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Professionals - Penalties (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 the law of penalties for professional discipline:The Law on Penalty
[100] A determination of penalty is “at the heart of the discretion of an administrative tribunal and a penalty decision is owed great deference”: Reid, at para. 98; Mitelman v College of Veterinarians of Ontario, 2020 ONSC 6171, at para. 34.
[101] Deference is owed also because these tribunals are composed of members of the profession and of the public with the expertise to assess “the level of threat to the public and ... the ... profession posed by certain forms of behaviour”: CPSO v Peirovy, 2018 ONCA 420, at para. 73.
[102] In addition, the tribunal has the benefit of hearing from the witnesses, which gives it a “more comprehensive understanding of the evidence” and because determining the proper penalty “is a question of mixed fact and law, which does not lend itself to the extrication of a pure question of law”: Peirovy, at para 75.
[103] To succeed in his assertion that the penalty imposed was “clearly unfit”, Dr. Dhaliwal must establish that the penalty was disproportionate or fell outside the range of penalties imposed “for similar offences in similar circumstances”: Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (“Jonathan Mitelman”), at para. 18. . Van Arem v. College of Veterinarians of Ontario
In Van Arem v. College of Veterinarians of Ontario (Ont Divisional Ct, 2024) the Ontario Court of Appeal dismissed an appeal against veterinarian misconduct penalty assessments:B. Dr. Van Arem’s penalty appeal
[11] Dr. Van Arem has a statutory right to appeal the penalty decision of the Discipline Committee on any question of law, question of fact or question of mixed fact and law: Veterinarians Act, s. 35(1)(a). As a result, the appellate standards of review apply: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 2 S.C.R. 653, at para. 37.
[12] The burden is on Dr. Van Arem to establish that the Discipline Committee made an error in principle or that the penalty was “clearly unfit.” A regulatory penalty will not be “clearly unfit” unless it is disproportionate or falls outside the range of penalties for similar offences in similar circumstances: Mitelman v. v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para. 18; College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 56.
[13] Dr. Van Arem argues the one-month suspension was disproportionate and outside the range of penalties imposed in other comparable cases. We disagree.
[14] Counsel for Dr. Van Arem relied on two cases to support his position that a suspension is outside the range: Fletcher v. Flanigan, 2023 CanLII 47343 (ON HPARB) and Betts v. Mogavero, 2023 CanLII 2519 (ON HPARB). Both cases involved issues related to inadequate record keeping and both were resolved without a suspension. However, those cases are distinguishable from this case. Neither involved a contested disciplinary hearing. Both were resolved at the investigative stage by the Complaints Committee of the College before the matters were referred for a discipline hearing. In Fletcher, Dr. Flanigan undertook to complete various remedial programs and the Complaints Committee accepted her undertaking. In Betts, the Complaints Committee decided to provide advice to Dr. Mogavero about his professional obligations but did not refer the matter to a discipline hearing.
[15] The fact that other cases involving allegations of inadequate record keeping have been resolved without a suspension does not support a finding that imposing a short suspension after a contested hearing is outside the range. At most, Fletcher and Betts stand for the proposition that, in some cases, a resolution without a suspension may be appropriate.
[16] The Discipline Committee had the jurisdiction to suspend a member’s licence and we are satisfied that that a suspension was within the appropriate range: Veterinarians Act, s. 30(5)(c). The College relied on several cases involving allegations of inadequate record keeping where suspensions were imposed. Some cases were from the Discipline Committee of the College of Veterinarians: College of Veterinarians of Ontario v. Verijlenberg (October 11, 2017, unreported), College of Veterinarians of Ontario v. Kim (July 6, 2017, unreported). Others were from the Discipline Committee of the College of Physicians and Surgeons: Ontario (College of Physicians and Surgeons of Ontario) v. Baranick, 2017 ONCPSD 35 and Ontario (College of Physicians and Surgeons of Ontario) v. Zadra, 2017 ONCPSD 24. Some of the cases only involved findings related to inadequate record keeping, which resulted in short suspensions. Other cases involved more serious allegations of misconduct beyond the inadequate record keeping, which resulted in longer suspensions. Taken as a whole, the cases relied on by the College demonstrate that a suspension is within the range of penalties imposed in other comparable cases.
[17] We are also satisfied that a suspension is a fit penalty given the Discipline Committee’s findings in relation to the aggravating and mitigating factors in Dr. Van Arem’s case.
[18] The Discipline Committee made findings that Dr. Van Arem’s misconduct was serious. The Discipline Committee found that Dr. Van Arem’s medical records were “woefully deficient.”
[19] The Discipline Committee considered the fact that Dr. Van Arem admitted that he engaged in professional misconduct. He did not, however, admit the facts underlying the allegation of misconduct. And the Discipline Committee found that Dr. Van Arem did not grasp the signifance of his misconduct.The Committee was “deeply troubled” by Dr. Van Arem’s testimony. The Committee found that Dr. Van Arem tried to minimize the seriousness of his misconduct and tried to deflect blame for the deficiencies in his records. For example, the Committee rejected Dr. Van Arem’s argument that rules related to record keeping are less important and more difficult to follow in a busy equine practice at a racetrack. The Committee noted that the failure to keep proper records in any setting “puts the animals at risk and makes it significantly more challengeing to justify a treatment or procedure after the fact.” Those findings were open to the Committee to make.
[20] The Discipline Committee also rejected Dr. Van Arem’s evidence that his records were deficient because of problems with the record-keeping software. The Discipline Committee found that Dr. Van Arem’s records were missing key information that was required “to ensure continuity of care and the utmost safety for the horses.”
[21] In the end, the Discipline Committee found that “it was appropriate to impose a sanction that would make clear to the Members that their conduct was not appropriate, it should not be minimized, and that it could have had negative consequences for the animals in their care.”
[22] The Discipline Committee concluded that a brief suspension (coupled with the other remedial terms) was necessary to deter Dr. Van Arem and other members of the College from engaging in similar misconduct in the future. That finding was open to the Discipline Committee and the penalty imposed was fit. . Covant v. College of Veterinarians of Ontario
In Covant v. College of Veterinarians of Ontario (Ont CA, 2023) the Court of Appeal considered (with leave) a further appeal from a s.35 Veterinarians Act Divisional Court appeal, which was in turn an appeal from a College of Veterinarians of Ontario (CVO) Discipline Committee's order that the appellant had "engaged in professional misconduct by re-selling large quantities of veterinary drugs to human pharmacies, contrary to a newly amended regulation".
Here, the court reviewed the standard of review for professional disciplinary penalties:[26] The standard of review for the penalty imposed by the Committee is that of being clearly unreasonable, demonstrably unfit, or representing a substantial and marked departure: see College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at paras. 56-57; Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 6171 (Div. Ct.), at para. 41.
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