COURT FILE NO.: 70/04

DATE: 20050406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lane, jennings and swinton jj.

B E T W E E N:

DR. YADVINDER SINGH DHALIWAL

Appellant

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

Ryan M. Naimark, for the Appellant

Patrice F. Band, for the Respondent

HEARD at Toronto: April 6, 2005

SWINTON J.: (Orally)

1This is an appeal from an order of the Discipline Committee of the College of Physicians and Surgeons, dated January 15, 2004.

2Dr. Dhaliwal admitted that he had committed professional misconduct because of loans that he had taken from patients. The penalty ordered by the Committee was:

(1) Dr. Dhaliwal shall attend before the panel to be reprimanded, such reprimand to be recorded on the register.

(2) The Registrar suspend Dr. Dhaliwal’s certificate of registration for ten (10) months. The first four (4) months of the suspension to begin on a date to be fixed by the Registrar. The second six (6) months of the suspension shall be eighteen months after completion of the four (4) month suspension. The second six-month suspension shall be suspended if he complies with the following terms and conditions.

(i) Dr. Dhaliwal makes restitution to Mr. and Mrs. Pr. in the amount of seventy-five thousand dollars ($75,000.00).

(ii) Dr. Dhaliwal makes restitution to Mr. Pa. in the amount of thirty-three thousand dollars ($33,000.00).

(iii) Dr. Dhaliwal provide proof to the satisfaction of the Registrar that full payment to these patients has been made prior to the start date of the six (6) month suspension.

(iv) Dr. Dhaliwal satisfactorily complete an Ethics course approved by the Registrar, at his expense, and provides proof that he has completed the course to the satisfaction of the Registrar by December 1, 2005.

(3) It is the intention of the Committee that Dr. Dhaliwal serve the full ten (10) month period of suspension if for any reason he is unable to make restitution to the patients whether because of his bankruptcy or for any other reason.

(4) The Committee further orders that Dr. Dhaliwal pay five thousand dollars ($5,000.00) towards the cost of these proceedings.

3On this appeal, Dr. Dhaliwal seeks an order to set aside the Committee’s order in part and to vary the penalty by substituting a one month suspension to begin on a date to be fixed by the Registrar and a second five month suspension, twelve months after his discharge from bankruptcy and permitted by law to make restitution to Mr. and Mrs. Pr. and Mr. Pa. The second five month suspension shall be suspended if Dr. Dhaliwal complies with the following terms and conditions:

(i) That he makes restitution to Mr. and Mrs. Pr. in the amount of seventy-five thousand dollars ($75,000.00).

(ii) He makes restitution to Mr. Pa. in the amount of twenty-three thousand dollars ($23,000.00).

(iii) He provide proof to the satisfaction of the Registrar that full payment to these patients has been made prior to the start date of the five month suspension, and

(iv) He satisfactorily completes an Ethics course approved by the Registrar at his expense and provides proof that he completed the course to the satisfaction of the Registrar by December 1, 2005.

4Both parties agree that the standard of review is reasonableness, and we agree. Deference must be shown to a Discipline Committee of a professional body where there is a penalty issue to be decided. Mr. Justice Robins, in Re Takahashi and College of Physicians and Surgeons of Ontario (1979), 1979 2045 (ON SC), 26 O.R. (2d) 353 (Div. Ct.), noted the following at 363:

The discipline committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against a member for professional misconduct, as has often been said, is not to be lightly interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee.

5The appellant argues that the Discipline Committee failed to consider mitigating factors: the admission of professional misconduct, the fact that most patients were paid back, and the lengthy period of membership in the College without any prior finding of professional misconduct. As well, he argues that the penalty is too harsh, given the decisions in three other cases where doctors had borrowed from patients (Re Devgan, [1993] O.C.P.S.D. No. 7; Re Mahon, [1997] O.C.P.S.D. No. 8; Re Kumalo, [2000] O.C.P.S.D. No. 2).

6The Discipline Committee found that the appellant abused his position of power with respect to his patients and exploited them to their financial detriment, and that he did so over a period of four years. It stated at p.9 of the Reasons:

The breach of trust was extraordinary. Dr. Dhaliwal borrowed money from an elderly couple, one of whom was on disability pension, and the other on a fixed income.

7The Committee found that the appellant was not a credible witness, and that he lacked genuine remorse and failed to accept responsibility. It also found that he used large sums of borrowed money to support an extravagant lifestyle.

8Penalty decisions turn heavily on their own facts. The facts of the three other cases cited to us are clearly distinguishable. We see no error of principle in the decision of the Committee and, given the facts of this case, its decision on penalty is reasonable.

9With respect to the amount to be paid back to Mr. Pa., there was no challenge before the Discipline Committee to the judgment of $33,000.00. Whether that is the correct amount owing is for another Court on another day.

10For these reasons, the appeal is dismissed.

LANE J.

11I have endorsed the appeal book: “The appeal is dismissed for reasons delivered orally this day. Having regard to the appellant’s bankruptcy and his obligations under the penalty imposed by the College, we fix the costs of the College at $2,500.00.”

LANE J.

JENNINGS J.

SWINTON J.

Date of Reasons for Judgment: April 6, 2005

Date of Release: April 20, 2005

COURT FILE NO.: 70/04

DATE: 20050406

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lane, jennings and swinton jj.