ONTARIO AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS

DISCIPLINE TRIBUNAL

Date: April 4, 2025

Tribunal File No.: 23-007-AS

BETWEEN:

College of Audiologists and Speech-Language Pathologists of Ontario

College

• and -

Emilia Bozzo

Registrant

PENALTY AND COSTS REASONS

Heard: February 12, 2025, by videoconference

Panel:

Raj Anand (panel chair)

Kiki Abbot-Moore (speech-language pathologist)

Tina D’Agnillo (speech-language pathologist)

Bonny Li (public)

Melanie Paradis (public)

Appearances:

Bernard LeBlanc, Enniael Stair and Rachel Hung for the College

Emilia Bozzo, self-represented

RESTRICTION ON PUBLICATION

Pursuant to the panel’s order, no person shall publish, broadcast or otherwise disclose the name of any of the clients or former clients, or any information that would disclose the identity of any of the clients or former clients referred to during the hearing or in documents filed at the hearing in this matter.

The Ontario Audiologists and Speech-Language Pathologists Discipline Tribunal is the Discipline Committee established under the Health Professions Procedural Code.

OVERVIEW

1After a six-and-a-half day merits hearing, we made a finding of professional misconduct with respect to some of the allegations in the notice of hearing: College of Audiologists and Speech-Language Pathologists v. Bozzo, 2025 ONASLPDT 2. When the hearing resumed, the College asked for a penalty order that included a reprimand, a six-month suspension of Ms. Bozzo’s certificate of registration, and a requirement to complete remedial courses and a mentorship program to address issues of ethics, professionalism and record keeping. The College sought costs of $88,750.27.

2The registrant testified that she had essentially been out of work for over a year because of this proceeding. She submitted that no suspension was required, and she was unable to pay anything close to what the College was seeking.

3In our January 23, 2025 merits decision, we asked the parties to consult with one another and advise the Tribunal within a week whether they intended to call any witnesses at the penalty hearing. The College provided affidavit evidence, authorities and a draft order only a day or two before the resumption of the hearing. Ms. Bozzo did not provide any material, but she saw what the College was requesting at that point in terms of penalty and costs. With the parties’ agreement, the registrant testified at the hearing, principally about her work history over the last two years and her ability to pay the costs.

4In our view, an appropriate penalty consists of a reprimand, a three-month suspension, and the courses and mentorship requested by the College. We order a payment of $25,000 in costs to the College.

5These are our reasons.

THE MERITS DECISION

6For purposes of both penalty and costs, an important starting point is the extent to which the College proved the allegations of professional misconduct. The notice of hearing as written contained 11 allegations and many sub-allegations, several of which overlapped or duplicated one another. In our merits decision, we addressed all of the allegations, and at the request of the College just before the penalty hearing, we clarified and reiterated where findings were made or not made. It is not necessary to repeat those detailed conclusions.

7We instead return to the five broad categories of allegations that we discussed in our reasons on the merits, and we summarize those findings.

8First, on the allegation that Ms. Bozzo breached her regulatory obligations by choosing to conduct telephone assessments of the three clients, we concluded at paras. 144 and 88:

144We are satisfied from the registrant’s evidence and her presentation of the case, as well as the testimony we heard about her reputation as a caregiver, that she is an experienced and committed professional, who believed she was acting in the best clinical interests of her clients during a time of unusual risk and volatility, particularly for residents of long-term care facilities.

88In our view, Ms. Bozzo’s reasoning process with respect to the method by which she would assess, treat and provide advice to the three clients was neither inflexible nor unreasonable. She exercised her professional and clinical judgment in good faith, under the extraordinary circumstances of the pandemic, and it is neither the College’s nor our role to determine whether we would have reached the same conclusion in each case.

9Second, we found that Ms. Bozzo failed to maintain proper records to safeguard the interests of her clients. Her documentation was deficient in several respects.

10Third, we concluded that she failed to cooperate with CBI Health and the College. She failed to return complete records to CBI Health, and she did not respond to emails from the College and its investigator.

11We stated with respect to the second and third allegations:

94This allegation turns largely on the documents in the three client files we were provided, the documents that the registrant says she wrote but are missing, and Ms. Bozzo’s explanation for why they are missing.

103Neither the College, nor this Committee, had sufficient information to accept that IT issues caused Ms. Bozzo’s professional shortcomings.

145[T]he evidence reveals that Ms. Bozzo was and is offended at her professional conduct being challenged, and that has contributed to her reaction when inquiries were initiated into her conduct. She failed to meet her vital professional obligation to cooperate with CBI Home Health and the College.

146Moreover, we did not accept her attempted justification – IT and phone issues and sabotage – for what we have found to be serious shortcomings in her responses to CBI and the College, and in maintaining proper clinical records to safeguard the interests of her clients.

12Fourth, we did not accept or make a finding on the College’s allegation that the registrant failed to respond to requests for feeding recommendations from one client’s family and caregivers. We found:

114We have no reason to reject the substance of her position on what she would have done in these circumstances, although we have not accepted her broad assertion that communications did not reach her. The College did not call any of the witnesses who could provide more than double hearsay evidence that she failed to respond. We therefore make no finding of professional misconduct on this allegation.

13Fifth, the College did not prove a failure to meet the collaboration standard, except to the extent that this allegation duplicated the claim of non-cooperation with the College and CBI. We stated:

141Beyond those duplications, the College and its expert rely on a vague description of workplace or professional disagreements between the registrant and a client, caregiver or family as an absence of collaboration. To demonstrate that such interpersonal behaviour merits a characterization as misconduct, the College would have to adduce more precise first-hand evidence about what was said and done by each individual.

142Only then could the Committee meaningfully assess whether one side of the disagreement acted in a manner that had the potential to harm the best interests of the client. Indeed, the Standards and the Position Statement cited by the College understandably recognize that disagreement cannot necessarily be equated with non-collaboration.

143We did not receive such evidence, and we would not brand Ms. Bozzo’s behaviour in that way.

PENALTY

14In our analysis, we have taken into account the objectives the Tribunal attempts to achieve through its ordering of penalties: protection of the public; maintenance of public confidence in the profession and the College’s ability to regulate the profession effectively; specific deterrence; general deterrence; and rehabilitation. Within that framework, we have considered the nature, seriousness and duration of the misconduct; aggravating and mitigating circumstances; and relevant jurisprudence.

15The College seeks a six-month suspension of Ms. Bozzo’s certificate of registration; delivery of a reprimand; and rehabilitative measures: completion of the PROBE course in ethics and professionalism, an approved record-keeping course, and an approved mentorship program. The mentorship would involve meeting five times within 12 months with a practice mentor to review the regulatory issues that we identified in our merits decision.

16We have no difficulty in accepting the College’s position, other than the length of the suspension.

17We agree that public protection and public confidence require education and mentorship for the registrant on the ethical obligations – principally record-keeping and cooperation with health-care agencies and the College – where we found shortcomings in the registrant’s practice. Indeed, while Ms. Bozzo made claims that we did not accept IT problems as the cause of these shortcomings, she said several times before and during the hearing that she would be happy to take relevant remedial courses.

18Proper record keeping by College registrants and prompt and complete responses to relevant parties including the College are basic regulatory obligations that are essential to maintain the standard of practice, respond to public inquiries and complaints and maintain confidence.

19Ms. Bozzo’s non-compliance with records requirements involved a relatively short period of time but resulted in many missing records. The resistance and poor attitude that she displayed when confronted by CBI and the College and asked for information took place over many months and was clearly a source of frustration for both of these bodies. A significant penalty is required to send the proper message to Ms. Bozzo, other registrants and the public about the seriousness of these breaches and Ms. Bozzo’s obligation to take remedial steps.

20Ms. Bozzo has no prior disciplinary history with the College. She was entitled to require the College to prove its case, and was not obliged to admit allegations that she was at fault with respect to straightforward regulatory obligations to respond and to keep records. There was, however, no acceptance of responsibility, even at the penalty stage.

21That said, it is fair to recognize that her vigorous defence of these claims was part of a proceeding in which she was also being accused of choosing arbitrarily to refuse in-person client assessments, thereby putting client care at risk. This was a central allegation in this hearing, on which “as an experienced and committed professional, [she] believed she was acting in the best clinical interests of her clients during a time of unusual risk and volatility” (para. 144 of our merits reasons, quoted above). She took offence to the College’s referral, and on the evidence, we upheld her position on the virtual care issue.

22The College cited several penalty decisions that involved record-keeping or report writing. Every case depends on its overall circumstances, including the complete factual matrix, but the cases provide a sense of the proper range.

23College of Physiotherapists of Ontario v. Roscala-Bonilla, 2022 ONCPO 50, was an uncontested case. The findings went far beyond record-keeping issues, and were much more egregious than in Ms. Bozzo’s case. They included the submission of misleading and excessive charges, continuing treatment that ceased to be effective, and violating boundaries, and the misconduct occurred over a protracted period.

24On a joint submission, the panel ordered an indefinite suspension pending the completion of an ethics course, the review of several standards and instructional materials and participation in a practice enhancement coaching program. The panel noted that the suspension would last at least three months “due to the logistics of completing the ordered remedial activities.”

25In College of Veterinarians of Ontario v. Van Arem and Vatcher, 2023 ONCVO 7, aff’d Van Arem v. College of Veterinarians of Ontario, 2024 ONSC 7072 (Div. Ct.), the Discipline Committee found that the two registrants had “woefully deficient” (para. 18) record-keeping practices. The Committee imposed “brief” suspensions (para. 23) of one and two months, respectively.

26Dr. Van Arem appealed his one-month suspension, arguing that there were other cases in which no suspension had been ordered. The Divisional Court dismissed the appeal, stating: “Some of the cases only involved findings related to inadequate record keeping, which resulted in short suspensions. Other cases involved more serious allegations of misconduct…which resulted in longer suspensions.” (para. 16)

27College of Physicians and Surgeons of Ontario v. Tamari, 2018 ONCPSD 43 involved a joint submission for a six-month suspension where there were “a number of serious issues and concerns” (p. 21): a history of non-compliance with 11 patient requests to transfer medical records, dating back to 1995; a dishonest response on a hospital application for reappointment; and breach of a Discipline Committee order to maintain a log of requests for third-party records.

28Dr. Tamari had two prior findings of professional misconduct, including for failure to provide reports to patients, and to respond to College inquiries, and two prior one-month suspensions. He also had mitigating health circumstances. Overall, the misconduct was more extensive, over a longer duration, and involved progressive discipline, unlike the case before us.

29The College also cited College of Physicians and Surgeons of Ontario v. Beauchemin, 2021 ONCPSD 30, which was a joint submission for a five-month suspension. There, the physician “repeatedly and persistently” (para. 21) failed to comply with an Inquiries, Complaints and Reports Committee (ICRC) order for a Specified Continuing Education and Remediation Program (SCERP) for five supervisor assessments and failed to respond to eight requests from the regulator for a patient chart. The physician also had three prior cautions from the ICRC for failure to transfer medical records in a timely way.

30College of Physicians and Surgeons of Ontario v. Gill, 2021 ONPSDT 51 was a contested penalty decision imposing a four-month suspension after a finding of failure to cooperate with the College. Unlike Ms. Bozzo’s case, there was an aggravating factor that it was “deliberate and prolonged” (para. 17). The Tribunal reviewed cases involving suspensions between three and six months, most of which involved a failure to cooperate as well as other types of misconduct or aggravating factors.

31Weighing the misconduct that was found in these cases, and having regard to the distinguishing aggravating and mitigating factors, we conclude that the suspension should not be at the “shorter” end as in Van Arem, since Ms. Bozzo’s breaches include both record-keeping and failure to respond to CBI and the College.

32Conversely, Ms. Bozzo did not engage in deliberate or prolonged non-compliance, she has no prior disciplinary record, and we expressed the view in our merits decision that she is an experienced and committed professional. She is aware of her ethical obligations and is likely to learn her lesson.

33In our view, with the experience of this referral, and the rehabilitative steps she is required to undertake, a three-month suspension is appropriate and will render it unlikely that Ms. Bozzo will repeat the records and communications failures that occurred in this case.

34We therefore order a three-month suspension of her certificate of registration, in addition to the terms, conditions and limitations relating to courses and mentorship that we list in detail in our order.

COSTS

35Section 53.1 of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18, states:

53.1 In an appropriate case, a panel may make an order requiring a member who the panel finds has committed an act of professional misconduct or finds to be incompetent to pay all or part of the following costs and expenses:

1. The College’s legal costs and expenses.

2. The College’s costs and expenses incurred in investigating the matter.

3. The College’s costs and expenses incurred in conducting the hearing.

36The College seeks a substantial costs award of $88,750.27, calculated as one-third of its total costs of $266,250.81. That total is comprised of $184,381.07 for legal costs and expenses, $10,636.70 in investigation costs, and $71,233.04 in hearing costs for the expert witness, the Tribunal Chair who conducted case management conferences (CMCs), and the three hearing panel members who received payments from the College for the seven days of hearing.

37The College submits that it is appropriate to award costs so that its registrants do not bear the full amount the College spends where a registrant has committed professional misconduct. It submits that two-thirds of its costs is a reasonable starting point. The College reduces the amount to one-third because success was divided, but it proved “arguably the most significant allegations” in the notice of hearing. The College also points to Ms. Bozzo’s conduct as a litigant that in its submission lengthened the hearing and thereby increased costs.

38The registrant’s primary position is that she does not have the financial means to pay the cost award the College is requesting. She testified that most of her caseload as a private practitioner came from CBI, and after she received her termination letter, she was whittled down to two clients within a two-year period. She got some work with Hamilton Health Sciences (HHS), but then suffered a workplace injury and received workers’ compensation. When she was ready to return to work, HHS had no available positions.

39Ms. Bozzo lives on her own, and she has taken care of vulnerable family members at the same time as her children have been in college. In 2020, her income was about $64,000, but after termination by CBI in April 2021, she said she had very little income in 2022 and 2023. In 2024, her total income was about $5,000 from a widow’s pension. She has a home with a mortgage and some registered investments.

40The College did not press the registrant for particulars or written documentation of her income, and counsel was candid in acknowledging that “99%” of the population could not pay the cost award the College was seeking. Rather, the College stressed the importance of defraying the costs to College registrants and pointed to other cases that awarded costs in a similar range per day for hearings of varying lengths.

41At the same time, the College cited the need to achieve “balance between the effect of a cost award on the [registrant] and the need for the [regulator] to be able to effectively administer the disciplinary process” (Hills v. Nova Scotia (Provincial Dental Board), 2009 NSCA 13 at para. 61).

42Without a College guideline or schedule, it is difficult to apply a daily rate or any other simple rule of thumb for costs awards in lengthy hearings that encompasses all three aspects of legal, investigation and hearing costs and allows for easy comparison. Instead, we have considered and attempted to balance several relevant factors.

43The overall costs – about $266,000 (including about $184,000 in legal costs) for a six-and-a-half day hearing and the investigation – are very high.

44The College submitted that “the conduct of the registrant during the proceedings…significantly and unduly increased the costs of this proceeding due to the registrant’s many delays.” The College cited positions and actions taken by Ms. Bozzo during the prehearing stages.

45We do not accept that the examples cited justify holding Ms. Bozzo, a self-represented registrant in an unfamiliar process, responsible for any significant amount of wasted costs.

46A case management conference was adjourned to allow Ms. Bozzo’s counsel to attend, but that retainer ended before the adjourned date. We cannot ascribe that to the registrant.

47A settlement in principle was apparently reached at a CMC, but when the College presented its draft statement of uncontested facts and joint submission as to penalty and costs, Ms. Bozzo decided to move forward with a contested hearing. The College submits that “after much correspondence between the parties, the registrant resiled,” and relies on the majority decision of the Divisional Court in Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (aff’d 2016 ONCA 779), at para. 233:

Offers to settle facilitate settlement which in turn often leads to the most just, expeditious and cost-effective resolution of a matter. In discussing the offer the Panel noted that by not accepting it, the Appellant failed to recognize his misconduct; and caused significant costs for a six-day hearing, the result of which was worse for him than the offer. In our view, the offer was a relevant factor the Panel could and did take into account in determining whether it was appropriate to award costs under s. 53.1 of the Code.

48The difficulty in this case is that we have no evidence that Ms. Bozzo received a reasonable offer, or that she resiled from it. The College did not provide evidence of the agreement in principle, nor of the settlement documents that it drafted, as part of its costs affidavit before us.

49We understand there was an agreement in principle on some sort of settlement, which when reduced to writing in formal settlement documents was rejected by the registrant. We do not know what the settlement documents contained, nor whether they reflected the agreement in principle, nor whether Ms. Bozzo’s rejection was unreasonable. Indeed, if the settlement documents reflected admissions to the five broad allegations outlined at the beginning of these reasons, a rejection of three of them would not have been unreasonable, based on our ultimate findings.

50The College is correct that the registrant failed to file her hearing documents and witness summaries by the deadline that was set by the CMC Chair. We heard during the hearing, however, that the College objected to the admissibility of these documents, which she mistakenly took as a Tribunal ruling. During the hearing, she tendered these documents, and we ruled on them at that time.

51We note as well that despite the direction at the conclusion of the finding decision, the College filed its extensive costs material, asserting the claim for about $88,000 for the first time, the day before the penalty and costs hearing. Having received notice at that time, Ms. Bozzo had to testify at the hearing to respond to the submission in the College’s brief that “the registrant has provided no evidence that she is unable to pay the requested order, with the result that the panel should assume that she is able to do so.”

52We accept the College’s position that some hearing time was wasted on the first day because of Ms. Bozzo’s absence, and we did not accept her explanation that she had received a communication the night before from the College saying the hearing day was cancelled. But the hearing went ahead, and the registrant was able to review the recording of the first day to inform herself of what had taken place.

53The College cites the majority decision in Reid at para. 228 for the proposition that “the reasonable expectations of an unsuccessful party” are not “a factor that must be considered by the panel” in assessing its costs. We questioned College counsel about this, because such a principle would mean that we should ignore the established criteria for a costs award, of the kind the College put forward and we have considered - and indeed the costs jurisprudence itself - because those are the exact principles that set the reasonable expectations of an unsuccessful party. Indeed, the College’s submission would negate accepted rules such as proportionality.

54With respect, the College’s interpretation is a misreading of the majority’s reasons, because it is taken out of context. The statement was made in Reid in response to an argument by the member, relying on the Ontario Rules of Civil Procedure (RRO 1990, Reg. 194), which states in R. 57.01(1)(0.b) that in fixing costs, the court may consider “the amount of costs that an unsuccessful party could reasonably expect to pay.” Accordingly, the court may look at the costs outlines filed by the opposing parties to decide what the successful party should be awarded.

55In Reid, the member argued, and the minority relied on the evidence, that the College was claiming 6.5 times as much as he had paid his own counsel. The majority distinguished s. 53.1 of the Code (allowing costs that go much beyond counsel fees) from the civil rules, holding at para. 228:

The costs provided for by s. 53.1 of the Code are much broader than the unsuccessful party’s legal costs which is often the measure of the reasonable expectations. The appellant purports to compare his legal costs with those of the College. In the circumstances, it is apples and oranges and therefore not comparable.

56Other considerations relevant to the costs claim are the following. The evidence in this case was not complex, and apart from the expert opinion, the College’s evidence was found for the most part in the written record. The only complex legal and factual issues related to the appropriate method of client assessment during the pandemic. On this group of issues, which took up a significant part of the hearing, we did not give weight to the expert’s opinion, or her factual premise that Ms. Bozzo adopted an inflexible rule, and we did not accept the College’s position.

57Balancing all of the considerations discussed above, and recognizing that this is not a precise arithmetic exercise, we assess the College’s costs at $25,000, payable over five years.

ORDER

58We therefore order:

Penalty

1. The Tribunal requires the registrant to appear before the panel to be reprimanded.

2. The Tribunal directs the Registrar to:

a. suspend the registrant’s certificate of registration for a period of three (3) months, or such longer time until the registrant successfully completes the remediation outlined in paragraph 2(b)(i) and (ii).

b. immediately place the following terms, conditions and limitations on the registrant’s certificate of registration all of which shall be fulfilled at the expense of the registrant and to the satisfaction of the Registrar:

i. The Registrant must unconditionally pass the PROBE course in ethics and professionalism;

ii. The Registrant must successfully complete, with written proof thereof, a Registrar-approved Record-Keeping course;

iii. The Registrant must successfully complete a Registrar-approved mentorship program requiring the Registrant to meet five times with a practice mentor to review ethical and professional obligations regarding, maintaining accurate records, and any other issues raised by the facts and findings of professional misconduct in this case, and identifying areas in the Registrant’s practice relating to the findings of professional misconduct that require remediation, with meetings to take place within a period of 12 months from the date of the completion of the suspension.

Costs

3. The Tribunal requires the registrant to pay the College costs in the amount of $25,000 in five annual installments of $5,000. The first installment is due within one year of the date of this order. Remaining payments will be due on an annual basis. Failure to pay any annual installment will result in the entire remaining amount becoming immediately due and payable.