privilege. A production motion, brought before the DC, was dismissed.

[56] The appellant argues that the decision of the CC must refer to specific allegations. He relies on a text by Richard Steinhecke, entitled A Complete Guide to the RHPA, at 6-3 and 6-4, where the author says the following:

The ICRC must refer "specified allegations". This phrase has been interpreted by the courts to mean that a committee cannot merely refer a person to discipline. There must be some description of the conduct being referred, with the scope of the discipline hearing confined to those allegations actually of concern to the referring committee. This rule prevents the prosecutor from adding new allegations without the concurrence of the statutory committee that made the referral.

[57] However, Steinhecke also referred to a two-stage referral, where the first stage is a decision to refer “in principle”, followed by the later formulation of specific allegations:

Many committees make referrals in two stages. The first stage is a decision to refer in principle. The matter is then sent to prosecuting counsel to prepare a statement of allegations. At the second stage, the statement of allegations is approved by the Committee as the "specified allegations" in the motion which formally refers the matter to the Discipline Committee. While this procedure is more than is required by law, it does ensure that the specified allegations are suitable for prosecution, and it does reduce the chances of the allegations being dismissed because of some technical error or omission. This two-step procedure also permits the reconsideration of the matter by the ICRC since it is probably not functus, or finished, with the matter until it signs of on the formal motion referring specified allegations.

[58] In Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034 (Div. Ct.), the Divisional Court considered whether the College had jurisdiction to hold a discipline hearing in the absence of a referral by the College’s Inquiries, Complaints and Reports Committee (the “ICRC”) of a “specific allegation”. The court held that it did.

[59] In that case, as in the one before this court, the appellant argued that the ICRC (which is the functional equivalent of the CC in the case at bar) could not broadly indicate that they were referring a complaint to the Discipline Committee, but instead had to specify the matter being referred. Based on the evidence, the court held that the ICRC did refer specified allegations of professional misconduct, but did so by the two-step process described by Steinhecke, above. The Panel first decided to refer the matter to the Discipline Committee, “in principle”, and then instructed College counsel to draft specified allegations. These were circulated to members of the panel for consideration, and the draft allegations, or a variation of them, were then referred to the Discipline Committee for consideration.

[60] As in the case at bar, the appellant in Berge also sought production of the documents leading to the final referral, and it was refused on the basis of deliberative privilege. While that decision was not appealed, the Divisional Court nevertheless recognized, at para. 138, the need for this form of privilege:

The Tribunal’s approach recognizes that the principle of deliberative privilege permits members of adjudicative committees, such as the ICRC and the Discipline Committee, to discuss, deliberate and vote on issues that come before them, without being concerned that their discussions or votes will later be disclosed. The ICRC Panel members expressed opinions and voted by email. This is protected by deliberative privilege (see Agnew and Ontario Association of Architects (1988), 1987 4030 (ON SC), 64 O.R. (2d) 8 (Ont. Div. Ct.) at paras 27-33; Ellis-Don Ltd. v. Ontario (Labour Relations Board) (1994), 1994 10531 (ON SC), 16 O.R. (3d) 698 (Ont. Div. Ct.) at paras. 10; Wilson v. College of Physicians & Surgeons (Ontario), [1981] O.J. No. 2472 (Ont. Div. Ct.) at para. 14).

[61] Berge was dealing with the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as opposed to the provisions of the Veterinarians Act at issue in the case at bar. Nevertheless, it stands for the principle that, despite the requirement of the Code that the ICRC “refer a specified allegation” to the Discipline Committee, it could do so by referring the matter “in principle”, with the specified allegations to follow later. That principle is applicable to the case at bar.

[62] Any doubt in that regard was answered in Walia v. College of Veterinarians of Ontario, 2018 ONSC 6189 (Div. Ct.), which dealt with the same legislation at issue in the case at bar. At para. 10, Thorburn J. (as she then was) followed Berge in approving the two-step referral process:

In this case, once the Complaints Committee had decided in principle to refer the allegations of professional misconduct to the Discipline Committee for a hearing, counsel for the College drafted the specific allegations for the Complaints Committee’s consideration. This process has been approved of by this Court in Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034 (Ont. Div. Ct.).

[63] Walia returned two years later before a full panel of the Divisional Court: Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057 (Div. Ct.). Dr. Walia’s complaint was that the original complaint against him raised only three issues, whereas the Notice of Hearing set out nineteen allegations against him. He argued that, had he been given an opportunity to respond to those nineteen allegations when the matter was before the CC, it would never have been referred to the DC. His motion before the Divisional Court included a request for an order that the CC give him a copy of the reasons for their decision to refer the complaint to the DC.

[64] While Dr. Walia’s motion was ultimately dismissed on procedural grounds, Favreau J., speaking for the court, commented on the merits as well. At para. 37, she minimized the importance of the initial referral as but “one step” in the discipline process:

In any event, the referral of the complaint from the Complaints Committee to the Discipline Committee is one step in the discipline process. Once the matter was referred to the Discipline Committee, Dr. Walia had a full opportunity to defend against the allegations made against him. Any defects in the referral were cured by the hearing. If the allegations against Dr. Walia were unfounded, he had an opportunity to defend against them.

[65] At paras. 42 and 43, Favreau J. pointed out that there was no requirement that the CC give its decision in writing, and the Notice of Hearing sufficed to put Dr. Walia on notice of the case he had to meet:

Section 24(3) goes on to state that the Complaints Committee must give its decision in writing under 24(2)(b) and (c), but there is no such requirement when the complaint is referred to the Discipline Committee.

In this case, as indicated above, the Notice of Hearing set out the allegations of professional misconduct against Dr. Walia. He knew what allegations he had to respond to for the hearing and had a full opportunity to defend against those allegations.

[66] Those comments apply equally to the case at bar.

[67] The letter sent by Ms. Robinson did, in fact, notify the appellant of the decision of the CC, as required by s. 25(1). The CC, as reflected in the Minutes, decided to refer “specified allegations of professional misconduct” to the DC. It did not elaborate on what those allegations were, other than making reference to a draft that had been prepared by counsel, which it is not required to disclose. Clearly, this was a referral “in principle”, which is permissible on the authority of Berge. This was later followed by detailed allegations, all of which were set out in the Notice of Hearing, which was sent to the appellant shortly afterward. This put the appellant fully on notice of the case he had to meet. There is no evidence that he was prejudiced in his defence by reason of the fact that those particulars were not included in the first letter from Ms. Robinson. He had a full opportunity to defend against those allegations at the hearing, and did so.

[68] This ground of appeal is dismissed.

2. Inordinate delay:

[69] The other aspect of the abuse of process claim is the allegation that there was inordinate delay in the proceedings.

[70] The DC, in its decision of February 28, 2023 in the Henderson matter, considered this issue, at paras. 47 – 57. It began by citing Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 72, to establish the applicable test:

The test for whether delay amounts to an abuse of process has three steps. First, the delay must be inordinate. This is determined on an assessment of the context overall. Second, the delay must have caused significant prejudice. When these two requirements are met, the court or tribunal is to conduct a final assessment as to whether abuse of process is established. This will be so when the delay is manifestly unfair to the party to the proceedings or in some other way brings the administration of justice into disrepute: Behn , at paras. 40-41.

[71] The DC then did a detailed review of the chronology of the case. The matter first came to the College’s attention in May, 2018, and was referred by the CC to the DC in May, 2020. During that intervening two-year period, information and records were collected from the appellant and Dr. Saini and others, and there was extensive back and forth with their expert, Dr. Morrison. The DC concluded that, in light of the number of professionals involved, it was reasonable for the investigation to take approximately 2 years to complete.

[72] Following delivery of the Notice of Hearing in May, 2020, the parties attended their first prehearing conference on November 24, 2020. The meeting went forward notwithstanding the attempt by the appellant’s counsel to challenge the participation of the prehearing chair. A timetable was established for a number of preliminary motions that the appellant proposed to bring. However, he did not abide by that timetable, necessitating a further prehearing, and the imposition of a revised timetable. The first two preliminary motions brought by the appellant were dismissed on April 27, 2021.

[73] The appellant’s third preliminary motion was not heard until September 30, 2021, due to a request for an extension by the appellant. It was dismissed on October 8, 2021.

[74] Next, independent legal counsel asked counsel for the appellant and the College for proposed dates for the hearing of the matter. Counsel for the appellant did not respond, despite four separate communications between October 12, 2021 and January 25, 2022. Ultimately, hearing dates were set for June 9, 10 and 22, 2022.

[75] The DC was satisfied that there was no undue delay in scheduling the matter for hearing. On the contrary, the parties were quickly engaged in a prehearing, and the appellant’s three preliminary motions were accommodated, along with commencement of the hearing itself, within a 2.5 year period.

[76] During the hearing, counsel for the appellant took a number of steps that lengthened the examination of many of the witnesses, and delayed arguments until December, 2022. Counsel also sought lengthy breaks to prepare for cross-examinations or address an objection.

[77] In all of the circumstances, the DC was not convinced that there was any inordinate delay in prosecuting the matter. To the extent that there was delay, it was as a result of the appellant’s decision to bring three preliminary motions, and his counsel’s failure to provide hearing dates in a timely manner.

[78] While that was sufficient to dispose of the abuse of process motion, the DC went on to address the issues of prejudice and conduct a final assessment as to whether abuse of process had been established. It continued as follows, at paras. 55 and 56:

Even if we were convinced that there was inordinate delay in these circumstances, the Panel is not convinced that there has been any prejudice to the Member. Dr. Dhaliwal has continued, uninhibited to practice veterinary medicine. There is no evidence that he suffered any financial prejudice as a result of the time it has taken to prosecute this matter and to the extent that the prosecution has caused him stress, there is no evidence that the stress is anything other than the stress any regulated professional would feel as a result of having to participate in a discipline process.

Finally, even if we were satisfied that Dr. Dhaliwal has suffered from prejudice caused by the delay in prosecuting this matter, we are not satisfied that a stay of proceedings would be warranted. A stay of proceedings would mean that the allegations now before us would not be dealt with and that there will be no final determination of the issues. It is not in the public interest for there to be no finality regarding these allegations.

[79] For those reasons, the DC concluded that no abuse of process had been established by the appellant. The question now to be determined is whether this court should interfere with that decision.

[80] In Abrametz (supra), the Supreme Court of Canada clarified the applicable standard of review in statutory appeals such as the one before this court. At paras. 29-30, Rowe J., speaking for the majority (Côté J. dissenting), said the following:

This case is a statutory appeal pursuant to The Legal Profession Act, 1990. Therefore, the standard of review is correctness for questions of law and palpable and overriding error for questions of fact and of mixed fact and law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43, at paras. 24-25.

Whether there has been an abuse of process is a question of law. Thus, the applicable standard of review is correctness.

[81] Rowe J. made it clear, at para. 47, that the court was not about to “Jordanize” the issue of delay in administrative proceedings, in response to strict timetables imposed on criminal proceedings by R. v. Jordan, 2016 SCC 27. Jordan flows from a Charter right to be tried within a reasonable time. No such right is at stake in administrative proceedings.

[82] The fact that a process took considerable time does not, in itself, amount to inordinate delay. Rather, one must consider the time in light of the circumstances of the case [para. 50]. Factors to be considered include (a) the nature and purpose of the proceedings, (b) the length and causes of the delay, and (c) the complexity of the facts and issues in the case [para. 51]. If a party caused the delay, it cannot amount to an abuse of process [para. 62]. If the applicant asked for a suspension of the proceedings, or acted in a way that unequivocally suggested that they acquiesced to a delay, it can constitute a waiver [para. 63].

[83] Prejudice is a question of fact [para. 69]. On an appellate review of a hearing committee’s decision on an abuse of process claim, deference should be accorded as to its findings of fact and mixed fact and law [para. 106].

[84] Here, the DC correctly identified the proper legal test to be applied in determining whether an abuse of process had been established. We see no palpable and overriding error in its findings of fact as to the chronology of this prosecution, nor in its finding that the appellant suffered no prejudice as a result of the delay. In that regard, Abrametz makes it clear, at para. 68, that prejudice cannot result from the stress and other negative consequences that flow from the fact that disciplinary proceedings were undertaken, but must instead be caused or exacerbated by inordinate delay in those proceedings.

[85] We see no reason to interfere with the DC’s decision. This ground of appeal is dismissed, insofar as the Henderson appeal is concerned.

Issue 2: Did the DC err when it admitted the evidence of the College’s expert?

[86] The law relating to the admissibility of expert opinion evidence is well-settled. As set out in R. v. Mohan, 1994 80 (SCC), for expert evidence to be admissible, it must meet the threshold requirements of 1) relevance; 2) necessity in assisting the trier of fact; 3) there must not be an exclusionary rule preventing its admission; and (4) the evidence must be given by a properly qualified expert (“Mohan”).

[87] If the evidence meets the Mohan threshold, the decision maker must then balance the potential risks and benefits of admitting the evidence, as the second part of the exercise of its gatekeeping function: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 paras 22-24 ) (“White Burgess”).

[88] The appellant’s challenge to the admission of Dr. Morrison’s evidence is not that Dr. Morrison was not qualified to provide such evidence, but that Dr. Morrison had provided apparently conflicting reports, which, the DC correctly observed, spoke to “the credibility and persuasiveness of Dr. Morrison’s evidence, but not to its admissibility” (Henderson Merits Decision, at para. 42).

[89] It is well-settled that expert evidence is “generally required in order to establish the relevant standard of practice of the profession and is important evidence helpful to the adjudicator in making findings in relation thereto”: Hanif v. College of Veterinarians of Ontario, 2017 ONSC 497 (“Hanif”).

[90] The DC was satisfied with Dr. Morrison’s explanation for the apparent conflict between his first and second report. It was for the DC to determine whether the College had established the facts upon which Dr. Morrison’s second report was based and to determine what weight, if any, to give to Dr. Morrison’s opinion.

[91] The DC set out its findings of fact and clearly explained the basis for its findings, some of which were based on the evidence given by Dr. Dhaliwal. The DC also noted that Dr. Morrison’s opinion as to the standard of care was consistent with the evidence of Dr. Bos, who treated Coco.

[92] We find that Dr. Morrison’s opinion that Dr. Dhaliwal had engaged in professional misconduct was supported by the evidence presented at the hearing and that Dr. Dhaliwal has not identified any palpable or overriding error in the DC’s findings of fact.

[93] On this ground of appeal, we find no error or basis to interfere with the DC’s decision.

Issue 3: Did the DC err when it entertained the College’s motion for an interim suspension, which was issued on August 14, 2023, more than six years after the occurrence?

[94] As noted, the Interim Suspension Order was made in a separate proceeding by a different panel of the DC and prevented Dr. Dhaliwal from performing surgeries for a period of approximately six months: August 14, 2023, to December 11, 2023.

[95] In the Henderson Penalty Decision, released on October 24, 2023, Dr. Dhaliwal’s licence was suspended for a period of six months, to be served concurrently with the interim suspension already in place. As the suspension imposed by the Interim Suspension Order was credited toward the six-month suspension order imposed in the Henderson Penalty Decision, with which we do not interfere, we conclude that this ground of appeal is moot.

[96] In any event, we accept the College’s submissions that it was within the jurisdiction of the DC to make the Interim Suspension Order and, given the findings made in three separate discipline proceedings, there was a factual basis for imposing the interim suspension: Statutory Powers Procedure Act, RSO, 1990, c. S.33, s.16.1; Dua v College of Veterinarians of Ontario, 2021 ONSC 6917 (“Dua”).

[97] This ground of appeal is dismissed.

Issue 4: Did the DC err by imposing a penalty that was clearly unfit?

[98] Dr. Dhaliwal does not take issue with the TCLs imposed upon his licence but asserts that the six-month suspension of his right to practice veterinary medicine was clearly unfit and unreasonable and that the costs of $196,896.53 he was ordered to pay the College were “unreasonably excessive”.

[99] Specifically, Dr. Dhaliwal submits that the DC erred:

(1) by considering evidence of prior complaints that had not been referred to the DC;

(2) in the penalty imposed, given that no disciplinary proceedings were brought against Dr. Saini;

(3) when it failed to give him credit for his suspension under the Interim Suspension Order; and,

(4) when it “rubber-stamped” the “excessive” costs requested by the College.

The Law on Penalty

[100] A determination of penalty is “at the heart of the discretion of an administrative tribunal and a penalty decision is owed great deference”: Reid, at para. 98; Mitelman v College of Veterinarians of Ontario, 2020 ONSC 6171, at para. 34.

[101] Deference is owed also because these tribunals are 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”: CPSO v Peirovy, 2018 ONCA 420, at para. 73.

[102] In addition, the tribunal has the benefit of hearing from the witnesses, which gives it a “more comprehensive understanding of the evidence” and because determining the proper penalty “is a question of mixed fact and law, which does not lend itself to the extrication of a pure question of law”: Peirovy, at para 75.

[103] To succeed in his assertion that the penalty imposed was “clearly unfit”, Dr. Dhaliwal must establish that the penalty was disproportionate or fell outside the range of penalties imposed “for similar offences in similar circumstances”: Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (“Jonathan Mitelman”), at para. 18.

Analysis: Penalty Imposed

[104] We find that the DC committed no error when it considered Dr. Dhaliwal’s “extensive complaints history”, leading to prior warnings from the CC about the importance of obtaining informed consent, record keeping, and the need to avoid inappropriate treatment: complaints similar to those made in the Henderson matter: Reid, at paras. 119-125; Mitelman, at para. 35; Dua, at para. 39.

[105] The DC provided clear and detailed reasons explaining how it exercised its discretion under s. 30 of the Act. It considered the applicable penalty objectives of: 1) specific and general deterrence; 2) ensuring public confidence in the College; and 3) providing Dr. Dhaliwal with “the education and tools to address his conduct and facilitate remediation”.

[106] We see no basis for Dr. Dhaliwal’s assertion that the DC “rubber-stamped” the College’s request for costs. The Henderson Penalty Decision contains 13 paragraphs respecting costs, that demonstrate that it had considered Dr. Dhaliwal’s submissions.

[107] In awarding costs equal to two-thirds of the College’s actual costs and expenses, the DC followed Ontario jurisprudence, citing as examples, Walia v College of Veterinarians of Ontario, 2018 ONSC 6189 (“Walia”) and Reid v College of Chiropractors of Ontario, 2016 ONCA 779 (“Reid”).

[108] As we find neither an error in law nor any palpable and overriding error of fact in the Henderson Penalty Decision, which is owed considerable deference, we dismiss this ground of appeal.

The Patriki Appeal

The Complaint

[109] This disciplinary proceeding stems from a complaint made to the College by Nataliya Patriki. In August 2018, Ms. Patriki brought her Bernese Mountain dog, “DJ”, to her veterinarian due to lameness in DJ’s left hind leg. On October 1, 2018, following a referral, DJ was seen by Dr. Dhaliwal. Dr. Dhaliwal recommended surgery, which he performed later that day. DJ’s post-operative course was poor, and DJ ultimately died on October 16, 2018.

[110] The College received a letter of complaint from Ms. Patriki on October 20, 2018. Following its investigation, on November 19, 2019, the CC deferred the matter to have allegations drafted by the College’s legal counsel. On December 9, 2019, the CC referred the allegations to the DC and the Notice of Hearing was signed by the Registrar on December 13, 2019.

The Allegations before the DC

[111] The allegations against Dr. Dhaliwal are set out in the Notice of Hearing. It alleges that he engaged in professional misconduct with respect to his handling of DJ in that: 1) he failed to properly interpret pre-operative bloodwork and x-rays; 2) failed to discuss options other than surgery or to obtain the client’s informed consent to surgery; and 3) proceeded to operate on DJ despite identifying abnormal joint fluid and tissue.

[112] Following an eight-day hearing conducted between March 8 and December 6, 2022, the DC released its decision on the merits on March 15, 2023 (the “Patriki Merits Decision”). The DC concluded that Dr. Dhaliwal had engaged in professional misconduct, largely as alleged in the Notice of Hearing. The DC noted that the College’s evidence “appeared to be relatively uncontested by” Dr. Dhaliwal who agreed with the conclusion in Dr. Brajkovich’s report that “the progression of surgery was not a right decision to make”.

[113] On December 8, 2023, the DC released its Decision on Penalty and Costs (the “Patriki Penalty Decision”). It suspended Dr. Dhaliwal from practice for four months, to run concurrently with the Interim Suspension Order, if that order was then still in place. It also ordered Dr. Dhaliwal to receive an oral reprimand from the DC, and imposed TCLs on Dr. Dhaliwal’s licence.

Grounds of Appeal

[114] Dr. Dhaliwal asserts that the DC erred:

(a) when it dismissed his abuse of process/jurisdiction motion;

(b) when it qualified the College’s expert and admitted his report;

(c) when it issued the Interim Suspension Order; and

(d) by imposing a penalty that was clearly unfit.

Dr. Dhaliwal’s motions

[115] At the outset of the hearing, Dr. Dhaliwal advised that after the evidence was presented, he intended to bring a motion to dismiss the proceeding on the basis of: 1) abuse of process relating to the manner in which the matter come forward to the DC; 2) the inadmissibility of the evidence of the College’s expert; and 3) delay in adjudicating the matter.

[116] The DC rejected all three objections.

Admission of Expert’s Report and Testimony

[117] Dr. Dhaliwal sought to disqualify Dr. John Brajkovich, the College’s expert, alleging that he had a conflict of interest given his prior business association with Dr. Dhaliwal and his previous involvement as a member of the College’s DC.

[118] The DC found that Dr. Brajkovich was qualified to give expert evidence.

[119] The DC also rejected Dr. Dhaliwal’s criticisms that Dr. Brajkovich’s report did not cite authorities for his opinion, and that he was asked to assume certain facts. As to the former, the DC found that to be a question for consideration when determining what weight to place on the report. The DC found the latter criticism to be without merit, noting that it is common practice to ask an expert to assume certain facts.

Evidence at the Hearing

[120] Ms. Patriki, Dr. Dhaliwal, and Dr. Brajkovich testified at the hearing.

(a) Ms. Patriki

[121] Ms. Patriki testified that Dr. Dhaliwal did not provide her with test results prior to the surgery and indicated that DJ could have surgery. The DC found Ms. Partiki’s evidence to be credible and reliable.

(b) Dr. Dhaliwal

[122] The DC made credibility findings against Dr. Dhaliwal.

[123] It found his evidence concerning whether he had discussed DJ’s blood work with Ms. Patriki to be “vague” and concluded that he had not done so and, instead, “indicated to her that the surgery could go ahead without delay”.

[124] The DC rejected Dr. Dhaliwal’s evidence that the results of DJ’s blood work could have been attributable to an error in the machine, which was not supported by any evidence. Instead, the DC concluded that Dr. Dhaliwal failed to properly interpret the blood test.

[125] The DC also found that Dr. Dhaliwal’s contemporaneous notes contradicted what he said in response to the report submitted by the College’s expert, Dr. Brajkovich.

(c) Dr. Brajkovich

[126] The DC found Dr. Brajkovich to be a credible and reliable witness. Where his memory was imperfect, the DC “weighed his testimony with other evidence provided” (Merits, at para 15).

[127] Dr. Brajkovich opined that DJ’s blood work was abnormal and that Dr. Dhaliwal improperly interpreted DJ’s bloodwork, which indicated a significant disease process in DJ. He opined that a further work-up should have been undertaken before operating on DJ, and that as a result of these failings, Dr. Dhaliwal fell below the standard of practice. Specifically, Dr. Brajkovich opined that Dr. Dhaliwal should not have undertaken the surgery.

[128] The DC also expressed concern that Dr. Dhaliwal might repeat his error given that, in November 12, 2019, he had expressed regret over his decision to proceed with surgery whereas in his testimony at the hearing, he defended his decision.

Patriki Merits Decision

[129] In the Patriki Merits Decision, the DC concluded that the College had proven the allegations of professional misconduct alleged at paragraph 15 of the Notice of Hearing.

[130] The DC found that Dr. Dhaliwal had failed to obtain informed consent from Ms. Patriki and that he proceeded with surgery on DJ in the face of information obtained prior to and in the course of operating on DJ.

[131] The DC accepted Dr. Brajkovich’s evidence that Dr. Dhaliwal made a serious error in proceeding with the surgery, something which Dr. Dhaliwal had acknowledged in his note of November 12, 2019, in which he stated that he “knew from the beginning that something was not right…that he “took some measures to try to get a diagnosis but missed on important ones” (Patriki Merits Decision, at para. 131).

Decision and Reasons on Penalty and Costs

[132] A penalty hearing was conducted on October 17, 2023 and the DC issued its Decision and Reasons on Penalty and Costs on December 8, 2023 (the “Patriki Penalty Decision”).

[133] In the Patriki Penalty Decision, the DC ordered: 1) Dr. Dhaliwal to appear before the DC to receive an oral reprimand; 2) his licence be suspended for four months, to run concurrently with the Interim Suspension Order if still in place; 3) that TCLs be placed on his licence; and 4) that Dr. Dhaliwal pay costs to the College of $140,869.71, payable over 18 months, in 18 equal installments.

Issues to be decided on the Patriki Appeal:

Issue 1: Did the DC err in law in dismissing the motion to dismiss the Complaint on the basis of abuse of process?

[134] As noted above, this issue is comprised of two sub-issues: the allegation that the provisions of the Act were not complied with, and the allegation that there was inordinate delay.

[135] As to the first, our analysis of the same issue, above in the Henderson appeal, applies equally here. This ground of appeal in the Patriki matter is dismissed, for the same reasons.

[136] As to the allegation of inordinate delay, the DC dealt with the appellant’s claim of abuse of process arising out of inordinate delay, in its decision of March 15, 2023, at paras. 35 – 41. It is only necessary to briefly review the chronology of that case:

• The time from when the complaint was received until the Notice of Hearing was issued was approximately 13 months. During that time, the appellant was engaged in providing the College with records and his substantive response to the issues;

• After delivery of the Notice of Hearing, the appellant advanced prehearing motions, which resulted in a delay in scheduling a hearing on the merits for over a year;

• Once the prehearing motions were dealt with, the hearing on the merits was scheduled within three months. The appellant sought and was granted an adjournment of the original start date, due to illness, so that it started in March, 2022 instead of November, 2021;

• Once the hearing commenced, the Panel worked diligently to complete the evidentiary portion as efficiently as possible. Cross-examination of the College’s expert took significantly longer than anticipated, and additional hearing days had to be found. The appellant testified in chief for two days, then sought an adjournment to research a point of law, which delayed his cross-examination. The hearing was completed over eight days, from March 8 to September 11, 2022, with closing submissions being heard in December, 2022.

[137] The DC concluded that there was no inordinate delay, and as such, no abuse of process. It said, at para. 40:

The Panel agrees that the duration of the hearing itself took many more days than it should have (8 days rather than the 3 originally scheduled). Delays were variously due to, among other things, the Member’s illness, unexpected conflict of interest of a panel member which delayed the start of the hearing by one day, protracted and repetitive examination of witnesses, re-litigation of issues previously decided in prehearing motions, difficulty in scheduling additional hearing dates with all parties’ availability. However, there is no evidence that this protracted hearing put the Member’s access to natural justice at risk or was an abuse of process.

[138] The DC specifically addressed the appellant’s claim that the delay impaired the quality of the evidence, at para. 41:

The Member has argued that the delay has led to poor recollection by witnesses of events, specifically, Dr. Brajkovich’s memory on key facts. The Panel does not agree. There was no serious issue with Dr. Brajkovich’s memory or the memory of any of the other witnesses. In fact, the Panel found that both Ms. Patriki and Dr. Dhaliwal seemed to have an excellent recall of events regarding the illness, treatment, and death of Ms. Patriki’s dog, DJ. Further, there was never any question of the availability of evidentiary documents.

[139] We have already reviewed the applicable legal principles when discussing this issue in the Henderson appeal, including the need to accord deference to the DCs findings of fact and mixed fact and law. We find no error of law in the DC’s analysis of this issue, nor have we been directed to any palpable and overriding errors in its findings of fact.

[140] This ground of appeal is dismissed in the Patriki appeal as well.

Issue 2: Did the DC err when it admitted the evidence of the College’s expert?

[141] Dr. Dhaliwal asserts that the DC failed to consider his argument against the admissibility of Dr. Brajkovich’s report and failed to perform the second component of the gatekeeper function: to balance the risks and benefits of admitting the evidence. Dr. Dhaliwal submits that the DC simply adopted the College’s submissions.

[142] We do not agree.

[143] The DC considered the arguments advanced by the parties, the evidence before it, and that it undertook its own analysis of the issues: (Patriki Merits Decision, at paras. 42 to 63). Based on its factual findings, the DC rejected Dr. Dhaliwal’s submission that Dr. Brajkovich was in a conflict of interest or was otherwise unqualified to offer expert evidence.

[144] The DC’s decision to allow Dr. Brajkovich to testify, and the weight it chose to give to his evidence, are determinations of mixed fact and law for which the standard of review is palpable and overriding error: one that is “plainly seen” or “unreasonable and unsupported by the evidence”.

[145] We see no such error. As is clear from the Patriki Merits Decision, the DC’s determination of the issues raised by Dr. Dhaliwal were supported by the evidence, with which we see no basis to interfere.

[146] We do not accept Dr. Dhaliwal’s submission that the DC erred in exercising its gatekeeper function. We find that the DC’s admission of expert evidence was in keeping with the principles in Mohan, White Burgess, and Hanif.

[147] Dr. Dhaliwal’s submissions appear to be inviting this Court to undertake its own credibility assessment of Dr. Brajkovich and to substitute our views of the weight his evidence should be given for that given it by the DC. That is not our role: Housen v. Nikolaisen, 2002 SCC 33

[148] This ground of appeal is dismissed.

Issue 3: Did the DC err in its decision respecting the Interim Suspension motion?

[149] The Patriki Penalty Decision was released on December 8, 2023. As of that date, Dr. Dhaliwal was already serving the suspension imposed in the Henderson matter. Given our findings on the Henderson Appeal, the Interim Suspension Order is not relevant to this appeal. This ground of appeal is dismissed.

Issue 4: Did the DC err by imposing a penalty that was clearly unfit?

[150] In determining penalty, the DC considered Dr. Dhaliwal’s discipline history and prior findings of misconduct, including prior complaints. It did not treat these as aggravating factors but simply as confirmation of the need to impose TCLs.

[151] The DC specifically addressed the need for a period of suspension and concluded that the four-month suspension was within the range of suspensions ordered in similar matters.

[152] On this appeal, Dr. Dhaliwal did not refer this Court to any decisions respecting penalty to support his submission that the period of suspension was clearly unreasonable, demonstrably unfit, or out of keeping with penalties imposed in similar cases.

[153] As is clear from its reasons, the DC considered the applicable factors and explained why it determined that a period of suspension was necessary. The principles in Reid, Mitelman, Dua and Jonanthan Mitelman, referenced above, apply to this appeal.

[154] With respect to its costs award, the DC identified its jurisdiction under s. 30(6.1) of the Act and explained why it found it to be appropriate to award costs. Among other things, the DC concluded that the costs of the hearing ought not to be “visited exclusively upon the wider College membership” (at para. 37). Also, it rejected Dr. Dhaliwal’s submission that it should follow Jinnah, holding that Jinnah was not binding on the DC.

[155] The DC found that Dr. Dhaliwal’s behaviour had complicated the proceedings and added to the costs and found also that Dr. Dhaliwal’s affidavit on penalty lacked particulars to support his statement that he was unable to pay a costs award.

[156] The DC exercised its discretion to set the proportion of costs to be paid, which it awarded at 60% of the College’s requested costs, less than the two-thirds sought by the College.

[157] The DC’s decision on penalty is owed deference. It acted within its jurisdiction and considered the appropriate facts and legal principles.

[158] We can see no errors, palpable and overriding, or otherwise, or any basis on which to interfere with the decision. For these reasons, this ground of appeal is dismissed.

The Mehrotra Appeal

The Complaint

[159] This disciplinary proceeding stems from a complaint made to the College by Manis Mehrotra. In July 2019, Ms. Mehrotra brought Chiko, her 12-year-old Jack Russell Terrier to her veterinarian, Dr. M. Afzal. Chiko was suffering from a liver tumour and Dr. Afzal recommended that a liver lobectomy be performed either at the Ontario Veterinary College or by a Board-certified surgeon at NPVH. Ms. Mehrotra chose the latter.

[160] Dr. Afzal referred the surgery to Dr. Dhaliwal, who performed a liver lobectomy on Chiko on August 14, 2019. Chiko died on August 22, 2019.

[161] On September 19, 2019, Ms. Mehrotra submitted a complaint to the College about Drs. Dhaliwal and Afzal. The CC retained Dr. Marc Marin to provide an expert opinion concerning the complaint against Dr. Dhaliwal.

[162] The DC received a Notice of Hearing dated November 3, 2021, setting out the allegations of professional misconduct against Dr. Dhaliwal.

The Allegations before the DC

[163] The Notice of Hearing alleged that Dr. Dhaliwal:

a) failed to perform pre-operative blood work, properly examine Chiko and/or perform an adequate pre-operative assessment;

b) failed to obtain Ms. Mehrotra’s informed consent to surgery;

c) knew or ought to have known that he was being held out by Dr. Afzal as a Board-certified surgeon;

d) ought not to have performed the liver lobectomy on Chiko at NPVH, or at all;

e) failed to advise Ms. Mehrotra that Chiko may or likely would require 24-hour hospital monitoring post-operatively;

f) failed to provide post-operative advice; and/or

g) failed to make proper records.

[164] The DC conducted a six-day hearing, which began on August 22, 2022 and was completed on February 22, 2023. On June 10, 2023, the DC released its decision and reasons (the “Mehrotra Merits Decision”).

[165] The DC concluded that the College had established that Dr. Dhaliwal had engaged in professional misconduct, essentially as alleged in the Notice of Hearing.

Grounds of Appeal

[166] Dr. Dhaliwal’s grounds of appeal are that the DC erred in law:

(1) when it dismissed Dr. Dhaliwal’s motions to dismiss the proceeding as an abuse of process by reason of delay and procedural irregularities;

(2) when it qualified the College’s expert and allowed him to testify at the hearing;

(3) in respect of the Interim Suspension Order; and

(4) when it imposed a penalty that was clearly unfit.

Motions to stay or dismiss for abuse of process

[167] At the hearing, Dr. Dhaliwal filed two Notices of Motion to stay the proceeding as an abuse of process. He alleged that the CC did not follow proper process, thereby depriving the DC of jurisdiction to continue with the hearing; and that delay in prosecuting the matter amounted to an abuse of process.

[168] The DC dismissed both motions. The appellant appeals those dismissals. Our discussion and disposition of those grounds of appeal will follow, below.

Evidence at the Hearing

[169] Chiko’s owners, other treating veterinarians, the College’s expert Dr. Marc Marin, and Dr. Dhaliwal all testified at the hearing.

(a) Chiko’s owners

[170] The evidence of Chiko’s owners was that they had not spoken with Dr. Dhaliwal. While they had consented to the surgery, they did so without being fully informed of the risks of the surgery or that it would not be performed by a Board-certified surgeon.

(b) Two treating veterinarians

[171] The two veterinarians who treated Chiko prior to and after the surgery testified about Chiko’s condition.

(c) Dr. Marc Marin, the College’s expert

[172] Dr. Marin gave expert evidence on behalf of the College. Dr. Dhaliwal objected to the admission of this evidence, which objection is addressed later in these reasons.

[173] Dr. Marin opined that there was no record that Chiko’s owners had been told of the nature of the surgery, its risks and benefits, possible post-operative complications, the need for a 24-hour hospital after surgery, or that Dr. Dhaliwal was not a Board-certified surgeon. Dr. Marin opined that as the surgeon, it was Dr. Dhaliwal who ought to have ensured that the clients were fully informed, which he failed to do.

[174] Dr. Marin also noted that significant pieces of information were missing from Dr. Dhaliwal’s medical records and that he ought to have ensured that the records were complete.

(d) Dr. Dhaliwal

[175] Dr. Dhaliwal testified on his own behalf and did not call any other witnesses.

[176] While Dr. Dhaliwal acknowledged that he is not a Board-certified surgeon, he did not believe that Dr. Afzal had alleged otherwise to Chiko’s owners.

[177] Dr. Dhaliwal testified that he relied upon Dr. Afzal to discuss all necessary details with Chiko’s owner both pre and post surgery. Dr. Dhaliwal stated that he advised Dr. Afzal that if there were any complications, Chiko should be taken to the emergency hospital; he also stated that he believed that Chiko’s owners had declined to arrange for 24-hour monitoring post-surgery.

[178] Dr. Dhaliwal testified that as he not been contracted to provide post-operative care, it was not his responsibility.

[179] In cross-examination, Dr. Dhaliwal acknowledged that following a complaint in 2016, the CC had advised him to ensure his consent forms clearly specified that he was not Board-certified.

[180] The DC made adverse credibility findings against Dr. Dhaliwal.

[181] It found that his evidence was not supported by the medical records and conflicted with the evidence of Chiko’s owners. The DC also found Dr. Dhaliwal’s credibility was further diminished by his tendency to deflect blame or responsibility for what happened to Chiko and its owners onto Dr. Afzal, whom he had “no intention of calling” as a witness.

Mehrotra Merits Decision

[182] The DC concluded that Dr. Dhaliwal engaged in professional misconduct as alleged in the Notice of Hearing in that he: 1) failed to obtain informed consent from Chiko’s owners; 2) operated on Chiko without first informing its owners that given Chiko’s age and the type of surgery, 24-hour post-operative care was recommended, and ensuring that a post-operative plan was in place; and 3) failed to make proper records.

[183] Respecting the third finding, the DC stated that Dr. Dhaliwal had acknowledged that “his notes are scant in details” and provided “little insight into what Dr. Dhaliwal did in relation to Chiko’s care and what, if any, conversations he had with Dr. Afzal and others” (at para. 93).

Decision and Reasons on Penalty and Costs

[184] A penalty hearing was conducted on November 16, 2023. The DC’s Decision and Reasons on Penalty and Costs was released on February 20, 2024 (the “Mehrotra Penalty Decision”).

[185] In the Mehrotra Penalty Decision, the DC ordered:

1. Dr. Dhaliwal to appear before the DC to receive a reprimand;

2. suspended Dr. Dhaliwal’s licence for five months;

3. ordered that Dr. Dhaliwal’s license be subject to TCLs; and

4. Dr. Dhaliwal to pay costs to the College of $106,555.36, to be paid over 60 months, at the rate of $1,775.92 per month.

Issues to be decided on the Mehrotra Appeal

Issue 1: Did the DC err by qualifying and admitting Dr. Marin as an expert?

[186] As noted in the Mehrotra Merits Decision, Dr. Dhaliwal objected to Dr. Marin being qualified as an expert on the basis of his prior involvement with the College as a member of the College’s council during which, he served as President of the College, Chair of the Quality Assurance Committee, and as a member of the DC.

[187] On this appeal, Dr. Dhaliwal repeats these objections and raises some of the same objections he made in the Henderson and Patriki Appeals concerning admissibility of expert evidence.

[188] Dr. Dhaliwal does not assert that Dr. Marin did not have the professional qualifications required to act as an expert but objects to the admission of his evidence on the basis that Dr. Marin’s connection with the College would interfere with his duty and ability to be impartial.

[189] Dr. Dhaliwal had full opportunity to challenge the qualifications and objectivity of Dr. Marin’s evidence both on the voir dire at the hearing and in cross-examination at the hearing proper.

[190] Despite Dr. Dhaliwal’s objections, the DC accepted Dr. Marin’s testimony and was satisfied that Dr. Marin was qualified to give opinion evidence as to the relevant standards of practice and that he understood that as an expert, his role was to provide objective and independent evidence.

[191] Dr. Dhaliwal also objects to the DC having received Dr. Marin’s opinion on the issue of lack of informed consent because Dr. Marin was not specifically asked to opine on that issue.

[192] We find that ground of appeal to be without merit. Dr. Dhaliwal was aware of the allegation that he failed to obtain informed consent - identified in the Notice of Hearing - and had ample notice of Dr. Marin’s opinion, whose report had been provided nearly two years prior to the hearing.

[193] For reasons more fully discussed above, the DC’s decisions to receive evidence from Dr. Marin and to determine what weight it should be given to given to Dr. Marin’s opinion are entitled to deference. The decisions are reviewed on a standard of palpable and overriding error and we see no such error, nor any other basis on which to interfere.

[194] For these reasons, and for the reasons given above in the Henderson and Patriki Appeals respecting similar grounds of appeal, we conclude that the DC committed no error and dismiss this ground of appeal.

Issue 2: Did the DC err by dismissing Dr. Dhaliwal’s motions to dismiss or stay on the basis of abuse of process?

[195] As discussed earlier in these reasons, there are two aspects to the abuse of process claim. As to the first, regarding the alleged failure to follow the provisions of the Act, our analysis of the same issue, above in the Henderson appeal, applies equally here. This ground of appeal in the Mehrotra appeal is dismissed, for the same reasons.

[196] As to the second, the DC addressed the appellant’s claim of abuse of process arising out of inordinate delay, at paras. 74 - 78 of its decision of June 10, 2023. Again, we set out a brief chronology:

• The complaint concerning the appellant and Dr. Afzal was received in September, 2019;

• The appellant provided his response to the list of issues, together with his medical records, on January 23, 2020;

• Additional comments were obtained from the complainant, and witness statements were obtained, along with additional records, up to and including October, 2020;

• Following collection of these materials, the CC sought a report from Dr. Marin. It was received on November 4, 2020 and was provided to the appellant two weeks later;

• The CC referred the matter to the DC on November 25, 2021, and the Notice of Hearing was issued that same month;

• The prehearing conference was set for April 25, 2022, but was delayed to June 2, 2022 at the request of the appellant;

• The hearing commenced before the DC on August 22, 2022 and was completed in February, 2023.

[197] The DC did not find that the time from receipt of the complaint to completion of the hearing was excessive or inordinate in the circumstances. It further concluded that there had been no prejudice to the appellant. He continued to practice veterinary medicine unimpeded since the complaint was received. He was actively involved in the complaints process and, until he brought the abuse of process motion, did not raise any concerns about delay. He asked for an adjournment of the initial date for the prehearing, and a further adjournment of the start date of the hearing.

[198] The DC also rejected the appellant’s claim that the memory of the complainant was adversely affected by the delay. The DC expressly found that the complainant’s memory was not faulty. Furthermore, even if it had been faulty, that would have worked to the prejudice of the College, who had the onus of proof, and not to that of the appellant.

[199] On this issue, we arrive at the same conclusions as we have on the Henderson matter, above, for the same reasons. We find no error of law in the DC’s reasons, and no palpable and overriding error in the factual findings that support its decision. Accordingly, we find no reason to interfere with the decision of the DCs that no abuse of process had occurred.

[200] This ground of appeal is dismissed in the Mehrotra appeal as well.

Issue 3: Did the DC err in granting the Interim Suspension Order?

[201] For reasons set out earlier, this ground of appeal is dismissed.

Issue 4: Did the DC err in its decision of penalty and costs?

[202] To the extent that the arguments raised in the Mehrotra Appeal had been advanced by Dr. Dhaliwal in the Henderson and Patriki Appeals, our reasons in those appeals also apply here.

[203] When the DC was determining penalty in the Mehrotra proceeding, this was Dr. Dhaliwal’s third finding of misconduct, from which the DC concluded that Dr. Dhaliwal had demonstrated repeated failures in his professional responsibilities.

[204] The DC also considered that Dr. Dhaliwal had been the subject of a number of other complaints dating back to 2007, all of which included allegations that Dr. Dhaliwal had failed to obtain the client’s consent. The DC found that Dr. Dhaliwal had ignored the advice he had been given to ensure that proper consent was obtained.

[205] The DC considered that Dr. Dhaliwal’s complaint history revealed that his inadequate record-keeping was also a “repeated feature”, and that advice given to him to correct this shortcoming was ignored.

[206] The complaint that Dr. Dhaliwal’s non-specialist status had not been disclosed had also been raised in earlier complaints, and, again, the DC found that advice given to him to correct this problem had been “unheeded”, as evidenced by the findings made in the Henderson matter.

[207] The Mehrotra Penalty and Costs Decision devoted almost six pages to explaining the penalty imposed. The DC concluded that Dr. Dhaliwal had “repeatedly failed to heed advice given by the [CC] over a period of 15 years” and that to “increase the prospect of successful remediation” an order was required to confine him to his primary practice in locations where he was listed as Medical Director.

[208] The DC’s decision on costs was also fully explained.

[209] The DC set out the arguments advanced by the parties, the DC’s jurisdiction under s. 30(6.1) to make a costs order and why, in the circumstances of the case, a costs order was appropriate. Consistent with other costs decisions, the College was awarded an amount equal to two-third of its actual costs and expenses, to be paid over a 60-month period.

[210] Dr. Dhaliwal has not identified any palpable or overriding error in the Mehrotra Penalty and Costs Decision, and we see none. The DC acted within its jurisdiction and its decision is owed deference.

[211] This ground of appeal is dismissed.

Disposition

[212] For the reasons set out, all three appeals from the DC’s decision on merits and on penalty are dismissed.

[213] The College was entirely successful on the appeals and is presumptively entitled to its costs. The parties were unable to reach an agreement on costs despite being urged to do so.

[214] If successful, the College asks for costs of $56,600 for the appeals. Based on its Bill of Costs filed, that represents 60% (partial indemnity) of the actual costs and disbursements incurred.

[215] Dr. Dhaliwal’s Bill of Costs records fees and disbursements of $130,264.86 for the three appeals. His Bill of Costs shows $69,562 for partial indemnity costs, before disbursements of $14,326.86. However, in submissions, Dr. Dhaliwal asked for costs of $10,000, should he be successful.

[216] When exercising its discretion under s. 131 of the Courts of Justice Act, R.S.O. 1990, c. C.43 to award costs, the court must consider the factors set out under rule 57.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Overall, the objective is to fix an amount that is reasonable, fair, and proportionate for the unsuccessful party to pay: Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), at para. 26.

[217] The reasonable expectation of the parties concerning costs is also a relevant factor: Boucher, at para. 38. As to this factor, we have considered the similarity in the fees and disbursements incurred by the parties and the costs award, usual to this Court.

[218] Having considered the relevant principles, we exercise our discretion to award costs to the College in the total amount of $36,000, all inclusive, representing $12,000 for each of the three appeals, payable forthwith.

“Heeney J.”

“Sheard J.”

I agree: “D.L. Corbett J.”

Released: March 19, 2025

CITATION: Dhaliwal v. College of Veterinarians of Ontario, 2025 ONSC 1931 DIVISIONAL COURT FILE NOS.: DC-23-65; DC-23-77; and DC-24-17

DATE: 20250319

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Heeney, D.L. Corbett and Sheard JJ.

BETWEEN:

DR. TEJ DHALIWAL

Appellant

– and –

THE COLLEGE OF VETERINARIANS OF ONTARIO

Respondent

REASONS FOR JUDGMENT

Released: March 19, 2025