College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 4

DISCIPLINE COMMITTEE OF THE COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO

v. Berge, 2024 ONCASPD 4

Date: June 4, 2024 File No.: 23-004-AS

BETWEEN:

College of Audiologists and Speech-Language Pathologists of Ontario (College)

• and -

Brenda Berge (Registrant)

PENALTY REASONS

Heard: May 13, 2024, by videoconference

Panel: Sherry Liang (panel chair) Kim Eskritt (AUD) Satpaul Singh Johal (public) Bonny Li (public) Dana Parker (AUD)

Appearances: Bernard C. LeBlanc and Amanda Byrd, for the College Brenda Berge, not present or represented

RESTRICTION ON PUBLICATION

Pursuant to the panel’s order, the complainant shall not be identified and there is a ban on the publication of any information identifying or reasonably identifying the complainant in this matter. There may be significant fines for breaching this restriction.

INTRODUCTION

1In a decision issued on April 26, 2024, College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 1, we found that the registrant, an audiologist, engaged in misconduct within the meaning of paragraphs 2 (failing to maintain a standard of practice of the profession), 8 (discontinuing professional services that are needed), 10 (failing to refer a client to more appropriate service when the registrant is unable to provide adequate service or failing to refer a client who requires additional services in other professional areas), 13 (breaching an agreement with a client relating to professional services for the client or fees for such services), 19 (failing to keep records as required) and 37 (disgraceful, dishonourable or unprofessional conduct) of s. 1 of O. Reg. 749/93 under the Audiology and Speech-Language Pathology Act, 1991, SO 1991, c. 19 (the Professional Misconduct Regulation).

2At the time set for the hearing on penalty and costs the registrant did not appear, despite having been sent notice of the hearing. The hearing technician sent the registrant a reminder about the hearing and re-sent the link for joining the remote proceedings. The panel waited a half-hour and then proceeded with the hearing without the registrant.

3Based on the College’s evidence and submissions, we ordered a penalty that included a reprimand, a nine-month suspension of the registrant’s licence to practise audiology and terms, conditions and limitations on her certificate of registration. Three months of the suspension are to be suspended (will not be required to be served) if the registrant completes the remediation activities within six months of the order. The panel delivered the reprimand at the hearing in the registrant’s absence. We reserved our decision on costs.

4Below are the reasons for the penalty order. We award the College $43,716.73 in costs.

PENALTY

5The most important goal of a penalty order is the protection of the public. Related to this, a penalty should serve the purposes of discouraging the registrant and other registrants from committing misconduct (specific and general deterrence), rehabilitation and ensuring a safe return to practice where appropriate and expressing the Discipline Committee and profession’s disapproval of the misconduct.

6In assessing which penalty best achieves these purposes, relevant factors include the seriousness of the misconduct, any discipline history, the registrant’s actions since the misconduct and their personal circumstances. Penalties ordered in other cases are also important, in that penalties in similar circumstances should be similar and, where they diverge, there should exist a principled basis for the difference.

7In this case, we consider the misconduct to be serious. As described in our earlier decision, the registrant failed utterly in fulfilling her professional responsibilities to the client. The client experienced months of fruitless and frustrating attempts to begin the dishonourable and unprofessional conduct. The registrant’s conduct fell below the standards expected of the profession.

8These actions had a harmful effect on the client and the reputation of the profession. Not only did the misconduct result in a delay in treatment, but it also left the client (as described in her evidence) unwilling to trust the profession as a whole.

9The College asked the panel to impose a reprimand and a suspension of the registrant’s certificate of registration for nine months or until her completion of remedial education, whichever is longer.

10The College provided the panel with two cases in which registrants of other health colleges engaged in roughly similar misconduct. In the first, College of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario v. Li, 2017 ONCTCMPAO 6, the registrant closed her practice without notice to her clients or providing a means of communicating with her. A client was unable to contact the registrant to recover unused funds he had prepaid for health services. The Discipline Committee of that College imposed a penalty that included a three-month suspension.

11In College of Physiotherapists of Ontario v. Soleman, 2019 ONCPO 27, a physiotherapist was found to have engaged in professional misconduct by, among other things, closing his practice without notice to his patients or making any arrangements for alternative care. Several patients tried unsuccessfully to obtain their health records from the registrant. The circumstances were more serious than in Li, in that the Discipline Committee found that the registrant falsified some patient records. Based on a joint submission, the Committee imposed a penalty that included a six-month suspension of the registrant’s certificate of registration, with three of those months suspended on successful completion of specified remediation activities.

12We find that the circumstances before us justify a more severe penalty than in the above cases. Among other things, the registrant’s misconduct here caused specific harm to a client’s well-being in that it led to a delay in starting treatment. The client has not sought out another audiologist at all because, as a result of this experience, she came to feel that no one could truly help her.

13Another factor weighing in favour of a severe penalty is the registrant’s history before the Inquiries Complaints and Reports Committee (ICRC) and discipline history. In Soleman, the Committee found, as a mitigating factor, the absence of any prior disciplinary findings. In this case, the College provided the panel with an extensive history of complaints against the registrant leading to dispositions by the ICRC (previously called the Complaints Committee) as well as a decision by the Discipline Committee.

14Most of these complaints were resolved by cautions or specified continuing education or remediations programs (SCERPs), without referrals to the Discipline Committee. We do not rely on the ICRC decisions for the purpose of progressive discipline. They are based on written materials without formal proof. However, they demonstrate that the registrant has had many opportunities to be reminded of her professional responsibilities to her clients. Since several of the dispositions concerned allegations of poor communication with clients, they are relevant to the case before us in the sense that the registrant is well aware of the expectations of the profession in this area.

15The registrant was also the subject of a Discipline Committee finding that she engaged in professional misconduct by using the title “doctor” in the course of providing or offering health care services to individuals. The Committee ordered a reprimand, suspended her certificate of registration for three months (with one month remitted), directed that she take a course in professional ethics and imposed a program of unannounced inspections of her practice.

16The College argued before us that we should also have regard to the registrant’s conduct, suggesting she is ungovernable. The Discipline Committee’s decision resulted in protracted litigation including an unsuccessful appeal to the Divisional Court and additional unsuccessful efforts to challenge the decision. Ultimately, a judge of the Divisional Court found a motion to re-open the decision dismissing her as appeal frivolous, vexatious and an abuse of process. He prohibited her from “commencing or pursuing any further proceedings against the College or any of its agents or employees in respect to or in any way related to the underlying discipline case without first obtaining prior permission from an administrative judge of the Divisional Court to so do” (Berge v. College of Audiologists, 2021 ONSC 4403 at para. 10).

17We agree that the material before us raises concerns about the registrant’s governability, which is a factor relevant to the penalty. Certainly, she is entitled to take legal steps to challenge a Discipline Committee decision but the statements by the judge point to a refusal to accept the authority of the Committee as part of the statutory scheme for regulating the profession. The documents she has filed in this case (described in our earlier decision) also indicate that she does not believe in the legitimacy of these proceedings.

18Our concerns about the registrant’s governability lead us to accept the College’s position that she complete remediation activities before she can return to practice. A suspension alone, while serving penalty goals, does not give us confidence that she will accept the College’s role in ensuring that she practises in accordance with the standards of the profession. If she wishes to continue to practise as an audiologist, she must accept its authority to regulate registrants in the public interest, including establishing a program of remediation.

19Having regard to the seriousness of the misconduct, the penalties imposed in other similar cases and the registrant’s prior history, we agree with the College that a nine-month suspension of her certificate of registration is warranted. However, we also recognize that a nine-month suspension is a lengthy one. We find it appropriate to give the registrant an opportunity to reduce the length of the suspension provided that she completes the remediation activities within six months of our order. If, however, she fails to take those steps, the suspension will run for nine months, or until the date she completes them, whichever is later.

20We accept the College’s submission that a reprimand will serve the purpose of reminding the registrant and the public that the Committee takes this type of misconduct seriously and include it in our penalty order.

COSTS

21Under s. 53.1 of the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18), the Discipline Committee may, in an appropriate case, make an order requiring a registrant the panel finds has committed an act of professional misconduct or is 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; and (3) the College’s costs and expenses incurred in conducting the hearing.

22The panel’s power to award costs under this provision is broad and discretionary: Freedman v. Royal College of Dental Surgeons, [2001] O.J. No. 1726 (Div. Ct.) at paras. 3 and 6 and Aronov v. Royal College of Dental Surgeons, [2002] O.J. No. 5973 (Div. Ct.) at para. 54, cited in Reid v. College of Chiropractors of Ontario, 2016 ONCA 779 at para. 24. In Abrametz v The Law Society of Saskatchewan, 2018 SKCA 37, the court observed that the focus of a costs award in a professional disciplinary setting is not to indemnify the opposing party but for the sanctioned member to bear the costs of disciplinary proceedings as an aspect of the burden of being a member and not to visit those expenses on the collective membership. This principle does not necessarily mean full indemnification. Further, a costs award is not meant to be a penalty and should not be so prohibitive as to prevent a member from defending his or her ability to practice their chosen profession, or from being able to dispute misconduct allegations (paras. 44-45).

23The College requests that the panel order the registrant to pay $65,575.09, which represents the full amount of its legal costs and expenses, and costs and expenses incurred in conducting the hearing. These include the costs of case management conferences, written submissions and the hearing. We determine that an appropriate costs award is two-thirds of that amount.

College’s submissions

24The College submits that both the Ontario Divisional Court and Court of Appeal for Ontario have affirmed the appropriate costs considerations in this province, including the “well-established two-thirds quantum.” It states that although it would normally seek two thirds of its costs, given the registrant’s choice to engage in Organized Pseudolegal Commercial Argument (OPCA) (described in the panel’s earlier decision) and her contribution to considerable delays, it is appropriate in this case to seek an elevated costs award. It states that “the amount must ultimately reflect not just the extent of the College’s success but also the time clearly wasted by the defence and the Registrant throughout the process.”

25The College relies on cases in which, in the context of civil actions, courts have awarded elevated costs against litigants who abuse court processes through OPCA tactics. In Dempsey et al. v. Envision Credit Union et al., 2006 BCSC 1324, for example, at para. 33, the court described the litigants as having engaged in a “deliberate orchestrated series of events intended to frustrate the court’s process, delay the progress of the action, and prevent the Applicants from advancing their motions to dismiss the claims.” The court also described the respondents’ claims at para. 34 as “so completely devoid of merit that the Respondents should be penalized for launching such actions.”

Analysis and finding

26We find this case to be an appropriate one in which to order costs under s. 53.1 of the Code. The College was entirely successful in proving misconduct under all the grounds set out in the Notice of Hearing. Applying the principles set out above, it is only fair that its registrants not bear the full weight of the College’s successful prosecution of this case.

27As to the amount of the costs, in most of the cases the College referred us to, including those in which costs awards were upheld by the courts, professional regulators requested and were awarded between approximately half and two-thirds of their actual costs. Despite the College’s submission, the caselaw provided to us does not firmly establish that two-thirds of actual costs are a well-established measure for costs before this Committee or is a floor beyond which additional costs should be awarded based on the registrant’s conduct in the proceedings. In the previous case involving this registrant, for example, the College requested and the Committee awarded about 38% of actual costs.

28In the circumstances of this case, we find that an award of two-thirds of the College’s costs achieves an appropriate balance between the effects on the College’s registrants and the principle that costs award should not be so prohibitive as to deter registrants from being able to dispute misconduct charges.

29We recognize that in this case, the registrant’s conduct during the proceedings added some undue delay and additional costs and warrants consideration in the costs award. She was responsible for delays in scheduling case management conferences, thus generating unnecessary communications. Some time was spent during those conferences addressing the registrant’s use of groundless OPCA arguments and tactics, including an unsuccessful motion to prohibit counsel for the College from continuing to represent it (see College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2023 ONCASPD 5).

30Further, as noted in our prior decision, the registrant delivered a large volume of OPCA documents to the panel. She delivered similar material to the College over the course of these proceedings. In a Case Management Direction, the case management chair stated that the College was not required to take any action in response to those materials.

31However, the case management conferences, even including scheduling delays and an unsuccessful motion, represent a minor portion of the College’s costs, as does its review of the OPCA material. Unlike in the court decisions where the conduct of OPCA litigants resulted in disruption and frustration of the usual court processes, the registrant’s adoption of OPCA tactics has had, to date, a limited impact on these proceedings and the College’s resources. Rather, the great bulk of the College’s costs is attributable to preparation for and attendance at the hearing of this case, which is time that would have been necessary in any event.

32We also consider that even an award of two-thirds of the actual costs is a large amount.

33In sum, in the circumstances before us, considering the general principles of costs awards as well as factors specific to this case, we award the College two-thirds of actual costs as set out in its Costs Brief. We will, as did the panel in the prior case, allow the registrant to pay the costs over time.

ORDER

34We order:

a. that the Registrant appear before a panel of the Discipline Committee (or a subset thereof) to receive a reprimand;

b. that the Registrant’s licence to practise audiology be suspended for a period of nine (9) months, three (3) of which is to be suspended provided the Registrant completes the remediation activities set out below within six months of this order;

c. that if the Registrant does not complete the remediation activities within six months of this order, the Registrant’s licence to practise audiology be suspended for a period of nine months, or until such time as the Registrant completes the remediation activities, whichever is later;

d. that a term, condition and limitation be imposed on the Registrant’s certificate of registration that the Registrant successfully complete a Specified Continuing Education and Remediation Program, at her own expense, comprised of a course to be approved by the Registrar in advance addressing appropriate client communications, the establishment of a professional relationship, and professional obligations to clients;

e. that the registrant pay the College $43,716.73 in costs, according to the following schedule:

i. $15,000 by July 13, 2024;

ii. $15,000 by January 13, 2025;

iii. The balance by July 13, 2025;

f. that if the registrant fails to pay any of the above amounts on the dates specified, the full amount will become owing immediately.