DISCIPLINE COMMITTEE OF THE COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO
BETWEEN:
College of Audiologists and Speech-Language Pathologists of Ontario (College)
- and -
Brenda Berge (Registrant)
PENALTY REASONS
Heard: June 3, 2024, by videoconference
Panel: Sherry Liang (panel chair) Kim Eskritt (AUD) Bonny Li (public) Melanie Paradis (public) Dana Parker (AUD)
Appearances: Bernard C. LeBlanc, for the College Brenda Berge, not present or represented
INTRODUCTION
1In a decision delivered orally on June 3, 2024 and issued in writing on June 4, 2024, College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 3, we found that the registrant, an audiologist, engaged in professional misconduct when she did not co-operate with an investigation and retweeted an offensive and discriminatory statement on social media. In arriving at our findings on her social media post, we considered the registrant’s right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms (Charter). We concluded that our findings of professional misconduct proportionately balance the College’s statutory objectives with the registrant’s expressive rights.
2The College asked the panel to impose a reprimand and revoke her certificate of registration. In the alternative to revocation, it requested a suspension of the registrant’s certificate for nine months or until her completion of remedial education, whichever is longer. We ordered a penalty that included a reprimand, a six-month suspension of the registrant’s certificate of registration and terms, conditions and limitations. The panel delivered the reprimand at the hearing in the registrant’s absence. We reserved our decision on costs.
3We award the College $25,157.80 in costs. Below are the reasons for the penalty and costs orders.
PENALTY
4Since the professional misconduct includes public commentary, our penalty order will have an impact on the registrant’s Charter right to freedom of expression. In the same manner that we considered her Charter rights in arriving at our finding of professional misconduct, we balance those rights with statutory objectives in making our penalty order. We conclude that the impact on her rights of a penalty that includes a reprimand, six-month suspension and terms, conditions and limitations is proportionate and does not unduly infringe on Charter rights.
Negative effects on Charter rights
5Our earlier decision discussed the importance of the Charter right to freedom of expression in a free and democratic society and we rely on that analysis here. The penalty imposed will affect the registrant’s Charter right to express her views about social matters. It may have a chilling effect on the expressive rights of other registrants who wish to communicate similar views.
Penalty objectives
6The 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.
Proportionality analysis
7We are satisfied that our penalty order achieves statutory objectives while being a proportionate response relative to the impact on the registrant’s freedom of expression. In arriving at our conclusions, we considered the seriousness of the misconduct and the registrant’s discipline history. We also considered relevant the penalties ordered in other cases, in that penalties in similar circumstances should be similar and, where they diverge, there should exist a principled basis for the difference.
8The misconduct in this case is serious, as it involves two types of professional misconduct. The registrant’s communication was unprofessional and repugnant. Moreover, her failure to cooperate with the College’s investigation undermines the College’s ability to regulate the profession in the public interest. This case calls for a penalty which sends a message to the registrant and others that the College will take action to ensure that members of the profession do not engage in transphobic public speech that reflects poorly on the registrant’s professionalism and can undermine public trust in the profession. The registrant’s lack of cooperation with the College’s investigation of a public health complaint also merits a penalty demonstrating that the College takes seriously its responsibility to protect the public.
9As in the prior cases involving this registrant (see College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 4 and College of Audiologists and Speech-Language Pathologists of Ontario v. Berge, 2024 ONCASPD 5), the material before us raises concerns about the registrant’s governability, which is a factor relevant to the penalty. The College submitted that revocation of a certificate or, in the alternative, a lengthy suspension, is the only adequate response to ungovernability. It submitted that the goal of public protection as well as the need for specific and general deterrence support imposing the penalty of revocation.
10Further, it argues there are no mitigating factors such as evidence of an interest in rehabilitation, that might support a lesser penalty. Rather, the nature of the misconduct in this case, a refusal to cooperate in the College’s efforts to investigate a public health complaint, weighs in favour of a severe penalty. In its submission, public health is the reason for the College’s existence and it cannot adequately do its job unless members cooperate. Although the fact that the public health inspector found no violations is positive, it is not an answer.
11We do not find revocation an appropriate penalty on the facts before us. Although the misconduct at issue is serious, it is not at the gravest end of the spectrum. We have no evidence that the retweet of a transphobic comment is more than an isolated incident. The failure to cooperate is not part of an extended pattern of similar misconduct. The registrant’s prior disciplinary history consists of a finding of misconduct in 2015, arising out of her use of the title “doctor” in providing or offering health care services to individuals.
12The decisions the College provided to us illustrate the range of penalties in roughly similar circumstances. In two cases, involving a physician and an educator respectively College of Physicians and Surgeons of Ontario v. Maciver, 2020 ONCPSD 10 and Ontario College of Teachers v. Le Blanc 2022 ONOCT 108), the parties agreed on the penalty of a reprimand and one-month suspension for multiple offensive social media communications.
13Suspensions ordered for non-cooperation with health regulatory investigations appear to be in the range of two to six months, with most cases including additional findings of misconduct (see College of Physicians and Surgeons of Ontario v. Gill, 2021 ONPSDT 51, at para. 12). We do not find the decisions in College of Massage Therapists of Ontario v. Brown, 2021 ONCMTO 5 and College of Physicians and Surgeons of Ontario v. Trozzi, 2024 ONPSDT 2 helpful, in that the penalty orders address significantly more serious disciplinary histories and/or acts of misconduct than those before us.
14Considering all of the above, we conclude that a six-month suspension is a more proportionate response than revocation or the nine-month suspension the College proposed in the alternative. This suspension, along with the reprimand and other penalty provisions, protects the public, serves as general and specific deterrence and is reasonably within the range imposed in similar cases. It achieves statutory objectives while impairing Charter rights no more than is reasonably necessary to accomplish those objectives.
15The College’s legitimate concerns about the registrant’s governability lead us, as in the related cases, to require that she complete remediation activities before she can return to practice. She must demonstrate that she has an understanding of professional ethics and governability and the College’s role in regulating the profession.
COSTS
16Under 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.
17The 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 practise their chosen profession, or from being able to dispute misconduct allegations (paras. 44-45).
18The College requests that the panel order the registrant to pay $37,736.70, 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. It makes the same submissions in support of this position as it did in the related cases against this registrant.
19Our decision on penalty and costs in those cases is found at College of Audiologists and Speech-Language Pathologists of Ontario v Berge, 2024 ONCASPD 4 and College of Audiologists and Speech-Language Pathologists of Ontario v Berge, 2024 ONCASPD 5. We apply the same principles in our award of costs here.
Analysis
20We find this to be an appropriate case in which to order costs under s. 53.1 of the Code. The College was entirely successful in proving misconduct. It is only fair that its registrants not bear the full weight of the College’s successful prosecution of this case.
21As to the amount of costs, the circumstances before us are not substantially different from the previous cases. As we did there, we find that an award of two-thirds of the College’s actual 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.
22As in the previous cases, the registrant’s conduct during the proceedings added some undue delay and additional costs. 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 Organized Pseudolegal Commercial Argument (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).
23However, 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. The 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.
24We also consider that even an award of two-thirds of the actual costs is a large amount.
25In 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 cases, allow the registrant to pay the costs over time.
ORDER
26We ordered at the hearing:
that the Registrant appear before a panel of the Discipline Committee (or a subset thereof) to receive a reprimand;
that the Registrant’s certificate of registration to practise audiology be suspended for a period of six (6) months, or until such time as the Registrant completes the remediation activities as described in paragraph 3. (i) to (ii) below, whichever is later;
that the following terms, conditions and limitations be imposed on the Registrant’s certificate of registration:
i. that the Registrant successfully complete a PROBE Ethics and Boundaries course, at her own expense;
ii. a specified continuing education and remediation program comprised of a course to be approved by the Registrar in advance addressing ethics and governability.
27We now order:
- that the Registrant pay the College $25,157.80 in costs, according to the following schedule:
i. $8,000 by October 13, 2024;
ii. $8,000 by April 13, 2025;
iii. The balance by October 13, 2025;
- that if the Registrant fails to pay any of the above amounts on the dates specified, the full amount will become owing immediately.