CITATION: Billing v. College of Physicians and Surgeons of Ontario, 2017 ONSC 6212
DIVISIONAL COURT FILE NO.: 360/17
DATE: 20171017
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Publication Ban Notification:
Pursuant to an Order of the Discipline Committee of the College of Physicians and Surgeons of Ontario under subsection 45(3) of the Health Professions Procedural Code, no person shall publish or broadcast the identity of any witnesses or any information that could disclose the identity of the witnesses.
BETWEEN:
DR. KULBIR SINGH BILLING Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
Christine Wadsworth, for the Appellant
Emily Graham, for the Respondent
HEARD at Toronto: October 17, 2017
Sachs J. (Orally)
[1] This is a motion by the Appellant to extend the time for the perfection of his appeal to thirty days after the release of the Ontario Court of Appeal’s decision in CPSO v. Peirovy. The Peirovy appeal is scheduled to be heard on November 27, 2017. Peirovy, unlike this case, was a case that involved the imposition of a penalty on a doctor who was found to have sexually abused a number of patients.
[2] The Divisional Court set aside the penalty imposed by the College’s Discipline Committee and, in doing so, found that prior penalty decisions of the Committee to which it had been referred did “little to encourage confidence in the Committee’s approach to eradicating sexual abuse in the profession”. The court therefore referred the matter back to the Committee. The physician appealed to the Court of Appeal and in applying for leave argued that the “Divisional Court erred in law in declaring that an entire body of penalty decisions of the Committee … represented a ‘litany of clearly unfit penalties’” and, further, that in making this finding the “Divisional Court fundamentally disregarded the expertise of the Committee”.
[3] In this case, Dr. Billing was found guilty of professional misconduct that had nothing to do with sexually abusing patients. Rather, he was found to have engaged in inadequate record keeping, which in turn could have exposed his patients to risks and he was found to have an inadequate sterile technique, which could have caused disastrous consequences. In imposing a penalty, the Committee, after reviewing and discussing the relevant principles and factors, stated
“the Committee considered the previous decisions of the Discipline Committee submitted by the parties which bore some similarity to the facts in Dr. Billing’s case. The Committee accepts that similar cases should generally be dealt with in a similar fashion. The Committee however is not bound by its own previous decisions. The recently released decision of the Divisional Court in CPSO v. Peirovy 2017 clearly states the drawbacks of strict adherence to previous similar cases. The facts and circumstances of each case are unique and public tolerance for physician misconduct can change. After reviewing the cases submitted, the Committee is satisfied that the penalty imposed on Dr. Billing is reasonable and proportionate given the particular facts of this case.
[4] The Appellant states that because of this paragraph and the failure of the Committee to specifically deal with the precedents he put forward, fairness requires that his appeal be delayed until Peirovy is decided. I disagree.
[5] First, the reference to Peirovy by the Committee in the case at bar is not central to its decision. Second and more importantly, I am not persuaded that there is anything the Court of Appeal might say in Peirovy that would affect this case. In Peirovy, the Court of Appeal will be grappling with the issue of who gets to decide what penalties are fit or unfit in sexual abuse cases involving doctors - the court or the tribunal to whom the legislature has delegated that task. Since Dr. Billing’s case is not a sexual abuse case, any decision the Court of Appeal comes to on that issue will not affect him.
[6] Third, to the extent that the Committee in this case referred to Peirovy, there can be no serious issue taken with what it said. Peirovy does clearly state “the drawbacks of strict adherence to previous similar cases”. The facts and circumstances of each case are unique and “public tolerance for physicians conduct can change”. It is also well accepted in the case law that while “similar cases should generally be dealt with in a similar fashion” the Committee “is not bound by its own previous decisions”.
[7] If Dr. Billing wishes to argue that the precedents were clear, and the penalty imposed in his case fell outside of the range and that there was no justification for the Committee to go outside the range, he can make this argument on his appeal. He does not need to await the Peirovy decision to do so.
[8] For these reasons, I find that the justice of the case does not require granting the extension requested. In this regard, I also note that pending his appeal, Dr. Billing’s penalty has been stayed - a penalty that included a consent requirement for supervision and reporting, something that would enhance the protection of the public. As well, lack of delay and finality are important principles in the professional disciplinary context.
[9] The Motion is dismissed and the Appellant is ordered to perfect his appeal within 30 (thirty) days.
Costs
[10] As per the agreement of counsel as a successful party, the Respondent colleges are entitled to its costs fixed in the amount of $2,000.00 all inclusive.
___________________________ Sachs J.
Date of Reasons for Judgment: October 17, 2017
Date of Release: October 20, 2017
CITATION: Billing v. College of Physicians and Surgeons of Ontario, 2017 ONSC 6212
DIVISIONAL COURT FILE NO.: 360/17
DATE: 20171017
Publication Ban Notification:
Pursuant to an Order of the Discipline Committee of the College of Physicians and Surgeons of Ontario under subsection 45(3) of the Health Professions Procedural Code, no person shall publish or broadcast the identity of any witnesses or any information that could disclose the identity of the witnesses.
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DR. KULBIR SINGH BILLING Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
Sachs J.
Date of Reasons for Judgment: October 17, 2017
Date of Release: October 20, 2017