Revisiting Referrals to Discipline

Courts are reluctant to review a referral of allegations to discipline by a screening committee. In Walia v. College of Veterinarians of Ontario, 2020 ONSC 8057 (CanLII), http://canlii.ca/t/jcb73 the road to review was even rockier because it was brought after the discipline hearing findings had been challenged unsuccessfully all the way to the Supreme Court of Canada. Despite this, the practitioner challenged the referral upon which the discipline findings had been made on the basis that the referral was fraudulent, biased and procedurally unfair.

The Court dismissed the motion on a number of grounds that were technical (there was no proceeding in which the motions pertained), procedural (delay, issues already determined) and substantive (there was no merit to the arguments). However, in the course of its reasons the Court made the following observations that may be of interest to regulators:

  1. It is common place and acceptable for the same legal counsel to advise the screening committee and then prosecute the case at discipline.
  2. “In any event, the referral of the complaint from the Complaints Committee to the Discipline Committee is one step in the discipline process. Once the matter was referred to the Discipline Committee, Dr. Walia had a full opportunity to defend against the allegations made against him. Any defects in the referral were cured by the hearing. If the allegations against Dr. Walia were unfounded, he had an opportunity to defend against them.”
  3. Even if the challenge had been brought at the time of referral, the challenge likely would have been premature.
  4. There is no obligation on the screening committee to provide reasons for referring a matter to discipline.

As a general principle, concerns about a referral to discipline should be addressed at the discipline hearing itself.

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