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. 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]


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