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HEALTH CARE PROFESSIONALS - Disciplinary proceedings - Penalties

Thursday, June 07, 2018 @ 8:10 AM  

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Appeal by the doctor from an order overturning the penalty imposed for professional misconduct. The appellant was found guilty of professional misconduct. In 2009 and 2010, the doctor sexually abused four female patients by touching their breasts during a medical examination and acted inappropriately with a fifth by asking her on a date immediately after a medical examination during which her breasts were exposed. The Discipline Committee imposed a penalty of a six-month suspension and restrictions on his return to practice, which included the supervision of his encounters with female patients and the posting of a sign publicizing the requirement for 12 months. He was also required to undergo individualized training, pay the victim's therapy costs and pay $35,680 in costs of the proceedings. The College appealed the penalty decision on the basis that it was unreasonable and the Discipline Committee made inconsistent findings of fact and the penalty imposed was unfit. The Divisional Court allowed the appeal finding that the penalty was unreasonable for the reasons advanced by the College. The doctor appealed.

HELD: Appeal allowed. The Divisional Court incorrectly applied the reasonableness standard of review to the Discipline Committee's findings of fact and determination of penalty. It erroneously weighed the evidence and substituted its own view of what constituted an appropriate penalty. The Discipline Committee was an expert tribunal created by the legislature to assess allegations of misconduct and to determine the appropriate penalty. The Discipline Committee's decision on penalty did not contain any inconsistent findings of fact and the penalty was not manifestly unfit. The Discipline Committee's determination that it was safe to allow the doctor to continue to practice, despite the multiple complainants, was based on the expert evidence before the Discipline Committee that the doctor lacked insight into the abusive nature of his conduct, not that he was sexually deviant. In imposing the penalty, the Discipline Committee did not fetter its discretion. It did not erroneously conclude that revocation was only available in the most serious of cases involving persons likely to re-offend. The penalty imposed was serious. The Divisional Court erred in declaring that the penalties imposed in cases that made up the established range of penalties, of which it was not seized, were wrong. The penalties in those cases were not appealed and in some cases were the result of joint submissions.

College of Physicians and Surgeons of Ontario v. Peirovy, [2018] O.J. No. 2341, Ontario Court of Appeal, P.S. Rouleau, M.L. Benotto and L.B. Roberts JJ.A., May 3, 2018. Digest No. TLD-June42018008