Court File and Parties

CITATION: Billing v. College of Physicians and Surgeons of Ontario, 2018 ONSC 2624

DIVISIONAL COURT FILE NO.: 360/17

DATE: 2018-04-25

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Dr. Kulbir Billing, Appellant v. College of Physicians and Surgeons of Ontario, Respondent

BEFORE: Swinton, Broad and Myers JJ.

COUNSEL: Daniel Sheppard, for the Appellant Emily Graham, for the Respondent

HEARD at Toronto: April 23, 2018

Notice of Publication Ban

The Court has ordered that no person shall publish or broadcast the identity of the witnesses or any information that could disclose the identity of the witnesses in the discipline proceedings.

Endorsement

[1] Dr. Billing appeals one aspect of the penalty order dated June 22, 2017 made against him by the Discipline Committee of the College of Physicians and Surgeons - namely, the two month suspension.

[2] The appellant submits that the penalty was outside the range of penalties imposed in comparable cases, and the Discipline Committee failed to consider the range of penalties in like cases and explain why it was imposing a more severe penalty. He also submits that the Discipline Committee misunderstood the decision of the Divisional Court in College of Physicians and Surgeons v. Peirovy, 2017 ONSC 136 as standing for the proposition that the Discipline Committee need not review prior penalty decisions and justify a departure from them.

[3] The standard of review in this appeal is reasonableness. It is well-established that deference is owed to the penalty decisions of professional regulatory bodies.

[4] In our view, the Discipline Committee imposed a reasonable penalty and justified it appropriately.

[5] The Discipline Committee conducted an appropriate parity analysis. It expressly stated that, in general, like cases should be treated alike, and it had considered the cases cited. Despite the appellant’s argument that the penalty was outside the range, the suspension was within the range of penalties in prior decisions, which ranged from zero to six months suspension. Each case obviously turns on its particular circumstances.

[6] The Committee also correctly observed that parity is not the only relevant consideration. It explained why a suspension was warranted, because the misconduct was pervasive and systemic in the appellant’s practice; it related to many patients over an extended period of time; and it exposed his patients to a risk of serious harm. The Committee was concerned about both general and specific deterrence, as well as the need to address the impact of the conduct on public confidence in the College’s regulation of the profession.

[7] The Committee did not misconstrue the Peirovy decision as no longer requiring it to take prior decisions into account. It expressly stated that similar cases should generally be dealt with in a similar fashion. It also stated that it had considered past cases and was “satisfied that the penalty imposed on Dr. Billing is reasonable and proportionate given the particular facts of this case.”

[8] The penalty was within a range of reasonable, possible outcomes, given the facts of this case. Accordingly, the appeal is dismissed. The parties have agreed that, in accordance with the order of the Discipline Committee, the suspension shall commence within 21 days.

[9] Costs to the respondent are fixed at $10,000.00 all inclusive, an amount agreed upon by the parties.

Swinton J.

Broad J.

Myers J.

Date: April 25, 2018