[1]               The appellant appeals findings of professional misconduct made against him by the Alberta Veterinary Medical Association, and the resulting award of costs.

[2]               The appellant is a veterinarian in public practice in Edmonton. In August 2017 Mr. Kellar brought his dog Lula into the appellant’s clinic, because Lula had a swelling underneath her left eye.

[3]               Lula was first seen by Dr. MacDonald, who performed four skull radiographs and a fine needle aspiration of the lump. Nothing was revealed by an oral examination, although Mr. Kellar was told that a tooth root abscess might be the cause. A sample was sent for analysis, and the pathologist commented: “Given location, also rule out a tooth root abscess”.

[4]               When the swelling did not subside, Mr. Kellar brought Lula back, and she was seen by the appellant. The appellant was aware of Dr. MacDonald’s previous involvement and the results of the laboratory test. The appellant testified that due to time constraints he was not able to do a dental x-ray, and to address Mr. Kellar’s concerns he proceeded to perform surgery under general anesthetic to remove the swelling under Lula’s eye.

[5]               The surgery did not alleviate the problem, and Lula was subsequently seen for a recurrent right ear infection by Dr. Houston who did not notice any oral abnormalities. Mr. Kellar declined to take Lula to a clinic specializing in ophthalmology. Mr. Kellar did take Lula to another clinic but due to the cost of care he did not follow up on their recommendation of a CT scan under general anesthetic. Lula was ultimately seen in November by Dr. Leversedge who identified a fractured premolar which was extracted about 10 days later, resolving the swelling under Lula’s eye.

[6]               A complaint was subsequently made to the Alberta Veterinary Medical Association respecting the appellant’s treatment of Lula.

[7]               The Hearing Tribunal of the Alberta Veterinary Medical Association found that six of the 13 allegations of unprofessional conduct against the appellant were proven:

[8]               The appellant appealed to the Committee of Council of the Alberta Veterinary Medical Association. The Committee of Council reviewed each of the findings of the Hearing Tribunal and found them to be reasonable. It also confirmed that the sanctions imposed were reasonable, and dismissed the appeal. The Committee of Council subsequently directed that the appellant pay 80% of the costs of the appeal.

[9]               In this appeal from the decision of the Committee of Council the appellant raises the following issues:

[10]           This appeal is from the decision of the Committee of Council, not directly from the decision of the Hearing Tribunal. The Committee of Council, however, in many respects merely found the decision of the Hearing Tribunal to be reasonable, without an independent analysis of the facts, so this appeal is to some extent effectively an appeal from the decision of the Hearing Tribunal.

[11]           The standard of review for findings of credibility is palpable and overriding error.

[12]           Whether professional misconduct has been made out by the evidence is a mixed question of fact and law. Unless there is an allegation that the legal standard underlying the finding is flawed, the ultimate finding of misconduct is reviewed by the superior court for palpable and overriding error. In this case there is no allegation that the Hearing Tribunal applied a legally incorrect standard of conduct. Since the findings of misconduct directly engage the expertise of the Hearing Tribunal and the Committee of Council those findings are entitled to considerable deference on appeal.

[13]           Adequacy of reasons is generally not a stand-alone ground of appeal, and the appellant did not present this as an independent ground of appeal. The reasonableness of the outcome, and the reasons articulated for reaching that outcome, are reviewed together: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708. The reasons must be sufficient to explain to the parties how the tribunal reached its outcome, and to enable appellate review.

[14]           The appellant argues that the Hearing Tribunal gave too much weight to Mr. Kellar’s evidence. He could not recall some details, and his memory on other details was inaccurate.

[15]           The Hearing Tribunal was aware of the need to assess the reliability of Mr. Kellar’s testimony. For example, where his testimony about what he was told by the appellant conflicted with the medical records, the Hearing Tribunal relied on the records, concluding that Mr. Kellar “may not have fully assimilated what Dr. Tan III was trying to communicate”.

[16]           Mr. Kellar’s evidence was also of marginal importance on most of the charges. He testified that he did not recall the appellant looking into Lula’s mouth on the first visit, but the Hearing Tribunal was aware that the appellant’s main opportunity to examine Lula occurred in the surgical suite. There was conflicting evidence on whether the appellant attempted to respond to Mr. Kellar’s telephone calls, but it was open to the tribunal to accept that Mr. Kellar attempted unsuccessfully to find out the results of the histology.

[17]           The Hearing Tribunal had the advantage of hearing the evidence of the witnesses, and was in the best position to make findings of credibility and reliability. The appellant has not demonstrated any palpable and overriding error that would justify appellate intervention. This ground of appeal is dismissed.

[18]           Two of the counts related to the medical treatment given to Lula by the appellant:

[19]           The appellant testified that he did examine Lula’s mouth prior to the surgery, and that several other veterinarians were unable to identify the problem through oral examinations. He argues it was unreasonable for the Hearing Tribunal to rely on Mr. Kellar’s evidence that he did not observe the appellant performing an oral examination. Further, he submits the Hearing Tribunal relied on hindsight in concluding that the appellant should have realized that a tooth abscess was the source of Lula’s eye swelling. He argues that the surgery he performed would have alleviated Lula’s discomfort, even if did not solve the underlying problem.

[20]           The findings of the Hearing Tribunal on the fifth count included:

[21]           In these findings the Hearing Tribunal acknowledges the evidence given by the appellant. These findings do not just rely on the fact that the appellant may not have made an oral examination of Lula in the presence of Mr. Kellar. They conclude that a tooth abscess should have been the primary differential diagnosis, and that the failure to do a more thorough oral examination and dental x-rays before engaging in surgery fell below the standard of professional conduct required in the circumstances.

[22]           The Committee of Council agreed that a more complete dental examination might have identified the underlying issue, and avoided unnecessary surgery. Rather than meeting Mr. Kellar’s desire to have the lump removed, the appellant should have first developed a plan to diagnose the underlying cause.

[23]           These findings are supported by the record, and are within the expertise of the Hearing Tribunal and the Committee of Council. The appellant has failed to demonstrate any reviewable error, and this ground of appeal is dismissed.

[24]           Two of the counts arose from alleged failures of the appellant to properly communicate with Mr. Kellar about Lula’s treatment:

[25]           There was admittedly conflicting evidence on this issue. There was evidence that Mr. Kellar had changed his telephone number, even though his evidence conflicted with that of his son on that point. Both of the telephone numbers were on the appellant’s files. The appellant testified that unsuccessful attempts were made to contact Mr. Kellar, as some of the numbers called were inactive. Some of the other doctors also had trouble contacting him. Mr. Kellar acknowledged that there may have been “telephone tag” going on at one point, which would be evidence of attempts to contact him.

[26]           With respect to count six, the Hearing Tribunal recognized: “There was some confusion with respect to [Mr. Kellar’s] phone number”. The new number was listed in several places in the file, and “it was very disconcerting to the Hearing Tribunal as to why [Mr. Kellar’s] old phone number” was still on the file. The Hearing Tribunal concluded:

[27]           The appellant notes that the Hearing Tribunal inappropriately referred to “propensity” evidence. According to one of his colleagues: “Dr. Nash Tan was notoriously bad at getting back to owners in a timely manner with updates and also frequently did not have completed medical records in a timely manner to allow staff to follow up.” The charge against the appellant was that he failed to communicate with Mr. Kellar about the histology results from the mass removal performed on August 18, 2018, not that he was generally a poor record keeper or “notoriously bad”: MacLeod v Alberta College of Social Workers, 2018 ABCA 13. However, it does not appear this potentially prejudicial evidence overly influenced the Hearing Tribunal’s reasoning.

[28]           With respect to count seven, the investigator reported on the various attempts by the parties to contact each other. The Hearing Tribunal concluded:

[29]           Given the lack of telephone records or clear medical records, the Committee of Council found that the decision of the Hearing Tribunal was reasonable. As the Committee of Council noted, the Hearing Tribunal had the advantage of hearing the witnesses testify, and its decisions on findings of fact were entitled to deference. Having regard to the standard of review, the appellant has not shown any reviewable error in these findings.

[30]           Count eight was that the appellant “failed to utilize a proper anesthetic protocol with respect to Lula”. The Hearing Tribunal found:

[31]           This issue was complicated by the fact that the appellant’s clinic’s records had been the subject of a malware attack. While the appellant was able to recover some of those records after he paid a ransom, he testified that not all of his documents were recovered, and that some of them were corrupted to some extent. Part of the eighth allegation was that certain items on the anesthetic form that were to be checked off, had not been checked off. Dr. Houston testified that the forms in their current format did not accurately show all of the checkmarks that had originally been identifiable on the clinic’s system.

[32]           The Hearing Tribunal was cognizant of the problems the appellant had experienced with his records as a result of the malware attack:

[33]           The Committee of Council concluded that the Hearing Tribunal had given proper deference to the effect of the cyberattack on the records, but concluded that there still should have been some description of the anesthetic plan in the surgical records. Further, the appellant did not call the Registered Veterinary Technologist who monitored the anesthetic to testify as to the protocol followed. The finding was therefore reasonable.

[34]           While the evidentiary record was not without its problems, the finding on this count does not demonstrate a palpable and overriding error that would justify appellate interference.

[35]           The tenth count was a failure to create or maintain appropriate medical records with respect to Lula. The Hearing Tribunal found that the appellant’s records did not comply with several aspects of the Association’s Practice Inspection Practice Standards Bylaw. For example, no alternate contact person was named, consent for the various diagnostic procedures was not recorded, and there were no documented cost estimates. The appellant testified that these were some of the records lost in the cyberattack. Records of some of the surgeries were missing, and other records were incomplete.

[36]           The Hearing Tribunal summarized:

[37]           The Committee of Council agreed that the cyberattack complicated the review of the medical records, but concluded that the Hearing Tribunal had “applied some leniency” as a result. However, the Committee of Council noted a number of specific deficiencies in the records. While not all cyberattacks could be prevented, records should have been backed up to prevent a loss of data. Overall, the Hearing Tribunal’s findings were reasonable.

[38]           The appropriate standard of medical records is particularly within the expertise of the Hearing Tribunal and the Committee of Council. They made due allowances for the problems experienced by the appellant as a result of the malware attack, and the findings on this count do not demonstrate any reviewable error.

[39]           The Committee of Council directed that the appellant pay 80% of the costs associated with the appeal, which were approximately $23,000. The appellant argues that this costs award is excessive and impedes access to justice. He does not challenge the reasonableness of any specific items of costs, such as the expense of having independent counsel for the tribunal, but challenges the allocation of 80% of the costs to him.

[40]           In its reasons on costs, the Committee of Council proceeded from an assumption that a member subject to conduct proceedings “quite properly ought to be responsible for most or all of the costs of those proceedings”. When an appeal is unsuccessful, “the costs incurred should not be the responsibility of the [Association] and the profession at large”. A “reduction” of 20% of the costs was therefore reasonable.

[41]           The costs of misconduct proceedings are a significant factor both for the Association and the member charged. Contrary to what is suggested in Hoff v Alberta Pharmaceutical Ass’n (1994), 1994 CanLII 8950 (AB KB), 151 AR 146 at para. 22, 18 Alta LR (3d) 387 (ABQB) there is no presumption that the member is or should be responsible for most or all of the costs incurred.

[42]           Professions in Alberta are extended the privilege of self-regulation. With that comes the responsibility to supervise and, when necessary, discipline members. The disciplinary process must necessarily involve costs, and any professional regulator must accept some of those costs as an inevitable consequence of self-regulation. It is acceptable for the profession to attempt to recover some of those costs back from disciplined members, but some burden of the costs of regulation is unavoidable and a proper consequence of the regulator’s mandate.

[43]           Costs awards serve several purposes. One of them is to indemnify the party that has incurred the costs, in this case the Association. The corollary is that some of those costs can properly be shifted to the member who has been found guilty of misconduct. However, full indemnity for costs is seldom appropriate. Leaving some of the burden of the costs of disciplinary proceedings on the professional regulator helps to ensure that discipline proceedings are commenced, investigated, and conducted in a proportional matter, with due regard to the expenses being incurred.

[44]           For example, leaving some residual costs on the regulator discourages overcharging. Here the appellant was charged with 13 offences, but only found guilty of six. Some of the charges (for example counts six and seven) overlapped significantly. Leaving residual costs on the regulator also serves to moderate the expenses incurred in investigating and prosecuting a complaint. Further, the regulator must always ascertain whether perceived shortcomings in the professional are serious enough to justify the expense of disciplinary proceedings. Of course, the approach taken by the professional to the allegations will have a significant impact on whether a hearing is required, and how it proceeds.

[45]           Another aspect is the right of a professional to a reasonable opportunity to defend the charges. Allegations of misconduct against a professional are serious matters, as they impact not only the professional’s reputation but his or her livelihood. In many cases, as in this one, the costs of the hearing and the appeal are far in excess of the monetary penalties imposed. The disciplinary system should not include a cost regime that precludes professionals raising a legitimate defence: Alsaadi v Alberta College of Pharmacy, 2021 ABCA 313 at paras. 114-15.

[46]           An appropriate approach to costs in the disciplinary process of self-regulated professions is found in K.C. v College of Physical Therapists of Alberta, 1999 ABCA 253 at para. 94, 72 Alta LR (3d) 77, 244 AR 28:

[47]           In this appeal the only issue is the costs of the appeal to the Committee of Council, not the underlying costs of the hearing. There is no indication that either of the parties was unreasonable in the way they approached or conducted the appeal proceedings. Success is a relevant factor, and the appellant appealed all six of the counts on which he was found responsible, and was unsuccessful on all of them. On the other hand, there were some legitimate concerns about the evidentiary record.

[48]           Costs awards in professional disciplinary matters are reviewed for reasonableness. The Committee of Council unfortunately erred in assuming that there was a presumption or expectation that the professional would pay most or all of the costs, and that the “discount” of 20% was reasonable. There were some legitimate concerns about the evidentiary record, and even though the appellant was unsuccessful it cannot be said that it was unreasonable to launch this appeal. Considering all of the relevant factors, the Committee of Council’s approach on costs was unreasonable, and the appellant’s responsibility for the costs of the appeal should be reduced to 50%.

[49]           In conclusion, the appellant has failed to show any reviewable error in the findings of professional misconduct that would justify appellate intervention. The reasons of both the Hearing Tribunal and the Committee of Council meet the legal standard of transparency. The decisions of the Hearing Tribunal do not disclose any palpable and overriding errors, and the overall conclusions it reached are reasonable. It follows that it was reasonable for the Committee of Council to affirm those findings. The award of costs, however, did demonstrate reviewable error.

[50]           The appeal with respect to the award of costs is allowed, but the appeal is otherwise dismissed.