Case Name:

Fetherston v. Canada (Canadian Food Inspection Agency)

 

 

Between

Robert M. Fetherston, applicant, and

Canadian Food Inspection Agency, respondent

 

[2003] F.C.J. No. 1049

 

[2003] A.C.F. no 1049

 

2003 FC 827

 

2003 CF 827

 

236 F.T.R. 303

 

124 A.C.W.S. (3d) 400

 

Docket T-2264-01

 

 

 Federal Court

 Toronto, Ontario

 

Gibson J.

 

Heard: June 24, 2003.

 Judgment: July 4, 2003.

 

(46 paras.)

                                                                                                                                                                                 

Professional occupations -- Veterinary surgeons -- Disciplinary proceedings -- Bars, bias -- Judicial review.

 

Application by Fetherston for judicial review of a decision by an adjudicator, also an officer, of the respondent Canadian Food Inspection Agency that his authority of Fetherston to perform duties and functions as an accredited veterinarian was cancelled. Fetherston was a licensed veterinarian. He executed an accredited veterinary agreement with the Agency, which qualified him to issue equine infectious anaemia certificates and to provide export inspection certificates for the export of horses to the United States. Fetherston signed a veterinarian health certificate for a horse that was already in the United States and which he did not inspect. He alleged that it was a clerical mistake, as at the same time he had signed certificates for six other horses that he had inspected. The hearing conducted was informal. Witnesses were not formally examined or cross-examined. No record of the documentation presented at the hearing or of the hearing itself was kept. The adjudicator did not accept that Fetherston had made a clerical error. The adjudicator was the immediate superior to the individual who suspended Fetherston's certification.

HELD: Application allowed and decision set aside. There was a reasonable apprehension of bias arising from the fact that the adjudicator was in a direct reporting relationship to the individual who suspended Fetherston and was an officer of the Agency. There was no evidence that there was a dearth of independent third parties capable of conducting hearings such as that giving rise to the decision under review.

 

Statutes, Regulations and Rules Cited:

Health of Animals Act, S.C. 1990, c. 21.

 

Counsel:

Raymond G. Colautti, for the applicant.

Suzanne M. Duncan, for the respondent.

 

 

 

 

REASONS FOR ORDER

GIBSON J.:--

INTRODUCTION

1     These reasons follow the hearing of an application for judicial review of a decision of Dr. T.E. Wilson, DVM, an officer of the Canadian Food Inspection Agency (the "CFIA"), acting as an "adjudicator" wherein Dr. Wilson (the "Adjudicator") determined that the authority of Dr. Robert M. Fetherston (the "Applicant") to perform duties and functions as an accredited veterinarian was "cancelled", that the College of Veterinarians of Ontario was to be notified of the cancellation and of the information leading to the cancellation decision, that the Applicant would not be entitled to apply to again become an accredited veterinarian before the 1st of November, 2002, or until such later date as the College of Veterinarians of Ontario had completed any action initiated as a result of the information provided, and that any application by the Applicant to again become an accredited veterinarian must be preceded by the Applicant attending a Pre-Accreditation and Orientation Training Session for Accredited Veterinarians. The decision under review is dated the 29th of November, 2001.

2     In his application for judicial review, the Applicant sought a range of reliefs that was much reduced at the hearing before me. In the last analysis, the Applicant sought to have the decision under review set aside and an order issue in the nature of a direction to the CFIA to advise the College of Veterinarians of Ontario of the quashing of the decision under review. The Applicant does not seek costs.

3     The Respondent seeks the dismissal of the application for judicial review and its costs of the application.

BACKGROUND

4     The Applicant has been licensed to practice veterinary medicine in Ontario since 1973. On the 16th of March, 2001, he executed an Accredited Veterinary Agreement with CFIA which qualified him to issue Equine Infectious Anaemia (Coggins) Certificates and to provide export inspection certificates for the export of horses to the United States ("Veterinarian Health Certificates"). The duration of the Applicant's accreditation extended to the 29th of March, 2004.

5     The Applicant alleges that on the 3rd of July 2001, he attended at Robert MacIntosh Stables for the purpose of performing export inspections for horses to race at various locations in the United States during the 4th of July weekend. Coggins Certificates were provided to him for seven (7) horses to be inspected. During the course of his inspection he noted that one horse to be inspected, "Yankee Leader", was not in its stall. He was informed that Yankee Leader was at Michigan State University for emergency medical treatment. The Applicant noted this fact in his day-timer and completed his inspection of the remaining six (6) horses.

6     The explanation as to why Yankee Leader was on the list of horses to be inspected and for whom certification was required was in the United States rather than in his stall, and of the surrounding circumstances, is somewhat complex and not central to the decision herein.

7     The following day, the 4th of July, 2001, a representative from Robert MacIntosh Stables attended at the Applicant's office with Coggins Certificates for the horses inspected by the Applicant the previous day, together with a memo indicating the intended destination in the United States for each of the inspected horses. The Applicant attests that seven (7) Veterinarian Health Certificates were prepared for his signature. They included a Certificate with respect to Yankee Leader. The Applicant reviewed his day-timer and signed the seven (7) Certificates. He attests that, in hindsight, he should have been more meticulous in the review and interpretation of the notations in his day-timer.

8     The signed Veterinarian Health Certificates, including the one for Yankee Leader, were forwarded to the Windsor District Office of CFIA where they were endorsed and issued. The Applicant's office invoiced Robert MacIntosh Stables for $20.00 in respect of each Certificate. Thus, the economic advantage to the Applicant in issuing the Certificate in relation to Yankee Leader was minimal.

9     The error in the issuance of a Veterinarian Health Certificate in relation to Yankee Leader came to the attention, through American authorities, of CFIA. Dr. Carolyn Small ("Dr. Small") was assigned to investigate. She interviewed the Applicant. Dr. Small was permitted to inspect the Applicant's files, including his day-timer, worksheets and invoices. The Applicant attests that he acknowledged to Dr. Small that the Certificate had been issued in error, an error which he considered to be an honest mistake. In her written report, Dr. Small states that the Applicant "... admitted he did not see Yankee Leader [on the 3rd of July]."1

10     Dr. Small's report of her investigation found its way to Dr. Jim Clark, Acting Senior Staff Veterinarian, Disease Control at CFIA. Dr. Clark's responsibilities included acting as a representative of CFIA in the cancellation of Accreditation Certificates.

11     By letter dated the 19th of October, 2001, Dr. Clark advised the Applicant that his accreditation was suspended. Dr. Clark's letter continues:

 

                 Your failure to perform the accredited veterinarian export certification functions according to the terms and conditions of the Accredited Veterinarian Agreement is deemed to be a serious matter and jeprodizes [sic] the credibility of the CFIA export certification of livestock.

 

                 Accordingly, you are here by [sic] notified that the Canadian Food Inspection Agency proposes to cancel your accreditation and the authority to perform activities as an accredited veterinarian for failure to perform your duties as an accredited veterinarian in accordance with the General Terms and Conditions of your Accredited Veterinarian Agreement that you signed on March 16, 2001, ... .

 

                 A hearing will be held at the Canadian Food Inspection Agency, ..., at which time you are hereby given the opportunity to be heard in connection with the proposed cancellation of your Canadian Food Inspection Agency Accreditation.2

 

                 [emphasis added]

12     It was not in dispute before me that Dr. Clark chose his immediate superior, an official in the CFIA, the agency that proposed to cancel the certification, to conduct the hearing and determine whether the Applicant's Accreditation would be "cancelled". It was also not in dispute before me that the hearing that was conducted was remarkably informal, that those who gave "evidence" were not sworn or formally examined or cross-examined and that no record of the documentation presented at the hearing or, apparently, of the hearing itself, was kept.

13     In the application commencing this application for judicial review, the following paragraph appears:

 

                 The applicant requests the Canadian Food Inspection Agency to send a certified copy of the following material that is not in the possession of the applicant, but is in the possession of the Canadian Food Inspection Agency to the applicant and to the Registry: The Decision of the Adjudicator and all supporting documentation.3

14     By letter dated the 8th of March, 2002, counsel for CFIA wrote to the Court enclosing "... a certified copy of the notes taken by Dr. Tom Wilson [at the hearing]". Counsel advised:

 

                 These notes were brought to our attention only after we responded to the applicant with respect to the materials within the possession of the Canadian Food Inspection Agency related to this matter.

15     Thus, the only Certified Record from the "Tribunal" and the hearing that was before the Court consisted of the Adjudicator's handwritten notes. Those notes cast no light whatsoever on the documentation that was before the hearing.

THE DECISION UNDER REVIEW

16     The substance of the decision under review, entitled "Report of Adjudicator," is briefly summarized earlier in these reasons. A more elaborate summary follows.

17     The Adjudicator noted that the Applicant, his counsel and an independent third party, Mr. MacDonald, a transporter of horses for Robert MacIntosh Stables, attended the hearing together with Drs. James Clark and Carolyn Small, the latter two persons on behalf of CFIA. Reasons for the Report note that Dr. Clark provided copies of "... the documentation related to the case" which documents had earlier been provided to the Applicant "... to assist his preparation for the hearing". The documents are not detailed in the Report. That being said, Dr. Clark attests as to what those documents were and that they included the investigation report of Dr. Carolyn Small. The Applicant's Accredited Veterinarian Agreement is noted also to have been before the hearing.

18     The background leading to the hearing is very briefly summarized in the reasons. The "presentation" by the Applicant and by his counsel is summarized but no mention is made of the fact that Mr. MacDonald spoke. I hesitate to identify the presentations that were made as "testimony" or "submissions". It is noted that the Applicant stated that the preparation and signing of the Certificate relating to Yankee Leader was a "clerical error".

19     Under the heading "Findings" in the Report it is noted that: -

 

-               Dr. Fetherston [the Applicant] did not challenge any of the documentation provided nor any of the statements in Dr. Small's inspection report of August 8, 2001.

20     The conclusion drawn by the Adjudicator is in the following terms:

 

                 Dr. Robert M. Fetherston breached the conditions of Section 10 of the Accreditation Agreement by signing an export health certificate without performing the required inspection.

 

                 This conclusion is based on the documents provided and the presentations made which show:

 

                 - Dr. Fetherston could not have inspected Yankee Leader on July 3rd because the horse was at MSU [Michigan State University].

 

                 - Dr. Fetherston intended to prepare an export health certificate for Yankee Leader as shown by his records and the explanation of their creation.

 

                 - Dr. Fetherston prepared the health certificate knowing that the horse was at MSU as recorded in the August 8th report of Dr. Small.

 

                 [emphasis added]

21     The substance of the Report followed and is summarized in the "Introduction" to these reasons. The foregoing elements of the Report were in turn followed by these "comments":

 

                 The explanation of clerical error is not supported by the findings. The need for accurate record keeping in order to prevent errors is critical when inspections for export certification are being performed at a stable with a large number of horses, trainers and other staff. In this case the record keeping leads to the conclusion that the horse is to be certified even though it is not present at the stable.

 

                 The person performing a regulatory function must place the obligations of that function above all others. This standard protects an accredited veterinarian from taking actions that could undermine the credibility of the certification process. While providing the certificate for Yankee Leader avoided the need to have the horse tested, inspected and certified in the USA, it also provided an opportunity to introduce infectious equine diseases into Canada.

 

                 The Canadian Food Inspection Agency's international reputation for integrity in the certification of livestock must be protected in order to maintain access to foreign markets. Dr. Fetherston's actions put that integrity at risk. Cancellation of Dr. Fetherston's authority to perform the functions of an accredited veterinarian is considered an appropriate response. This action is consistent with the Agency's actions in other similar situations.

 

                 While the process reported here addresses the failure of Dr. Fetherston to discharge his regulatory responsibilities, there may also be an issue regarding the discharge of his professional responsibilities that should be examined by his peers.4

THE ISSUES

22     Neither counsel addressed in their written submissions the question of standard of review. When that issue was raised by the Court at the beginning of the hearing and the Court suggested that, against a "pragmatic and functional" analysis, the appropriate standard should be reasonableness simpliciter as to issues of fact, neither counsel disagreed.

23     Counsel for the Applicant, in his presentation before the Court, outlined the issues as the following: first, whether all of the circumstances surrounding the hearing giving rise to the decision under review and, in particular, the relationship between Dr. Jim Clark, who suspended the Applicant's certification and instituted the process leading to the decision under review, and the Adjudicator, gives rise to a reasonable apprehension of bias; secondly, whether the hearing process resulted in a breach of natural justice; and finally, whether the reasons in support of the decision under review are so flawed as to give rise to reviewable error.

ANALYSIS

 

a)            Reasonable apprehension of bias

24     The test for determination of whether or not a reasonable apprehension exists was not in dispute before me. In Committee for Justice and Liberty v. Canada (National Energy Board)5, Justice de GrandprČ, for the minority, wrote at page 394:

 

                 The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [a decision-maker], whether consciously or unconsciously, would not decide fairly."

25     Counsel for the Applicant urged that, on the facts of this matter, the question quoted by Justice de GrandprČ should be answered in the affirmative. He pointed to the facts that, Dr. Clark, the person who determined to suspend the Applicant, who instituted the process leading to the hearing and the decision under review and who effectively presented the CFIA's case at the hearing, and the Adjudicator, were both employees of CFIA and that Dr. Clark was in a direct reporting relationship with the decision-maker. In effect, he appointed his own boss to be the Adjudicator. Further, Dr. Clark, in his letter advising the Applicant of the suspension of his accreditation, also advised the Applicant that the CFIA, the employer of both he and the Adjudicator, "... proposes to cancel your accreditation ...".

26     In MacBain v. Canadian Human Rights Commission6, Justice Heald, for the Court, after citing the passage from the reasons of Justice de GrandprČ just cited herein, wrote at page 129:

 

                 The second important distinction between the Valente facts and the facts in the case at bar relates to the distinction which has to be made between independent administration (which, as we have seen does not totally exist at the present time) and independent adjudication which, in my view, is a necessary and vital component of judicial independence and the proper administration of justice. Independent adjudication must necessarily include such matters as the preparation of trial lists, decisions on the order in which cases are to be tried, the assignment of judges to the cases and the allocation of court-rooms. Chief Justice DeschÍnes characterizes these items as being "caseflow management". His comments read as follows ...:

 

                 These are all factors on which the integrity of the judicial process itself depends. Leave its control to outsiders, civil servants or others, and soon one will see a particular judge being assigned to a particular case for reasons irrelevant to the proper administration of justice. The independence of the judiciary requires absolutely that the judiciary and it alone manage and control the movement of cases on the trial lists and the assigning of the judges who will hear these cases.

 

                 In my view, those comments have particular pertinence to the appointment of a Tribunal under this Act [The Canadian Human Rights Act]. Given a scheme in which both of the objectionable features discussed by Chief Justice DeschÍnes are present, I have no hesitation in concluding that an informed person, viewing the matter realistically and practically, and having thought the matter through, would conclude that a reasonable apprehension of bias exists under this scheme and in this case.

27     In MacBain, the Court had before it a fact situation in which the Canadian Human Rights Commission, after deciding that a complaint before it had been substantiated, chose the part-time Judge who would form the panel of the Canadian Human Rights Tribunal that would hear the complaint and at which hearing the Commission would take the position that its earlier decision was correct. At page 132 of the reasons, Justice Heald noted:

 

                 Such a scheme represents after-the-fact justification for a decision already made by it and before judges of its own choosing.

28     I am satisfied that the words of Justice Heald apply precisely on the facts of this matter. Dr. Clark had concluded that the facts before him justified suspending, and indeed cancelling, the Applicant's accreditation. In essence, he was clearly satisfied that the facts before him warranted suspension and, purporting to speak for the employer of he and the eventual Adjudicator, cancellation. He then chose the "judge". He chose as the "judge", his own superior. He then presented the CFIA's case before the "judge".

29     Counsel for CFIA urged before me that, whatever my finding in this regard, the decision under review should not be set aside on the grounds of reasonable apprehension of bias because the concern as to bias was not raised at the opening, or indeed at anytime during, the hearing before the Adjudicator but rather was only raised when the decision under review had been released and when, shortly thereafter, this application for judicial review was commenced. I reject this submission.

30     There is no statutory or regulatory underpinning outlining the process leading to a decision such as that here under review. Further, there is absolutely no fetter on the discretion of a person such as Dr. Jim Clark in the choosing of a person to preside at a hearing leading to such a decision. The Applicant and his counsel went into the hearing with no knowledge of who the Adjudicator would be and certainly with no knowledge or reason to believe that the Adjudicator would be an officer from within CFIA in a direct reporting relationship to Dr. Clark. In the circumstances, it would have been entirely too much to expect that the Applicant and his counsel would effectively, at the opening of the hearing, cross-examine the Adjudicator in order to determine whether there was any basis for a reasonable apprehension of bias and then to state an objection if they were not satisfied with the results of the cross-examination.

31     In the result, on the basis of this issue alone, I am satisfied that the decision under review should be set aside. Nonetheless, I will briefly comment on the remaining two issues raised on behalf of the Applicant.

 

b)            Breach of natural justice or the duty of fairness

32     In Murray v. Canada (Minister of Agriculture)7, Justice Strayer, then of the Trial Division of this Court, wrote at page 2:

 

                 Assuming that there is a requirement of fairness, which I accept, I recognize that on one hand we have a situation involving the professional life of Dr. Murray, a veterinarian, and that the decision as to accreditation is one of considerable importance to him, not only with respect to earning a substantial part of his livelihood from the inspection work, but also with respect to the potential repercussions for him in his own profession. I assume in saying that, of course, that if ultimately there is a negative decision in respect to Dr. Murray with respect to his accreditation in further proceedings under the Act, his professional body would address the whole issue anew and would not automatically accept a decision by the Department of Agriculture as being conclusive of professional matters within the jurisdiction of his profession. However, it's an important matter for him, therefore there is an onus upon the Department to be quite careful in the way it deals with the withdrawal of accreditation.

 

                 On the other hand, there is an important issue concerning public health and the reputation of Canada with respect to its cattle exports. A failure to carry out inspection of exported animals properly can have, I must assume, important implications for the health of people in other countries, for the health of cattle in other countries and ultimately for Canada's reputation as an exporter of cattle. In the domain of administrative law there is ample authority for the proposition that where public safety or health is concerned the requirements of fairness may sometimes have to be attenuated in order to permit prompt and timely action to protect the interests of the public. When it comes to a conflict between the private interest of one or two individuals and the health of the public at large or the welfare of the public at large it may be necessary to take quick action without all of the normal trappings of due process even though further examination may be required afterwards, once the safety aspect is protected by interim action.

 

                 [emphasis added]

33     Precisely the same could be said on the facts of this matter except that in this case, the issue is transportation of horses into and from the United States rather than cattle exports. Like Justice Strayer, given the implications for persons such as the Applicant, I accept that there is a requirement for a degree of fairness in his favour.

34     I have great difficulty concluding that the process to which the Applicant was subjected provided him to the fairness to which he was entitled. As earlier noted, the process leading up to decisions such as that here under review has no statutory or regulatory framework and it remains, therefore, substantially a guessing game for persons such as the Applicant and his counsel in deciding how to conduct their "defence". Also as earlier indicated, no tribunal record was maintained. No list of exhibits was maintained. Not even a rudimentary structure existed in relation to the hearing that was conducted. While Dr. Small was present at the hearing and her investigative report was apparently placed into the hands of the Adjudicator, she made no presentation and no particular opportunity was provided to the Applicant and his counsel to question her, let alone cross-examine her, on her conclusions, particularly as to the motivation of the Applicant in acting as he did.

35     Counsel for the Applicant urged that no formalized structure is required and that the public interest that is at stake, as referred to by Justice Strayer, is of such a nature as to warrant an informal and expeditious process presided over by somebody, such as the Adjudicator in this matter, who understands the statutory regime under the Health of Animals Act8 and the related Regulations.

36     The case for informality, urgency and special expertise from within CFIA is not compelling. The Applicant's authority was suspended and the authority of Dr. Clark to implement the suspension was not in question. The case for an Adjudicator such as the Adjudicator in this matter was also not fully made out. There was absolutely no evidence before the Court to suggest there is a dearth of independent third parties capable of conducting hearings such as that giving rise to the decision under review.

37     While, in light of my earlier finding regarding reasonable apprehension of bias, I make no finding as to breach of natural justice or fairness, I urge the Respondent to reconsider its processes in relation to matters such as that here under consideration.

 

c)            Adequacy of the reasons

38     Counsel for the Applicant urged that the Adjudicator, in concluding that the Applicant "intended" to prepare an export health certificate for Yankee Leader and prepared the health certificate "knowing" that Yankee Leader was outside of Canada, completely rejected the Applicant's explanation of "administrative error" and in so doing found him not to be credible. Counsel urged that the reasons provided in support of this conclusion were simply inadequate.

39     In Hilo v. (Canada) Minister of Employment and Immigration9, Justice Heald, for the Court, cited the following passage from the reasons for the decision that were before it:

 

                 The claimant's testimony lacked detail and was sometimes inconsistent. He was often unable to answer questions and sometimes appeared uninterested in doing so. While this may be partly due to the claimant's young age, the panel was not fully satisfied of his credibility as a witness.

40     This was certainly a fuller explanation of a credibility finding than was provided by the Adjudicator in this matter.

41     Justice Heald wrote at paragraph [6] of his reasons:

 

                 The appellant was the only witness who gave oral testimony before the Board. His evidence was uncontradicted. The only comments as to his credibility are contained in the short passage quoted supra. That passage is troublesome because of its ambiguity. It does not amount to an outright rejection of the appellant's evidence but it appears to cast a nebulous cloud over its reliability. In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. ...

42     The foregoing guidance is worthy of heed by decision-makers such as the Adjudicator here. The Applicant presented his story before the decision-maker. In many aspects, it was apparently supported by the story provided at hearing by an independent third party witness. Dr. Clark presented the case for the CFIA. In his affidavit, he attests:

 

                 I reviewed [at the hearing] the facts of the case for the Adjudicator. Most of the facts on which I relied came directly from Dr. Small's report.

43     Dr. Small, as earlier noted, attended the hearing but made no presentation and was not questioned. Presumably, the Adjudicator concluded that he preferred Dr. Small's version and interpretation of events to the Applicant's explanation of his actions. The Adjudicator provides no explanation whatever for his preference in arriving at a decision that could, potentially, have devastating effects on the Applicant's ability to earn a living in the profession of his choice.

44     Were I required to do so, I would find the reasons for the decision under review to be so deficient as to result in reviewable error.

CONCLUSION

45     For the foregoing reasons, this application for judicial review will be allowed. The decision under review will be set aside and the subject matter will be referred back to CFIA for reconsideration and, if deemed appropriate, redetermination in a manner not inconsistent with these reasons. The CFIA will be directed to forthwith advise the College of Veterinarians of Ontario of this decision and to provide it with a copy of these reasons and the related Order.

46     There will be no order as to costs.

GIBSON J.

cp/e/qw/qlklc/qlhbb

 

 

 

 

1 Respondent's Record, Tab 10, page 26.

 

2 Respondent's Record, page 11.

 

3 Applicant's Record, Volume 1, page 6.

 

4 Applicant's Record, Volume 1, pages 29 and 30.

 

5 [1978] 1 S.C.R. 369

 

6 (1985), 22 D.L.R. (4th) 119 (F.C.A.).

 

7 [1991] F.C.J. No. 1324 (Q.L.),(F.C.T.D.).

 

8 S.C. 1990 c. 21

 

9 (1991), 130 N.R. 236 (F.C.A.), not cited before the Court but referred to by the Court, without citation, during the course of the hearing.