Court File and Parties
COURT FILE NO.: 271/01 DATE: 2003-01-22
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LANE, CARNWATH AND CAPUTO JJ.
B E T W E E N:
DR. DONALD JOHN MACDIARMID Applicant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
Counsel: David M. Porter, for the Applicant Donald Posluns, for the Respondent
HEARD: January 22, 2003
Oral Reasons for Judgment
CARNWATH J.: (Orally)
[1] We all agree the appeal must be dismissed. We find no merit in the submission that the College does not have jurisdiction to prohibit the appellant from submitting accounts to OHIP. We find the College has such jurisdiction which flows from s.51(2)(3) of the Health Professionals Procedural Code, being Schedule 2 to the Regulated Health Professions Act. That section provides the College may impose specified terms, conditions and limitations on the members' certificate of registration for a specified or indefinite period of time.
[2] The Alberta case relied upon by the appellant, Khosla v. College of Physicians and Surgeons, 34 A.L.R. (3d) 153, provides no assistance to the appellant. The Court in Khosla found at p. 157 that disciplinary proceedings are not the proper forum to determine and redress financial liability. We find no analogy to be drawn from the facts in Khosla to the facts before us.
[3] We find no reason to disturb the penalty imposed by the College. The Discipline Committee is entitled to a considerable measure of deference as articulated in Takahashi and College of Physicians and Surgeons of Ontario, 26 O.R. (2d) 353, at 363:
"The Discipline Committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against a member for professional misconduct as has often been said is not to be likely interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct and its consequences to the public and the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime, so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the committee."
We find the committee's decision to prohibit to the doctor for three years, the avenue by which the doctor defrauded the public in the first place, was reasonable.
[4] The appellant submits in paragraph 81 of his factum that "in practical terms the billing prohibition is equivalent to an additional three years suspension." There was no evidence before the Committee nor is there any evidence before us to support the proposition that the prohibition has the effect of preventing the appellant from earning a living. We reject the submission.
LANE J.
[5] The appeal has been endorsed: "For reasons delivered orally by Mr. Justice Carnwath, this appeal is dismissed. Costs to the respondent College fixed at $2,500."
LANE J.
CARNWATH J.
CAPUTO J.
Date of Reasons for Judgment: January 22, 2003 Date of Release: January 23, 2003
COURT FILE NO.: 271/01 DATE: 2003-01-22
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LANE, CARNWATH AND CAPUTO JJ.
B E T W E E N:
DR. DONALD JOHN MACDIARMID Applicant
- and -
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
CARNWATH J.
Date of Reasons for Judgment: January 22, 2003 Date of Release: January 23, 2003