Sep 23, 2020

The Rationale for Calling Expert Evidence in Standards Cases

Hanif v College of Veterinarians of Ontario, 2017 ONSC 497 (CanLII)

Courts have said for some time that in standards of practice cases the regulator generally needs to call expert evidence. In Hanif v College of Veterinarians of Ontario, 2017 ONSC 497 the Divisional Court explained why. The case involved the treatment of animals. Dr. Hanif objected to the College calling an expert witness on the very issue before the hearing panel of whether the standards of practice were met. The Court said that not only was such expert evidence admissible, it was expected for the following reasons:

Expert evidence is generally required in order to establish the relevant standard of practice of the profession and is important evidence helpful to the adjudicator in making findings in relation thereto. The Discipline Committee panel in most cases would be in error in finding a failure to maintain a standard of the profession in the absence of expert opinion as to that standard. In addition, just because an expert offers an opinion on whether the standard was breached does not require the Discipline Committee panel to accept it. It will make its own determination on that central issue.

Among the several reasons for this requirement is the fact that there may be lay persons on the panel who do not have the requisite intimate knowledge or understanding of the professional practice issues. In many cases even the professional members on a panel may lack deep understanding of the particular area of specialization involved and the standards that prevail within it.

Further, it is vital that the person who is the subject of a charge of having failed to maintain the standard of practice be afforded an opportunity to hear and challenge such expert opinion in an open form, rather than be made subject to discipline and sanction as a result of a closed-door discussion influenced only by members of the profession who sit on the discipline panel.

In the end, I agree that it is the function of the panel to decide whether the expert’s opinion will be assigned weight and whether the impugned conduct qualifies as professional misconduct. In my view, however, there is no support in this record for a conclusion that the Discipline Committee panel’s function in this regard was improperly usurped by the expert.

The Court also rejected a submission that the prosecutor had acted improperly by telling witnesses that they had a choice as to whether to speak with representatives of the member in advance of the hearing to discuss their possible evidence. It also dismissed concerns about an appearance of bias in having the President of the Council sit on the panel where a significant costs award was under consideration. The Court did reverse one aspect of the decision on the basis that it was unsafe to conclude that a cat had been abused where the complainant was the only witness, the complainant stated that she reported the incident to another veterinarian, that other veterinarian denied receiving such a report and the panel found the other veterinarian to be credible.