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Appeals court overturns discipline over lack of witness credibility

An Ontario court took the unusual course, in a May 12 decision, of overturning a discipline decision against a licensee because the discipline committee hearing his case had afforded too much credibility to an important witness whose testimony was not credible.

(Hanif v. College of Veterinarians of Ontario)

The case against Khawar Hanif, a veterinarian, arose from his care of two animals. One woman, who brought a newly-adopted kitten for a blood test, complained that Hanif began striking the animal after it became uncooperative during its examination, and that Hanif had erroneously informed her that a blood test would be unnecessary.

A second person, who brought a dog to be treated by Hanif, complained that the veterinarian told her that the dog was experiencing renal failure and that death was imminent. After the diagnosis, the owner took the dog to another veterinarian, who diagnosed a less serious condition and treated it with medication. Hanif denied the substance of both complaints.

After a series of hearings, the Discipline Committee of Ontario’s veterinarian college found Hanif guilty of professional misconduct and imposed a penalty and costs. Hanif appealed, asserting, among other arguments, that the prosecution had been biased.

The court found several problems with the Committee’s decision based on the first complaint, that Hanif had struck a kitten in the face; the testimony of several witnesses cast serious doubt on the testimony by the owner. Two expert witnesses testified that a kitten struck in the manner alleged of Hanif would not have behaved the way the woman filing the complaint reported. And a veterinarian to whom the complainant had brought the kitten after seeing Hanif and, to whom the owner claimed she had told about Hanif’s treatment of the kitten, testified firmly that the owner had never mentioned the incident and that he saw no physical evidence that Hanif had struck the cat.

Additionally, although the Discipline Committee determined that Hanif had struck the cat, its official finding was that Hanif had struck the cat in a far less serious way than the testimony by the complainant claimed. Finally, the College had treated the owner’s complaint as corroboration of her testimony at the hearing, on the grounds that the two accounts were significantly similar.

Despite the great deference afforded to determinations of witness credibility on appeal, Judge Stewart wrote that, “given the serious errors made in assessing the credibility of the witness in the . . . matter and their cumulative effect, the decision of the Discipline Committee panel finding Dr. Hanif guilty based upon this evidence is unreasonable and is thereby rendered unsafe.”

While the Committee’s other findings against Hanif were upheld, because the complaint regarding the kitten appeared to be a significant factor in determining the severity of sanctions, the court set the alleged treatment of the kitten aside and returned the case to the Committee for a new decision.