Irwin v. Alberta Veterinary Medical Association, (2015) 609 A.R. 299

• Judge: Berger, Rowbotham and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 09, 2015
• Citations: (2015), 609 A.R. 299;2015 ABCA 396

Irwin v. Veterinary Medical Assoc. (2015), 609 A.R. 299; 656 W.A.C. 299 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. DE.103

Dr. James Irwin (appellant/applicant) v. Alberta Veterinary Medical Association (respondent/respondent)

(1503-0066-AC; 2015 ABCA 396)

Indexed As: Irwin v. Alberta Veterinary Medical Association

Alberta Court of Appeal

Berger, Rowbotham and Veldhuis, JJ.A.

December 18, 2015.

Summary:

The Committee of Council of the Alberta Veterinary Medical Association (the Council) reviewed two decisions of the Practice Review Board concerning Dr. Irwin, a veterinarian. The Council confirmed the Practice Review Board's orders. The Council directed Dr. Irwin to: (i) commence attendance at a residential addictions treatment facility approved by the Association's Complaints Director; (ii) cease practice immediately until such time that the Practice Review Board was satisfied that Dr. Irwin was no longer incapacitated; and (iii) pay $10,000, the cost of the appeal. The Council directed the Complaints Director to initiate professional misconduct proceedings if Dr. Irwin failed to comply with (i) and (ii). Dr. Irwin appealed, asserting that his right to procedural fairness was breached and the Council's decision was unreasonable.

The Alberta Court of Appeal allowed the appeal and quashed the Council's order.

Administrative Law - Topic 2264

Natural justice - The duty of fairness - When required - [See Professional Occupations - Topic 2608 ].

Administrative Law - Topic 2272

Natural justice - The duty of fairness - Circumstances or powers to which duty applies (incl. extent of duty) - [See Professional Occupations - Topic 2608 ].

Administrative Law - Topic 3221

Judicial review - General - Unreasonableness of decision attacked (incl. reasonableness simpliciter) - [See Professional Occupations - Topic 2608 ].

Professional Occupations - Topic 2608

Veterinarians - General - Assessing incapacity - The Committee of Council of the Alberta Veterinary Medical Association (the Council) reviewed two decisions of the Practice Review Board concerning Dr. Irwin, a veterinarian - The Council confirmed the Practice Review Board's orders - The Council directed Dr. Irwin to: (i) commence attendance at a residential addictions treatment facility approved by the Association's Complaints Director; (ii) cease practice immediately until such time that the Practice Review Board was satisfied that Dr. Irwin was no longer incapacitated; and (iii) pay $10,000, the cost of the appeal - The Council directed the Complaints Director to initiate professional misconduct proceedings if Dr. Irwin failed to comply with (i) and (ii) - The Alberta Court of Appeal allowed the appellant's appeal, finding that there was a breach of procedural fairness - The court stated that "The appellant was entitled to notice of the complaints that had been made about him and disclosure of the materials documenting those complaints. He was also entitled to know that his capacity to practice had been challenged. Further, he was entitled to participatory rights; the right to submit a written reply to the Practice Review Board before it implemented the Complaints Director's recommendations. We do not go so far to suggest a hearing was required. However, at a minimum, the appellant ought to have been advised that the Complaints Director was of the view that the appellant might be incapacitated and a Practice Review Board was being appointed for the purposes of a section 65.1 [Veterinary Profession Act] assessment. It was not enough to provide the appellant with an opportunity to respond for the first time at the appeal stage. ... the inability to pursue a timely appeal or judicial review is also a basis upon which one may conclude procedural fairness was denied. ... It would have been virtually impossible for Dr. Irwin to launch an earlier appeal on specified grounds as required by the s 65.1(8) given the complete absence of disclosure and lack of prior notice that he was under scrutiny on the basis of allegations which included incapacitation and substance abuse" - See paragraphs 30 to 64.

Professional Occupations - Topic 2608

Veterinarians - General - Assessing incapacity - The Committee of Council of the Alberta Veterinary Medical Association (the Council) reviewed two decisions of the Practice Review Board concerning Dr. Irwin, a veterinarian - The Council confirmed the Practice Review Board's orders - The Council directed Dr. Irwin to: (i) commence attendance at a residential addictions treatment facility approved by the Association's Complaints Director; (ii) cease practice immediately until such time that the Practice Review Board was satisfied that Dr. Irwin was no longer incapacitated; and (iii) pay $10,000, the cost of the appeal - The Council directed the Complaints Director to initiate professional misconduct proceedings if Dr. Irwin failed to comply with (i) and (ii) - The Alberta Court of Appeal allowed Dr. Irwin's appeal - The Council's decision was unreasonable - First, the Council ought to have addressed one of Dr. Irwin's main grounds of appeal - Accordingly, the decision was not transparent - A second concern related to Dr. Irwin's request to be examined by a psychiatrist with expertise in Tourette syndrome - Dr. Irwin had admitted that he had been using more opiates to help address his Tourette syndrome symptoms - In his Notice of Appeal to the Council Dr. Irwin requested an independent medical examination with a physician who had experience with Tourette syndrome - The Council dismissed the appeal without addressing the request - The Council gave no justification for denying Dr. Irwin's request - Accordingly, the decision was unreasonable - See paragraphs 65 to 73.

Cases Noticed:

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 15].

ATCO Gas and Pipelines Ltd. v. Energy and Utilities Board (Alta.), [2005] A.R. Uned. 107; 48 Alta. L.R.(4th) 1; 2005 ABCA 226, refd to. [para. 15].

Mavi et al. v. Canada (Attorney General) et al., [2011] 2 S.C.R. 504; 417 N.R. 126; 279 O.A.C. 63; 2011 SCC 30, refd to. [para. 15].

Mouvement laïque québécois et al. v. Saguenay (City) (2015), 470 N.R. 1; 382 D.L.R.(4th) 385; 2015 SCC 16, refd to. [para. 16].

Moll v. College of Alberta Psychologists (2011), 510 A.R. 48; 527 W.A.C. 48; 2011 ABCA 110, refd to. [para. 16].

Ocean Port Hotel Ltd. v. Liquor Control Licensing Branch (B.C.), [2001] 2 S.C.R. 781; 274 N.R. 116; 155 B.C.A.C. 193; 254 W.A.C. 193; 2001 SCC 52, refd to. [para. 33].

Kane v. Board of Governors of University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 45].

Mondesir v. Manitoba Association of Optometrists (2001), 160 Man.R.(2d) 143; 262 W.A.C. 143; 208 D.L.R.(4th) 163; 2001 MBCA 183, refd to. [para. 45].

Chen v. Law Society of Manitoba (2000), 145 Man.R.(2d) 281; 218 W.A.C. 281; 2000 MBCA 26, refd to. [para. 50].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 65].

Statutes Noticed:

Veterinary Profession Act, R.S.A. 2000, c. V-2, sect. 45(2), sect. 45(4)(a), sect. 45(4)(c) [para. 27]; sect. 65.1 [para. 22].

Counsel:

H.K. Doniger, for the appellant;

K.A. Smith, for the respondent.

This appeal was heard on October 9, 2015, before Berger, Rowbotham and Veldhuis, JJ.A., of the Alberta Court of Appeal. The Court of Appeal delivered the following memorandum of judgment which was filed on December 18, 2015.