|
Professionals - Discipline (2). Dhaliwal v. College of Veterinarians of Ontario
In Dhaliwal v. College of Veterinarians of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed 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".
Here the court considers appeal allegations of 'abuse of process', here that the discipline committee "failed to comply with ss. 24 [SS: 'Duties of Complaints Committee'] and 25 [SS: 'Review of complaints decision'] of the Veterinarians Act".
The appellant argued that complaints under the Veterinarians Act must relate to 'specific allegations' made to the subject professional, and that they were entitled to "production of the allegations drafted by the committee’s counsel":[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.
....
[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 CanLII 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 CanLII 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. . Dhaliwal v. College of Veterinarians of Ontario [expert evidence]
In Dhaliwal v. College of Veterinarians of Ontario (Ont Divisional Ct, 2025) the Divisional Court dismissed 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".
Here the court considered the admissibility of expert evidence, here in an administrative professional discipline context: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 CanLII 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”). . Kaplan-Myrth v. Ottawa Carlton District School Board
In Kaplan-Myrth v. Ottawa Carlton District School Board (Div Court, 2024) the Divisional Court dismissed a school board trustee's JR against a school board.
Here the court sets out the SOR for professional disciple (here applied to a school board trustee):[36] With respect to decisions imposing sanctions, the court must defer to the Board unless the Applicant establishes an error in principle or that the sanctions are clearly unfit Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77.
....
[89] As set out above, with respect to decisions imposing sanctions, the court must defer to the Board unless the Applicant establishes an error in principle or that the sanctions are clearly unfit, that is, the Applicant must show that it “manifestly is deficient or excessive and is a substantial and marked departure from penalties in similar cases”: see Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77; Del Grande, at para. 88.
[90] The sanctions provided for by the Board are provided for under s. 218.3(3) of the Act and are similar to sanctions given in other cases. There was no censure or apology required. The sanctions were not excessive or disproportionate.
[91] The Applicant has failed to meet her burden in establishing that that in the sanctions meted out by the Board, there was an error in principle or that the sanctions were clearly unfit. . Casella v. Ontario (College of Chiropodists)
In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court contrasts professional discipline with criminal law:Issue 1: Did the Committee err by finding that the Appellant breached the June 2021 Order by benefitting from the practice of chiropody?
28. The Appellant submits that at the time of his suspension, there was no regulatory prohibition on a suspended member benefitting from the practice of chiropody by others. While it was submitted in the Appellant’s factum that professional discipline statutes are to be strictly construed, at the hearing of this appeal, counsel for the Appellant conceded that a broader interpretative approach is the correct approach, namely the balancing of the public interest and the fair hearing rights of the accused, as set out in in Court of Appeal’s decision in Abdul v. Ontario College of Pharmacists, 2018 ONCA 699, 142 O.R. (3d) 682, at para. 18.
29. It is settled by the Supreme Court that professional discipline proceedings are not criminal (or quasi-criminal) in nature.[13] Successive Supreme Court and Court of Appeal decisions call for a broad and purposive approach to interpretation, to permit professional disciplinary bodies to fulfill their onerous public protection mandate.[14] As the Court of Appeal has confirmed on multiple occasions, the Discipline Committee of the College is required to interpret its powers “with a view to protecting the public interest in the proper regulation of the profession”.[15]
30. The Appellant argues that nothing in the regulatory framework necessarily implies that a suspension always prohibits a suspended member from benefitting from the practice of chiropody. The Appellant submits that the Code provides flexibility to the health professions to tailor regulations which address what each profession’s members who are suspended can do regarding benefitting from the practice of their profession during suspension. The Appellant argues that it is not self-evident from the legislative scheme what a suspension entails. He submits that either promulgating regulations or setting this out in the order of suspension is required, neither of which was present here.
31. Approximately half of Ontario’s health profession colleges specifically hold that it is professional misconduct for a member to benefit from the practice while under suspension, although all but one offer an exemption if the member discloses the benefit and obtains permission. The Appellant submits that if suspension necessarily precludes a suspended member from profiting from the practice during their suspension, the colleges would not have the authority to make an exemption. The Appellant argues that he was not on notice that he could not be remunerated for the work that he performed at the clinic while suspended (which he characterized as mostly janitorial services). The June 2021 Order did not prohibit the Appellant from benefitting from another’s practice of chiropody, and the Appellant should not be bound by the intent specified by the Committee after the fact in deciding the Liability Decision. . Okafor v. College of Physicians and Surgeons of Ontario
In Okafor v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considers (and dismisses) an appeal by a doctor of a CPSO discipline decision [under the RHPA's HPPC s.70(1-2)] "in which a panel of the Discipline Committee (the “Committee”) ... revoked the Appellant’s certificate of registration (the “Decision”)", here for professional misconduct ("disgraceful, dishonourable and unprofessional conduct") involving sexual abuse:[7] The Notice of Hearing alleged that the Appellant committed an act of professional misconduct:1. under clause 51(1)(b.1) of the Health Professions Procedural Code which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (“the Code”) in that he engaged in sexual abuse of a patient; and
2. under paragraph 1(1)33 of Ontario Regulation 856/93 [made under the Medicine Act, 1991[2]], in that he has engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. [8] “Sexual abuse of a patient” by a member of the College is defined in s. 1(3) of the Code:Sexual abuse of a patient
(3) In this Code,
“sexual abuse” of a patient by a member means,
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,
(b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient. . Haydarian v. Royal College of Dental Surgeons of Ontario
In Haydarian v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) an RHPA appeal from disciplinary decisions of the Royal College of Dental Surgeons of Ontario:[5] The Panel accepted the evidence of E.O. that she had a sexual relationship with the appellant as of September 6, 2018 and that they were never married.
[6] Given the sexual abuse finding, mandatory revocation of the appellant’s certificate of registration was required under s. 51(5) of the Code.
...
Issue #3: Did the Panel err in making its costs and penalty award?
[37] As discussed above, because the sexual abuse finding stands, the penalty is mandatory.
[38] The appellant did not identify any specific errors in the costs awards instead generally submitting that they were punitive in nature.
[39] The Panel did not err when it ordered the appellant to pay for E.O.’s therapy and counselling in the amount of $17,370.
[40] The Panel did not err in its costs award, which is consistent with other similar cases, reflects the length of the proceeding, involvement of an expert witness and a constitutional challenge which was eventually abandoned.
[41] Section 53.1 of the Code provides that costs can include the costs of the investigation and hearing. The award of costs is discretionary and the standard of review is reasonableness: see Venneri v. College of Chiropractors of Ontario, 2010 ONSC 473 (Div. Ct.), at para. 6. There was no error of principle and the costs award is not plainly wrong.
[42] The Panel considered the relevant factors, the conduct of the appellant at the hearing, and the length of the hearing resulting in costs in the amount of $218,154.72. . Haydarian v. Royal College of Dental Surgeons of Ontario
In Haydarian v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered an RHPA appeal from disciplinary decisions of the Royal College of Dental Surgeons of Ontario. In this quote the court cites the standard of review (SOR) for RHPA disciplinary appeals:[25] With respect to appeals from a sanction imposed by a regulated professions tribunal, the court will interfere with a tribunal’s penalty decision only if the penalty reflects an error in law, an error in principle, or if the penalty is “clearly unfit”: Cabot v. College of Nurses of Ontario, 2023 ONSC 2977 (Div. Ct.), at para. 23, citing Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2022 ONSC 640 (Div. Ct.), at para. 40. A penalty will be clearly unfit where the decision does not fall within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 38, citing Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
|
