A veterinarian appealed a decision of the Respondent Association, which had found him guilty of unprofessional conduct for inappropriately trapping, handling, and marketing white-tailed deer. The Court allowed the appeal and quashed the Association’s decision, on the basis that it had admitted into evidence a videotaped statement without a correct consideration of the applicable principles, contrary to specific provisions in the Wildlife Act and in breach of the discipline committee’s duty of fairness.

Administrative law – Decisions of administrative tribunals – Veterinary Associations – Veterinarians – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Judicial review – Hearsay evidence – admissibility – Natural justice – Procedural requirements and fairness – Compliance with legislation – Witnesses – Failure to provide adequate reasons – Standard of review – Correctness

Murray v. Saskatchewan Veterinary Medical Assn., [2008] S.J. No. 645, Saskatchewan Court of Queen’s Bench, October 23, 2008, J. E. McMurtry J.

The Appellant was a veterinarian and had been the subject of a complaint by the registrar of the Respondent Association to its professional conduct committee. The complaint alleged professional misconduct by the Appellant following his conviction for possession of unlawfully-taken white-tailed deer under The Wildlife Act, 1998, S.S. 1998, c. W-13.11. The Appellant was charged with unprofessional conduct by “engaging in a course of conduct dating from approximately January 1, 1992 to February 15, 2001 which involved inappropriate trapping, handling, marketing, certifying the health of and exporting from Canada white-tailed deer”.

The Association’s discipline committee found the Appellant guilty of all the charges against him. In doing so, it relied in large part on the videotaped evidence and transcript of a witness’s statement to the RCMP. In its reasons, the committee stated that it had decided to accept the evidence because: (1) despite several attempts by the prosecution to compel him to appear, the witness failed to appear at the hearing to present crucial evidence, and (2) the witness was given an oath and warning of the implications of his statement and advised that he was not obliged to give it and that he was only to do so under his own free will. The council of the Association dismissed the Appellant’s appeal.

The Appellant raised two grounds of appeal before the Court of Queen’s Bench, specifically, that the discipline committee had erred in hearing videotaped evidence from a witness, and that it had erred in its conclusions regarding the Appellant’s conviction under The Wildlife Act.

The Court first considered the appropriate standard of review, following the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9. The Court held that both grounds of appeal raised legal issues of relative complexity. Notwithstanding the assistance of a legal advisor, the committee’s expertise was not in determining questions of law. Therefore, the appropriate standard of review was correctness. The committee was also obligated to comply with the requirements of natural justice. If the reasons for decision were so insufficient as to be unfair to the Appellant, the decision must be quashed.

The Court found it necessary to deal only with the first ground of appeal, regarding the admission of videotaped evidence. The videotaped evidence was admitted when a witness failed to attend the hearing, despite having been served with a subpoena. The Association’s counsel sought leave to enter the videotaped statement that the witness had given to the RCMP pursuant to the principled approach to hearsay enunciated by the Supreme Court of Canada in R. v. B.(K.G), [1993] 1 S.C.R. 740 (“KGB”). Counsel for the Appellant had opposed the admission of the statement, submitting that the Appellant would be prejudiced by his inability to cross-examine the witness. He also argued that sections 22(6) and (7) of the Act required all witnesses to be present to take an oath from the chair and to be examined and cross-examined.

The Court held that as long as the Act does not specifically prohibit the admission of prior statements of a witness, the decision in Khan v. College of Physicians and Surgeons of Ontario, [1992] O.J. No. 1725 (C.A.) (authority for the proposition that the principled approach to hearsay is applicable in civil, as well as criminal, cases) may be considered applicable. The committee’s decision to admit the statement was reviewable on the correctness standard.

The criteria for admission of hearsay statements, under the principled approach, are necessity and reliability. The committee’s reasons suggested that the members determined it was necessary to rely on the videotaped evidence because of the witness’s failure to appear on two occasions and that it accepted that the witness had crucial evidence to give. With respect to reliability, the committee did not address, as they should have, whether there were indicia of trustworthiness in the witness’s statement. That the statement was under oath and, apparently, voluntary was not in itself sufficient. In its short reasons for relying on the statement, which the committee did for all three charges for which the Appellant was found guilty, the committee did not exhibit an understanding that hearsay statements are presumptively inadmissible. Nor did the committee record the relevant factors it was relying upon to find that it had no concerns regarding the credibility of the statement. Finally, the committee appeared to be operating under the mistaken belief that cross-examination did not apply in this situation. The committee’s failure to provide more than summary reasons on a pivotal evidentiary ruling was a breach of fairness to the Appellant, and was incorrect in law.

The Court was unable to conclude that the Committee would have made the same decision, on any of the three charges, without the videotaped evidence. In the result, the Court allowed the appeal of the council’s decision and quashed the decision of the discipline committee relating to the three charges. The charges were remitted back to the discipline committee before a differently constituted panel.

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