Tribunal chastises ministry for disciplinary action

Thursday, July 28, 2011

by SUSAN MANN

Ontario’s agriculture ministry must return drugs, documents and personal items officials confiscated from a retired veterinarian’s farm sometime after he had already voluntarily quit the livestock medicines licensing system.

That’s one of the rulings issued by the Ontario Agriculture, Food and Rural Affairs Appeal Tribunal in an appeal launched by Dr. Ken Allan of Perth in eastern Ontario. In its written decision issued July 15, the tribunal also ruled if any of the medicines taken by officials in the summer of 2010 have expired or were destroyed the ministry must compensate Allan for them.

Allan valued the seized livestock medicines at $15,000, the decision states. Ministry officials also took his grandfather’s practicing bag, which has sentimental value, plus a lot of paperwork.

The tribunal also accepted that Allan voluntarily quit the licensing system before his license was suspended or revoked and ordered the ministry not to consider his resignation negatively should he reapply for a license.

Allan, 72, says he can’t comment on the tribunal’s decision because he has additional legal matters pending against him that could take four to five years to resolve.

Asked if the ministry will appeal the tribunal’s decision, spokesperson Elizabeth McClung said they’re still reviewing it. “We can’t comment on any of the actions within the decision.”

The tribunal decision chastised the ministry for its handling of the matter. It found that Allan, who obtained a license under the Livestock Medicines Act on Jan. 8, 2010 after he had retired from being a veterinarian four months earlier, wasn’t fully compliant with the act in the spring of 2010 but the ministry also didn’t follow its own established policy.

“The tribunal finds the ministry’s continued persistence with regard to Dr. Allan troubling and inconsistent with the ministry’s standard practice,” the decision states.

Allan failed two inspections in March 2010 and the tribunal was told he should have been sent a warning letter explaining the problem, notifying him that his license could potentially be revoked and what options are available to fix the situation. “The tribunal finds that “a major procedural error took place when the warning letter was not sent to Dr. Allan advising him of the deficiencies and giving him the opportunity to correct the deficiencies,” the decision states.

Even though there was some discrepancy about the date Allan quit the licensing system, the tribunal said the date wasn’t an issue. But it did accept Allan’s testimony that he quit on or before May 10, 2010 so when a ministry official approached his vehicle at the Ottawa Livestock Exchange on that date and wanted to inspect it, Allan refused. The tribunal found Allan’s behavior consistent with a person who had already quit the system “and now felt harassed by an official enforcing a licensing system to which he believed he no longer belonged.”

Allan testified he was angry that day because his pharmaceutical supplier called him at the end of March 2010 and informed him he couldn’t buy drugs anymore because he wasn’t a practicing veterinarian. Allan told the ministry official he thought they called the supplier and advised it not to sell drugs to him anymore.

There wasn’t any physical evidence of livestock medicines in Allan’s truck at the Ottawa exchange other than photos taken by a ministry official of boxes with blankets over them. The tribunal didn’t accept that as reasonable and probable grounds there were livestock medicines in the boxes. Allan testified he stopped selling livestock medicines as of March 16, 2010.

The tribunal also found the May 14, 2010 letter the ministry sent to Allan informing him that his license was provisionally suspended and that his livestock medicines would be seized on the grounds of animal health and safety to be both inaccurate and inappropriate. “It is simply not logical to suspend a license which no longer exists,” the decision states.

It added that the letter should have acknowledged Allan’s voluntary withdrawal from the licensing system.

The ministry telling Allan in the letter his license would be suspended due to concern for animal health and safety “is also without grounds in the finding of the tribunal.” The only evidence of improper storage of livestock medicines was the failed inspection of March 16, 2010.

If the ministry was truly concerned about animal health and safety involving Allan’s license it should have acted on March 16, 2010 when he failed the inspection, the decision states. The tribunal found it unreasonable for the ministry to wait two months then send Allan a letter saying it was concerned about animal safety.

About the seizure of Allan’s livestock medicines, the tribunal says in its written decision the instructions to take them were “made without reasonable or probable grounds.”

The ministry held a hearing on July 7, 2010 to determine if Allan’s license should be revoked. Allan didn’t attend. Ministry officials revoked his license but the tribunal says in its written decision the ministry shouldn’t have proceeded because a hearing can’t be held to revoke something that doesn’t exist. BF