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Professionals - Discipline
MORE CASES
Part 2
. Law Society of Ontario v Schulz
In Law Society of Ontario v Schulz (Div Court, 2023) the Divisional Court considered the SOR on appeal of a professional discipline penalty matter:[18] The issue of whether a nine-month suspension was an appropriate penalty in the circumstances is a question of mixed fact and law. On an appeal of a penalty, this court exercises significant deference to the Tribunal and will not interfere unless the penalty is manifestly unfit: College of Physicians and Surgeons v. Pierovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 17. . Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario
In Prince v Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2023) the Divisional Court considered the appellate standard of proof regarding a professional penalty, here that of the revocation of a 'mortgage agent' license under the Mortgage Brokerages, Lenders and Administrators Act, 2006 (the 'MBLAA'):[7] Where a penalty imposed by a regulatory tribunal is reviewed on appeal, the reviewing court will consider whether the penalty was imposed with reference to the facts of the case and prior penalties imposed for similar infractions or in similar circumstances to consider whether the penalty imposed in the case before it was “clearly unfit” or a substantial departure from the cases before the tribunal: see College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56; Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 at para. 18.
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[16] The Tribunal expressly concluded that a lesser penalty would not be appropriate given the Appellant’s repeated instances of dishonesty. It found that supervision is not an appropriate penalty where a licensee is dishonest, does not accept accountability, and shifts responsibility for their conduct to others.
[17] The Tribunal also considered the regulatory context including FSRA’s statutory objectives, which include contributing to public confidence in the sectors it regulates, deterring deceptive or fraudulent conduct, practices, and activities, promoting high standards of business conduct, and protecting the rights and interests of consumers. The Tribunal found that no lesser penalty was appropriate given its findings of fact and the pattern of dishonesty on the part of the Appellant. . Ontario College of Teachers v Merolle [for numbered case cites see the main link]
In Ontario College of Teachers v Merolle (Div Court, 2023) the Divisional Court considered a s.35(4) Ontario College of Teachers Act appeal by the OCT against the decision of the 'OCT Discipline Committee' [a "statutory committee" under OCTA s.1(1)], which had disregarded a joint submission (between the teacher and the OCT) regarding penalty [SS: the OCT was a party to an OCT Discipline Committee proceeding, apparently making the Committee effectively a tribunal].
In these quotes the court considers the tribunal test for accepting a joint penalty submission:[14] In its 52 paragraph submissions, the College reviewed the facts leading to the guilty plea and reviewed the test for interfering with a joint submission on penalty as set out by the Supreme Court of Canada in R. v. Anthony-Cook[7], as followed by the British Columbia Court of Appeal in R. v. Cheema[8] and, in the regulatory context, as followed by Law Society of Upper Canada v. Archambault[9] and, in this court, by Bradley v. Ontario College of Teachers[10].
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The Decision of the Discipline Committee
[17] In their reasons rejecting the joint submission for a three month suspension, the Majority of the Discipline Committee reviewed Anthony-Cook , Bradley and other decisions and noted that they did not reject the joint submission on penalty “lightly”. The Majority stated that they had “carefully reviewed the public interest test set out in Anthony-Cook and applied it to the present case[12]”. The Majority concluded:[47] The Majority finds that in the circumstances of this case a penalty providing for a suspension of three months is unduly harsh and inappropriate and would bring the administration of the discipline process of the College justice into disrepute. Such a term is also contrary to the public interest since (1) the Member's inappropriate comments fall on the lower end of the scale of objectionable comments and consequently do not rise to the level of seriousness required to warrant a suspension; and (2) the cases provided by Counsel in support of a suspension of three months are not analogous to the facts in the within matter. As noted above, they involve more serious fact situations than are present in the within matter which would support the suspension penalty ordered in those cases. They are easily distinguishable on the facts and are therefore of no assistance to the Majority in reaching its decision. [18] The dissenting member of the Discipline Committee disagreed stating:[76] I find that a three-month suspension is reasonable and appropriate in the circumstances of this case. While the cases presented are factually distinct from this case, the misconduct represented in those cases is of a similar underlying nature in that they all relate to inappropriate conduct towards colleagues and/or subordinates. The cases confirm that a suspension is reasonable. The Discipline Committee in those cases ordered suspensions in the range of two to five months, in addition to reprimands and coursework. A summary of these cases is set out below.
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[84] After carefully considering these cases, I find that a three-month suspension is appropriate and reasonable since it falls within the range of what has been ordered by other panels in the past for similar misconduct. The suspension will serve as a specific deterrent to other members of the profession, making clear that the kind of misconduct the Member exhibited is unacceptable. In relation to the timing of the suspension, I accept the unopposed submissions of Member's Counsel that the suspension should start retroactively on May 5, 2022 and would order accordingly.
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[86] I am satisfied that the high threshold for rejecting the Joint Submission on Penalty has not been met in the circumstances. The penalty jointly proposed is not so unhinged from the circumstances of this case that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down. The penalty jointly proposed also meets the principle of serving and protecting the public interest. ....
[27] However, when a joint submission on penalty is presented decision makers, whether courts or administrative tribunals[16] must exercise restraint, “rejecting joint submissions only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system.”[17]
[28] The Supreme Court of Canada described this as a “undeniably high threshold”[18]. As the court noted:Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down.[19] [29] This stringent public interest test is required because when plea resolutions are properly conducted the parties, witnesses, counsel, and the administration of justice all benefit. For many, “maximizing certainty as to the outcome is crucial.”[20]....
Analysis
[30] I agree with the submission of the College that the Majority applied a “fitness test” when the majority deemed the penalty as “unduly harsh and inappropriate” and that this application of the wrong test is an error of law.
[31] The Majority’s summary of its conclusions described the suspension as “unduly harsh and inappropriate” and contrary to public interest because Mr. Merolle’s comments were at the “lower end” of objectionable and the cases relied upon the parties were not analogous.
[32] When assessing a joint submission, the tribunal must consider factors beyond the typical sentencing principles and should not “reverse engineer” a joint submission by determining the sentence that it would have imposed. The analysis should begin with the basis for the joint submission, including the important benefits to the administration of justice and ask whether there is something apart from the length of the sentence that engages the public interest or repute of the justice system[21]. Consideration of the fitness of the proposed penalty must be coupled with a “demonstrated consideration” of the benefits of the joint submission process[22].
[33] The majority’s reasons following its summary paragraph at paragraph 47 of the decision represent a “reverse engineer” of the penalty arrived at by the parties. There was no “demonstrated consideration” of the benefits of the joint submission process other than a passing reference to “certainty” and “smooth functioning of the justice system” at paragraph 63 of the decision. Thus, the wrong test was applied. . Cudney, #254 v St. Thomas Police Service
In Cudney, #254 v St. Thomas Police Service (Div Court, 2023) the Divisional Court considered a police discipline JR against an appeal ruling of the Ontario Civilian Police Commission (OCPC). In this quote the court sets out the SOR that applies to OCPC disciplinary sanction decisions:[5] The standard of review to be used by the Divisional Court when reviewing decisions of the OCPC is one of reasonableness on questions of fact, mixed fact and law, and on those questions of law that relate to the interpretation of the Commission’s home statute: Durham Regional Police Service v. Sowa, et. al., 2019 ONSC 1902 at para. 22 citing Ottawa Police Service v. Diafwila, 2016 ONCA 627, at para 52.
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[9] It is settled law that a high degree of deference is owed on judicial review of a tribunal’s choice of penalty. The reasonableness of the OCPC’s decision to confirm the Hearing Officer’s choice of penalty must be assessed considering the deference owed on penalty.
[10] In Dr. Jonathon Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), this court commented at paras. 17-18 on the high threshold for overturning a tribunal’s penalty decision:It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit”. The courts in the criminal context have used a variety of expressions to describe a sentence 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. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. [11] Accordingly, this court applies a reasonableness standard to the OCPC’s review of the Hearing Officer’s choice of penalty. In doing so, regard must be had for the high threshold to be met before the OCPC will interfere with a Hearing Officer’s choice of penalty. . Cabot v College of Nurses of Ontario
In Cabot v College of Nurses of Ontario (Div Court, 2023) the Divisional Court considered a discipline appeal regarding a nurse:[23] On an appeal from a sanction imposed by a regulated professions tribunal, the court will interfere will a tribunal’s penalty decision only if the penalty reflects an error in law, an error in principle, or if the penalty is “clearly unfit”: Budarick, 2022 ONSC 640 at para 40.
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[31] The Appellant submits that, in particular, the Panel placed inappropriate weight on two decisions involving vulnerable patients: College of Nurses of Ontario v Trzop, 2018 CanLII 75258 (ON CNO) and College of Nurses of Ontario v Hawil, 2016 CanLII 104248 (ON CNO).
[32] I disagree. The Panel summarized the cases and was clearly alive to the range of penalties for boundary violations by nurses in a variety of relationships with patients, former patients and family members of patients. The first important point, which the Panel noted, is that there are no “perfectly similar historical cases” to the case at bar. This explains the range in available penalty, which counsel for the Appellant conceded during submissions. In this case, the College sought a 12-14 month penalty noting that, but for the mitigating features, it would have sought revocation.
[33] The Appellant, who sought a lower suspension of 2-3 months, provided four prior decisions in which the Panel had imposed three-month suspensions.
[34] The Panel emphasized the seriousness of the conduct and the impact on both patients, C.R.L. and C.L. It referred to elements in common, with the decisions in Trzop and Hawil, of boundary violations involving sexual relationships which affected vulnerable patients.
[35] Trzop involved a 90-year-old client to whom the member provided in-home palliative care. The member initiated a personal and sexual relationship with the patient’s grandson while in the patient’s home. The member offered and obtained controlled substances for the patient’s daughter that were not prescribed to her. The member also moved into the patient’s home and engaged in a financial relationship with the patient’s daughter by agreeing to pay her rent. The Panel ordered a 12-month suspension which was the result of a joint submission.
[36] Hawil involved an extremely vulnerable patient who was admitted to a psychiatric unit following a suicide attempt. Six weeks after the patient was discharged, the member called the patient and took her out for lunch. The member then took the patient to a motel to have sex, driving her home after and giving her money to buy cigarettes. The patient reported the incident to the hospital a year later, fearing that if she needed hospitalization again, the member might be her nurse. The parties presented a Joint Submission for an Order revoking the member’s certificate. The member resigned prior to the hearing.
[37] The Appellant submits the Panel ought to have discussed and applied the penalty decisions such as College of Nurses of Ontario v. Seymour, 2017 CanLII 141997 (ON CNO) and College of Nurses of Ontario v. Baker, 2012 CanLII 98107 (ON CNO), which involved shorter suspensions.
[38] Seymour involved a boundary violation in which the Member initiated a personal relationship with a patient that became intimate following the patient’s discharge from care. The patient divorced his spouse because of the relationship with the Member. They eventually married. A three-month suspension was imposed because of a joint submission.
[39] In Baker the Member provided care to a client who suffered from Alzheimer’s Disease. While providing care to the client, the Member initiated a relationship with the client’s husband and concealed the relationship from her client and the facility. The Panel imposed a three-month suspension here, again based on a joint submission.
[40] The Appellant submits that both Seymour and Baker have more in common with her circumstances because they involve intimate relationships with spouses of patients, but without the exceptional mitigating factors in her case, including the abuse by the patient toward the member and the impact on the member of that abuse.
[41] Counsel for the College argued, and I accept, that there are no prior decisions that align significantly with the facts here, although the boundary issues involving two patients who were spouses is an element found in one of the cases that was put before the Panel. In College of Nurses of Ontario v Riehl, 2019 CanLII 132000, in which a Nurse Practitioner was providing primary care healthcare to a husband and wife and began a sexual relationship with the husband while continuing to provide care to both.
[42] The key distinguishing feature of Riehl is that the member’s sexual relationship with her patient took place during the nurse-patient relationship (unlike in the Appellant’s case, where C.R.L. had ceased to be a patient a few weeks after sexual contact occurred). Because this amounted to sexual abuse under the Health Professions Procedural Code, O. Reg. 262/18, this conduct attracted the mandatory penalty of revocation.
[43] The Panel demonstrated that it was aware of the range of penalties and circumstances of the cases that formed part of the submissions on penalty. While it did not discuss in great detail its approach to all of the cases put before it, the Panel summarized the cases which revealed a relatively broad spectrum of available periods of suspension for boundary violations. The Panel considered the seriousness of the conduct, which included boundary violations of both a current and former patient and took into account the unique mitigating factors. Read as a whole, the Panel’s reasons demonstrate that it was aware of the principles, the available range and implicitly found that a longer suspension was warranted, even after controlling for the mitigating features in the evidence. The reasons adequately explained why the Panel imposed the penalty that it did. If C.L. had not been a patient of the Appellant, the appropriate penalty might well have been in the range suggested by the Appellant. But C.L. was and continued to be a patient of the Appellant, and this aspect of the case justifies the Panel’s decision on sanction: but for the mitigating circumstances, revocation could have been the appropriate disposition.
[44] Imposing penalty is a highly individualized process. There is no one “correct” penalty in any given case, and while different panels might impose different penalties, on appeal, it is not the task of the court to substitute the penalty that we might prefer. Rather, returning to the standard of review, we must discern whether the penalty was fit in the circumstances, whether the Panel considered adequately the aggravating and mitigating circumstances and prior decisions and communicated its reasons for doing so sufficiently. This Panel did so. I would not interfere with the result. . Fagbemigun v College of Physicians and Surgeons of Ontario
In Fagbemigun v College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered a doctor's RHPA s.70 HPPC appeal of orders of the 'Ontario Physicians and Surgeons Discipline Tribunal', centering on overbilling misconduct.
In this quotes the court considers deference accorded to tribunal orders respecting professional penalties:[31] A penalty imposed by a regulatory tribunal will be overturned only if it is shown that the tribunal made an error in principle or that the penalty was “clearly unfit”. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties imposed in other cases: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para. 18. . Watson v. Law Society of Ontario [the numbered case cites can be accessed at the main Canlii case]
In Watson v. Law Society of Ontario (Div Court, 2023) the Divisional Court considers the duty that professional regulatory bodies owe to their members (here the Law Society of Ontario), especially regarding fairness as an disciplinary body:[84] It is well-settled that the Law Society has a duty to deal fairly with complainants, to investigate their complaints thoroughly, and to take action against any member’s wrongdoing for the protection of the public. However, the Law Society also has an obligation of fairness to any member against whom a complaint is filed, recognizing the seriousness of any negative finding to the career and livelihood of that member. Investigators and counsel for the Law Society do not stand in an adversarial position to the member against whom proceedings are brought, but rather have a duty to act fairly and impartially, more akin to the function of the police and Crown prosecutor in a criminal matter, than to private combatants in civil litigation. As stated by Dickson J. (as he then was) in Ringrose v. The College of Physicians and Surgeons (Alberta):The provision contained in The Medical Profession Act, R.S.A. 1970, c. 230, permitting a degree of overlapping between the council and the discipline committee, does not justify overlapping between the discipline committee and the executive committee. I think that, to avoid criticism, reliance should be placed upon such an overlapping provision as infrequently as the practicalities of the situation permit, since there rests upon the governing bodies of the professions in the exercise of their statutory disciplinary powers the duty to be scrupulously fair to those of their members whose conduct is under investigation and whose reputations and livelihood may be at stake. That is not to say that a profession should be slow to discipline. On the contrary, the public interest and the integrity of the profession may require immediate and stern action against a transgressor. But the investigation of the alleged breach, and the steps taken to determine culpability, must be such that justice is manifestly seen to be done, impartially and, indeed, quasi-judicially.[75] [Emphasis added] . Del Grande v. Toronto Catholic District School Board
In Del Grande v. Toronto Catholic District School Board (Div Court, 2023) the Divisional Court considered deference accorded to a tribunal on a disciplinary decision, here regarding a school board trustee:[88] In respect of the Sanctions Decision in particular, this court has held that to overturn a penalty imposed by a regulatory tribunal, “it must be shown that the tribunal made an error in principle or that the penalty was clearly unfit, which is to say that it manifestly is deficient or excessive and is a substantial and marked departure from penalties in similar cases.” Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77.
[89] In a pre-Doré case, Kempling v. College of Teachers (British Columbia), 2005 BCCA 327, 255 DLR (4th) 169, the British Columbia Court of Appeal upheld the suspension of a teacher who, while off-duty, published a newspaper article and several letters to the editor associating homosexuality with “immorality, abnormality, perversion and promiscuity[.]” The Court of Appeal, conducting a s. 1 analysis, found that the suspension infringed on the teacher’s Charter rights but that the “deleterious effects of the infringement are, nonetheless, relatively limited when compared to the salutary effects, namely, restoring the integrity of the school system and removing any obstacles preventing access for students to a tolerant school environment”:Kempling., at para. 82.
[90] In my view, the Applicant has not met the high burden of establishing that the sanctions determined by the Board were manifestly excessive. The majority of the sanctions are provided for in s. 218.3(3) of the Education Act. The remainder are authorized by Article 10 of the Code of Conduct, which provides for a progressive approach to sanctions including “personal contact, clarification, redirection, request for an apology, reprimand, censure and or other sanctions as per board motion[.]” . College of Early Childhood Educators v. Phillips
In College of Early Childhood Educators v. Phillips (Div Court, 2023) the Divisional Court considered an appeal from a decision of the Discipline Committee of the College of Early Childhood Educators, here under s.38(1) of the Early Childhood Educators Act, 2007. In this quote, the court considers breach of trust as it aggravates professional discipline:[103] It is settled law that a breach of trust is to be treated as a significant aggravating factor in determining the appropriate penalty: R. v. M.M., 2022 ONCA 441, at para. 17.
[104] Further, teachers (and by analogy, ECEs) are “the trustees of the most precious possession of the community and must be held strictly accountable for any breach of that trust”: R. v. Lysack, [1988] O.J. No. 287 (Ont. C.A.), at para. 5.
[105] In many cases involving an ECE’s failure to supervise or breach of professional standards, there is a breach of the trust relationship. Whether it is the more obvious case of direct physical, verbal, or sexual abuse (as in the revocation cases relied upon by the College) or in the failure to supervise cases such as Li, Tan, and the present case, the member’s breach violates the trust required in the relationship between an ECE and a child. . College of Early Childhood Educators v. Phillips
In College of Early Childhood Educators v. Phillips (Div Court, 2023) the Divisional Court considered an appeal from a decision of the Discipline Committee of the College of Early Childhood Educators, here under s.38(1) of the Early Childhood Educators Act, 2007. In this quote the court considers the standard of review for professional disciplinary decisions:Standard of review
[25] Success on an appeal from a penalty decision requires the appellant to establish that the panel made an error in principle or that the penalty is clearly unfit. In Hirtle v. College of Nurses of Ontario, 2022 ONSC 1479, the court held, at para. 35:With respect to the appeal from penalty, the appellant must show that the Panel made an error in principle or that the penalty was clearly unfit. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances: Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49 (Div. Ct.), at para. 82. [26] In College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, the court set out the “very high threshold” to establish that a penalty is “clearly unfit”, adopting expressions from criminal law sentencing case law such as “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure”: at para. 56. The court held that “[a] similarly high threshold applies in the administrative context”: at para. 57.
[27] The deference attached to penalty decisions reflects the specialized nature of professional tribunals who hear and consider the evidence as to misconduct and determine an appropriate penalty. “Assessing penalty is at the heart of the discretion of a professional panel”: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041, at para. 127.
[28] Consequently, an appellate court cannot set aside a penalty decision simply because it would have imposed a different penalty. An appellate court cannot reweigh the evidence considered by a panel who determines a penalty upon a finding of misconduct. Deference must be afforded in accordance with this established line of authority.
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