What is in a word?
In Sahi v Alberta Veterinary Medical Association, 2023 ABCA 368 (CanLII), a veterinarian was found to have purchased and failed to account for “astonishing” quantities of a controlled drug. In addition, they failed to cooperate in the investigation to explain what had happened to the ordered amounts. At the hearing, the veterinarian said they had personally consumed the drug because of their disability. The hearing panel, the appeal body, and the appeal Court had little difficulty in finding that the veterinarian had breached the standards of practice, including those relating to prescribing and dispensing the drug.
However, the Court set aside the finding of “distributing” or “selling” the drug. In reviewing how those terms were used in various pieces of legislation, the Court held that the act of distributing or selling must be to a third party. While there was some evidence that it is unlikely the veterinarian had consumed all the unaccounted-for drug, the hearing panel had not made an explicit finding on the point and, thus, glossed over the allegation as worded.
However, since this allegation largely overlapped with the allegation that was upheld (i.e., prescribing and dispensing) only minor modifications were made to the sanction. The fine was reduced, and the significant costs order was mostly maintained. More significantly, the Court found that the order of revocation was appropriate.
Interestingly, the Court did not specifically address its discussion in Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (CanLII), that regulators should only make significant costs orders in exceptional cases. However, the Court indicated that the high costs award was justified because the veterinarian’s lack of cooperation during the investigation (and, to a lesser extent, during the hearing) made the process much more expensive than it should have been.
The Court also did not discuss the impact of the veterinarian’s assertion of disability on either the finding or the sanction. Apparently insufficient evidence in support of the disability was led at the hearing.
Despite the generally favourable outcome for the regulator’s public interest mandate, the discipline panel’s failure to grapple with the different meaning of the words used in the allegations resulted in only partial success.