CITATION: Arora v. College of Occupational Therapists of Ontario, 2017 ONSC 1535
DIVISIONAL COURT FILE NO.: 360/16 DATE: 20170306
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, NORDHEIMER and MCKELVEY JJ.
BETWEEN:
HINA ARORA
Appellant
– and –
COLLEGE OF OCCUPATIONAL THERAPISTS OF ONTARIO
Respondent
Hina Arora, in person
Robin K. McKechney, for the respondent
HEARD at Toronto: March 6, 2017
ORAL REASONS FOR JUDGMENT
SWINTON J. (Orally)
[1] The appellant appeals from a decision of the Discipline Committee of the College of Occupational Therapists of Ontario (the “College”) that found her guilty of professional misconduct, suspended her certificate of registration for four months and imposed other conditions, and required her to pay $26,000 in costs.
[2] The present discipline arose because of the appellant’s failure to comply with a condition imposed by an earlier Discipline Committee in May 2014 after a guilty plea to a charge of professional misconduct. As a result of a joint submission, that committee imposed a two month suspension, to be reduced to one month if the appellant successfully completed a specified ethics course, the “ProBE (Professional/Problem-based Ethics)” course, within one year.
[3] The appellant enrolled in the course in early May 2015. However, she failed the course, because her final essay contained a verbatim passage from a website without attribution, contrary to ProBE’s position statement on final essay authorship and attribution. This led to the present disciplinary proceeding.
[4] The Discipline Committee found that the appellant had committed professional misconduct. First, as she had not successfully completed the ProBE course, she failed to comply with the 2014 order. Second, the committee stated that “failing an ethics course due to lack of proper attribution (when this was clearly stated as an expectation in the course syllabus) was engaging in conduct or an act, relevant to the practice of the profession that, having regard to all of the circumstances, would reasonably be regarded by members as both dishonourable and unprofessional, and conduct unbecoming of an occupational therapist.” The Committee then imposed the four months suspension and further conditions and awarded costs.
[5] The standard of review on this appeal is reasonableness.
[6] The appellant submits that the Discipline Committee erred in finding professional misconduct because she did not complete the ethics course successfully. She states that her failure to attribute the source in her essay was unintentional, and she had no ability to appeal the failure. She also submitted that she was in difficult personal circumstances at the time of the course because of her sons’ health.
[7] These arguments were made to the Discipline Committee and rejected. It reasonably concluded that the appellant committed professional misconduct because of her failure to successfully complete the ethics course as required and her failure to make proper attribution. I would not give effect to this ground of appeal.
[8] With respect to penalty, the appellant argues that the Discipline Committee in 2016 was bound by the penalty prescribed in 2014 - that is, a suspension of one month if she failed to complete the ethics course successfully.
[9] The 2014 order provided in para. 2:
The Discipline Panel directs the Registrar to suspend Ms. Arora’s certificate of registration for a period of two (2) months, to begin immediately but one (1) month of the suspension will be suspended and held in abeyance as long as Ms. Arora complies with the remainder of the Panel’s order within the timeframes set out herein. If Ms. Arora does not comply with any term of the remainder of the Panel’s order the remaining one month suspension will be served by Ms. Arora beginning immediately upon her breach of such term.
[10] The 2014 order was framed to give an incentive to compliance with the order. While it would have been preferable for the Discipline Committee in 2014 to have stated its position more clearly, the Discipline Committee in 2016 reasonably concluded that the 2014 order stands alone. Indeed it would not be reasonable to conclude that the Discipline Committee in 2014 meant to prejudge the penalty for non-compliance with its order in subsequent disciplinary proceedings.
[11] The four months suspension was within a reasonable range, given the misconduct, the appellant’s previous disciplinary history and the aggravating and mitigating factors set out by the Discipline Committee in its reasons.
[12] With respect to costs, the appellant argues that the Discipline Committee should not have awarded costs because success was divided and because of her personal circumstances, including her ability to pay. The College had sought to have her certificate of registration revoked on the grounds of ungovernability, but the Discipline Committee rejected the College’s argument that the appellant was ungovernable.
[13] The College had sought costs of $52,000 for the hearing and investigation. The Discipline Committee ordered half that amount and set out a schedule for payment. Costs are within the discretion of the Discipline Committee. It appears to have considered the divided success and the appellant’s financial circumstances. I cannot find that the costs award was unreasonable.
[14] Accordingly, the appeal is dismissed.
costs
[15] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons delivered today. Costs to the College fixed at $3,500.00 all in.”
___________________________ SWINTON J.
I agree
NORDHEIMER J.
I agree
MCKELVEY J.
Date of Reasons for Judgment: March 6, 2017
Date of Release: March 8, 2017
CITATION: Arora v. College of Occupational Therapists of Ontario, 2017 ONSC 1535
DIVISIONAL COURT FILE NO.: 360/16 DATE: 20170306
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, NORDHEIMER and MCKELVEY JJ.
BETWEEN:
HINA ARORA
Appellant
– and –
COLLEGE OF OCCUPATIONAL THERAPISTS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
SWITON J.
Date of Reasons for Judgment: March 6, 2017
Date of Release: March 8, 2017