In civil litigation a party who achieves an outcome in court that is equal to or better than a previous offer to settle the proceedings usually obtains a beneficial costs decision by the court. This policy is intended to encourage resolution of disputes. One can question the appropriateness of this mechanism in discipline proceedings where registrants are defending their integrity and livelihoods and where regulators are endeavouring to protect the public. A recent decision indicates that offers to settle can have a role in discipline proceedings, but perhaps in a different manner than in civil litigation.
In Van Arem v. College of Veterinarians of Ontario, 2024 ONSC 7072 (CanLII), two veterinarians were found to have maintained inadequate records including, for one of them, insufficient documentation of informed consent. One of the veterinarians was also found to have obtained substances purchased online. However, the most serious allegation, of administering those substances to horses, pre-race, was not established. The veterinarians were given short suspensions (one and two months respectively), directed to undergo remedial measures, and ordered to pay about $60,000 in costs.
The veterinarians argued that the costs, which amounted to approximately one-third of the total prosecution expenses, were excessive given that the most serious allegation, which consumed a large portion of the hearing time, was not proved. The veterinarians also said that their offer to settle, in which they would have agreed that they had engaged in professional misconduct, was given insufficient consideration. The veterinarians were prepared, in their offer to settle, to accept longer suspensions than the ones ultimately imposed.
The Court upheld the costs order. The Court agreed with the prosecution that the offer to settle could be given little weight where it did not include an admission of the facts underlying the misconduct allegations. As such it was not “better” than the ultimate outcome of the hearing. The Court also accepted that the hearing panel was better equipped to assess how much of the hearing was devoted to the unproven allegation. Requiring the veterinarians to pay two-thirds of the “successful” portion of the prosecution was appropriate as it protected the rest of the profession from bearing the full expense of that portion. The Court also upheld the allocation of those costs between the two veterinarians in accordance with the number and seriousness of the findings made against them.
Further, in upholding the suspensions, the Court made several points including the following:
- In finding that the suspensions were not unfit, the Court said:
The fact that other cases involving allegations of inadequate record keeping have been resolved without a suspension does not support a finding that imposing a short suspension after a contested hearing is outside the range. At most, [the cases in which a remedial direction was made at the complaints screening stage] stand for the proposition that, in some cases, a resolution without a suspension may be appropriate.
The Court noted that there were other cases (including the veterinary profession and in other professions) where short suspensions were imposed for some record keeping violations.
- The Court found it significant that “their record-keeping practices showed a serious and persistent disregard for their professional obligations.”
- The Court accepted the use of the veterinarians’ testimony during the hearing as demonstrating a lack of insight into their conduct. The Court said:
And the Discipline Committee found that Dr. Van Arem did not grasp the signifance [sic] of his misconduct. The Committee was “deeply troubled” by Dr. Van Arem’s testimony. The Committee found that Dr. Van Arem tried to minimize the seriousness of his misconduct and tried to deflect blame for the deficiencies in his records. For example, the Committee rejected Dr. Van Arem’s argument that rules related to record keeping are less important and more difficult to follow in a busy equine practice at a racetrack. The Committee noted that the failure to keep proper records in any setting “puts the animals at risk and makes it significantly more challengeing [sic] to justify a treatment or procedure after the fact.” Those findings were open to the Committee to make.
- The Court accepted the hearing panel’s perspective that the suspensions were necessary to deter both the two veterinarians as well as the profession as a whole from engaging in similar misconduct in the future.
- The Court declined to consider arguments about the impact of imposing the suspensions during the horse racing season because those issues were not raised in advance of the hearing of the appeal.
While it appears that an offer to settle can be considered when considering the appropriate cost order in a discipline hearing, the content of the offer is particularly significant.