Two of the more challenging issues with which discipline tribunals cope are determining whether a registrant’s conduct fell below accepted standards of practice and, where a finding of misconduct is made, the appropriate sanction to impose. Justice Watson of Alberta’s highest court has made extensive comments on these two issues.
In Dr Ignacio Tan III v Alberta Veterinary Medical Association, 2025 ABCA 119 (CanLII), a veterinarian was found to have failed to maintain the standards of practice (e.g., surgery, drug dispensing, record keeping) in respect of several animals. In addition, his belittling interactions with staff were found to be unprofessional. The sanction included a 30-day suspension, fines adding up to $29,000, a reprimand, and terms, conditions and limitations that involved remediation, restrictions and “surveillance”.
Justice Watson began with an extended discussion regarding the standard of review that courts should apply to decisions of tribunals with expertise (e.g., as to standards of practice). While such tribunals should not use their expertise as a substitute for expert opinion, their expertise in appreciating the issues is part of the context in assessing whether their decision contained a palpable and overriding error. The role of the Court, therefore, is “to decide if a decision of the Council is reasonable when considered in its context. This Court is not empowered to re-try the facts nor to re-determine matters of special knowledge without reference to expert opinion evidence.” Justice Watson indicated that a tribunal’s role is to assess the expert evidence as to whether the standard of practice was not met, including weighing any evidence of divergent schools of thought.
Justice Watson rejected the argument that the regulator should have published precise standards of practice before a finding could be made: “In sum, the scientific and philosophical dimensions of professional misconduct rested on experience, knowledge and common sense and could be the subject of general professional understanding. There is no requirement in law for precise rules about every professional default of the appellant before a charge could be founded on such a deficit.”
In terms of sanction, Justice Watson made several points in upholding the decision:
- Delay: “Delay is not generally a factor in assessing the gravity of the guilty findings nor of the degree of responsibility of the member. But it can be a factor in assessing the impact of the adverse findings and the sanctions when seen in context. Delay may also be mitigating if it involves collateral or ancillary negative consequences for the member which aggravate the impact on him beyond what would be a predictable result of the misconduct. Delay might also be relevant if the member put the delay to beneficial use to upgrade his professional capacities and improve his insights and perspectives.”
- Totality: Justice Watson held that the discipline and appeal tribunals considered whether imposing many fines resulted in a cumulative one that was excessive. In the circumstances, especially since there were several categories of misconduct and as a message needed to be sent to the veterinarian and the profession, the total fine was appropriate.
- Remediation: Justice Watson also rejected the argument that unfairness was created by having a regulatory staff person, who had been involved in the prosecution, administering the remedial and surveillance components of the sanction. There was an absence of evidence capable of dislodging an assumption of professionalism on the part of the staff person.
Interestingly, the majority members of the Court, while agreeing with the decision, did not adopt Justice Watson’s reasons. They simply found that there was evidence to support the tribunal’s findings and that no error was made in formulating the sanction.