In Walia v. College of Veterinarians of Ontario, 2021 ONSC 4023 (CanLII), https://canlii.ca/t/jg6qj, a veterinarian was disciplined for failing to properly diagnose and treat a fracture in the paw of a dog and for failing to provide the treatment records, particularly the x-ray, to the usual treating veterinarian on a timely basis. After a contentious hearing, the practitioner’s licence was suspended for three months and was ordered to pay approximately two-thirds of the hearing costs, amounting to $135,000. In dismissing the appeal the Court made a number of points relevant to regulators:
- It is proper and common for the regulator’s counsel to draft the allegations being referred to discipline, prosecuting the case at discipline, and then appearing on the appeal.
- There is no appearance of bias for independent legal counsel to act as prosecuting counsel in other discipline cases before other regulators.
- There was no unfairness in the regulator obtaining additional evidence after the referral to discipline, especially where that evidence was disclosed prior to the discipline hearing.
- The screening committee referring a matter to discipline does not need to give reasons for that decision.
- The regulator did not “falsify” evidence or act unfairly by alleging that the x-rays were not properly labelled and then withdrawing that allegation once clearer copies of the x-rays were obtained.
- The regulator does not need to produce the dockets of prosecuting counsel when seeking costs related to those legal expenses. Prosecuting counsel are also not limited to one lawyer. On the issue of the amount of costs, the Court said:
A tribunal’s decision with respect to the costs is owed significant deference. We agree with the Discipline Committee’s comment that Dr. Walia’s conduct did serve to lengthen the proceedings and increase the costs of the hearing. Another factor in the award of costs is that the College must fund its expenses from the collection of fees from its membership. If the guilty party does not pay those costs, they must be recovered from the membership at large. We do not see any error in principle or palpable and overriding error of fact in the discipline panel’s order that Dr. Walia pay costs in the sum of $ 135,000. There is no basis for this Court to intervene.
Practitioners run the risk of significant cost consequences when they raise numerous meritless challenges.