TED DUPMEIER APPLICANT - v. -, 2023 SKKB 144

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 144 Date: 20 23 06 29 Docket: QBG-SC-00038-2021 Judicial Centre: Swift Current BETWEEN: TED DUPMEIER APPLICANT - and - SASKATCHEWAN VETERINARIAN MEDICAL ASSOCIATION RESPONDENT Counsel: Andrea Johnson for the applicant Neil McPhee for the respondent FIAT KEENE J. June 29, 2023 I. INTRODUCTION [ 1 ] Dr. Ted Dupmeier [Dr. Dupmeier] has applied under Rules 3-54 and 6-13 of the Queen’s Bench Rules that Mr. Mark Vanstone [Mr. Vanstone] attend for cross-examination. [ 2 ] Dr. Dupmeier is a member of the Saskatchewan Veterinarian Medical Association [Association].

He was charged by the Professional Conduct Committee [PCC] of the Association with eight counts arising from his practice as a veterinarian. The formal hearing before the Discipline Committee [DC] of the Association was held on December 2, 3 and 4, 2020. It appears that “The Discipline Committee deliberated during December 2020, releasing its formal signed decision of January 20, 2021 in which Dr. Ted Dupmeier was found guilty of counts 2, 3, 5, 6, and 8” (Mark Vanstone affidavit sworn December 17, 2021—[Vanstone affidavit]). The sentencing hearing was held on February 1, 2021.

A “Report of the Discipline Committee (DC) Hearing Saskatchewan Veterinarian Medical Association (SVMA)” was provided on February 22, 2021 ordering, inter alia, a letter of reprimand be placed on Dr. Dupmeier’s permanent file with the Association, fines on the guilty charges amounting to $10,000.00 and payment of $75,000.00 by way of costs. [ 3 ] On March 23, 2021 Dr. Dupmeier filed an originating application appealing the DC’s February 22, 2021 decision which set out six grounds of appeal including a ground of appeal based on a denial of procedural fairness.

This specific ground is particularized under five sub-headings. None of these particularized grounds complained of any issue arising from the legal representation of the DC or the PCC. However, that became an issue when Dr. Dupmeier filed an application on December 18, 2021 requesting that the law office representing the respondent (Lakefield Law LLP) be directed to withdrawal as counsel in the appeal. The grounds for this application were: … 3.

On our about October 24, 2019, the Professional Conduct Committee of the Respondent, Saskatchewan Veterinary Medical Association brought a formal complaint against the Appellant, Dr. Ted Dupmeier, alleging that he was guilty of professional misconduct pursuant to The Veterinarians Act, 1987. 4. On December 2, 3, and 4, 2020, a hearing was held to hear allegations made in the formal complaint of October 24, 2019. 5.

During this hearing, it became apparent to the Appellant that the Professional Conduct Committee who was prosecuting the complaint and the Discipline Committee established to hear and decide whether the allegations contained in the complaint were founded through the hearing, were familiar with one another.

6. Following this hearing, the Appellant also discovered that: a. The lawyer for the Professional Conduct Committee, Nicholas Stooshinoff, had indicated during his closing statement that he intended to discuss the charges further outside of the hearing with Mark Vanstone, the lawyer who had been retained to advise the Discipline Committee, to determine what the appropriate convictions would be, based on the Discipline Committee’s reasons and prior to the release of the Discipline Committee’s decision; b. Mr. Stooshinoff and Mr.

Vanstone either were members of the same law firm, Lakefield Law LLP, at the time of the hearing, or were likely in the process of negotiating or preparing for Mr. Stooshinoff to join Lakefield Law LLP. 7. The Discipline Committee found the Appellant guilty of some of the allegations of professional misconduct against him. 8.

The representation of each of the Professional Conduct Committee and the Discipline Committee of the Respondent by members of the same law firm, or individuals who intended to become members of the same law firm in the near future, interferes with the independence of the decision-maker, the Discipline Committee from the Professional Conduct Committee. 9. Evidence will be required in this Appeal from Mr. Stooshinoff and possibly Mr. Vanstone to speak to the factual circumstances which led to the lack of independence of the Discipline Committee. These matters will not be purely formal or uncontroverted. 10.

As a result of the need for Mr. Stooshinoff or possibly Mr. Vanstone to be called as can be permitted to continue to act as counsel in this matter. [ sic ] … [ 4 ] Dr. Dupmeier filed his affidavit sworn December 6, 2021 in support of that application. Dr. Depmeier deposed, in part, that: … 4. On December 2, 3, and 4, 2020, a hearing was conducted via Zoom video conference regarding the merits of the allegations against me as contained in the Complaint (the “Hearing on the Merits”). Nicholas Stooshinoff acted as counsel and prosecutor for the Professional Conduct Committee.

Mark Vanstone acting as legal counsel and advisor for the Discipline Committee. Mr. Vanstone was present at the entire hearing. I represented myself at this hearing. 5. Leading up to and during the Hearing on the Merits, I felt as though the Professional Conduct Committee, including Mr. Stooshinoff, and the Discipline Committee, may not be completely independent from each other. The Hearing on the Merits itself was conducted in a manner that was relatively informal. However, I observed Mr. Stooshinoff and the Discipline Committee to be very comfortable and particularly friendly with each other. 6.

I am aware that Mr. Stooshinoff had provided joint training to the Professional Conduct Committee and the Discipline Committee in October of 2015. I am unaware of whether Mr. Stooshinoff has participated in further training since this time or if he has had other involvement with the Discipline Committee which may have fostered a relationship between himself and the members of the Discipline Committee. 7. In particular, it appeared to be during the hearing that the Discipline Committee deferred to and took direction from Mr. Stooshinoff during the hearing.

Attached to this Affidavit as Exhibits “A” and “B” are portions of the transcript from December 2, 2020 of the Hearing on the Merits which are examples of circumstances in which Mr. Stooshinoff raised objections and the Chair of the Discipline Committee agreed with Mr. Stooshinoff without hearing or asking for submissions from me on points of considerable importance to the hearing, including the governance of procedures in the hearing. … 11. During his closing submissions on behalf of the Professional Conduct Committee, Mr. Stooshinoff indicated to the Discipline Committee that he would have discussions with Mr.

Vanstone, counsel to the Discipline Committee regarding the charges which had been brought against me. This portion of the transcript is attached to this Affidavit of Exhibit “D”. Since I was not present for Mr. Stooshinoff’s closing submissions, I was not aware of these comments until I received a copy of the transcript of these proceedings. I did not receive a copy of the transcripts of these proceedings until late spring of 2021, after I have filed the appeal of the decisions on the merits and on sentencing. 12. On or about July 13, 2021, I become aware for the first time that Mr. Stooshinoff and Mr.

Vanstone were members of the same law firm, Lakefield Law LLP. Attached to this Affidavit as Exhibits “E” and “F” are the profiles of Mr. Stooshinoff and Mr. Vanstone, respectively, on Lakefield Law LLP’s website. This information was captured from Lakefield Law LLP’s website on July 13, 2021. [ 5 ] This prompted Mr. Vanstone (legal counsel for the DC) to file his affidavit which essentially was a response to that application and Dr. Dupmeier’s affidavit. Mr. Vanstone’s affidavit is of importance to the present application for examination of Mr. Vanstone and I will sacrifice brevity to reproduce Mr.

Vanstone’s affidavit: … 1. I am a lawyer with the law firm Lakefield LLP, solicitors for the Respondent, Saskatchewan Veterinary Medical Association, in this proceeding and as such have personal knowledge of the matters and facts herein deposed to except where stated to be on information and belief and where so stated I verily believe the same to be true. 2. Nicholas J. Stooshinoff, Q.C. was (and is) legal counsel to the Professional Conduct Committee for the Saskatchewan Veterinary

Medical Association (“SVMA”) throughout the prosecution of the discipline matter involving Dr. Ted Dupmeier. 3. During the within proceedings, I acted as an assessor to the Discipline Committee and my role was to provide legal advice to the Discipline Committee for the SVMA if and when it may be requested by the members of the Committee. I am not and was not at any time a “decision maker” on the Discipline Committee. 4. The hearing of this matter was initiated on May 19, 2020, but adjourned at the request of Roger LePage legal counsel for Dr.

Dupmeier but eventually proceeding to a formal hearing commencing December 2, 3, and 4, 2020, during which evidence was called by Dr. Dupmeier and the Professional Conduct Committee. Dr. Dupmeier had pleaded Not Guilty to all 8 charges brough before the Discipline Committee, necessitating the hearing. 5. The Discipline Committee deliberated during December, 2020, releasing its formal signed decision of January 20, 2021 in which Dr. Ted Dupmeier was found guilty on counts 2, 3, 5, 6, and 8. He was found not guilty of 3 of the 8 charges. 6. Nicholas J.

Stooshinoff, Q.C. moved his physical law practice and joined Lakefield Law LLP , on January 1, 2021, maintaining his independent legal professional corporation and practicing in association with Lakefield LLP, which carried on business as WMCZ Lawyers prior to April 21, 2021. 7. Prior to Mr. Stooshinoff’s relocation to Lakefield, he and I discussed out professional obligations and duties including the need to take steps to prevent any legal conflicts or perceptions of same concerning this or any other matter, and we agreed and specifically undertook that:

a) No discussions would occur between us concerning Dr. Dupmeier’s matter, outside of ‘on the record’ communications in the presence of the Discipline Committee, the Registrar for the Respondent, and Dr. Dupmeier, within the hearing process itself. Apart from discussing the measures described herein implemented to prevent a conflict, we had no discussions whatsoever concerning Dr. Dupmeier’s matter, apart from during the hearing itself, which occurred ‘on the record.’

b) We discussed the creation of a ‘Firewall’ between our respective files. A natural demarcation presented in this regard as Mr. Stooshinoff indicated he maintained a physical file for the matter while mine was electronic;

c) Mr. Stooshinoff undertook to maintain his file with respect to the matter in a physical , paper format which he would keep separate from the electronic filing system maintained at Lakefield, on which was stored my file with respect to the matter; i. Mr. Stooshinoff undertook that he would not access my electronic file and to the best of my knowledge has refrained from doing so. ii. I undertook that I would not access his physical file, and to date have not done so. Its whereabouts are unknown to me. iii. As of the date of this Affidavit, I have never accessed or viewed in any manner, any portion of Mr. Stooshinoff’s file with respect to Dr. Dupmeier.

d) Mr. Stooshinoff undertook to exclusively rely on the assistance of a specific legal assistant with respect to his paper file, while I would rely exclusively on the assistance of another for my electronic file, and that each of these assistants would be instructed to discuss the matter only with their assigned lawyer. I instructed my assistant accordingly.

e) On conclusion of the matter, I would vacate my role with the Respondent and advise the Discipline Committee of the Respondent to retain new counsel. This I have done. 8. With respect to the transcript excerpted as Exhibit “E” to the Affidavit of Dr. Dupmeier dated December 6, 2021, containing Mr. Stooshinoff’s statement: Then we will review the matter, and I may, in consultation with Mr. Vanstone, discuss the position of the Professional Conduct committee vis-à-vis, what will be recorded as a conviction or which will be described as duplicating or overlapping, if you will. [Transcript, lines 5-10] 9.

Those remarks are taken out of context and misrepresent the representations made by Mr. Stooshinoff. A copy of the entirety of the statement is attached to the Affidavit of Tyler George. The comments were and I took them to be both introductory and explanatory and intended to assist the Discipline Committee in reaching its decision.

I understood him to mean simply that when viewed as a whole, the eight counts before the Discipline Committee could or did have similar or common facts underpinning several different charges, such that the Kienapple principal might be engaged, and that the Professional Conduct Committee might have submissions in this regard depending on which if any convictions might be returned by the Discipline Committee. 10. The Discipline Committee circulated its initial writing decision among Discipline Committee members well before Mr. Stooshinoff joined our firm.

a) Therein the Discipline Committee determined that Dr. Dupmeier was not a ‘practice owner’ such that he was not guilty of counts 1,4, and 7 as stated in the Formal Complaint against him;

b) The Discipline Committee found Dr. Dupmeier guilty of counts 2, 3, 5, 6, and 8;

c) The SVMA follows a bi-furcated hearing process such that, whenever convictions are determined for a member, a separate subsequent hearing is convened wherein potential consequences are determined, 11. The sentencing hearing for Dr. Dupmeier was then held on Feb 1, 2021.

12. With respect to the transcript excerpt reference, no discussions did occur between Mr. Stooshinoff and myself at any time, except during the hearing, and ‘on the record.’ These are referenced in the Report of the Discipline Committee of February 1, 2020, where in “Keinapple [ sic ] Principle” is specifically discussed. 13. I make this affidavit in response to the Application of Dr. Ted Dupmeier and for the assistance of the Honourable Court. [ 6 ] Dr. Dupmeier then filed an application on December 20, 2021 for an order to cross-examine Mr. Vanstone under Rules 3-54 and 6-13 of The Queen’s Bench Rules.

The grounds for this application were: … 2. On December 7, 2021, a Notice of Application was served and filed by counsel for the Applicant, Ted Dupmeier, requesting that the Court remove Lakefield Law LLP as solicitors of record for the Respondent, Saskatchewan Veterinary Medical Association . 3. Mark Vanstone, lawyer and member of Lakefield Law LLP, swore an affidavit on December 17, 2021 which contained evidence which was not purely formal or uncontroverted in response to the Application to remove Lakefield Law LLP as solicitors of record for the Respondent. 4. Mr.

Vanstone’s affidavit contained evidence which speaks to the matters in issue in the Originating Application and in the Application to remove Lakefield Law, specifically the procedural fairness and the appearance of a lack of independence between the Discipline Committee and the Professional Conduct Committee. 5. In the Original Application and in the Application to remove Lakefield Law as solicitors of record, there are 2 primary events giving rise to the appearance of a lack of independence, specifically, the statement on December 4, 2020 by Mr. Stooshinoff before the Discipline Committee that he and Mr.

Vanstone would “discuss the position of the Professional Conduct Committee vis-à-vis, what will be recorded as a conviction…” and that subsequently, following the end of the hearing but before the decision was rendered, a member of the Discipline Committee, Dr. Choquer, spoke with the Applicant, Dr. Dupmeier, and indicated that he was dissatisfied with the extent of the evidence before the Discipline Committee. 6. Cross-examination of Mr. Vanstone is necessary to confirm that neither Mr. Stooshinoff nor Mr. Vanstone informed Dr.

Dupmeier of the pending or actual amalgamation of the law practices either before or after it occurred and also to determine if, and if so, when, the Discipline Committee and the Professional Conduct Committee were informed of the pending or actual amalgamation of the law practices, among other issues. 7. If leave to cross-examine is granted, it is anticipated that there would be questions around whether either solicitor-client privilege, or adjudicative privilege have been waived, particularly with respect to whether advice was sought or given around Mr.

Stooshinoff’s statement to the Discipline Committee and around whether privilege has been waived with respect to the draft decision referenced in Mr. Vanstone’s Affidavit or the deliberations around the assessment of the state of the evidence given in light of Dr. Choquer’s discussion with Dr. Dupmeier, which in the Originating Application, Dr. Dupmeier will state he was informed “they” (without defining whether “they” was the other Discipline Committee members or the lawyers) were trying to paint Dr. Dupmeier as “nuts”. … [ 7 ] Dr.

Dupmeier filed an amended originating application on January 24, 2022 that added to the procedural fairness grounds, the following: … f.

Depriving the Applicant of procedural fairness by failing to provide the Applicant with a Discipline Committee which was independent from the Professional Conduct Committee, the particulars of such lack of independence between the Discipline Committee and the Professional Conduct Committee include: i. the provision of legal advice or representation to each of the Discipline Committee and the Professional Conduct Committee by two lawyers who were, or who had formed intentions to become in the near future, members of the same law firm, causing: 1. legal advice to be provided to the Discipline Committee which may have favoured submissions and evidence adduced by counsel for the Professional Conduct Committee; and 2. distorted perception by the Discipline Committee of the requirement to maintain independence from the Discipline Committee; ii. failure to disclosure to the Applicant that the Discipline Committee and the Professional Conduct Committee were represented or advised by two lawyers who were, or who had formed intentions to become in the near future, members of the same law firm, thus preventing the Applicant from raising his objection at the outside of the hearing so that a Discipline Committee could be freshly constituted and provided with a legal assessor who was independent from the legal advisor for the Professional Conduct Committee; … [ 8 ] The application to remove Lakefield Law LLP was eventually heard on February 22, 2023, and I provided a written fiat on March 9, 2023 dismissing Dr.

Dupmeier’s application. Mr. Vanstone’s affidavit came up in that decision, but I decided that the filing of his affidavit and the content of that affidavit should not result in disqualification of the Lakefield Law LLP office. However, I noted apart from that—the application to examine Mr. Vanstone was left for another day (para. 29 of the March 9, 2023 fiat). I also set out how the PCC and DC operate in discipline hearings conducted by the Association in that fiat and will not repeat that here (see paras. 2-7, March 9, 2023 fiat).

II. POSITION OF THE PARTIES (

a) Dr. Dupmeier’s position [ 9 ] Essentially Dr. Dupmeier contends that his lawyer needs to cross-examine Mr. Vanstone to find out what happened behind the scenes between Mr. Stooshinoff who represented the PCC and Lakefield Law LLP ( i.e. Mr. Vanstone) who represented the DC. He claims that while Mr. Vanstone’s affidavit answers some questions—others remain, such as when the PCC or DC was advised about Mr. Stooshinoff’s plan to join Lakefield Law LLP, what if anything Mr. Stooshinoff and Mr. Vanstone discussed regarding the discipline proceedings, what Mr.

Stooshinoff meant when he said he would discuss with the DC’s counsel the proper disposition of the charges, etc. In short, Dr. Dupemeier’s counsel argues that the procedural fairness piece hinges on getting more information from Mr. Vanstone since Dr. Dupmeier of course does not know what was going on between the two lawyers. He contends this presents an inward and outward appearance of possible procedural unfairness issues. Adding to all of this is Dr. Dupmeier’s argument that as soon as Mr. Vanstone filed an affidavit in these proceedings—Mr. Vanstone effectively became a witness that should entitle Dr.

Dupmeier’s lawyer to cross-examine him. [ 10 ] Dr. Dupmeier also contends that any solicitor-client privilege between Lakefield Law LLP and the DC/Association or the principle of deliberative secrecy should yield to the greater concern of procedural fairness. (

b) Position of the Association [ 11 ] The Association’s counsel referred to the factors set out in Wallace v Canadian National Railway, 2009 SKQB 178 at para 5 , 338 Sask R 174 [ Wallace ] and notes that generally cross-examination of a deponent is only available sparingly and only if there is a sincere and legitimate need for clarification of the information deposed to. [ 12 ] In regards to solicitor-client privilege—the Association argues that there is a prima facie presumption of inadmissibility ( R v McClure ¸ 2001 SCC 14 at para 28 , [2001] 1 SCR 445 [ McClure ]) which may only be pierced in accordance with the “absolute necessity test” and a court should not balance competing interests ( McClure at para 35 ).

The Association goes on to rely upon the principle of deliberative secrecy ( Summitt Energy Management Inc. v Ontario Energy Board, 2012 ONSC 2753 at paras 76-82 ). [ 13 ] The Association ends off describing the request to cross-examine Mr. Vanstone as a “fishing expedition” without any basis in Mr. Vanstone’s affidavit to support the application. III.

THE LAW [ 14 ] Rule 3-54(1) of The Queen’s Bench Rules is reproduced as follows: 3-54(1) On any originating application, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross-examination of the person making the affidavit.

(2) The costs of any cross-examination pursuant to subrule (1) must be paid by the party applying for the cross-examination. [Note: I acknowledge that the applicant also referred to Rule 6-13 but conclude only Rule 3-54(1) need be considered] [ 15 ] Justice Popescul (as he then was) explained the court’s exercise of discretion in such applications in Wallace as follows: [5] The law with respect to when a court ought to exercise its discretion in favour of a request to permit cross-examination on a deponent’s affidavit is well settled.

The general principles and criteria considerations gleaned from the jurisprudence in this jurisdiction may be summarized as follows: 1. There is no inherent right to cross-examine a deponent on his affidavit. 2. Granting leave to cross-examine on an affidavit is a discretionary remedy. 3. Permission to cross-examine on the affidavit may be granted by the Court pursuant to Rule 317. 4. The party making the request must establish that the cross-examination will assist in resolving the issue before the Court and that it will not result in an injustice. 5.

Leave to cross-examine will be sparingly, and not routinely, granted. 6. Generally, leave to cross-examine ought only be granted where there is contradictory evidence before the Court; however, in the absence of contradictory evidence, the Court may nonetheless grant leave where there is a sincere and legitimate need for clarification of the information deposed to and that information is solely within the knowledge of the affiant. 7. Generally, leave to cross-examine on an affidavit ought not be granted on interim applications. 8.

There is no enhanced right of cross-examination under The Class Actions Act , S.S. 2001, c. C-12.01 . The general principles apply. IV. DECISION [ 16 ] In my opinion, the real purpose of Dr. Dupmeier’s request to cross-examine Mr. Vanstone is to hopefully uncover some sort of impropriety perceived or real between Mr. Stooshinoff in his role as counsel and prosecutor for the PCC and Mr. Vanstone’s retainer as advisor to the DC.

Obviously, if the examiner was able to elicit useful evidence, then this would aid the appellant’s argument that he was thwarted from having a fair hearing because of the relationship between Mr. Stooshinoff and the DC’s

advisory lawyer’s law firm. I appreciate that while Mr. Stooshinoff was not yet a member of Lakefield Law LLP at the time of the hearing on December 2, 3 and 4, 2020, he appears to have been in discussions about joining that firm at that time. I am satisfied that when the DC provided its initial decision in January 2021, Mr. Stooshinoff was already a member of Lakefield Law LLP and he was a member of that law firm on February 1, 2021 when the sentencing hearing was convened by the DC.

Finally, he was a member of that firm when the DC’s report was provided on February 22, 2021. [ 17 ] I find this to be an extraordinary set of circumstances that hopefully will not be replicated in the future. However, having said that—I will look to the Wallace criteria as guidance in to whether Mr. Vanstone should be subjected to examination on his affidavit. Firstly—there is no inherent regime to cross-examine Mr. Vanstone on his affidavit. The application is distinguishable from an application brought under the

summary judgment rules where there is rule-based encouragement to conduct cross-examinations because

summary judgment applications require the parties put their best foot forward—which often requires cross- examination of deponents ( Regional Tire Distributors (Saskatchewan) Inc. v Quality Tire Service Ltd. , 2016 SKQB 411 at para 9 ; see also Rule 7-3(2) of The Queen’s Bench Rules that provides on adverse inference can be drawn against a party who does not cross- examine). [ 18 ] Next, Dr. Dupmeier must established that cross-examination of Mr. Vanstone will assist in resolving an issue before the court and that it will not result in an injustice. The court has set out the relevant parts of Mr.

Dupmeier’s affidavit and entirety of Mr. Vanstone’s reply affidavit. I am not persuaded that cross-examination of Mr. Vanstone is needed. The mere fact that Mr. Vanstone entered the ring by filing an affidavit is not enough in my opinion. That does not create an automatic right to cross-examine the deponent. The court must be satisfied that cross-examination will assist in resolving an issue ( i.e. procedural fairness) before the court. In my view, it is highly unlikely that cross-examination will elicit much. Further, Mr. Vanstone adequately covers the controversy and explains the relationship between Mr.

Stooshinoff and Lakefield Law LLP and the steps taken to insulate Mr. Stooshinoff and Mr. Vanstone and their respective clients. In my opinion cross-examination is not likely to reveal anything of such probative value as to merit the relaxing of the general reluctance by the court to grant cross-examination. [ 19 ] Finally (and somewhat repetitous of what I have said above) I do not find there is a sincere and legitimate need for clarification of the information deposed to by Mr. Vanstone. Mr. Vanstone’s affidavit is straightforward and to the point. The protestations advanced by Dr. Dupmeier over Mr.

Stooshinoff’s sentencing comments were dealt with in my March 9, 2023 fiat (paras 21, 23 & 34). I am worried that this application does have a bit of the trappings of a “fishing expedition” with the potential of drifting into the relatively forbidden territory of solicitor-client privilege and the Assocation’s right to have secret deliberations which would result in an injustice to the Association. [ 20 ] Therefore, I have concluded that upon considering the Wallace factors, and what I believe is the proper application of my discretion; the court should dismiss Dr. Dupmeier’s application to cross-examine Mr.

Vanstone. The application therefore is dismissed with costs fixed at $500.00 payable by Dr. Dupmeier to the Association. J. T.J. KEENE