COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO DISCIPLINE COMMITTEE
BETWEEN:
College of Audiologists and Speech-Language Pathologists of Ontario
- and -
Samantha Dame
FINDING AND PENALTY REASONS
Heard: June 22, 2023, by videoconference
Panel:
David A. Wright (chair)
Kim Eskritt (AUD)
Satpaul Singh Johal
Thomas Robson
Yvonne Wyndham (SLP)
Appearances:
Bernard C. LeBlanc, for the College
Robert Barber, for Ms. Dame
Introduction
1The privilege of practising as an audiologist or speech-language pathologist comes with the obligation to comply with the College’s directions. When registrants ignore the College’s requirements, they put in jeopardy the protection of the public and public confidence in the professions. It is serious professional misconduct.
2In this case, Ms. Dame, the registrant, did not comply with an order made by a College committee. At the hearing before us, she admitted this misconduct. We ordered, as both parties agreed, a one-month suspension, a reprimand, further terms, conditions and limitations and costs payable to the College of $2,000.
Misconduct
3In 2021, after a previous investigation, the College’s Inquiries, Complaints and Reports Committee (ICRC) ordered that another speech-language pathologist monitor the registrant’s practice for six months. The monitor was to visit three times, observe the registrant’s practice, discuss the College’s Practice Standards and Guidelines with her and report to the College. The registrant did not comply, despite being given many opportunities to do so.
4The law defines “failure to maintain a standard of practice of the profession” and conduct “that would reasonably be regarded by registrants as disgraceful, dishonourable or unprofessional” as acts of professional misconduct for members of these professions: see O. Reg. 749/93 made under the Audiology and Speech-Language Pathology Act, 1991, SO 1991, c. 19. It is self-evident that not following an order made by the College falls under both categories. We therefore found that Ms. Dame committed these acts of misconduct as alleged and as she admitted.
Joint Submissions
5We turn now to penalty and begin with the principles that apply when the College and the registrant make a joint submission. The College and the registrant’s agreement on penalty must be implemented unless it is so “unhinged from the circumstances” that implementing it would bring the administration of the College’s professional discipline system into disrepute: Bradley v. Ontario College of Teachers, 2021 ONSC 2303 at paras. 9-12; Ontario College of Teachers v. Merolle, 2023 ONSC 3453. The test is adapted from the Supreme Court’s analysis in the criminal law context in R. v. Anthony-Cook, 2016 SCC 43. While criminal law approaches should not be automatically imported into professional regulation, courts and discipline committees have found that on the issue of joint submissions, the test is the same.
6The Committee must accept and implement a joint submission in all but the most exceptional circumstances. There must be something completely unacceptable, unusual or unconscionable to reject it, not just a disagreement or belief that a different outcome would better serve the public interest or be a more fit penalty. Just because the joint submission is not the penalty the Committee would have ordered had the case been contested does not mean that the proposed resolution would bring the administration of the discipline system into disrepute.
7The Committee may not “tinker” with a joint submission, which is the result of a careful balancing by the parties of the relevant considerations. It should take the joint submission “as is” and proceed on the basis that any aspects of penalty that were not included were intentionally excluded.
8There are many reasons for this high bar. It encourages settlement. If the College and registrants do not have confidence that settlements will be implemented, they will be less likely to happen, with negative consequences for the public interest. Settlements have many benefits for the discipline process. They avoid the stress of a hearing for witnesses, the registrant and those close to them. They save time and costs and lead to a faster resolution of the issues for the parties and quicker action to protect the public interest.
9Compromise also avoids an “all or nothing” situation for either party. Both parties avoid the risk that challenges in their case, such as weaknesses in witness testimony, legal arguments or evidence that may be inadmissible will affect the outcome. This information is not available to the panel but is usually an important factor in the parties’ decisions. Joint submissions help protect the public interest by making sure that, subject to very limited exceptions, a finding will be made and a penalty implemented. For the registrant, a joint submission maximizes certainty about the result of the case and the penalty, including its timing. Where there is a suspension, registrants can plan and arrange for substitute care of clients based on the agreed starting date. Settlement can also involve creative and meaningful terms, conditions and limitations that would be difficult to order and implement without buy-in from both parties.
10The Committee must consider a joint submission with humility and confidence that negotiations by the parties have resulted in both the public interest and the registrant’s interest being balanced. As the Supreme Court said in Anthony-Cook, at para. 44, the College and the member together “are entirely capable of arriving at resolutions that are fair and consistent with the public interest.”
11Deciding whether a penalty meets the test is about the forest, not the trees. Neither the parties' arguments nor the panel's reasons need identify every consideration that a panel would apply if it were deciding what penalty to impose without an agreement. What is important are the key penalty factors that place this misconduct at a general point along the spectrum of potential penalties. Comparing the penalty factors with those in other cases and their results helps the panel determine if the penalty is so far removed from what would be expected that it meets the high bar to consider rejection of the joint submission.
12If a panel is considering departing from a joint submission, it must advise the parties and provide them an opportunity to make submissions. The decision can only be based on the facts agreed upon in the agreed statement of facts and any other evidence the parties may have called. The parties are not required to share information about other facts or the circumstances that led to the joint submission: Bradley at para. 13.
Application to this Case
13The first element of the penalty is a one-month suspension. The parties provided us with cases from other colleges where penalties for failure to comply with an order of the ICRC resulted in suspensions of six weeks (College of Massage Therapists of Ontario v. Miller, 2020 ONCMTO 3), two months (College of Opticians of Ontario v. Truong, unpublished, 2021 and College of Dental Hygienists of Ontario v. Anwar, 2016 ONCDHO 4) and four months (College of Massage Therapists of Ontario v. Dartnall, 2016 ONCMTO 3, failure to comply with two orders).1
14In addition, there is a permanent term, condition or limitation on Ms. Dame’s certificate of registration that she may not provide dysphagia intervention to any patients nor practise in any acute care setting. The parties proposed this to address the issues that led to the initial investigation and order for practice monitoring. This protects the public by eliminating the risks that led to the order for practice monitoring.
15The penalty also includes a reprimand, the requirement that the registrant respond to all College communications within 15 days and that she review various College policies.
16The suspension is in the same range as other failure to comply cases. In addition, the public is more protected than under the initial order for practice monitoring, because Ms. Dame will not be allowed to engage in the types of practice that led to the concerns. The penalty and the proposed costs of $2,000 clearly do not bring the administration of the professional discipline system into disrepute, and we therefore accepted the joint submission.
17We emphasize to Ms. Dame that if she again comes before this Committee having failed to comply with her obligations to the College, including not responding to the College’s correspondence within 15 days, the penalty will be more serious. All registrants must act in a way that shows they accept the governance of their regulator or they risk losing the privilege of practising their profession.
Order
18We made the following order:
THE DISCIPLINE COMMITTEE ORDERS Ms. Dame to appear before a panel of the Discipline Committee immediately following the hearing of this matter to be reprimanded, with the fact of the reprimand and the text of the reprimand to appear on the College’s public register.
THE DISCIPLINE COMMITTEE DIRECTS the Registrar to suspend Ms. Dame’s certificate of registration for a period of one (1) month, commencing immediately following the hearing.
THE DISCIPLINE COMMITTEE DIRECTS the Registrar to impose a term, condition and limitation on Ms. Dame’s certificate of registration prohibiting Ms. Dame from:
a. providing dysphagia intervention to any patients; and
b. practising in any acute care setting.
- THE DISCIPLINE COMMITTEE DIRECTS the Registrar to impose the following terms, conditions and limitations on Ms. Dame’s certificate of registration:
a. Ms. Dame must review the following College resources and confirm completion to the Registrar in writing within 60 days of this order:
i. Practice Standards and Guidelines for the Assessment of Adults by Speech-Language Pathologists,
ii. Practice Standards for Dysphagia Intervention, and
iii. CASLPO Guide: Obtaining Consent for Services: A Guide for Audiologists and Speech-Language Pathologists; and,
b. Ms. Dame is required to respond to all College communications within 15 days.
- THE DISCIPLINE COMMITTEE ORDERS Ms. Dame to pay the College its costs in the amount of $2,000, said amount to be payable within six (6) months of the reinstatement of Ms. Dame’s certificate of registration.