Regulators received some guidance on how to conduct re-hearings after being directed to do so by a court in: Hanif v. College of Veterinarians of Ontario, 2021 ONSC 1819 (CanLII), https://canlii.ca/t/jdpmt. In that case the Court set aside one of the disciplinary findings and directed that the matter be returned to the “panel for a reconsideration” of penalty and costs. The matter was re-heard by the original panel (with one person unable to participate given the passage of time) which imposed a different penalty (a one month suspension and terms and conditions) and costs of $65,000. The practitioner appealed the re-hearing outcome. The Court held:
- There was no appearance of bias in the same panel conducting the re-hearing. In fact, that is precisely what the Court had ordered.
- The provisions allowing a lesser number of panelists to complete a hearing if a panel member was unable to continue with the hearing applies to the re-hearing proceedings.
- It is improper for the practitioner to bring motions or raise issues related to the issue of finding as the finding is now final. In fact, there should be cost consequences to the practitioner for persistently doing so.
The Court also held that little weight should be placed on other cases in which supposedly similar conduct may not have been referred to discipline when assessing penalty. The Court said: “…the results of these Complaint Committee cases are simply not comparable to penalty decisions based on a finding of professional misconduct following a contested hearing”.