SCC Asked to Clarify "Public Member" Requirement for Hearing Panel Quorum under Veterinarians Act

Filed January 3^rd, 2018                                                                    Court File No.:  37900

IN THE SUPREME COURT OF CANADA

(Appealed from the Ontario Court of Appeal)

BETWEEN:

DR. KHAWAR HANIF

              Applicant

                                                                                                                                         (Appellant)

and

COLLEGE OF VETERINARIANS OF ONTARIO

Respondents

                                                                                                                               (Respondents)

NOTICE OF APPLICATION FOR LEAVE TO APPEAL

TAKE NOTICE that the Applicant Dr. Khawar Hanif  will apply for leave to this Court pursuant to section 40(1) of the Supreme Court Act, R.S.C. 1985, c-S-26, as amended, E.S. 1985 (3^rd) Supp., c.34, for an order granting leave to appeal to the Supreme Court of Canada from the order of the Ontario Court of Appeal dated October 27^th, 2017, File No. M47895 denying the Applicant leave to appeal the Divisional Court of Ontario’s upholding of one count of professional misconduct, dismissing the other and remitting the matter back to the very same deficient panel, the chair of the panel and “public member” having abandoned her role “to pursue another federal appointment” and the remainder of the panel coming to a split decision on liability and penalty with a strong dissent by the other member who found the entire proceedings to be tainted by bias, to assess penalty and costs.

            TAKE NOTICE that the said application for leave shall be made on the following grounds:

This case is of fundamental importance to all Canadians impacted by self-regulating professional bodies such as the College of Veterinarians of Ontario

in this case on the following five issues of national importance:

Public Interest:

            1.         Is the public member requirement for quorum on

                        self-regulating professional bodies such as that 

                        prescribed by s.28(3.2) of the Veterinarians Act,

                        R.S.O. 1990 c. V.3 mandatory ?

Disability of

a member

            2.         When is a panel member “unable to act” as that 

                         term is used in s.28(6) of the Veterinarians Act  

                         and other like legislation ?

S.P.P.A.         

            3.         What role, if any, does s.4.4(1) and (2) of the 

                        Statutory Powers Procedures Act, R.S.O. 1990, 

                        c. 2.22  and similar provincial legislation play in 

                        the face of a mandatory statutory quorum

                        calling for members of the public on the panel ?

Withdrawal of tribunal

members from duty

            4.         Can this court provide guidance on the issue of 

                        when and how persons appointed to tribunals 

                        ought to withdraw from their adjudicative 

                        duties ?

Bias and impartiality

of tribunal

            5.         Did the courts below err in disregarding or 

                        improperly applying binding legal authorities on 

                        the issues of bias and the importance of the 

                        appearance of impartiality before administrative 

                        tribunals ?                                    

                                                Dated at Toronto, Ontario this 24th  day of 

                                                December, 2017

            ________________________                                                                                        

            ERNEST J. GUISTE.                                                                

            E. J. GUISTE PROFESSIONAL CORPORATION                                               

            Trial & Appellate Advocacy                                                              

            2 County Court Blvd., Suite 494                                                   

            Brampton, Ontario                                                                                 

            L6W 3W8

                                                                              

            Ernest J. Guiste (LSO# 34979C)           

                   

(416) 364-8908

            (416) 364-0973 fax                                                                          

                                                            Counsel for the Applicant

TO:                  STEINECKE MACIURA LeBLANC

                        Barristers & Solicitors

                        401 Bay Street, Suite 2308

                        Toronto, Ontario

                        M5H 2Y4

                        Bernard C. LeBlanc

                        (416) 599-2200

                        (416) 593-7867

                        Solicitors for the Respondent

AND TO:        The Registrar of this Court

NOTICE TO THE RESPONDENT(S): A respondent may serve and file a memorandum in reply to this application for leave within 30 of the date a file number is assigned in this matter.  You will receive a copy of the letter to the applicant confirming the file number as soon as it is assigned.  If no response is filed within that time, the Registrar will submit this application for leave to appeal to the Court for consideration.

BACKGROUND FACTS:

Dr. Khawar Hanif, a veterinarian regulated by the College of Veterinarians under the Veterinarians Act, was the subject of two complaints of professional misconduct in and around 2006. One complaint pertained to a cat named Cleo. That complaint alleged that he was physically abusive to Cleo and verbally abusive to Cleo's owner.  Dr. Hanif denied these allegations.  The second complaint involved his treatment and diagnosis of a dog named Scully. That complaint alleged that Dr. Hanif misdiagnosed Scully.

The Discipline Committee of the College of Veterinarians of Ontario brought these complaints for adjudication before a Hearing Panel in 2007. That hearing started off with a three member panel which ultimately was reduced to two members on account of one member stepping down on account of concerns of conflict of interest.  By order dated March 2nd, 2010 the hearing pane acquitted Dr. Hanif of the two substantive complaints involving Cleo and Scully following eleven days of hearing.

The College of Veterinarians of Ontario appealed Dr. Hanif's exoneration by the hearing panel to the Divisional Court pursuant to the enabling legislation. By order dated February 28, 2011 the Divisional Court overturned the decisions exonerating Dr. Hanif and remitted the matter back for reconsideration before a new hearing panel.

On the court-ordered rehearing a panel composed of four members which included the chair of the Discipline Committee and the President of the College of Veterinarians heard the case again over the course of sixteen days between February 2012 and February 2013.  After hearing the majority of the case as chair of the hearing panel - the "public member" withdrew from the panel and resigned her public appointment with the College "to pursue a new Federal appointment."

The hearing proceeded with the remaining three panel members over objections by Dr. Hanif that the panel had lost jurisdiction on account of the resignation of the "public member" from the hearing panel.  Under s.28(3) of the Veterinarians Act the chair of the Discipline Committee may appoint members to hearing panels, one of whom is a person whom the Lieutenant Governor in Council has appointed. In this case the person who stepped down was this "public member". She was both the chair of the Discipline Committee and the hearing panel which was originally to adjudicate the case.

The reduced hearing panel released a split decision on liability and penalty.  The majority composed of the President of the College and a veterinarian now found Dr. Hanif liable on both complaints and ordered him to pay $73,000 in costs to the College.  The minority member, himself a veterinarian not only dismissed the complaints against Dr. Hanif but found that the entire proceedings against Dr. Hanif was tainted by bias and that the College was acting contrary to its public mandate in the manner in which they dealt with Dr. Hanif.

Dr. Hanif exercised his right to appeal to the Divisional Court.  The Divisional Court allowed his appeal on the Cleo complaint but upheld the complaint involving Scully the dog.  The Divisional Court then sent the issue of penalty and costs back to the same hearing panel for reconsideration.

Dr. Hanif sought leave to appeal from the Ontario Court of Appeal.  Leave to appeal was denied October 27, 2017.

Commentary and Analysis:

Self governing professions maintain that they act in the public interest.  Their mandate it is said is to protect the public.  When the Lieutenant Governor in Council appoints a public member to sit on a public body it stands to reason that the rationale behind this is to infuse some degree of public input into the discharge of that statutory body's mandate.

When persons so appointed "willy nilly" abandon their adjudicative duties "to take up a new federal appointment"it can not be that the public interest and justice is served by this.

If the appointment of "public members" to administrative tribunals like the College of Veterinarians is merely "window dressing" to appease the public and to make the statutory actors feel good about themselves the SCC ought to give all of us guidance on this important issue. If that is not an issue of public importance then perhaps the issue of when and in what circumstances person appointed to sit on administrative bodies may abandon their adjudicative duties is. Withdrawing from such an appointment during a hearing does little to enhance public confidence in such tribunals and negatively tarnishes the tribunal's appearance of fairness and transparency. 

About the author:

Ernest J. Guiste is Catholic lawyer of African-Canadian racial background based in the Toronto area.  He practice involves both civil and criminal litigation at all levels of courts and  administrative tribunals.  The article is published here solely to draw attention to an issue of public importance, namely, the role of government appointed "public members" to administrative tribunals and the circumstances in which such appointees and others so appointed may withdraw from their adjudicative duties and the consequences for so withdrawing.  If a judge seized with hearing a case can not abandon a case without consequence then why ought a person appointed by the Lieutenant Governor in Council be so entitled ?