Citation: 2008 BCSC 240 Date: 20080228

Transcription

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Sharma v. BC Veterinary Medical Assn.,
2008 BCSC 240
Date: 20080228
Docket: S074566
Registry: Vancouver
Between:
Dr. Rameez Sharma
Appellant
And
British Columbia Veterinary Medical Association
Respondent
Before: The Honourable Madam Justice D. Smith
Reasons for Judgment
Counsel for the appellant:
J. Doyle
Counsel for the respondent:
A. Wade
Date and Place of Trial/Hearing:
January 22 - 24, 2008
Vancouver, B.C.
Sharma v. BC Veterinary Medical Assn.
I.
NATURE OF APPEAL
[1]
Dr. Rameez Sharma appeals the June 15, 2007 decision of the British
Page 2
Columbia Veterinary Medical Association (the “BCVMA”), which suspended him from
practice for a period of one year, fined him $5,000, ordered him to write and pass the
BCVMA Bylaws and Ethics exam before he could be reinstated to the BCVMA’s
register, thereafter restricted him from performing declaws and tendonectomies until
he passed an examination on these topics set by a delegate of the Council, and
ordered him to pay the costs of the inquiry by the BCVMA. The decision was based
on a finding by the BCVMA’s Council (the “Council”) that Dr. Sharma had engaged in
misconduct and was in violation of the Veterinarians Act, R.S.B.C. 1996 c. 476 (the
“Act”) or Rules by virtue of breaching the Code of Ethics of the BCVMA.
[2]
The appeal is taken pursuant to s. 24 of the Act. The section states:
24(1) A person making a complaint in respect to which an inquiry has
been held … or who has been suspended from practice or
whose name has been erased from the register, may appeal
from the decision or direction of the council to the Supreme
Court.
…
(3) The court may, on the hearing of an appeal under subsection
(1),
(a)
reverse, alter or amend the decision or direction,
(b)
order further inquiry by the inquiry committee, or
(c)
make any other order, either as to costs or
otherwise, as to the court seems right, including a
direction that any registration struck out be
restored to the register or that any suspension be
terminated.
[3]
[4]
Page 3
The grounds of appeal are listed as follows:
(i)
The Council breached the principles of fairness and natural justice by
deciding that the Inquiry Committee acted properly in denying the
appellant an adjournment which denied him representation at the
Inquiry Committee by counsel of his choice;
(ii)
The Council breached the principles of fairness and natural justice by
accepting the report of the Inquiry Committee which considered and
relied upon evidence which the appellant claims was not properly
admissible;
(iii)
The Council erred in imposing a penalty that was outside the range of
a fit penalty in the circumstances and without providing sufficient
reasons.
If the Court accedes to any or all of the grounds of appeal it must determine
the appropriate remedy pursuant to s. 24(3) of the Act. That section provides:
The court may, on the hearing of an appeal under subsection (1),
II.
reverse, alter or amend the decision or direction,
(b)
order further inquiry by the inquiry committee, or
(c)
make any other order, either as to costs or otherwise, as
to the court seems right, including a direction that any
registration struck out be restored to the register or that
any suspension be terminated.
BACKGROUND
(i)
[5]
(a)
The Bylaws
The BCVMA is a self-governing professional body for veterinarians. Its
Bylaws include a complaint procedure for written complaints about alleged
Page 4
professional misconduct and unprofessional conduct by one of its members.
Section 42(3) of the Bylaws defines misconduct as including:
[6]
(a)
the failure to bring an adequate level of skill and knowledge to
the practice of veterinary medicine;
(b)
the lack of capability, fitness, or mental condition to practice
veterinary medicine, including a lack of capability, fitness or
mental condition that results from an addiction to or use of a
drug, alcohol or other substance that impairs the member’s
ability to practice veterinary medicine;
(c)
the commission of any offence at law relevant to the fitness to
practice veterinary medicine;
(d)
the violation of the Act, Bylaws including the Code of Ethics, and
any Practice Standards and Practice Facility Standards, or any
other rules of the Association; and
(e)
the obtaining of membership by fraud or misrepresentation.
Once a complaint is received it is investigated by a Complaint Officer. The
Complaint Officer is authorized under s. 46(1) of the Bylaws to take the following
steps where appropriate:
(a)
require any member to submit original medical records and
other materials and documents;
(b)
attend at a facility during reasonable business hours to inspect
the facility or to obtain original medical records and other
materials and documents;
(c)
conduct interviews of any person to obtain information;
(d)
seek the opinion of legal and other advisors; and
(e)
retain the services or private investigators.
[7]
Page 5
Upon completion of the investigation, charges may be laid and referred to the
three-member Conduct Review Committee (the “Inquiry Committee”) for a hearing.
The Registrar must serve notice of the hearing on the member, and the hearing and
the Inquiry Committee’s deliberations must be conducted in camera.
[8]
Following the hearing, the Inquiry Committee prepares a written report of its
findings. A copy of the Inquiry Committee’s report with its findings is then delivered
to the Council, as well as to the member and the complainant. Before Council, the
member may make further submissions in regard to the Inquiry Committee’s
findings. Those proceedings are also held in camera.
[9]
[10]
Section 56 of the Bylaws authorizes the Council to do the following:
(a)
accept the findings of the Inquiry Committee;
(b)
if in its opinion the Inquiry Committee has committed a
significant procedural, factual or legal error, direct a new inquiry
or hearings; or
(c)
if in its opinion there is new evidence that was not reasonably
available earlier and could reasonably be expected to affect the
outcome of the case, require the Inquiry Committee to reopen
the matter and hold a further inquiry.
The Council may dismiss the case or determine that the member:
(a)
has engaged in misconduct;
(b)
is incapable or unfit to practice veterinary medicine overall or in
a particular area of veterinary medicine;
(c)
is otherwise in violation of the Act or rules; or
(d)
obtained membership by fraud or misrepresentation.
[11]
Page 6
Section 57 of the Bylaws authorizes the Council to impose one or more of the
following sanctions:
[12]
(a)
order the member to pay the costs of the inquiry;
(b)
issue a warning to the member;
(c)
issue an admonishment or a reprimand to the member;
(d)
order the member to pay a fine to the Association;
(e)
suspend the member from practice for a period of time;
(f)
restrict the member’s practice, for a period of time or subject to
conditions; or
(g)
revoke the member’s membership and direct that their name be
erased from the Register.
This procedure occurred in regard to two independent complaints made about
Dr. Sharma’s professional services on the felines “Gypsy” and “Emma”.
(ii)
The complaints
(a)
[13]
Gypsy
Gypsy was born with a deformity of both front legs where its paws were
effectively attached to the elbow area and it had no forearms. Its owner took Gypsy
to Dr. Sharma to have a declaw procedure. A day or two later she took the cat
home but noticed a bone sticking out of the cat’s foot. About a week later, she
returned the cat to Dr. Sharma, who kept the cat for several weeks. He finally told
the cat’s owner that Gypsy might have gangrene in its feet. The owner thought her
cat was dying and took Gypsy to Dr. Gutteridge for a second opinion. Dr.
Page 7
Gutteridge, in turn, referred the cat to Dr. Smith at a critical care facility. Thereafter,
Gypsy’s owner filed a complaint with the BCVMA seeking reimbursement for her
costs. She received three-quarters of her costs back from Dr. Sharma.
[14]
Dr. Trudi Roberts, a veterinarian, was appointed the Complaint Officer to
investigate the Gypsy complaint. She requested Dr. Sharma provide his original
medical records and a medical report. She also requested medical records and
medical reports from Drs. Gutteridge and Smith. Copies of their records and reports
were subsequently sent to Dr. Sharma. Dr. Roberts concluded that Dr. Sharma’s
records lacked details, contained discrepancies from those of Drs. Gutteridge and
Smith, and provided a dramatically differing description of Gypsy’s condition from
that given by her owner. Gypsy’s owner believed her cat was dying; Dr. Sharma
said Gypsy was fine at discharge. Dr. Roberts recommended the complaint proceed
to a hearing before the Inquiry Committee.
[15]
As a result of the investigation, Dr. Sharma was charged with the following
offences:
(a)
Breach of the BCVMA’s Code of Ethics by reasons of the
following:
(i)
During the period of August 25, 2003, to September 30,
2003, he failed to use a level of care, skill, and
knowledge expected of a reasonably competent
practitioner in the advice and management of treatment
of Gypsy, contrary to s. 31 of the Code of Ethics;
(ii)
During the period of August 25, 2003, to September 30,
2003, he failed to use a level of care, skill, and
knowledge expected of a reasonably competent
practitioner in performing a declaw procedure of Gypsy,
contrary to s. 31 of the Code of Ethics;
[16]
(iii)
During the period August 25, 2003, to September 30,
2003, he failed to create, maintain, and keep current a
medical record containing appropriate detail of the
history, examination, diagnosis, recommendations and
other treatment, including medications prescribed and
administered, and other pertinent information contrary to
section 81 of the Code of Ethics;
(iv)
During the period August 25, 2003, to September 30,
2003, he falsified, deliberately, the medical record of
“Gypsy”, with the intent to mislead the Complaint Officer
of the Association and thereby breached sections 5, 6, 7,
8, 10 and 14 of the Code of Ethics.
(b)
Emma
Page 8
Emma was brought into Dr. Sharma for spaying, a flea treatment, a nail trim
and a microchip. The treatment was to be completed that day, but when Emma’s
owners went to pick her up Dr. Sharma advised them that he had to keep the cat
overnight. Emma’s owners refused to leave their cat with him. When they went to
retrieve Emma they noticed that her feet were abnormal looking. They asked Dr.
Sharma why Emma’s feet were wet, but he did not answer except to say that there
had been some complications with the anaesthesia. When they went to pick her up,
Emma screeched excessively and lunged at them.
[17]
At home, Emma refused to eat, drink, or go to the bathroom for several days.
She also appeared in pain and simply lay on the bed, which her owners said was
contrary to her personality. They eventually took Emma to a veterinary clinic where
she was given aspirin. Later, they took Emma to another veterinary clinic, where Dr.
Douglas examined the distressed cat. He reported seeing deep cuts on the cat’s
paws, which he said were infected and pussy. He prescribed medication for the cat
Page 9
and told her owners that Emma had been given a tendonectomy, which in his
opinion was a “dinosaur” procedure. He recommended that they file a complaint.
The owners filed a complaint and were advised by the BCVMA to have the cat
independently assessed by Dr. Schiller, which they did.
[18]
Dr. Adrian King-Harris, a veterinarian, was appointed the Complaint Officer to
investigate the Emma complaint. He requested the records and a report from Dr.
Sharma and from Emma’s owners. Dr. King-Harris also obtained Dr. Schiller’s
medical records which he disclosed to Dr. Sharma. Dr. Sharma’s medical records
did not mention a tendonectomy. In his report, Dr. Sharma denied that he had
performed a tendonectomy on Emma. His records also did not mention the
anaesthetic problem or provide details of the cat’s post-operative condition. In a
joint statement, the owners reported that Dr. Sharma had denied that he had
declawed Emma and maintained that “All I did was trim her nails.” They said he also
“said something [they] did not understand, but they believe, after talking to another
veterinarian, was the word tendonectomy.” Dr. Schiller, on the other hand,
confirmed that Emma had received a tendonectomy. Dr. King-Harris also received a
letter from Dr. Sharma’s former veterinary assistant, Deborah Lockyer-Kash. Her
letter contained a torn up medical record for Emma that Ms Lockyer-Kash said was
the original record. The record was torn into six pieces, had some scribbled out
words and had been partially “whited-out”. When Dr. King-Harris asked Dr. Sharma
for an explanation, Dr. Sharma initially denied doing a tendonectomy but later said
that a Surrey veterinary clinic must have performed the procedure. A subsequent
inquiry with that clinic showed no record of a tendonectomy. Eventually, Dr. Sharma
Page 10
admitted that he may have been mistaken and have performed a tendonectomy on
Emma in error. Dr. King-Harris recommended that the complaint on Emma proceed
to a hearing before the Inquiry Committee.
[19]
As a result of the investigation, Dr. Sharma was charged with the following
offences:
(a)
Breach of the BCVMA’s Code of Ethics by reason of the
following:
(i)
During the period April 13, 2004, to April 15, 2004, he
failed to use a level of care, skill, and knowledge
expected of a reasonably competent practitioner in the
level of performance of a tendonectomy on the feline
Emma, contrary to s. 31 of the Code of Ethics;
(ii)
During the period of April 13, 2004, to April 15, 2004, he
failed to obtain informed consent as to the services to be
provided to a patient by not providing the Client with the
information, including advice, reasonably required to
enable the Client to make an informed choice concerning
the health care of her animal contrary to s. 36 of the
Code of Ethics;
(iii)
failed to create, maintain and keep current a medical
record containing appropriate detail of the history,
examination, diagnosis, recommendations, and other
treatment, including the performance on a tendonectomy,
contrary to s. 81 of the Code of Ethics;
(iv)
falsified, deliberately, the medical record, and made
misleading statements to the Client regarding the
performance of a tendonectomy on Emma, contrary to ss.
5 – 8, 10 and 35 of the Code of Ethics;
(v)
falsified, deliberately, the medical record of Emma with
the intent to mislead the Complaint Officer of the BCVMA
and thereby breached ss. 5, 6, 7, 8, 10 and 14 of the
Code of Ethics;
(vi)
(iii)
[20]
Page 11
During the period of May 24, 2004, to December 2, 2004,
he made misleading statements to the Complaint Officer
of the BCVMA that he did not perform a tendonectomy on
Emma when he knew the statement to be untrue,
contrary to ss. 6, 7, 8, 10 and 14 of the Code of Ethics.
The Inquiry Committee
On March 8, 2006, Dr. Sharma was served with a Notice of Inquiry for August
28, 2006, in regard to the charges on Gypsy and Emma. On May 31, 2006, Dr.
Sharma requested an adjournment of that date. That application was heard by
telephone conference on July 21, 2006. During the application, Dr. Sharma’s
counsel indicated that he had no available dates in 2006.
[21]
The Inquiry Committee concluded that it would not be in the public interest to
adjourn the hearing into 2007. It granted Dr. Sharma’s adjournment request but
imposed conditions that the hearing had to be re-scheduled before the end of the
2006 calendar year and that all parties had to make at least four consecutive days
available for the hearing. If the parties could not agree on those conditions within 30
days, the Inquiry Committee stated that it would impose a date peremptory on both
parties.
[22]
The parties were unable to agree on the dates for a consecutive four-day
hearing. Consequently, the Inquiry Committee imposed the dates of October 5, 6,
10 and 11, 2006. Those dates were an attempt to accommodate some of the dates
that Dr. Sharma’s counsel had indicated he was available (October 5 and 6, and
Page 12
October 9 which was a holiday). The imposed schedule included two dates on
which Dr. Sharma’s counsel had indicated he was not available (October 10 and 11).
[23]
On October 4, 2006, Dr. Sharma’s counsel wrote to counsel for the BCVMA
to advise them that he no longer represented Dr. Sharma.
[24]
On October 5, 2006, the Inquiry Committee commenced the hearing with Dr.
Sharma in attendance. The three-member panel included a Chair non-veterinarian
and two veterinarians. The Inquiry Committee had the assistance of its own counsel
at the hearing. The BCVMA had separate representation. Dr. Bhullar, a colleague
of Dr. Sharma’s, attended the hearing with Dr. Sharma in the capacity as Dr.
Sharma’s agent advocate.
[25]
At the outset of the hearing Dr. Bhullar requested an adjournment stating that
Dr. Sharma’s counsel was not available. Dr. Bhullar provided no explanation for the
October 4, 2006 letter from Dr. Sharma’s previous counsel; nor did he explain why
Dr. Sharma’s previous counsel was not in attendance for the first day of the hearing
if he was still acting for Dr. Sharma. He also did not provide any evidence of
attempts Dr. Sharma may have made between August 26 and October 5, 2006 to
retain alternate counsel.
[26]
The Inquiry Committee declined to adjourn the hearing. In particular, it noted
that the matter had been adjourned once previously, the hearing date was
peremptory on both parties, and that both parties had been given sufficient time to
secure their evidence and counsel. It concluded that it would not be in the best
interests of the public nor of the parties involved to delay the matter until 2007.
[27]
Page 13
After the adjournment request was refused, the Inquiry Committee addressed
a number of preliminary issues. Dr. Bhullar continued to make requests for an
adjournment and each request was denied. Mid-day on the first day of the hearing,
Dr. Sharma and Dr. Bhullar absented themselves from the hearing and never
returned. The hearing continued in their absence on October 6 and 10.
[28]
In regard to the cat Gypsy, Dr. Roberts gave evidence about her investigation
and the state of Dr. Sharma’s medical records regarding the surgical techniques he
had employed, the feline’s post-operative care and its healing. At the hearing, she
produced Drs. Gutteridge’s, Smith’s and Sharma’s medical records. She did not
expressly notify Dr. Sharma that these records would be tendered as evidence at the
hearing and Dr. Gutteridge was not available to testify. Dr. Smith was available and
testified that his examination of Gypsy disclosed the cat had necrosis of the toes and
white circumferential scarring on both feet. In his opinion, the circumferential
scarring was caused by too-tight bandaging.
[29]
Dr. McKelvey, a veterinarian specializing in felines, testified as an expert
witness regarding Gypsy’s treatment. Immediately before she testified, counsel for
the BCVMA announced that his next witness would be Dr. McKelvey. At that point
two of the three panel members noted on the record that they had previously worked
with Dr. McKelvey on a matter. In response to an inquiry from the Chair, both
maintained that their prior relationship with Dr. McKelvey would not impact their
impartiality and ability to sit on the Inquiry Committee.
[30]
Page 14
Dr. McKelvey had been retained by the BCVMA to give an opinion on the two
complaints. She reviewed all of the medical records on the two felines and prepared
a written report which was served on Dr. Sharma. In her report she found that Dr.
Sharma’s services for both felines had fallen below the requisite standard of care
and that his information to the BCVMA on his treatment of Emma was incorrect and
misleading and constituted unprofessional conduct. Her report did not address the
standard of his medical records.
[31]
Dr. McKelvey did not see or examine Gypsy. Her opinion was based on the
medical records of the other veterinarians, including Dr. Sharma’s medical report
and his records. In her opinion, Dr. Sharma’s records were lacking in detail as to the
method of declaw, the extent of tissue removal and the method of closure. She
stated they also failed to record any visual appearance of the paws, the discomfort
shown by the cat, the treatment of the cat, the medications given to the cat, and
failed to indicate any treatment after the dead tissue had been removed. In her
opinion, the excessive pressure from incorrectly applied bandages and tourniquets
would lead to necrosis and was the likely cause of the circumferential scarring.
[32]
In regard to the cat Emma, Dr. King-Harris gave evidence about his
investigation. He produced a copy of Dr. Sharma’s surgical log book which he had
received in another unrelated investigation. He acknowledged that Dr. Sharma had
not been advised that his surgical log book would be produced in this hearing
although Dr. Sharma had forwarded him a copy of the relevant portions of the book.
[33]
Page 15
The Inquiry Committee permitted Ms Lockyer-Kash to testify by telephone
after they were satisfied with her identity. She confirmed that the owners had
requested that Emma receive a nail trim and did not request a tendonectomy. She
said that she had found the medical record she had started for Emma in Dr.
Sharma’s garbage bin, all torn up with some white-out on it. She pocketed the
pieces. She also said that Dr. Sharma’s surgical log book had been whited-out on
the procedure performed on Emma. She stated that when Dr. Sharma became
suspicious, he took her aside and told her that if anything went out of the office there
would be legal consequences.
[34]
The Inquiry Committee examined the surgical log book but did not see any
apparent “whited-out” areas as alleged by Ms Lockyer-Kash. The log book noted
that Emma had received a tendonectomy. The Inquiry Committee ultimately decided
not to consider the surgical log book in its deliberations and did not rely on Ms
Lockyer-Kash’s evidence in that regard as Dr. Sharma had not been advised that the
surgical log book would be produced at the hearing, The panel did examine the torn
up and whited-out pieces produced by Ms Lockyer-Kash. Their observations
suggested the word “tendonectomy” had been written on the torn up pieces.
[35]
One of Emma’s owners testified that she had never requested a
tendonectomy or any type of procedure on the cat’s feet other than a nail trim. She
stated that Dr. Sharma had mumbled something which was inaudible to her because
of Dr. Sharma’s heavy accent. The other owner stated that if he had heard Dr.
Sharma say something sounding like “ectomy” he would have immediately thought
of cutting and removal and would have asked what that meant.
[36]
Page 16
Dr. McKelvey, the feline expert, testified in regard to the complaint in relation
to Emma. She said that a declaw is more widely done than a tendonectomy, but
that a tendonectomy is not barbaric and that some view it as more humane because
it is less invasive than a declaw. She said that after a tendonectomy the paws and
gait should appear normal within a few hours and the flat-footed description by the
owners was not a normal result of the surgery. In her opinion, Emma’s flatfootedness was likely a result of a too-deep incision and cutting the tendon too high
which would damage the structure of the foot and affect the ability of the cat to put
weight on the normally used part of the foot. She further noted that there was no
mention of a tendonectomy or an anaesthesia being used on Emma in Dr. Sharma’s
medical records, or of any complications from the surgery or what resuscitation
steps were taken. In her written report on Emma, Dr. McKelvey referred to Dr.
Schiller’s reported observations and opinion.
[37]
Drs. Gutteridge and Schiller were not called as witnesses at the hearing
because they were not available to testify. Although counsel for the BCVMA
requested an adjournment to permit them to do so, the Inquiry Committee denied
that request in light of its decision not to grant Dr. Sharma’s request for an
adjournment. In view of Dr. Schiller’s unavailability to testify and the lack of service
of his report on Dr. Sharma, the Inquiry Committee held that his report was
inadmissible.
[38]
In Dr. Sharma’s absence, none of the witnesses were subjected to cross-
examination although members of the panel on occasion interjected with their own
questions.
[39]
Page 17
On December 17, 2006, the Committee issued a report of its findings to
Council (the “Report”).
[40]
In regard to the feline Gypsy, the Report recommended that two of the
charges relating to Gypsy be dismissed but that Dr. Sharma be found guilty of the
remaining two charges:
[41]
(a)
that he failed to use a level of care, skill and knowledge
expected of a reasonably competent practitioner; and
(b)
that he failed to create, maintain, and keep current a medical
record containing appropriate detail.
In regard to the feline Emma, the Report recommended that Dr. Sharma be
found guilty of all of the charges:
[42]
(a)
that he failed to use a level of care, skill and knowledge
expected of a reasonably competent practitioner;
(b)
that he failed to obtain informed consent as to the services to be
provided;
(c)
that he failed to create, maintain and keep current a medical
record;
(d)
that he deliberately falsified the medical record with the intent to
mislead the BCVMA’s Complaint Officer; and
(e)
that he made misleading statements to the Complaint Officer
that he did not perform a tendonectomy on Emma when he
knew the statements to be untrue.
It was the finding of the Inquiry Committee that Dr. Sharma had undertaken
an elaborate scheme to hide the original medical record for Emma. Based on that
finding and the totality of all the other evidence it found that Dr. Sharma knew all
Page 18
along that he had performed a tendonectomy. It concluded that Dr. Sharma had
been dishonest and knowingly made misleading statements to the Complaints
Officer when he denied having performed the procedure.
[43]
The Council considered the Report at a hearing held on February 17 and
March 24, 2007. Dr. Sharma was represented by his previous counsel at that
hearing. Much of his submissions before the Council addressed the failure of the
Inquiry Committee to grant Dr. Sharma’s request for an adjournment which deprived
him of the right to be represented by legal counsel. His counsel also touched on his
claim of the panel’s alleged partiality because two of its members had had previous
dealings with Dr. McKelvey. He did not address the issue of the admissibility of the
experts’ reports. At the conclusion of the hearing before the Council Dr. Sharma
stated: “I do admit that I made a mistake and I am very sorry and regretful, and I am
already improving myself and I continue to do that and it won’t happen again.”
[44]
In a written decision issued June 14, 2007, the Council accepted the Report
and found Dr. Sharma guilty of unprofessional conduct, misconduct and having
breached the BCVMA’s Code of Ethics. It found that Dr. Sharma had ample time to
retain counsel of his choosing and that the hearing dates were selected in a
balanced fashion. It ordered that he:
(a)
be suspended from practice for one year commencing July 15,
2007;
(b)
be restricted from performing declaws and tendonectomies until
he passes an examination on these topics set by a delegate of
the Council;
(c)
pay a fine of $5,000 by July 12, 2007;
(d)
not be reinstated to the register of the BCVMA until he passes
the BCVMA’s Bylaws and Ethics exam; and
(e)
pay the costs of the inquiry to the BCVMA.
Page 19
[45]
An application for a stay of the order was dismissed on July 11, 2007.
[46]
Since the Council’s order Dr. Sharma has paid the $5,000 fine.
III.
THE GROUNDS OF APPEAL
[47]
Counsel for the appellant submits that the hearing before the Inquiry
Committee was flawed on procedural and evidentiary grounds and that a further
inquiry is needed in the interests of fairness and natural justice based on a standard
of review of correctness.
[48]
In terms of the process, counsel for the appellant contends that the Inquiry
Committee’s refusal to grant Dr. Sharma an adjournment was an effective denial of
his right to be represented by counsel, which amounted to a breach of the principles
of fairness and natural justice. He further submits that the panel should not have
heard the evidence of Dr. McKelvey in light of the potential conflict issue raised by
two of the panel members who were previously acquainted with her. He also
contends that a critical witness, Ms Lockyer-Kash, should not have been permitted
to testify by phone in the absence of an application to do so.
[49]
In regard to the evidence considered by the Inquiry Committee, counsel for
the appellant claims much of the expert opinion evidence was inadmissible. He
submits that as there are no provisions in the BCVMA’s Bylaws for the manner in
Page 20
which its hearings are to be conducted, its procedures are governed by the rules set
out in the B.C. Evidence Act, R.S.B.C. 1996, c. 124, which state:
10(1) In this section and sections 11 and 12, “proceeding” includes a
quasi-judicial or administrative hearing …
(2) This section and section 11 do not apply to proceedings of a
tribunal, commission, board or other similar body that enacts or makes
its own rules for the introduction of expert evidence and the testimony
of experts …
(3) A statement in writing setting out the opinion of an expert is
admissible in evidence in a proceeding without proof of the expert’s
signature if, at least 30 days before the statement is given in evidence,
a copy of the written statement is furnished to every party to the
proceeding that is adverse in interest to the party tendering the
statement.
…
11(1) A person must not give, within the scope of that person’s
expertise, evidence of his or her opinion in a proceeding unless a
written statement of that opinion and the facts on which that opinion is
formed has been furnished, at least 30 days before the expert testifies,
to every party that is adverse in interest to the party tendering the
evidence of the expert.
(2) Despite subsection (1), the person presiding in a proceeding
may, on his or her own initiative or on the application of a party, do one
of the following:
(a)
if the statement has not been furnished, order that the
expert may testify;
…
[50]
As these provisions were not complied with, counsel for the appellant submits
that the following evidence was not admissible and should not have been accorded
any weight: (i) the opinion evidence of Dr. Roberts on the state of Dr. Sharma’s
Page 21
medical records, for which there was no notice; (ii) the opinion evidence of Dr.
McKelvey on the state of Dr. Sharma’s medical records that was not included in her
report and therefore which Dr. Sharma did not receive any notice; (iv) the opinion
evidence of Dr. McKelvey on Dr. Sharma’s standard of care of Emma that was
based in part on her review of Dr. Schiller’s report which the Inquiry Committee held
was inadmissible.
[51]
Third, counsel for the appellant submits that the penalty imposed by the
Council should also be reviewed on a standard of correctness because in its totality
(one year suspension, $5,000 fine and costs) it was longer and harsher than the
appropriate range.
IV.
DISCUSSION
(a)
[52]
The standard of review
The pragmatic and functional approach to determining the appropriate
standard of review for judicial reviews and statutory appeals of discretionary
decisions of administrative tribunals was first crafted in U.E.S., Local 298 v.
Bibeault, [1988] 2 S.C.R. 1048, and “gained ascendancy” in Canada (Director of
Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R.
748 and Pushpanathan v. Canada (Minister of Citizenship and Immigration),
[1998] 1 S.C.R. 982. More recently it was reiterated in Dr. Q. v. College of
Physicians and Surgeons of British Columbia, 2003 S.C.C. 19, [2003] 1 S.C.R.
226. This approach requires the reviewing Court to weigh the following four factors
in determining the appropriate standard of review:
[53]
Page 22
(i)
the presence or absence of a privative clause or statutory right
of appeal;
(ii)
the expertise of the tribunal relative to that of the reviewing court
on the issue in question;
(iii)
the purpose of the statute in question and the provisions at
issue;
(iv)
the nature of the question (law, fact, or mixed law and fact).
In Dr. Q, and thereafter in Ryan v. Law Society of New Brunswick, 2003
SCC 20, [2003] 1 S.C.R. 247, the Supreme Court of Canada clarified that there are
only three standards of review: correctness; reasonableness simpliciter; and patent
unreasonableness. The correctness standard requires little or no deference be
shown to the administrative tribunal’s decision and the court may substitute its own
decision for the one under review. The patent unreasonableness standard requires
considerable deference to the administrative tribunal’s decision and limits judicial
intervention to where a defect is rooted “in the immediacy or obviousness of the
defect” (Southam at ¶57), or the decision is “clearly irrational” or “bordering on the
absurd” (Voice Construction Ltd. v. Construction and General Workers Union,
Local 92, [2003] 1 S.C.R. 539). Ryan at ¶52 described it as “[a] decision that … is
so flawed that no amount of curial deference can justify letting it stand.”
[54]
Between the review standards of correctness and obvious error, lies the
standard of reasonableness simpliciter. In Southam, at ¶56, the court described this
standard of review as whether the decision could stand up to a “somewhat probing
examination”. In Ryan at ¶55 the court described it as permitting judicial
interference only if there “is no line of analysis within the given reasons that could
Page 23
reasonably lead the tribunal from the evidence before it to the conclusion at which it
arrived” and requiring the decision to be upheld “if it is supported by a tenable
explanation even if this explanation is not one that the reviewing court finds
compelling.” In short, it is not the correctness of the decision that is reviewed but the
reasoning employed in reaching that decision. Moreover, when determining if the
analysis was reasonable, the court is required to look at the reasons taken as a
whole, and not subject every element of the reasoning to a separate test of
reasonableness.
(b)
[55]
The duty of natural justice and procedural fairness
Contrasted with the pragmatic and functional approach is the common law
duty to comply with rules of natural justice and to follow rules of procedural fairness.
This duty applies to all administrative bodies acting under statutory authority and
does not invoke standard of review issues: Moreau-Bérubé v. New Brunswick
(Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; and Wong v. College of
Traditional Chinese Medicine Practitioners and Acupuncturists of British
Columbia, 2005 BCCA 509, 50 B.C.L.R. (4th) 239. Rather, in assessing an
administrative tribunal’s duty of natural justice and procedural fairness, the Court
must determine whether the procedure followed in a given case was fair or not,
having regard to the relevant circumstances.
[56]
The duty of procedural fairness is governed by a rigid set of requirements but
adopts a “flexible and variable” approach to assessing what is required in the
specific context of each case. See Baker v. Canada (Minister of Citizenship and
Page 24
Immigration), [1999] 2 S.C.R. 817 at ¶21. In Baker at ¶22, L’Heureux-Dubé
underscored the purpose of the duty “is to ensure that administrative decisions are
made using a fair and open procedure, appropriate to the decision being made and
its statutory, institutional, and social context, with an opportunity for those affected
by the decision to put forward their views and evidence fully and have them
considered by the decision-maker.”
[57]
The content of the duty of fairness is determined by an application of a non-
exhaustive list of factors that were identified Baker (the “Baker” factors), and which
include:
(a)
The nature of the decision being made and the process followed
in making it;
(b)
The nature of the statutory scheme and the terms of the statute
pursuant to which the body operates;
(c)
The importance of the decision to the individual or individuals
affected;
(d)
The legitimate expectations of the person challenging the
decision; and
(e)
[58]
The choices of procedure made by the agency itself.
Procedural fairness also requires that decisions be made free from a
reasonable apprehension of bias and by an impartial decision-maker. The test to be
applied is whether a reasonable and well-informed member of the community would
conclude that the decision-maker(s) had approached the case with the impartiality
appropriate to the decision being made. It also requires that the tribunal afford the
member reasonable procedures at the hearing.
[59]
Page 25
In summary, the characterization of the issues under appeal and the
determination of the appropriate standard of review of those issues arising from the
tribunal’s discretionary decision, are critical to the reviewing court’s analysis.
(c)
[60]
The characterization of the issues
I have concluded that the issues of Dr. Sharma’s adjournment application at
the outset of the Inquiry Committee’s hearing, the allegation of a reasonable
apprehension of bias of the two panel members who had prior dealings with Dr.
McKelvey, and the procedure employed to permit Ms Lockyer-Kash to testify by
phone, require a determination of the content of the duty of natural justice and
procedural fairness in this case. That, in turn, requires an application of the Baker
factors.
[61]
The issue of the appropriateness of the penalty imposed on Dr. Sharma
involves a review of the BCVMA’s substantive decision on a sanction and therefore
is subject to the pragmatic and functional approach in determining the appropriate
standard of review. Counsel agree the issue is one of mixed fact and law and
therefore the standard of review of reasonableness simpliciter should be applied:
Ryan; Familamiri v. Assn. of Professional Engineers and Geoscientists of
British Columbia, 2004 BCSC 660.
[62]
The more difficult characterization is Dr. Sharma’s complaint that the Inquiry
Committee relied on inadmissible evidence to reach its findings. In particular, he
alleges the Complaint Officers’ evidence regarding the state of his medical records
was opinion evidence for which they were not qualified and for which he did not
Page 26
receive notice. He challenges the Inquiry Committee’s receipt of Dr. McKelvey’s
opinion evidence in regard to his standard of care of Emma as it relied on Dr.
Schiller’s observations as contained in his report, which was held to be inadmissible
as he was not available to testify. He further challenges the admissibility of Dr.
McKelvey’s opinion evidence on the state of his medical records on Emma as that
opinion was not included in her medical report and therefore he did not receive
notice of that opinion. In other words, Dr. Sharma contends that the Inquiry
Committee relied on inadmissible evidence by reason of its failure to comply with the
requirements of ss. 10 and 11 of the B.C. Evidence Act, which error went to its
jurisdiction and therefore its duty of procedural fairness. In that regard, he relies on
Wong to support his position that this issue falls within the duty of procedural
fairness.
[63]
The respondent submits that this issue goes to a review of the tribunal’s
substantive decision and therefore is subject to the pragmatic and functional
approach for review of its discretionary decision. It contends the appropriate
standard of review is that of reasonableness simpliciter.
[64]
I have concluded that this ground of appeal raises both procedural fairness
and standard of review issues. The former arises because of the alleged
unreasonable procedure used by the Inquiry Committee to receive expert opinion
evidence. The latter arises from the findings of fact made by the Inquiry Committee
based on that evidence.
[65]
Page 27
In regard to the standard of review issue, Baker makes it clear that a review
of a substantive aspect of an administrative tribunal’s discretionary decision, where
the decision-maker is given a choice of options within a statutorily imposed set of
boundaries, is best approached within the pragmatic and functional framework.
Applying the factors in Dr. Q. considerable deference must be given to the BCVMA’s
role as set out in its statutory scheme and the fact-driven nature of the Inquiry
Committee’s hearing. Offset against those factors is the Act’s right of a statutory
appeal and the polycentric nature of the decisions. In reviewing the Inquiry
Committee’s and the Council’s reports, I have concluded that the appropriate
standard or review on the merits of the Council’s decision to be that of
reasonableness simpliciter.
V.
ANALYSIS
(a)
[66]
The duty of procedural fairness
The content of the duty of procedural fairness in this case is more than
minimal. The nature of the decision involved a professional’s livelihood. The
BCVMA is governed by the provisions of the Act and its Bylaws which set out the
grounds for a statutory appeal. It is also governed by the provisions of the B.C.
Evidence Act as it has not implemented any procedural rules to govern the manner
in which the Inquiry Committee is to proceed. I am satisfied that the Bylaws
governing the procedure for complaints against the BCVMA‘s members reflect the
importance of the duty of fairness in the circumstances of this case.
[67]
Page 28
The appellant submits that the Inquiry Committee was wrong to deny his
adjournment request at the outset of the hearing. He contends that at that time the
respondent knew it intended to seek an adjournment of the hearing because Drs.
Gutteridge and Schiller were not available. Had it advised the panel members that it
too would be requesting an adjournment, he submits, the outcome of the appellant’s
application might have been different and he could have ensured that he had legal
representation for the hearing.
[68]
The appellant also contends that the panel as it was constituted should not
have proceeded with the hearing knowing that Dr. McKelvey would be a witness as
that would create a reasonable apprehension of bias for the appellant, given the two
panel members previous association with Dr. McKelvey. Dr. Sharma also takes
issue with the manner in which Ms Lockyer-Kash’s evidence was received. Lastly,
he contends that because the BCVMA failed to comply with the provisions of the
B.C. Evidence Act it committed a jurisdictional error which can only be rectified by a
new hearing.
[69]
The respondent submits that Dr. Sharma was given time to retain counsel,
had discharged his previous counsel who had advised the BCVMA that he was no
longer acting for Dr. Sharma, and provided no evidence of why he had been unable
to retain alternate counsel or what steps he had taken to do so in the time he had
been allotted by the Inquiry Committee. The respondent further submits that by
absenting himself from the Inquiry Committee’s hearing, Dr. Sharma waived any
objections he now makes as to the process and procedures it employed to reach its
decision. In that regard, the respondent relies on Violette v. New Brunswick
Page 29
Dental Society, 2004 NBCA 1, 267 N.B.R. (2d) 205, and Tomaszewska v. College
of Nurses of Ontario, [2007] O.J. No. 1731.
(i)
[70]
Should Dr. Sharma have been granted an adjournment?
The issue of an adjournment of the initial hearing date of August 21, 2006,
was addressed on July 21, 2006. Dr. Sharma was represented by counsel for the
application. His counsel made submissions that included his lack of availability in
2006. The Inquiry Committee reached a decision to grant the appellant’s request for
an adjournment on conditions that the new date be scheduled in 2006 and that it be
set for four days peremptory on both parties.
[71]
This decision was well within the Inquiry Committee’s jurisdiction to make.
When it denied Dr. Sharma’s request for a further adjournment on the first day of the
hearing, it set out its reasons for that decision in its Report at the end of the hearing.
In its Report, it noted that the issue had been addressed at the initial application in
July 2006 and that the ruling from that application made the new hearing date
peremptory on both parties.
[72]
In my view, the appellant’s application for a further adjournment on the first
day of the hearing, on the grounds that he did not have counsel, was simply an
attempt to revisit the Inquiry Committee’s earlier ruling. He provided no new
evidence to support his application, including why he had been unable to retain
counsel in the four months he had been given to do so, or why, if his previous
counsel who was no longer acting for him but may have been available for the first
Page 30
three days of the new hearing date, was not present to address the application or at
least start the hearing.
[73]
The unavailability of a lawyer of choice for a disciplinary hearing is not
grounds for an adjournment, particularly in the absence of any evidence by the
applicant of what attempts he had made to retain other counsel. This was the very
issue in Stolove v. College of Physicians and Surgeons of Ontario, [1988] O.J.
No. 1426 (Div. Ct.)(QL), where the court stated at ¶2:
The law is clear that an adjournment is a matter of discretion that must
be exercised judicially. It is not a question of whether there resulted a
fair hearing but whether the appellant may have been prejudiced. …
The unavailability of a lawyer of choice is not grounds for an
adjournment.
[Citations omitted.]
[74]
The court went on to state at ¶3:
In considering whether the Committee exercised its discretion properly,
only the evidence that was before the Committee at the time of such
evidence can be considered. Subsequent events or facts not brought
to the Committee’s attention are not relevant.
[75]
The court concluded at ¶7:
The Committee had the right to govern its own proceedings. Dr.
Stolove had been told long in advance that the matter was peremptory.
The requested adjournments appeared to the Committee to be for the
convenience of counsel number three and not related to the merits or
preparation for the hearing. There was not sufficient evidence for the
Committee to indicate that Dr. Stolove was unable to retain any
counsel. While it may have been desirable for Dr. Stolove to be
represented by counsel, the procedure adopted by the Committee did
not deny him that right. Dr. Stolove knew in April that the hearing was
peremptory and, on September 15th, he knew that the Committee
would not adjourn the hearing. He had ample time to retain other
Page 31
counsel who could represent him. He did not do so. I believe that the
Committee acted properly throughout. There was no denial of natural
justice.
[76]
The circumstances in Stolove are apposite to the circumstances in this case.
There is one additional factor in this case, however, namely the appellant’s claim
that had the Inquiry Committee known that the BCVMA would be seeking an
adjournment mid-hearing it might have reconsidered its position on his adjournment
request. As in Stolove, this factor was not disclosed at the time of the appellant’s
adjournment request and only came to light thereafter. It falls within the category of
subsequent facts that were not relevant to the Inquiry Committee’s decision. Even if
it was relevant, I find it most unlikely that the Inquiry Committee would have granted
a further adjournment given its insistence that the new hearing was peremptory on
both parties and its making clear to both parties through its rulings that it intended to
proceed with the hearing at that time.
(ii)
[77]
Was there a reasonable apprehension of bias?
The appellant raises this issue based on an exchange between two panel
members and counsel for the BCVMA during which the two panel members
disclosed that they had had a previous dealing with Dr. McKelvey. During the
exchange, the Chair intervened and made several inquiries of the other two panel
members. After those inquiries she was satisfied there was nothing in their previous
relationship with Dr. McKelvey which impacted on their impartiality and ability to
participate on the Inquiry Committee.
[78]
Page 32
The test for determining if a reasonable apprehension of bias exists was
articulated in Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R.
259, and applied in Taylor Ventures Ltd. (Trustee of) v. Taylor, 2005 BCCA 350,
where at ¶7 the court adopted the following summary of the principles from counsel’s
factum:
[79]
(i)
a judge’s impartiality is presumed;
(ii)
a party arguing for disqualification must establish that the
circumstances justify a finding that the judge must be
disqualified;
(iii)
the criterion of disqualification is the reasonable apprehension
of bias;
(iv)
the question is what would an informed, reasonable and rightminded person, viewing the matter realistically and practically,
and having thought the matter through, conclude;
(v)
the test for disqualification is not satisfied unless it is proved that
the informed, reasonable and right-minded person would think
that it is more likely than not that the judge, whether consciously
or unconsciously, would not decide fairly;
(vi)
the test requires demonstration of serious grounds on which to
base the apprehension;
(vii)
each case must be examined contextually and the inquiry is
fact-specific.
Having reviewed the transcript of the exchange between the Chair and the
panel members on this issue, I am satisfied there was no evidence before the
Inquiry Committee that met the standard required by this test for recusal based on a
reasonable apprehension of bias.
(iii)
[80]
Page 33
Should Ms Lockyer-Kash have been permitted to testify by
phone?
I see no grounds to interfere with the Inquiry Committee’s decision to permit
this witness to testify by phone. The decision was well within the jurisdiction of that
adjudicative body to make.
(iv)
[81]
Did the Inquiry Committee consider inadmissible evidence?
The appellant relies on the provisions of ss. 10 and 11 of the B.C. Evidence
Act to support his submission that much of the opinion evidence relied upon by the
Inquiry Committee to make its finding was inadmissible for the reasons already
stated.
[82]
The respondent submits that Drs. Roberts and King-Harris gave only “fact
finding” evidence but that in any event an administrative tribunal is not bound by the
evidentiary and procedural rules, including notice rules applicable to civil or criminal
proceedings. Apart from any statutory rules of procedure, counsel submits that an
administrative tribunal need only act in accordance with the general rules of natural
justice and procedural fairness and that, subject to those restrictions, evidence is
freely admissible and its weight is a matter for the tribunal to decide.
[83]
Dr. Sharma knew the Complaints Officers were qualified veterinarians. He
was advised by each that they had reviewed the medical records provided by
himself, Drs. Gutteridge and Smith. He was provided copies of Drs. Gutteridge’s
and Smith’s medical records. He was aware from that information of their concerns
Page 34
bout his treatment of Gypsy and Emma. He also knew from copies of the Complaint
Officers’ reports that he had received, of their opinions about the state of his medical
records.
[84]
Dr. Sharma was also served with Dr. McKelvey’s report in which she outlined
her expert opinion about his standard of care in his treatment of the two felines.
That report met the requirements of the B.C. Evidence Act. Her opinion evidence
regarding the state of his medical records did not as it was not outlined in her report.
[85]
Section 10(2) of the B.C. Evidence Act excludes the provisions of s. 11
requirements regarding the testimony of experts “to proceedings of a tribunal,
commission, board or other similar body that enacts or makes its own rules for the
introduction of expert evidence and the testimony of experts ….” In this case the
BCVMA has not made any rules in this procedural area of the law.
[86]
Section 11(1) provides that written notice of an expert’s qualifications along
with his or her opinion must be given to a party adverse in interest at least 30 days
before the expert testifies. However, s. 11(2) also provides that “if the statement has
not been furnished, [the presider in a proceeding may] order that the expert may
testify.”
[87]
That is what happened in this case. Drs. Roberts and King-Harris were fellow
veterinarians. Dr. Sharma was aware of their qualifications during their investigation
and knew they were reviewing his records. Dr. Sharma suffered no prejudice by
their testimony regarding his records. He was also aware of Dr. McKelvey’s
qualifications and her opinion on his standard of care in his treatment of Gypsy and
Page 35
Emma. He could not have been prejudiced by her additional opinion regarding his
medical records as he knew they were in issue from the nature of the Complaint
Officers’ investigations. In regard to his objection to Dr. McKelvey’s report which
referenced Dr. Schiller’s observations in his report, that was found to be
inadmissible, (that he had performed a tendonectomy without the owner’s consent),
the Inquiry Committee concluded at ¶35 of its report:
The Committee considered Dr. Schiller’s report to be hearsay and
considered whether Dr. McKelvey’s testimony in direct reference to Dr.
Schiller’s report could be admitted. The Committee ultimately decided
that it was not necessary to make a decision as the weight of the other
evidence was sufficient to address the charges. The Committee relied
upon Dr. McKelvey’s comments about medical record-keeping and
about tendonectomy operations in general.
[88]
That additional evidence included the torn up medical record retrieved by Ms
Lockyer-Kash from Dr. Sharma’s garbage bin and Dr. Sharma’s written admission to
Dr. King-Harris that he “may have been mistaken and have performed a
tendonectomy in error.”
[89]
I find that on each of these issues the Inquiry Committee did not breach rules
of natural justice and procedural fairness. The duty is a “flexible and variable” one.
The Inquiry Committee was made up of two fellow professionals. The Complaints
Officers were fellow professionals. Dr. Sharma knew the case against him and had
the time and necessary disclosure to prepare his defence for the hearing. He was
given copies of all documentary evidence and was granted an adjournment to permit
him to retain counsel for the hearing but failed to act on that order and tried to set it
aside on the first day of the hearing. He declined to attend the hearing and now
Page 36
seeks to raise objections that he did not raise at first instance because of his
absence. In my view, he has provided no evidence of any prejudice by the fact that
some of the formal requirements of ss. 10 and 11 of the B.C. Evidence Act were
not complied with. Section 11(2) of the B.C. Evidence Act gives the presider
discretion to receive that evidence even if the requirements have not been met. I am
satisfied after examining the whole if the Inquiry Committee’s Report, that its
discretion was appropriately exercised in this case and that Dr. Sharma was given
every reasonable opportunity to address the case against him but failed to do so.
(v)
[90]
Did Dr. Sharma waive his right to make these objections on
procedural fairness?
The respondent argues that Dr. Sharma’s complaints regarding procedural
fairness should have been raised at first instance in the hearing and by absenting
the hearing he has waived his right to raise those issues at this time.
[91]
In Eckervogt v. British Columbia (Minister of Employment and
Investment), 2004 BCCA 398, the court took exception to an issue of apprehension
of bias being raised for the first time on appeal and concluded at ¶48:
it is [not] proper for a party to hold in reserve a ground of
disqualification for use only if the outcome turns out badly. Bias
allegations have serious implications for the reputation of the tribunal
and in fairness they should be made directly and promptly, not held
back as a tactic in the litigation. Such a tactic should, I think, carry the
risk of a finding of waiver. Furthermore, the genuineness of the
apprehension becomes suspect when it is not acted on right away.
[92]
Page 37
At ¶49, the court quoted from the text Brown and Evans, Judicial Review of
Administrative Action in Canada (Toronto: Canvasback Publication, looseleaf, 2003)
which stated at 11:5500:
A leading English text expresses the general principle as follows:
a party may waive his objections to a decision-maker who would
otherwise be disqualified on grounds of bias. Objection is
generally deemed to have been waived if the party or his legal
representative knew of the disqualification and acquiesced in
the proceedings by failing to take objection at the earliest
practicable opportunity. But there is no presumption of waiver if
the disqualified adjudicator failed to make a complete disclosure
of his interest, or if the party affected was prevented by surprise
from taking the objection at the appropriate time, or if he was
unrepresented by counsel and did not know of his right to object
at the time.
[93]
Dr. Sharma submits that he did not waive his right to raise the issue of
reasonable apprehension of bias because the information was not disclosed at the
outset of the hearing when he was still present and could have addressed it, but
instead came up mid-way through the hearing, immediately before Dr. McKelvey
gave her evidence and long after he had absented himself. However, the Inquiry
Committee only became aware that Dr. McKelvey would be giving evidence when
counsel for the BCVMA indicated to the panel that she was its next witness. In his
opening remarks while Dr. Sharma was still present, counsel for the BCVMA did not
specify her name indicating only that they would be calling an expert witness. In
these circumstances, I find that Dr. Sharma, by absenting himself from the hearing
waived his right to object to this procedural matter at a later date. To permit him to
do so now would relieve Dr. Sharma of the obligation of raising such an issue at the
Page 38
earliest practicable opportunity. I am also satisfied that any objection that he might
have made would not have changed the Inquiry Committee’s decision to proceed
with the hearing.
[94]
In Violette at ¶75 the court posed the issue as follows: “Does a party who
abandons the right to participate in a tribunal hearing waive the right to challenge a
tribunal’s decision, either on its merits or with respect to issues that could have been
raised during the hearing?” The court concluded that a party’s informed decision not
to participate in a disciplinary hearing constitutes abandonment leading to waiver of
possible breaches of the rules of procedural fairness (¶80). In support of that
conclusion the court relied on an earlier appellate decision in Chipman Wood
Products (1973) Ltd. v. Thompson (1996), 181 N.B.R. (2d) 386 (C.A.), and an
administrative law text by Professor Mullan (Administrative Law (Toronto: Irwin Law,
2001)).
[95]
Similarly, in Tomaszewska the court relied on Violette to conclude that the
appellant was not denied procedural fairness because of late disclosure when he
failed to appear at the hearing. It also relied on its comments in Ontario Taxi
Association, Local 1688 v. Windsor Airline Limousine Services Ltd. (1980), 30
O.R. (2d) 732 (H. Ct. Jus.) at 739:
It has for some time been made plain in a number of decisions that one
who chooses to leave on the ground that a tribunal is incompetent runs
the risk of being foreclosed from any later complaint …
[96]
Page 39
That failure to object to a procedural matter when the opportunity was first
available, in the court’s view, constituted waiver of complaints of possible breaches
of procedural fairness at a later date.
[97]
Counsel for Dr. Sharma submits that these authorities are not the law in B.C.
However, Donald J.A.’s strongly expressed comments in Eckervogt, albeit in the
context of an alleged apprehension of bias, would seem to suggest otherwise.
[98]
In the result, I would not accede to the ground of appeal that the BCVMA did
not follow the rules of natural justice and procedural fairness.
(b)
[99]
Can the Council’s decision be upheld against the standard of
review of reasonableness simpliciter?
As noted, this test limits the Court’s review to an examination of whether the
tribunal’s line of analysis supports the conclusion it reached. I see no grounds to
interfere with the Council’s decision based on the Inquiry Committee’s report. The
decision was based on probative evidence and the finding cannot be said to be
unreasonable.
(c)
Was the penalty outside the appropriate range?
[100] Applying the standard of review of reasonableness simpliciter, I am again
unable to conclude that there is no line of reasoning from the Council’s reasons to
support the penalty it imposed. The findings against the appellant were serious,
involved more than one complaint, and covered both standard of care issues and
ethical issues. Moreover, the Council is in a much better position, with its greater
Page 40
expertise in the professional standards and ethical considerations of the practice of
veterinarian medicine, to choose the appropriate range of penalty for these types of
breaches.
[101] For these reasons I would dismiss the appeal.
[102] Costs shall follow the event at Appendix B.
“D. Smith J.”
_______________________
D. Smith J.

Citation: 2008 BCSC 240 Date: 20080228

Transcription

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