Administrative law – Decisions of administrative tribunals – Veterinary Associations – Hearings – Conduct of hearings – Veterinarians – Professional governance and discipline – Professional misconduct or conduct unbecoming – Judicial review – Compliance with legislation – Standard of review – Correctness – Witnesses – Evidence – Procedural requirements and fairness
Murray v. Saskatchewan Veterinary Medical Assn,  S.J. No. 1, 2011 SKCA 1, Saskatchewan Court of Appeal, January 5, 2011, J.G. Lane, R.G. Richards and R.K. Ottenbreit JJ.A.
The Respondent (John Philip Murray) was investigated for possessing unlawfully-taken wildlife in contravention of the Wildlife Act. He plead guilty to one count of this allegation and he was fined $100,000 with a $5,000 surcharge. The Registrar of the Saskatchewan Veterinary Medical Association made a complaint about Murray’s conduct and that complaint was investigated by the Professional Conduct Committee of the Association (the “PCC”). The PCC recommended that the Discipline Committee (the “Committee”) hear and determine whether the complaint was sustained.
After a hearing, the Committee found Murray guilty of unprofessional conduct and expelled him from the Association and struck his name from the Register. The Committee also ordered him to pay a fine and costs. Murray unsuccessfully appealed to the Appellant in 2006.
Murray successfully appealed the Appellant’s decision before a Queen’s Bench Chambers judge. The central issue raised before the Court was a videotaped statement from a witness, which was admitted by the Committee.
The videotaped statement was from an individual (“Pool”) who gave evidence under a grant of immunity. He was the son of Murray’s girlfriend and gave the statement knowing he was not obliged to give it. The statement was transcribed. After the hearing before the Committee, Pool was subpoenaed but he failed to attend. The matter was then adjourned and a second subpoena was eventually obtained and Pool once again failed to appear. The Committee decided to allow the videotaped statement into evidence pursuant to section 22(4) of the Veterinarians Act, which stated, “the discipline committee may accept any evidence that it considers appropriate and is not bound by rules of law concerning evidence”. In this regard, the Committee accepted the prosecution’s submissions regarding the application of the decision in R. v. Khan. Counsel for Murray objected to the admission of the videotape on the basis that he was denied his right to cross-examine the witness pursuant to section 22(7) of the Veterinarian’s Act. That provision states that “[a]t a hearing by the discipline committee, there is to be full right to examine, cross-examine and re-examine all witnesses…”.
The Appellant, in its decision, gave no reasons explaining why the statement of Pool was “necessary”. On appeal to the Court, the Chambers judge found that the issue of the admissibility of the statement was a relatively complex legal issue and the appropriate standard of review was correctness. She quashed the decision of the Committee on the basis that the Appellant had failed to give adequate reasons why the condition of “reliability” had been met and this breached its duty of fairness to Murray. She remitted the matter back to the Committee to be dealt with by a differently constituted panel.
The Court of Appeal found that the applicable standard of review was the correctness standard and the Chambers judge was correct on this point. However, the Court of Appeal found the Chambers judge erred in her analysis of the law governing the admission of the particular evidence in these circumstances. The Chambers judge erred in suggesting that “reliability” was a “condition” necessary for the admission of the evidence.
The Court of Appeal went on to discuss the interaction of section 22(4), (which grants the Committee the power to accept any evidence it considers appropriate) with section 22(7), (which grants a member the full right to cross-examine all witnesses). The right to cross-examine does not preclude the Committee from considering hearsay evidence when it is necessary to admit such evidence. In circumstances where hearsay evidence is involved, the Court of Appeal felt it was desirable to have an analysis on the issue of “necessity” before deciding if it is appropriate to admit that evidence. In this case, the necessity issue was not directly addressed by the Committee and was not considered before the Appellant.
The Court of Appeal disagreed with the reasoning of the Chambers judge and was satisfied that the Appellant breached section 22(7) of the Veterinarian’s Act by failing to honour Murray’s right of cross-examination without first determining whether it was necessary in the circumstances to admit Pool’s statement. The Court of Appeal dismissed the appeal and agreed with the Chambers judge who had remitted the matter back to the Committee for a new hearing.
Murray brought a cross-appeal claiming that a new hearing ought not to have been ordered because he could not obtain a fair hearing as a result of publicity generated from the proceedings. The Court of Appeal felt there was insufficient evidence to support Murray’s argument that he would not obtain a fair hearing. The cross-appeal was therefore dismissed.
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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