Zheng v Manitoba Veterinary Medical Association, 2023 MBCA 77

Citation: Zheng v Manitoba Veterinary Medical Association, 2023 MBCA 77 Date: 20230906 Docket: AI21-30-09657 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : dr. wenchao zheng ) D. Girard ) for the Appellant Appellant ) ) W. G. Haight and - and - ) F.

Aiello ) for the Respondent the manitoba veterinary medical ) association ) Appeal heard and ) Decision pronounced: Respondent ) September 6, 2023 simonsen JA (for the Court): [ 1 ] This is an appeal pursuant to section 45(1) of The Veterinary Medical Act , CCSM c V30 (the Act ) of an order made by an inquiry panel (the panel) of the respondent, the Manitoba Veterinary Medical Association (the MVMA), as to the conduct (the conduct decision) and sanctions for that conduct (the sanction decision) of the appellant, a veterinarian. [ 2 ] At the hearing, we dismissed the appeal with reasons to follow.

These are those reasons. Background [ 3 ] The appeal arises from the appellant’s treatment of the complainant’s dog (the dog) for skin and ear infections and how the appellant dealt with the billing for his services. [ 4 ] The panel considered a general charge and five specific charges (upon which the general charge rested) brought against the appellant in relation to the dog. The general charge alleged that the appellant engaged in professional misconduct and displayed a lack of knowledge of, or lack of skill or judgment in, the practice of veterinary medicine.

The five specific charges, for contravention of the MVMA’s Code of Ethics or its General By-Law No. 1, were (1) the charting charge, (2) the incompetence charge, (3) the informed consent charge, (4) the integrity charge, and (5) the prescription refusal charge (see the Act at sections 40 (a), 40 (c), 40 (e)). [ 5 ] The appellant was found guilty as charged except for the general charge for professional misconduct, as well as the general charge for lack of knowledge, skill or judgment and the incompetence charge as those charges related to the administration of a drug called dexamethasone, which was determined to be an acceptable treatment. [ 6 ] The sanction decision required the appellant to complete 32 hours of continuing education on veterinary medicine, practice under the direct supervision of another veterinarian for two years (the supervision provision), be subject to random practice audits, reimburse the complainant $321.36, pay a fine of $2,000 and pay costs of $50,000.

The panel also recommended to the MVMA

that its decision, together with the appellant’s name, be published. [7] Fundamentally, the appellant asserts that the panel erred by concluding that the charges against him had been proven,including by imposing too high a standard, one of perfection or the standard governing a specialist rather than a generalist practisingveterinary medicine. The appellant also asserts that the sanction imposed was harsh and excessive. [8] The MVMA seeks to tender, by consent, fresh evidence about an agreement made by the parties clarifying the scopeand specifics of the supervision provision that formed part of the sanction.

We admitted the fresh evidence as it was in the interests ofjustice to do so based on the criteria set out in Palmer v The Queen, (SCC), [1980] 1 SCR 759. Discussion and Decision [9] On this statutory appeal of the conduct decision, the usual appellate standards of judicial review, as outlined inHousen v Nikolaisen, 2002 SCC 33, are applicable (see Histed v Law Society of Manitoba, 2021 MBCA 70 at paras 34-35; and Canada(Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 37).

Questions of law are reviewed on a standard ofcorrectness, and questions of fact are reviewed on a standard of palpable and overriding error, as are questions of mixed fact and law,absent a clear extricable legal error. [10] The essence of the appellant’s position is that the panel erred in law by imposing too high a standard on him—that is,higher than that reasonably expected of a generalist veterinarian in like circumstances. We disagree.

In its reasons, the panel stated thatthe dog’s condition involved “very common symptoms that regularly present in patients of a veterinarian” and that “the [appellant]should have had the basic knowledge to provide his client with a range of treatment options to treat allergic skin/ear disease, includingthose within the [complainant’s] budgetary constraints.” [11] The panel’s decision on the question of whether the appellant met the applicable standard is one of mixed fact and law,reviewable on a standard of palpable and overriding error. We are not persuaded that the panel made any such error.

Based on expertevidence before it that it accepted, the panel found that the appellant had inappropriately administered two medications, injectableampicillin and injectable gentamicin, and had failed to prefer oral medications over injections in light of the complainant’s financialconcerns and the dog’s chronic condition. These findings resulted in the panel’s decision that the incompetence charge and the generalcharge of lack of knowledge, skill or judgment were proven.

The panel also concluded that the integrity charge was proven because theappellant had delayed in reimbursing the complainant monies overpaid for his services, as well as an interest charge resulting from thatdelay. The panel was entitled to accept the evidence of the MVMA’s expert and to make the findings that it did.

It is not for this Courtto substitute its own view of the evidence. [12] Turning to the sanction decision, the applicable standard of review was set out in Dhalla v College of Physicians andSurgeons of Manitoba, 2022 MBCA 7, which states that “absent a misdirection in law or on the facts, an appellate court will notintervene unless the decision on penalty is so wrong as to amount to an injustice” (at para 71). [13] The parties agree that the panel, in determining the sanction, correctly identified the non-exhaustive list of relevantfactors set out in Jaswal v Medical Board (Nfld), at para 35 (NFSCTD).

The appellant nonetheless says that thepanel erred by considering only two of the 13 factors identified. However, the fact that the panel’s reasons only mention two factorsdoes not mean that it did not consider the others.

We do not accept the appellant’s contention that the panel’s reasons for the sanctiondecision (or the conduct decision) were inadequate; the reasons meaningfully account for the central issues and concerns raised by theparties, are justifiable, transparent and intelligible and support the conclusions reached (see Histed at para 82). [14] While the appellant argues that the panel imposed a sanction that effectively penalized him for professional misconductdespite the acquittal for same, we see no indication of that from the panel’s reasons.

The appellant also contends that the supervisionprovision effectively precludes him from continuing to practise veterinary medicine. Although the supervision provision as clarifiedremains onerous, it does not, in our view, rise to the level of warranting appellate intervention. [15] Undoubtedly, the sanction imposed was very significant. However, serving and protecting the public interest in thedelivery of veterinary services was the panel’s primary responsibility in sanctioning the appellant (see the Act at section 5(1.1)).

It mustbe recognized that the appellant has a lengthy disciplinary history and that remedial efforts in the past have been unsuccessful. Furthermore, no suspension was ordered. Again, it is not for this Court to exercise its own discretion but, rather, to determine whetherthe panel erred in principle or its decision is clearly wrong. We have not been so persuaded.

Deference is owed to the discretion of thepanel. [16] For the foregoing reasons, the appeal was dismissed with costs, and the order of the panel was confirmed subject to thesupervision provision being clarified as agreed by the parties on the motion for fresh evidence. JA JA

JA