Executive Summary: Key Legal and Evidentiary Issues

• Dr. Ignacio Tan III and Prime Vet Corporation were found guilty of unprofessional conduct related to employing an unlicensed veterinarian who practiced veterinary medicine at Mercy Animal Hospital.

• License restrictions prohibited Dr. Tan from supervising Supervised Limited Practice (SLP) veterinarians, yet supervision occurred during the restricted period.

• Inadequate medical record-keeping for a patient named Webster formed the basis of one unprofessional conduct finding against Dr. Tan.

• Communication failures, including Dr. Tan's failure to respond to repeated requests for communication and to return calls in a timely manner, constituted unprofessional conduct.

• The Court of Appeal applied the Housen standard of review, examining findings of fact for palpable and overriding error and sanctions for reasonableness.

• Costs were remitted back to the Council for reconsideration following the clarified approach established in the Charkhandeh decision.

Background and facts of the case

Dr. Ignacio Tan III practiced as a veterinarian in Alberta and, along with his company Prime Vet Corporation, owned and operated Mercy Animal Hospital (MAH). In March 2020, the appellants hired Dr. Nirajkumar Makadiya, a foreign-trained veterinarian, nominally as a veterinary medical assistant. Donna Shurman, a Registered Veterinary Technologist, was designated as his supervisor. During his employment, Dr. Makadiya was licensed as an SLP veterinarian from March 15, 2020 to April 8, 2020; unlicensed from April 8, 2020 to January 8, 2021; and licensed as an SLP veterinarian again from January 8, 2021 to June 12, 2021. Critically, during the period between March 2020 to June 2021, Dr. Tan's own license was restricted, prohibiting him from supervising other veterinarians whose licenses required supervision.

A client named Khal Moustarah brought his dog Webster to MAH for treatment between July and December 2020. Mr. Moustarah found those services to be unsatisfactory and made a complaint to the ABVMA. He described his inability to speak directly with Dr. Tan as "the worst part" of his interaction with the appellants.

Allegations and hearing tribunal findings

On June 9, 2022, the ABVMA notified Dr. Tan that he was required to answer four allegations: that between April 8, 2020 and January 7, 2021, he employed an unlicensed veterinarian who practiced veterinary medicine; that during March 15, 2020 to April 8, 2020 and January 8, 2021 to June 12, 2021, he supervised an SLP Registered Veterinarian while his license was restricted; that as the responsible veterinarian he failed to ensure that communications from MAH were professional in all respects; and that he failed to create and/or maintain complete and appropriate medical records for Webster. Prime Vet faced two allegations concerning employment of an unlicensed veterinarian and failure to ensure professional staff conduct with respect to communications with clients.

Evidence presented at the hearing included testimony from Samantha McMillan, a former employee at MAH, who testified that Dr. Makadiya performed veterinarian work including treating a pet for a broken toenail, performing surgeries including dog and cat neuters, dispensing medications, and monitoring anesthesia. She believed he was in fact hired as a veterinarian. Donna Shurman provided an interview during the investigation phase, subsequently confirmed by her, that Dr. Makadiya performed veterinarian tasks including monitoring anesthesia during surgery and taking patient temperature, blood pressure, and respiration readings, although she recanted in part at the hearing. The Hearing Tribunal found both Dr. Tan and Prime Vet guilty on all counts.

Appeals to the committee of council and court of appeal

The appellants appealed both the Merits Decision and the Sanctions Decision to the Committee of Council. On July 11, 2024, the Council confirmed the Hearing Tribunal's decisions and ordered the appellants to pay costs of the appeal. The appellants then appealed to the Court of Appeal of Alberta, advancing a total of eleven enumerated grounds of appeal—seven alleging errors of mixed fact and law by the Hearing Tribunal, and four alleging errors by the Council in failing to intervene and correct errors made by the Hearing Tribunal. These were distilled into five arguments.

The appellants argued that their right to procedural fairness before the Hearing Tribunal was breached by the respondent expanding the scope of its inquiry from a specific incident to include other incidents and practices. The Court rejected this argument, finding that the notices of hearing were not restricted to a single incident but were drafted broadly.

Regarding the employment of an unlicensed veterinarian, the appellants contended there was a fundamental incompatibility between the evidence of Ms. McMillan and Ms. Shurman, such that both cannot be correct. The Court found this to be a new argument inappropriate to raise on appeal and noted that the Hearing Tribunal discounted Ms. Shurman's viva voce exculpatory evidence and preferred her initial statement. The Court found it entirely reasonable that these two witnesses could observe different things at different times.

Standards of review and sanctions analysis

The Court applied the standards set out in Housen v Nikolaisen: conclusions on questions of law are reviewed for correctness; findings of fact and findings on questions of mixed fact and law are reviewed for palpable and overriding error unless there is an extricable error of law; and sanctions and costs in professional disciplinary matters are reviewed for reasonableness. Following receipt of submissions from the parties, the Hearing Tribunal issued the Sanctions Order on February 17, 2024 including a reprimand; suspension of Dr. Tan for six months; fines totaling $20,000; costs of $35,000; a prohibition on Dr. Tan from supervising another veterinarian, veterinary student, or veterinary technologist student for five years; a requirement to complete a university level ethics course within one year; and a provision that if the Complaints Director deemed there to be a violation, Dr. Tan would be suspended pending a hearing.

Both the Hearing Tribunal and the Council referred in their reasons to the analysis set out in Jaswal v Medical Board (Newfoundland). The Court noted that sanctions may serve multiple and overlapping purposes, including protection of the public, maintaining public confidence in the integrity of the profession, deterrence both of the sanctioned individual and of other members of the profession, and rehabilitation. The Hearing Tribunal explicitly considered the principle of progressive discipline in determining appropriate sanctions, stating that Dr. Tan's pattern of unprofessional conduct supports the imposition of serious and significant penalty orders, although it emphasized that it had not made a finding as to ungovernability.

Ruling and outcome

The Court of Appeal denied the appeal of the decision of the Council regarding the findings of unprofessional conduct against the appellants and the sanctions imposed, finding no reviewable error in the penalties, noting that the Hearing Tribunal did not impose the maximum fines and the penalties cannot be said to amount to a "piling on." However, the Court allowed the appeal as it relates to costs and remitted that issue back to the Council for a determination in light of the principles articulated in Charkhandeh v College of Dental Surgeons of Alberta, a decision released after the Council's ruling. The ABVMA was successful in maintaining the unprofessional conduct findings and sanctions against Dr. Tan and Prime Vet Corporation, though the specific amount of costs remains to be redetermined by the Council.