How Not to Regulate the Profession: Findings of Discrimination at B.C. Veterinary Body Offers Cautionary Tale

by Field Law
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Brar v B.C. Veterinary Medical Association, 2015 BCHRT 151 (CanLII) (B.C. Human Rights Tribunal)

The case of Brar out of British Columbia is remarkable, not only for its epic length (a titanic 1,601 paragraphs over 485 pages resulting from 356 hearing days over four years), but for its findings of insidious discrimination pervading the regulatory body of veterinarians in B.C. from 2002 to 2006.

The case attracted considerable media and political attention. Following the release of the decision, the College of Veterinarians of British Columbia filed an application for judicial review, prompting Norm Letnick, the provincial minister in charge of the B.C. Veterinarians Act, to demand the College provide a progress report on implementing certain measures to combat discrimination and warn the College that he had asked the Ministry to “closely monitor” all of its activities, especially with regard to activities related to the decision.[1]

The Human Rights Tribunal decision is the culmination of a long and tortuous human rights proceeding that began over a decade ago, when a group of 13 complainants (“Complainants”) who had received their veterinary training in India or the Punjab filed a complaint of discrimination against the B.C. Veterinary Medical Association, predecessor to the College (both of which will be referred to as the “College”).

In the course of the proceedings, the case wended its way up to the B.C. Court of Appeal twice and to the Supreme Court of Canada once on a leave application, which was denied. This was on interlocutory applications concerning evidentiary and jurisdictional issues. Eventually, the case was remitted back to the Human Rights Tribunal.

The actual decision on the merits was rendered by a sole adjudicator, Judy Parrack, on October 8, 2015. Ms. Parrack found that while not all of the allegations were proven, the College had indeed discriminated against the Complainants on the grounds of race, colour and place of origin, as well as discrimination on the grounds of mental disability with respect to one of the Complainants. As she stated,

Race-based stereotyping played a role in (the College)’s dealings with the Complainants, including negative generalized views about the credibility and ethics of Indo-Canadians in relation to their veterinary practices. Persons of influence in the (College) held such views, and the (College) knew this or ought reasonably to have known this, but largely ignored and condoned the expression of such views. A poisoned relationship developed between the (College) and the Complainants, which the (College) blamed entirely on those individuals claiming they were “playing the race card.”[2]

As Ms. Parrack found, the College accepted unsubstantiated rumours promulgated by veterinarians with an ulterior motive to reduce competition in their market, then acted on and repeated the rumours. These rumours included that the Complainants were led by an “evil” mastermind; that they abused and mistreated animals; that they treated employees like “slaves”; that they were poorly trained and obtained their practice qualifications through cheating; and that they engaged in subpar or unethical practices such as falsifying medical records, failing to properly sterilize equipment, administering expired drugs and sharing equipment to evade inspection.[3]

The “poisoned relationship” in turn affected multiple areas of regulation, including in particular complaints processing and disciplinary proceedings, and the adoption and enforcement of an unreasonably high standard of English proficiency designed to limit the number of Indo-Canadian veterinarians. As a result of the College’s beliefs about the Complainants, Ms. Parrack found, its mind was “closed to the possibility that racial stereotyping (conscious or not) was at play.”[4]

With respect to complaints and the disciplinary process, the adjudicator found that the College, among other things:

  • Accepted unsubstantiated rumour as the basis to initiate investigation, rather than requiring a formal, written complaint;
  • Engaged in circulating and repeating unsubstantiated rumour;
  • Failed to notify members of investigations until they were underway;
  • Expanded on issues under investigation without notifying the member further and providing an opportunity to respond to new issues;
  • Adopted policies, including policies with retroactive effect, such as a policy to identify investigated members, which had the effect of targeting Indo-Canadian veterinarians
  • Hired investigators who were predisposed to assume the Complainants’ dishonesty and ungovernability;
  • Targeted Indo-Canadian veterinarians for unscheduled inspections and discipline over advertising breaches; and
  • Treated complaints from the Complainants against members and executives of the College dismissively.

With respect to the English language standard, the adjudicator found that the College had, among other things:

  • Accepted concerns about English language proficiency from a number of veterinarians with the Surrey Veterinary Association who were primarily driven by concerns about competition, not English language proficiency;
  • Acted on “anecdotal rumours” rather than evidence to initiate a review of the English language standard;
  • Appointed veterinarians who had made allegations against the Complainants to key positions on the task force to review the English proficiency standard and the Practice Accreditation Committee, without due regard for whether they might be biased;
  • Disregarded previous pledges regarding consultation and process in adopting the English proficiency standard;
  • Accepted misinformation from non-independent sources on the language standards adopted by other licensing bodies; and
  • Adopted a spoken English proficiency standard that exceeded every veterinary licensing body in North America without justification.

Notably, the adjudicator stressed that the College had authority to demand English language proficiency. However, it was not permitted to adopt an unattainable standard that disproportionately impacted the Complainants without showing how such a standard was reasonably necessary in this case.

In so finding, the adjudicator applied the well-known test for whether the standard was a “bona fide occupational requirement,”[5] or a BFOR. Under this test, once the complainant is able to establish that there is prima facie or facial discrimination, the onus shifts to the regulator to rebut the presumption of discrimination by establishing that: 1) the standard was adopted for a purpose or goal that was rationally connected to the regulatory purpose; 2) that it was adopted in an honest and good faith belief of its necessity to fulfill the regulatory purpose; and 3) that the standard was actually “reasonably necessary” for the fulfillment of that purpose.[6] The adjudicator found that the College had failed to do so.

A number of the College’s key arguments also bear mentioning. Firstly, the adjudicator rejected the argument that remedies available under the Human Rights Code for discrimination were limited by statutory immunity provisions[7] for acts of the regulator.[8]

The adjudicator also rejected the College’s argument that its actions were justified by the Complainants’ “inappropriate and concerning” conduct, which suggested that they sought to avoid regulatory oversight. She held that this did not “fully explain” the College’s conduct and views.[9]

As a result of the findings, the adjudicator ordered the College to pay damages for injury to dignity totalling $219,500, with awards ranging from $2,000 to $35,000 for each of the 13 Complainants. In addition, the adjudicator granted approximately $45,000 in compensation for expenses and lost wages and ordered the College to create an independent Review Panel to review disciplinary files on the Complainants, make recommendations and act on the Review Panel’s recommendations. The Adjudicator also ordered the College to develop an anti-discrimination policy, institute anti-discrimination training, publish the Human Rights Tribunal decision on its website, and places copies of the decision on the complainants’ disciplinary files.

While the Brar findings present an extreme example of professional regulation gone awry, it is nevertheless a useful cautionary tale. Among the takeaways for regulators from Brar are:

  • Do not dispense with formal requirements set out in legislation, such as written complaints and notices of investigation.
  • Provide investigated members with a meaningful opportunity to respond to the substantial issues under investigation;
  • Ensure persons in key regulatory roles are independent or are aware of the need to recuse themselves in the case of conflicts.
  • Be aware of the need to consider and in some cases verify the source of information.
  • Apply regulatory oversight such as practice reviews or inspections in an even-handed fashion and avoid policies or practices that have the effect of disproportionately targeting an identifiable group.
  • Where the relationship between a member and his or her regulator becomes particularly fractious, consider bringing in outside investigators or counsel.
  • When adopting or reviewing a standard, ask if it can pass the BFOR test of being 1) connected to a regulatory purpose; 2) adopted with the goal of the regulatory purpose in mind and not another goal; and 3) reasonably necessary to achieve the goal. Document and retain evidence to support the adoption of the standard.
  • Realize that when dealing with difficult or unco-operative members, the regulator will still be expected to act fairly and objectively.
  • Do not rely on statutory immunity provisions for immunity from liability as, in general, they do not immunize against conduct that is deemed to be in bad faith and may not insulate against remedies available under human rights legislation.

[1] See statement from the Ministry of Agriculture dated November 12, 2015, here: https://news.gov.bc.ca/releases/2015AGRI0069-001897

[2] Brar, para 8

[3] Brar, para 149

[4] Brar, para 10

[5] Set out in British Columbia (Public Service Employee Relations Commission) v BCGEU, [1999] 3 SCR 3, also known as the Meiorin case.

[6] Brar, para 1242-1244

[7] See s. 1 of the Disciplinary Authority Protection Act, RSBC 1996, c 98 and s. 23 of the Veterinarians Act, RSBC 1996, c 476.

[8] Brar, paras 518-522

[9] Brar, paras 872-874

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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