[1] This is an appeal from a decision of the Federal Court ((2004), 236 F.T.R. 303), which allowed a judicial review of a decision of an adjudicator cancelling the authority of the respondent Robert Fetherston to perform duties and functions as an accredited veterinarian under the Health of Animals Act, R.S. 1990, c. 21.

FACTS

[2] By agreement effective March 29, 2001, veterinarian Robert Fetherston was authorized, for a period of three years, to perform certain duties and functions for the Canadian Food Inspection Agency ("the Agency"), including the inspection and certification of horses for export to the United States. By Veterinary Health Certificate for the Export of Horses to the United States of America dated July 4, 2001, Dr. Fetherston certified that he had inspected a horse named "Yankee Leader" on July 3, 2001, at McIntosh Stables near Windsor, Ontario, and that the horse was in good health. In fact, Dr. Fetherston had not inspected Yankee Leader on July 3, 2001, as that horse had been transported to Michigan State University on July 2, 2001, and did not return to Canada until July 16, 2001.

[3] There is no dispute that Dr. Fetherston issued the Veterinary Health Certificate without having inspected Yankee Leader.

[4] The matter came to the attention of Dr. Caroline Small, District Veterinarian, Windsor District, who conducted an investigation. As a result of a report prepared by her, by letter dated October 19, 2001, Dr. Jim Clark, Program Specialist, Animal Health & Protection Program, Ontario Area, Canadian Food Inspection Agency, advised Dr. Fetherston that, effective October 19, 2001, at 4:00 p.m., his Agency accreditation was suspended. In that letter, Dr. Clark advised Dr. Fetherston that the Agency proposed to cancel his accreditation to perform functions and duties for the Agency and that a hearing would be held on November 2, 2001, at 10:00 a.m., at which time Dr. Fetherston would be given an opportunity to be heard in connection with the proposed cancellation of his accreditation. At the request of Dr. Fetherston's counsel, the hearing was postponed to November 27, 2001.

[5] The hearing was conducted by Dr. J.E. Wilson as adjudicator. Dr. Wilson was Dr. Clark's immediate superior at the Agency.

[6] By decision dated November 29, 2001, Dr. Wilson ordered the cancellation of Dr. Fetherston's authority to perform duties and functions as an accredited veterinarian for the Agency and that the College of Veterinarians of Ontario be notified of the cancellation.

[7] By application to the Federal Court dated December 20, 2001, Dr. Fetherston sought judicial review of Dr. Wilson's decision. By order dated July 4, 2003, the judge allowed the application for judicial review, remitted the matter to the Agency for redetermination and ordered that the College of Veterinarians of Ontario be provided with a copy of the judge's order and reasons.

[8] The judge's reason for allowing the judicial review was based on a finding of a reasonable apprehension of bias. Dr. Wilson was the immediate superior of Dr. Clark, who had suspended Dr. Fetherston. Dr. Clark asked Dr. Wilson to be the adjudicator and presented the case for cancellation before Dr. Wilson. It appears that in the judge's view, these facts gave rise to a reasonable apprehension of bias.

[9] Although the judge expressed concern about the informality of the procedure before Dr. Wilson, he made no finding of a breach of the duty of procedural fairness on this account. Although he based his decision on reasonable apprehension of bias, he also said that, had he been required to do so, he would have found Dr. Wilson's reasons to be so deficient as to result in a reviewable error because Dr. Wilson provided no explanation for preferring the evidence against Dr. Fetherston over that in his favour.

STATUTORY AND CONTRACTUAL SCHEME

[10] Section 34 of the Health of Animals Act provides that the Minister may enter into agreements with qualified persons to perform duties and functions that the Minister may specify, on such terms and conditions as the Minister may specify. Section 34 provides:

34. For the purposes of this Act, the Minister may enter into an agreement with any qualified person to perform such duties or functions as the Minister may specify, on such terms and conditions as the Minister may specify.

34. Le ministre peut, pour l'application de la présente loi, conclure un accord avec toute personne compétente pour l'exercice, aux conditions qu'il précise, de certaines fonctions.

[11] The Health of Animals Regulations, SOR/91-525, provide that an accredited veterinarian is a person authorized to perform duties and functions under an agreement made under section 34 of the Act. Section 2 of the Regulations provides:

2. In these Regulations,

"accredited veterinarian" means a veterinarian who is authorized to perform certain duties or functions under an agreement made under section 34 of the Act.

2. Dans le présent règlement, « _vétérinaire accrédité_ » Vétérinaire autorisé à exercer certaines fonctions conformément à un accord conclu aux termes de l'article 34 de la Loi.

[12] An Accredited Veterinarian Agreement with an effective date of March 29, 2001, which Dr. Fetherston signed, was such an agreement. Section 10 of the Agreement provides that an accredited veterinarian shall not sign or issue any document unless it accurately records the results of any test or inspection performed or required to be performed and that in the case of an export health certificate, the accredited veterinarian must fully perform all inspections and tests required. Section 10 provides:

10. Accredited veterinarians shall not sign, issue, or allow any document bearing their name to be used unless it is fully completed, legible and accurately records the results of any examination, test or inspection performed or required to be performed, in respect to the document, including the name of the owner, the type, result, date, and location of any and all inspections, tests or treatments conducted, and clearly identifies the animal or product to which it applies. In the case of an export health certificate, the accredited veterinarian must fully perform all the inspections and tests required.

[13] Section 14 provides that the authority of an accredited veterinarian to perform duties and functions may be suspended or cancelled for failure to comply with the Agreement and may result in the Agency forwarding a complaint with respect to the non-compliance to the provincial licencing body under which the individual is licenced to practise. Section 14 provides in relevant part:

14. An individual's authority to perform duties and functions as an accredited veterinarian may be suspended or canceled [sic] at any time for failing to comply with the terms and conditions of this agreement and may result in a complaint, with respect to the non-compliance being forwarded to the provincial licensing body under which the individual is licenced to practise. ...

[14] The Court was not informed of any other relevant statutory, regulatory or contractual provisions and, in particular, no statutory or regulatory procedural requirements pertaining to the suspension or cancellation of an Agreement between the Agency and an accredited veterinarian.

STANDARD OF REVIEW

[15] The issues in this case are solely confined to the fairness of the adjudication procedure. In his reasons, the judge appears to have determined that as to issues of fact, the standard of review was reasonableness simpliciter. At paragraph 22, he stated:

Neither counsel addressed in their written submissions the question of standard of review. When that issue was raised by the Court at the beginning of the hearing and the Court suggested that, against a "pragmatic and functional" analysis, the appropriate standard should be reasonableness simpliciter as to issues of fact, neither counsel disagreed.

[16] Procedural fairness questions are not subject to a pragmatic and functional analysis. The courts are to provide the legal answer to such questions (see CUPE v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100 per Binnie J.). On this appeal, the question is whether the judge was correct in his determination of reasonable apprehension of bias and if not, whether there were other defects in the adjudication procedure.

REASONABLE APPREHENSION OF BIAS

Did the cancellation decision have to be made by an independent tribunal?

[17] There is no doubt that there is a duty of procedural fairness on the adjudicator in conducting an adjudication that could lead to the cancelling of a veterinarian's accreditation. In the decision of Murray v. Canada (Minister of Agriculture), [1991] F.C.J. No. 1324 (Q.L.), Strayer J. (as he then was) expressed the view that the process at issue in this type of case was one that required adherence to principles of procedural fairness. I agree with that finding.

[18] However, a finding that a duty of procedural fairness exists does not determine what specific requirements will be applicable in a given situation. The content of procedural fairness is variable and its content is to be determined in the specific context of each case (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 21 per L'Heureux-Dubé J.). In Baker, L'Heureux-Dubé set forth a non-exhaustive list of factors that are helpful in determining what is required by the common law duty of procedural fairness in a given set of circumstances. In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at paragraphs 114-121, the Supreme Court applied the factors identified by L'Heureux-Dubé in Baker.

[19] First, how close is the administrative process to the judicial process? The closer the process, the more likely it is that procedural protections closer to a trial model will be required (see Baker at paragraph 23).

[20] The adjudicator was to consider whether Dr. Fetherston's actions breached any of the terms and conditions of the contract and if so, the consequences that he considered should flow from that breach. The decision is of a serious nature. However, there is very little legal content to the decision and ultimately, it is one to which discretion attaches. These considerations imply neither strong nor weak procedural protections (see Suresh at paragraph 116).

[21] A second factor is the nature of the statutory scheme. The adjudication arises out of an alleged breach of a contract, not pursuant to any statutory provision. In Suresh, significant statutory protections under one provision of the Immigration Act, R.S.C. 1985, c. I-2, signalled to the Court the requirement for strong common law procedural protections where the Act was silent (at paragraph 117). There is no such contrast in the Health of Animals Act. In Baker, L'Heureux-Dubé J. said that greater procedural protection is required when a decision is determinative of the issue and further requests cannot be submitted (at paragraph 24). Here, there is no applicable privative clause and judicial review is available. This second factor points in the direction of weaker procedural safeguards.

[22] A third factor is the importance of the decision to the individual. Cancellation of an accreditation means that the veterinarian is precluded from performing duties and functions for the Agency. The balance of the term of the Agreement was approximately two and a half years. There is no evidence of the importance to Dr. Fetherston of being an accredited veterinarian in terms of his ability to earn a livelihood. The cancellation itself does not preclude him from continuing his profession. Barring some action by the College of Veterinarians of Ontario, it would be open to Dr. Fetherston to reapply to become an accredited veterinarian after a period of some eleven months.

[23] I do not ignore the fact that Dr. Wilson's decision was to be forwarded to the College of Veterinary Surgeons of Ontario and that action might be taken by the College that would affect Dr. Fetherston's practice of veterinary medicine. Therefore, the Agency must be careful in the way it deals with the cancellation of an accreditation. However, there is no evidence as to what action the College might take. In Murray, Strayer J. expressed the view that Dr. Murray's professional body would address the whole issue anew and would not automatically accept a decision of the Department of Agriculture as being conclusive of professional matters within the jurisdiction of his profession. The College of Veterinarians of Ontario is an independent body and there is no indication that it would automatically accept Dr. Wilson's decision as being conclusive of Dr. Fetherston's right to practise his profession.

[24] Counsel for Dr. Fetherston expressed the concern that the matter decided by Dr. Wilson would be considered res judicata by the College. However, the question of cancellation of accreditation will not be redetermined by the College. Further, the parties are not the same. Therefore, I do not think the doctrine of res judicata is applicable in these circumstances (see [1975] 2 S.C.R. 248">Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at page 254).

[25] The importance of the decision to Dr. Fetherston is a factor pointing to increased requirements of procedural fairness. However, it does not raise the requirements to the level applicable when the right to continue in one's profession is at stake.

[26] A further consideration cited in Baker is the legitimate expectation of the person challenging the decision (at paragraph 26). However, there is no evidence here that the adjudication process was in contravention of any representations made by the Agency to Dr. Fetherston.

[27] A fifth consideration is the choice of procedure made by the Agency, especially where the statute is silent. Here the process is ad hoc and is not one in which there is an existing adjudicative structure. The statute has left it to the Agency to choose its own procedure.

[28] In Murray, although Strayer J. found that there was a duty of fairness in respect of the conduct of such an adjudication, he did approve the choice of an employee of the Agency as an adjudicator and rejected the requirement for an independent tribunal:

As I have said, I don't think that this kind of a hearing should be approached as if it is a trial in the Court of Queen's Bench in Saskatchewan, nor in fact a trial in any court, given the nature of the respective interests at stake and the importance to the public interest, both public health and economic concerns. It seems to me quite acceptable that a person in the position of Mr. Amundson should be making the decision, and the question of cancelling accreditation for departmental purposes should not be approached as if it's a matter which has to be tried before some independent tribunal ...

Weighing the Baker considerations, I see no reason why a different conclusion should be reached in this case.

The proximity of the relationship between Dr. Wilson and Dr. Clark

[29] Dr. Fetherston's complaint is based on the proximity of the relationship between Dr. Clark and Dr. Wilson. He says it is that proximity that gives rise to the apprehension of bias.

[30] Dr. Clark suspended Dr. Fetherston. He asked Dr. Wilson to adjudicate the matter of cancellation. He presented the case for cancellation of the Agency's Agreement with Dr. Fetherston before Dr. Wilson. Dr. Wilson was his immediate superior. Does this proximity create a reasonable apprehension of bias, having regard to the level of procedural fairness requirements applicable in the circumstances?

[31] Absent statutory authority, normally no one should be a judge in his own cause (see Brosseau v. Alberta (Securities Commission), [1989] 1 S.C.R. 301 at 309). There was no evidence that Dr. Clark was involved in Dr. Wilson's decision-making process. On the contrary, the evidence is that Dr. Wilson did not have any of the facts before the hearing. Dr. Clark avers in his affidavit filed in the Federal Court:

The adjudicator had no knowledge of any of the facts of the case before the hearing. Before the hearing, I spoke to him twice about it to determine his availability for hearing dates. He advised me during one of those calls that he was aware of the name of the veterinarian, but nothing else. No written information was provided to him before the hearing. I am informed and I believe that the adjudicator received no information in writing or orally from anyone else about this matter before the hearing.

Dr. Clark was not cross-examined on his affidavit. His uncontradicted evidence indicates that he did not make the decision to cancel Dr. Fetherston's accreditation and that he did not advise Dr. Wilson about the decision.

[32] It is true that Dr. Clark asked Dr. Wilson to conduct the adjudication. However, their relationship cannot be characterized as one in which Dr. Clark had a power of appointment. This is not a circumstance in which the superior might be viewed as favouring the person who asked him to perform a function. Dr. Wilson was not responsible to Dr. Clark and would not be perceived as being beholden to Dr. Clark for future favours or consideration.

[33] The absence of statutory or regulatory provisions, the informality of the process and the issue being the cancellation of the balance of the term of a three-year contract, suggest that one might expect an employee in the position of Dr. Clark to ask his superior to be the adjudicator. Dr. Clark suspended Dr. Fetherston's accreditation. The more serious decision as to whether the accreditation should be cancelled would logically be made by someone more senior.

[34] The well accepted test for reasonable apprehension of bias was stated by de Grandpré in dissent in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394-5:

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [a decision-maker], whether consciously or unconsciously, would not decide fairly.

... The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience."

This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers. The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal. As stated by Reid, Administrative Law and Practice, 1971 at p. 220

... "tribunals" is a basket word embracing many kinds and sorts. It is quickly obvious that a standard appropriate to one may be inappropriate to another. Hence, facts which may constitute bias in one, may not amount to bias in another.

To the same effect, the words of Tucker L.J., in Russell v. Duke of Norfolk and others [footnote 5 omitted], at p. 118:

There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.

[35] I conclude that an informed person viewing the matter realistically and practically would not think that Dr. Wilson would decide the matter of the cancellation of Dr. Fetherston's accreditation unfairly. In my view, the Federal Court judge erred in coming to the contrary conclusion.

Misapplication of the MacBain decision

[36] In finding a reasonable apprehension of bias, the judge applied the reasoning in MacBain v. Canadian Human Rights Commission; MacBain v. Lederman, (1985), 22 D.L.R. (4^th) 119 (F.C.A.), because he was of the view that it applied precisely to the facts of this case. MacBain was a case under the Canadian Human Rights Act, S.C. 1976-77, c. 33. There, the question was whether the process by which, at that time, the Commission selected members for a Human Rights Tribunal, gave rise to a reasonable apprehension of bias.

[37] In my respectful opinion, the judge erred in applying MacBain to the case at bar. He failed to recognize the differences between the process of appointing tribunals under the Canadian Human Rights Act and the selection of an adjudicator to determine whether an Accredited Veterinarian Agreement should be cancelled.

[38] The procedural requirements under the Canadian Human Rights Act resembled the formality of court procedures. Indeed, human rights legislation has been referred to as "quasi-constitutional legislation." See, for example, Newfoundland Association of Public Employees v. Newfoundland (Green Bay Health Care Centre), [1996] 2 S.C.R. 3 at paragraph 20. The Act set out a process for the appointment of a tribunal and detailed procedures to be followed by a tribunal. None of that is present in this case.

[39] In MacBain at that time, the Chief Commissioner of the Human Rights Commission appointed Human Rights Tribunal members from a list of prospective members. At page 129 of his reasons, Heald J.A. cited the report of Chief Justice Deschênes on "Independent Judicial Administration of the Courts" to highlight the difficulty he perceived with the procedure under the Human Rights Act.

[40] Heald J.A. was of the view that Chief Justice Deschênes' criticism of "at pleasure" or probationary appointments applied even more forcibly to the system of case-by-case assignments employed under the Human Rights Act. He stated at page 129:

His firm recommendation was, accordingly, that the system of appointing judges during pleasure or for a probationary period should be abolished. That criticism of the system of probationary and "at pleasure" appointments applies even more forcibly to the system of case-by-case assignments employed under this Act. At the very least, the prosecutor should not be able to choose his "judge" from a list of temporary "judges". That, however, is precisely what happens when the Commission chooses the Tribunal members who will hear a particular case.

[41] In the present case, Dr. Clark asked his immediate superior, Dr. Wilson, to adjudicate the Fetherston matter. Asking one's superior to adjudicate a matter is quite different from the Chief Commissioner of the Human Rights Commission having the power to appoint a tribunal member who might then be perceived to want to please the Commissioner in return for future favours. A superior (Dr. Wilson) is not reliant on his subordinate (Dr. Clark) in the way that a tribunal member appointed on a case-by-case basis might be said to rely on the Chief Commissioner of the Human Rights Commission responsible for appointments. For these reasons, MacBain has no application to this case.

NATURAL JUSTICE AND PROCEDURAL FAIRNESS

[42] Other than his finding in respect of bias, the learned judge made no decision with respect to the fairness of the procedures followed in this case. However, he was critical of the fact that there was no statutory or regulatory framework governing the process, that no tribunal record was maintained, that no list of exhibits was maintained, that the investigator, Dr. Small, made no oral presentation to the adjudicator and that Dr. Fetherston was provided no opportunity to question her. He also observed that the case for urgency and special expertise within the Agency was not compelling.

[43] Dr. Fetherston repeated some of these concerns before this Court. Because the finding of apprehension of bias cannot stand, it is necessary for this Court to address these issues.

[44] First, the fact that there is no statutory or regulatory framework governing the cancellation process is not per se an indication of an unfair process. It is for Parliament to decide the extent to which there should be a statutory framework. Here, Parliament has decided that the process should be one of less formality and that a statutory procedural framework is not necessary.

[45] It is true that no list of exhibits was maintained. While maintaining a list of exhibits and witnesses is good practice, the fact that such lists were not maintained is not, of itself, fatal. Dr. Wilson's reasons indicate the material he had regard for, the witnesses who appeared and the other persons present.

[46] In saying that no formal record was maintained, it appears the judge was concerned that no record of documentation presented at the hearing was kept and that there was no recording of the hearing itself. Dr. Wilson's reasons state that the documents presented at the hearing were the same as had been provided to Dr. Fetherston earlier. Perhaps where there is a dispute as to what transpired at a hearing, the absence of a recording might be considered an indication of unfairness. However in this case, there are no factual disputes as to what took place at the hearing of the adjudication or as to what material was before Dr. Wilson. In the absence of something more, I do not think the failure to maintain a record or list of exhibits constitutes unfairness.

[47] The most serious issue with respect to fairness is the judge's finding that the investigator, Dr. Small, made no presentation to the adjudicator and "no particular opportunity was provided to [Dr. Fetherston] and his counsel to question her, let alone cross-examine her on her conclusions, particularly as to the motivation of [Dr. Fetherston] in acting as he did" (at paragraph 34). With respect, these comments are not borne out by the evidence.

[48] By his letter of October 19, 2001, to Dr. Fetherston, suspending his accreditation, Dr. Clark told Dr. Fetherston that "all information concerning the issues would be presented in his presence and that he would have the opportunity to question any person regarding the information."

[49] The letter then listed the documents the Agency would rely on. The list concluded with Dr. Small's report. That report and all other listed documents were appended to the letter.

[50] At the hearing, Dr. Small did not give viva voce evidence. However, there is no dispute that Dr. Wilson was given her report and that she was present at the adjudication. The letter received by Dr. Fetherston expressly provided that "you will have the opportunity to question any person regarding such information."

[51] I am therefore unable to agree with the judge that there was no opportunity for Dr. Fetherston or his counsel to question or to cross-examine Dr. Small. They simply chose not to do so. From Dr. Fetherston's factum and the oral argument of his counsel, it would appear they considered the adjudication as something akin to a trial in which all evidence is provided viva voce by witnesses under oath. As Strayer J. pointed out in Murray, there is no such requirement. As long as Dr. Fetherston or his counsel was provided the opportunity to question Dr. Small, it cannot be said that there was a breach of the requirements of procedural fairness. Such opportunity was provided. It was simply not taken up.

[52] I turn to the judge's finding that the case for urgency or adjudication by an expert was not compelling. It is true that upon suspension of Dr. Fetherston's accreditation, the case for urgency with respect to the public interest was largely satisfied. However, from Dr. Fetherston's point of view, it seems to me that the matter continued to be urgent. If he was able to successfully challenge the reasons of the Agency for suspending and proposing cancellation of his accreditation, it was obviously in his interest to do so as early as possible so that his accreditation could be restored and the cloud hanging over him removed.

[53] From Dr. Wilson's reasons, it is apparent that there are significant policy considerations in the matter of cancellation of the accreditation of veterinarians under the Health of Animals Act. He pointed out that the Agency's international reputation for integrity in the certification of livestock must be protected to maintain Canada's access to foreign markets. Further, while providing a certificate for Yankee Leader avoided the need to have the horse tested and inspected and certified in the United States, it also provided an opportunity to introduce infectious equine diseases into Canada when the horse was returned. These are reasons justifying the adjudication by a senior veterinarian employed by the Agency such as Dr. Wilson.

[54] Strayer J. set out what he thought fairness required in these circumstances in Murray. He stated:

... but fairness does, it seems to me, require that there be a clear notice to the veterinarian concerned of the accusation, of the grounds being considered for cancellation of the accreditation, and of the nature and sources of the information which is going to be relied upon in considering cancellation of an accreditation. Further, there must be an opportunity for the veterinarian faced with this situation to examine the information being relied upon and to challenge it and to respond with information of his own. This does not mean that there has to be sworn evidence and that there has to be cross-examination. This is an administrative proceeding. ...

The requirements laid out by Strayer J. were adhered to in this case.

[55] I therefore find no breach of the rules of procedural fairness in respect of the matters that concerned the judge.

ADEQUACY OF REASONS

[56] The judge said that were he required to do so, he would find Dr. Wilson's reasons so deficient as to result in a reviewable error. Dr. Wilson preferred Dr. Small's version and interpretation of the events rather than Dr. Fetherston's. The judge concluded that Dr. Wilson provided "no explanation whatever" for preferring the information in Dr. Small's report over Dr. Fetherston's evidence in arriving at his decision.

[57] With respect, I cannot agree that Dr. Wilson's decision provided "no explanation whatever." The decision was quite thorough. The decision consists of some four single-spaced pages. It reviewed in some detail the documentary evidence, including the report of Dr. Small. It then recounted the evidence of Dr. Fetherston, including his explanation that the signing of the export certificate for Yankee Leader when Yankee Leader had not been inspected, was a clerical error.

[58] Dr. Wilson's findings are then set out. He first observed that Dr. Fetherston did not take issue with any of the documentation provided or any of the statements in Dr. Small's report. Counsel for Dr. Fetherston does not challenge that finding. His complaint is that Dr. Small was not called as a witness. However, Dr. Fetherston was given notice that the Agency would rely on Dr. Small's report, Dr. Small was present at the hearing and it was open to Dr. Fetherston or his counsel to question her, and it was Dr. Fetherston's decision not to take the opportunity to cross examine her. In these circumstances, it was certainly open to Dr. Wilson to rely on the unimpeached evidence of Dr. Small.

[59] I should observe that in the Federal Court, Dr. Fetherston filed an affidavit that takes issue with certain observations in Dr. Small's report. A judicial review in the Federal Court is not a trial de novo and if Dr. Fetherston disagreed with anything in Dr. Small's report, the time for doing so was at the Wilson adjudication.

[60] Dr. Wilson's findings were:

1. Dr. Fetherston visited McIntosh Stables on July 3, 2001;

2. he was asked to inspect seven horses;

3. Coggins reports were provided and he recorded the names of the seven horses in his Day-Timer;

4. when he was taken to the stall of Yankee Leader it was empty;

5. Dr. Fetherston was told Yankee Leader was at Michigan State University for emergency surgery, which he noted in the Day-Timer with a notation of "MSU" beside the name Yankee Leader;

6. on July 4, 2001 Dr. Fetherston created individual work sheets to record the services performed on July 3; the work sheets were created from the notes in his Day-Timer;

7. a worksheet dated July 4, 2001 indicated there was a health certificate examination performed on Yankee Leader at 2:00 p.m. July 3 with a notation "to Hazel Park, MI";

8. an invoice recorded the same information as on the work sheet;

9. Dr. Small's report recorded that Dr. Fetherston initially had difficulty explaining how he could have inspected and certified a horse that was not at the stable;

10. later in Dr. Small's report Dr. Fetherston is recorded as admitting he did not see Yankee Leader on July 3; and

11. Dr. Fetherston's explanation to Dr. Small for preparing the Export Health Certificate was that he was told that Yankee Leader had been taken to Michigan State University for surgery and that a Certificate was needed to bring him back to Canada.

[61] There is no indication in Dr. Small's report that Dr. Fetherston was alleging a clerical error was the reason for issuing the Export Health Certificate for Yankee Leader. At that time, he had another explanation, that the Certificate was needed to bring the horse back into Canada.

[62] The fact that Dr. Fetherston did not challenge Dr. Small's report and that he gave a different explanation to Dr. Small than he gave in evidence before Dr. Wilson is an adequate reason for Dr. Wilson to prefer Dr. Small's evidence. Dr. Wilson's conclusion that clerical error was not supported by the findings is understandable on a reading of his reasons. Far from Dr. Wilson's reasons being inadequate, I am of the view they were quite thorough and presented a logical explanation for his decision and why he preferred the information in Dr. Small's report to the evidence of Dr. Fetherston.

CONCLUSION

[63] For all these reasons, I would allow the appeal with costs here and in the Federal Court, set aside the decision of the applications judge and restore the decision of Dr. Wilson.

"Marshall Rothstein"

J.A.

"I agree

K. Sharlow J.A."

"I agree

B. Malone J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-437-03

STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. ROBERT FETHERSTON

PLACE OF HEARING: Toronto, Ontario

DATE OF HEARING: March 3, 2005

REASONS FOR JUDGMENT: ROTHSTEIN J.A.

CONCURRED IN BY: SHARLOW J.A.

MALONE J.A.

DATED: April 5, 2005

APPEARANCES:

Ms. Suzanne Duncan FOR THE APPELLANT

Mr. Raymond Colautti

Mr. Owen D. Thomas FOR THE RESPONDENT

SOLICITORS OF RECORD:

John H. Sims Q.C.

Deputy Attorney General of Canada

Ottawa, Ontario FOR THE APPELLANT

Raphael Partners LLP

Windsor, Ontario FOR THE RESPONDENT

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Canada (Attorney General) v. Fetherston, 2005 FCA 111

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2005 FCA 111