The College of Physicians and Surgeons of Ontario v. Virani, 2017 ONSC 3445

CITATION: The College of Physicians and Surgeons of Ontario v. Virani, 2017 ONSC 3445

DIVISIONAL COURT FILE NO.: 464/16 DATE: 20170727

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Gordon R.S.J., Kiteley and Wilton-Siegel JJ.

BETWEEN:

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

– and –

DR. MIRZA VIRANI Appellant

Elisabeth Widner, for the Respondent Marie Henein and Reem Zaia, for the Appellant

HEARD at Toronto: June 5, 2017

Wilton-Siegel J.

[1] In this proceeding, the appellant Dr. Mirza Virani (the “appellant”) appeals a penalty decision of the Discipline Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario (the “College”) dated September 21, 2016 (the “Decision”), in which the Committee ordered an eight-month suspension of the appellant’s certificate of registration after finding that the appellant had committed an act of professional misconduct by borrowing a substantial amount of money from two patients. On the consent of the parties, the Court ordered that the names of the two patients be subject to a publication ban. For the reasons that follow, the appeal is dismissed.

Factual Background

[2] The appellant was a licensed family physician practising in Markham, Ontario, who originally obtained his medical degree in Iran. In 2006, the appellant became acquainted with Arshad Latif, (“Latif”) who made the appellant an investment proposal. The appellant introduced two long-time patients to Latif who declined the investment. However, the appellant wished to participate and prevailed upon the two patients to loan him monies that would fund his investment. The appellant lost all the money he had invested and discovered that Latif was a fraudster. His two patients also suffered significant financial losses as the appellant was unable to repay their loans to him.

[3] On June 30, 2011, the appellant made a consumer proposal under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 that was accepted by his creditors. Both of his patients were listed as unsecured creditors, one in the amount of $448,000 and the other in the amount of $289,096. When the bankruptcy proposal expires in August 2017, the first patient will remain out of pocket in the amount of $406,000 and the second patient in the amount of $261,396.

The Discipline Proceedings

[4] In completing his 2011 annual College renewal, the appellant answered “no” to whether there had been civil judgment made against him in a lawsuit involving a patient since April 1, 2010, despite a judgment dated September 22, 2010 in favour of the second patient. Dr. Virani submitted a correction to the College on October 4, 2011, disclosing the judgment against him, which brought this matter to the College’s attention. The appellant was unable to explain why he initially provided an incorrect declaration.

[5] The appellant did not, however, inform the College that he had also borrowed large sums of money from the first patient. It was the second patient who informed the College that another person listed as a creditor in the bankruptcy proceedings, being the first patient, was also the appellant’s patient.

[6] The College brought discipline proceedings against the appellant for committing disgraceful, dishonourable, and unprofessional conduct by borrowing money from patients, and thereby committing a boundary violation. The appellant admitted the allegation in the Notice of Hearing. The appellant and the College provided the Committee with an agreed Statement of Facts and Admission on Liability, an agreed Statement of Facts on Penalty, and Victim Impact Statements of the two patients.

[7] In the Decision, which was reported as Ontario (College of Physicians and Surgeons of Ontario) v. Virani, 2016 ONCPSD 32, the Committee concluded that the appropriate sanction against the appellant for professional misconduct would be an eight-month suspension, a requirement that he complete an ethics course, a reprimand, and costs for a one day hearing.

The Decision

[8] In reaching its determination regarding an appropriate penalty, the Committee first set out the allegation of an act of professional misconduct under paragraph 1 (1)33 of O.Reg. 856/93 made under the Medicine Act, 1991, S.O. 1991, c.30, the appellant’s admission of the allegation and the Statement of Facts and Admission on Liability. The Committee found that the appellant had committed an act of professional misconduct in that he had engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Committee then set out the Statement of Facts on Penalty and the content of the Victim Impact Statements of the two patients.

[9] In reaching its determination regarding the appropriate sanction, the Committee first reviewed the applicable principles relevant to the imposition of a penalty as articulated in Ontario (College of Physicians and Surgeons of Ontario) v. Minnes, 2015 ONCPSD 3, aff’d The College of Physicians and Surgeons of Ontario v. Minnes, 2016 ONSC 1186 (Div. Ct.). The Committee stated that, in its view, protection of the public, particularly of current and future patients of the practitioner, was of paramount consideration. Other relevant principles included: maintenance of public confidence in the ability of the profession to govern its members and in the reputation and integrity of the profession; general deterrence to all members of the profession; specific deterrence to the member; and the potential for rehabilitation of the member. The Committee also recognized that proportionality was an important factor to consider and that similar cases should result in similar penalties, although an exact concordance is seldom, if ever, found among the facts of cases.

[10] The Committee then reviewed and commented upon a number of disciplinary decisions raised by the parties in which financial dealings between a physician and one or more patients were elements of the case. The Committee found the case of Ontario (College of Physicians and Surgeons of Ontario) v. Dhaliwal, 2004 ONCPSD 28 to have certain similarities that were instructive in the present context. The Committee then made the following findings.

[11] First, the appellant violated professional boundaries by using his patients’ personal financial information, obtained in the context of a patient-physician relationship, to further his own financial interests. The appellant used the power imbalance that exists between a physician and a patient to benefit himself. He also breached the trust that his patients conferred upon him to manipulate his patients to loan him very substantial sums of money. In particular, the Committee found that the appellant capitalized on his patient-perceived status in the Iranian-Canadian community to obtain money from these patients. Both patients felt that the appellant’s Iranian medical training and his ability to speak Farsi were elements that increased their level of trust in their physician. In addition, the Committee found the appellant’s requests for money while the first patient was abroad for personal reasons to be particularly despicable.

[12] Second, the appellant had acted dishonestly when he failed to disclose to his patients the nature of his own prior financial loss to Latif and the fact that the local branch of the Royal Bank of Canada (“RBC”) would not deal with the Pakistani bank that Latif was using for his business dealings. In addition, the Committee noted that the appellant gave his patients cheques with knowledge that there were insufficient funds available in his bank account.

[13] Third, upon satisfaction of the payment terms of the appellant’s consumer proposal, the appellant will have made only modest repayments to the patients and had no future plans to repay his patients after that. Further, as of the hearing before the Committee, the appellant had not apologized to his patients.

[14] Fourth, the circumstances of this case were different in several respects from those in most of the cases reviewed by the Committee. In many of the cases, the amounts that the physician obtained from his patients were much smaller than in this case. In most cases, the physician agreed to repay the patient, had repaid the patient in full, or had repaid part of the money and either hoped or undertook to repay the balance. In this case, by contrast, the Committee found that the appellant’s promises of repayment were insincere and deceitful, as shown by the fact that he gave the two patients cheques without having a sufficient financial balance in his bank account to honour them, that he made only very modest repayments and that the two patients are likely to recover only a very small fraction of their financial losses. Further, the Committee was not convinced that the appellant was remorseful regarding the financial losses that his patients incurred because of his actions and found his testimony in this regard to be self-serving and devoid of contrition, rather than a genuine expression of remorse.

[15] Lastly, the Committee recognized the appellant’s cooperation with the College in this matter.

[16] In the course of setting out the penalty, the Committee concluded that an eight-month suspension, served consecutively, would appropriately express its view of the very serious nature of Dr. Virani’s misconduct, and would thus maintain the public’s confidence in the profession’s ability to govern its members. The Committee also expressed the view that the penalty would serve both as a general deterrent to physicians against taking advantage for personal gain of the vulnerability of patients who trust them due to shared common ethnicity and ability to speak the same language and as a specific deterrent to Dr. Virani in respect of similar conduct in the future.

The Jurisdiction of the Court and the Standard of Review

[17] This appeal is brought pursuant to s. 70 of the Health Professions Procedural Code, being schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, which provides that the Divisional Court can hear an appeal from a decision made by the Discipline Committee on questions of law or fact or both. In an appeal under s. 70(1), the Court has all the powers of the panel of the Discipline Committee that dealt with the matter.

[18] The parties agree that the standard of review for a penalty decision made by the Committee is reasonableness and that the Committee’s penalty decisions are owed a high degree of deference. For the Divisional Court to intervene, the Committee “must have made an error principle, or the penalty must be clearly unfit”: see College of Physicians and Surgeons of Ontario v. Peirovy, 2017 ONSC 136, [2017] O.J. No. 194 (Div.Ct.) at para. 99.

Analysis and Conclusions

[19] The appellant raises four principal grounds of appeal in support of his position that the Committee’s penalty decision is unreasonable and should be reduced.

[20] First, he argues that the Committee wrongly relied on specific deterrence as a relevant penalty objective. The appellant says that, in the absence of any pattern, history or previous disciplinary proceedings that would suggest a legitimate concern, and given the financial and social consequences to the appellant of his actions, there was no conceivable risk of any re-occurrence of his conduct.

[21] The Committee proceeded on the basis that the appellant had no relevant prior disciplinary history and was well aware of his age and current financial circumstances. However, the Committee also had evidence upon which to conclude that specific deterrence was an appropriate consideration. The appellant was not merely an innocent victim. He had actively deceived his patients in a number of respects in order to obtain his loans. In particular, he failed to disclose the loss of his previous investment with Latif, as well as the concerns raised by RBC regarding Latif’s banking association. He also provided his patients with cheques with full knowledge of the insufficiency of monies in his bank account. Further, the appellant withheld disclosure of the loans from the College. Such dishonesty, and the misuse of his patients’ trust in him to meet personal financial needs which are even more pressing now than in the past, are sufficient to engage specific deterrence as an applicable principle.

[22] The Committee did not fail to consider rehabilitation, as the appellant suggests. There was, however, no specific evidence before the Committee to support rehabilitation on the appellant’s proposed terms. The only possible evidence regarding the appellant’s rehabilitation pertained to his alleged remorse, which the Committee reasonably rejected as insincere. The appellant did not make any apology for his behaviour until the hearing and never made an apology to his patients personally. Further, as discussed below, the appellant did not offer to make any further restitution to his clients in connection with the continuation of his practice that would have addressed the severe financial consequences to them from which they also needed to recover. The Committee concluded, in effect, that rehabilitation on the terms proposed by the appellant was unreasonable. On the evidence before it, the Committee’s conclusion in this regard was not unreasonable.

[23] Second, the appellant says that the Committee improperly took into account two considerations in the context of general deterrence.

[24] The appellant suggests that the Committee improperly considered the appellant’s ethnic background to be an aggravating factor in respect of penalty. The appellant refers to the passage in the Decision mentioned above in which the Committee expressed the view that the eight-month suspension “would serve as a general deterrent to physicians against taking advantage of the vulnerability of patients who trust them due to shared common ethnicity and ability to speak the same language, for their own personal gain.” The appellant acknowledges that it was not improper for the Committee to refer to the increased trust that the appellant’s patients placed in him as a result of: (1) their shared ethnicity and language; and (2) the status of doctors in Iranian society. However, he suggests that taking these factors into consideration in the context of general deterrence is racist. I do not agree.

[25] The appellant agreed to the facts at issue that establish the heightened trust placed in him by his clients, including the two patients, as a result of these general factors. The Statement of Facts and Admission on Liability specifically referred to the appellant’s Iranian background in the context of the level of trust placed in the appellant, and the significance to his patients of that relationship, which the appellant manipulated for his personal gain.

[26] For example, the Statement of Facts and Admission on Liability provides at paras. at 23 and 26 as follows:

[Patient B] was a patient of Dr. Virani between approximately 1990 and 2007. [Patient B] is originally from Iran. According to [Patient B], in Iran, a physician occupies a very high level in society and is viewed as an extremely trustworthy and important person. [Patient B] trusted Dr. Virani and eventually several members of [Patient B’s] family became patients also.

… [Patient B] felt comfortable with Dr. Virani because Dr. Virani had studied in Iran, spoke Farsi and had many patients in the Iranian community to which [Patient B] belonged.

[27] The Committee made its statement regarding general deterrence in the context of the need to maintain public confidence in the profession’s ability to govern itself and, in particular, to ensure through such governance that vulnerable patients are not taken advantage of. In this context, I see nothing improper in the Committee’s concern that such vulnerability can arise, among other circumstances, as a result of shared ethnicity and language between a physician and his/her patients, or the status attached to the position of a physician in certain communities, and that physicians should be sensitive to the position of trust in which they may be placed by their clients for these reasons.

[28] In addition, the appellant says that he was wrongly penalized for availing himself of “bankruptcy protection” and seeking to make a fresh start of his financial affairs. He considers that the fact of his bankruptcy, or more accurately his insolvency, was incorrectly taken into consideration as an aggravating factor on penalty.

[29] The complete facts of the appellant’s insolvency proceedings are not before the Court and do not appear to have been before the Committee. All that is apparent is that the appellant had liabilities totaling approximately $1.1 million and that he made a consumer proposal, which was accepted by his creditors, under which he is paying approximately nine cents on the dollar over a period of time that will end in August 2017. It appears that, under the terms of the consumer proposal, the appellant is entitled to withdraw $13,000 monthly from his OHIP earnings and is paying an additional $2,200 per month to the Proposal Trustee to fund the payments to his creditors required under his consumer proposal.

[30] The Committee did not, in our view, take the fact of the appellant’s consumer proposal into account, on its own, as an aggravating factor. It did, however, quite properly take into account the appellant’s lack of remorse, his failure to offer any further partial restitution, and the financial impact of his actions on the two patients in the context of maintenance of public confidence in the profession and specific deterrence, respectively. In our view, these considerations, as opposed to the appellant’s insolvency proceedings by themselves, are relevant aggravating factors in assessing penalty.

[31] In particular, the appellant had the onus of demonstrating that he could not have paid more to the patient creditors, whether under his consumer proposal or otherwise, even if he could not fully satisfy their loans. He has failed to satisfy this onus. It is not an answer to say that he could not come up with the $600,000 required to repay the two patients in full. The question remains whether he could have made partial restitution. There is no provision of law of which I am aware that would have prevented the appellant from offering to make partial restitution before the Committee out of the income he expected to receive after the terms of his consumer proposal had been satisfied.

[32] It is therefore significant that the appellant has not only failed to apologize directly to his clients but that he also failed to offer any such restitution as a condition of reducing the applicable suspension period. Such a proposal would have reflected recognition of the financial hardship that resulted from the appellant’s actions as reflected in the Victim Impact Statements of his two patients. It is not the case, as the appellant has suggested in his Factum, that the sanction that he proposed would involve “making amends for his misconduct” in addition to allowing him to rebuild his own savings for retirement. Rather, the appellant has restricted his repayment obligations to the minimum necessary to obtain the support of his creditors to his consumer proposal in order to maximize his own financial position.

[33] More generally, the impact of any suspension on the appellant’s financial position and of his actions on the financial position of his two patients was a relevant consideration for the Committee. It raises a legitimate concern for maintenance of public confidence in the regulation of the medical profession.

[34] The appellant’s last argument is that the penalty is clearly unfit based on the factors addressed above and the available precedents. In particular, the appellants seek to distinguish the Dhaliwal case on the grounds of a lesser number of patients, a lesser vulnerability of the appellant’s patients, and the fact that the appellant also suffered losses when Latif failed to pay him.

[35] I do not agree. The Committee carefully reviewed both the College’s proposal of a twelve-month suspension and the appellant’s submission, which it found to be, in effect, a two-month suspension.

[36] In reaching its decision, the Committee considered the principle of proportionality by reference to other penalty cases. The Committee balanced the considerations of general deterrence, which on its own called for a lengthy suspension, the additional factor of specific deterrence as discussed above, and the offsetting mitigating factor of the appellant’s co-operation. I do not agree that the Committee’s decision focused on the consequences of the appellant’s actions rather than on the improper actions themselves, except to the extent discussed above. I also do not think it is relevant that the loans were made to finance an investment intended to increase the appellant’s wealth rather than spent immediately to support his lifestyle. Similarly, the fact that the appellant also lost money is irrelevant. The fact that the appellant was also a victim of Latif does not, in any respect, diminish the reality that the appellant used his position to take advantage of his two patients, notwithstanding a suggestion to the contrary in his Factum. As the appellant says, the relevant act of professional misconduct is the taking of the loans, not the consequences. He did not intend to lose money when he obtained the loans from his patients. More generally, the Committee took into account the factors of both general and specific deterrence based on the appellant’s actions constituting professional misconduct. To the extent that the Committee also took into account the circumstances pertaining to the two patients, it did so in the context of the appellant’s failure to show remorse or to apologize to them.

[37] It was well within the College’s discretion to fix a suspension of eight months and, in making that determination, to have regard to the Dhaliwal decision. The facts in Dhaliwal, while different, were less aggravated. In Dhaliwal, the physician had repaid a number of the loans that he had obtained from his patients. In addition, the length of the suspension was based, among other things, on repayment of the remaining outstanding loans owing by the physician to his patients. In the present case, the loans were significantly greater, the appellant is unable to make full restitution and unwilling to make any further partial restitution, and the impact on his patients’ financial and personal circumstances was more severe.

[38] In short, based on the foregoing, I do not believe that the penalty imposed fell outside the range of reasonable penalties for the actions of a physician in the appellant’s circumstances. I am, instead, satisfied that the penalty imposed by the Committee was reasonable in the circumstances.

[39] The appeal is therefore dismissed. Costs in the agreed amount of $7,500 on an all-inclusive basis are payable by the appellant. In view of the need for a short period to allow the appellant to put transition arrangements in place regarding his practice, the order giving effect to these Reasons should take effect on September 1, 2017.

Wilton-Siegel J.

I Agree: ___________________________ Gordon R.S.J.

I Agree: ___________________________

Kiteley J.

Released: July 27, 2017

CITATION: The College of Physicians and Surgeons of Ontario v. Virani, 2017 ONSC 3445 DIVISIONAL COURT FILE NO.: 464/16 DATE: 20170727

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Gordon R.S.J., Kiteley and Wilton-Siegel JJ.

BETWEEN:

THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

– and –

DR. MIRZA VIRANI Appellant

REASONS FOR JUDGMENT

Wilton-Siegel, J.

Released: July 27, 2017