CITATION: Baird v. College of Chiropractors of Ontario, 2015 ONSC 1484
DIVISIONAL COURT FILE NO.: 2/14
DATE: 20150319
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Hambly and M. Edwards JJ.
BETWEEN:
Dr. John Baird
Appellant
– and –
College of Chiropractors of Ontario
Respondent
Jerome R. Morse, for the Appellant
Chris G. Paliare, for the Respondent
HEARD at Toronto: March 3, 2015
H. Sachs J.:
Introduction
[1] The Appellant is a chiropractor, who is appealing the decisions of the Discipline Committee of the College of Chiropractors of Ontario (the “Tribunal”) finding him guilty of professional misconduct, suspending his licence for 15 months and ordering him to pay the Respondent’s costs of the proceeding in the amount of $80,000.
[2] After the misconduct decision and the hearing with respect to penalty, but before the decision on penalty, the Appellant brought an application before the Tribunal seeking leave to file fresh evidence that he stated was relevant to the question of penalty, but not to the question of misconduct. A procedure was agreed to by all counsel for the hearing of that motion. That procedure did not involve the Tribunal actually looking at the fresh evidence. The Tribunal heard the motion and declined to receive the evidence.
[3] The Appellant’s central submission on this appeal is that the Tribunal erred in law on the fresh evidence application and that if it had received the fresh evidence, this would have had a fundamental effect on its decisions regarding misconduct, penalty and costs.
[4] The Appellant argues that the Tribunal committed an error in law when it decided the fresh evidence motion without actually reviewing the evidence.
[5] In making this submission, the Appellant relies on the Court of Appeal’s articulation of the test for the admission of fresh evidence in DeGroote v. Canadian Imperial Bank of Commerce, 1999 4115 (ON CA), [1999] 121 O.A.C. 327, 1999 CarswellOnt 1902, at para. 3:
[t]he decision whether or not to reopen the motion was discretionary. While the test has been expressed in a number of ways, it essentially comes to this. The court must consider whether the evidence would probably have changed the result and whether that evidence could have been discovered by the exercise of reasonable diligence. The reasonable diligence requirement will, however, be relaxed in exceptional circumstances where necessary to avoid a miscarriage of justice.(emphasis added)
[6] In deciding the fresh evidence application, the Tribunal found that the Appellant had not met the due diligence prong of the test for the admission of fresh evidence. According to the Appellant, the Tribunal could not decide whether this was one of those exceptional cases where the due diligence requirement should be relaxed without actually looking at the evidence.
[7] There are two problems with this submission. First, in not looking at the evidence, the Tribunal was following a procedure that had been agreed upon by all the parties, including the Appellant. In these circumstances, the Tribunal was entitled to assume that this was not one of those exceptional cases where the due diligence requirement should be relaxed.
[8] Furthermore, the Agreed Statement of Facts that the parties filed with respect to the fresh evidence motion would have reinforced this assumption. Specifically, the Tribunal was told that the Appellant’s counsel did not believe that the fresh evidence would affect the findings of professional misconduct. If it would not have affected the findings of professional misconduct, the Tribunal was entitled to assume that it was not the kind of evidence whose receipt was necessary in order to avoid a miscarriage of justice.
[9] Secondly, having been apprised of the evidence, it is clear to us that this is not one of those exceptional cases where the due diligence requirement had to be relaxed to avoid a miscarriage of justice. The evidence consists of an e-mail that the Appellant sent after all of the conduct giving rise to the findings of professional misconduct had occurred.
[10] According to the Appellant, the e-mail establishes that after he was confronted by an insurance company investigator about the fact that he was letting a paralegal called Roland Spiegel use his electronic signature on forms that had been submitted to the insurance company, he wrote to Mr. Spiegel and told him that he should immediately stop using his name on the forms. The Appellant argues that this is important because the Tribunal was clearly disturbed by the fact that the Appellant did not take the steps they would have expected him to take after his meeting with the investigator. According to the Tribunal, if the Appellant had not authorized Mr. Spiegel to use his signature in the way he did, surely he would have “contacted the authorities, or a lawyer, or at least send a letter asking Mr. Spiegel to cease and desist immediately”. (Tribunal Decision, July 19, 2013, page 16).
[11] The meeting with the investigator occurred on April 1, 2009. The e-mail in question was sent two months later, on May 28, 2009 and it reads:
Hi Roland,
I must ask that effective immediately, you stop submitting applications with either my name or Dr. John Bennett’s name on it. Some insurance investigator got in Dr. Bennett’s face last week and he is pretty upset. I may lose my radiologist over this.
[12] At best, this e-mail establishes that some two months after his meeting with the investigator, the Appellant took steps to contact Mr. Spiegel in writing. Furthermore, according to the e-mail, he did so, not because he was upset that Mr. Spiegel had been using his name and signature on forms that Mr. Spiegel submitted to the insurance company, but because another doctor was upset about having his name used on these forms.
[13] This is hardly the kind of evidence that would have caused the Tribunal to re-assess its position that the Appellant’s conduct was not consistent with that of a man who had just found out that his signature was being used in an unauthorized manner. Nor would it have caused the Tribunal to re-assess its position that the Appellant did not take adequate steps to stop the conduct at issue from recurring.
[14] The furthest the evidence would have gone is to establish that it took the Appellant two months, rather than four and a half months, to advise Mr. Spiegel in writing to stop using his name. In the context of the evidence as a whole, this difference was not significant. It certainly does not approach the kind of difference in evidence that marks the line between a just result and a miscarriage of justice.
[15] The Appellant’s argument with respect to the reasonableness of the Tribunal’s decisions turns on his submission that if the Tribunal had seen the e-mail, it would not have done what it did. In particular, it would not have preferred the evidence of Mr. Speigel over that of the Appellant when it came to the arrangement between the two men.
[16] In this regard, it is important to note that at the hearing before the Tribunal, the Appellant testified that he had only given his electronic signature to Mr. Spiegel to use on one form. For the purposes of the appeal, the Appellant’s counsel conceded that it was reasonable for the Tribunal to find that this was not true; that the Appellant had allowed his signature to be used on a number of forms, not just one form. This is because Mr. Spiegel’s evidence to that effect was confirmed by the testimony of the insurance company investigator, who testified that the Appellant had admitted to her that he allowed Mr. Spiegel “full reign to use his signature on forms, that he didn’t care what forms Mr. Spiegel used”. (Tribunal Decision, July 19, 2013, page 15). However, according to the Appellant, there was no evidence other than the evidence of Mr. Spiegel that the Appellant collaborated with Mr. Spiegel in coming up with a “scheme” to submit the forms in question to the insurance company. The Appellant denied being part of a scheme and, according to the Appellant, if the Tribunal had had the e-mail, the Tribunal would have believed him on this point.
[17] There are several problems with this submission. First, as we have already found, the e-mail is not the kind of evidence that would have significantly impacted the Tribunal’s decision. Second, the Appellant is effectively seeking to have us re-try the case and to review the evidence with a view to having us re-assess the reasonableness of believing Mr. Spiegel over the Appellant. It is not our function to weigh evidence or make findings of credibility. Third, having conceded that it was reasonable for the Tribunal to disbelieve the Appellant’s evidence and accept Mr. Spiegel’s evidence about one crucial aspect of the relationship between the two men, why was it unreasonable for the Tribunal to make the same choice about the other aspects of that relationship?
[18] While the Appellant mainly focused on the difference the e-mail would have made if it had been admitted into evidence, in reply, the Appellant appeared to be arguing that there was no evidence in the record that would have allowed the Tribunal to reasonably draw the inference that the Appellant was part of a scheme. We reject this submission. There was ample evidence from which the Tribunal could have reasonably drawn this inference.
[19] For these reasons, the appeal is dismissed. In our view, the Tribunal reasonably exercised its discretion in refusing to admit the evidence at issue. Further, even if the evidence had been admitted, this would not have affected the reasonableness of any of the Tribunal’s decisions that are the subject of this appeal.
[20] As agreed by the parties, as the successful party, the Respondent is entitled to its costs of the appeal, fixed in the amount of $20,000.00, all inclusive.
H. SACHS J.
HAMBLY J.
M. EDWARDS J.
Released: 201503
CITATION: Baird v. College of Chiropractors of Ontario, 2015 ONSC 1484
DIVISIONAL COURT FILE NO.: 2/14
DATE: 20150319
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
H. Sachs, Hambly & M. Edwards JJ.
BETWEEN:
Dr. John Baird
Appellant
– and –
College of Chiropractors of Ontario
Respondent
REASONS FOR JUDGMENT
H. SACHS J.
Released: 20150319