Docket: 1702 The Council of the Saskatchewan Veterinary Medical Association Appellant (Respondent by Cross-Appeal) - v. -, 2011 SKCA 1

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 1 Date: 20110105 Between: Docket: 1702 The Council of the Saskatchewan Veterinary Medical Association Appellant (Respondent by Cross-Appeal) - and - John Philip Murray Respondent (Appellant by Cross-Appeal) Coram: Lane, Richards and Ottenbreit JJ.A. Counsel: Nicholas J. Stooshinoff for the Appellant (Respondent by Cross-Appeal) Daniel P. Kwochka for the Respondent (Appellant by Cross-Appeal)

Appeal: From: 2008 SKQB 424 Heard: October 19, 2010 Disposition: Dismissed Written Reasons: January 5, 2011 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Richards The Honourable Mr. Justice Ottenbreit Lane J.A . Introduction [ 1 ] The Respondent, after being found guilty of unprofessional conduct, was expelled from the Saskatchewan Veterinary Medical Association and his name struck from the Register.

The proceedings ultimately giving rise to this finding of unprofessional conduct began with the Respondent pleading guilty, on January 28, 2004, to one count of possession of unlawfully-taken wildlife in contravention of The Wildlife Act, 1998 , S.S. 1998, c. W-13.12. He was fined $100,000 with a $5,000 surcharge. The activities grounding the guilty plea occurred between January 1, 1992 and February 15, 2001.

As a result of the guilty plea, the Registrar of the Saskatchewan Veterinary Medical Association made a complaint that the Respondent may have breached sections of The Veterinarians Act, 1987 , S.S. 1986-87-88, c. V-5.1 (the “ Act ”) and the Association bylaws. This complaint led to an investigation by the Professional Conduct Committee of the Association.

In its report dated March 15, 2004, the Professional Conduct Committee recommended the Discipline Committee (the “Committee”) hear and determine the complaint. [ 2 ] After a hearing, the Committee found the Respondent guilty of unprofessional conduct based on its finding the Respondent was guilty of one count each of inappropriate trapping, inappropriate handling, and inappropriate marketing of white-tailed deer. The Committee, in addition to expelling him from the Association and striking his name from the Register, ordered him to pay a fine in the amount of $15,000 plus all the costs of the Committee hearings.

That decision was dated October 25, 2005. [ 3 ] The Respondent unsuccessfully appealed the decision of the Committee to the Council of the Association and was further ordered to pay the costs of the appeal.

This latter decision was dated March 9, 2006. [ 4 ] Pursuant to the provisions of the Act , the Respondent successfully appealed the decision of the Council to a Queen's Bench Chambers judge. [ 5 ] The central issue raised at the Queen's Bench appeal was whether evidence in the form of a videotaped statement of a witness admitted by the Committee, which admission was upheld by the Council, should have been admitted. A second issue was whether the reasons for the Council’s decision were adequate; with the Respondent claiming they were insufficient.

The Chambers judge, McMurtry J., found the Committee’s failure to provide more than

summary reasons for its finding the videotaped statement was reliable breached the duty of fairness owed to the Respondent, particularly given his right of cross-examination as provided for in s. 22(7): 22(7) At a hearing by the discipline committee, there is to be full right to examine, cross-examine and re-examine all witnesses and full right to adduce evidence in defence and reply. [ 6 ] In particular, the Chambers judge found the Committee did not address, as she ruled it should have, whether there were indicia of trustworthiness in the witness’s statement; and the Committee did not “exhibit an understanding that hearsay statements are presumptively inadmissible” (para. 46 of her judgment).

Further, the Chambers judge found the Committee failed to record the basis for its finding that it had no concerns regarding the credibility of the statement. She found the Committee appeared to be operating under a mistaken belief that cross-examination did not apply (para. 46 of the judgment). [ 7 ] The Chambers judge allowed the Respondent’s appeal of the Council’s decision, quashed the decision of the Committee, and sent

the charges against the Respondent back to the Committee for a re-hearing before a differently constituted panel. [8] The Appellant appeals to this Court on the following grounds: (

a) That the Honourable Madam Justice McMurtry erred in law in allowing the Respondent’s appeal from convictionnotwithstanding that the Respondent had pled guilty in the Court of Queen’s Bench to an offence of possession of unlawfully-takenwhite-tailed deer pursuant to The Wildlife Act, 1998; (

b) That the Honourable Madam Justice McMurtry erred in law in the

interpretation of the law of hearsay and in applying thoseprinciples to the facts and proceedings before the Committee of The Saskatchewan Veterinary Medical Association; (

c) That the Honourable Madam Justice McMurtry erred in law in failing to consider the effect of the evidence that was notimpunged (sic) by the Respondent on appeal, which evidence would have been sufficient to sustain a conviction on two of threeconvictions and the penalty imposed by the Committee; (

d) That the Honourable Madam Justice McMurtry erred in law in concluding that the appropriate standard of judicial review on thefacts and circumstances is correctness rather than reasonableness; and (

e) That the Honourable Madam Justice McMurtry erred in law by failing to consider and apply the provisions of s. 22(4) of theAct. [9] The Respondent cross-appeals, arguing the Chambers judge’s order directing a new hearing ought not to have been granted becausethe extensive publicity surrounding the Respondent’s convictions means he can no longer receive a fair hearing. [10] The evidence in issue arose during the police investigation of the original charges under The Wildlife Act, 1998.

During theinvestigation, the police obtained a videotaped statement from a young man, the son of the Respondent’s girlfriend, who was residingwith and working for the Respondent at the time of the Respondent’s misconduct. The individual, (“Pool”), gave evidence under a grantof immunity. Prior to giving his statement, he was sworn and cautioned he was not obliged to give the statement but freely chose to doso. The statement was transcribed.

The statement detailed the Respondent’s illegal activities. [11] Prior to the Committee’s hearings, the prosecution (and I am referring to the prosecution at the Committee proceedings)subpoenaed Pool to appear but he failed to attend at the date of the hearing. The prosecution had promises from Pool he would appearbut he failed to do so and the matter was adjourned at the prosecution’s request. The prosecution had a further reason to request anadjournment in that it had failed to advance conduct monies to Pool at the time of service.

After a second application, a second subpoenawas obtained and served with conduct monies, but again, Pool failed to appear on the return date. The Committee, relying on s. 22(4) ofthe Act, decided to allow into evidence the videotaped statement of Pool and continued the hearing. Section 22(4) reads as follows: 22(4) The discipline committee may accept any evidence that it considers appropriate and is not bound by rules of law concerningevidence. [12] In deciding this issue, the Committee adopted the argument of the prosecution that the principles of admissibility set out in theSupreme Court decisions of R. v.

Khan, (SCC), [1990] 2 S.C.R. 531 and R. v. B. (K.G.), (SCC), [1993]1 S.C.R. 740 were applicable.

The Committee ruled because Pool failed to appear and present crucial evidence and because thestatement was a warned statement made under oath, it had no concerns regarding the credibility of the statement, and it was admitted onthe basis of s. 22(4). [13] The Committee said it would take into account any of the concerns the Respondent had about the credibility of the absent Pool. [14] Before the Committee, counsel for the Respondent objected to the admission of the videotape on the basis the Respondent wasdenied his right to cross-examine the witness as granted by s. 22(7). [15] On appeal to the Council, the Council found the Committee did not err by admitting the statement.

It relied on s. 22(4) in supportof its position. It went on to say it would have been preferable if Pool had appeared in person, but in his absence, the statement was

admissible and, because it was given under oath, it actually exceeded the standard of admissibility.

The Council gave no reasonsexplaining why the admission of the statement was “necessary.” [16] The admissibility of this statement and the content of the Respondent’s right to cross-examine the witness are the central issues onthe appeal to Queen’s Bench and to this Court. [17] On appeal of the Council’s decision, the Queen's Bench Chambers judge analyzed the standard of review and ultimately came tothe conclusion the central issue of the admissibility of the statement was a legal issue of relative complexity and the appropriate standardof review was correctness.

She also ruled the Committee was obligated to comply with the requirements of natural justice and owed aduty of procedural fairness to the Respondent – in this case, giving sufficient reasons explaining why it found the videotaped statement tobe reliable. [18] The Chambers judge concluded the principled approach to the admission of hearsay evidence as articulated by the Supreme Courtof Canada in R. v. B. (K.G.); R. v. Khan; and R. v.

Smith, (SCC), [1992] 2 S.C.R. 915 applies to civil cases as well ascriminal and, if the factors of necessity and reliability are established, the inadmissible hearsay statements may be admitted. Shequashed the decision of the Committee on the basis the Council failed to give adequate reasons as to why it was satisfied the condition ofreliability had been met, thus breaching its duty of fairness to the Respondent. The Chambers judge made no reference to the issue of therequirement of necessity. As previously stated, she remitted the charges back to the Committee to be dealt with by a differentlyconstituted panel.

In allowing the now Respondent’s appeal, she rejected his argument the Association could not deal fairly with thecharges due to the adverse publicity members had received about the original convictions. [19] In the course of her analysis, the Chambers judge found the Committee owed the Respondent a duty of procedural fairness and,relying on Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, she set out thefundamental elements to ground the duty of procedural fairness owed to the Respondent.

As stated, she concluded the duty of proceduralfairness was breached by the failure to provide adequate reasons on the essential issue of reliability. [20] As stated earlier, the Appellant argued before the Committee the evidence of Pool was very important to its case against theRespondent and, because Pool failed to attend the hearings, even while subject to a subpoena, it was necessary to rely on the videotapedstatement.

Before us, the Appellant argued that even if the statement was found to be inadmissible, there was sufficient evidence to findunprofessional conduct and, therefore, the decisions of the Committee and the Council ought to be upheld in any event.

In support of thisargument, the Appellant noted the Respondent argued before the Committee that Pool’s testimony was not important. [21] Before this Court, counsel for the Respondent argued the statement should not have been admitted for two reasons: first, becauseon the evidence, neither the Committee nor the Council could conclude Pool’s testimony was unavailable and, second, because admittingthe statement would deprive the Respondent of his statutory right of cross-examination. Decision [22] The parties rely on Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 – the Appellant in support of its position thestandard of review was reasonableness, and the Respondent in support of the Queen's Bench judge’s finding the standard was one ofcorrectness. [23] Applying the principles of analysis set out in Dunsmuir, it must be noted the statute does not contain a privative clause and neitherthe Committee nor the Council had any special expertise to determine the issue, which was of a complex legal nature.

The decisionaffected the livelihood of the member and, as such, the tribunal has “less room to manoeuvre” (Dunsmuir, para. 137 citing Law Society ofNew Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247). All of which leads to the application of the correctness standard and theconclusion that the Chambers judge was correct on this point. I am satisfied the standard of correctness applies to the

interpretation of theapplicable provisions of the enabling statute, and in particular, the same standard applies to the question of the principles of governingadmissibility. [24] However, in my view, the Chambers judge erred in her analysis of the law governing the admission of the particular evidence inthese circumstances and, in particular, her reliance on the principles set out in Khan. [25] The parties each rely on a particular provision of the statute, the Appellant arguing s. 22(4) gives the Committee the power to admitany evidence, and the Respondent arguing it has an absolute statutory right to cross-examine any witness by virtue of s. 22(7).

[ 26 ] Section 22(4) grants to the Committee the power to accept any evidence it considers appropriate and further provides is not bound by the rules of laws concerning evidence. Thus, the Committee has the power to admit hearsay evidence and does not therefore need to determine whether the hearsay evidence is reliable as a precondition to admitting it. The weight and probative value given by the Committee to the admitted evidence may ultimately lead to other issues of procedural fairness.

As Régimbald stated in Canadian Administrative Law , 1 st ed. (Markham, Ontario: LexisNexis, 2008) at p. 265-66: Tribunals that are not subject to the common law rules of evidence may rely on hearsay evidence even if it deprives the other party of any possibility to cross-examine or challenge the witness. The hearsay evidence must, however, be relevant and the decision maker must give it appropriate weight given the circumstances. Nevertheless, it may be an error for the decision maker to base its decision solely on hearsay evidence, unless the decision maker has valid reasons for doing so.

The tribunal will also err if its decision is based on insufficient or no evidence, or on irrelevant considerations. In such circumstances, the decision may be set aside. However, at this initial stage, the Committee has the power to admit evidence which it may ultimately find to be unreliable. The Chambers judge’s determination the Council erred by failing to provide adequate reasons explaining why the condition of reliability had not been met is in error because the condition is simply not a requirement for the admission of evidence.

Her comment the Committee “did not exhibit an understanding that hearsay statements are presumptively inadmissible” (para. 46 of the judgment) is not relevant to the legality of the Committee’s decision in light of s. 22(4) . [ 27 ] But this does not end the matter.

The Respondent, by virtue of s. 22(7), is granted a “full right to examine, cross-examine and re- examine all witnesses and full right to adduce evidence in defence and reply.” Accordingly, it is necessary to consider how this provision interacts with s. 22(4) . [ 28 ] The right to cross-examination, as provided by s. 22(7), cannot be absolute because any such reading of the provision would, in at least some cases, wholly frustrate the disciplinary regime set out in the Act .

For example, there will be situations where a witness’s evidence is available and necessary but the witness cannot be located, or has died, or is incapacitated, or refuses to attend or refuses to testify. In my view, the right granted by s. 22(7) does not preclude the Committee from considering hearsay evidence when its admission is necessary. Accordingly, when dealing with a situation where hearsay evidence is involved, it is desirable that an analysis reflecting the Khan factor of necessity be undertaken to decide if it is appropriate to admit the evidence in question.

Before it can admit evidence, like that of Pool, that would not be subject to cross-examination, the Committee must determine it is necessary to admit the evidence. As stated above, the Committee will ultimately decide on the probative value, including the reliability, of the hearsay evidence after it has been admitted. The precise requirements of the necessity criterion will depend on context in specific cases. [ 29 ] In this case, the necessity for the admission of the evidence was not considered at the Council stage of the proceedings and not directly addressed by the Committee.

Counsel for the Appellant argues that to be required to adjourn and reconvene the hearing because of Pool’s failure to attend would be very inconvenient to professionals who were voluntarily giving up their time for Committee work. It is interesting to note, however, the Committee quite readily adjourned the first hearing when Pool failed to appear and it was discovered he had not been provided with conduct monies. When the error was that of the Association, the hearing was readily adjourned and costs were awarded to the Respondent.

From the record, it is clear inconvenience was not an issue when it was the Association’s error. Moreover, in light of the failure to provide conduct monies, Pool, in effect, failed to appear on only one occasion pursuant to a properly executed and served subpoena. This is not enough, in my view, to establish necessity. It was open to the prosecution, having obtained a subpoena from the Court of Queen's Bench, to go back to the Court and apply to enforce compliance with the subpoena.

In any event, mere inconvenience of itself is not enough to make it necessary to admit the evidence. [ 30 ] In response to the Appellant’s argument that the decision of the Council ought to be upheld because there was evidence other than the impugned statement sufficient to ground the convictions and ultimate finding of unprofessional conduct (and indeed the Respondent himself had argued before the Committee Pool’s testimony was unimportant), I note the Committee referenced the impugned testimony in its reasons for finding the Respondent guilty of “inappropriate marketing.” In other words, the impugned statement seemed to underlie, at least in part, the finding of guilt on at least one of the charges and, in my view, one cannot strike the testimony from consideration and simply rely on other evidence for it is impossible to decide from the record what weight was given to the statement by the Council to support the findings it made.

Like the Chambers judge, I cannot conclude the Committee would have made the same decisions without Pool’s evidence. [ 31 ] Although I disagree with the reasoning of the Chambers judge, I am satisfied the Council breached s. 22(7) of the Act by failing to honour the Respondent’s right of cross-examination without first determining whether it was necessary in the circumstances to admit Pool’s statement. I would dismiss the appeal and agree with the Chambers judge the matter should be remitted back to the Committee for a hearing before a differently constituted panel.

[ 32 ] The Respondent’s cross-appeal claims a new hearing ought not to have been ordered because he could not obtain a fair hearing as a result of publicity. After conviction, a notice was sent to all members of the Association summarizing in detail the decision of the Committee including the evidence of Pool. However, no evidence was submitted demonstrating the Respondent would not get a fair hearing.

The charges for breach of The Wildlife Act, 1998 were public knowledge before the Committee hearing and, from the record, it seems no objection was raised by the Respondent he would not get a fair hearing on that occasion.

In my view, there is no basis for refusing to send the matter back to the Committee. [ 33 ] In further argument in support of the cross-appeal, the Respondent contends a new hearing would have to take place under new statutory provisions which, firstly, will require information to be provided by him to the Professional Conduct Committee and which information could be admissible against him; secondly, will change the definition of “unprofessional conduct” possibly influencing the findings of a future Committee; and, finally, would deny him right to appeal any decision to the Council.

Additionally, the Respondent argues the events took place prior to 2001 with the first hearing in 2005 and that, over this time, the Respondent’s health has deteriorated affecting his cognitive abilities, and a new hearing at this time would be unfair. None of these reasons can establish the basis for an argument the Respondent would not obtain a fair hearing. The cross-appeal is dismissed. [ 34 ] In the result, the appeal and the cross-appeal are dismissed. The Respondent has had substantial success and will have its costs in the usual manner.

DATED at the City of Regina, in the Province of Saskatchewan, this 5 th day of January, A.D. 2011. “LANE J.A.” LANE J.A. I concur “LANE J.A.” for RICHARDS J.A. I concur “OTTENBREIT J.A.” OTTENBREIT J.A.