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Johar and others v. College of Veterinarians of British Columbia (No. 3), 2024 BCHRT 342

Date Issued: December 17, 2024
File: CS-000963

Indexed as: Johar and others v. College of Veterinarians of British Columbia (No. 3), 2024 BCHRT 342

IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)

AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal

BETWEEN:

Bhupinder Singh Johar, Anil Sharma, Jasdeep Grewal, and Renu Sood

COMPLAINANTS

AND:

College of Veterinarians of British Columbia

RESPONDENT

REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(b), (c), (d)(ii), (e), and (g)

Tribunal Member: Devyn Cousineau

Counsel for the Complainants: Clea Parfitt

Counsel for the Respondent: Kacey A. Krenn and Michela V. Fiorido (application); Nazeer T. Mitha, KC, and Erin S. White (reply)

Contents

I INTRODUCTION

[1] This is a decision about whether to dismiss all or part of a human rights complaint brought by four Indo-Canadian veterinarians against the College of Veterinarians of British Columbia [the College ] without a hearing.

[2] This complaint picks up where a previous human rights complaint against the College’s predecessor, the BC Veterinary Medical Association, left off. In Brar and others v. BC Veterinary Medical Association and Osborne (No. 22), 2015 BCHRT 151, after over a decade of litigation and 356 days of hearing, the Human Rights Tribunal concluded that the Association had discriminated against a group of Indo-Canadian veterinarians based on their race, colour, and place of origin. In the present complaint, Dr. Bhupinder Singh Johar, Dr. Anil Sharma, Dr. Renu Sood, and Dr. Jasdeep Grewal [together, the Complainants ] allege that, since the evidence in Brar was submitted and the Tribunal issued its final decision, the College has continued to discriminate against Indo-Canadian veterinarians operating low-cost clinics. Specifically, each of the Complainants alleges that the College has pursued disciplinary action against them in ways that the Tribunal found in Brar were rooted in and indicative of racial discrimination. This includes over-zealous pursuit of complaints, application of unreasonable standards, and protracted, harsh, and procedurally unfair complaint proceedings. They say this is discrimination based on their race, colour, and place of origin, in violation of ss. 8 and 14 of the Human Rights Code.

[3] The College denies discriminating. It says it has accepted the Brar decision and taken all reasonable steps to comply with the Tribunal’s orders and ensure that its practices, processes, and procedures are free from discrimination. It says that the Complainants’ allegations relate to conduct that it undertook in the non-discriminatory exercise of its rights as a regulatory body.

[4] Section 27(1) of the Code gives the Tribunal a gatekeeping power to dismiss complaints that do not warrant the time and expense of a hearing. The College asks the Tribunal to dismiss the complaint without a hearing on five grounds:

a. It does not allege facts that, if proven, could contravene the Code: s. 27(1)(b);

b. It has no reasonable prospect of success: s. 27(1)(c);

c. It does not further the purposes of the Code to continue the complaint on behalf of Dr. Sood and Dr. Grewal because the College has made a reasonable offer to settle their complaints: s. 27(1)(d)(ii);

d. The complaint was filed for improper motives or in bad faith: s. 27(1)(e); and

e. Part of the complaint was filed outside the time limit: s. 27(1)(g). [1]

The burden is on the College to prove a basis for dismissal.

[5] The parties have filed extensive material in this application. They filed 255 pages of legal argument, and over 1700 pages of affidavit material. This is hardly consistent with an interim gatekeeping process that is intended to be efficient and expeditious. Nevertheless, subject to my comments below about the Complainants’ affidavit material, I have considered everything filed by the parties. In this decision, I refer to what is necessary and proportionate to make my decision. I make no findings of fact.

[6] For the reasons that follow, I dismiss the Complainants’ allegations about: the College’s failure to comply with Brar orders (Dr. Johar); Complaint File #13-013A (Dr. Johar); Complaint File #16-014 (Dr. Johar); Complaint File #14-037 (Dr. Grewal); Complaint File #15-102 (Dr. Grewal); and Complaint File #17-034 (Dr. Grewal).

[7] The remainder of the application is denied. The Tribunal will schedule a hearing.

II PRELIMINARY ISSUES

[8] I begin by addressing three preliminary issues raised by the parties: (1) new allegations made by the Complainants in their response to the dismissal application, (2) objections to the Complainants’ affidavit evidence, and (3) the impact of the Tribunal’s Brar decision on this complaint.

A. New allegations in complaint response

[9] This complaint was filed on December 27, 2017, and amended on June 21, 2018. The dismissal application was filed on October 25, 2019. After that, the process was paused for about 4.5 years as the parties resolved issues related to disclosure of documents. The Complainants then filed their response to the dismissal application on April 18, 2024, and the College filed its reply on May 31, 2024.

[10] The College argues that, in their response to the dismissal application, the Complainants have added new allegations of discrimination. It says that, under the Tribunal’s Rules of Practice and Procedure , this requires an application: Rule 24(4). Absent a successful application, the College says these new allegations should be disregarded. The Complainants have not applied to file a further submission to respond to this argument.

[11] A complainant who wants to amend their complaint during an outstanding application to dismiss must apply to do so: Rule 24(4)(b). The purpose of this rule is to ensure that a respondent who files an application to dismiss a complaint does not face a moving target: Pausch v. School District No. 34 and others , 2008 BCHRT 154 at paras. 28-29. Respondents are entitled to know the allegations against them to assess whether, or on what basis, to bring their application to dismiss the complaint: Purdy v. Douglas College and others , 2016 BCHRT 117 at paras. 35-37. This concern is particularly present here, where the College filed its dismissal application nearly five years before the Complainants filed their response. This delay exacerbates the potential that the College may face a moving target.

[12] At the same time, the Tribunal’s complaint forms are not the equivalent of pleadings in a civil litigation process: White v. Nanaimo Daily News Group Inc. and Klaholz , 2004 BCHRT 350 at para. 23 . It is not uncommon, or a violation of the Rules , for a complainant to add new particulars of their complaint in response to an application to dismiss. The distinction between particulars and new allegations was set out in Powell v. Morton , 2005 BCHRT 282 at para. 20 :

… I must consider whether the amendment contains, on the one hand, further details of the facts on which the complainant intends to rely, or whether, on the other, it constitutes an expansion of the allegations made against the respondents. If the former, it will constitute particulars; if the latter, an amendment. This determination is not to be made in a narrow or technical way, but in a manner which will ensure that the parties are accorded procedural fairness, and that particulars are not used to expand a complaint beyond what can reasonably be said to have been alleged in it. Another way of looking at the questions is to ask whether the materials in issue come within the scope of the complaint filed with the Tribunal, or whether they seek to expand the scope of the complaint.

[13] Here, the College specifically objects to allegations which post-date the filing of the amended complaint and, in some instances, the filing of its dismissal application. It points to the following examples:

a. Paras. 23-26: concerning citations and Consent Orders issued by the College up until 2024, and disciplinary panels convened at a meeting on March 4, 2019;

b. Para. 67: referring to a letter regarding Dr. Johar dated February 27, 2019;

c. Paras. 155, 160, 162: referring to a process involving Dr. Dhalio (not a complainant) that was completed in December 2018;

d. Para. 251: referring to a complaint about Dr. Sharma that was published on the College’s website in November 2018 and July 2019 – January 2022;

e. Para. 318: referring to a complaint about Dr. Sood that was publicised between October 29 and December 2018; and

f. Para. 378: referring to the College’s decision to declare certain undertakings satisfied by Dr. Grewal on February 9, 2021.

[14] I agree with the College that events which occurred after the filing of the amended complaint (June 21, 2018) do not particularize allegations of discrimination set out in the complaint. They do not explain the allegations in the complaint; they expand them. To the extent that the Complainants are arguing these events violate the Code, they are new allegations of discrimination which require an application. The College could not have known about these allegations and did not have the opportunity to consider them when it filed its dismissal application. The unfairness is particularly acute for events that happened after the dismissal application was filed. This is the type of moving target that Rule 24(2)(b) seeks to avoid.

[15] The temporal scope of this complaint includes events up until the filing of the amended complaint on June 21, 2018. In this decision, I have referred to some events post-dating the amended complaint for the sake of completing a narrative. In doing so, I do not consider these events to constitute allegations of discrimination within the scope of the complaint and I do not consider evidence about them in my assessment of whether the Complainants’ allegations should be dismissed.

B. Objection to Complainants’ affidavit evidence

[16] In support of their response to this application, the Complainants submitted several affidavits. One of those was from a legal assistant. In its reply, the College has objected to the admission of this affidavit. The Complainants have not applied to file further submissions, and so they have not addressed the issue.

[17] The Tribunal may admit any evidence it considers “necessary and appropriate”: Code, s. 27.2(1). This includes evidence that would be inadmissible in court (except for reasons related to privilege). In this case, I am considering evidence in an affidavit. Affidavits are only “as useful as the probative value of the evidence contained in them”: Becker v. Cariboo Chevrolet Oldsmobile Pontiac Buick GMC Ltd., 2004 BCHRT 80 at para. 18.

[18] The College makes two main objections to the legal assistant’s affidavit.

[19] First, the College objects to admitting the documents attached as Exhibits A – D of the affidavit. The affiant describes each of these exhibits as “documents listed and disclosed by the parties” in respect of the complaints brought by Dr. Johar, Dr. Sood, Dr. Sharma, and Dr. Grewal, respectively. Only a handful of documents are specifically identified. Otherwise, each exhibit is comprised of hundreds of pages of various types of documents including letters, court documents, notices from the College, meeting minutes, emails, clinical records, unidentified handwritten notes, and consent orders. The volume is significant. Exhibit A is 583 pages, Exhibit B is 136 pages, Exhibit C is 207 pages, and Exhibit D is 319 pages, for a total of 1,245 pages. I assume, without having cross referenced all of them, that certain of these materials duplicate the approximately 425 pages of documents attached to the College’s affidavit. Documents are also duplicated within the exhibits in the affidavit.

[20] The College argues that these exhibits, in their current form, are “not necessary, reliable or appropriate”. It points out, correctly, that the affidavit “attaches hundreds of pages of documents … without identifying the documents or providing a sufficient explanation as to what the documents or their sources are”.

[21] This is not an efficient or appropriate way to submit evidence to this Tribunal. The Tribunal is not an investigative body. It is the parties’ obligation to curate their documents for relevance, and ensure they are properly identified by a witness. This is especially true where – as here – the parties are represented by capable legal counsel. In my view, the Tribunal’s limited resources cannot be used to parse through all the parties’ disclosure to identify relevant evidence. In the language of the Code, it is neither necessary nor appropriate to admit evidence wholesale when it is submitted in this way.

[22] In this case, each of the Complainants swore very brief affidavits, with no exhibits attached. In these affidavits, they should have identified and explained documents that they had firsthand knowledge of. This would have gone some way to addressing the College’s concern. Instead, the documents are only identified and explained in legal counsel’s written argument responding to the application.

[23] Some of the documents appended to the legal assistant’s affidavit are the College’s records, which could only be properly identified by witnesses for the College. In this interim gatekeeping process, where I do not understand the College to dispute these records, it is not necessarily inappropriate for the Complainants to submit records in this way. However, as I have said, these records should have been curated and listed.

[24] Notwithstanding this concern, I do not agree that it is appropriate to not admit all the Complainants’ evidence and strike the bulk of its arguments. Most of the documents appear to have been disclosed by the College and the College is presumably familiar with them. Some of the documents are critical to the Complainants’ case, and highly probative of the issues I must decide in this application.

[25] To address the issues with the Complainants’ affidavit material, I have only reviewed the documents that are specifically identified and explained in the Complainants’ legal argument. There is no practical way to identify whether these constitute all the documents attached to the affidavit. To the extent there are documents attached to the legal assistant’s affidavit that are not referenced in the Complainants’ argument, I have not reviewed or considered them. It is the parties’ responsibility to bring evidence they say is relevant to the Tribunal’s attention. Parties who fail to do so and instead submit hundreds of pages of unidentified documents do so at their own peril.

[26] Next, the College objects to paragraphs 9-16 in the legal assistant’s affidavit, which rely entirely on information from the lawyer.

[27] I agree with the College that the information in these paragraphs is neither necessary nor appropriate. None of it is within the affiant’s firsthand knowledge. Some of it is likely undisputed – for example, the structure and role of the College, its annual reports, the number of citations issued and against whom, and information posted on the College’s website. However, some of it is speculation, for example about what happened to a certain citation. Other parts are properly argument, for example, the lawyer’s analysis and interpretation of College records and reports. I have disregarded these paragraphs of the legal assistant’s affidavit.

C. The Brar decision

[28] The parties take different views of the import of the Brar decision on the current complaint. The Complainants say that the Tribunal must read the entire decision and “document this has been done”. They say that the decision records “a grave history of discrimination” which is continuing, and that the findings in Brar support an inference of discrimination in the present complaint.

[29] The College takes a different view. It argues that it is “prejudicial and improper” for the Complainants to continue to rely on Brar. It argues that, in doing so, the Complainants are “attempting to bolster an argument about the College’s ‘propensity’” to discriminate, which has limited probative value and is highly prejudicial: Willis v. Blencoe, 2001 BCHRT 12 at para. 9.

[30] I agree with the College that this complaint must be determined based on its own merits. However, I do not agree this means I must disregard the findings and outcome in Brar. First, the Tribunal decision in Brar is not evidence whose probative value or prejudicial effect must be weighed. It is a Tribunal decision, which includes findings of fact and orders against the College, including an order to cease the contravention – which the Complainants allege the College has not complied with. Second, the Complainants’ argument in this complaint is that the College has continued its patterns and practices which the Tribunal held were discriminatory in Brar. To consider this argument, it is necessary to understand and consider Brar.

[31] I have reviewed Brar. Throughout these reasons, I identify where I have relied on it and how. At the same time, I remain mindful that the Complainants’ allegations must be proven on their own merits.

III ISSUES

[32] The College applies for dismissal on five grounds. Apart from its arguments regarding timeliness, the College bears the burden of establishing a basis for dismissal.

[33] Two of the College’s grounds for dismissal relate to the Complainants’ motive in filing the complaint (s. 27(1)(e)) and whether it furthers the purposes of the Code to proceed with part of the complaint in the face of a reasonable settlement offer (s. 27(1)(d)(ii)). I address these grounds in the final sections of my decision.

[34] The remaining three grounds engage the substance of the Complainants’ allegations: ss. 27(1)(b), (c), and (g). Here I briefly summarize the principles applicable to these grounds, and explain how I will address them.

[35] The starting point is to understand the discrimination analysis. This analysis defines the elements that each party must prove to establish (or defend against) a contravention of the Code. It has two stages. First, the Complainants must prove the three elements of their case: (1) they have characteristics protected under ss. 8 and 14 of the Code; (2) they were adversely treated or impacted in the College’s services; and (3) their protected characteristics were a factor in that adverse treatment or impact: Moore v. BC (Education) , 2012 SCC 61 at para. 33. In many cases, including this one, this final element must be proven by inference, considering “all of the circumstances”: Ontario, Human Rights Commission, Policy and Guidelines on Racism and Racial Discrimination (Toronto: The Commission, 2005), cited in Brar at para. 714. Any inference of discrimination must be rooted in the evidence. The College can rebut an inference of discrimination with evidence of a non-discriminatory explanation.

[36] If the Complainants prove the elements of their case, then the burden shifts to the College to justify its conduct under the framework for a bona fide reasonable justification. The College does not advance a defence of bona fide reasonable justification in its application and so I do not consider it further.

[37] I turn now to the grounds which the College says support dismissing all or part of the complaint without a hearing.

[38] Section 27(1)(b) of the Code gives the Tribunal the discretion to dismiss all or part of a complaint if it does not allege facts that could, if proven, contravene the Code . In this analysis, the Tribunal only considers the allegations in the complaint and information provided by the complainant. It does not consider alternative scenarios or explanations provided by the respondent: Bailey v. BC (Attorney General) (No. 2), 2006 BCHRT 168 at para. 12; Goddard v. Dixon , 2012 BCSC 161 at para. 100; Francescutti v. Vancouver (City), 2017 BCCA 242 at para. 49. The threshold for a complainant to allege a possible contravention of the Code is low: Gichuru v. Vancouver Swing Society , 2021 BCCA 103 at para. 56. In this case, many of the College’s arguments under s. 27(1)(b) rely on its defence to the allegations. I do not intend to review each of their arguments in this decision. Unless otherwise noted below, I deny the application under s. 27(1)(b) on the basis that it relies on the College’s defence to the allegations, which I cannot properly consider in this analysis.

[39] This does not mean that the threshold of an arguable contravention of the Code is irrelevant to my analysis. Under s. 27(1)(g), the Tribunal may dismiss an alleged contravention if it was filed outside the time limit in s. 22 of the Code. In this analysis, the Tribunal must identify allegations of discrimination – meaning allegations that could, if proven, violate the Code : School District v. Parent obo the Child, 2018 BCCA 136 at para. 73-74, 79. I return to the full analytic framework for s. 27(1)(g) in my reasons below. However, throughout my description of the Complainants’ allegations, I identify arguable contraventions of the Code, and their timing, to inform my decision under s. 27(1)(g). Where I find that an allegation does not set out an arguable contravention of the Code, I dismiss it under s. 27(1)(b). To the extent that my dismissal under s. 27(1)(b) does not flow directly from the College’s arguments under that ground, I am satisfied that there is no unfairness to the Complainants. If I did not dismiss these allegations under s. 27(1)(b), then I would have done so under 27(1)(g) or (c), which were fully argued by the parties.

[40] Section 27(1)(c) gives the Tribunal discretion to dismiss all or part of the complaint because it has no reasonable prospect of success. The Tribunal looks at the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia v. British Columbia (Human Rights Tribunal) , 2006 BCCA 95 at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal must base its decision on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan , 2013 BCSC 942 at para. 77 . It does not make any findings of fact.

[41] The Complainants argue that the Tribunal should not, “except in very rare circumstances”, dismiss only part of a complaint. They argue that this approach is inefficient, since the evidence relating to the dismissed allegations may need to be called anyway, and that it improperly restricts what the Tribunal can do after hearing all the evidence.

[42] There is some merit to this argument. The court has recognized that in some cases “it may well be that no efficiency is gained by only dismissing half of the claim” and that doing so “could also later prove embarrassing, in the sense of prompting inconsistent adjudicative decisions or foreclosing appropriate findings due to past rulings”: Byelkova v. Fraser Health Authority, 2021 BCSC 1312 at para. 115. In addition, some allegations – including allegations of systemic racial discrimination – can only be properly understood in the full context of a case: Fraser v. Tolko Industries Ltd. and others, 2021 BCHRT 118 at paras. 214-216; Brar at para. 714.

[43] At the same time, however, the Code expressly allows the Tribunal to dismiss “all or part of the complaint”. In this complaint, the allegations are expansive, spanning six years, four veterinarians, and at least 12 disciplinary processes. I have found that some allegations do not allege facts that could contravene the Code, are untimely, and/or have no reasonable prospect of success. Given the nature of the allegations and my conclusions here, I do not foresee that it would be necessary or appropriate for the Complainants to call evidence about allegations of discrimination that I have dismissed. In my view, it furthers the just and timely resolution of the complaint to focus the parties’ and Tribunal’s resources on timely allegations capable of supporting a finding of discrimination.

[44] In the sections that follow, I begin by summarizing the Complainants’ allegations. For each allegation, I consider whether the Complainants have alleged facts that could contravene the Code. Where they have not, I dismiss the allegation under s. 27(1)(b). Second, I consider whether part of the complaint should be dismissed because it is out of time: s. 27(1)(g). Third, I consider whether all or part of the complaint should be dismissed because it has no reasonable prospect of success: s. 27(1)(c). Fourth, I consider whether to dismiss the allegations of Dr. Sood and Dr. Grewal because the College has made a reasonable offer to settle their allegations: s. 27(1)(d)(ii). Finally, I consider whether to dismiss the complaint because it was filed for improper purposes or in bad faith: s. 27(1)(e). In the result, I have dismissed some allegations and allow others to proceed to hearing.

IV DOES THE COMPLAINT ALLEGE FACTS THAT COULD CONTRAVENE THE CODE?

[45] In this section I set out the Complainants’ allegations of discrimination and consider whether they allege facts that could, if proven, contravene the Code. Though I set out my analysis on each allegation separately, I remain cognizant that this complaint alleges systemic discrimination that must be understood in light of all of the allegations. Where I find that an allegation could not contravene the Code , I have considered the specific allegation as well as the Complainants’ arguments about patterns of discrimination which they say the allegations cumulatively reveal. In addition, though I have set out the College’s response to the allegations for the sake of the narrative, I do not consider that response to assess whether the allegations could contravene the Code. Rather, I consider the College’s response further below, in my assessment about whether certain allegations have no reasonable prospect of success.

[46] I begin with a brief background.

A. Background

[47] The College is a self-governing professional organization which regulates the practice of veterinary medicine in BC under the Veterinarians Act [the Act ] . It is mandated to receive complaints from the public, and to deal with those complaints under the Act .

[48] This complaint centres on the College’s exercise of its disciplinary authority. The process for discipline is largely set out in the Act. Here, I offer a brief summary.

[49] Any person may make a complaint against a veterinarian (registrant): Act , s. 50. The College’s Investigation Committee must investigate all complaints: Act , s. 52. It may dismiss some complaints without an investigation in specified circumstances, such as where the complaint is trivial or vexatious, an abuse of process, or has been appropriately dealt with in another proceeding: Act , s. 51. The Investigation Committee may also investigate a registrant on its own initiative regarding specific matters, including a failure to comply with the Act or a College bylaw: Act, s. 52(2). After its investigation, the Investigation Committee must dismiss the complaint, request a reprimand or remedial action by consent, or direct the registrar to issue a citation for a disciplinary hearing: Act, s. 57. The College says that about 80% of complaints are dismissed on grounds set out in s. 57(2). Most of the rest are resolved through remedial action by consent, a process by which the Investigation Committee and registrant agree to terms to resolve the complaint. The parties refer to this as RAC.

[50] In the rare case that a citation is issued, the complaint is decided by the Discipline Committee. Before a hearing, a registrant may make a written proposal to resolve the complaint. If the Investigation or Discipline Committee accepts the proposal, then it becomes a consent order by the Discipline Committee, and the matter is concluded: Act , s. 67. Absent a consent order, the hearing proceeds. The Disciplinary Committee makes findings, following which it may dismiss the complaint or impose disciplinary measures: Act , s. 61. The Discipline Committee’s decisions are subject to judicial review by the courts.

[51] Except in limited circumstances, the College Registrar must notify the public of Discipline Committee orders, reprimand or remedial actions by consent, consent orders, or extraordinary actions taken to protect public interest: Act , s. 68. This information is contained in a public notice on the College website, setting out the name of the registrant, a description of the action taken, and the reasons for the action: Act , ss. 68(2) and (5). A registrant may apply to have public information about disciplinary actions removed after it has been on the College’s online registry for more than 5 years: Act , s. 41(4).

[52] In 2015, the Tribunal issued its decision in Brar, finding that the College’s predecessor Association had discriminated against a group of Indo-Canadian veterinarians operating low-cost clinics. Its findings included:

a. The Association, and certain individuals within the Association, held negative, race-based views of the Complainants: para. 8.

b. The Association pursued investigations and unscheduled inspections of the Complainants based on unsubstantiated rumours and anecdotal complaints: para. 13.

c. The Association’s processing of disciplinary complaints “gave rise to patterns of race-based adverse treatment, including instances of the [Association] failing to notify the complainants of a complaint until the investigation was underway or finished; alleging in numerous cases that the complainants falsified their medical records; assuming the complainants’ information was less credible than others; failing to follow-up with the complainants; in many instances, expanding on the issues raised in the complaint; referring matters to inquiry that did not engage a risk to the public; increasing the scrutiny of individuals close to Dr. Bhullar; and appointing investigators who had already formed the view that Dr. Bhullar and others were dishonest and possibly ungovernable”: para. 14.

The Tribunal made orders against the Association, including that it must cease the contravention and refrain from committing the same or similar contraventions: para. 1593; Code, s. 37(2)(a).

[53] In 2017, the College announced that it had accepted the results in Brar. It says it has taken reasonable steps to comply with the Tribunal’s orders, and ensure that its practices, processes, and procedures are free from discrimination. It hired a new Chief Executive Officer and Registrar [the CEO ]. On April 4, 2017, the Complainants’ counsel Clea Parfitt – who was also counsel for the complainants in Brar – wrote to the College commending the CEO’s work to restore “order and fairness to the College’s disciplinary processes”. Eight months later, the Complainants filed this complaint.

[54] This complaint centres on how the College addressed and resolved complaints or disciplinary issues against the four Complainants. The Complainants argue that, viewed cumulatively and in light of the findings in Brar, the evidence at a hearing will show that the College has treated the Complainants adversely because of their race, colour, and place of origin, in violation of ss. 8 and 14 of the Code.

[55] I begin with Dr. Johar’s allegations.

B. Dr. Johar

[56] Dr. Johar operates a low-cost medical hospital in Maple Ridge. He was also a complainant in Brar.

[57] Dr. Johar’s allegations in this complaint concern the College’s compliance with the orders in Brar and several complaint files opened by the College after evidence completed in Brar: Complaint File #13-013A [the Advertising Complaint ], complaint #16-020 [the SPCA Complaint ], Complaint File #16-075 [the Coupons Complaint ], and Complaint File #16-014 [the Dr. Dhalio Complaint ]. I consider each in turn.

1. Compliance with Brar orders (Inquiry 08-01)

[58] In the amended complaint, the Complainants alleged that the College discriminated against Dr. Johar by proceeding with disciplinary complaints that were underway when the evidence was concluded in Brar and not complying with the Tribunal’s orders about these proceedings.

[59] To begin, I agree with the College that an allegation that it failed to comply with the Tribunal’s orders does not constitute an arguable contravention of the Code. The Tribunal does not have authority to enforce its orders; that authority rests with the court: Code, s. 39; Gichuru v. The Law Society of British Columbia (No. 10), 2011 BCHRT 345 at para. 13; Bray v. Shearwater Marine Group, 2016 BCHRT 65 at para. 25. The Tribunal’s jurisdiction arises in connection with allegations under ss. 7-14 of the Code. It is insufficient to say that the College has not complied with the Tribunal’s orders; the Complainants must allege facts capable of proving that the College did or omitted to do something that discriminated against them under ss. 8 or 14 of the Code.

[60] In its dismissal application, the College says – and I agree – that it was unclear in the complaint which disciplinary proceedings the Complainants allege were discriminatory. The College says that Dr. Johar has filed a petition in BC Supreme Court regarding some of its proceedings and issues arising from the Brar decision. At the time of filing the dismissal application, the petition was outstanding. It says that it has followed the Tribunal’s orders and has disposed of or dismissed several of Dr. Johar’s complaint files. It says that it removed Dr. Johar’s published disciplinary history from its website promptly after it was eligible for removal under the Act.

[61] The Complainants provided more details about this allegation in their response to the dismissal application, referring specifically to disciplinary proceedings in Inquiry 08-01. Inquiry 08-01 concluded after evidence was submitted in Brar, and resulted in various disciplinary orders against Dr. Johar. As I understand it, the Complainants make three main allegations regarding Inquiry 08-01.

[62] First, the Complainants allege that the College discriminated against Dr. Johar by publishing the disciplinary outcome of Inquiry 08-01 on its website between April 25, 2014, and April 26, 2019. The Complainants argue that, in doing so, the College violated the Tribunal’s order in Brar and included “extensive” information that was damaging to his reputation and caused him mental anguish.

[63] In its final decision in Brar, dated October 8, 2015, the Tribunal ordered the Association to “note” its decision on any documents that “may serve to summarize” Dr. Johar’s disciplinary complaints history: at para. 1366. The College did not do so in respect of Inquiry 08-01, which Dr. Johar argues is a violation of the Tribunal’s order.

[64] On April 17, 2019, counsel for Dr. Johar wrote to the College asking that it remove the public notice of Dr. Johar’s hearing outcome. The College did so on April 26, 2019, which it says is one day after it was eligible for removal under the Act: s. 41(4).

[65] I am not satisfied that the Complainants have set out an arguable contravention of the Code related to publishing the outcome of Inquiry 08-01.

[66] The Complainants assert in their argument that, in Brar, “the Tribunal found discrimination in relation to the disciplinary proceedings”, which I take to be a reference to Inquiry 08-01. This assertion grounds their allegation that the adverse impacts of publication perpetuate discrimination in the underlying proceeding. However, they do not refer to any findings by the Tribunal that relate to Inquiry 08-01. That inquiry was ongoing when the evidence closed in Brar: para. 1356. The Tribunal said that it would “not interfere with inquiry committee findings”, some of which involved medical issues, and that it was unclear what the status of Inquiry 08-01 was at the time it issued its decision: paras. 1357-1358.

[67] Accounting for the Tribunal’s findings in Brar, the Complainants have not identified facts that could prove that, after January 2012, the College discriminated against Dr. Johar in respect of Inquiry 08-01, including by publishing the outcome of the citation. Importantly, the Complainants have not set out any facts about Inquiry 08-01, including the circumstances giving rise to the discipline or the discipline itself.

[68] I acknowledge that the Complainants have pointed to some evidence that the College did not fully comply with the Tribunal’s order in Brar. However, as I have said, it is not this Tribunal’s role to enforce the order. In this complaint, the Complainants must allege facts capable of proving that the College discriminated against them under ss. 8 or 14 of the Code. They have not done so in respect of Dr. Johar’s allegations arising from the Tribunal’s orders in Brar, and Inquiry 08-01. This allegation is dismissed under s. 27(1)(b).

[69] Next, the Complainants allege that the College has not complied with the Tribunal’s order to “review those complaints that have concluded and which led to penalties being imposed on” Dr. Johar: paras. 1360-1366. I understand that they say this includes Inquiry 08-01. They refer to a letter from the College, dated February 27, 2019, in which the College proposes to resolve outstanding issues regarding Inquiry 08-01 by an agreement that (1) neither party may refer to the presence or absence of a ‘record’ arising from that inquiry, and (2) in any future disciplinary panel hearings, neither party would make submissions about any investigation or discipline history prior to October 8, 2015. The College said its intention was to “establish a clean slate and a complete remedy of the discrimination found by the HRT that might have affected [Inquiry 08-01]”. There is no evidence before me about whether the Complainants responded to that proposal. To the extent the Complainants intend this to be a separate allegation of discrimination, I agree with the College that it does not set out an arguable contravention of the Code. As I have said above, the Tribunal does not have jurisdiction to enforce its own orders. The Complainants have not set out facts that could prove that the College discriminated against Dr. Johar under ss. 8 or 14 regarding its alleged failure to review Inquiry 08-01. If this is intended to be an allegation of discrimination, it is dismissed under s. 27(1)(b).

[70] Finally, the Complainants argue that a “very serious consequence of the substantial disciplinary history created by the proceedings found to be discriminatory in Brar is that Dr. Johar has been unable to resolve further complaints on [a] consensual basis” because of the prospect the College may rely on his cumulative disciplinary history to impose “drastic penalties”. To the extent that the Complainants say that this is a separate contravention of the Code , I disagree. This submission refers to the impact of alleged discrimination and does not set out facts that could prove an adverse impact in the College’s services, including acts or omissions to violate the Code. In addition, based on the material before me, the allegation is hypothetical. The Complainants do not set out any facts that could prove that the College has sought to rely on disciplinary proceedings found to be discriminatory in Brar in order to impose a “drastic penalty” on Dr. Johar. In fact, the Complainants refer to the College’s proposal not to rely on any disciplinary history prior to October 8, 2015. Though they say this proposal has not been implemented, they do not explain the basis for this assertion or give any examples. If this is intended to be an allegation of discrimination, it is dismissed under s. 27(1)(b).

[71] In summary, the Complainants have not alleged facts that could contravene the Code in respect of the Tribunal’s orders in Brar, including in relation to Inquiry 08-01. These allegations are dismissed under s. 27(1)(b). I further note that, if I had not dismissed these allegations under s. 27(1)(b), I would have dismissed them under s. 27(1)(c) because they have no reasonable prospect of success, and/or s. 27(1)(g) because they are out of time.

2. Complaint File #13-013A: the Advertising Complaint

[72] The Advertising Complaint was filed in February 2013 by Dr. O – a veterinarian who operates a clinic near Dr. Johar, and who is not Indo-Canadian. In Brar, the Tribunal identified that there were several disciplinary complaints involving Dr. Johar and Dr. O, with each making complaints against the other. It found that the Association treated the two veterinarians differently: generally not investigating Dr. Johar’s allegations against Dr. O because of its belief that Dr. Johar was harassing Dr. O, while investigating Dr. O’s allegations against Dr. Johar: at para. 379.

[73] The substance of Dr. O’s complaint was that Dr. Johar had published an interview-type advertisement veiled as a news article in a local newspaper, which contained specialist language uncorroborated by credentials as well as language that was “comparative and self-laudatory”. Dr. O complained that this violated the College’s marketing bylaws.

[74] The Investigation Committee investigated the complaint. It contacted the newspaper, which confirmed that Dr. Johar had purchased a full-page advertisement. It asked Dr. Johar about this, and he responded in writing that the article “was not an advertisement; this was a casual interview with the reporter of the newspaper”. He said, nevertheless, that he would not do it again. The College says that this prompted concern that Dr. Johar had been misleading in its investigation. Dr. Johar denies attempting to mislead the College. He says he was genuinely confused about whether this interview was part of the advertising package he had bought. He argues that the expansion of the College’s claims against him is similar to the pattern of conduct which the Tribunal found discriminatory in Brar, by which the College added and expanded charges against Indo-Canadian veterinarians: see e.g. para. 14.

[75] On November 25, 2013, Dr. Johar clarified that his previous answer to the College was “based upon my understanding of the facts which until then was that this was an interview which happened only once a year and not an advertisement like the normal advertisements I run in the paper almost once or twice every month”. He apologized, stating that he did not intend to mislead the College and that he would not publish similar advertising in the future. Dr. Johar argues that this should have concluded the matter. It did not.

[76] On December 5, 2013, the Investigation Committee directed that the complaint be resolved by remedial action by consent, which included admissions, an undertaking to take an ethics course, and a fine. Dr. Johar submits that the College has not published a single remedial action by consent that involved advertising since 2011, and argues this is evidence that he was being treated more harshly than other veterinarians involved in the same practice.

[77] Dr. Johar did not agree to the remedial action by consent. On June 26, 2014, the Investigation Committee directed the Registrar to issue a citation against Dr. Johar. The citation was issued on October 22, 2014.

[78] On August 4, 2015, Dr. Johar’s counsel wrote to the College objecting to the College pursuing this issue. On September 3, 2015, the Investigation Committee considered counsel’s letter and dismissed the complaint.

[79] Dr. Johar argues that the College took an inordinate amount of time to resolve this complaint, contrasted with another marketing complaint he filed against Dr. W, who is not Indo-Canadian. The College says that the reason it took so long to resolve this complaint was because Dr. Johar refused to agree to remedial action by consent. In contrast, it says Dr. W negotiated a resolution. In any event, the College says it took one year and seven months for Dr. W’s complaint to be finally resolved, which is comparable to Dr. Johar. Dr. Johar disputes this timeline, pointing out that the Investigation Committee initially dismissed the complaint one month after it was filed, then reviewed it four months later and directed the Intake Panel to review it under the new advertisement policy. Fourteen months later, the College asked Dr. W to commit to removing the offending advertisement. He did, and the file was closed. Up until this point, Dr. Johar argues that the College did not advise Dr. W of the complaint, sparing him the stress and expense of responding to a protracted complaint process. He says their disparate treatment illustrates how “inappropriate and extreme” the College’s actions were towards him.

[80] In the meantime, while Dr. O’s Advertisement Complaint was before the Investigation Committee, Dr. Johar had filed two complaints against Dr. O. alleging that his medical records did not comply with the bylaws and that he had disparaged Dr. Johar to his receptionist. The Investigation Committee dismissed these two complaints on the basis that one of the allegations appeared on its face to be false and the other was retaliatory. Dr. Johar disagrees there was a basis to dismiss these complaints, arguing that they each revealed a plain violation of the College’s bylaws. He argues this is a continuation of the discrimination which the Tribunal found in Brar, by which the College took Dr. O’s complaints against Dr. Johar more seriously than Dr. Johar’s complaints against Dr. O: para. 1230.

[81] Ultimately, the College wrote to both Dr. Johar and Dr. O to advise that the Investigation Committee considered most of their complaints against each other to be retaliatory and to reflect poorly on the profession. It put both veterinarians on notice that if they filed similar complaints, the Investigation Committee would consider “what alternatives or actions may be taken in order to curb this inappropriate behavior and wastage of [College] resources”.

[82] I am satisfied that these allegations regarding the Advertising Complaint set out facts that, if proven, could violate the Code. Considering only the Complainants’ allegations on their face, they allege that the College treated Dr. Johar adversely by pursuing this complaint more vigorously and over a longer period of time than it does for other non-Indo Canadian veterinarians, expanding the allegations in the complaint, and seeking a disproportionate and unwarranted outcome. The time period for these allegations is February 2013 until September 3, 2015 .

3. Complaint #16-020: the SPCA Complaint

[83] The SPCA Complaint was filed on April 6, 2016, by a pet owner who complained about the service she had received from Dr. Johar. She alleged that Dr. Johar had threatened to report her to the SPCA because she wrote a negative Google review. The owner attached an email from Dr. Johar which said, “If you don’t take [the review] down immediately, we will be reporting you to SPCA for cruelty to animals for not taking care of you pet as your dog need” [as written]. Dr. Johar subsequently made a report to the SPCA about the pet owner.

[84] The College informed Dr. Johar of the complaint in December 2016. It acknowledges this was a long delay but says that it was experiencing delays at this time because of staff shortages, turnover, and re-training for existing staff. It points to examples in other complaints where it apologized to registrants for similar delays.

[85] The Investigation Committee considered the complaint on July 27, 2017. It proposed to resolve the complaint by entering into a confidential commitment with Dr. Johar, requiring him to write a College ethics examination comprising 11 questions, and complete a basic veterinary medical ethics course. In response, Dr. Johar alleged that the investigation was tainted with discrimination and bias. On November 29, 2017, the CEO wrote to Dr. Johar, disputing his allegations, and asserting that the proposal to resolve the issue confidentially was evidence that he was being treated fairly. Dr. Johar did not respond to this letter or complete the examination questions. Dr. Johar’s lawyer says that he could not agree to the proposed admissions, and the College refused to recognize that his ethics training was up to date. This complaint file was still open when the Complainants filed their amended complaint in June 2018. Further to my decision above about the scope of allegations in the complaint, I do not consider the evidence about what happened after the amended complaint was filed. Ultimately, the College withdrew its citation regarding the SPCA Complaint in July 2020.

[86] Dr. Johar argues that the College’s handling of this complaint to this point was improper. He says that the Investigation Committee never authorized an investigation, proceeded without reviewing the owner’s original online post or obtaining other medical records, did not contact the SPCA, and did not consider evidence that the owner had made subsequent false allegations about Dr. Johar. He says this is similar to conduct that the Tribunal found was discriminatory in Brar: para. 340. He further argues that the process was tainted by the involvement of Dr. Cathy Wilkie and Dr. Avtar Ubi on the Investigation Committee. In Brar, the Tribunal found that they held negative race-based views of Indo-Canadian veterinarians operating low-cost clinics, including Dr. Johar. The College strongly objects to the Complainants relying on the findings in Brar to support allegations that Dr. Ubi, Dr. Wilkie, and others tainted its processes with discrimination. In my view, this is an argument better made and addressed in a hearing.

[87] I am satisfied that the Complainants have set out facts in respect of the SPCA Complaint that could, if proven, violate the Code. They have alleged facts that the Tribunal found in Brar amounted to adverse treatment in the course of an investigation, including: delay in resolving the complaint, failing to consider and gather relevant evidence, disregarding exculpatory evidence, and asking Dr. Johar to make admissions of improper conduct. They have alleged facts which could connect this alleged adverse treatment to Dr. Johar’s protected characteristics, including the Tribunal’s findings of systemic patterns of discrimination and the involvement of individuals who they allege held negative race-based views of Dr. Johar. This is enough to surpass the low bar of s. 27(1)(b). The time period of these allegations is April 2016 until June 2018, when the amended complaint was filed.

4. Complaint File #16-075: the Coupons Complaint

[88] The Coupons Complaint was made on November 2, 2016, by a person reporting that they had received a coupon for Dr. Johar’s medical clinic in the mail. At that time, the College’s marketing standards and guidelines prohibited the use of coupons as a marketing device.

[89] On November 22, 2016, the College asked Dr. Johar to “cease using coupons as a marketing device and commit to amend all facility advertising materials to comply with the current and future CVBC bylaws and Marketing Guidelines”. Within two weeks, Dr. Johar filed similar complaints against four other veterinary clinics. He declined to sign the commitment proposed by the College.

[90] Around this time, the College invited the Investigation Committee to re-examine its view of coupon-related complaints. In March 2017, the College resolved to adopt new standards and guidelines for advertising, which now permitted the use of coupons and discount offers. Those changes were published on the College’s website in April 2017. As a result of these changes, the College dismissed the Coupons Complaint against Dr. Johar. On June 16, 2017, it advised Dr. Johar the complaint had been dismissed and the file was closed.

[91] Dr. Johar argues that the College treated him more adversely in this complaint than other veterinarians. He says that, in August 2016, he filed three complaints regarding coupons being used by his competitors. He says the College took no steps regarding those complaints. In contrast, he says that the College acted immediately to address the complaint made against him and, although the complaint was ultimately dismissed, he was required to address the complaint and experience the stress and expense of an open complaint file over a period of eight months.

[92] I am satisfied that the Complainants have set out facts that could contravene the Code in relation to the Coupons Complaint. They have alleged adverse treatment: the College opened a complaint file against Dr. Johar and asked him to agree to comply with its marketing policy. They have alleged differential treatment between Dr. Johar and other non-Indo-Canadian veterinarians, which could support an inference of discrimination. The time period of these allegations is November 2, 2016, until June 16, 2017.

5. Complaint File #16-014: the Dr. Dhalio Complaint

[93] The Dr. Dhalio Complaint was filed on February 16, 2016. It was not filed against Dr. Johar, but against a different veterinarian – Dr. Dhalio – who had worked at Dr. Johar’s animal hospital for a period. The pet owner did not know the name of the veterinarian but identified Dr. Johar’s animal hospital. The College says that Dr. Johar impeded its investigation by refusing to indicate the name of the veterinarian for about six months. He disputes this, citing a document I cannot reasonably locate in the legal assistant’s affidavit exhibits.

[94] By the time the College wrote to Dr. Dhalio about the complaint, she was no longer working at Dr. Johar’s hospital and had changed her status with the College to retired status. The Complainants say that, when Dr. Dhalio later sought to return to active status in 2018, the College delayed her re-registration because of this complaint. They argue that the College’s pursuit of this complaint was “heavy-handed and prejudicial”. They argue that, although this complaint did not involve Dr. Johar, it did harm him and “has a similar fact function”. Dr. Johar says, “It was very stressful for me to have this complaint open for many years, and to be aware of the cost and stress it was causing Dr. Dhalio”. He says he was prejudiced because the name of his animal hospital was published in connection with the complaint.

[95] I am not satisfied that the facts related to the Dr. Dhalio Complaint could, if proven, establish that the College discriminated against Dr. Johar. The alleged adverse treatment in the investigation relates to Dr. Dhalio and not Dr. Johar. Accepting that it involved his clinic and may have been upsetting to Dr. Johar, the alleged facts do not establish how he was adversely treated or impacted in the College’s services. I grant the College’s application to dismiss this allegation under s. 27(1)(b). If I had not dismissed it under s. 27(1)(b), I would have dismissed it under s. 27(1)(c).

C. Dr. Sharma

[96] Dr. Sharma operates a low-cost animal hospital in Kamloops. His allegations centre on the College’s handling of Complaint File 16-068 [the Cassie Complaint ].

[97] The Cassie Complaint was filed on October 11, 2016. Cassie’s owner complained about the care that their dog Cassie had received from Dr. Sharma after swallowing tampons. Dr. Sharma hospitalized and x-rayed Cassie over a weekend. Cassie’s owner was concerned that Cassie was getting worse and sought a second opinion. The second veterinarian diagnosed a critical obstruction and performed emergency surgery to remove the tampons.

[98] The College began an investigation into the Cassie Complaint. The Complainants allege this initial investigation was outside the Veterinarians Act because it was initiated before the matter was referred to an Investigation Committee. The Investigation Committee later ratified the actions taken by the College – an action that the Complainants argue it did not have authority to do, and which they say was not done transparently or in accordance with the College’s bylaws. The Complainants say that “Staff’s actions in starting the investigation, appointing the inspector, and completing the investigation without any input from the [Investigation Committee] were improper and denied Dr. Sharma the protections of the Veterinarians Act ” [emphasis in original].

[99] As part of its investigation, the College gathered relevant records and information from both clinics which had treated Cassie. It assigned an inspector, who wrote a memorandum [the First Inspector Memo ]. The Complainants say that the First Inspector Memo misstated important facts and did not meet the requirement in the Act to be transparent, objective, impartial, and fair.

[100] On April 27, 2017, the Investigation Committee met to consider the Cassie Complaint. They reviewed the First Inspector Memo. The Investigation Committee concluded that Dr. Sharma should have performed an exploratory surgery on Cassie and failed to take other steps properly. On July 25, 2017, the Committee proposed to resolve the complaint by remedial action by consent. The proposed terms contained several admissions, including that Dr. Sharma did not “take appropriate steps to treat a dog with a probable gastro-intestinal obstruction”. It required Dr. Sharma to agree to complete 12 hours of continuing education and to transfer medical records in a timely way.

[101] On August 22, 2017, Dr. Sharma’s counsel, Ms. Parfitt, advised that he would not agree with the remedial action by consent. She provided a detailed response explaining why Dr. Sharma would not agree to the admissions. Generally, Dr. Sharma disagreed with the Investigation Committee’s assessment of his treatment and maintained that he was correct to take a conservative approach. He also disagreed that his practice of record keeping was outside the standard practice for veterinarians.

[102] After receiving this response, the College’s inspector prepared a second memorandum, addressing each of Dr. Sharma’s assertions [ Second Inspector Memo ]. The Complainants say this was “highly inappropriate”. Among other things, they argue that the inspector demonstrated that she was no longer impartial, including by making statements that were argumentative and speculative. It is apparent in this memorandum that the inspector did not agree with several of Dr. Sharma’s assertions and, in some cases, considered that his assertions “illustrates his lack of understanding” of certain issues. The Complainants question whether the inspector was usurping the decision-making function of the Investigative Committee.

[103] The Second Inspector Memo was not provided to Dr. Sharma before it was provided to the Investigation Committee. The Complainants say this is a violation of procedural fairness.

[104] On August 31, 2017, the Investigation Committee again met to discuss the Cassie Complaint, now with the benefit of Dr. Sharma’s response and the Second Inspector Memo. The issue was deferred until a later date.

[105] On September 12, 2017, the College wrote to Ms. Parfitt, setting out the content of the Second Inspector Memo. It asked Dr. Sharma again to agree to the proposed terms of the consent agreement. Ms. Parfitt responded on October 6, 2017, reiterating Dr. Sharma’s view that “his conservative approach was within the range of approaches other reasonable veterinarians would have taken to the case”, and that – as a result – he would not sign the consent resolution. She asked for the matter to be returned to the Investigation Committee for further consideration.

[106] On November 27, 2017, Dr. Sharma wrote to the CEO to express that he felt the College’s handling of the Cassie Complaint was discriminatory and he may file a human rights complaint. In response, the CEO asked Ms. Parfitt whether Dr. Sharma wanted his “intimation (if not threat) of an HRT complaint to influence the [Investigation Committee] on Thursday?”. In the Complainants’ response to the dismissal application, they argue that this comment violated s. 43 of the Code. This is a new allegation of discrimination, not properly made in a response to a dismissal application without an application. I do not consider it further.

[107] On November 30, 2017, the Investigation Committee met to discuss the Cassie Complaint. It determined that it would direct the CEO to issue a citation against Dr. Sharma and refer the complaint to hearing before a Discipline Committee. The Complainant argues that this decision must have been influenced by the “improper” Second Inspector Memo and the CEO’s negative view about Dr. Sharma’s “threat” to file a human rights complaint. They argue that the Investigation Committee did not take a reasonable position in 2017 or negotiate with Dr. Sharma over the terms of the remedial action by consent.

[108] It is undisputed that it is unusual for the College to refer a complaint to hearing. In November 2017, there were four matters referred to a hearing, three of whom were Indo-Canadian veterinarians. From the Complainants’ perspective, this indicates discrimination. From the College’s perspective, these were matters escalated by the veterinarians, all represented by Ms. Parfitt, who refused to agree to remedial action by consent. Ultimately, the Complainants say that all these citations were cancelled by the College. They argue this is an indication that the citations were never warranted in the first place.

[109] The College issued the citation against Dr. Sharma in October 2018, after the amended complaint was filed. Further to my decision above about the scope of allegations in the complaint, I do not consider the evidence about what happened after the amended complaint was filed.

[110] The Complainants characterize the Cassie Complaint as one about a “difference of opinion”. They say that the College pursued the Cassie Complaint more aggressively than it did in other comparable circumstances. They point to a specific example where a complaint was filed by a cat owner against a veterinarian, alleging that the veterinarian had misdiagnosed a possible metastatic nodule in the cat’s lungs. The College investigated and ultimately closed the complaint as a question of possible negligence, not a gross error resulting from incompetence. The College says that, unlike in Cassie’s case, the cat did not display symptoms to indicate a serious disease. It says that it is difficult to compare between such different cases.

[111] The Complainants also argue that the College’s handling of the Cassie Complaint was tainted by discrimination because of the involvement of Dr. Wilkie and Dr. Ubi.

[112] Finally, the Complainants argue that the delay in resolving the Cassie Complaint adversely impacted Dr. Sharma. They point to unexplained delays from the filing of the complaint in September 2016 to the decision to proceed to hearing in November 2017, and then a further 11-month delay in issuing the citation. Dr. Sharma says that it was a “significant source of stress and expense for me”.

[113] I am satisfied that the Complainants have set out an arguable contravention of the Code regarding the Cassie Complaint. Disciplinary proceedings are inherently adverse. Without considering the College’s response, the Complainants have alleged facts capable of proving that the College pursued the Cassie Complaint in a manner, and under circumstances, that is inconsistent with its treatment of other veterinarians who did not share Dr. Sharma’s protected characteristics. The time period of the allegation is October 11, 2016, until the filing of the amended complaint in June 2018.

D. Dr. Sood

[114] At the relevant time, Dr. Sood operated a low-cost animal hospital in Surrey. Her allegations concern the College’s handling of Complaint File 17-013 [the Technician’s Complaint ].

[115] The Technician’s Complaint began on January 23, 2017, when the College received an email from a veterinary technician who had volunteered at Dr. Sood’s clinic for two shifts. In the initial complaint, the technician did not identify Dr. Sood or her clinic. The technician said that they had witnessed “staff running the pharmacy that had no schooling or previous animal hospital experience, animals entering surgery without being prepped, animals having surgery performed without being completely sedate and more”. The College says these allegations were serious, and it considered that this email constituted a complaint.

[116] On February 13, 2017, the intake panel of the Investigation Committee issued a memo recognizing “there are allegations raised in this complaint” to trigger the College’s jurisdiction. The Complainants take issue with this process and this memo, arguing that it was improper for the College to initiate an investigation of a complaint that did not meet the basic requirements of the College’s Bylaws, s. 271. After this, College staff followed up with the technician to ask for more information about their complaint. It received this information in a telephone call, which the Complainants argue is not consistent with the Act. The College disputes that its conduct was inconsistent with its bylaws or the Act. In any event, it points out that in this early stage the College did not know the complaint was about Dr. Sood or any Indo-Canadian veterinarian .

[117] After collecting more information, the College summarized the basis for the complaint in a memo dated March 15, 2017. The most serious allegations concerned Dr. Sood’s treatment of a growth removal on a guinea pig and surgery on an English bulldog. The technician alleged that Dr. Sood had undertaken surgery on the guinea pig without full sedation and that the guinea pig was screaming and visibly struggling throughout the procedure. They further alleged that Dr. Sood had undertaken improper procedures during a surgery on the English bulldog.

[118] Dr. Sood says that both allegations were “completely untrue”. First, the dates of the alleged incidents do not align with her records of having treated a guinea pig or bulldog. Ultimately, the College did not pursue the bulldog allegations. Regarding the guinea pig, Dr. Sood says that she treated a guinea pig around the period of the allegations, but not for a growth removal. She says the guinea pig’s mouth was swollen and she trimmed its overgrown lower incisors. The Complainants argue this ought to have been the end of the matter, but instead the College went on to expand its investigation and pursue allegations about her treatment of the guinea pig that had not been made by anyone.

[119] On April 11, 2017, the CEO called Dr. Sood as a courtesy to let her know about the complaint. The CEO says that she recommended that Dr. Sood approach her reply from the perspective that some veterinary technicians have narrow training or experience and “think” something is wrong. The College argues that this indicates the College was treating Dr. Sood fairly and had a level of trust in her despite the allegations.

[120] The College’s inspector reviewed Dr. Sood’s medical records and provided a memo for the Investigation Committee. Among other things, Dr. Sood’s records did not mention whether she had assessed the guinea pig’s cheek teeth, which is important because these are usually the source of the problem for guinea pigs. The records also indicated that Dr. Sood had “trimmed all the lower overgrown incisors to the level of gum line”. The inspector emailed an expert to seek their opinion on Dr. Sood’s treatment of the guinea pig. The expert replied, confirming that it was “wrong” to grind down the incisors to the gumline and that this practice was negligent. The Complainants characterize this as “an extra-ordinary step for the College to take”. They note that the College did not provide the expert with records related to the animal, did not examine the animal, and did not speak to Dr. Sood or the animal’s owner. They argue that it was procedurally unfair that Dr. Sood did not receive the expert’s email during any part of the College’s process.

[121] The Complainants argue that the College’s approach to this complaint reflected the Tribunal’s findings in Brar that the College tended to rely on vague, untested, and unsubstantiated complaints about Indo-Canadian veterinarians because of its own race-based views: para. 1063. They also point to the Tribunal’s finding that it was inappropriate for an investigator to meet with a complainant and “listen to his unsubstantiated allegations” regarding a veterinarian, without requiring the complainant to put their allegations in writing or giving the veterinarian a chance to respond: para. 275. The Complainants argue that it was “highly unusual for the College to pursue an incomplete complaint, interview the complainant to obtain an expanded complaint, and then to go beyond the expanded complaint in its investigation” [emphasis added].

[122] Dr. Wilkie was a member of the Investigation Committee when the Technician Complaint was before the Investigation Committee. In Dr. Wilkie’s notes, she recorded a belief that Dr. Sood’s medical records were a “lie”, and that she had “no reason to doubt” the technician who had brought the complaint. She noted that the “problem” was that they could not prove it. She thought the solution should be that Dr. Sood “not to perform small mammal anesthesia or dentistry until she obtains adequate training”. The Complainants argue that these notes reveal a very negative attitude towards Dr. Sood and reflect the suspicious approach to Indo-Canadian veterinarians and their records which the Tribunal found in Brar was indicative of discrimination.

[123] The Investigation Committee met on July 20, 2017, to discuss the Technician Complaint. It considered that “the dental care of the guinea pig with incisor malocclusion was handled incorrectly and likely inhumanely”. It directed that the complaint be dismissed upon Dr. Sood’s completion of a voluntary commitment reflecting Dr. Wilkie’s proposal, namely that she abstain from small mammal anesthesia or dentistry until receiving training. The Complainants argue there was no basis for the restriction on anesthesia, and that it was reflective of a discriminatory belief that Indo-Canadians were not using proper anesthetic protocols. They further argue that it was inappropriate that Dr. Ubi was present during this meeting and did not recuse himself. Again, they rely on the Tribunal’s findings in Brar that Dr. Ubi held discriminatory views of Dr. Bhullar. The Complainants’ legal counsel says in argument that Dr. Ubi was aware Dr. Sood had worked with Dr. Bhullar.

[124] On August 22, 2017, Dr. Sood sought an extension to reply to the College’s letter. In response, the CEO advised that she could only have the extension if she agreed in writing not to perform dental surgery on small mammals. The CEO said that if the College did not hear from Dr. Sood, it may “precipitate action pursuant to s. 65 of the Veterinarians Act ”. This section grants the Investigation Committee authority to undertake “extraordinary action to protect public interest”, including suspending or imposing limits on a registrant. The Complainants characterize this as a “baseless threat” that was “completely unsanctioned by the [Investigation Committee] and totally contrary to the [Investigation Committee’s] usual practice”.

[125] Dr. Sood responded to the College’s letter on August 23, 2017. She identified a number of concerns with the Technician Complaint, and disputed that she had treated the guinea pig improperly. She pointed out that the requirement to refrain from using anesthetic for small mammals appeared to exceed the scope of the expert’s findings. In response to this, Dr. Wilkie agreed that this requirement could be removed – an agreement that the Complainants argue she did not have authority to make on her own. The College argues that this decision was just addressing a lack of clarity in the wording of the commitment.

[126] Dr. Sood spoke to the College inspector and CEO on August 25, 2017. She surreptitiously recorded the conversation. She explained her view that she had treated the guinea pig properly, defending her decision to trim the incisors.

[127] The Investigation Committee considered the complaint again on August 31, 2017. The Complainants dispute the accuracy of the minutes of this meeting. In particular, the minutes say that the Committee was told that the guinea pig’s owner said the guinea pig was fine, but other records suggest the owner was not contacted until the following day. The Investigation Committee remained of the view that Dr. Sood did not have “enough small mammal knowledge”. They proposed a revised commitment, requiring Dr. Sood to “research 4 articles related to guinea pig dentistry… and submit them to [the College] along with a summary of the articles and an analysis of what might have been done differently”. Dr. Sood argues that the Committee’s conclusion was “without foundation.” She refused to agree to the proposal.

[128] The College inspector wrote to the expert again. In response to the inspector’s questions, the expert confirmed that it was “highly unlikely” that a five-year-old guinea pig would have only incisor malocclusion, without the cheek teeth being involved. They further confirmed that grinding incisors to the gumline would expose the pulp chamber, causing pain and pulpitis that would end up in an abscess.

[129] On September 21, 2017, the College wrote again to Dr. Sood, reiterating its view that she had performed dentistry improperly and failed to note important information in her records. It repeated its proposal to resolve the complaint based on an agreement to read and summarize four articles. It identified four possible articles, totalling less than 25 pages. The Complainants take issue with this letter, which they say mischaracterizes the Investigation Committee’s position and reflects an attempt by the College to “strong-arm” Dr. Sood into agreeing with the proposed resolution. Further, they argue that one of the proposed articles supported Dr. Sood’s approach to treating the guinea pig.

[130] The guinea pig died naturally on September 11, 2017. Dr. Sood examined it after death and noted that all its teeth appeared normal. The owner wrote a letter confirming that the guinea pig “did not have any problem eating or drinking after the procedure until she passed away”. No one associated with the College ever examined the guinea pig.

[131] The College and Investigation Committee’s view was that it was unreasonable that Dr. Sood refused to read and summarize four articles to resolve this complaint. On November 8, 2018, the CEO “implored” Dr. Sood to get legal advice. On November 30, 2017, the Investigation Committee directed the College to issue a citation against Dr. Sood. The citation was issued 11 months later, on October 25, 2018. Dr. Sood characterises this as a “gross disproportionate disciplinary action”.

[132] In March 2019, the citation was cancelled and the file was closed. The College says this decision was based on additional expert evidence it obtained, which it says indicated that the guinea pig’s “unique pulp characteristics” had avoided harm in this case. It says it also considered that the owner had reported no eating problems and the guinea pig had lived for one and a half more years after the procedure. Dr. Sood says that this decision was not based on any new information, and should have been the outcome in July 2017. She says that the College’s actions, including in publicising the citation, caused her “serious anxiety and anguish” and damaged her reputation in a competitive market.

[133] I am satisfied that the Complainants have set out facts that could, if proven, establish that the College discriminated against Dr. Sood. They allege that the College pursued this issue even though no one, including the guinea pig’s owner, complained about her treatment and there was no evidence that Dr. Sood had done anything wrong. In doing so, they allege that the College’s investigation was deficient in fundamental ways that the Tribunal found were adverse in Brar. They allege that the College proposed restrictions on Dr. Sood’s practice that were onerous and unwarranted. They allege that, in light of the Tribunal’s findings in Brar and in the absence of a non-discriminatory explanation, this conduct can support an inference of discrimination. This is enough to surpass the low threshold of s. 27(1)(b). The time period for these allegations begins March 15, 2017, when the College learned that the Technician’s Complaint was about Dr. Sood, until June 2018, when the amended complaint was filed.

[134] On April 25, 2019, the College made a with prejudice to resolve Dr. Sood’s human rights complaint by payment of a lump sum of $5,000 as compensation for injury to her dignity, feelings, and self-respect: Code, s. 37(2)(ii). I return to this offer below.

E. Dr. Grewal

[135] Dr. Grewal operates a low-cost animal hospital in Squamish. He previously worked with Dr. Jagpal, who was a complainant in Brar. His allegations concern the College’s handling of Complaint Files #14-037 [ Bailey Complaint ], #15-102 [ Sushi Complaint ], #16-043 [ Bosley Complaint ], #17-009 [ Benson Complaint ], #17-034 [ Medical Records Issues ], and #18-025 [the Lucho Complaint ]. Overall, Dr. Grewal argues that the College has revealed a “clearly prejudicial attitude” towards him, undertaken an extreme approach to regulating him, and went to great lengths to believe he was not acting appropriately.

1. Complaint File #14-037: the Bailey Complaint

[136] The Bailey Complaint was filed on May 3, 2014, by a pet owner whose dog Bailey did not recover well from surgery performed by Dr. Grewal. The owner alleged that Dr. Grewal undertook a more invasive procedure than they had approved, failed to take proper blood and urine tests, and misdiagnosed and mistreated Bailey, causing her condition to worsen. Dr. Grewal had a very different account. The Investigation Committee investigated and dismissed the allegations on December 11, 2014.

[137] In the course of the Bailey investigation, other veterinarians reported that they had experienced difficulty obtaining medical records from Dr. Grewal’s clinic. The College says this is a serious issue, because veterinarians have to rely heavily on medical records for timely, accurate service. This is especially true because animals cannot talk and have adapted to mask their pain, and their owners are often not present when animals are treated or diagnosed. The Investigation Committee ultimately directed the College to prepare and publish an article about the importance of registrants maintaining open lines of professional communication with their colleagues, particularly with respect to medical records requests. Dr. Grewal says that he was not made aware of the Investigation Committee’s concerns, and had understood that the Bailey Complaint was closed. He says it was procedurally unfair that he did not have an opportunity to respond to concerns and complaints about his medical record keeping, and asserts that the inspector’s conduct in pursuing this issue was “extremely unusual”.

[138] The Complainants argue that the College’s investigation of the Bailey Complaint was procedurally unfair because Dr. Grewal was not privy to some of the information before the Investigation Committee. However, I am not satisfied that the Complainants have alleged facts capable of proving that the College discriminated against Dr. Grewal in respect of the Bailey Complaint. The facts before me are that the College investigated and dismissed a complaint filed by a member of the public. The procedural fairness of that process is an issue for the court. There are no facts in respect of this allegation that could prove that the College treated Dr. Grewal adversely in connection with his protected characteristics. The allegation of discrimination respecting the Bailey Complaint is dismissed under s. 27(1)(b).

[139] The Complainants also argue that it was procedurally unfair that the College did not tell Dr. Grewal at this time that it had developed concerns about his medical record keeping. To the extent this is intended as a standalone allegation of discrimination, there are no facts that could violate the Code. According to the Complainant, the College took no steps at this time regarding Dr. Grewal’s medical record keeping. There are no facts to explain how publishing an article for all registrants adversely impacted Dr. Grewal. There are also no facts, beyond counsel’s assertion, to substantiate that the inspector’s conduct was “extremely unusual” or connected to Dr. Grewal’s protected characteristics. This allegation is dismissed under s. 27(1)(b). In reaching this conclusion, I acknowledge that the facts may be relevant to the College’s later actions regarding Dr. Grewal.

[140] The allegations regarding the Bailey Complaint are dismissed under s. 27(1)(b). If I had not dismissed these allegations under s. 27(1)(b), I would have done so under s. 27(1)(g) and/or (c).

2. Complaint File #15-102: the Sushi Complaint

[141] The Sushi Complaint was filed on October 27, 2015, by a pet owner whose dog Sushi experienced post-operative complications after a lump was removed. The Investigative Committee considered that Dr. Grewal had not properly assessed Sushi and had failed to recognize post-operative complications. It proposed a resolution by consent, which included publication of the consent agreement. Dr. Grewal declined the proposal, later explaining that he did not want to admit fault and he objected to the consent order being published. In response, on June 1, 2017, the Investigation Committee directed that the consent agreement be amended, including to make it confidential. Dr. Grewal signed the voluntary commitment on June 16, 2017. On May 7, 2018, the College confirmed that Dr. Grewal had completed all the requirements of the consent agreement.

[142] Dr. Grewal alleges that College staff improperly added admissions and requirements to the proposed consent agreement. He characterises its conduct as “aggressive and illegal” and alleges that the College “improperly pressured” him to sign the agreement though he did not agree the admissions were true. He says he felt “intimidated and exposed” and very concerned about his license.

[143] Respectfully, the Complainants have not pointed to facts capable of proving that the College’s conduct was “aggressive and illegal” in addressing this complaint. I accept that disciplinary proceedings are inherently adverse to a registrant. However, the Complainants have not pointed to facts capable of proving that Dr. Grewal’s protected characteristics were a factor in how it addressed this complaint. I infer that they rely on their general argument that the Tribunal can infer discrimination based on the cumulative experiences of all the Complainants and the Tribunal’s findings in Brar. The difficulty with this is that the outcome in Brar does not create a presumption of discrimination – an inference must always be rooted in the evidence of a particular case. This inference can be proven in a number of ways, including differential treatment, timing, social context, or patterns of discrimination. Leaving aside the Complainants’ opinion that the College’s conduct was “illegal” and “aggressive” – which is not supported with allegations of fact – they have not set out facts regarding the Sushi Compliant that could establish discrimination. This allegation is dismissed under s. 27(1)(b). If I had not dismissed these allegations under s. 27(1)(b), I would have done so under s. 27(1)(g) and/or (c).

3. Complaint File #16-043: the Bosley Complaint

[144] The Bosley complaint was filed on May 26, 2016, by a pet owner who said their cat Bosley experienced complications after sedation for a dental surgery. The Investigation Committee eventually dismissed the complaint on April 27, 2017, with a letter to Dr. Grewal recommending that he would benefit from continuing education in pre-operative risk assessment and anesthetic monitoring. At this point, Dr. Grewal says he was not told, and had no way of knowing, that the College had developed concerns and was investigating his medical records practices.

[145] In fact, as part of its investigation into the Bosley Complaint, the Investigative Committee requested medical records from other veterinarians who had treated Bosley. The inspector discovered that Dr. Grewal’s medical records were either not present, or received late and incomplete, after multiple requests to obtain them. Two other veterinarians in the community reported that they had chronic records transfer problems with Dr. Grewal’s hospital. The College determined it would treat the records issue separately, to avoid involving Bosley’s owner. It says this was done to protect Dr. Grewal’s privacy and benefit him. On April 20, 2017, the Medical Records Issue was assigned a separate complaint number and, from that point on, pursued separately by the College.

[146] The Complainants argue that the College’s conduct in expanding its investigation into Dr. Grewal’s medical records, relying on issues identified in files that had been closed and which were not disclosed to him at the time, and talking to his competitors about his conduct was not authorized by the Act, and was “highly unusual” and “highly adverse”. They characterize these as “extraordinary lengths” outside the scope of the College’s usual regulatory approach, amounting to a double standard because Dr. Grewal was an Indo-Canadian veterinarian operating on a low-cost model.

[147] I do not understand that the Complainants allege that the College discriminated against Dr. Grewal in its resolution of the Bosley Complaint. They have not alleged facts that could prove discrimination respecting the resolution of that issue. Rather, they allege that the College discriminated by using the Bosley Complaint as an “excuse to delve into Dr. Grewal’s transfer of medical records to other hospitals on request”. I am satisfied that these allegations could, if proven, violate the Code. Relying on Brar, the Complainants allege this is part of the College’s discriminatory pattern of expanding its investigation into Indo-Canadian veterinarians and that the College misled Dr. Grewal by telling him the file was closed when in fact it had generated ongoing concerns for the College. The first arguable contravention identified by the Complainants is on January 11, 2017, when they allege that the investigator raised medical transfer issues. The alleged contravention continues through the College’s handling of the Medical Records Issue, until the filing of the complaint in June 2018.

4. Complaint File #17-009 (the Benson Complaint) and Complaint File #17-034 ( Medical Records Issues)

[148] The Benson Complaint was filed on January 8, 2017, by an owner whose dog Benson passed away a day after a routine neutering procedure and declaw removal. As part of the investigation, the inspector contacted a veterinary assistant who had been involved in treating Benson. She indicated there was no anesthetic record or written chart for Benson, which the College says highlighted further issues with Dr. Grewal’s medical records.

[149] In the meantime, on May 2, 2017, the College undertook a regular inspection of Dr. Grewal’s facility. The College says this was a routine inspection, which typically happens every five years, and was not related to any complaint process. It says the inspector was not appraised of any outstanding complaints. The inspector, applying the College’s Accreditation Standards, noted deficiencies in Dr. Grewal’s medical records. On May 15, 2017, Dr. Grewal signed an “Inspection Declarative Statement” declaring that he had corrected the deficiencies, and that his medical records now contained a record of assessment and written record of anesthetic monitoring for every patient.

[150] On May 19, 2017, the CEO advised Dr. Grewal by phone that another medical records inspection would be conducted on May 23. Unbeknownst to him at the time, this inspection was related to the Medical Records Issue. Ms. Parfitt says that Dr. Grewal first learned of the Medical Records Issue when the inspector handed him a letter from the CEO, referencing the new file number. The Complainants argue that this was an “extraordinary” and “improper” action, amounting to a burdensome, procedurally unfair fishing expedition.

[151] On May 29, 2017, the College wrote to Dr. Grewal to share concerns expressed by the Investigation Committee about his record-keeping practices. The CEO said that Dr. Grewal’s medical records required “immediate remediation” and conveyed a mandatory direction from the Investigation Committee to submit records to the College daily for inspection. The College says that the Investigation Committee made this direction under s. 52(3) of the Act, which requires registrants to cooperate with an investigation, including providing information or records on request. The College says this step was taken in an effort to avoid the more punitive options available under s. 65 of the Act. It says this restraint is “representative of the shift in the College’s philosophy since November 2015”. For their part, the Complainants say that the mandatory direction in this letter had no legal basis and was “high handed” and “improper”.

[152] Dr. Grewal was cooperative in submitting his records and, over time, the Investigative Committee noted a “vast improvement” in his medical records.

[153] On July 20, 2017, the Investigation Committee considered both the Benson Complaint and the Medical Records Issue. It recommended that both files be resolved by the same remedial action by consent – a decision that the Complainants characterise as “highly unusual”. The proposed agreement contained admissions that Dr. Grewal had demonstrated inadequate recordkeeping and poor anesthetic practice, and included several undertakings. Among other things, Dr. Grewal was required to refrain from anesthetizing and sedating animals until he received in-person training, at his expense. In addition, he was required to complete a medical records course and then, six months later, undergo a random review of five of his medical records.

[154] Dr. Grewal says that the admissions and undertakings in this agreement were very serious, and reflect that the Investigative Committee assumed “the most negative view” of Benson’s death, despite there being no evidence to determine Benson’s cause of death. He says there was no basis for the admission that he had engaged in poor anaesthetic practices, and no foundation for the Investigative Committee’s concerns about his anaesthetic and sedation practices. He alleges that the College has never imposed similarly harsh restrictions on other veterinarians regarding anesthetizing or sedating animals, or mandatory necropsies of animals dying within seven days of certain treatments. He argues that the College “improperly coerced” him into agreeing to the consent agreement, under threat of a possible practice restriction under s. 65 of the Act. He characterizes this as “extreme and high handed”, and reflective of the Investigation Committee’s “unusual approach of going far beyond received complaints in the regulation of Dr. Grewal”.

[155] Dr. Grewal agreed to the consent agreement. He arranged for the training to be undertaken by an expert recommended by the College. When he reached out to the expert, he expressed his preference to “train in person (at least in part)”. In response, the expert indicated that the travel expenses associated with in-person training would not be “financially worth while” and recommended they start on the phone and facetime. Dr. Grewal says he did not question this suggestion, given that the College had spoken to the expert. In August 2017, the College discovered that these sessions were not taking place in person. From its perspective, this breached the consent agreement. The College informed the expert, and the expert cancelled her future sessions with Dr. Grewal. The Investigative Committee considered the issue in a meeting on August 31, 2017, and agreed to amend the consent agreement to allow for training by video conference if a second veterinarian was present to perform the surgery while Dr. Grewal focused on the anesthesia. By that point, Dr. Grewal says he no longer had confidence in the expert to complete the training. Instead, he took online courses. Dr. Grewal says that the financial cost of the undertakings was high.

[156] In September 2017, Dr. Grewal informed the College that he had retained Ms. Parfitt as counsel. In response, the College asked Dr. Grewal to confirm that he was still bound by, and complying with, the undertakings in the consent agreement. Dr. Grewal characterizes the College’s repeated requests for confirmation as harassment.

[157] In June 2018, Ms. Parfitt provided the College with certificates of Dr. Grewal’s online training courses. The College released Dr. Grewal from his undertakings by letter dated February 9, 2021. Up until that point, among other requirements, Dr. Grewal could not perform anesthesia and sedations, which he says was expensive, “draining and frustrating”. Dr. Grewal also says that the publication of consent agreements regarding the Benson Complaint and the Medical Records Complaint was damaging to his reputation.

[158] I am satisfied that the Complainants have set out arguable contraventions of the Code respecting the Benson Complaint. They have alleged facts that could prove the College treated Dr. Grewal with suspicion, assumed the most negative view of his practice that was unsupported by the evidence, and sought remedial action that was harsher than the College imposed on other veterinarians not sharing Dr. Grewal’s characteristics. The time period of these allegations is January 8, 2017, until the filing of the amended complaint in June 2018.

[159] I am also satisfied that the Complainants have alleged an arguable contravention of the Code respecting the Medical Records Issue. Without considering the College’s response, they have alleged that the College initiated an investigation into his practice by relying on information they obtained or sought out in their investigation of other, unrelated, complaints, without giving notice to Dr. Grewal and not in response to any complaint. They allege that the College accepted statements of other veterinarians as factual, without seeking a response of Dr. Grewal, which was part of a pattern of conduct the Tribunal found in Brar was discriminatory. The time period of these allegations is April 2017 until the filing of the amended complaint in June 2018.

5. Complaint File #18-025: the Lucho Complaint

[160] In February 2018, Dr. Grewal advised the College that a dog, Lucho, had died at home four days after surgery. He reported that he had strongly recommended a necropsy but the owner refused and said she would call the police if he called her again. Dr. Grewal argues that the College’s subsequent attempts to contact the owner to obtain consent for a necropsy was harassment, and indicated a “very significant ongoing lack of trust”. On March 26, 2018, the Investigation Committee directed an investigation into this matter.

[161] I am satisfied the Complainants have set out facts about this allegation that could contravene the Code. They allege that the College demonstrated an unwarranted lack of trust, including by opening a complaint file in the absence of any complaint from a member of the public. They say this is consistent with the patterns of discrimination found by the Tribunal in Brar. The time period of these allegations is February 2018 until the filing of the amended complaint in June 2018.

6. Offer to settle

[162] On April 25, 2019, the College made a with prejudice offer to resolve Dr. Grewal’s human rights complaint by payment of a lump sum of $5,000 as compensation for injury to his dignity, feelings, and self-respect: Code, s. 37(2)(ii). I return to this offer below.

F. Summary: Allegations dismissed under s. 27(1)(b)

[163] In summary, I dismiss the allegations about the following complaint files and issues, on the basis that they do not set out an arguable contravention of the Code:

a. Failure to comply with Brar orders (Dr. Johar);

b. Complaint File #16-014: the Dr. Dhalio Complaint (Dr. Johar);

c. Complaint File #14-037: the Bailey Complaint (Dr. Grewal); and

d. Complaint File #15-102: the Sushi Complaint (Dr. Grewal).

If I had not dismissed these allegations under s. 27(1)(b), I would have done so under ss. 27(1)(c) and/or (g).

[164] I turn next to consider whether any of the remaining allegations should be dismissed because they are late.

V SHOULD THE TRIBUNAL DISMISS ALLEGATIONS BECAUSE THEY ARE LATE?

[165] This complaint was filed on December 27, 2017. At that time, there was a six-month time limit for filing human rights complaints. The College applies to have allegations pre-dating June 27, 2017, dismissed on the basis that they are out of time: Code, s. 27(1)(g).

[166] The Complainants argue that all their allegations, considered together, form part of a timely continuing contravention of the Code: Code, s. 22(2). In the alternative, they argue that the Tribunal should exercise its discretion to accept late filed allegations: Code, s. 22(3).

[167] I must decide two issues: (1) whether any of the Complainants’ allegations are late filed, and (2) if so, whether to exercise my discretion to accept them because it is in the public interest to do so and there is no substantial prejudice to any person because of the delay: Code, s. 22(3) , School District at para. 68 .

[168] A complaint is filed in time if the last allegation of discrimination happened within the time limit in the Code , and older allegations are part of a “continuing contravention”: Code , s. 22(2); School District at para. 68 . The purpose of s. 22(2) of the Code is “to provide a right to complain of discriminatory conduct that took place outside the six-month period if the complaint that is properly before the Tribunal represents a continuation of the earlier discrimination”: School District at para. 22(2). The burden is on the Complainants to establish that their complaint alleges a timely continuing contravention: Dove v. GVRD and others (No. 3) , 2006 BCHRT 374 at para. 11 [ Dove No. 3 ].

[169] The first step in the analysis is to identify an allegation of discrimination within the six-month limitation period: School District at para. 51. Above I have found the following allegations set out timely allegations of discrimination:

a. April 2016-June 2018: the SPCA Complaint (Dr. Johar). Allegations: Adverse treatment in an investigation, including delay, failing to consider and gather relevant evidence, disregarding exculpatory evidence, and asking Dr. Johar to make admissions of improper conduct.

b. October 11, 2016 – June 2018: the Cassie Complaint (Dr. Sharma). Allegations: Adverse treatment in an investigation, including delay, and decision to issue citation that was unwarranted.

c. March 15, 2017 – June 2018: Technician’s Complaint (Dr. Sood). Allegations: Adverse treatment in an investigation, including pursuing allegations outside the original complaint, and imposing onerous restrictions on practice.

d. January 8, 2017 – June 2018: Benson Complaint (Dr. Grewal). Allegations: College imposed harsh admissions and restrictions on practice, without foundation.

e. April 2017 – June 2018: Medical Records Issue (Dr. Grewal). Allegations: College opened investigation on its own initiative, talked to competitors, relied on information from closed files, and imposed onerous requirements.

f. February 2018 – June 2018: Lucho Complaint (Dr. Grewal). Allegations: College attempted to contact owner about pet, and directed investigation into death.

[170] The next step in the analysis is to consider whether the allegations falling outside the time limit form a continuing contravention with the timely allegations. Above I have found the following allegations were filed outside the six-month limitation period [2] :

a. February 2013 – September 5, 2015: Advertising Complaint (Dr. Johar). Allegations: College pursued complaint more vigorously and over a longer period than it does for other veterinarians, expanded the allegations in the complaint, and sought a disproportionate and unwarranted outcome.

b. November 2, 2016 – June 16, 2017: Coupons Complaint (Dr. Johar). Allegations: The College opened a complaint file against Dr. Johar and asked him to agree to comply with his marketing policy.

[171] A continuing contravention is “a succession or repetition of separate acts of discrimination of the same character” that could be considered separate contraventions of the Code . It is “not merely one act of discrimination which may have continuing effects or consequences”: Chen v. Surrey (City), 2015 BCCA 57 at para. 23 ; School District at para. 50 . The assessment of whether discrete allegations are a continuing contravention is a “fact specific one which will depend very much on the individual circumstances of each case”: Dickson v. Vancouver Island Human Rights Coalition, 2005 BCHRT 209 at para. 17 . A relevant consideration is whether there are significant gaps between the allegations: Dickson at paras. 16-17. Whether or not a gap is significant will be assessed contextually, considering the length itself and any explanations for the gap: Reynolds v Overwaitea Food Group, 2013 BCHRT 67 at para. 28. A significant, unexplained, gap in time will weigh against finding a continuing contravention: Bjorklund v. BC Ministry of Public Safety and Solicitor General , 2018 BCHRT 204 at para. 14 .

[172] In this case, a preliminary issue arises about whether the Tribunal should consider the Complainants’ allegations individually, or together. For example, can the timely allegations of Dr. Sood, Dr. Sharma, and Dr. Grewal ground a continuing contravention involving Dr. Johar? The College says no. It argues that that Dr. Johar cannot “piggyback on other Complainants’ timely allegations to establish a continuing contravention under the Code” . The Complainants, on the other hand, argue that “systemic complaints require the Tribunal to approach a body of evidence as an interrelated whole”. They argue that their allegations of systemic discrimination require the Tribunal to consider the experience of multiple complainants spanning multiple events.

[173] I agree with the Complainants. In group or class complaints alleging systemic discrimination, it is possible to establish a continuing contravention involving different complainants. The analysis remains the same: whether the complainants set out a succession of acts of discrimination of the same character.

[174] This is consistent with the Tribunal’s approach in Zhuang and others v. East West Medical Society and others, 2011 BCHRT 273, relied on by the College. In that case, five people filed a complaint alleging individual and systemic discrimination against Chinese students and faculty at the Canadian College of Acupuncture and Oriental Medicine. The allegations about one of the Complainants, Dr. Pan, were all outside the Code’s time limit. The Tribunal held that Dr. Pan could not “piggyback” on the other complainants’ timely allegations because “the other complaints involve some acts which are of a different character and which involve different actors, and there is a significant gap in time between incidents”: para. 81. In reaching this conclusion, the Tribunal applied its usual analysis for a continuing contravention. It did not say that a continuing contravention can only apply to allegations of a single complainant.

[175] The College argues that the Tribunal should dismiss all allegations that pre-date June 27, 2017. It focuses its arguments on Dr. Johar’s allegations regarding the Advertising Complaint, Inquiry 08-01 (compliance with Brar orders), and the Coupons Complaint. The College argues that these allegations are of a fundamentally different character than any untimely allegations and are separated from the timely allegations by a significant and unexplained gap in time. In its reply, the College also refers to Dr. Sharma’s allegations as late-filed, but I do not understand the basis for that argument and I do not consider it further.

[176] The Complainants argue that their allegations are a continuation of the same conduct that the Tribunal found in Brar constituted a pattern of race-based adverse treatment in the processing of disciplinary complaints. They argue that the allegations are separate, continuing, acts of the same character.

[177] I consider each of the late-filed allegations in turn. I start by considering whether the allegations are sufficiently connected to the timely allegations to form a timely continuing contravention of the Code. If they are a continuing contravention, they are timely and I decline to dismiss them under s. 27(1)(g). If they are not a continuing contravention, I decide whether to exercise my discretion under s. 22(3) to accept them late.

A. Complaint File #13-013A: the Advertising Complaint (Dr. Johar)

[178] Above I have accepted that the Complainants’ allegations regarding the Advertising Complaint set out facts that, if proven, could violate the Code. Specifically, the Complainants allege that the College treated Dr. Johar adversely by pursuing this complaint more vigorously and over a longer period than it does for other veterinarians, expanding the allegations in the complaint, and seeking a disproportionate and unwarranted outcome.

[179] I accept that, broadly, these allegations share a common character with the timely allegations of discrimination. However, there is an approximately 15-month gap between these allegations and the next timely allegation. This is a significant gap, which in my view weighs dispositively against finding a continuing contravention of the Code : Dickson at para. 17. This allegation is late.

[180] I have discretion to accept this late allegation under s. 22(3) of the Code. The burden is on the complainant to persuade the Tribunal to accept the complaint. I must consider two things: public interest and substantial prejudice.

[181] The Tribunal assesses the public interest in a late-filed complaint in light of the purposes of the Code . These include identifying and eliminating persistent patterns of inequality, and providing a remedy for persons who are discriminated against: s. 3. It may consider factors like the length of the delay, the reasons for the delay, the complainant’s interest in accessing the Tribunal, the respondent’s interest in being able to continue its activities without worrying about stale complaints, whether the complainant got legal advice, and the public interest in the complaint itself: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite , 2014 BCCA 220 [ Mzite ] at para. 53 and 63; Hoang v. Warnaco and Johns, 2007 BCHRT 24; Complainant v. The Board of Education of School District No. 61 (Greater Victoria) , 2022 BCHRT 44 at para. 18. These are important factors, but they are not necessarily determinative and not every factor will be relevant in every case: Goddard v. Dixon, 2012 BCSC 161 at para. 152 ; Mzite at para. 55 . The inquiry is always fact and context specific: Fontaine v. Ainsworth Lumber, 2005 BCHRT 565 at paras. 19-20.

[182] The Complainants begin their argument by asserting that there is a strong public interest in all human rights complaints that must be “rebutted” in order for the Tribunal to decline to accept a late-filed complaint. I accept and acknowledge the purposes of the Code, which are primarily achieved through individual complaints. However, the law is clear that the time limit in the Code is a substantive provision, “which is intended to ensure that complainants pursue their human rights remedies with some speed and to allow respondents the comfort of performing their activities without the possibility of dated complaints”: Chartier at para. 12. There is no presumption of public interest in a late-filed complaint.

[183] Considering that the time period of the Advertising Complaint runs until September 5, 2015, those allegations were filed nearly 22 months late. The College has cited cases where the Tribunal has declined to accept complaints for filing that were as little as three days or one month late: Andres v. Hiway Refrigeration Ltd., 2009 BCHRT 135 at para. 7 and Kang v. University of British Columbia and Azmina Manji, 2015 BCHRT 10 at para. 48. Twenty-two months is a significant delay, which weighs against accepting the complaint absent a compelling explanation.

[184] The Complainants say that they filed their complaint in June 2017 because of a “confluence of events including: the College’s acceptance of the Tribunal’s decision in Brar, the College’s actions in relation to Dr. Grewal, and the College’s decision to proceed to hearing against Dr. Sharma and Dr. Sood, although neither matter warrants a hearing”. They say that Dr. Johar hoped that his issues would be resolved by the Tribunal’s decision in Brar and subsequent settlement discussions.

[185] To begin, I agree with the College that the last argument does not weigh in the public interest of accepting a late-filed complaint. The Tribunal has consistently held that parties should be discouraged from waiting to file their human rights complaint in the hopes of achieving a resolution elsewhere. Rather, the proper course is to file the human rights complaint on time and request the complaint be deferred pending the resolution of the issues elsewhere: George v. Montrose (Village), 2012 BCHRT 279 at para. 19; Kang at para. 43-45.

[186] I accept that, in some circumstances, it may take time to understand or identify systemic patterns of discrimination. However, in this case, Dr. Johar had already spent years alleging and litigating this type of discrimination. Dr. Johar had all the relevant facts related to the Advertising Complaint by September 2015. By that time, he and his legal counsel had been involved for years in pursuing very similar allegations of discrimination before this Tribunal. They had made extensive arguments – which were ultimately successful – about how the College’s analogous conduct on other matters violated the Code. He did not need to wait to learn of the other Complainants’ allegations to bring forward his own in a timely way. In this circumstance, I do not accept that the fact that the Tribunal’s decision had not been released made it more difficult for him to pursue and prove these types of allegations. Dr. Johar should have filed his complaint on time and then asked to defer it pending the outcome and resolution of issues in Brar.

[187] I recognize the public interest in the Tribunal deciding the Complainants’ allegations of ongoing systemic discrimination at the College. However, the Tribunal will be able to fulfill this mandate by resolving the substantial timely allegations brought by the Complainants. It is not necessary to sweep in Dr. Johar’s allegations regarding the Advertising Complaint, which would expand the scope of the complaint by years in circumstances that are not warranted by the public interest.

[188] On balance, I am not persuaded that it is in the public interest to accept the allegations regarding the Advertising Complaint under s. 22(3) of the Code. Given that conclusion, I do not need to go on to consider substantial prejudice.

[189] The allegations regarding the Advertising Complaint are dismissed under s. 27(1)(g) of the Code.

B. Complaint File #16-075: the Coupons Complaint (Dr. Johar)

[190] Above I have accepted that the Complainants have set out facts that could contravene the Code in relation to the Coupons Complaint. I am satisfied that these allegations are sufficiently connected in character and time to form part of a timely continuing contravention of the Code. They are about alleged overzealous regulation, escalating matters that the Complainants say are not pursued as vigorously or at all against veterinarians who do not share their characteristics. They overlap in time with the other timely allegations of discrimination. I decline to dismiss this allegation under s. 27(1)(g) of the Code.

C. Summary: Allegation dismissed under s. 27(1)(g)

[191] In summary, I have dismissed the Complainants’ allegations regarding Complaint File #13-013A (the Advertising Complaint) under s. 27(1)(g). The remainder of the College’s application to dismiss under s. 27(1)(g) is denied.

VI DO THE ALLEGATIONS HAVE NO REASONABLE PROSPECT OF SUCCESS?

[192] The College argues that all or part of the allegations in the complaint should be dismissed because they have no reasonable prospect of success: Code, s. 27(1)(c). In this section I only address those allegations I have not already dismissed.

[193] I have set out some of the relevant legal principles above. Under s. 27(1)(c), the Tribunal looks at all the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence ” : Berezoutskaia at para. 22. This is a gatekeeping function, intended to winnow out complaints that do not merit the time and expense of a hearing. In keeping with this purpose, the threshold to advance a complaint to a hearing is low.

[194] A dismissal application is not the same as a hearing: Lord v. Fraser Health Authority , 2021 BCSC 2176 at para. 20 ; SEPQA v. Canadian Human Rights Commission , [1989] 2 SCR 879 at 899. The Complainants do not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the realm of conjecture: Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49 [ Hill ] at para. 27 . Considering the substantial material before me respecting their remaining allegations, I am satisfied that they have surpassed this low threshold for all but one of their remaining allegations.

[195] I do not propose to address each allegation separately again at length. Such an exercise would be inefficient and disproportionate to the task before me. I have already dismissed some allegations that could not contravene the Code. With one exception, the remaining allegations could, if proven, contravene the Code and are supported by some evidence and substantial argument. As in Parent F, the allegations in this complaint, and the College’s defence, rest on a “fairly complex set of facts that is in dispute”: Parent F obo Child G v. School H and Others (No. 3), 2015 BCHRT 114 at para. 55. In that case, the Tribunal declined to undertake a “a point-by-point deliberation of every claim made” and instead simply observed that there were issues to be decided at a hearing: para. 55. This approach was upheld on judicial review: School H v. British Columbia (Human Rights Tribunal), 2016 BCSC 672. The Court confirmed that the Tribunal is “not required to ‘sift’ through the hundreds of pages of evidence and exhibits for the purpose of addressing that evidence in detail in its reasons; nor is the Tribunal required to marry up the substantial evidence to each of the separate headings of discrimination alleged by the Complainant in the course of its analysis”: at para. 80. Instead, I can and do address most of the parties’ arguments broadly.

[196] Below, I return to the discrimination analysis and the elements that the Complainants must prove at a hearing. First, I briefly address the College’s argument that the Tribunal is not the proper forum for the Complainants’ allegations.

A. Forum

[197] Under its submissions relating to s. 27(1)(c), the College argues that the Tribunal is an improper forum for deciding the allegations in this complaint. These arguments largely duplicate the College’s submissions related to jurisdiction under s. 27(1)(a), which have since been abandoned. To the extent the College is still pursuing the argument under s. 27(1)(c), I address it here.

[198] The College argues that the Tribunal does not have jurisdiction to review the merits of its decision making or consider allegations of procedural unfairness: citing Madadi v. BC (Ministry of Education), 2012 BCHRT 380; see e.g. para. 106. Of those allegations which I have not already dismissed, the College specifically argues that its handling of Dr. Sood and Dr. Sharma’s disciplinary files were based on a difference in medical opinions that is outside the scope of the Tribunal’s jurisdiction, and that the Complainants’ arguments about procedural issues, like the failure to disclose certain documents on time, are not properly before this Tribunal.

[199] The principles outlined in Madadi are undisputed and largely rely on the Tribunal’s reasoning in Brar v. BC Veterinary Medical Association , 2007 BCHRT 363. In that case, the Tribunal dealt with very similar issues as the parties present here, and summarized some of the relevant principles as follows:

The complainants say that any part of the disciplinary process is subject to review by the Tribunal if there is alleged differential treatment in those processes that were based on a prohibited ground of discrimination. If there has been differential treatment in the BCVMA processes based on a prohibited ground of discrimination, the Tribunal has jurisdiction to deal with this issue. This is at the heart of its specialized expertise. I agree. This does not mean, however, that it has the jurisdiction to determine the fairness of the BCVMA’s hearing processes, or if their decisions made under s. 17 of the Act were correct, only that the Tribunal has jurisdiction to enquire into issues of discrimination which fall under the Code . …

The Tribunal has considered its jurisdiction vis-à-vis complaints raising issues of discrimination that have been processed in other forums. I have no difficulty finding that, in the circumstances of this case, the Tribunal has jurisdiction to review the processing of complaints by the BCVMA, including the appointment of inquiry panels and the nature and extent of the penalties imposed on its members if it is with regard to issues of discrimination under the Code . For example, if complaints being filed by members of the public against Indo-Canadian veterinarians are more vigorously pursued to the next stage than those filed against non-Indo-Canadians, then that might suggest that, in this early stage of the complaint process, there is discrimination based on a protected ground. Further, if inquiry panels are more often convened when the respondent is an Indo-Canadian, or after a hearing, they receive more severe penalties, this might reveal that discrimination was an operating factor. As indicated above, this does not oust the Tribunal’s jurisdiction but might speak to whether it would be appropriate to proceed with hearing any evidence or making any determination regarding discrimination with respect to these individual cases. [at paras. 64 and 67, cited in Madadi at para. 104]

[200] These principles are clear that the Tribunal is the proper forum for deciding allegations of discrimination in the College’s proceedings. The Complainants’ allegations closely track the circumstances outlined above where the Tribunal may consider allegations that the College has discriminated against a registrant. I agree with the College that, absent evidence that a complainant’s protected characteristic was a factor in its conduct, the Tribunal is not the proper forum to review its decision-making or the fairness of its procedures. However, the essence of the Complainants’ allegations here – as in Brar – is that the College’s conduct was tainted by discrimination. The Tribunal is the proper forum for these allegations.

[201] In addition, I can see no purpose served by parsing the Complainants’ allegations to potentially dismiss specific allegations related to process, as the College seems to propose respecting the timeliness of disclosure. This is the type of parsing that the court cautioned against in Byelkova and the Tribunal declined to do in Fraser, because it does not make the proceeding more efficient and creates the prospect for “embarrassing” results: Byelkova at para. 115. Finally, regarding Dr. Sood and Dr. Sharma’s allegations specifically, the College’s submission relies entirely on its argument that it had reasonable grounds for how it handled their complaints. This is highly disputed and does not engage with the Complainants’ submission that the College’s handling of these complaints was tainted by discrimination. I decline to dismiss any of the Complainants’ allegations on the basis that the Tribunal is not the proper forum.

[202] I turn next to whether the College has established that the Complainants have no reasonable prospect of proving the elements of their complaint.

B. Protected characteristics

[203] There is no dispute that the Complainants are protected from discrimination based on their race, place of origin, and colour.

C. Adverse treatment or impact

[204] The College does dispute that the Complainants will be able to prove adverse treatment or impact in respect of some of their allegations. For example, they argue that the Complainants cannot prove that the College treated Dr. Johar adversely regarding the Coupons Complaint – which it delayed for his benefit, or treated Dr. Grewal adversely when it opened a new file to deal with the Medical Records Issue, or that the College treated any of the Complainants adversely when it investigated complaints against them brought by members of the public.

[205] In my view, these arguments take too narrow a view of adverse impact under the Code . All of the Complainants’ allegations arise in the context of the College’s disciplinary proceedings. There is an argument to be made that any investigation or complaint proceeding is adverse to a registrant. The proper focus of the College’s argument is on whether the College is exercising these powers free of discrimination – that is, not unjustifiably based on a registrant’s Code- protected characteristics. This is reflected in statements by the BC Supreme Court and Tribunal which do not focus on whether the College’s disciplinary proceedings are “adverse treatment” or cause “adverse impacts” but rather are free from discrimination. In other words, the focus is on whether there is a nexus between the adverse impact and the complainants’ protected characteristics that cannot be justified: see eg. Brar at para. 14; Bajwa v. British Columbia Veterinary Medical Association, 2011 BCCA 265 at para. 30; Brar et al v. British Columbia Veterinary Medical Association and Osborne, 2007 BCHRT 363 at para. 67 . In addition, and in any event, the Complainants have made substantial arguments, supported with some evidence, that the College treated them adversely in the disciplinary proceedings by, for example, pursuing complaints against the Complainants more vigorously, engaging in procedurally unfair investigations, and seeking disproportionate and unwarranted penalties. I have detailed those allegations above and, in my view, they rise above conjecture.

D. Connection to protected characteristics

[206] This is the most strongly contested element of the Complainants’ case. The College argues that they have no reasonable prospect of proving that any of its conduct was connected to the Complainants’ protected characteristics. It points to evidence that the College accepted the findings in Brar and took steps to comply with the Tribunal’s orders and turn over a new leaf. It points to evidence that it treated the Complainants fairly and that it was the Complainants that made the resolution of certain complaints more challenging than they needed to be, for example by causing delay (ie. Dr. Johar in the SPCA Complaint) or refusing to accept reasonable resolutions (ie. Dr. Johar in the SPCA Complaint, Dr. Sood in the Technician’s Complaint, Dr. Sharma in the Cassie Complaint). Finally, it points to evidence of a complete non-discriminatory explanation for its conduct in responding to complaints filed against the Complainants by members of the public and fulfilling its public interest mandate under the Act.

[207] I agree that, at a hearing, the Tribunal may accept this evidence and conclude the College did not discriminate against the Complainants. However, considering all the evidence before me, I cannot conclude in this preliminary application that this outcome is reasonably certain for all but one outstanding allegation.

[208] For most of the remaining allegations, the Complainants have pointed to some evidence to support their allegation of discriminatory treatment. This evidence is consistent with the type of evidence that the Tribunal found in Brar supported such an inference. It includes evidence about differential treatment with non-Indo-Canadian veterinarians, procedural deficiencies or irregularities, unsupported negative assumptions about the Complainants’ practices, and the involvement of people who were found in Brar to hold discriminatory views of Indo-Canadian veterinarians operating low-cost clinics. I have outlined much of this evidence above. I acknowledge it is contested, but I cannot resolve the parties’ disputes in this application. In my view, it takes all but one of the Complainant’s remaining allegations out of a realm of conjecture. Here I address the parties’ main arguments under s. 27(1)(c) very briefly.

1. Complaint File #16-020: the SPCA Complaint (Dr. Johar)

[209] The College argues that it is reasonably certain to prove that it treated Dr. Johar reasonably and fairly in relation to this complaint, and that his protected characteristics played no role in how the complaint was pursued. It relies on Dr. Johar’s email to the pet owner, which appears to threaten to file a complaint unless the negative Google review was removed, which it says is unethical and would have prompted investigation no matter who the registrant was. It argues that any delays were due to internal staffing issues and unrelated to Dr. Johar’s protected characteristics. In any event, it argues that Dr. Johar contributed to the delay in resolving the complaint and unreasonably refused to complete a simple ethics exam. In these circumstances, it argues that the Complainants have no reasonable prospect of proving that Dr. Johar’s protected characteristics played any role in how the issue was addressed.

[210] The Complainants argue that an inference of discrimination could be drawn from evidence that:

a. The College pursued the complaint even though it did not have the entire record of the pet owner’s original post. The Complainants point to the Tribunal’s analysis of a similar situation in Brar , where it found that this supported a finding that the veterinarian was being targeted for discipline: para. 340.

b. The College pursued the complaint without obtaining highly relevant and exculpatory information, including records of veterinarians who examined the animal or the SPCA which received the report.

c. Dr. Wilkie and Dr. Ubi, who were found in Brar to hold discriminatory views including towards Dr. Johar, participated in the decision-making process.

[211] As I have said, the Complainants’ allegations turn on an inference. There is no direct evidence from any of them that could prove the College discriminated against them. At a hearing, the Tribunal will have to consider all the circumstances to determine whether an inference of discrimination is more likely than the College’s non-discriminatory explanation. For this allegation, the Complainants have pointed to some evidence that could support the inference, which tracks the Tribunal’s analysis of discrimination in Brar. In this circumstance, I cannot find that the allegation is speculative or has no reasonable prospect of success. I deny the application to dismiss this allegation under s. 27(1)(c).

2. Complaint File #16-075: the Coupons Complaint (Dr. Johar)

[212] The College argues that it is reasonably certain to prove that Dr. Johar’s protected characteristics were not a factor in how it addressed the Coupons Complaint. It denies that it treated Dr. Johar any differently than other veterinarians. It says it investigated another registrant reported by Dr. Johar and resolved that file on the same terms offered to him. It says that it did not pursue Dr. Johar’s later complaints against other veterinarians because, when they were filed, it was contemplating the changes to its marketing guidelines. It says it asked Dr. Johar to comply with its marketing guidelines, as it had done for other veterinarians, but he unreasonably refused to do so. It argues that it delayed resolving the issue to give Dr. Johar the benefit of new guidelines, which resulted in the closing of the complaint. In any event, it says Dr. Johar has no reasonable prospect of proving that the resolution of this complaint was “prolonged”, in circumstances where it was dismissed in seven months.

[213] The Complainants dispute some of the critical facts about this allegation. Specifically, they dispute the College’s example of treating another veterinarian in the same way; they say that complaint was actually about advertising and not coupons. They further assert that Dr. Johar filed three coupon-related complaints which the College did not pursue, which pre-dated the Coupons Complaint against him by three months. In my view, these are important and disputed facts that I cannot resolve in this application. If the Complainants’ evidence were accepted at a hearing, it could support a finding of differential treatment which, in turn, could support a finding of discrimination. The Complainants have taken this allegation out of the realm of conjecture. I deny the application to dismiss this allegation under s. 27(1)(c).

3. Complaint File #16-068 (Dr. Sharma)

[214] The College argues that the Complainants have no reasonable prospect of proving that Dr. Sharma’s protected characteristics were a factor in how it addressed the Cassie Complaint. It says it had non-discriminatory reasons to call into question Dr. Sharma’s competency in treating Cassie. It argues that none of the Complainants’ comparative examples are equivalent. It says that this complaint was only escalated to a citation because Dr. Sharma refused to negotiate a reasonable resolution, which most other registrants do.

[215] This allegation turns on disputed facts about whether Dr. Sharma’s treatment of Cassie merely reflected a conservative approach or properly raised questions of competence. On the Complainants’ theory of the case, the College’s assessment was so unreasonable that it supports an inference of discrimination. They have pointed to evidence that the College treated another non-Indo Canadian veterinarian more leniently in equivalent circumstances. It would be open to the Tribunal to find, contrary to the College’s argument, that these circumstances were equivalent and that the differential treatment supports an inference of discrimination. The Complainants further point to the First and Second Inspector Memos as evidence that the College was taking an adversarial approach to the issue. They point to alleged errors and omissions in the inspectors’ summary of critical facts, as well as passages in the Second Memo which they characterise as argumentative, critical, and speculative. Finally, they point to the involvement of Dr. Wilkie and Dr. Ubi. They cite Dr. Wilkie’s negative comments about Dr. Johar and “his group” as evidence that her conduct was tainted with discriminatory bias. Regarding Dr. Ubi, they cite the Tribunal’s findings in Brar that Dr. Ubi participated in “racist, distasteful, and extremely inappropriate discussions” about Dr. Bhullar: para. 184. Considered together, these arguments, supported by evidence in the record, are enough to take this allegation out of the realm of conjecture. I deny the application to dismiss this allegation under s. 27(1)(c).

4. Complaint File #17-013 (Dr. Sood)

[216] The College argues it is reasonably certain to prove that Dr. Sood’s protected characteristics were not a factor in its decision to seek further information about, and pursue, the Technician’s Complaint. It argues that the complaint was only escalated because Dr. Sood unreasonably refused to accept a simple resolution to read and summarize four articles.

[217] The Complainants argue that the College’s pursuit of this complaint, based on unreliable and untested information, was similar to behaviour that the Tribunal found in Brar supported an inference of discrimination: para. 339. They point to evidence that neither of the Technician’s complaints were true, and that the College used the complaint as an excuse to pry into Dr. Sood’s practice in circumstances where the guinea pig’s owner never complained and there was no reliable evidence she had done anything wrong. They point to Dr. Wilkie’s notes that speculate Dr. Sood’s medical records are a lie, which they say reflects the suspicious attitude that the Tribunal found in Brar to be evidence of discrimination. They argue that this is evidence of a more proactive, prosecutorial approach to regulating Dr. Sood than the College undertakes in respect of its registrants who are not Indo-Canadian and operating low cost clinics.

[218] I am satisfied that this allegation turns on important contested issues of fact. The Complainants’ evidence is capable of supporting their arguments and takes them out of a realm of conjecture. I deny the application to dismiss this allegation under s. 27(1)(c).

5. Complaint File #17-009: the Benson Complaint (Dr. Grewal)

[219] The College argues that it is reasonably certain to prove a non-discriminatory explanation for how it resolved the Benson Complaint. It says the evidence will establish that Dr. Grewal required training in anesthesia.

[220] The Complainants dispute that there was any reasonable basis to conclude that Dr. Grewal’s conduct contributed to Benson’s death. In his affidavit, Dr. Grewal asserts that the death was not related to any anesthetic error on his part. In support of this argument, the Complainants point to the fact that no necropsy was ever performed, and the dog died a day after surgery. In addition, they argue that there is no evidence that the College has ever imposed similarly onerous restrictions on any other veterinarian. They point to communications from the trainer working with Dr. Grewal under the terms of the RAC, which do not identify any specific issues with his practices or protocols. They say that the Tribunal could draw an inference of discrimination based on the College’s pursuit of onerous restrictions on Dr. Grewal’s practice in circumstances that were unwarranted, which they say is an example of treating Dr. Grewal more harshly than non-Indo Canadian veterinarians who do not operate low-cost animal hospitals.

[221] In my view, the Complainants have pointed to enough evidence to bring this allegation out of a realm of conjecture. I cannot conclude they have no reasonable prospect of proving a connection between Dr. Grewal’s protected characteristics and how the College resolved the Benson Complaint. I deny the application to dismiss this allegation under s. 27(1)(c).

6. Complaint File #17-034: the Medical Records Issue (Dr. Grewal)

[222] I reach a different conclusion about the Medical Records Issue involving Dr. Grewal.

[223] The College argues it is reasonably certain to prove that it pursued the medical records issue based on reliable information it had gathered indicating that Dr. Grewal’s medical record keeping and transfer practices were deficient, and his protected characteristics played no role. It has submitted evidence supporting the non-discriminatory genesis and basis for its concerns. This includes the records from its investigators, containing reports from other veterinarians about ongoing challenges obtaining medical records from Dr. Grewal. It also includes the findings of the inspector, as part of the investigation into the Bosley Complaint, that other hospitals had requested medical records from Dr. Grewal’s hospital three times, and those records were either not received, or were received late and incomplete. The College has submitted the inspector’s notes of subsequent conversations with the other veterinarians, which record that they reported chronic records transfer problems from Dr. Grewal’s hospital. The College says that it opened the Medical Records Issue complaint file to benefit Dr. Grewal, to ensure the issue was addressed without unnecessary involvement of pet owners. Subsequently, in its investigation into the Benson Complaint, the inspector indicated there was no anesthetic record or written chart for Benson. In its regular inspection of Dr. Grewal’s practice, unrelated to any complaint, the inspector also noted deficiencies in Dr. Grewal’s medical records. In her affidavit, the CEO says that the College considered the issues with Dr. Grewal’s medical records to be a serious and urgent issue and all efforts were made to avoid extraordinary action under s. 65 of the Act.

[224] The Complainants’ arguments about these allegations are extensive, and rely heavily on their assertions that the College acted unfairly and/or outside the proper bounds of the Veterinarians Act and bylaws. They argue that the Tribunal could draw an inference of discrimination based on the College’s “willingness to believe the allegations, and to take significant additional investigative steps” in the absence of a complaint from a pet owner or giving Dr. Grewal an opportunity to respond. They say this is reminiscent of patterns found in Brar to indicate discrimination. They also argue that the Tribunal could draw an inference of discrimination based on the fact that Dr. Grewal worked for many years with Dr. Jagpal, a complainant in Brar, and that Dr. Ubi and Dr. Wilkie participated in decision making about Dr. Grewal.

[225] There are two main difficulties with the Complainants’ arguments.

[226] First, there is no evidence disputing the non-discriminatory basis for the College’s concerns. In his affidavit, Dr. Grewal refers to “allegations that I did not consider true” but does not specifically dispute the issues that the College identified with his medical records practice. This distinguishes the allegations, for example, about the SPCA Complaint, Cassie Complaint, the Technician’s Complaint, and the Benson Complaint, where the Complainants have at least pointed to some evidence disputing the non-discriminatory explanation for the College’s conduct. Rather, the Complainants’ most vigorous arguments are about the process the College undertook to address the issue, including opening a separate file and relying on information gathered in files that were closed.

[227] This brings me to the second difficulty with the Complainant’s argument. It relies heavily on counsel’s assertion that certain of the College’s actions are “highly unusual”, “extreme”, “high handed” and “illegal”, without identifying an evidentiary basis for these assertions. It is not clear to me why a regulator would not pursue an issue that has come to its attention regarding how a registrant maintains and transfers medical records. It is equally unclear to me why a regulator could not consider a history or pattern of behaviour, no matter how it learns of that history. Most significantly for the purpose of the issue before me here, these assertions alone could not, at a hearing, support an inference of discrimination.

[228] Unlike the other allegations I have addressed above, there is no evidence that could support a finding that the College was treating Dr. Grewal differently than other veterinarians in similar circumstances, or pursuing allegations without considering exculpatory information or in the absence of a reasonable, non-discriminatory, basis for concern. Beyond the general assertion that Dr. Wilkie and Dr. Ubi were involved in some of the decision making, there is no evidence that they played any significant role in the College’s approach to the issue, or that their views were driving the College’s conduct – contrasted, for example, with Dr. Wilkie’s alleged role in the Technician’s Complaint. The Tribunal’s decision in Brar does not create a presumption of discrimination any time the College investigates Indo-Canadian veterinarians operating low-cost clinics. The College has persuaded me that it is reasonably certain to prove it acted based exclusively on non-discriminatory concerns about Dr. Grewal’s practices regarding the maintenance and transfer of medical records. In this situation, the Complainants have no reasonable prospect of proving that Dr. Grewal’s protected characteristics were a factor in how it dealt with the Medical Records Issue. That allegation is dismissed under s. 27(1)(c).

7. Complaint File #18-025: the Lucho Complaint (Dr. Grewal)

[229] The College did not make specific arguments about the Lucho Complaint under s. 27(1)(c) and so I do not consider these allegations further.

E. Summary: Application to dismiss under s. 27(1)(c) is denied

[230] I grant the College’s application to dismiss Dr. Grewal’s allegations about the Medical Records Issue under s. 27(1)(c). I deny the College’s application to dismiss the Complainants’ allegations about the SPCA Complaint (Dr. Johar), the Coupon Complaint (Dr. Johar), the Technician’s Complaint (Dr. Sood), the Cassie Complaint (Dr. Sharma), the Benson Complaint (Dr. Grewal), and the Lucho Complaint (Dr. Grewal).

VII DOES PROCEEDING WITH DR. SOOD AND DR. GREWAL’S COMPLAINT FURTHER THE PURPOSES OF THE CODE?

[231] Section 27(1)(d)(ii) of the Code allows the Tribunal to dismiss a complaint where proceeding with it would not further the purposes of the Code . These purposes include both private and public interests: s. 3. Deciding whether a complaint furthers those purposes is not only about the interests in the individual complaint. It may also be about broad public policy issues, like the efficiency and responsiveness of the human rights system, and the expense and time involved in a hearing: Dar Santos v. UBC , 2003 BCHRT 73 at para. 59 , Tillis v. Pacific Western Brewing and Komatsu , 2005 BCHRT 433 at para. 15, Gichuru v. Pallai (No. 2) , 2010 BCHRT 125 at paras. 113-118.

[232] In this case, the College argues that it would not further the Code’s purposes to allow the allegations of Dr. Sood and Dr. Grewal to proceed because it made a reasonable settlement offer to resolve these allegations: Carter v. Travelex Canada , 2007 BCHRT 275 at para. 23-25, upheld in 2009 BCCA 180 .

[233] There are two pre-requisites for the Tribunal to consider dismissing a complaint based on a reasonable settlement offer. First, the settlement offer must be made “with prejudice” because the Tribunal cannot rely on information about settlement discussions that is inadmissible based on privilege: Dar Santos at para. 64; Carter at para. 25. Second, the offer must remain open for the complainant’s acceptance regardless of the outcome of the application to dismiss: Issa v. Loblaw , 2009 BCHRT 264 at para. 35. Both pre-requisites are met in this case.

[234] Next, to determine whether it furthers the purposes of the Code to proceed, the Tribunal considers two things. First, it determines whether the offer is reasonable. Generally, it will not further the purposes of the Code to proceed where the respondent has made a reasonable, with prejudice, settlement offer: Dar Santos at para. 59. Second, even if the offer is reasonable, the Tribunal may consider whether there are other factors that weigh in favour of proceeding with the complaint, applying the purposes set out in s. 3 of the Code .

[235] In assessing whether the offer is reasonable, the Tribunal assumes that the complainant will prove their allegations and considers what the Tribunal would likely order. The offer does not need to mirror exactly what the Tribunal would order: Carter at para. 30. It is not always necessary for a respondent to admit liability : Frick v. University of British Columbia , 2009 BCHRT 85 at para. 54. However, the offer must fully address the allegations and available remedies, both monetary and non-monetary. The Tribunal will consider:

· Whether the respondent’s remedial actions adequately remedied the alleged violation and are consistent with the types of orders the Tribunal might make if the complaints were successful; and

· Whether the monetary settlement offered is within the reasonable range that the Tribunal might award if found the complaint was justified.

See Issa at para. 35

[236] The College offered to settle each of Dr. Sood and Dr. Grewal’s allegations in exchange for a payment of $5,000 in a lump sum as damages for injury to their dignity, feelings, and self-respect: Code, s. 37(2)(d)(iii). In exchange, the College proposed that Dr. Sood and Dr. Grewal would withdraw their complaints and execute a release of all claims, including a confidentiality and non-disparagement clause. The College argues that this proposed settlement is reasonable and consistent with what the Tribunal would order if Dr. Sood and Dr. Grewal’s allegations were successful.

[237] The Complainants argue that the College’s offer does not address the allegations and is not within the reasonable range of what the Tribunal might order. I agree.

[238] First, in this complaint, the Complainant have joined collectively to make allegations of systemic discrimination. They assert that this discrimination is revealed by the cumulative consideration of their experiences with the College. I agree with the Complainants that “Peeling away two complainants through payment to them of minor awards would threaten to unravel the underlying narrative of the complaint, which deals with pervasive discrimination against a particular group”. This undermines, rather than furthers, the Code’s purpose of identifying and eliminating persistent patterns of inequality: s. 3(d). To support dismissing part of the complaint, a reasonable settlement offer must address the systemic aspect of the complaint. This one does not.

[239] Second, Dr. Sood and Dr. Grewal have each alleged discrimination by their regulator over several years. The College have not cited any cases or made arguments to explain their assertion that an award of $5,000 award is within the range of what the Tribunal might order if the complaint is justified. The Complainants, on the other hand, point to the Tribunal’s remedial orders in Brar. The monetary orders for injury to dignity ranged from $2,000 to $30,000. In addition, the Tribunal made non-monetary orders to remedy discrimination. The College’s offer does not include any offer to remedy what the Complainants say have been negative impacts on Dr. Sood and Dr. Grewal’s income, expenses they say they’ve incurred by discrimination, or the non-monetary orders they are seeking. In this circumstance, I cannot conclude that the proposed remedy reflects what Dr. Sood and Dr. Grewal may be awarded if their allegations succeed.

[240] Third, the Complainants say, and I agree, that the expectation of confidentiality does not remedy the discrimination or further the purposes of the Code. The offer does not specify what the terms of a proposed confidentiality agreement would be. To the extent it would extend to the underlying allegations in the complaint, it is not consistent with the remedies the Tribunal would order. Nor is it consistent with the Code’s purposes for the Tribunal to compel complainants to accept an offer that requires them to keep allegations of discrimination confidential. The College has not explained how this aspect of its offer remedies the alleged discrimination or obviates the need for a Tribunal hearing. In my view, it does not.

[241] I deny the application to dismiss Dr. Sood and Dr. Grewal’s allegations under s. 27(1)(d)(ii).

VIII DID THE COMPLAINANTS BRING THEIR COMPLAINT IN BAD FAITH?

[242] The Tribunal may dismiss a complaint that was filed for improper motives or in bad faith: Code, s. 27(1)(e). Dismissal under this section requires a finding of wrongdoing: Mokhtari v. Hain-Celestial Canada and others , 2007 BCHRT 196 at para. 7. This is a difficult standard to meet on a preliminary application, where parties are not subject to cross-examination. The Tribunal exercises its discretion under s. 27(1)(e) “cautiously, and only in the clearest of cases”: Lungo v. British Columbia (Children and Family Development) (No. 2), 2011 BCHRT 341 at paras. 19–21, upheld by BCSC (oral reasons, February 20, 2014 [unreported]). The Tribunal rarely dismisses complaints on this basis: Yaniv v. Various Waxing Salons, 2019 BCHRT 222 at para. 104.

[243] To establish an improper motive or bad faith, a respondent must do more than present a different version of events and say the complainant is wrong: Crosby v. Dairyland Fluid Division Ltd. and others , 2004 BCHRT 1 at para. 35. They must show that the complainant did not have an honest belief that the Code was violated, or was motivated by some “ulterior, deceitful, vindictive, or improper” purpose that is inconsistent with the Code : Stopps v. Just Ladies Fitness (Metrotown) and D. (No. 2) , 2005 BCHRT 359 at para. 13. This issue is assessed objectively, because it is rarely possible to know the mind of the complainant: Johnson v. Cheng and another , 2012 BCHRT 408 at para. 57.

[244] The College argues that the Complainants have brought this complaint in bad faith and for the improper purpose of damaging its reputation and financial circumstances. It argues that the Complainants have made vague, speculative, misleading, and false allegations. It argues that the Complainants improperly blame the College for issues of delay and the escalation of disciplinary proceedings, which they are responsible for. It says that the Complainants have generated negative media attention against the College and are generally attempting to “generate a story of continued, sustained racism against Indo-Canadian veterinarians and have put forth baseless and unreasonable claims in order to do so”. The College makes specific arguments about each of the veterinarians, which generally relate to the merits of their allegations.

[245] The Complainants deny that they are bringing the complaint for improper motives or in bad faith. They argue there is a factual basis for their allegations, and that they are not responsible for the negative media attention that the College has faced.

[246] I cannot find in this preliminary application that the Complainants filed their complaint for improper motives or in bad faith. There is no direct evidence to support a finding that the Complainants’ overriding motive is improper or in bad faith: Lungo at para. 21. The College clearly disputes the basis for the allegations. However, I cannot resolve that dispute in this application. Above, I have declined to dismiss many of the allegations on the basis that they have no reasonable prospect of success. The College has not persuaded me that this is one of the rare cases where the evidence allows me to conclude, on a preliminary basis, that the complaint was filed for improper motives or in bad faith. This part of their application is denied.

IX CONCLUSION

[247] I dismiss the allegations of discrimination relating to:

a. Failure to comply with Brar orders (Dr. Johar);

b. Complaint File #16-014: the Dr. Dhalio Complaint (Dr. Johar);

c. Complaint File #14-037: the Bailey Complaint (Dr. Grewal);

d. Complaint File #15-102: the Sushi Complaint (Dr. Grewal);

e. Complaint File #17-034: the Medical Records Issue (Dr. Grewal); and

f. Complaint File #13-013A: the Advertising Complaint (Dr. Johar).

[248] The College’s application to dismiss allegations relating to the following complaint processes is denied:

a. Complaint File #16-020: the SPCA Complaint (Dr. Johar);

b. Complaint File #16-075: the Coupons Complaint (Dr. Johar);

c. Complaint File # 16-068: the Cassie Complaint (Dr. Sharma);

d. Complaint File #17-013: the Technician’s Complaint (Dr. Sood);

e. Complaint File #17-009: the Benson Complaint (Dr. Grewal); and

f. Complaint File #18-025: the Lucho Complaint (Dr. Grewal).

This is not a prediction that the complaint will be successful; it is simply a decision that the allegations warrant a hearing.

[249] The complaint will be scheduled for hearing. In the meantime, I strongly urge the parties to work towards a mediated resolution.

Devyn Cousineau

Vice Chair


[1] In their original dismissal application, the College also sought dismissal of the complaint because it was outside the Tribunal’s jurisdiction: s. 27(1)(a). It withdrew this part of its argument in reply. The College also originally sought dismissal of the complaint against an individually named respondent. This argument was rendered moot because the Complainants subsequently withdrew the complaint against the individual respondent.

[2] The College did not make submissions about how I should assess the timeliness of allegations within each disciplinary process. In my analysis, I take the Complainants’ proposed approach, which is to treat the Complainants’ allegations regarding each disciplinary file as a separate continuing contravention. In doing so, I accept that the allegations regarding the College’s conduct within each process is continuous and connected within that process. For example, the allegations about the SPCA Complaint begin in April 2016, when the College opened a complaint file, and extend until June 2018, when the Complainants filed their amended human rights complaint and the SPCA Complaint remained outstanding.