The Alberta Court of Appeal granted a veterinarian's application for a stay of suspension from practice.

[2015] A.J. No. 553

2015 ABCA 176

Alberta Court of Appeal

M.B. Bielby J.A.

May 21, 2015

The Alberta Veterinary Medication Association (the "Association") received public complaints about the applicant veterinarian. The complaints included an allegation that the veterinarian joked that he was taking three times the amount of Dexedrine, yelling to staff on one occasion, being observed to smell of alcohol, and making inappropriate comments to staff members. This resulted in the Association initiating an investigation and requiring the veterinarian to attend an interview. Subsequently, the Association referred the matter to the Practice Review Board (the" PRB"), a committee established pursuant to the provisions of s.65.1 of the Alberta Veterinary Profession Act, RSA 2000, c V-2. The PRB referred the veterinarian to a psychiatric examination and suspended him from practice pending receipt of the examination results or pending it being satisfied that he was no longer incapacitated. At no point prior to the suspension being imposed was the veterinarian provided with copies of the complaints which underpinned the investigation, copies of the Association's interview with him, a copy of the Association's report to the PRB or particulars of the conclusion that he was incapacitated. He also was not given the opportunity to respond to the Association's concerns prior to the PRB considering the matter and imposing the suspension.

The veterinarian appealed the PRB's decision to the Council. He received disclosure of the complaints and the psychiatric report but did not receive copies of the Association's interview notes prior to the hearing of his appeal. During the appeal, it was disclosed that the veterinarian suffered from Tourette's Syndrome since 1996 and used various medications with varying degrees of success. Regarding the psychiatrist's report, the psychiatrist opined that the veterinarian had a substance use disorder based on the veterinarian's admission that he used both prescribed and non-prescribed medication; however, the expert had not received the results from the toxicology tests at the time he wrote his report. The psychiatrist opined the veterinarian ought to attend an inpatient treatment with aftercare and that a determination of when he could return to work be made after the completion of the inpatient program. The expert report did not consider whether the Tourette's, rather than substance abuse, caused the conduct which was the subject of the complaints, nor was any action recommended in regard to dealing with the Syndrome. At the conclusion of the hearing, the Council upheld the suspension and imposition of the conditions imposed by the psychiatrist.

The veterinarian launched his appeal to the Alberta Court of Appeal. There was no issue that the applicable test for granting of an interim injunction is the tripartite test articulated by the Supreme Court of Canada in RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 SCR 311. Regarding the first prong of that test, the Association acknowledged that the veterinarian's grounds for appeal were neither frivolous nor vexatious and that he had thus established the first part of the tripartite test.

Regarding the second branch, irreparable harm, the veterinarian ceased practice due to the suspension but his clinic continued to operate, albeit on reduced hours and because a different veterinarian was doing the work. Despite this, the Court found that the veterinarian would suffer some degree of irreparable loss as a result of the imposition of the suspension pending appeal and concluded he established the second component of the tripartite test for the imposition of a stay.

Regarding the balance of convenience, the Court found the strength of the questions raised by the appeal tipped the balance of convenience in the veterinarian's direction. The continuation of the suspension was based, at least in part, on the findings of and recommendations made by a psychiatrist but the reliability of that report had been challenged. More particularly, the expert opinion was written without the laboratory or forensic evidence and the contents of the forensic testing was ambiguous. More importantly, the psychiatrist failed to address "the elephant in the room": was the veterinarian's Tourette's Syndrome the cause of his questionable behaviour? If so, sending him to an abuse program would not address the problem or protect the public which was the overriding purpose of regulation of veterinary practice by the Association. The Appeal Court also noted that the nature of the complaints and complainants was also relevant; none arose from the owner of an animal as a result of the veterinarian's treatment of that animal.

Based on the above, the Appeal Court allowed the stay application.