Saturday, November 17, 2018

College of Veterinarians Counsel's Right to Advise Refering Body and Draft Particulars for Hearing Subject of Appeal

    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.


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  
B E T W E E N:

                                                                                                                                                                                               Applicant/Moving Party

- and -



            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.

  1. 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.
  2. His costs; and
  3. Such further and other relief as this Honorable Court may deem just and as Counsel may advise.
 1.         The applicant, Dr. Ravi Walia, is a licensed doctor of veterinary medicine in Ontario.

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;
                         (2)   Failed to inform Ms. Cronier that he was inexperienced in
                                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;
 (b)        Failed to perform a proper pre-surgical assessment of Tucker;
 (c)        Failed to properly interpret or adequately discuss pre-operative blood
              test results with Tucker's owner prior to surgery, if in fact the results
              were obtained prior to surgery;
 (d)       Failed to obtained informed consent to surgery treatment;
 (e)        Failed to advise Tucker's owner that he was inexerienced performing
             cherry eye surgery;
 (f)        Performed the surgery without proper training and/ or experience;
 (g)        Failed to perform cherry eye surgery (replacement of prolapsed third
              eyelid/glands properly or competently;
 (h)        Used improper suture material (type and size)
 (i)         Used excessive suture material by using an inappropriate suture 
              pattern and knot placement;
 (j)         Failed to provide  proper and/or adequate anesthesia for surgery;
 (k)        Failed to provide proper and/or adequate pain management before, 
              during and after surgery;
 (l)         Failed to provide proper and/or adequate supportive medications post-
 (m)       Failed to properly manage Tucker following surgery by hospitalizing
             Tucker overnight on IV fluids without any monitoring;
 (n)        Failed to properly document Tucker's healing and responseive post-
 (o)        Failed to either use Elizabethan collar or document its use while 
              Tucker was hospitalized;
 (p)        Failed to provide adequate discharge instructions, and/or failed
              to document same;
 (q)        Failed to properly examine Tucker's eyes post-operativley;
 (r)        Failed to provide appropriate post-operative care through adequate
             monitoring and in appropriate medications; and
 (s)        Failed to create or maintain adequate records.                                              

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.

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.O1990 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;
            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;

         4.         *Copy of Notice of Motion filed with the Divisional Court in Berge  
                     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                                                                                                                                                                
Professional Corporation
Trial & Appellate Advocacy
2 County Court Blvd., Suite 494
Brampton, Ontario
L6W 3W8
(416) 364-8908
(416) 364-0973 fax
E mail –

Counsel for the Applicant/Appellant

                        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