Dr. Kai v. College of Chiropractors of Ontario, 2010 ONSC 2792

Dr. Kai v. College of Chiropractors of Ontario, 2010 ONSC 2792

CITATION: Dr. Kai v. College of Chiropractors of Ontario, 2010 ONSC 2792

DIVISIONAL COURT FILE NO.: 475/09

DATE: 20100512

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, LEDERMAN AND SACHS JJ.

BETWEEN:

DR. IAN KAI

Appellant

– and –

COLLEGE OF CHIROPRACTORS OF ONTARIO

Respondent

Sean Dewart and

Heidi Rubin, for the Appellant

Chris G. Paliare and

Karen Jones, for the Respondent

HEARD at Toronto: May 12, 2010

lederman j. (ORALLY)

Nature of Proceeding

1This is an appeal pursuant to s.70(1) of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, by the appellant, Dr. Kai of the decision of the Discipline Committee of the College of Chiropractors of Ontario, finding the appellant guilty of professional misconduct by failing to attend a Record Keeping Workshop.

2The appellant also appeals the penalty imposed by the Discipline Committee of a 60 day suspension, 40 days of which could be suspended if the appellant, at his own expense, successfully completes an ethics examination and subjects himself to peer assessment.

Standard of Review

3With respect to standard of review, true questions of jurisdiction and questions of law of central importance to the legal system are subject to a correctness standard.

4On the substantive findings made by the Discipline Committee, this Court has held in reviewing professional discipline bodies, decisions under their own statutes as to what constitutes professional misconduct is a question of mixed fact and law that attracts a reasonableness standard. (See for example, Yar v. College of Physicians & Surgeons [2009] O.J. No. 1017 (Div. Ct.)).

5Moreover, given their expertise, discipline bodies are owed deference in determining whether there has been professional misconduct and what the penalty for that misconduct should be.

Finding of Professional Misconduct

6The appellant argues on this appeal that the alleged offence set out in the Notice of Hearing of failing to attend a Record Keeping Workshop falls outside the jurisdiction of the Discipline Committee if the Workshop was not mandatory but purely voluntary. The appellant submits that, as the Discipline Committee found that the mandatory nature of the Workshop was

“not an essential element of the allegation”, the Discipline Committee exceeded its jurisdiction in treating the appellant’s failure to attend a voluntary Record Keeping Workshop as a question of professional misconduct.

7Rather, the appellant submits that the appellant was found guilty by the Discipline Committee of failing to read and respond to the College’s communications and notices, a matter for which he had not been charged in the Notice of Hearing.

8It is clear from the Reasons that the Discipline Committee did not hold that the mandatory nature of the Workshop was not an essential element of the offence. It found at page 5 that:

“… the existence of a Council resolution or otherwise documented direction, dealing with the mandatory nature of the Record Keeping Workshop is not an essential element of the allegation against Dr. Kai.” (emphasis added)

9That finding was in response to counsel for the appellant’s submission at the Discipline Committee hearing on a non-suit motion, that the College had not properly proven that attendance was mandatory because it had not adduced evidence of a Council resolution or other authoritative document to that effect.

10The mandatory nature of Workshop attendance was sufficiently established by the evidence of Annual Reports, Notices and Newsletters emanating from the College sent to its members including the appellant, clearly indicating that attendance was mandatory.

11Such official communications coming directly from the College, even if technically hearsay, are sufficiently reliable, given their source as to be admissible before the Discipline Committee.

12The College’s witness, Dr. Bruce Walton, a consultant to the Quality Assurance Committee, who was personally involved in authoring one of the Notices, testified about the Notices to members and that attendance at Record Keeping Workshops was mandatory.

13He was not cross-examined or challenged on the issue of whether attendance was in fact mandatory. Nor was any contradicting evidence adduced by the appellant.

14In the absence of any challenge by the appellant to the reliability of these Notices stating that attendance was mandatory, we find that the Discipline Committee was correct in holding that it was not necessary for the College to technically prove that a Council resolution made such attendance mandatory.

15Had the appellant actually disputed the validity of the requirement as stated in the Notices to attend a Record Keeping Workshop, he should have done so directly at the hearing.

16Accordingly, we find that there was admissible evidence upon which the Discipline Committee could conclude that attendance at a Record Keeping Workshop was mandatory.

17The main issue before the Discipline Committee and for which the appellant had notice, was whether he failed to attend a Record Keeping Workshop and whether in all the circumstances that constituted professional misconduct.

18At p. 9 of its Reasons, the Discipline Committee relied on the following findings of fact to reach its conclusion that the appellant acted unprofessionally:

• Over approximately 4 years, Dr. Kai received numerous communications in his office informing him of his requirement to attend a Record Keeping Workshop.

• Through his own processes and at his own admission Dr. Kai willfully created an environment where communication from his regulator body was not, in all cases, coming to his attention.

• Dr. Kai failed to attend a Record Keeping Workshop when he knew, or ought to have known, he was required to do so.

19There is no dispute that the appellant received eleven Notices from the College and also a letter directed urgently and personally to him dated November 16, 2007 from Dr. Berman, the Chair of the Quality Assurance Committee, emphasizing to him that he is required to attend a Workshop by December 31, 2007 and that failure to do so will lead to referral to the Executive Committee for further action, including referral of allegations of professional misconduct to the Discipline Committee.

20The appellant simply turned a blind eye to any communications coming from the College, by never opening such mail.

21It was reasonable for the Discipline Committee to conclude that there was a failure by the appellant to attend a Record Keeping Workshop as he was required to do, and in the circumstances, that constituted professional misconduct.

Penalty

22As to penalty, the appellant submits that the imposition of a suspension was out of proportion to the nature of the offence of failure to attend a Record Keeping Workshop.

23The Discipline Committee did not have a joint submission by counsel as to penalty.

24The College sought suspension of three to four months. Counsel for the appellant submitted that a reprimand was more appropriate.

25The Discipline Committee had evidence before it of the appellant’s extensive history of failing to respond to the College and the Discipline Committee was not assured that the appellant appreciated the importance of receiving and responding to College communications.

26He had ignored a previous Direction by the Complaints Committee to familiarize himself with a College Bulletin concerning the collection of health card numbers from patients.

27The Discipline Committee also had before it evidence that over several years, the appellant consistently failed to pay annual College registration fees in a timely way. On one occasion, his registration was suspended for non-payment of fees.

28In light of such evidence, the Discipline Committee imposed a structured penalty whereby the length of the appellant’s suspension depended on his taking certain remedial steps which would assist him in recognizing his responsibility to the College and the importance of keeping current with standards.

29Counsel for the appellant submitted that he was never given an opportunity to make submissions about those remedial steps.

30However, taking an ethics examination and being peer reviewed are not compulsory. They are optional and if taken, would reduce the length of suspension. We see no procedural unfairness in the Discipline Committee giving the appellant this option.

31Having regard to the aggravating factors and the mitigating good character evidence submitted by the appellant, we find that the penalty, in all the circumstances, was within an appropriate range and was reasonable.

32The appeal is therefore dismissed.

JENNINGS J.

33I endorse the back of the Appeal Book, “This appeal is dismissed for the oral reasons of the Court delivered today. Costs payable to the College by Dr. Kai in the agreed sum of $13,000.00 inclusive.”