Date: April 4, 2025

Tribunal File No.: 23-003-AS

BETWEEN:

College of Audiologists and Speech-Language Pathologists of Ontario

College

and -

Nadezda Jakubov

Registrant

Heard: February 19, 2025, by videoconference

Panel:

Raj Anand (panel chair)

Tina D’Agnillo (speech-language pathologist)

Bonny Li (public)

Satpaul Singh-Johal (public)

Yvonne Wyndham (speech-language pathologist)

Appearances:

Bernard LeBlanc and Justine Wong, for the College

Frances A. Marinic, for the registrant

Pursuant to the panel’s order, clients or former clients of Ms. Jakubov may not be identified and there is a ban on the publication of any information identifying or reasonably identifying clients or former clients in this matter.

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

1After a five-and-a-half day hearing on the merits, we found that the registrant Nadezda Jakubov failed to meet several record-keeping requirements, including with respect to the recording of her clients’ informed consent, but that the College failed to prove that she breached the obligation to obtain informed consent orally from her clients.

2We therefore found that she failed to maintain a standard of practice of the profession, failed to keep records as required, and engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional: College of Audiologists and Speech-Language Pathologists of Ontario v. Jakubov, 2025 ONASLPDT 1 at paras 128-129.

3Based on these findings, the College asked for a penalty order that included a reprimand, a three-month suspension of Ms. Jakubov’s certificate of registration, and a requirement to complete a record-keeping course and to cooperate with four random records inspections. The College also sought a costs award of $180,049.55 against the registrant.

4The registrant argued the College’s costs request was excessive, a suspension was not appropriate, and if a suspension was ordered, it should begin during the summer.

5Having reviewed the parties’ submissions, we order a two-and-a-half-month suspension starting in three weeks, together with the other penalty terms sought by the College, and we award $90,000 in costs to the College.

6These are our reasons.

The penalty hearing

7Prior to the penalty hearing, the College filed supporting material including details of the costs it incurred, as well as books of authorities on both penalty and costs.

8The registrant did not file any material, and did not seek to testify. At the outset of the hearing, her counsel read her client’s statement indicating “the rationale for the non-submission of documents to the panel.” From reading the merits decision, the registrant said, it was obvious that she “would not receive an objective, impartial or reasonable process” at the penalty stage.

9Accordingly, she said she would not be submitting any factual or legal submissions in writing, so that “she would not provide the Tribunal with an opportunity to claim that the process was objective and she had an opportunity to respond and that this Tribunal reviewed her position without bias or prejudice.”

10Counsel stated, however, that she had instructions to make “brief comments with respect to suspension and costs at the opportune time” during the penalty hearing.

11We did not limit Ms. Jakubov’s submissions in any way. After the College’s submissions, which took about 45 minutes, Ms. Jakubov’s counsel made oral submissions for about 20 minutes on both penalty and costs.

12Counsel argued that the College’s cases were distinguishable. She submitted that the College had omitted relevant cases on records management and consent issues that the registrant had provided at the pre-hearing stage during case management conferences. She asked for permission to submit a summary of those cases, which she said were relevant to both penalty and costs. Pursuant to our directions at the hearing, the registrant’s counsel sent her summary the next morning, and the College filed brief reply submissions later the same day.

13We have taken all of the parties’ evidence, and their written and oral submissions, into account in reaching our conclusions.

Penalty analysis

14In our analysis, we have considered the objectives the Tribunal attempts to achieve through its penalty orders: 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 three-month suspension of Ms. Jakubov’s certificate of registration, to begin in 30 days; delivery of a reprimand; and the following rehabilitative measures: successful completion within six months of a Registrar-approved record-keeping course, and cooperation in four random records inspections to take place within one year.

16The registrant submits that she was always willing to take courses to improve her record-keeping, and she does not oppose that aspect of the proposed order. Ms. Jakubov argues, however, that a suspension is not necessary. In the alternative, any suspension should begin in summertime, because she is employed with a school board, and a suspension would affect the children she serves.

17We have no difficulty in accepting the College’s position, other than the length of the suspension.

18We agree that public protection and public confidence require education and verification of the registrant’s compliance with her fundamental ethical obligation of record-keeping, where we found numerous and repeated shortcomings in the registrant’s practice. Moreover, these breaches were not isolated instances; they formed a significant part of her client service over a lengthy period of time. Our findings relate to many different clients, and they concern records that were made between 2014 and 2018.

19Moreover, while Ms. Jakubov acknowledged a few of the breaches, her overall stance was that her failure to comply with the Record Regulation and the College’s publications on documenting consent were de minimis. We disagree. The missing and illegible records formed a pattern indicating that the registrant did not understand or accept a basic principle of professionalism that underpins the College’s and the legislative requirements that SLPs must meet.

20Extensive record-keeping is required to allow another SLP at any given point to “pick up the file” and provide uninterrupted and appropriate client care, respond to parents and others involved in the client’s health care or education, and maintain public confidence in the profession.

21A significant penalty is required to send the proper message to Ms. Jakubov, other registrants and the public about the seriousness of these breaches and the registrant’s obligation to take remedial steps.

22Ms. Jakubov 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 keep records. There was, however, no acceptance of responsibility, even at the penalty stage, although Ms. Jakubov indicated at the earlier hearing that she was making efforts to improve her practice. In our view, a significant suspension is needed to achieve future compliance with the broad array of record-keeping obligations that Ms. Jakubov did not meet on an ongoing basis.

23The College cited three penalty decisions that involved record-keeping violations. Every case depends on its overall circumstances, including the complete factual matrix.

24 College of Chiropodists of Ontario v. Tran, 2018 ONCOCOO 2 involved a scam in which the registrant, without proper assessment, issued prescriptions for unnecessary orthotics or orthopedic shoes to large numbers of transit employees and their families. Inadequate record keeping and billing were part of this intentional scheme. On a joint submission, the penalty included a 10-month suspension.

25 College of Chiropodists of Ontario v. Ginsberg, 2023 ONCOCOO 2, involved a practice of offering inappropriate incentives of free or discounted shoes to patients who purchased orthotics from the registrant’s clinic. His records did not reflect a proper assessment, and invoices did not mention the incentives. On a joint submission, the penalty included an eight-month suspension.

26Both of these cases contained intentional, dishonest financial misconduct, which is much more serious than Ms. Jakubov’s case. Only the third College case involved misconduct similar to our findings.

27In College of Physicians and Surgeons of Ontario v. Baranick, 2017 ONCPSD 35, there were two fundamental failures to maintain the standard of care.

28First, the physician’s practice showed “persistent shortcomings in his record keeping, despite his having undertaken specific education in that area” (p. 7). The Committee noted that

[o]ther panels of this Committee have emphasized the importance of maintaining the standard of practice of the profession in record keeping. This cannot be overstated. Making a complete and legible account of patient interactions is critical to ensuring that other caregivers will understand the assessment and the treatment plan.

29Second, the Committee cited the registrant’s significant deficits in his knowledge and skill, which led to deficient clinical care. Taken together, the misconduct merited a two-month suspension, as well as comprehensive educational requirements and a reassessment of the physician’s practice.

30In 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. 22) of one and two months, respectively. Dr. 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.”

31The 13 pages of “Case Summary Reviews” provided by the registrant after our penalty hearing contained a chart that summarizes 12 decisions of this Tribunal or its predecessor the CASLPO Discipline Committee going back about 20 years. Only one of the cases relates solely to record-keeping violations, and one other contained this finding among other forms of misconduct. Both are quite dated.

32In College of Audiologists and Speech-Language Pathologists of Ontario v Mayer-Linklater, 2007 ONCASPD 1, the registrant went on medical leave, and the Health Unit was unable to locate many of her client records in order to provide uninterrupted care. When they retrieved the records at her home, the records for some 70 clients were incomplete, and the registrant had to provide additional information from her recollection. On a joint submission, the Committee imposed a penalty that included a one-month suspension.

33The other case is College of Audiologists and Speech-Language Pathologists of Ontario v. Nurse, 2009 ONCASPD 2. Here, there were several different allegations apart from record-keeping violations, including failing to refer clients, properly prescribe hearing aids, or perform complete assessments, and by misleading the College’s investigator. The registrant received a four-month suspension, but two months would be waived if she completed certain courses and other remedial measures.

34Having regard to all of the penalty objectives and factors mentioned earlier, and comparing the severity of the misconduct here with the last four cases mentioned above, we order a suspension of two and a half months, commencing three weeks after the date of our order.

35We decline to start the suspension on a date that meets Ms. Jakubov’s preference or coincides with what may be relatively slow period in the summer. Disruption of client services is an inevitable byproduct when professional services are suspended. Part of the registrant’s responsibility at all times, whether or not she is available for work, is to work with school boards to ensure continuity of service that meets the standard of practice to which the public, including her clients, are entitled.

Costs analysis

36Section 53.1 of the Health Professions Procedural Code, which is 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:

The College’s legal costs and expenses.
The College’s costs and expenses incurred in investigating the matter.
The College’s costs and expenses incurred in conducting the hearing.

The parties’ positions

37The College seeks a substantial costs award of $180,049.55, calculated as two-thirds of its total costs of $270,074.33. That total is comprised of $181,037.90 for legal costs and expenses, $2,200.68 in investigation costs, and $86,835.75 in hearing costs for the expert witness, the Tribunal Chair who conducted case management conferences, and the three hearing panel members (which excluded the public members) who received payments from the College for the six days of hearing including the penalty stage.

38The College stresses the importance of defraying the costs to the membership where a registrant has committed professional misconduct. The College pointed to other cases that awarded costs in a similar range per day for hearings of varying lengths.

39The College submits that two-thirds of its costs has been accepted in other cases as a reasonable starting point where the College proves the allegations in the notice of hearing. The College also points to steps and positions taken by Ms. Jakubov as a litigant that in its submission lengthened the hearing and thereby increased costs.

40The registrant submitted that the College’s costs request was excessive, and took issue with the case law the College relied upon.

General principles

41In quantifying the costs, we need to achieve a “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). We accept the starting point that subject to other factors, the College should be entitled to two-thirds recovery where it has successfully proven the allegations in the notice of hearing.

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.

Overall quantum

43The College provided some cases that involved substantial costs, roughly calculated per hearing day, on the two-thirds ratio: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.), aff’d 2016 ONCA 779 ($33,000); Clokie v. The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773 (Div. Ct.) ($44,000); Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034 (Div. Ct.) ($25,000).

44The overall costs in this case – about $270,000 (including about $181,000 in legal costs) for a six-day hearing - are very high. In addition, in our view, the starting point of two-thirds recovery is incorrect. The College says it “was successful in proving the vast majority of the allegations against Ms. Jakubov,” which is not accurate.

Divided success

45Success was clearly divided in this case. The College proved the record-keeping allegations, including on the consent issue, but did not demonstrate that she failed in her fundamental professional obligation to obtain informed consent from her clients. The informed consent issue was addressed in the evidence of every witness, the expert report and many of the documents that were put before us. In our view, a proper starting point would be one-third recovery for the College.

Complexity of the factual and legal issues

46The legal and factual issues in this case were not complex. While there was a large volume of records to be reviewed, most of the relevant evidence was found in those records, and was not significantly altered by the testimony that we heard. With respect to consent, the College brought no evidence to the expert or to the Tribunal, other than the absence of records, to support its position that informed consent was not obtained,. The legal issues on the interpretation of College policies and legislation on consent were also not complex, and we did not accept the expert opinion that consent had not been obtained.

Factors that increased costs

47The large amount claimed for legal fees arises in part from the costs of two counsel until late in the hearing, and one counsel thereafter. While that is a choice the College is entitled to make, some reduction is appropriate.

48The 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. Jakubov during the pre-hearing stages. We accept some of its submissions on this point.

49Unnecessary hearing time and expense was incurred because of irrelevant, late or inadmissible evidence or challenges that the registrant advanced on the following issues:

the opinion of Mr. Jakubov, a lawyer and non-registrant, on regulatory and legal matters;
policy guidance on informed consent provided by other Colleges and a private employer;
evidence that apparently addresses a client’s experience at the clinic where the expert witness Ms. Horton works. The registrant attempted to put this forward only after the close of evidence, almost four months after Ms. Horton completed her testimony, and then did not respond to case management directions on August 26 and September 4 to identify the nature and relevance of the evidence and the reason it should have been admitted at that stage.
challenges to the admissibility of Ms. Horton’s evidence, renewed in lengthy closing submissions, months after the ruling had been made.
challenges to the appointment of the investigator, suggested by the registrant during the hearing, never made the subject of a motion, and then argued at length in closing submissions.
the registrant’s introduction or attempted introduction of documents throughout the hearing that were not produced in compliance with deadlines in prehearing case management directions. In many cases, these admissibility issues required submissions from the parties and rulings by the panel chair during or between hearing days.

50The College also cites the failure of the registrant to enter into an agreed statement of facts or otherwise shorten the evidence. Ms. Jakubov was entitled to require the College to prove its case, although that of course has consequences in running up the costs that are recoverable against her.

51Certainly, we wasted hearing time on many occasions because the registrant and her counsel did not appear to be referring to the electronic folders that were accessible to them containing all of the hearing materials, including the voluminous evidentiary record. Counsel repeatedly referred to the disclosure brief the registrant had received, which of course was not in evidence and not available to the panel at all.

52At the penalty hearing, the College relied on several cases in relation to costs. As noted earlier, the registrant took issue with these cases. But her critique largely related to the severity of the misconduct in those cases, which is not generally a significant factor for us in identifying the costs that the College is entitled to recover.

Reasonable expectations of the unsuccessful party

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. Moreover, 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 the quoted passage 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 both 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.

Ability to pay

56We did not receive any evidence about the registrant’s financial means or inability to pay a costs award.

Conclusion

57Having reviewed the various cost factors and the corresponding evidence before us, our view is that the individual items described above largely counterbalance one another, and leave us essentially at the one-third level where we started, or $90,000.

58Despite the absence of financial information from Ms. Jakubov, it is fair to say that $90,000 is a very large amount for the vast majority of people. We will therefore allow five years for payment.

Order

59We therefore order:

Penalty

The Tribunal requires the registrant to appear before the panel to be reprimanded.
The Tribunal directs the Registrar to:

a. suspend the registrant’s certificate of registration for a period of two-and-a-half (2 1/2) months, commencing 21 days after the date of this order;

b. impose the following specified terms, conditions and limitations (“TCLs”) on the Registrant’s certificate of registration, all of which the Registrant shall complete at the Registrant’s expense and to the Registrar’s satisfaction:

i. The Registrant shall successfully complete, with written proof thereof to the Registrar’s satisfaction, a Registrar-approved Record-Keeping course within six months of the order; and

ii. The Registrant shall fully cooperate in four random records inspections to take place within one year of the end of the suspension of the Registrant’s certificate of registration referred to in paragraph 2(a) above.

Costs

The Tribunal requires the registrant to pay the College costs in the amount of $90,000 payable in five equal annual installments of $18,000, with the first installment due within one year of the date of this order and then on an annual basis thereafter. Failure to pay any annual installment will result in the entire remaining amount to become immediately due and payable.