A recent case in Ontario, in which leave to appeal was denied by the Supreme Court of Canada, is a reminder of the risks that professional disciplinary bodies may face in prosecuting alleged misconduct.

The case and decision

In Walia v. College of Veterinarians of Ontario,  2021 ONSC 4023, a complaint against a veterinarian, Dr. Walia, was referred to a Discipline Committee of the College of Veterinarians of Ontario (the Discipline Committee). The Discipline Committee found that Dr. Walia had engaged in professional misconduct, suspended Dr. Walia's veterinary license for three months, and ordered him to pay CA$135,000 in costs. Dr. Walia appealed the decision of the Discipline Committee to the Ontario Divisional Court, which dismissed his appeal. Dr. Walia subsequently sought leave to appeal from both the Ontario Court of Appeal and the Supreme Court of Canada. Both courts dismissed Dr. Walia's applications.

The decision of the Ontario Divisional Court dismissing Dr. Walia's appeal may be of interest because Dr. Walia accused the College of Veterinarians of Ontario (the College) of pursuing a false allegation that he failed to properly label an X-ray. The College ultimately withdrew the allegation after receiving clearer copies of the X-rays showing proper labeling prior to the hearing.

Although Dr. Walia's motion was dismissed before the Discipline Committee and that decision was upheld by the Ontario Divisional Court, the allegation serves as a reminder that regulatory bodies can face exposure to certain claims of misconduct, including the tort of malicious prosecution.

Elements of malicious prosecution

The tort of malicious prosecution is typically applied in criminal or quasi-criminal proceedings where actions taken by prosecutors or police during a prosecution prove actionable because they were motivated by malice towards an accused. It has four essential elements, namely the prosecution was: (i) initiated by the defendant; (ii) terminated in favour of the plaintiff; (iii) undertaken without reasonable and probable cause; and (iv) motivated by malice or a primary purpose other than carrying the law into effect.

Courts in Ontario have previously accepted that there may be a basis for the application of the tort in the context of professional disciplinary proceedings. For example, in Stoffman v. Ontario Veterinary Association,  (1990), CanLII 6925, 73 O.R. (2d) 737 (Div. Ct.), the Court found that professional disciplinary bodies are not immune from malicious prosecution actions, noting the expense, aggravation and disturbance that plaintiffs may be put to in defending themselves and their professional careers. Recently, the Alberta Court of Queen's Bench declined to strike the entirety of a Statement of Claim alleging that the Real Estate Council of Alberta had engaged in malicious prosecution in respect of an investigation and subsequent conduct proceedings taken against the Plaintiff registrant.1

Takeaway

While the law in Canada remains unsettled in this area, and claims for malicious prosecution remain rare with high evidentiary thresholds, the onus on parties seeking to strike such actions as disclosing no reasonable claim can be high. It is therefore prudent for professional disciplinary bodies to ensure that both the evidence, and the procedural steps taken in relation to complaints and disciplinary proceedings, are gathered and reviewed in a timely and accurate fashion.  

Footnote

1 Bahadar v. Real Estate Council of Alberta,  2021 ABQB 395.

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