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Professionals - Discipline (2). Kaplan-Myrth v. Ottawa Carlton District School Board
In Kaplan-Myrth v. Ottawa Carlton District School Board (Div Court, 2024) the Divisional Court dismissed a school board trustee's JR against a school board.
Here the court sets out the SOR for professional disciple (here applied to a school board trustee):[36] With respect to decisions imposing sanctions, the court must defer to the Board unless the Applicant establishes an error in principle or that the sanctions are clearly unfit Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77.
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[89] As set out above, with respect to decisions imposing sanctions, the court must defer to the Board unless the Applicant establishes an error in principle or that the sanctions are clearly unfit, that is, the Applicant must show that it “manifestly is deficient or excessive and is a substantial and marked departure from penalties in similar cases”: see Khan v. Law Society of Ontario, 2022 ONSC 1951, at para. 77; Del Grande, at para. 88.
[90] The sanctions provided for by the Board are provided for under s. 218.3(3) of the Act and are similar to sanctions given in other cases. There was no censure or apology required. The sanctions were not excessive or disproportionate.
[91] The Applicant has failed to meet her burden in establishing that that in the sanctions meted out by the Board, there was an error in principle or that the sanctions were clearly unfit. . Casella v. Ontario (College of Chiropodists)
In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court contrasts professional discipline with criminal law:Issue 1: Did the Committee err by finding that the Appellant breached the June 2021 Order by benefitting from the practice of chiropody?
28. The Appellant submits that at the time of his suspension, there was no regulatory prohibition on a suspended member benefitting from the practice of chiropody by others. While it was submitted in the Appellant’s factum that professional discipline statutes are to be strictly construed, at the hearing of this appeal, counsel for the Appellant conceded that a broader interpretative approach is the correct approach, namely the balancing of the public interest and the fair hearing rights of the accused, as set out in in Court of Appeal’s decision in Abdul v. Ontario College of Pharmacists, 2018 ONCA 699, 142 O.R. (3d) 682, at para. 18.
29. It is settled by the Supreme Court that professional discipline proceedings are not criminal (or quasi-criminal) in nature.[13] Successive Supreme Court and Court of Appeal decisions call for a broad and purposive approach to interpretation, to permit professional disciplinary bodies to fulfill their onerous public protection mandate.[14] As the Court of Appeal has confirmed on multiple occasions, the Discipline Committee of the College is required to interpret its powers “with a view to protecting the public interest in the proper regulation of the profession”.[15]
30. The Appellant argues that nothing in the regulatory framework necessarily implies that a suspension always prohibits a suspended member from benefitting from the practice of chiropody. The Appellant submits that the Code provides flexibility to the health professions to tailor regulations which address what each profession’s members who are suspended can do regarding benefitting from the practice of their profession during suspension. The Appellant argues that it is not self-evident from the legislative scheme what a suspension entails. He submits that either promulgating regulations or setting this out in the order of suspension is required, neither of which was present here.
31. Approximately half of Ontario’s health profession colleges specifically hold that it is professional misconduct for a member to benefit from the practice while under suspension, although all but one offer an exemption if the member discloses the benefit and obtains permission. The Appellant submits that if suspension necessarily precludes a suspended member from profiting from the practice during their suspension, the colleges would not have the authority to make an exemption. The Appellant argues that he was not on notice that he could not be remunerated for the work that he performed at the clinic while suspended (which he characterized as mostly janitorial services). The June 2021 Order did not prohibit the Appellant from benefitting from another’s practice of chiropody, and the Appellant should not be bound by the intent specified by the Committee after the fact in deciding the Liability Decision. . Okafor v. College of Physicians and Surgeons of Ontario
In Okafor v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considers (and dismisses) an appeal by a doctor of a CPSO discipline decision [under the RHPA's HPPC s.70(1-2)] "in which a panel of the Discipline Committee (the “Committee”) ... revoked the Appellant’s certificate of registration (the “Decision”)", here for professional misconduct ("disgraceful, dishonourable and unprofessional conduct") involving sexual abuse:[7] The Notice of Hearing alleged that the Appellant committed an act of professional misconduct:1. under clause 51(1)(b.1) of the Health Professions Procedural Code which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (“the Code”) in that he engaged in sexual abuse of a patient; and
2. under paragraph 1(1)33 of Ontario Regulation 856/93 [made under the Medicine Act, 1991[2]], in that he has engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. [8] “Sexual abuse of a patient” by a member of the College is defined in s. 1(3) of the Code:Sexual abuse of a patient
(3) In this Code,
“sexual abuse” of a patient by a member means,
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,
(b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient. . Haydarian v. Royal College of Dental Surgeons of Ontario
In Haydarian v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered (and dismissed) an RHPA appeal from disciplinary decisions of the Royal College of Dental Surgeons of Ontario:[5] The Panel accepted the evidence of E.O. that she had a sexual relationship with the appellant as of September 6, 2018 and that they were never married.
[6] Given the sexual abuse finding, mandatory revocation of the appellant’s certificate of registration was required under s. 51(5) of the Code.
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Issue #3: Did the Panel err in making its costs and penalty award?
[37] As discussed above, because the sexual abuse finding stands, the penalty is mandatory.
[38] The appellant did not identify any specific errors in the costs awards instead generally submitting that they were punitive in nature.
[39] The Panel did not err when it ordered the appellant to pay for E.O.’s therapy and counselling in the amount of $17,370.
[40] The Panel did not err in its costs award, which is consistent with other similar cases, reflects the length of the proceeding, involvement of an expert witness and a constitutional challenge which was eventually abandoned.
[41] Section 53.1 of the Code provides that costs can include the costs of the investigation and hearing. The award of costs is discretionary and the standard of review is reasonableness: see Venneri v. College of Chiropractors of Ontario, 2010 ONSC 473 (Div. Ct.), at para. 6. There was no error of principle and the costs award is not plainly wrong.
[42] The Panel considered the relevant factors, the conduct of the appellant at the hearing, and the length of the hearing resulting in costs in the amount of $218,154.72. . Haydarian v. Royal College of Dental Surgeons of Ontario
In Haydarian v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered an RHPA appeal from disciplinary decisions of the Royal College of Dental Surgeons of Ontario. In this quote the court cites the standard of review (SOR) for RHPA disciplinary appeals:[25] With respect to appeals from a sanction imposed by a regulated professions tribunal, the court will interfere with 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”: Cabot v. College of Nurses of Ontario, 2023 ONSC 2977 (Div. Ct.), at para. 23, citing Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2022 ONSC 640 (Div. Ct.), at para. 40. A penalty will be clearly unfit where the decision does not fall within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 38, citing Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
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