A Doctor of Veterinary Medicine is asking the Court of Appeal for Ontario(ONCA) to rule on the legality of the College of Veterinarians of Ontario's practice of College Counsel providing legal advice, drafting allegations of misconduct and then prosecuting the said allegations before the College's Disciplinary Committee. The doctor who was the recipient of a three particular complaint in writing was made to defend a 19 particular Notice of Hearing issued by the College of Veterinarians and drafted by counsel who represented the College before the Discipline Committee and yet later at the Divisional Court and Court of Appeal.
Excerpt from
Applicant's Factum
on Leave Motion:
22. The Veterinarians Act provides no statutory authority for anyone but the Complaints Committee to refer, "in whole or in part, to the Discipline Committee or to take such action as it considers appropriate. In this case College Counsel who was advising the Complaints Committee drafted and expanded the allegations of professional misconduct against the Applicant. Counsel for the College state in their text, "This rule prevents the prosecutor from adding new allegations without the concurrence of the statutory committee that made the referral" at p.6-3. (see A Complete Guide to the RHPA by Richard Steinecke and B. LeBlanc)
The doctor, with the assistance of his counsel, E.J. Guiste, is challenging the College's long-standing practice as being in violation of s.28(11) of the Veterinarians Act which expressly limits the legal assistance which the College's Complaints Committee can receive to, "an adviser independent from the parties and, in such case, the nature of the advice shall be made known to the parties in order that they may make submissions as to the law."
ONCA Stays Suspension
and Costs Pending Appeal:
On November 14th, 2018, a day before the Discipline Committee's orders were to be enforced, Justice Pardu of the Ontario Court of Appeal granted a stay of the Discipline Committee of the College of Veterinarian's orders suspending the doctor for three months and slapping him with a costs order of $142,000. E.J. Guiste made the following points in his factum filed with the Court of Appeal on the stay motion:
[25] ....These statutory functions under both the Act and the Code are rendered moot or merely illusory if counsel for the Respondent is permitted to be involved in the following conflicting roles:
1. Advising the Complaints Committee and drafting allegations for them which the Discipline Committee(DC) is to adjudicate;
2. Participating in the hearing as counsel for the College and asserting privilege over the advice he gave the Complaints Committee in the absence of the Applicant;
3. Acting as counsel in defending the decisions of the DC and not advising the court of his multiple advisor roles in the process.
E.J. Guiste made the following closing submission in the factum filed with ONCA on the stay motion:
[31] In the final analysis, the test for a granting of a stay of the subject orders is clearly met. Indeed, it would not be overstating the point to submit respectfully that the issuance of a stay in the circumstances of this case may be necessary to protect the integrity of the professional regulation regime in question on the basis that justice must be seen to be done.
NOTE:
This piece is posted her as a public service. Thousands of health care professionals in Ontario are subject to professional regulation and discipline in the circumstances in which Dr. Walia was. There can be no doubt that the drafters of the legislation inserted s.28(1) in the Veterinarians Act and s.38(4) of the Health Professions Procedural Code to preserve transparency, natural justice and fairness in the complaint investigation and hearing process. Below is a copy of the Notice of Motion Seeking Leave to Appeal at ONCA.
Court File No.: M49807
COURT OF APPEAL FOR ONTARIO
B E T W E E N:
DR. RAVI WALIA
Applicant/Moving Party
- and -
COLLEGE OF VETERINARIANS
OF ONTARIO
Respondent/Respondent
AMENDED
NOTICE OF MOTION FOR LEAVE TO APPEAL
THE MOVING PARTY, Dr. Ravi
Walia, hereby makes a Motion to the Court of
Appeal for leave to appeal the decision
of the Divisional Court (Divisional Court File No. DC-17-0064-00) of October 16th,
2018 – upholding the findings of
liability, penalty and costs of the Discipline Committee of the College of
Veterinarians of Ontario on a date to be fixed by the Registrar.
PROPOSED METHOD OF
HEARING is to be in writing, 36 days after service of the moving party’s motion
record, factum and transcripts, if any, or on the filing of the moving party’s
reply factum, if any, whichever is earlier, at Osgood Hall, 130 Queen Street
West, Toronto, Ontario, M5H 2N5, pursuant to rule 61.03.1(1) of the Rules of
Civil Procedure.
- An order granting the moving party leave to
appeal to the Court of Appeal for Ontario from the decision of the Ontario
Superior Court of Justice (Divisional Court) dated October 17th, 2018
upholding the Discipline Committee's decisions on liability, penalty and
costs.
- His costs; and
- Such further and other relief as this Honorable
Court may deem just and as Counsel may advise.
Breach of Natural Justice,
Fairness and Excess of Juris:
2. What started out as a
three particular complaint in writing against the Applicant filed with the
College on or about August 17th, 2014 that he:
(1) Performed cherry surgery on Tucker Cronier
(a dog) in an
incompetent manner and it resulted in
complications and
and additional surgery by another
veterinarian;
performing this type of surgery; and
(3) Failed to provide acceptable post-operative
care to Tucker;
on which he
was invited to provided a response in writing to
- somehow blossomed into a 19 particular
Notice of Hearing
,
with the assistance of Counsel of Record for the Respondent,
upon which the Applicant was
called upon to defend at a
hearing
but which were not the subject of the complaint in
writing or the investigation carried out
by the Complaints
Committee
contrary to s.26(1) of the Act and binding legal
authorities in Ontario.
3. The 19 new allegations
which the Applicant was compelled to answer at the hearing on or about April
12th, 2017 - more than 32 months later - included the following:
(a) Failed to request, or make sufficient
efforts to obtain, Tucker's medical
history
or records from prior treating veterinarians;
test
results with Tucker's owner prior to surgery, if in fact the results
were
obtained prior to surgery;
cherry
eye surgery;
eyelid/glands
properly or competently;
pattern and knot placement;
during and after surgery;
operatively;
Tucker
overnight on IV fluids without any monitoring;
operatively;
Tucker was hospitalized;
to
document same;
monitoring
and in appropriate medications; and
3. Counsel of record for
the Respondent admits that the "specific allegations are generally drafted
by counsel for the Complaints
Committee's consideration, which is what occurred in this case."
4. Counsel of record for
the Respondent is in fact involved in all facets of the Respondent's discharge of its statutory function
and is not restricted to presenting the case against the Applicant independently and impartially
and this point of law is before the Divisional Court for adjudication.*
5. The Applicant was never
invited to provide an Answer to the 19 "new allegations" drafted by counsel.
Indeed, the expert report relied upon by the respondent is based on the
original three particular
complaint in writing.
Excessive Delay, Breach of
Natural Justice and
Fairness:
6. The 19 "new
allegations' comprising the Notice of Hearing belatedly drafted by counsel were the subject of a public hearing 34
months after the filing of the initial complaints in writing in 2014 and the Applicant played no
part in this delay. The delay denied the
Applicant of a fair hearing.
7. Significant and relevant
disclosure required to properly mount a defence
to these allegations were denied the Applicant, including the curriculum vitae of the College's expert witness and notice of material changes to her opinion in advance of her testimony.
to these allegations were denied the Applicant, including the curriculum vitae of the College's expert witness and notice of material changes to her opinion in advance of her testimony.
Breaches of Natural
Justice, Fairness and
Conflict of Interest:
8. The intake of the
complaints in writing received by the College along with their investigation and processing and the hearing itself
were tainted by breaches of natural justice, fairness and conflict of interest which standing
alone and cumulatively deprived the Applicant of a fair hearing.
9. The Divisional Court
failed to follow and apply its own jurisprudence as well as other binding legal authorities on the issues of jurisdiction,
fairness, breach of natural justice and bias.
Indeed,their
upholding of the decisions of the DC is based on flawed premise that 19
particular Notice of
Hearing was the result of the assistance of Independent Counsel to the
Complaints Committee.
10. These issues raise
general questions of law and the application of the very fundamental right to a fair and impartial hearing when one’s
professional reputation is in jeopardy – issues which transcend the litigants in this case and are in the public interest
for this Honourable Court to give
guidance on.
11. The within appeal
involves the interpretation and application of the Veterinarians Act, R.S.O. 1990 ch. V.3, s.24(1) and (2),
s.28(11) and Regulated Health Professions Act, 1991 and in particular Schedule 2, Health Professions Procedural
Code s. 25(4), (5) and (6); 25.2(1);
25.3(1), (2); 26(1); s.27, 28; 36(1),
43, 44, 53, 53.1.
12. The within appeal also
involves the interpretation and application of the costs provisions of the enabling legislation - provisions which
without guidance from this Honourable Court subject the Applicant and other similarly situated professionals to
arbitrariness and prejudice in defending
themselves as was the case here. These
provisions have the impact of denying such
litigants of access to the courts.
13. Rules 61.03.1
of the Ontario Rules of
Procedure
14. Such further and other
grounds as the lawyers may advise.
THE FOLLOWING DOCUMENTARY EVIDENCE
will be used at the hearing of the motion :
1. Divisional Court Reasons;
2.
CVO
Discipline Committee Decisions
on Liability and Penalty and Costs;
on Liability and Penalty and Costs;
3. Relevant
segments of the transcripts of the proceedings
before the CVO panel and particularly those segments touching
on their consideration of the issues of jurisdiction, denial of natural
justice and fairness and bias;
before the CVO panel and particularly those segments touching
on their consideration of the issues of jurisdiction, denial of natural
justice and fairness and bias;
4. *Copy
of Notice of Motion filed with the Divisional Court in Berge
v. College of Audiologists.., 2016 ONSC 7034
v. College of Audiologists.., 2016 ONSC 7034
5 Such other documentary evidence as
this Honorable Court may allow and counsel may advise.
Date:October 31st , 2018
E.J. GUISTE
Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario
L6W 3W8
ERNEST J. GUISTE(34970C)
(416) 364-8908
(416) 364-0973 fax
E mail – ejguiste@yahoo.com
Counsel for the Applicant/Appellant
TO:
STEINECKE MACIURA
LeBLANC
Barristers and
Solicitors
401 Bay Street, Suite
2308
Toronto, Ontario
M5H 2Y4
Bernard C. LeBlanc
Tel: (416) 599-2200
Fax(416) 593-7867
Lawyers for the Respondent
