March 10, 2011

Discipline: Adequacy of reasons, credibility, and Cleo the cat

Administrative Law
Professional Regulation

A hearing panel may make an unreasonable decision if it fails to enumerate the evidence supporting its conclusion, especially in cases where events involve deciding between he-said and she-said accounts on the basis of credibility. This is illustrated where a discipline panel found against allegations of professional misconduct, and that decision was successfully appealed by the discipline panel’s own College, in College of Veterinarians of Ontario v. Hanif, 2011 ONSC 1155 (February 28, 2011)

In that case, a veterinarian was accused of two sets of allegations. Firstly, in relation to Cleo the cat, the College alleged the member wrongly prescribed a dog flea medication, hit and abused the cat during during the visit, and verbally abused the owner, calling her a “bad owner.” Secondly, in relation to Scully the dog, the College alleged the member misdiagnosed advanced kidney disease. Apart from finding misconduct respecting the dog flea medication, the panel acquitted the member of all allegations of misconduct. The College appealed on the basis the panel had decided unreasonably, based on “woefully inadequate” reasons. The court decided “regrettably” it had to allow the appeal. [6]

The court noted that reasons not only explain the result to parties, but allow a court or other supervisory body to undertake meaningful review.

CLEO THE CAT: Concerning abuse of Cleo the cat, and verbal abuse of Cleo’s owner, the panel found the owner to be credible, but also found that while the member was “ham-fisted” in handling the kitten, the charge required “more substantial evidence” than the owner’s upset. The College submitted the panel erred by requiring that the owner’s evidence be corroborated. The member argued that other evidence supported the panel’s decision, e.g., the witnesses outside the examination room did not hear anything from inside the room causing them to think the events described by the owner took place, and the owner did not mention any abuse during a subsequent examination by another veterinarian. The court found that, “…while the evidence to which he refers might have supported the conclusion reached, the Committee does not refer to it in its reasons for decision. […] The problem is not that there was no evidence upon which an acquittal might have been founded, but rather that it is not possible to tell what the Committee considered to be material and what it did not, or why.” [31] (emphasis added) The court could not discern if the panel erred by wrongly requiring corroborating evidence, or properly concluded the owner was honest but mistaken due to her upset. Accordingly, the reasons were inadequate. [33]

The panel also acquitted the member of verbally abusing the owner, but did not provide reasons. The panel did not refer to evidence, or to findings of credibility concerning testimony on that particular event. “Given that the only findings of credibility and reliability articulated in the reasons favour the complainant, the result does not seem to flow from the findings that were made. Because the Committee did not discuss these allegations or the evidence on the issue at all in its reasons, there is simply no way to know why it reached the conclusion it did.” [37]

The deficiencies rendered the decision concerning the member’s treatment of Cleo and her owner unreasonable.

SCULLY THE DOG: Concerning the misdiagnosis of Scully the dog, the court could not conclude how the panel decided to acquit the member, after the panel recognized the member had failed to uphold standards of practice by not considering Cushing’s disease despite the test results. The panel also declined to find that the member failed to recommend further or appropriate diagnostic tests, but the court took issue with the absence of reasons why, regardless of evidence supporting the member’s position that he did recommend further testing: “The fact that there was conflicting evidence on this issue emphasizes the deficiency of these reasons, which do not give any indication of how or why the Committee reached the conclusions it did, or why it chose to accept the evidence of some of the witnesses and not others.” [65]

The court accordingly set aside both decisions and remitted both matters for two new hearings.

College of Veterinarians of Ontario v. Hanif, 2011 ONSC 1155 (Ont. Superior Ct. of Justice). A link to the case on CANLII is available here.