COURT OF APPEAL FOR ONTARIO

CITATION: College of Chiropractors of Ontario v. Dies, 2016 ONCA 2

DATE: 20160105

DOCKET: C60513

Simmons, Pepall and Pardu JJ.A.

BETWEEN

College of Chiropractors of Ontario

Applicant (Respondent)

and

Stephen Dies

Respondent (Appellant)

Alex Minkin, for the appellant

Chris G. Paliare and Karen Jones, for the respondent

Heard: January 4, 2016

On appeal from the Order of Justice Elizabeth M. Stewart of the Superior Court of Justice, dated May 1, 2015.

ENDORSEMENT

[1] At the conclusion of the oral hearing, we dismissed the appeal for reasons to follow. These are our reasons.

[2] On May 19, 2006, a consent order was granted requiring that the appellant refrain from: using the title doctor or chiropractor; holding himself out as a person qualified to practise as a chiropractor; and performing any controlled acts, including spinal adjustment/manipulation, unless registered with, and a member of, the College of Chiropractors of Ontario.

[3] In reasons released on December 30, 2014, the motion judge found the appellant to be in contempt of the 2006 order. By order dated May 1, 2015, she sentenced him to house arrest for a period of six months and ordered that if the appellant breached any of the terms of the order for house arrest, he should be brought before the court and ordered to serve the balance of his sentence in custody. In addition, the motion judge granted the respondent leave to issue a writ of sequestration directing the Sheriff to take possession and dispose of the appellant’s office and chiropractic equipment, and also ordered that the appellant pay the costs of the proceeding, fixed in the amount of $35,000.

[4] The appellant appeals from the order finding him in contempt and also seeks leave to appeal sentence.

[5] First, he submits that the motion judge erred in assessing credibility and making a finding of contempt in the absence of viva voce evidence. He argues that as there was conflicting evidence on the central question of whether he had performed any controlled acts, the motion judge erred in failing to order a trial of the issue. He relies on R. v. Jetco Manufacturing Ltd. (1987), 1987 CanLII 4436 (ON CA), 57 O.R. (2d) 776, Fischer v. Milo, (2007), 2007 CanLII 40211 (ON SC), 44 R.F.L. (6th) 134, and Campo v. Campo, 2015 ONSC 1349 in support of his position.

[6] We do not accept his submission.

[7] With the benefit of counsel, the appellant agreed to a timetable for the contempt hearing that provided for no viva voce evidence. He never sought to withdraw from that position. At the motion itself, again with the benefit of counsel, he confirmed that he did not want to call viva voce evidence. The motion judge noted his position on the record.

[8] None of the cases relied upon by the appellant reflect such a factual record. The history of this proceeding, including the motion judge's endorsement, makes it clear that the appellant chose to proceed with the motion based on affidavit evidence and cross-examinations, and without oral evidence. Having made that tactical decision and lost, the appellant is not entitled to resile from it now: See Lauzier v. Ranger 1995 CanLII 298 (Ont. C.A.).

[9] Moreover, there was ample and overwhelming evidence to support the finding of contempt. There was no real dispute about the acts performed by the appellant and there was uncontradicted expert evidence on their characterization as chiropractic treatment. Additionally, extensive unchallenged evidence of the investigations conducted by the respondent was before the motion judge. Despite the appellant’s undertaking to comply fully with the 2006 order, the motion judge was justifiably satisfied that the evidence demonstrated beyond a reasonable doubt that the appellant was in breach of the 2006 order.

[10] Second, the appellant submits that the motion judge erred in failing to impose the least restrictive sanction to ensure compliance and accord with principles of fundamental justice. He states that a finding of contempt coupled with a costs award would achieve this objective. He argues that as his contempt had been fully purged at the time of sentencing, there was no need for an order structured to ensure compliance and the motion judge failed to impose the least restrictive sanction available in these circumstances.

[11] We reject this submission. The motion judge expressly considered the principle of the least restrictive sanction and the steps the appellant had taken to purge his contempt. She also accepted as fact that he is aging, has health issues, and is the sole caregiver and attendant for his ailing wife. However, in her reasons, she also noted:

In this case, [the appellant’s] defiance of Smith J.’s order has been obvious, unrepentant and ongoing up to just days before his sentencing hearing. For years, [the appellant] has been an obstinate scofflaw, demonstrating an utter lack of respect for the governing body of his former profession, the public whose safety the College is obliged to protect, and the courts to whom the College turned as a last resort when all else failed to deter his conduct.

There is therefore a significant element of public protection involved in the fashioning of a consequence fit for this case. [The appellant] has been engaging in a regulated activity without regulation of competence or capacity, and outside mandatory rules of conduct. A serious penalty is called for.

[12] The motion judge's findings are fully supported by the record and we see no basis to interfere with her decision.

[13] Lastly, on consent we order a variation of the language of paragraph 3 of the May 1, 2015 order so that it states:

THIS COURT ORDERS that if the respondent breaches any of the conditions set out in paragraph 2 herein, he will be brought before the Court and ordered to serve the balance of his sentence in custody unless he can show why incarceration should not at that time be enforced.

[14] The appeal is therefore allowed in part and paragraph 3 of the May 1, 2015 order is varied as described above. The appellant is to pay the respondent its costs on a substantial indemnity scale fixed in the amount of $15,000 inclusive of disbursements and HST.

“Janet Simmons J.A.” “S.E. Pepall J.A.”

“G. Pardu J.A.”