October 29, 2015

Human right claim by Indo-Canadian veterinarians succeeds against the BCVMA

Administrative Law
Human Rights
Inquiry and Investigations
Professional Regulation
Registration and Fitness
Regulator Liability

After the longest hearing in its history – 356 hearing days – the B.C. Human Rights Tribunal found the BC Veterinary Medical Association (now the BC College of Veterinarians, or simply the “College”) liable for discriminating against Indo-Canadian veterinarians born and trained in either India or the Punjab, in matters of registration, investigation and discipline. In essence, the tribunal found that people of influence within the College held “negative generalized views about the credibility and ethics of Indo-Canadians in relation to their veterinary practices” but the College ignored, tolerated, and facilitated these views: Brar and others v. B.C. Veterinary Medical Association and Osborne (No. 22), 2015 BCHRT 151.

For example, in relation to the College implementing English Language proficiency requirement significantly higher than what other regulators required, the tribunal found that certain registrants, opposed to low-cost clinics operated by Indo-Canadian registrants, had circulated unsubstantiated rumours about Indo-Canadian registrants to others, including members of council. Such rumours (which the tribunal found “were, for the most, unsubstantiated”) including that one complainant was a “ringleader” with “loyal lieutenants”; that the complainants did not euthanize animals but kept them for training purposes; that they kept poor records, and destroyed or altered records; that they did not sterilize surgical equipment, did not anesthetize animals before surgery and had poor surgical techniques; that they engaged in “sweat-shop” like working conditions; and that they were poorly trained and cheated on their examinations. [150] The tribunal concluded particular individuals were “focused on limiting the registration of Indo-Canadian both through the English-language testing process and through a review of the licensing requirements for those same foreign-trained veterinarians”. [175] One result was the College requiring a score of 55 out of 60 on the TFE test, without evidence demonstrating credible concerns about the English proficiency of Indo-Canadian registrants. [11] A TFL score of 55 out of 60 requires one of two raters to give an applicant the highest-possible score of 60. Information available to the College was that 96% of foreign-trained individuals from India, and elsewhere, who had taken the TFE could not achieve a score of 55. Indeed, three members of the Standard Setting Workshop were unable to score 55. [178]

The tribunal also identified a number of other discriminatory acts by the College. For example, the College selected Indo-Canadian facilities for unscheduled inspections, based on unsubstantiated rumours and anecdotal complaints. The College also adversely treated Indo-Canadian veterinarians during the discipline process by failing to notify them of investigations; by alleging in numerous cases that they falsified records; by assuming their information was less credible than others; by increasing scrutiny of individuals close to one complainant; and by appointing investigators who had already formed the view that one complainant, and others, were dishonest and possibly ungovernable. [14] For example, secret recordings of the Chair of the Conduct Review Committee revealed his telling a client that only half of the veterinarians from the Punjab were decent people, and that one particular complainant would hire other incompetents that the evidence had shown were Indo-Canadian veterinarians. Despite these recordings, the Chair continued to participate in the conduct review committee discussions of disciplinary complaints involving individuals that could be said to fall within the complainant “group”. [221] When confronted with the recordings of the Chair, the College asserted the recording had been manipulated, and declined to act against the Chair until forced when some complainants commenced a judicial review. [221]

The Brar decision consists of 485-pages of reasons, together with appendices (setting out detailed findings) adding an additional 1,464 pages (for a total of 1,949 pages). The main decision may be found here, and the appendices may be found here.

Lisa Fong will be discussing the Brar decision at the CNAR conference (held by the Canadian Network of Agencies for Regulation) on November 3, 2015 at the Westin Bayshore in Vancouver, BC. Program information is currently available at CNAR’s website at www.cnnar.ca. We also intend to blog further on this case in December, given the vast number of regulatory issues.

Clea Parfitt and Aleem Bharmal, lawyers acting for the veterinarians before the tribunal, will be speaking about this case at a CBA sub-section conference on November 5. The meeting is open to members and non-members. Click here for registration.

Brar and others v. B.C. Veterinary Medical Association and Osborne (No. 22), 2015 BCHRT 151

Lisa C. Fong and Michael Ng