CITATION: Bayfield v. College of Physiotherapists of Ontario, 2014 ONSC 6570
DIVISIONAL COURT FILE NO.: 164/14
DATE: 20141112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, NORDHEIMER AND POMERANCE JJ.
BETWEEN:
ZAK ALASTAIR BAYFIELD Appellant
– and –
COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO Respondent
Neil J. Perrier, for the Appellant
Susan M. Chapman and Karen A. B. Ensslen, for the Respondent
HEARD at Toronto: November 12, 2014
NORDHEIMER J. (orally)
[1] Mr. Bayfield pleaded guilty to instances of professional misconduct. His plea was accepted by the Discipline Committee of the College who found that Mr. Bayfield had breached various provisions of the Regulation governing the conduct of physiotherapists in Ontario. After hearing submissions on penalty, the Committee determined that Mr. Bayfield should be suspended for a 12 month period. The Committee also determined that Mr. Bayfield should pay costs of $25,000.
[2] Mr. Bayfield does not appeal from the finding of guilt. He appeals only from the penalty and the costs order.
[3] It is agreed by the parties that the standard of review is one of reasonableness. The standard of reasonableness was defined by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47 as asking “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[4] It is well-recognized that discipline committees are particularly well-suited to determining what the appropriate penalty is for the breach of a member’s responsibilities to his/her profession: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 31.
[5] In terms of the penalty, Mr. Bayfield contends that the 12 month suspension exceeds what he says is the usual penalty in such circumstances, namely, the imposition of a reprimand.
[6] Mr. Bayfield refers to various prior decisions of the Committee for this usual penalty but those authorities deal almost entirely with situations where there was a joint submission on penalty. That, by itself, is a sufficient differentiating factor. In the two cases where there was not a joint submission (Blumfald; Laws), six month suspensions were imposed.
[7] Mr. Bayfield’s actions, that gave rise to the findings of misconduct, were not minor in nature. In particular, Mr. Bayfield misrepresented to prospective employers that he held a Master’s degree in Rehabilitation Sciences from McGill. He holds no such degree. Mr. Bayfield also misrepresented to the College that he had spent 1,750 practice hours through the International Red Cross in Afghanistan. He did not, in fact, spend those practice hours. But, for the latter misrepresentation, Mr. Bayfield would not have qualified for registration by the College.
[8] I appreciate that the penalty that was imposed on Mr. Bayfield may appear harsher, relative to the penalties imposed on other persons found guilty of professional misconduct, especially given Mr. Bayfield’s plea of guilt. However, given the nature of the misconduct involved, it was open to the Discipline Committee to conclude, as it did, that a lengthy period of suspension was required “… both as a specific deterrent to Mr. Bayfield and a general deterrent to the membership …”. That conclusion is a reasonable one that cannot be said to fall outside an acceptable range of outcomes that are defensible on the facts. My assessment, in that regard, is not affected by the Committee’s asserted failure in reaching its decision on penalty to take into account that Mr. Bayfield had earlier had his registration revoked for a month, since it is far from clear that Mr. Bayfield in fact ceased to practice during that time period.
[9] In terms of the costs award, I accept that there appears to have been some confusion over the total amount of costs that were properly attributable to this proceeding. However, even the lowest costs summary amounts to more than $50,000. The College is entitled, by regulation, to recover costs of various types as part of the discipline process. The Committee applied a two-thirds percentage to the actual costs incurred (which the Committee found to be $44,846) as being the appropriate proportion for a costs award. In doing so, the Committee relied on a previous decision in which the same percentage had been used. Indeed, in that case, it was referred to as the “usual proportion to consider” when awarding costs.
[10] Mr. Bayfield complains that the previous decision was not of the same nature or length as was his case. However, that is not the point. The percentage was used as a guide, much like 60% is often used by judges in this Province as a guide for partial indemnity costs. Any difference arising from the length of the respective cases will be reflected in the actual costs and therefore will be compensated for when the percentage is applied. The application of this guide to the actual costs led to an amount of approximately $30,000. The Committee reduced this amount to $25,000 since that is all the College had sought. I cannot find any flaw in the Committee’s approach nor do I find the end result unreasonable.
[11] The appeal is dismissed.
SACHS J.
COSTS
[12] I have endorsed the back of the Appeal Book, “For reasons delivered orally by Nordheimer J., this appeal is dismissed. As per the agreement of the parties, the appellant shall pay the respondent its costs of this appeal fixed in the amount of $7,500. The parties have further agreed that the appellant’s suspension is to become operable on November 27, 2014. It is so ordered.”
NORDHEIMER J.
SACHS J.
POMERANCE J.
Date of Reasons for Judgment: November 12, 2014
Date of Release: November 14, 2014
CITATION: Bayfield v. College of Physiotherapists of Ontario, 2014 ONSC 6570
DIVISIONAL COURT FILE NO.: 164/14
DATE: 20141112
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, NORDHEIMER AND POMERANCE JJ.
BETWEEN:
ZAK ALASTAIR BAYFIELD Appellant
– and –
COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: November 12, 2014
Date of Release: November 14, 2014