College of Physicians and Surgeons of Ontario v. Peirovy

Ontario Reports: 143 O.R. (3d) 596

Citation: 2018 ONCA 420

Court: Court of Appeal for Ontario

Judges: Rouleau, Benotto and L.B. Roberts JJ.A.

Date: May 3, 2018

Case Summary

Administrative law — Appeals — Standard of review — Divisional Court allowing college's appeal from penalty imposed by Discipline Committee for doctor's sexual abuse of patients — Divisional Court recognizing that standard of review was reasonableness but failing to properly apply that standard as it incorrectly substituted its own assessments of evidence and penalty for those of Discipline Committee — Penalty imposed by Discipline Committee not manifestly unfit.

Professions — Physicians and surgeons — Discipline Committee finding that doctor sexually abused four female patients and engaged in inappropriate conduct with fifth — Committee unable to find that doctor's conduct was sexually motivated — Committee basing finding of liability on fact that doctor's actions violated sexual integrity of patients and were of sexual nature when viewed objectively — Committee imposing penalty of six-month suspension and restrictions on return to practice — Committee also requiring doctor to undergo individualized training and to pay victims' therapy costs — Penalty not manifestly unfit — Divisional Court failing to show deference to committee's decision when it allowed college's appeal.

Facts

The Discipline Committee of the College of Physicians and Surgeons found that the appellant doctor was guilty of professional misconduct involving the sexual abuse of four female patients and inappropriate conduct with a fifth. He unnecessarily touched the breasts of four patients while ostensibly using a stethoscope to examine their lungs, and asked a fifth patient for a date. The Discipline Committee was unable to find as a fact that the appellant's conduct was sexually motivated, but based its finding of liability on the fact that the touching in question was objectively a violation of the patients' sexual integrity.

At the penalty stage of the proceedings, the committee heard expert evidence that the appellant's risk of re-offending was low, that he had worked hard to understand his inappropriate behaviour and that he was sincere in his desire that it not happen again. With the benefit of expert evidence, the committee concluded that the appellant's behaviour was in part due to serious deficits in his communication skills and his awkward, unskilled and non-empathic manner with female patients.

The committee suspended the appellant's licence for six months, ordered him to submit to a reprimand and to pay the victims' therapy costs and the costs of the proceedings, and placed a number of restrictions on him when he returned to practice, such as requiring that his contacts with female patients be supervised and that a sign be posted in the waiting room and examination rooms advising patients of that restriction.

The Divisional Court allowed the college's appeal from the penalty, holding that the Discipline Committee made inconsistent findings of fact that warranted intervention and that the penalty was manifestly unfit. The court remitted the penalty decision to the Discipline Committee for reconsideration. The appellant appealed.

Decision

Held: The appeal should be allowed.

Majority Opinion

Per Rouleau J.A. (L.B. Roberts J.A. concurring)

A. Overview

[1] This appeal concerns the proper application of the standard of review applicable to the decision of a professional disciplinary administrative tribunal by an appellate court.

[2] The appellant, Dr. Javad Peirovy, was found guilty of professional misconduct by the Discipline Committee of the College of Physicians and Surgeons (the "Discipline Committee"). He appeals from the order of the Divisional Court, which overturned the penalty imposed on him by the Discipline Committee and remitted the penalty decision to the Discipline Committee for reconsideration.

[3] Dr. Peirovy's misconduct involved the sexual abuse of four female patients and inappropriate conduct with respect to a fifth at a walk-in family medicine clinic in 2009 and 2010. The Discipline Committee imposed a penalty consisting of a six-month suspension and restrictions on his return to practice. These included supervision during all encounters with female patients and the posting of a sign publicizing this requirement for a minimum of 12 months. The penalty also included a requirement that Dr. Peirovy undergo individualized training. It was also ordered that he pay the victim's therapy costs, and $35,680 in costs of the proceedings. The College of Physicians and Surgeons of Ontario (the "College") appealed from the penalty decision on the basis, inter alia, that it was unreasonable in that the Discipline Committee made inconsistent findings of fact and the penalty imposed was manifestly unfit.

[4] The Divisional Court allowed the College's appeal. While acknowledging that the Discipline Committee's decision on penalty was subject to deference, the Divisional Court determined that the penalty imposed was unreasonable on the bases submitted by the College.

[5] Dr. Peirovy was granted leave to appeal the Divisional Court's decision. He submits that it should be set aside, and the Discipline Committee's penalty be reinstated.

[6] For the reasons that follow, I agree that the appeal should be allowed, and the Discipline Committee's penalty be restored. Dr. Peirovy's behaviour was reprehensible. However, the Discipline Committee is the expert tribunal created by the legislature to assess allegations of misconduct in the medical profession and to determine the penalty appropriately tailored to the circumstances of each case. As I will explain, the Discipline Committee's decision on penalty contained no inconsistent findings of fact nor was the penalty imposed manifestly unfit. While the Divisional Court properly identified reasonableness as the standard of review, it failed to correctly apply that deferential standard to the Discipline Committee's findings of fact and determination of penalty. Instead, the Divisional Court erroneously re-weighed the evidence and substituted its own view of what might constitute an appropriate penalty in the absence of any reversible error made by the Discipline Committee.

B. Decision Below -- Liability

[7] In the liability phase of the hearing, the Discipline Committee heard from the various complainants and Dr. Peirovy. The allegations included claims that while examining patients with a stethoscope, he cupped patients' breasts, touched patients' nipples, placed his stethoscope directly on patients' nipples and in one instance "tweaked" or squeezed a patient's nipple.

[8] Dr. Peirovy testified in his defence and denied that he had conducted the examinations in an inappropriate manner. He explained his touching as the result of his practice of examining lungs by placing his stethoscope under the patients' clothes. He acknowledged that he may have occasionally and inadvertently touched a patient's breast.

[9] The Discipline Committee also heard conflicting evidence from experts as to the appropriateness of the manner in which Dr. Peirovy examined the complainants.

[10] The College's expert, Dr. Howard J. Goldstein, maintained that Dr. Peirovy's decisions to conduct lung examinations of three of the patients was clinically appropriate. Regarding a fourth patient, the expert characterized the decision to conduct a physical examination as "not unreasonable". He agreed that it was appropriate for Dr. Peirovy to place the stethoscope directly on the patient's bare skin, corresponding to the various areas of the lung. He acknowledged that it was possible during such an examination that a physician's hand might come in contact with the skin.

[11] However, the College's expert opined that in all four of those cases, there was no medical necessity for Dr. Peirovy's placement of the stethoscope or his fingers on the nipples of the patients or his hand on their breasts during the examinations. He opined that there would be no benefit or medical necessity to place the stethoscope in that manner because the density of the breast tissue would influence the quality of the breath sounds one was listening for. In his view, the breasts of a female patient, being private and sensitive areas, particularly the nipples, "would be sort of generally excluded as part of a routine lung examination". He noted that "[b]esides the fact that in my opinion it is medically unnecessary . . . touching the nipple with either the stethoscope or the hand may be misinterpreted by the patient". He did agree during cross-examination that some of the authoritative textbooks provide for the placement of the stethoscope near or on the nipple of patients for the purposes of examining the right middle lobe of the lung and that it was possible to hear breath sounds through breast tissue.

[12] In the opinion of Dr. Peirovy's expert, Dr. Wayne Weston, the manner in which all four of those examinations were conducted in the setting of a very busy clinic was clinically appropriate. He opined that given the limited amount of space when trying to examine important areas of the lung under a bra with a stethoscope, it would be difficult to always avoid touching and almost inevitable that the hand or fingers holding the stethoscope would touch the breast or maybe even the nipple of the patient. He was of the view that it was necessary to auscultate the lung on locations over the breast tissue because otherwise a physician would be missing important parts of the lungs, such as, for example, the right middle lobe. Dr. Weston's report states that auscultating near the nipple and listening longer than expected by the patient could be misinterpreted as sexual contact unless the physician has provided a prior explanation.

[13] The Discipline Committee accepted the evidence of the four complainants as to the inappropriateness of the touching, finding that their description of what had occurred was inconsistent with a misunderstanding. The Discipline Committee therefore rejected Dr. Peirovy's evidence to the effect that there had been no inappropriate touching, or that it was inadvertent or misunderstood by those four women.

[14] The Discipline Committee also accepted the opinion of the College's expert. It concluded that the manner in which four of the examinations were conducted was medically unnecessary and inappropriate.

[15] The Discipline Committee concluded that the allegations had been made out, that the touching was deliberate and that there was no consent from the patients or clinical reason for Dr. Peirovy to have touched them in that manner.

[16] When considering whether the inappropriate touching constituted sexual abuse, the Discipline Committee explained that it need not find that Dr. Peirovy's touching of the breasts and nipples of the complainants was sexually motivated. It adopted the objective approach articulated by the Supreme Court of Canada in R. v. Chase, [1987] 2 S.C.R. 293, as follows:

In its deliberations on whether or not Dr. Peirovy's actions were of a sexual nature, the Committee took guidance from the Supreme Court of Canada in the case of R. v. Chase, [1987], 2 SCR 293. Sexual assault is an assault that is committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated. The Court concluded that the test to be applied is an objective one, stating "viewed in light of all the circumstances, is the sexual or carnal context of the assault visible to the reasonable observer". Sexual motivation on the part of the perpetrator is one factor to be considered but the absence of sexual motivation, or in situations where the offender's motivation is unknown, would not preclude a finding that the behaviour in question is sexual in nature. This is exemplified in a criminal case, R. v. KBV, [1993], 2 SCR 857, where the accused was convicted of sexual assault for grabbing the genitals of his 3-year-old son, despite the obvious absence of sexual motivation.

(Emphasis added)

[17] Using this approach, the Discipline Committee noted that it need only be satisfied that when viewed objectively, the actions in question were of a sexual nature. As the Discipline Committee observed:

The female breast is private and sensitive both physiologically and emotionally. Female patients have a right to expect that physicians will understand and respect their privacy when examinations of this nature are being conducted. A violation of the sexual integrity of a patient, including the deliberate touching of a patient's breast without her consent and for no proper medical reason, constitutes sexual abuse.

[18] For these reasons, the Discipline Committee concluded that, even in the absence of a finding as to Dr. Peirovy's motivation, a finding of sexual abuse could be made where the touching in question was objectively a violation of a patient's sexual integrity.

[19] As a result, the Discipline Committee found as a fact that an objective observer would conclude that Dr. Peirovy's conduct constituted violations of the sexual integrity of the complainants, regardless of his motivation, given his deliberate touching of the complainants' private and sensitive areas without their consent and for no necessary medical reason.

[20] The Discipline Committee therefore found Dr. Peirovy guilty of sexual abuse in relation to the four patients. In each case, the abusive conduct consisted of medically unnecessary touching of the breast or nipples of the patients during medically required chest examinations conducted using a stethoscope.

[21] The Discipline Committee also found that Dr. Peirovy had asked a fifth patient on a date immediately following his medical examination of her during which her breasts were exposed. While not found to be sexual abuse, that conduct, as well as the four sexual abuse incidents, constituted disgraceful, dishonourable and unprofessional conduct.

[22] The Discipline Committee was also informed that Dr. Peirovy had pleaded guilty to simple assault of two of the complainants in relation to these same incidents. These convictions, for which Dr. Peirovy received a conditional discharge, were considered relevant to his suitability to practice. The Discipline Committee also considered these convictions to be professional misconduct.

C. Decision Below -- Penalty

[23] Several months later, the Discipline Committee held a separate hearing on penalty during which it heard evidence from two experts: Dr. Rootenberg, a forensic psychiatrist, who specializes in the assessment and treatment of persons who have committed sexual and other offences, including their risk of re-offending; and Dr. Martin, an educational consultant in the Office of Post-Graduate Medicine at the University of Toronto with a Ph.D. in curriculum teaching and learning, who specializes in assisting physicians with patient communications, boundary awareness and maintenance and remediation training, and has provided remedial training to over 100 physicians on referral from the College. Their qualification as experts in these areas was not challenged.

[24] The Discipline Committee accepted the expert evidence of Dr. Rootenberg that Dr. Peirovy did not meet the diagnostic criteria for psychopathology or sexual deviance, which, he testified, is relevant with respect to relapse and prevention. Dr. Rootenberg's opinion was based on numerous sources, including assessment interviews he conducted with Dr. Peirovy, assessment interviews conducted by a forensic psychologist and forensic social worker, and information obtained from collateral sources including the managers of the two medical clinics where Dr. Peirovy currently practices. Dr. Rootenberg also drew from the Discipline Committee's liability decision, and the evidence given, and exhibits filed at the liability hearing.

[25] The Discipline Committee also accepted the expert evidence that the risk of Dr. Peirovy re-offending by committing further sexual transgressions in the future was low. In Dr. Rootenberg's view, Dr. Peirovy had worked hard to understand his inappropriate behaviour, was very embarrassed and ashamed of what he had done and was sincere in his desire that this not happen again.

[26] Dr. Martin's expert evidence was relevant to the issues of remediation and risk management that the Discipline Committee was required to consider in determining the appropriate penalty. She highlighted deficits in Dr. Peirovy's interactive skills with patients that give rise to the same risk factors of misunderstanding by patients outlined by the experts who testified at the liability hearing. The Discipline Committee agreed with Dr. Martin's assessment of Dr. Peirovy which it summarized as follows:

Dr. D's [Dr. Martin's] assessment of Dr. Peirovy indicated that, in her opinion, he had deficits in a number of areas. These included his interviewing skills, his manner (which was described as awkward and clumsy), his verbal communication, his awareness of issues pertaining to patient consent, his sensitivity to how his patients were perceiving him, and how his behaviour was affecting his patients. Dr. D [Dr. Martin] stated that Dr. Peirovy was largely unaware of his professional responsibilities in maintaining appropriate boundaries in the doctor/patient relationship.

[27] The Discipline Committee also accepted Dr. Martin's opinion that Dr. Peirovy had made good progress in remedying the deficits identified. She had worked with him from August 2013 to June 2015. Dr. Martin reported that there had been "huge professional maturation". No concerns had been expressed by the practice monitor. Although the Discipline Committee acknowledged the substantial progress, it nonetheless felt further remediation work was needed as he had not yet taken full responsibility for his actions.

[28] With the benefit of the expert evidence, the Discipline Committee was able to conclude that some of the antecedents to Dr. Peirovy's sexual misconduct were due to "serious deficits in his communication skills, his sensitivity to the extent of his patients' vulnerability, and his understanding of boundaries and consent". Although the Discipline Committee acknowledged that those deficits "in no way diminish or excuse the fact that he repeatedly subjected several patients to abusive experiences", the Discipline Committee found as a fact that "Dr. Peirovy's awkward, unskilled, and non-empathic manner with his female patients was a factor in understanding his abusive behaviour".

[29] The assessment of the Discipline Committee, however, was that a full understanding of Dr. Peirovy's motivations remained unclear. The expert evidence effectively ruled out psychopathology or sexual deviance, which the Discipline Committee found lessened the risk of re-offence. However, while no finding of sexual motivation was made, a degree of prurient interest in the patients could not be completely excluded.

[30] The Discipline Committee then explained that the fact that four patients had been subjected to sexual abuse in fairly close succession was an aggravating factor. Based on the expert evidence, it declined however to infer that this was indicative of "predatory intent or uncontrollable deviant urges on Dr. Peirovy's part". It is at this point that the Discipline Committee posited another possible inference that could explain why there were four patients abused in close succession:

Another possible inference is that this pattern reflects a physician who was genuinely and completely unaware of the ways in which his behaviour in relation to his patients was, in fact, abusive.

[31] It is this quote that the Divisional Court cites as demonstrating that the Discipline Committee made an unreasonable finding that contradicted the findings it made at the liability stage.

[32] The Discipline Committee ultimately suspended Dr. Peirovy's licence for six months. He was ordered to submit to a reprimand and required to pay $64,240 for the victims' therapy costs and $35,680 in costs of the proceedings. He was also ordered to continue undergoing individualized instruction with Dr. Martin focused on consent, boundaries and doctor-patient communications, and to complete a clinical education program focused on physical examinations.

[33] A number of restrictions were also imposed on Dr. Peirovy's return to practice. He was prohibited from engaging in any encounter with female patients except under the supervision of a practice monitor approved by the College. He was also required to post a sign in the waiting room and examination rooms at each of his practice locations advising patients of this restriction. The practice monitor condition could be reconsidered on an application to the Committee after a minimum of one year following his return to practice. Dr. Peirovy was also required to tell patients how to access the Discipline Committee's decision if requested, and to submit to unannounced inspections of his practice locations and patient charts by the College in order to ensure compliance.

D. Issues

[34] Dr. Peirovy raises two issues:

(1) did the Divisional Court err in concluding that the Discipline Committee made inconsistent findings of fact warranting intervention; and

(2) did the Divisional Court err in determining that the penalty imposed by the Discipline Committee was manifestly unfit?

[35] I will deal with both of these issues in turn.

E. Analysis

[36] To frame my analysis of the issues on appeal, it is important to set out the standard of review that the Divisional Court was required but failed to properly apply to the penalty decision of the Discipline Committee.

[37] When it acts as a reviewing court of an administrative tribunal, the Divisional Court must not interfere if the decision is reasonable, that is, "[i]f any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination": Law Society of New Brunswick v. Ryan, 2003 SCC 20, at para. 55; and Groia v. Law Society of Upper Canada, 2016 ONCA 471, at para. 81.

[38] To overturn a penalty, the Discipline Committee must have made an error in principle or the penalty must be clearly unfit: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.), at para. 99. A penalty will be clearly unfit where the decision does not fall within "a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47.

[39] Where, as here, there is a statutory appeal from a decision of a specialized administrative tribunal, the appropriate standards of review are the ones that apply on judicial review, not those that normally apply on appeal: Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, at para. 29. The question this court must answer is whether the Divisional Court chose the appropriate standard of review and applied it correctly. This requires the court to step into the lower court's shoes and focus on the administrative decision: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, at para. 46.

[40] The Divisional Court correctly selected and articulated the reasonableness standard of review. However, as I will explain in the following paragraphs, the Divisional Court failed to properly apply the reasonableness standard. Instead, it incorrectly substituted its own assessments of the evidence and penalty for those of the Discipline Committee.

(1) Did the Divisional Court err in concluding that the Discipline Committee made inconsistent findings of fact warranting intervention?

[41] The Divisional Court found the Discipline Committee's penalty decision to be unreasonable because it was based on inconsistent findings of fact.

[42] Specifically, it rejected the Discipline Committee's suggestion that Dr. Peirovy's unawareness as to how his behaviour was abusive could possibly explain the abuse of four patients. According to the Divisional Court, there was

no line of analysis that could reasonably lead the tribunal to conclude that [Dr. Peirovy's] awkward, unskilled and non-empathic manner was a factor in understanding his abusive behaviour or that it could reasonably infer that he was genuinely and completely unaware of the ways in which his behaviour in relation to his patients was in fact abusive.

[43] This "possible inference" of unawareness drawn by the Discipline Committee was, in the Divisional Court's view, inconsistent with the finding of fact that there were several offences. More importantly, the inference was considered inconsistent with the Discipline Committee's finding at the liability stage that Dr. Peirovy had touched the complainants in a way that an objective observer would find to be sexual and which the complainants described as "blatantly sexual".

[44] There are several problems with the Divisional Court's concern. First, the Discipline Committee's finding is well supported by the testimony of the experts, some of which I have summarized above. This includes the College's expert at the liability hearing, who testified that touching a female patient's nipple with either the hand or the stethoscope during a lung examination should be avoided because it is medically unnecessary and could be misinterpreted. In addition, the finding is supported by the Discipline Committee's assessment of Dr. Peirovy's testimony. Finally, the Discipline Committee did not, as the Divisional Court suggests, find that Dr. Peirovy's awkward, unskilled and non-empathic manner was the only cause; it simply opined that it was a factor.

[45] The Discipline Committee specifically considered the significance of the number of incidents. It rejected the inference that Dr. Peirovy had a predatory intent or uncontrollable deviant urges on the basis of the entire record and Dr. Rootenberg's evidence. This finding was open to the Discipline Committee, as was the inference that this improves the prognosis and lessens the risk of re-offence. It was also open to the Discipline Committee to suggest that the number of incidents, including one that occurred after Dr. Peirovy was informed of a complaint against him, might be explained by his lack of insight as to the abusive nature of his conduct.

[46] It is to be recalled that Dr. Peirovy's culpability was based on the finding of objectively sexual misconduct. The paramount principle animating the penalty proceedings was, as the Discipline Committee recognized, the protection of the public. In essence, the questions the Discipline Committee had to answer were, first, the appropriate sanction for the misconduct; and second, whether it was safe to allow Dr. Peirovy to continue to practise and, if so, subject to what conditions.

[47] The Divisional Court advanced a second basis for rejecting the Discipline Committee's suggestion that the several counts of sexual abuse could possibly be explained by Dr. Peirovy's genuine and complete unawareness of the ways in which his behaviour was abusive. In the Divisional Court's view, such an inference is inconsistent with Dr. Peirovy having been found guilty of criminal assault on two of the complainants.

[48] This basis is also flawed. The Discipline Committee's possible inference is not inconsistent with a finding of guilt for simple assault. Simple assault contemplates an unwanted touching. The Discipline Committee found that Dr. Peirovy deliberately touched the complainants in areas that were medically unjustified and that the complainants had not consented to the touching. This is sufficient to support the simple assault convictions. Such inferences are not inconsistent with the finding that Dr. Peirovy lacked understanding with respect to appropriate boundaries, patient consent and sensitivity to how patients were perceiving him. Clearly, there was touching by Dr. Peirovy in a manner that had not been consented to. A sexual motivation need not be proven to support a conviction for simple assault.

[49] The Divisional Court then expressed the view that Dr. Peirovy's motivation "can have been nothing but sexual". It stated that the Discipline Committee had made such a finding in the liability phase of the hearing and then contradicted itself in its sentencing reasons. The Divisional Court explained that it would be unreasonable for the Discipline Committee to rule at the sentencing phase that Dr. Peirovy did not understand his conduct to be sexual abuse after having found that an objective observer would have considered that it constituted a violation of the patients' sexual integrity.

[50] The difficulty with the Divisional Court's position is that it reflects a misunderstanding of the nuanced findings made by the Discipline Committee and misconstrues the objective test articulated in Chase. The objective test that led to the Discipline Committee's finding of sexual abuse turned on the perspective of a reasonable observer and did not go so far as to attribute subjective sexual motivation to Dr. Peirovy. As set out earlier, the Discipline Committee was not able to make any clear finding as to the presence or absence of sexual motivation in Dr. Peirovy's conduct. It was not required to do so in the circumstances of this case, where it found that the sexual integrity of the patients had been violated because private and sensitive areas of the body had been touched without the patients' consent and without medical necessity. Nevertheless, in fashioning the appropriate penalty, the Discipline Committee was careful to note that a degree of prurient interest could not be completely ruled out. This made clear that it took this possibility into account in designing the penalty imposed.

[51] It may well be that conclusions and inferences different from those reached and made by the Discipline Committee are possible, but the standard of reasonableness is satisfied so long as the explanation given for the conclusion is reasonable even if it "is not one that the reviewing court finds compelling": Ryan, at para. 55; and Groia, at para. 81. Deference requires respectful attention to the tribunal's reasoning process: Stewart v. Elk Valley Coal Corp., 2017 SCC 30, at para. 27.

[52] This court's role is to determine whether the reviewing court chose and applied the correct standard of review: Agraira, at paras. 45-47. If that was not the case, we must assess the administrative body's decision in light of the correct standard of review, namely, reasonableness: Dr. Q v. College of Physicians & Surgeons of British Columbia, 2003 SCC 19, at para. 43; and Board of Regents of Victoria University v. GE Canada Real Estate Equity, 2016 ONCA 646, at para. 84.

[53] Here, the Divisional Court chose the correct standard of review. However, in my view, the Divisional Court not only erred in its understanding of the evidence and of the reasons of the Discipline Committee, it effectively sought to retry the case in a manner inconsistent with the proper application of the standard of review. This is contrary to the Supreme Court's holding in Dunsmuir, at para. 48, that a reviewing court must do more than simply cite the correct standard of review. It must apply it and refrain from substituting its own view for that of the tribunal. The reviewing court must resist the temptation to "place itself in the position of the decision-maker of first instance and compare the decision it would have made against the decision actually made at first instance", as this approach is prone to undue conclusions of unreasonableness: Ottawa (City) Police Services v. Ottawa (City) Police Services, 2016 ONCA 627, at para. 66.

[54] There were no inconsistent findings of fact warranting intervention by the Divisional Court. It subjected the reasons of the Discipline Committee to excessive scrutiny, rejecting the reasonable, available findings made by the Discipline Committee and arriving at different factual findings based on its improper reassessment of the evidence de novo.

(2) Did the Divisional Court err in concluding that the penalty imposed by the Discipline Committee was manifestly unfit?

[55] The Divisional Court's second basis for allowing the appeal is that the Discipline Committee imposed an unfit penalty. As I will explain, the Divisional Court's analysis is flawed. First, it misunderstood the Discipline Committee's reasons and misapplied the reasonableness standard of review. As the Divisional Court properly stated, "[a] penalty decision of such a tribunal is at the heart of its discretion and is due great deference". Nevertheless, the Divisional Court in effect simply substituted its view of what might constitute an appropriate penalty and did not defer to the Discipline Committee's decision as was required. Furthermore, the penalty imposed was not manifestly unfit but represented the Discipline Committee's careful consideration of all relevant factors and was within the range of reasonable outcomes.

[56] To be overturned by a reviewing court, the Discipline Committee must have made an error in principle or the penalty must be "clearly unfit": Reid, at para. 99. The Supreme Court recently considered the meaning of similar phrases in the criminal context in R. v. Lacasse, 2015 SCC 64, noting that courts have used a variety of expressions to describe a sentence that reaches this threshold, including "demonstrably unfit", "clearly unreasonable", "clearly or manifestly excessive", "clearly excessive or inadequate" or representing a "substantial and marked departure". Wagner J. observed that "[a]ll these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence". He concluded that a sentence will be demonstrably unfit if it constitutes an unreasonable departure from the principle of proportionality.

[57] A similarly high threshold applies in the administrative context. To be clearly unfit, the penalty must fall outside of the range of reasonableness. A reasonable penalty will be "guided by proportionality and an assessment of the range of appropriate penalties dependent upon the facts of each case, [and] guided by penalties imposed in other cases": Reid, at para. 100.

[58] The Discipline Committee considered a number of its previous decisions involving the sexual abuse of patients. The factual scenarios in those cases are, like the present case, disturbing. However, they show that the penalty imposed on Dr. Peirovy is in line with those that have been imposed in Ontario. In fact, a six-month suspension has been imposed for sexual misconduct more egregious than the misconduct at issue here: see Lee (Re), [2009] O.C.P.S.D. No. 10; Rakem (Re), 2014 ONCPSD 25. Only one decision in which a doctor's licence was revoked was submitted to the Discipline Committee. Minnes (Re), 2015 ONCPSD 3 involved a physician's attempted sexual assault of a 17-year-old female counsellor, a non-patient, at a summer camp where he was camp physician. The Discipline Committee noted that the horrific circumstances of the attempted sexual assault required no penalty short of revocation in that case, which bore little similarity to the present one.

[59] The penalty imposed by the Discipline Committee was carefully tailored to the circumstances of this case and fit comfortably within the range of penalties imposed in other similar or more serious cases of sexual abuse of patients. It was based on forensic psychiatric evidence accepted by the Discipline Committee as well as the evidence it heard during the liability phase. It also took into account the progress shown by Dr. Peirovy in addressing some of the concerns. Further, following the lodging of the complaints, Dr. Peirovy had practised with supervision for about five years without any incident.

[60] The Divisional Court relies on four errors allegedly made by the Discipline Committee to justify its interference with the penalty imposed. I will address each of them in turn.

(a) Did the Discipline Committee fetter its discretion with respect to the penalty of revocation?

[61] The first basis advanced by the Divisional Court is that the Discipline Committee improperly fettered its discretion by proceeding on the basis that "revocation of registration is reserved for egregious conduct or offenders with a high risk to re-offend".

[62] Had the Discipline Committee proceeded on this basis, it may well have erred, even on the reasonableness standard of review. This is not, however, an accurate or reasonable interpretation of what the Discipline Committee said or intended. In the relevant portion of the reasons, the Discipline Committee was discussing two of the several principles of sentencing: maintaining public confidence in the integrity of the profession and protection of the public.

[63] The Discipline Committee explained that protection of the public is generally taken as the paramount principle of sentencing. It is then that the Discipline Committee stated:

Although the two principles are not identical, and there will be cases where the egregious nature of the misconduct itself will demand revocation even where the risk of re-offence is low, a well-informed public would be expected to maintain confidence in a self-regulating process which results in the public being protected from abusive physicians.

[64] In this passage, the Discipline Committee was quite properly pointing out that revocation is sometimes "demanded" by egregious conduct alone. As it indicated in other parts of its reasons, however, it is tasked with arriving at a fair and just penalty that addresses all of the sentencing principles. Those principles include the paramount consideration of protection of the public, as well as maintenance of public confidence in the reputation and integrity of the profession, effective self-governance, general deterrence, specific deterrence and the potential for the member's rehabilitation. Proportionality is also an important consideration.

[65] The Discipline Committee's reasons as a whole make clear that it did not erroneously assume that revocation was available only in a narrowly constrained set of circumstances. Rather, it concluded that the suspension and practice restrictions imposed struck the most appropriate balance between the variety of sentencing principles at play in this case.

(b) Was the suspension imposed by the Discipline Committee unreasonably short?

[66] The second concern raised by the Divisional Court is that the six-month suspension imposed by the Discipline Committee was too short. The Divisional Court explained that the suspension was "clearly inadequate to deter others and to contribute meaningfully to the eradication of sexual abuse in the profession". The Divisional Court opined that on the facts of this case, it "would expect the Committee to be debating whether to revoke the member's registration or impose a suspension measured in years, as opposed to months".

[67] I disagree. The penalty imposed was serious and within the range of reasonable outcomes. In my view, the Divisional Court improperly substituted its own view for the Discipline Committee's determination, as a statutorily mandated, specialized tribunal, of what is required to respond to the legislature's goal of eradicating the sexual abuse of patients.

[68] A court examining the reasonableness of a disciplinary tribunal's decision on penalty is concerned with "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, at para. 47. The Divisional Court ought not, therefore, to have effectively substituted its view of the appropriate penalty for that of the Discipline Committee. As explained by the Supreme Court of Canada in Dr. Q, at para. 31:

A statutory purpose that requires a tribunal to select from a range of remedial choices or administrative responses, is concerned with the protection of the public, engages policy issues, or involves the balancing of multiple sets of interests or considerations will demand greater deference from a reviewing court.

(Citations omitted)

See, also, Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., 2008 SCC 32, at paras. 17-21; and Ryan, at para. 51.

[69] It is undeniable that the conduct exhibited by Dr. Peirovy in this case is to be roundly condemned. This is the approach followed by the Discipline Committee in this case. The penalty imposed was serious. It followed a lengthy period during which Dr. Peirovy was required to practise under supervision and with restrictions. The Discipline Committee did not accept the four-month suspension proposed by Dr. Peirovy but imposed six months, in keeping with the range of similar and in some cases more serious instances of sexual abuse.

[70] Further, as already highlighted, the penalty imposed did not consist solely of a suspension. It contained other restrictions, including supervision during all interactions with female patients and the posting of a sign advising patients of this restriction on Dr. Peirovy's practice. The penalty provides that these restrictions will continue for a minimum of one year after Dr. Peirovy has served his suspension. Dr. Peirovy will also have to continue individualized instruction and pay significant sums for costs incurred in the prosecution and for therapy undergone by the complainants.

[71] Although not coming to a final determination on the issue of Dr. Peirovy's motivation for his conduct, it is implicit that the Discipline Committee was confident that his behaviour could be corrected, even if a prurient interest could not be completely ruled out. In fact, the Discipline Committee found that it was possible for Dr. Peirovy to continue to practise safely. This conclusion did not depart from the range of reasonable outcomes in the circumstances, considering the evidence of the experts and the numerous mitigating factors. Those included the progress made by Dr. Peirovy since the last incident, his engagement in the rehabilitation process, the lack of deviant urges, his embarrassment and shame for his actions and the effectiveness of the practice monitor condition.

[72] The legislature gave the Discipline Committee the task of fashioning penalties that will favour the goal of eradicating sexual abuse of patients while taking into account and balancing other relevant factors. Unlike criminal sentences, which are determined by the courts pursuant to the Criminal Code, R.S.C. 1985, c. C-46, self-regulated professions are mandated to make these determinations.

[73] Deference is owed to discipline committees because they are tribunals composed of members of the profession and of the public with the expertise to assess "the level of threat to the public and . . . the . . . profession posed by certain forms of behaviour". Therefore, they are in a better position than the courts to determine appropriate penalties for professional misconduct: see Ryan, at para. 33; and Law Society of Upper Canada v. Abbott, 2017 ONCA 525, at paras. 12-15, 52 and 54, leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 355; Richardson v. Law Society of New Brunswick, 2011 NBCA 108, at para. 4.

[74] As this court has said in the past, "[t]he issue of the appropriate penalty for infractions within a profession or industry is one that is uniquely within the experience, expertise and discretion of the relevant disciplinary tribunal and is therefore subject to a high degree of deference": Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal, at para. 108.

[75] In Abbott, this court also highlighted, at para. 13, two additional reasons why professional disciplinary bodies are entitled to deference from a reviewing court. First, the committee has the benefit of hearing live testimony directly from witnesses and consequently has a more comprehensive understanding of the evidence. Second, determining an appropriate penalty is a question of mixed fact and law, which does not lend itself to the extrication of a pure question of law. In Ryan, the Supreme Court observed, at para. 41:

The question of what sanction Mr. Ryan should face as a result of his misconduct is a question of mixed fact and law since it involves the application of general principles of the Act to specific circumstances. The Court of Appeal impugned the weight that the Committee assigned to particular mitigating evidence and also disapproved of the Committee's selection of factually similar cases. These are fact-intensive elements within the question of mixed fact and law. They do not involve easily extracted and discretely framed questions of law. The Committee's decision on sanction is not one that will determine future cases except insofar as it is a useful case for comparison. The decision is intricately bound to many factual findings and inferences about the misconduct of Mr. Ryan and the interests of the public and the profession.

[76] A reviewing court that fails to show due deference effectively usurps the administrative body's statutory role. The concept of deference is rooted in part in respect for the legislature's decision to create and delegate powers to administrative bodies: Dunsmuir, at para. 48. The Divisional Court's decision did not respect the legislature's choice to delegate the determination of the appropriate penalty to the Discipline Committee: Dunsmuir, at para. 49. Reasonable penalties should not be overturned when deference is due. Otherwise, nothing prevents reviewing courts from arbitrarily intervening in every administrative decision and undermining the disciplinary scheme created by the legislature. This would also have the effect of introducing uncertainty in the finality of disciplinary penalties.

(c) Did the Discipline Committee incorrectly treat public confidence as a "shifting standard"?

[77] The third error the Divisional Court purported to identify is that the Discipline Committee incorrectly viewed public confidence in the medical profession to be a "shifting standard".

[78] In my view, the Divisional Court's concern with the Discipline Committee's reference to public confidence is unclear and, in any event, misplaced. The relevant quotation from the Discipline Committee's reasons is as follows: "The Committee accepted that the maintenance of public confidence is a shifting standard." This statement appears to simply be an acceptance by the Discipline Committee of a submission made by the College. The Discipline Committee was properly observing that what needs to be done to maintain the public's confidence must constantly be reassessed in light of considerations such as changes in society and in the practise of medicine. This is a reasonable observation. It neither constitutes a palpable and overriding error nor an error in principle. Moreover, it is in keeping with the Divisional Court's concern that the Discipline Committee's penalties remain current with public standards and expectations.

(d) Do the prior decisions considered by the Discipline Committee constitute "a litany of clearly unfit penalties"?

[79] The final basis advanced by the Divisional Court for interfering is that all the penalties imposed in similar cases were, in the Divisional Court's view, "a litany of clearly unfit penalties". In other words, it considered that the penalties imposed by numerous other discipline committees over the course of more than a decade were wrong and that the Discipline Committee erred in referring to these as precedents.

[80] By this statement the Divisional Court was, in effect, acknowledging that the penalty imposed was consistent with the range of penalties established in the existing authorities. Although the Discipline Committee was not bound by its previous decisions, it is well settled that consistency in sentencing is as important in professional bodies as in the criminal courts, and that consideration should be given to disciplinary penalties imposed in similar cases: see Stevens and Law Society of Upper Canada (Re), at p. 411 O.R.; Law Society of Upper Canada v. Neinstein, at para. 15.

[81] The Divisional Court should not have simply declared that the penalties imposed in the cases making up the well-established range, of which it was not seized, were wrong. The penalties imposed in those cases were not appealed and, in some cases, were the result of joint submissions by the College and the offender: Le (Re), [2010] O.C.P.S.D. No. 10; Marks (Re), 2012 ONCPSD 13; Rakem (Re). The Divisional Court should not have opined, long after the fact, that penalties in a whole series of cases, which were "intricately bound" to their own factual contexts, were incorrect.

[82] In its submissions before this court, the respondent suggests that we should interpret the Divisional Court's decision as appropriately declaring that a change to the penalty range was required. In other words, the Divisional Court viewed the penalty range that has existed for over a decade to be too low. Therefore, even if we were to accept that the prior cases cited by Dr. Peirovy were properly decided, under current circumstances, the range that these reflected was no longer appropriate. In support of this submission, the respondent points to the College's Revised Draft Sexual Abuse Principles prepared in 2015 and the legislature's 2017 amendment, the Protecting Patients Act, 2017, S.O. 2017, c. 11, to the governing statute, the Regulated Health Professions Act, 1991. The 2017 amendment made revocation mandatory for sexual abuse of the nature committed in this case.

[83] I disagree. First, this is not what the Divisional Court said. More importantly, the Divisional Court had neither the mandate nor the evidentiary basis to intervene, let alone change, the penalty range for an entire category of behaviour. This is not to suggest that penalty ranges cannot change. The Discipline Committee was in the best position to assess whether a deviation from the range of penalties previously imposed for similar misconduct or a wholesale change was required. However, in the circumstances of this case, changing the penalty range was effectively an arbitrary exercise. The Divisional Court's conclusion that the penalty imposed in this and similar cases was "inadequate to protect the public and vindicate the integrity of the profession" was not grounded in the jurisprudence of the Discipline Committee.

[84] The court's conclusion was also made in the absence of a proper and sufficient record showing that the Discipline Committee was not properly carrying out its mandate and that its approach was failing or manifestly out of step with contemporary social values. As already explained, specialized tribunals like the Discipline Committee have been given the mandate to design appropriate penalties for professional misconduct. They have been consistently recognized as being in the best position to assess the level of threat posed to the public by certain forms of behaviour: Mussani v. College of Physicians and Surgeons of Ontario, at para. 113; Ryan, at para. 33.

[85] As for whether the time had come for change, the Discipline Committee noted that the College had prepared Revised Draft Sexual Abuse Principles in 2015 which proposed more severe penalties. The Discipline Committee was aware of and would therefore have taken account of the increasing concern for sexual abuse by physicians. This concern is not new. Since at least 1991, when a taskforce on the sexual abuse of patients submitted its report, it has been recognized that sexual abuse tarnishes public trust in the entire profession. The legislative response to that taskforce report came in 1993 with the introduction of a zero tolerance/ mandatory revocation scheme for specified sexual acts between health professionals and their patients.

[86] In 2017, after the decision under appeal, the legislature responded to the College's 2015 Draft Sexual Abuse Principles. It determined that penalties for sexual abuse should be increased by expanding the application of mandatory revocation. That penalty is now mandatory in cases where touching of a sexual nature occurs on the patient's genitals, anus, breasts or buttocks. Dr. Peirovy's conduct would likely be covered by this definition. The amendments further require the discipline committees to make interim orders suspending a member's certificate of registration immediately upon making a finding of sexual abuse that would attract a mandatory revocation.

[87] These 2017 legislative amendments do not retroactively validate the Divisional Court's erroneous application of the deferential standard of review to the Discipline Committee's 2016 decision on penalty for offences occurring in 2009 and 2010. A penalty must reflect the context in which the misconduct occurred: Law Society of Upper Canada v. Neinstein, at para. 104, revd on other grounds (2010), 99 O.R. (3d) 1, 2010 ONCA 193. In accordance with the proper administration of justice and procedural fairness, Dr. Peirovy's case had to be adjudicated based on the law in force at the time. Any legislative change that followed is irrelevant.

[88] In fact, to some extent, the legislative response serves to further highlight the differing institutional roles at play in this case. The legislature is responsible for setting the framework under which the Discipline Committee operates. The application of the framework is left in the hands of the Discipline Committee, and deference is owed to the way in which the Discipline Committee discharges its duties within the scope of that mandate. The fact that the legislature chose to modify the parameters under which the Committee operates in 2017 does not render decisions made under the previous regime unreasonable.

[89] As already noted, the suspension imposed was serious, accompanied by other restrictions, and lasted for a longer term than requested by Dr. Peirovy. Furthermore, the range of penalties imposed in the cases reviewed by the Committee show that the penalty received by Dr. Peirovy was in keeping (and exceeding in some instances) those imposed in Ontario and across Canada.

[90] The Divisional Court panel clearly felt that the penalties being imposed on medical practitioners by discipline committees for sexual abuse had not been severe enough for many years and should be increased. However, in the absence of reviewable error by the Discipline Committee or the imposition of a penalty outside the range of possible, acceptable and defensible outcomes open to it on the evidence, the Divisional Court could not and should not have interfered to substitute its own opinion for that of the expert panel charged with the duty of determining the appropriate penalty.

[91] No reversible error has been identified in the Discipline Committee's decision on penalty. The Discipline Committee correctly stated and applied the established principles it was required to consider at the penalty phase. It was aware of the range of the penalties that it could impose, which included revocation of Dr. Peirovy's licence to practise, as urged by the respondent. Acknowledging that it was not bound by previous decisions, the Discipline Committee properly looked to them for assistance in establishing the range of possible acceptable and defensible outcomes that were open to it on the evidence.

[92] Most importantly, the Discipline Committee was manifestly concerned with the paramount principle of the protection of the public. It accepted Dr. Rootenberg's evidence that Dr. Peirovy posed a low risk of recidivism. Risk is to be assessed in light of the conditions that can be imposed in order to mitigate that risk for the purposes of sentencing: see R. v. Proulx, 2000 SCC 5, at para. 72; R. v. Esmonde, at para. 11. In this case, in addition to the suspension imposed, the Discipline Committee imposed conditions on Dr. Peirovy's return to practice to address the particular nature of his risk to the public. Overall, the Discipline Committee crafted a careful penalty that reflected the principle of the protection of the public, while balancing the other principles that it was required to consider, including proportionality and the rehabilitation of Dr. Peirovy.

F. Conclusion

[93] For these reasons, I would allow the appeal and restore the penalty imposed by the Discipline Committee. I would award Dr. Peirovy his costs in the amounts agreed. Those amounts are $15,000 for the appeal, $1,500 for the application for leave to appeal and $7,500 in the Divisional Court, all of which are inclusive of disbursements and applicable taxes.

Dissenting Opinion

Per Benotto J.A.

[94] This appeal concerns the duty of the Discipline Committee of the College of Physicians and Surgeons (the "Discipline Committee") to protect the public from doctors who sexually abuse their patients.

[95] I agree with my colleague as to the standard of review to be applied to the Discipline Committee's penalty decision. However, I do not agree that the Divisional Court erred in its application.

[96] I would dismiss the appeal.

Overview

[97] The College of Physicians and Surgeons (the "College") received six separate complaints from young women seen by Dr. Peirovy at walk-in clinics. The complainants described that, while examining them with a stethoscope, Dr. Peirovy cupped their breasts, touched their nipples, in one case "tweak[ed]" a nipple, and asked one patient out on a date. Dr. Peirovy denied the inappropriate touching.

[98] Dr. Peirovy was charged criminally with six counts of sexual assault based on the complainants' allegations. He pleaded guilty to simple assault of two of the complainants and the other charges were withdrawn.

[99] The Discipline Committee conducted a two-phase hearing regarding the complaints: a liability hearing and a penalty hearing. At the liability phase, the Discipline Committee found that Dr. Peirovy had committed acts of professional misconduct per s. 51(1) of the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18) ("Procedural Code"). Specifically, it found that he sexually abused four patients; his conduct with respect to the four patients would also reasonably be regarded as "disgraceful, dishonourable or unprofessional"; his conduct with respect to a fifth patient would similarly reasonably be regarded as "disgraceful, dishonourable or unprofessional"; and he had been found guilty of offences relevant to his suitability to practise medicine.

[100] At the penalty phase, the Discipline Committee ordered that Dr. Peirovy's certificate of registration be suspended for a period of six months and that certain conditions be imposed, including that Dr. Peirovy have a practice monitor present during all professional encounters with female patients and post a sign at his practice locations publicizing this requirement.

[101] The Divisional Court allowed the College's appeal from the Discipline Committee's penalty decision. I agree with my colleague that the Divisional Court correctly selected reasonableness as the applicable standard of review. The Divisional Court quite rightly recognized that reasonableness in this context means a penalty can only be overturned if the Discipline Committee's reasons disclose an error in principle or if the penalty is clearly unfit: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.), at para. 99.

[102] My colleague has determined that the Divisional Court failed to properly apply the standard it articulated, substituting instead its own assessment of the evidence and view of the penalty. With respect, I do not agree. The Divisional Court identified significant errors in principle in the Discipline Committee's reasons and found that the penalty imposed was clearly unfit. The Divisional Court concluded that the Discipline Committee's penalty decision was unreasonable and remitted the matter back to the Discipline Committee.

[103] In my view, the Divisional Court did not err in reaching this conclusion. In its penalty decision, the Discipline Committee made internally inconsistent findings of fact, reached a conclusion that was unsupported by the evidence, and imposed a penalty that does not fulfill its mandate. These errors in principle led to an unreasonable decision and a penalty that was clearly unfit.

Analysis

(1) Inconsistent findings

[104] The Discipline Committee contradicted its own factual findings from the liability phase during the penalty phase. As I will demonstrate, having rejected the submission that Dr. Peirovy's blatant sexual abuse could be explained by misunderstanding, the Discipline Committee accepted the opposite in its penalty decision.

[105] During the liability phase, the Discipline Committee

• rejected Dr. Peirovy's evidence that he did not touch the complainants' breasts as they alleged;
• accepted the complainants' evidence that Dr. Peirovy's conduct was "blatantly sexual", deliberate and could not be explained as inadvertent or incidental to a legitimate examination;
• expressly rejected misunderstanding as an explanation for the complaints;
• rejected Dr. Peirovy's submission that his guilty pleas to assault were not relevant to his suitability to practise (Dr. Peirovy had argued they were irrelevant since they arose from mere technical breaches of the Criminal Code, R.S.C. 1985, c. C-46, related to his failure to obtain specific consent to place his stethoscope on or near the patients' nipples. The Discipline Committee found it "difficult . . . to imagine a clearer example of an offence relevant to a physician's suitability to practise" than a finding that the physician had assaulted his patients in his office during the course of a sensitive physical examination); and
• found Dr. Peirovy's evidence "evasive" and "somewhat lacking in credibility" with respect to the patient he asked out on a date during an examination.

[106] In rejecting Dr. Peirovy's submission that the sexual abuse could be explained by misunderstanding, the Discipline Committee stated, at para. 95:

[T]he Committee finds that the precise and detailed evidence of four of the complainants with respect to how Dr. Peirovy touched their breasts is not consistent with misunderstanding as the explanation for their complaints.

(Emphasis added)

[107] During the penalty phase, however, the Discipline Committee found the opposite. It accepted that Dr. Peirovy's communication deficits, insensitivity and awkward and unskilled manner were antecedents to, and factors in understanding, his sexual abuse. At para. 195, the Discipline Committee stated:

[T]he Committee was of the view that we do, in fact, understand some of the antecedents to Dr. Peirovy's sexual misconduct . . . Dr. Peirovy is a physician who, at the time this misconduct occurred, had very serious deficits in his communication skills, his sensitivity to the extent of his patients' vulnerability, and his understanding of boundaries and consent. These deficits in no way diminish or excuse the fact that he repeatedly subjected several patients to abusive experiences. In the view of the Committee, however, Dr. Peirovy's awkward, unskilled, and non-empathic manner with his female patients was a factor in understanding his abusive behaviour.

(Emphasis added)

[108] The Discipline Committee also endorsed, at para. 198, the "possible inference" that Dr. Peirovy was "genuinely and completely unaware" of the ways in which his behaviour was abusive.

[109] These findings are irreconcilably inconsistent with the Discipline Committee's own findings at the liability phase. While the Discipline Committee is entitled to make and rely on additional findings of fact during the penalty phase, these findings cannot be inconsistent with its earlier findings on liability: College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116 (Div. Ct.), at para. 44, leave to appeal to Ont. C.A. refused, July 7, 2017.

[110] Where, as here, a decision is internally inconsistent, "this alone renders it unreasonable": Sangmo v. Canada (Minister of Citizenship and Immigration), 2016 FC 17, at para. 21.

(2) Unsupported conclusion

[111] The Discipline Committee's finding regarding the impact of Dr. Peirovy's awkwardness, lack of skill and unawareness is also without foundation. I respectfully disagree with my colleague when he says that this finding is well supported by the testimony of the experts during the penalty phase.

[112] The Discipline Committee's related finding regarding Dr. Peirovy's motivations is similarly unfounded. Again, I respectfully disagree with my colleague when he characterizes the Discipline Committee's finding on this point as "nuanced". In my opinion, the evidence of Dawn Martin and Dr. Rootenberg was not capable of supporting either of these conclusions.

[113] A decision may be unreasonable where the outcome ignores or cannot be supported by the evidence: Intact Insurance Co. v. Allstate Insurance Co. of Canada, 2016 ONCA 609, at para. 65, leave to appeal to S.C.C. refused [2016] S.C.C.A. No. 392. In my view, the Discipline Committee's unsupported findings regarding Dr. Peirovy's motivations and the role of his manner in the sexual abuse, both of which it relied on in crafting the appropriate penalty, constitute further errors in principle that render its decision unreasonable.

(a) Dawn Martin's evidence

[114] Dawn Martin is a Ph.D. who specializes in assessing and training physicians in communication, interviewing skills, collaboration and professionalism. Dr. Peirovy was referred to her for assessment and education with respect to his faulty communication skills. She worked with him to assist in that regard and provided a written report and testified at the penalty phase.

[115] The Discipline Committee summarized Ms. Martin's evidence as follows, at para. 174:

[Ms. Martin]'s assessment of Dr. Peirovy indicated that, in her opinion, he had deficits in a number of areas. These included his interviewing skills, his manner (which was described as awkward and clumsy), his verbal communication, his awareness of issues pertaining to patient consent, his sensitivity to how his patients were perceiving him, and how his behaviour was affecting his patients. [Ms. Martin] stated that Dr. Peirovy was largely unaware of his professional responsibilities in maintaining appropriate boundaries in the doctor/patient relationship.

[116] Ms. Martin's evidence presented no new information but repeated what had already been addressed at the liability phase: Dr. Peirovy has poor communication skills and this created a substantial risk of patient misunderstanding.

[117] Specifically, during the liability phase the Discipline Committee accepted expert evidence that the way Dr. Peirovy was practising placed him at "high risk" for misunderstandings with patients. Despite this, as previously mentioned, it found that the complainants' precise and detailed evidence regarding how Dr. Peirovy touched their breasts was inconsistent with misunderstanding as the explanation for their complaints. It similarly noted there was no evidence that the physical touching at issue was clinically necessary. The Discipline Committee stated, at paras. 95-96:

The Committee found that [the expert evidence] with respect to the general issue of patient complaints about physicians and the "risk factors" identified in the literature, which appeared to make complaints more likely, to be credible and informative. This evidence, however, was of limited utility. The Committee accepts that most of the identified risk factors are present with respect to the complaints of these six patients. The Committee accepts that Dr. Peirovy's walk-in practice, by its nature, may have been a high risk setting where complaints were more likely to occur than with other physicians practising in other ways. The position of the defence, essentially, is that the complainants misunderstood Dr. Peirovy's actions as sexual in nature, due in part to the presence of risk factors referred to above. The Committee accepts that Dr. Peirovy, in relation to these complainants, was practising in a fashion in which the risks of poor communication and patient misunderstanding were substantial. As will be stated below, however, the Committee finds that the precise and detailed evidence of four of the complainants with respect to how Dr. Peirovy touched their breasts is not consistent with misunderstanding as the explanation for their complaints.

. . . [The expert evidence did not offer] the opinion that there was a clinical necessity for Dr. Peirovy to have placed his stethoscope directly on the nipple of a patient, tweak the nipples of one complainant, or cup the breasts of two complainants with his hand.

(Emphasis added)

[118] Ms. Martin's evidence was therefore not relevant to the conduct Dr. Peirovy had been found liable for. Her evidence spoke to Dr. Peirovy's "awkward and clumsy" interviewing skills, and his insensitivity to how patients perceived him and how his behaviour affected them. It related to his conduct during "sensitive history taking and clinical exams".

[119] The professional misconduct found at the liability phase did not involve an interview, history taking or a clinically necessary exam. The Discipline Committee found that Dr. Peirovy had engaged in deliberate physical touching that violated the sexual integrity of his patients and was clinically unnecessary. Dr. Peirovy's inept verbal skills and poor sensitivity around intimate exams are not related to this conduct. Moreover, they could not have been a factor in his sexual abuse given the Discipline Committee's finding that his conduct could not be explained by misunderstanding.

[120] That Ms. Martin conflated Dr. Peirovy's communication deficits with his physical sexual abuse became evident when she was asked directly about the Discipline Committee's findings:

Q. You have read the Committee's decision-making findings of sexual abuse in relation to the four patients and disgraceful, dishonourable and unprofessional conduct in relation to all four and also to [a fifth patient] . . . In your view, how has the work that you have done with Dr. Peirovy addressed the findings made by the Committee?

R. Well, I think that the two are very inter-connected in the sense that he had poor interviewing skills, poor relationship-building skills that needed to be addressed. Intimate exams are -- you're far more -- you need to pay attention to how vulnerable the patient is. And I think there was a lot of reflection, skill building, decoding for him of how and who he needed to be in that relationship. I don't think it was so much as any mal intent as it was awkward and naïve, making himself vulnerable to being -- confusing people around not providing explanations. And I think he is clear on that and what he needs to do now.

[121] This answer ignores the Discipline Committee's conclusion regarding the nature of Dr. Peirovy's conduct at the liability stage; the Discipline Committee had already accepted that his behaviour was not misunderstood or medically justified. There were no "explanations" that could justify his conduct.

(b) Dr. Rootenberg's evidence

[122] Dr. Rootenberg is an expert in forensic psychiatry. He specializes in the assessment and treatment of persons who have committed sexual and other offences, including their risk of re-offending. He assessed Dr. Peirovy at the request of Dr. Peirovy's counsel and provided a written report and testified at the penalty phase.

[123] In its penalty decision, the Discipline Committee relied upon Dr. Rootenberg's evidence to eliminate the possibility that Dr. Peirovy's conduct was motivated by a predatory intent or uncontrollable urges. It stated, at para. 194:

The expert evidence . . . now effectively rules out psychopathy or sexual deviance, and this is an important finding with respect to the issue of Dr. Peirovy's motivation.

[124] And later, at paras. 197-198:

The fact that Dr. Peirovy's sexual misconduct with these four patients occurred in fairly close succession, over a time frame of several months, and continued to occur even after he was aware that a complaint had been made, was considered by the Committee. The Committee did not, however, infer that this pattern is indicative of predatory intent or uncontrollable deviant urges on Dr. Peirovy's part, and thus a serious aggravating factor.

In fact, the expert evidence appears to rule out motivation of this nature.

(Emphasis added)

[125] In so doing, the Discipline Committee expanded Dr. Rootenberg's opinion evidence beyond its limits. Reasonably conceived, Dr. Rootenberg's evidence could not support the Discipline Committee's conclusions regarding Dr. Peirovy's motivation. I say this for two reasons.

[126] First, Dr. Rootenberg's evidence was not capable of supporting the conclusion that the absence of a psychiatric disorder rules out sexual motivation. There was no evidence before the Discipline Committee that sexual abuse is committed by persons with identifiable mental illness or deviant behaviours. In fact, courts have recognized that this is not true.

[127] In R. v. Mohan, [1994] 2 S.C.R. 9, the Supreme Court of Canada considered the admissibility of expert evidence to show that a doctor accused of sexual misconduct with patients did not possess character traits fitting the psychological profile consistent with the abuse charged. The court concluded, at pp. 37-38 S.C.R., that the evidence was not admissible as "there is no acceptable body of evidence that doctors who commit sexual assaults fall into a distinctive class with identifiable characteristics".

[128] This holding is consistent with a long line of authority, including this court's decision in R. v. McMillan, [1977] 2 S.C.R. 824, in which Martin J.A. stated, at p. 764 O.R.:

Where the crime under consideration does not have features which indicate that the perpetrator was a member of an abnormal group, psychiatric evidence that the accused has a normal mental make-up . . . is inadmissible.

[129] The fact that Dr. Peirovy did not have sexual deviance or psychopathy does not relate to his degree of culpability. The Discipline Committee's reliance on this fact to find that a lesser penalty was called for was an error.

[130] Second, assuming he were qualified to opine on Dr. Peirovy's motivation, Dr. Rootenberg's opinion was based on evidence the Discipline Committee had rejected at the liability phase. One of the sources of information identified in Dr. Rootenberg's report was assessment interviews conducted with Dr. Peirovy. Dr. Rootenberg testified that Dr. Peirovy's comments to him were the same as in his testimony before the Discipline Committee: Dr. Peirovy insisted that the sexually abusive conduct was inadvertent. It was illogical and inconsistent for the Discipline Committee to embark upon an analysis of Dr. Peirovy's motivation as gleaned from evidence it had heard itself and not accepted.

(3) Failure to fulfill mandate

[131] My colleague concludes that the penalty imposed by the Discipline Committee was one of the options available and thus deference requires that appellate courts not interfere. With respect, I again disagree.

[132] I recognize that the penalty imposed was within the range of penalties imposed in past Discipline Committee decisions involving sexual abuse. However, reasonableness is not a static concept and ranges are not set in stone. Our collective social conscience is continuously changing. What was once reasonable may no longer accord with the modern conscience. Where society has evolved such that a range no longer reflects societal values, there is reason to question the validity of the range.

[133] In this case, the Discipline Committee imposed a penalty that failed to fulfill its mandate and is clearly unfit. In my view, the mere fact that it falls within the historical penalty range is insufficient to render it reasonable.

(a) The Discipline Committee's mandate

[134] The legislature has entrusted the Discipline Committee with holding hearings of allegations of physician misconduct and fashioning penalties where it finds a member has committed an act of professional misconduct: Procedural Code, ss. 38(1) and 51.

[135] This role is crucial. As explained by LeBel J. in Pharmascience Inc. v. Binet, 2006 SCC 48, at para. 36:

This Court has on many occasions noted the crucial role that professional orders play in protecting the public interest. As McLachlin J. stated in Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, "[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions" (p. 249). The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them. Also, it should not be forgotten that in the client-professional relationship, the client is often in a vulnerable position. The Court has already had occasion to address this point in respect of litigants who entrust their rights to lawyers (Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45, at para. 17). The general public's lack of knowledge of the pharmaceutical field and high level of dependence on the advice of competent professionals means that pharmacists are another profession in which the public places great trust.

[136] As with litigants and their lawyers and the public and pharmacists, "[a]n unequal distribution of power is frequently a part of the doctor-patient relationship". Patients seek the help of doctors when they are vulnerable -- "when they are sick, when they are needy, and when they are uncertain about what needs to be done": Norberg v. Wynrib, [1992] 2 S.C.R. 226, at p. 258 S.C.R., citing The Final Report of the Task Force on Sexual Abuse of Patients, An Independent Task Force Commissioned by The College of Physicians and Surgeons of Ontario (November 25, 1991) (Chair: Marilou McPhedran), at p. 11.

[137] In exercising its delegated power, the Discipline Committee is guided first and foremost by a duty to protect the public: McIntyre, at para. 50. As stated by LeBel J. in Pharmascience, at para. 36:

I have no hesitation in applying the comments I wrote for this Court in Finney, at para. 16, generally to the health field to emphasize the importance of the obligations imposed by the state on the professional orders that are responsible for overseeing the competence and honesty of their members:

The primary objective of those orders is not to provide services to their members or represent their collective interests. They are created to protect the public, as s. 23 of the Professional Code makes clear. . . .

The privilege of professional self-regulation therefore places the individuals responsible for enforcing professional discipline under an onerous obligation. The delegation of powers by the state comes with the responsibility for providing adequate protection for the public. Finney confirms the importance of properly discharging this obligation and the seriousness of the consequences of failing to do so.

[138] In McIntyre, the Divisional Court described the Discipline Committee's "broad policy-based view of its own mandate" as follows, at para. 62:

[T]o protect the public; to recognize the devastating impact on patients when the trust they place in doctors has been violated, particularly through sexual abuse; and to maintain public confidence in the ability of the medical profession to regulate itself in the public interest.

[139] Section 1.1 of the Procedural Code further specifies the purpose of its sexual abuse provisions as follows:

The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling for patients who have been sexually abused by members and, ultimately, to eradicate the sexual abuse of patients by members.

(Emphasis added)

[140] The Discipline Committee's mandate to protect the public, maintain public confidence in the medical profession's ability to self-regulate and -- in acting pursuant to the Procedural Code's sexual abuse provisions -- eradicate the sexual abuse of patients by members was not fulfilled with a penalty that is clearly unfit.

(b) The penalty is clearly unfit

[141] In its penalty decision, the Discipline Committee found, at para. 166, that Dr. Peirovy "demonstrated a pattern of behaviour over a period of time which was causing harm to the public" and noted it was "extremely concerned" by his actions.

[142] I agree with the Divisional Court that the short suspension imposed in this case, given the conduct found by the Discipline Committee, is "clearly inadequate to deter others and to contribute meaningfully to the eradication of sexual abuse in the profession", and is "inadequate to protect the public and vindicate the integrity of the profession": at paras. 37-38.

[143] Moreover, the conditions placed on Dr. Peirovy demonstrate a lack of confidence in his ability to practise medicine. It is unreasonable for a patient to attend a walk-in clinic with a physician who requires a chaperone with half the world's population, and which features a prominent sign indicating his limited capacity. Such conditions -- in these circumstances -- belies the trust inherent in the doctor-patient relationship, undermines public confidence and fails to protect the public.

[144] Reasonableness "takes its colour from the context": Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, at para. 59. Where a statutory mandate expressly tethers the scope of an administrative decision-making power, a decision that is inconsistent with, or undermines, that mandate will be unreasonable: Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4, 417 D.L.R. (4th) 239, at paras. 33-34.

[145] This is equally true where an administrative tribunal renders a decision that does not fulfill the values underlying its grant of discretion. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, the Supreme Court considered the decision of an immigration official that failed to account for the applicant's children. Justice L'Heureux-Dubé held that the decision was unreasonable since it failed to fulfill the mandate of protecting children. She stated, at p. 859 S.C.R.:

The reasons of the immigration officer show that his decision was inconsistent with the values underlying the grant of discretion. They therefore cannot stand up to the somewhat probing examination required by the standard of reasonableness.

[146] I acknowledge that the penalty the Discipline Committee imposed was statutorily available to it at the time of its decision. However, the Discipline Committee's mandate and the stated purpose of the sexual abuse provisions restricted the range of acceptable and defensible outcomes in the circumstances. By imposing a penalty that undermines public confidence in the self-regulation of medical professionals, fails to protect the public and is inconsistent with the eradication of sexual abuse of patients by physicians, the Discipline Committee rendered an unreasonable decision.

[147] The fact that the penalty imposed was in line with past cases does not insulate the Discipline Committee's penalty decision from appellate interference. I agree with the College that a court or tribunal is entitled to look critically at the penalties imposed in prior cases and to conclude that those penalties are no longer appropriate. A deferential standard of review does not require the acceptance of an unreasonable decision in a contemporary context, much less create a static range from which no future development can be made.

[148] In the context of criminal law, courts have surpassed previous sentencing ranges where the penalty no longer reflected societal values. In R. v. D. (D.), 58 O.R. (3d) 788, this court approved a higher sentence in a case involving the long-term sexual assault of children, noting that the time had long since passed when the nature and extent of the damage caused by child sexual abuse was not known. Similarly, in R. v. Klimovich, 2013 ONSC 2888, the court declined to follow sentencing precedents which were out of step with social values regarding domestic assault.

[149] As with these examples, society has evolved in respect of the gravity of the breach of trust and damage caused by the sexual abuse of patients by their doctors. As noted by my colleague, since 1991, the College has recognized the devastating consequences of sexual abuse of patients by physicians. Over 25 years ago, The Final Report of the Task Force on Sexual Abuse of Patients reported:

The essence of the relationship between doctor and patient is trust. When this trust is abused, the results are devastating . . . For society as a whole, it is an act of trust to grant self-regulation to a profession, relying on the profession's leadership to govern itself in the public interest.

[150] More broadly, courts have recognized the pervasiveness of sexual violence against women and its fundamental incompatibility with any concept of equality for women. As expressed by L'Heureux-Dubé J. in R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 68-69:

In Canada, one-half of all women are said to have experienced at least one incident of physical or sexual violence since the age of 16 (Statistics Canada, "The Violence Against Women Survey", The Daily, November 18, 1993). The statistics demonstrate that 99 percent of the offenders in sexual assault cases are men and 90 percent of the victims are women (Gender Equality in the Canadian Justice System: Summary Document and Proposals for Action (April 1992), at p. 13, also cited in R. v. Osolin, [1993] 4 S.C.R. 595, at p. 669).

Violence against women is as much a matter of equality as it is an offence against human dignity and a violation of human rights. As Cory J. wrote in Osolin, supra, at p. 669, sexual assault "is an assault upon human dignity and constitutes a denial of any concept of equality for women".

[151] These concepts must inform the penalty here.

[152] In recent years, growing recognition and the resulting shift in societal standards have given rise to legislative change. In 2017 -- after the Discipline Committee's decision -- the legislature enacted the Protecting Patients Act, 2017, S.O. 2017, c. 11, which amended the Procedural Code to implement a zero-tolerance policy on sexual abuse of patients by any regulated health professional. Revocation of a member's certificate of registration is now mandatory in cases of sexual abuse consisting of touching of a sexual nature of the patient's genitals, anus, breasts or buttocks: s. 51(5). The amendments also introduced mandatory interim suspension orders upon findings of sexual abuse that would attract mandatory revocation: s. 51(4.2).

[153] I do not agree that the 2017 legislative amendments are irrelevant. In my opinion, they are indicative of and indeed confirm the shift that has taken place in society's understanding of the consequences of physician sexual abuse and its tolerance for such behaviour.

[154] It was incumbent on the Discipline Committee to look beyond the penalties imposed in previous decisions and craft a penalty consistent with the reality of society's values as they related to its mandate. In my view, its failure to take the relevant societal context into account was a serious error in principle and resulted in a penalty that was clearly unfit.

Conclusion

[155] For these reasons, I would dismiss the appeal.

Result

Appeal allowed.

Notes

1. In order to distinguish medical doctors from Ph.D.'s, the dissent does not use "Dr. Martin", which appears in the majority decision.

2. As noted by the majority and discussed below, the Regulated Health Professions Act was amended in 2017. Had Dr. Peirovy's conduct occurred following these amendments, it would likely be captured by the new mandatory revocation provision and a suspension would not have been available to the Discipline Committee.

End of Document