Rarotonga, 2010

Simon's Legal Resources

(Ontario)

Most Popular
Contracts / Torts / Evidence / Limitations / Tenant Plus / welfare (ontario works) / odsp / human rights / employment / consumer / E-Access
ADMINISTRATIVE LAW | SPPA / SMALL CLAIMS / CIVIL COURT / CIVIL APPEALS / JUDICIAL REVIEWS

home / about / Little Friends Lefkada (Greece) / testimonials / Conditions of Use

Associated Site
Canadian Animal Law

Professionals

. Dr. Rajiv Maini v. HPARB et al.

In Dr. Rajiv Maini v. HPARB et al. (Div Court, 2022) the Divisional Court in a judicial review considered 'cautions' as an administrative remedy in a professional discipline context:
(iii) Is the Public Nature of The Caution a Factor in Assessing Reasonableness?

[55] Dr. Maini submits that a caution in person is a public disposition. We disagree in the circumstances of this case.

[56] The public nature of a caution is irrelevant to the reasonableness analysis here. A caution “is not a sanction or a penalty. A caution is entirely remedial in nature” (Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246, para. 81; Silverthorne v. College of Social Workers & Social Services Workers, 2006 CanLII 10142, para. 16; Fielden para. 10; Greenwald v. Health Professions Appeal and Review Board, 2008 CanLII 63184 (Ont. Div. Ct.), para. 13), even when it is firmly worded or may contain “strong language” (Ren v. College of Massage Therapists of Ontario, 2014 ONSC 2758 (Div. Ct.), paras. 13-15). The public nature of cautions “does not fundamentally alter the preventive, educational and remedial nature of such orders” (Geris, para. 34; Griffith, para. 93; Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (Div. Ct.), paras. 44-45)

[57] Dr. Maini maintains that the public nature of the caution will threaten his livelihood and therefore attracts a heightened degree of scrutiny. The Applicant asserts that it “has particularly harsh consequences” such as those that “threaten an individual’s life, liberty, dignity or livelihood” as set out by Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 133).

[58] A caution in person, however, is a remedial disposition involving a discussion with one’s peers about the conduct at issue. The objective of such a discussion is to improve a physician’s practice and ensure the protection of the public. There is no evidence in this matter that Dr. Maini is at risk of a disciplinary suspension, or of losing his employment. His “perceptions” that an advisory caution may have an effect on his career are insufficient to impose a higher standard of Reasons than would otherwise be required (Griffith, para. 92).
. Dr. Jha v. College of Physicians and Surgeons of Ontario

In Dr. Jha v. College of Physicians and Surgeons of Ontario (Div Ct, 2022) the Divisional Court considered whether criminal conviction for domestic violence (albeit with a absolute discharge) was relevant for determining professional discipline of a doctor:
[118] The purpose of professional regulation is not to “police the morality” of members of a profession. Rather, the purpose of professional regulation is to maintain professional integrity and professional standards. The purpose of professional discipline proceedings it is to “exercise disciplinary power over members of a profession so as to ensure that their conduct conforms to the standards of the profession”: R. v. Wigglesworth, 1987 CanLII 41, [1987] 2 S.C.R. 541, at pp. 560, 565-566 (quoting from The Doctrine of Res Judicata at p. 566).

[119] It is well-established that actions of members of a profession in their private lives may in some cases be relevant to and have an impact on their professional lives – including where the conduct is not consistent with the core values of a profession and/or where there is a need for a regulated profession to maintain confidence of the public in the profession and not be seen to condone certain types of conduct by its members: Wigglesworth at pp. 562-563; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 at paras 97-98; Re Cwinn and Law Society of Upper Canada (1980), 1980 CanLII 1694 (ON SC), 1980 CanLII 1964, 28 O.R. (2d) 61 (Div. Ct.), leave to appeal refused 28 O.R. (2d) 61n (C.A.); Adams v. Law Society of Alberta, 2000 ABCA 240, 82 Alta. L.R. (3d) 219.

[120] The degree to which a member’s conduct outside of conduct at their workplace, involving co-workers, or (in the case of medicine) patients, may be the subject of professional discipline proccedings is not limitless. But as I will explain, I find no error in the Discipline Committee’s finding, grounded in the record before it, that the criminal findings in this case are relevant to the appellant’s suitability to practise.

[121] Discipline committees of regulated health professions in this province have consistently found that criminal findings of guilt of assault in a domestic violence context are relevant to a member’s suitability to practise because such conduct displays “poor judgment, lack of self-control, and capacity for violent acts which stands in stark opposition to the caring, protecting, and healing goals and values” characteristic of health professions: College of Nurses of Ontario v. Soriano, 2016 CanLII 102074 (C.N.O.) at pp. 2-3, 4; College of Physicians and Surgeons of Ontario v. Lian, 2013 ONCPSD 1 at pp. 5-6; College of Physicians and Surgeons of Ontario v. Prebtani, 2005 ONCPSD 26 at pp. 3-4; College of Physicians and Surgeons of Ontario v. Sidhu, 2002 ONCPSD 41 at pp. 3-4, 20-21; Ontario (College of Physicians and Surgeons of Ontario) v. Shamji, 2020 ONCPSD 26 at p. 12; College of Nurses of Ontario v. Hough, 2016 CanLII 152838 (C.N.O.); College of Nurses of Ontario v. Sondy, 2012 CanLII 98101 (C.N.O.); see also Law Society of Upper Canada v. Kumarasamy, 2015 ONLSTH 52 at para. 6.

[122] Some of these decisions also find that the conduct is relevant to a member’s suitability to practise based on the fact that in some medical specialities, physicians will be called on to treat victims of domestic violence, and must be sensitive to issues related to domestic violence; and also on the need for the profession to demonstrate to the public that acts of domestic violence by physicians, who stand in a position of trust towards patients, are not condoned by the profession.
. Gill v. College of Physicians and Surgeons of Ontario

In Gill v. College of Physicians and Surgeons of Ontario (Div Ct, 2021) the Divisional Court considered the test and the standard of review for professional discipline penalties:
[82] The Appellant has failed to show that the Committee made an error in principle or that the penalty was clearly unfit (R v Lacasse, 2015 SCC 64 at para 39-40). To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances (College of Physicians and Surgeons of Ontario v Pierovy, 2018 ONCA 420 (CanLII)). Deference is afforded to the discretionary decision of the Committee to set a particular penalty (Lacasse, supra at para. 12).
. Park v. Royal College of Dental Surgeons of Ontario

In Park v. Royal College of Dental Surgeons of Ontario (Div Ct, 2021) the Divisional Court set out factors to be considered when deciding whether a professional is ungovernable:
[34] In making this argument, Dr. Park states that, at the hearing before the Discipline Committee, his counsel and counsel for the College referred to the Law Society Tribunal’s decision in Law Society of Upper Canada v. Robin Douglas Scott, 2006 ONLSHP 48, at para. 17 and 18, which sets out the following test for ungovernability:

[17] The jurisprudence does not draw a bright line for the determination of ungovernability nor does the manifestation of the behavior automatically mean disbarment.

[18] Factors which inform the determination whether a member is ungovernable include the following:
(a) the nature, duration and repetitive character of the misconduct;

(b) any prior discipline history;

(c) any character evidence;

(d) the existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;

(e) the degree of willingness to be governed by the Society;

(f) medical or other evidence that explains (though does not excuse) the misconduct;

(g) the likelihood of future misconduct, having regard to any treatment being undertaken, or other remedial efforts;

(h) the member's ongoing co-operation with the Society in addressing the outstanding matters that are the subject of the misconduct.
. 2099065 Ontario Inc. v Ontario (Health and Long-term Care)

In 2099065 Ontario Inc. v Ontario (Health and Long-term Care) (Div Ct, 2021) the Divisional Court commented on administrative penalties:
[61] It is well established that in order to overturn a penalty imposed by an administrative decision maker, it must be shown that the decision maker made an error in principle or that the penalty was “clearly unfit.” The courts have used a variety of expressions to describe a penalty that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances, College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56.

[62] In my view, the Executive Officer’s decision on remedy is reasonable and is one to which the court ought to defer in light of the Executive Officer’s particular expertise with this complicated system: AS169988 Consultants Inc. v. Her Majesty the Queen (in the right of the Province of Ontario), Ministry of Health and Long-Term Care (Ontario), 2019 ONSC 2967 (Div. Ct.) (Warden Pharmacy), para. 48.

[63] I would adopt the words of Myers J. in Warden Pharmacy when he wrote, in para. 45, that “having decided to make an honour system available to registered professionals so as to minimize enforcement costs and thereby to maximize the availability of funds for needy beneficiaries, it is not at all surprising that termination would be the usual remedy for significant abuse of the honour system. The applicant’s position would require the Ministry to incur ongoing enforcement costs monitoring the pharmacy.” So it is here.

[64] Although it is true that rehabilitation is an important objective in the penalty process, so is the preservation of the public purse and general deterrence. This is especially true in the context of a large, province-wide benefit program operated on the honour system. The potential for abuse is high, as is the harm to the public given that drug benefit resources are not unlimited.
. Walia v. College of Veterinarians of Ontario

In Walia v. College of Veterinarians of Ontario (Div Ct, 2021) the Divisional Court cited a Court of Appeal case that held that professional discipline itself was not a Charter issue:
[17] In Mussani v. College of Physicians and Surgeons of Ontario, 2004 CanLII 48653 (ON CA), [2004] 74 O.R. (3d) 1 (C.A.), the Court of Appeal for Ontario considered whether the provisions of the Health Professions Procedural Code were constitutional. In its decision, the court found that it is self-evident that the revocation of a health professional’s certificate of registration is a serious and even a draconian measure. Nonetheless, serious disciplinary measures, even draconian ones, are not prohibited by the Charter. The weight of authority is that there is no constitutional right to practice a profession unfettered by the applicable rules and standards that regulate said profession. The court concluded that there was no constitutionally-protected right to practice a profession. We have similarly concluded that Dr. Walia’s challenge to the constitutionality of the College by-laws is not a tenable one.
. Sbrissa v. Ontario Association of Architects

In Sbrissa v. Ontario Association of Architects (Div Ct, 2021) the Divisional Court sets out some basics of the Architects Act:
[6] The Act provides that architects can practice with either a license, or a license and a certificate of practice. However only a holder of a certificate of practice can provide architectural services to the public, (sec.11(2)). The holder of a license alone can practice architecture, but only under the supervision of an architect who holds a certificate of practice. The grant of both a license and a certificate of practice is subject to a good character requirement (sec.13(1)(a)). The Registrar can refuse to issue a license or certificate if she is of the opinion, on reasonable and probable grounds, that the past conduct of an applicant suggests that they will not “engage in the practice of architecture in accordance with the law and with honesty and integrity” (sec. 13(2)).

....

[31] In Abdul v. Ontario College of Pharmacists, 2018 ONCA 699, the Court of Appeal commented on the need to balance fairness to professionals with the protection of the public interest when interpreting professional discipline legislation. The court stated (at para.18), “while the discipline process against a health professional must recognize the public interest involved, care must also be taken to accord that professional the full due process that the disciplinary legislation was intended to provide”. One would expect a similar approach to be followed by other professional regulatory tribunals.
The case is generally useful for it's consideration of this little-litigated statute.

. Mitelman v. College of Veterinarians of Ontario

In Mitelman v. College of Veterinarians of Ontario (Div Ct, 2020) the Divisional Court cited the straightforward standard for professional misconduct:
[28] The Appellant submits that he did not go to S.L.’s home with the intention of causing her any harm. The Appellant characterizes the altercation as an “error in judgment” made by both parties, and states that it did not rise to the level of professional misconduct.

[29] The Appellant submits that the proper test for determining what rises to the level of misconduct was outlined in Barrington v. The Institute of Chartered Accountants of Ontario.[4] In Barrington, the Court of Appeal confirmed that such a finding requires that the member a) failed to perform his or her professional duties in accordance with the standards established by the profession, and b) that this failure is “significant”.[5]


CC0

The author has waived all copyright and related or neighboring rights to this Isthatlegal.ca webpage.