Administrative law – Decisions of administrative tribunals – Veterinary Associations – Veterinarians – Professional governance and discipline – Licence to practice – Character evidence – Hearings – Appeals – Judicial review – Jurisdiction – Evidence – Delay – Procedural requirements and fairness – Natural justice
Joshi v. British Columbia Veterinary Medical Association,  B.C.J. No. 422, 2010 BCCA 129, British Columbia Court of Appeal, March 12, 2010, K.C. Mackenzie, E.C. Chiasson and N.J. Garson JJ.A.
The Respondent, Dr. Joshi, practiced as a veterinarian in India. In early 2004, he applied to the B.C. Veterinary Medical Association (the “Association”) for membership. The only issue with his application was his character. In this regard, the Association notified Dr. Joshi that it had been informed that he had performed surgery contrary to the Veterinarians Act and the Association’s Bylaws. Dr. Joshi swore an affidavit denying the allegations. The Association then provided Dr. Joshi with affidavits of employees of the relevant animal hospital. The employees had witnessed Dr. Joshi perform surgery on several occasions.
The Association decided to conduct a full hearing with viva voce evidence. Dr. Joshi’s counsel reached an agreement whereby Dr. Joshi would make certain admissions and a full hearing would not be necessary. There was a misunderstanding between the parties about the details of this agreement and Dr. Joshi refused to make an admission to the satisfaction of the Association. Before the hearing was adjourned, he gave different versions of his evidence. He stated that he never performed veterinary surgeries on animals in B.C. He also said he did operate on one or two dogs but could not remember details of the surgeries.
Dr. Joshi obtained new counsel after the adjournment. His new counsel took the position that the Association did not have the jurisdiction to hold a hearing involving viva voce evidence in respect of an application for admission. The matter did not proceed for several months. Eventually, the Association denied the application for admission. Dr. Joshi appealed to the B.C. Supreme Court and the court ordered the Association to provide written reasons.
The reasons state the Association could not decide whether he actually performed surgery in contravention of the Act. The Association denied the application for admission because Dr. Joshi gave inconsistent evidence and, therefore, had not demonstrated the good character required for admission.
The judge also found the Association had the jurisdiction to hold a hearing respecting an application for admission. The judge denied that the power to conduct a hearing extended to hearing evidence under oath and subject to cross-examination. Nevertheless, the judge set aside the Association’s decision and ordered a new hearing. The judge denied Dr. Joshi’s argument that, due to the delay, he should be granted admission.
The Court of Appeal agreed the Association had the jurisdiction to hold a hearing because this was a necessary incidental power for weighing conflicting character evidence. The Court of Appeal held procedural fairness required the Association to have the power to receive evidence under oath, subject to cross-examination, when credibility was in issue. The Association’s appeal on this issue was allowed.
The Court of Appeal agreed that a new hearing should be ordered. The proceedings were irregular and did not accord with the principles of procedural fairness and natural justice. This ground of the Association’s appeal was denied.
The Court of Appeal agreed that Dr. Joshi was not entitled to admission because of the delay. Dr. Joshi’s cross-appeal was denied.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at firstname.lastname@example.org or review his biography at http://www.harpergrey.com.
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