A veterinarian who had practised in India (“Dr. Joshi”) achieved partial success in appealing the decision of the Council of the B.C. Veterinary Association (the “Association’) refusing to admit him as a member

22. April 2008 0

Administrative law – Decisions of administrative tribunals – Veterinary Association – Veterinarians – Licence to practice – Unauthorized practice – Regulatory powers of tribunals – Judicial review – Natural justice – Procedural requirements and fairness – Evidence – Jurisdiction – Witnesses

Joshi v. British Columbia Veterinary Medical Association, [2008] B.C.J. No. 298, 2208 BCSC 208, British Columbia Supreme Court, February 25, 2008, P.D. Leask J.

Dr. Joshi was a veterinarian in India for ten years prior to coming to Canada. In March 2004, he applied to the Association to be admitted as a member and in May 2004 he passed the examinations. The remaining requirement was that he produce “evidence satisfactory to the council of experience, good professional conduct and good character” pursuant to the statutory requirement in Section 11(5) of the Veterinarians Act R.S.B.C. 1996, c. 476 (the “Act”).

In late May 2004, the Association advised Dr. Joshi that it had received information alleging that he had performed surgery at an animal hospital contrary to the Act and Association bylaws. Dr. Joshi retained counsel and provided a sworn Affidavit denying he had performed surgery on any animals while in Canada.

Dr. Joshi’s counsel was provided with copies of some prepared statements from the animal hospital alleging that those employees had seen Dr. Joshi performing the unauthorized surgery.

Dr. Joshi’s lawyer requested disclosure of documents pertaining to the investigation of the original complaint. The Association refused to provide complete disclosure, saying that some of their interview notes involved an investigation of the principal of the animal hospital and that there were portions of those notes that were not relevant to Dr. Joshi’s application for membership.

Dr. Joshi attended hearings before the Association on September 10, 2004 and October 8, 2004. At the September 10th hearing he denied the allegations.

Dr. Joshi had witnesses ready to testify on his behalf on the second hearing date. However, prior to the hearing his lawyer advised him to denotify the witnesses because an agreement had been reached where Dr. Joshi would not have to admit performing the surgeries but would not contest the Association’s position. Dr. Joshi understood from his lawyer that the agreement was that if Dr. Joshi did not contest the allegations he would be admitted to the Association.

The Association understood the agreement to mean that Dr. Joshi would appear before the Council of the Association and admit to performing the veterinary surgery without supervision. At the hearing on October 8th, Dr. Joshi attempted to carry out his view of the agreement and the Council, with their differing view of the agreement, was not content with the extent of Dr. Joshi’s admission. The hearing was adjourned.

Dr. Joshi changed counsel and new counsel took the position that the Association lacks jurisdiction to hold a hearing which includes viva voce evidence on an application for membership.

Because there was delay by the Association in considering Dr. Joshi’s application for membership, he petitioned the Supreme Court for an Order that the Council be required to consider his application and for production of further information from the Association. Prior to the petition being heard, the Council of the Association indicated it would reconvene the hearing to take evidence under oath from two ex-employees of the animal hospital and Dr. Joshi.

Dr. Joshi’s counsel attended the reconvened hearing and argued that the Association lacked jurisdiction and that the decision of the Council had to be based on documentary evidence.

The Council decided to refuse Dr. Joshi’s application to be admitted to the Association, without reasons. Dr. Joshi appealed to the Supreme Court and the Supreme Court ordered that Council provide reasons.

The Council issued a set of reasons which included the fact of the unsolicited reports about Dr. Joshi conducting veterinary surgery on animals without a licence. Council pointed out that the onus is on the application to provide information which satisfied the Council of his or her qualifications and good character. Council asserted that it had provided proper process to Dr. Joshi and found that it did have jurisdiction to evaluate all of the available evidence and render a decision on his application.

The Council noted that Dr. Joshi had given evidence that he did conduct one or two unauthorized surgeries but that he later recanted. Those details were apparently provided at the hearing date of October 8, 2004.

The Council indicated that the Registrar of the Association had stated in Affidavit evidence that she advised the applicant that if he made an admission and an apology she would recommend that the Council consider that as evidence of good character. Council made a finding that the Registrar represented this fact appropriately to the applicant and that if Dr. Joshi misunderstood that the Registrar, Dr. Joshi’s lawyer and the other veterinarian’s were not to blame.  The Council found that the applicant had told three different stories about the allegation of performing unauthorized surgeries. Because it appeared that he had not been truthful with the Council, Dr. Joshi had not demonstrated good professional conduct and good character that would qualify him for admission into the Association.

On the appeal from the decision of the Council, the Court held that certain statutory powers under the Act were conferred expressly, while there could also be powers that were implied as reasonably necessary for the accomplishment of the object intended to be secured by the legislation.

The Court held that the Council of the Association had the power to hold oral hearings when determining the suitability of applicants for membership in the Association. Council for Dr. Joshi had argued that the Veterinary Medical Association did not have this power because it did not appear expressly in the Act. Although the Association conceded that there was no statutory language to authorize the holding of an oral hearing, the Court held that this power was reasonably necessary for the Council to accomplish its objective of admitting qualified applicants and excluding those who lack the qualifications for admission.

The Court also held that there was no uniformity in the statutes for the professional regulatory bodies in British Columbia regarding the procedures they could use to regulate admission to various professions. There was also no obvious explanation for the differences between the statutory regimes.

The Court concluded that the legislature did not intend to confirm on Council for the Association the power to administer oaths and require cross-examination when assessing applicants for membership in the Association. The Court was not convinced that these powers would arise from the principles of natural justice and fairness. The Court held that procedural fairness and the rules of natural justice did not require that witnesses must testify under oath or be required to submit to cross-examination. If an applicant was afforded an equally effective method of answering the case against him, the requirements of natural justice were met.

The Court ordered that Dr. Joshi should have an opportunity for his application to be considered in accordance with only the powers conferred under the Act and properly implied from those powers, without being prejudiced by the misunderstandings in the case.

The Court ordered that the October hearing should be sealed and not considered any further and that any Council members who participated in past consideration of Dr. Joshi’s application would be ineligible to participate in a reconsideration of it. In addition, the Court held that the misunderstanding between his initial counsel and the Registrar which led to the events around the proposed agreement should not be a permanent bar to his membership in the Association.

The Court ordered that if there was quorum of Council eligible to consider Dr. Joshi’s application, that should proceed forthwith and, in the absence of quorum, the Court could hold a hearing to enquire into his suitability for membership in the Association.

To stay current with the new case law and emerging legal issues in this area, subscribe here.