COURT FILE NO.: 258/02

DATE: 20031212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, BENOTTO AND JENNINGS JJ.

B E T W E E N:

MILES S. MOORE

Appellant

• and -

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Guy L. Poppe and W. Fred McCague, for the Appellant

Carolyn Silver, for the Respondent

HEARD: December 12, 2003

BY THE COURT: (Orally)

1The appellant, Dr. Moore, appeals the decision of the Discipline Committee of the College of Physicians and Surgeons, dated March 27th, 2002 pursuant to s.70(1) of the Health Professions Procedural Code.

2The applicant is a family practitioner and aerospace specialist. He pleaded guilty to defrauding OHIP in the amount of $75,000 over a three year period. On March 22nd, 2001, he was sentenced to 15 months to be served in the community with respect to a criminal charge in this matter. He was also ordered to pay restitution of $75,000. We are told that he has paid a substantial amount of the restitution.

3Following the criminal conviction he was the subject of a Discipline Committee hearing at which he also entered a plea of guilty. He received a penalty of licence revocation for 12 months and was ordered to pay a $5,000 fine plus costs in the amount of $2,500. The Committee provided that if the fine and costs were paid within six months the revocation would be suspended by six months. The net effect of the sentence was therefore a sentence of six months as these conditions have been met.

4In coming to this conclusion with respect to penalty the Committee said, in referring to one of its previous decisions:

“The Committee hopes that the penalty imposed by this committee will serve as an appropriate general deterrent and convey the message that health care fraud is a serious and escalating problem, which will not be tolerated by the medical profession in Ontario.”

5The Committee then added that it was:

“Concerned that the message may not be getting out to the members of the College, as the incidence of health care fraud continues to be a significant problem.”

6The appellant alleges that the Committee has thus overemphasized the concept of general deterrence and in doing so did not adequately consider the principle of proportionality.

7In our view, the sentencing process involves a balancing of various factors with the protection of the public being the guiding principle. These factors include general and specific deterrence, proportionality, as well as the need for the College of Physicians and Surgeons to maintain its credibility in the community and with its members as a self-governing body.

8The Supreme Court of Canada has consistently held that the Court should not interfere with the disciplinary penalties imposed by self-governing professions. (See Pearlman v. Manitoba Law Society 1991 26 (SCC), [1991], 2 S.C.R. 869 at p. 888). The standard of review of such decisions should be reasonableness, meaning that after a somewhat probing examination the Court will ask itself, “Can the reasons taken as a whole support the decision?” (See Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17). In this context the decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the Tribunal from the evidence before it to the conclusions at which it arrived. (See Dr. Q. v. College and Physicians and Surgeons of British Columbia (2003) 2003 SCC 19, S.C.J. No. 18 at par. 41).

9The jurisprudence of this Court has long held that the Court will only interfere with a disciplinary penalty imposed by professional peers where there is an error in principle or where the penalty is clearly unfit. (See Takahashi v. College of Physicians and Surgeons of Ontario (1980) 1979 2045 (ON SC), 102 D.L.R. (3d) 695 (Div. Ct.) at p. 706).

10Before us, Mr. Poppe, on behalf of the appellant submits that the Committee erred in principle in not properly taking into account the proportionality principle and over emphasizing the principle of general deterrence. It is submitted that, given the dimensions of OHIP fraud, if it is appropriate that the penalties be “ramped up” over time to achieve general deterrence, this should be done gradually and not precipitously as in the instant case. It is also submitted that the plea of guilty, the character evidence and the unblemished past record were not given sufficient weight by the Discipline Committee.

11In our view, there is no error in principle in requiring the appellant’s licence to be effectively revoked for six months. The penalty imposed in this case does not over emphasize general deterrence at the expense of the proportionality principle nor is the penalty precipitous. In Re Tolentino [2002] O.C.P.S.D. No. 2 with which Mr. Poppe takes no issue, and to which he has referred us, the licence suspension was for a period of four months. The doctor in that case had defrauded OHIP of approximately $66,000 over three years. The Committee took into account the guilty plea, the character evidence and the prior unblemished record in imposing penalty. The monetary amount in the instant case as well as the mitigating factors are accordingly reasonably similar. In that case the Discipline Committee stated at par. 9:

“Health care fraud is an ever escalating problem in our society and the Committee is well aware of other recent decisions of the Discipline Committee that articulate the need for increasing severity of penalty to address this type of conduct.”

12In our view, given the reasoning of the Committee in Tolentino and the acceptance of it by the appellant, an effective penalty of six months does not constitute a precipitous increase but rather a measured response to what appears to be a continuing and an escalating problem in the medical profession. Nor are we able to say that the Committee erred in principle in giving insufficient weight to mitigating factors. In the end, we cannot say that the sentence imposed is unreasonable within the authorities such as to warrant our interference. Accordingly, the appeal is dismissed.

13I have endorsed the appeal book as follows: “This appeal is dismissed for oral reasons by the Court. Costs to the respondent on a partial indemnity basis, fixed in the amount of $3,500 inclusive of disbursements and GST. We leave the manner in which the licence suspension is to operate to the Registrar.”

THEN J.

BENOTTO J.

JENNINGS J.

Date of Reasons for Judgment: December 12, 2003

Date of Release: December 18, 2003

COURT FILE NO.: 258/02

DATE: 20031212

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT