Friday, April 5, 2019

SCC asked to Clarify Role of College Counsel and Tribunal Impartiality under RHPA and Veterinarians Act

   After receiving a complaint in writing against Dr. Ravi Walia the College of Veterinarians sent the complainant a form containing three particulars of professional misconduct which she was asked to date and sign.  The College then disclosed this three particular complaint to Dr. Walia and asked for his response in writing in accordance with the Veterinarians Act and the Regulated Health Professions Act. Later the College retained an expert to provide them with an opinion on Dr. Walia's standard of practice. The expert opined on this three particular complaint. The experts report was shared with Dr. Walia and he was asked to respond in writing and he did.

   Some two years later the College issued a Notice of Hearing dated April 25th, 2017 drafted by College counsel who subsequently prosecuted the case on behalf of the College before a Discipline Committee panel.  At the hearing College counsel withdrew three of the 18 particulars and the Discipline Committee proceeded to find guilt on the remaining 15 counts. The College's Discipline Committee proceeded to suspend Dr. Walia for three months and ordered costs of $142,000 against him for defending himself.

   Dr. Walia, who did not have the benefit of a lawyer both before the Discipline Committee and the Divisional Court raised two fundamental arguments. Firstly, he argued that the enabling legislation provided him with a right to respond in writing to allegations before a referral can be made to the Discipline Committee.  Secondly, he argued that College counsel's involvement in the investigatory phase of the proceedings, which included drafting the new particulars, and then to prosecute them before the Discipline Committee denuded the process of fairness and impartiality.

    The Divisional Court dismissed the appeal.  The Court of Appeal issued a stay of the Discipline Committee's orders pending appeal but ultimately denied leave to appeal.

The Key Issues:

 1.  The enabling legislation does not give College counsel express 
authority to be involved in all facets of the complaint process which 
includes two distinct phases by two distinct bodies, namely, investigation 
by the Complaints Committee and adjudication by the Discipline Committee.  

   However, it does expressly prohibit anyone involved in the investigation 
phase from sitting in judgment of the member on a Discipline Committee.  
The enabling legislation goes even further and delineates who are the parties 
to the hearing - the member and the College and then goes a step further and 
expressly states that only counsel independent from the parties can advise 
the Discipline Committee.

2.   The enabling legislation vests the Complaints Committee with the powers 
to investigate and to make referrals of specified allegations of professional 
misconduct to a Discipline Committee. It does not vest College counsel with 
this power. 

   Even if for the purpose of argument College counsel could draft particulars 
of misconduct for the Complaint Committee it is for them alone to formally 
adopt them and refer them under the enabling legislation. Since the enabling 
legislation requires them to issue a decision on their investigation that 
adoption of further particulars would be in their decision.

3.  In Dr. Walia's case there was no decision from the Complaints Committee 
and no evidence that the Complaints Committee formally adopted the 
15 new allegations drafted by College counsel which ended up in the Notice 
of Hearing issued by the College.

Issues of National Importance:

               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 three issues of national importance:

Role of College Counsel:
Conflict of Interest and
Lack of Impartiality in

1.         Do the Veterinarians Act, R.S.O. 1990, c V.3
            and the Regulated Health Professions Act, S.O. 1991
            c.18 permit a lawyer acting for the College
            in prosecuting a complaint to also provide 
            legal advice to the body conducting the investigation 
            of the complaint Complaints Committee) and making 
            the referral to the adjudicative body (Discipline 
            Committee) for hearing ?

1(a)      If yes, can the said lawyer claim solicitor-client privilege
            on the legal advice given without adversely impacting the
            impartiality of the tribunal real or perceived ?

  2.         Do the Veterinarians Act and the Regulated Health
              Professions Act permit counsel acting for the College
              in prosecuting a complaint before a Discipline Committee
              of the said College to draft a Notice of Hearing going
              beyond the issues raised in the complaint against a 
              member of the College without the concurrence of the 
              referring body to the Discipline Committee ?

  3.         If not, what is the impact on the tribunal's award of costs
              to the College ?

                                     Dated at Toronto, Ontario this 24th  day of March, 2019
            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

                        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.

NOTE: This piece is published here because it raises issues of public importance with respect to the proper discharge of a professional regulatory body which is mandated by duly enacted legislation to regulate a profession in the public interest. Such regulatory bodies have the power to deprive their members of their livelihood and can do great harm if they are not properly supervised by our Superior Courts in acting in accordance with their mandate and in the public interest.  If there are any facts that are incorrect in this publication kindly bring them to my attention and they will be reviewed and if incorrect corrected. The purpose of the exercise is simple public education.