Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041

CITATION: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041

DIVISIONAL COURT FILE NO.: 14-606,15-214, 15-519

DATE: 20160613

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

A.C.J.S.C. MARROCCO, J. WILSON, PATTILLO JJ.

BETWEEN:

DR. MICHAEL REID

Appellant

– and –

COLLEGE OF CHIROPRACTORS OF ONTARIO

Respondent

Zameer Hakamali, Douglas P. O’Toole, for the Appellant

Chris Paliare, Karen Jones, for the Respondent

HEARD at Toronto: February 11, 2016

J. WILSON J.

REASONS FOR JUDGMENT

The Appeals

[1] The Appellant, Dr. Michael Reid, is appealing all the decisions made by a panel of the Discipline Committee (the “Panel”) of the College of Chiropractors of Ontario (the “College”), including: the liability decision, dated November 18, 2014 (the “Liability Decision”), the penalty decision, dated March 18, 2015 (the “Penalty Decision”) and the costs decision, dated August 26, 2015 (the “Costs Decision”).

[2] The Appellant was found guilty of five counts of professional misconduct for inappropriate communications with a colleague, Dr. Chris Paynter (“Dr. Paynter”), and for failing to cooperate with the College’s investigation.

[3] The Penalty Decision imposed a twelve-month suspension from practice, reeducation about professional standards and a $10,000 fine.

[4] The Costs Decision required the Appellant to pay costs in the amount of $166,194.50.

The Issues Raised

[5] The Appellant raises the following issues challenging the three decisions:

1. Did the Panel err in the preliminary ruling allowing Robert MacKay (“Mr. MacKay”) to participate in the hearing as he had participated in adjudicating the 2010 Complaint (defined below)?

2. Did the Panel provide sufficient reasons in the Liability Decision?

3. Did the Panel reach reasonable conclusions regarding the Appellant’s professional misconduct as a result of his interactions with Dr. Paynter?

4. Does the College have the authority to compel members to provide submissions in response to complaints?

5. Did the Appellant fail to cooperate and communicate with the College in 2012 and 2013 before the investigator was appointed?

6. Do the facts support the finding of professional misconduct that the Appellant failed to cooperate in a timely and meaningful way once the College investigator was appointed, such that it justified a further finding of professional misconduct?

7. Was the Penalty Decision clearly unfit or was there an error in principle?

8. Was the Costs Decision plainly wrong or was there an error in principle?

Jurisdiction

[6] The Divisional Court has jurisdiction to hear this appeal pursuant to section 70 of the Health Professions Procedural Code, which is Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“Health Professions Code”). An appeal lies to this Court from decisions of the Panel on questions of law, fact or both. This Court has all the powers of the Panel that dealt with this case at first instance.

Standard of Review

[7] The appropriate standard to review for all factual and legal questions raised by the Appellant in this appeal challenging the Liability Decision, including the interpretation of the home statute, is reasonableness.

[8] I do not accept the Appellant’s argument that the interpretation by the College of its home statute engages the standard of review of correctness by applying the exception in Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 1, [2015] 1 S.C.R. 3, at para. 39. This exception does not apply in this case.

[9] Courts have clearly stated that deference is owed to an administrative board’s interpretation of its home statute: see Yar v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 1017 (Div. Ct.); Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.); Beitel v. College of Physicians and Surgeons of Ontario, 2013 ONSC 4658, [2013] O.J. No. 3281 (Div. Ct.).

[10] The question of whether a Panel member should have recused himself is a matter of bias and procedural fairness. It is generally accepted that no standard of review analysis applies to questions of procedural fairness. Rather, the Court will determine whether or not procedural fairness has been breached, and will quash the decision if it has: see, e.g., Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at paras. 74-75; London (City) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.) at para. 10.

Background

[11] These Decisions are the aftermath of a prior disciplinary proceeding involving the Appellant for impermissible advertising.

[12] Dr. Paynter (also a chiropractor in Ottawa) and his wife made complaints to the College about the Appellant’s advertising practices in 2006, 2008 and 2009. These initial complaints were dealt with informally, and the Appellant was reprimanded and given two cautions by the College.

[13] In September 2010, Dr. Paynter and his wife again complained about the Appellant’s use of impermissible advertising through a method known as “mall screenings”. They complained that a registered member of the Appellant’s clinic was not always present during these screenings, and that members of the public were given discount coupons for medical services (the “2010 Complaint”).

[14] A panel of the Discipline Committee of the College rendered a decision concerning the 2010 Complaint based upon an Agreed Statement of Facts on June 28, 2012. The Panel found the Appellant guilty of two counts of professional misconduct for improper advertising and ordered the Appellant’s license be suspended for three months and that he enter into an undertaking with the College that he will review and abide by the professional guidelines and policies of the College. (the “2010 Disciplinary Decision”).

[15] After the 2010 Complaint was initiated, but before the Decision was made, the Appellant tried to communicate with Dr. Paynter, including: three phone calls and two visits to Dr. Paynter’s clinic in 2011. The Appellant’s lawyer also sent a letter to Dr. Paynter warning of a potential civil suit.

[16] After the 2010 Disciplinary Decision, the Appellant sent two very offensive emails to Dr. Paynter, dated October 7 and 10, 2012. For instance, the Appellant used language like: “Dear Mr. Asshole Chris Paynter”; “I will do whatever it takes to stop you” (i.e., threatening civil action); “YOU HAVE GOTTEN ME PISSED BEYOND MEASURE”; and “YOU PISSED IN THE WRONG BEAR CAVE ASSHOLE, GAME ON” (capitalization in original).

[17] After receipt of the emails, Dr. Paynter filed another complaint against the Appellant, and so this present disciplinary proceeding was initiated (the “2012 Complaint”).

[18] The contacts in 2011and 2012 underpin the allegations of professional misconduct in this present proceeding for improper communication by the Appellant to Dr. Paynter.

[19] The Appellant was sent a copy of the 2012 Complaint in a letter dated November 20, 2012. This letter raised two allegations of professional misconduct, including: the failure to meet a standard of practice expected by members of the profession, and the unprofessional conduct by Dr. Reid with respect to his communications with Dr. Paynter.

[20] In October 2012, Manulife complained to the College that the Appellant was practicing as a chiropractor while under suspension following the 2010 Disciplinary Decision (the “Manulife Complaint”). This allegation was unfounded. The Appellant had sold his clinic after the 2010 Disciplinary Decision, and the purchasers of the clinic had erroneously continued to use Dr. Reid’s code for billings. The College sent the Manulife Complaint to the Appellant on October 20, 2012.

[21] The Appellant did not respond to written inquiries from the College for either complaint for five months, in spite of three written follow up requests for a response. An investigator was appointed.

[22] While the Appellant initially refused to meet with the investigator, he eventually agreed to be interviewed and met with the investigator.

[23] The initial failure to respond, and the quality of the responses after the investigator was appointed, resulted in three additional allegations of professional misconduct being initiated in October 2013 (the “2013 Complaints”).

[24] The Liability Decision confirmed all five breaches of professional misconduct:

Concerning contact with Dr. Paynter:

1. Dr. Michael Reid committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professionals Procedural Code of the Chiropractic Act, 1991, S.O. 1991, c. 21, as amended, and paragraph 1(2) of Ontario Regulation 852/93, in that during 2011 – 2012, he contravened a standard of practice of the profession and failed to maintain the standard of practice expected of members of the profession.

2. Dr. Michael Reid committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professionals Procedural Code of the Chiropractic Act, 1991, S.O. 1991, c. 21, as amended, and paragraph 1(33) of Ontario Regulation 852/93, in that he engaged in conduct or performed an act, that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, and in particular with respect to your conduct towards and communications to, Dr. Chris Paynter during 2011 and 2012.

Concerning failure to cooperate with the College

3. Dr. Michael Reid committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professionals Procedural Code of the Chiropractic Act, 1991, S.O. 1991, c. 21, as amended, and paragraph 1(2) of Ontario Regulation 852/93, in that during 2012 – 2013, he contravened a standard of practice of the profession and failed to maintain the standard of practice expected of members of the profession, including but not limited to by S-020 – Cooperation and Communication with the CCO.

4. Dr. Michael Reid committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professionals Procedural Code of the Chiropractic Act, 1991, S.O. 1991, c. 21, as amended, and paragraph 1(28) of Ontario Regulation 852/93, in that you contravened the Chiropractic Act, 1991, the Regulated Health Professions Act, 1991, or the regulations under either of those Acts, and in particular, in 2013, you failed to co-operate fully with a CCO Investigator, contrary to section 76.(3.1) of the Health Professions Procedural Code, including but not limited to failing to respond in a meaningful manner to the CCO investigator’s correspondence and to requests for an interview.

5. Dr. Michael Reid committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professionals Procedural Code of the Chiropractic Act, 1991, S.O. 1991, c. 21, as amended, and paragraph 1(33) of Ontario Regulation 852/93, in that he engaged in conduct and performed an act, that, having regard to all the circumstances, would reasonably be regarded by members as unprofessional, and in particular with respect to:

I. his failure to respond in a meaningful and timely way to the CCO’s requests in 2012 and 2013 to respond to complaint(s) made about him by Dr. Paynter; and

II. his failure to co-operate fully with the CCO investigator in 2013.

[Emphasis added]

[25] It should be noted that while the Panel refers to the “Health Professions Procedural Code” as being a part of the Chiropractic Act, as noted above, it is a Schedule to the Regulated Health Professions Act. Furthermore, “Ontario Regulation 852/93” refers to Professional Misconduct, a regulation made under the Chiropractic Act.

[26] The underlying facts confirm two problems with the Appellant’s behavior: he had improperly contacted Dr. Paynter after the 2010 Complaint (in particular, sending the two very offensive emails to the complainant in October 2012), and he had failed to cooperate with the College and its investigator in 2012 and 2013 after the 2012 Complaint was made.

[27] On the issue of penalty, the Panel held another hearing on February 2, 2015, and then released the Penalty Decision on March 18, 2015. The Panel made the following order:

• Suspension of the Appellant’s License for 12 months;

• Reprimand before the Panel;

• Terms and Conditions on the Appellant’s License; and,

• Fine of $10,000.

[28] On the issue of costs, the Panel accepted additional, written submissions and released the Costs Decision on August 26, 2015. The Panel ordered the Appellant to pay costs in the amount of $166,194.50, which represented 51% of the College’s total costs for the proceeding.

[29] I will consider the arguments raised in the challenge to the Liability Decision, followed by the challenges to the Penalty Decision and the Costs Decision.

Challenges to the Liability Decision

Issue 1: Did the Panel err in its decision to allow Mr. MacKay to participate in the hearing?

[30] The Appellant argues in his Factum that a reasonable person would conclude that Mr. MacKay’s participation as the chairperson of the Panel who rendered the 2010 Disciplinary Decision causes him to “have an interest—albeit, a non-pecuniary interest—in the outcome of the [Liability Decision] as they would, more probably than not, abhor any criticism of his decision and would want to maintain its integrity.”

[31] The College challenges this line of reasoning. The case law confirms that past participation by a Panel member in a matter does not amount to a valid concern about bias when the earlier hearing involved an Agreed Statement of Facts and no findings of credibility: see, for example, Chuang v. Royal College of Dental Surgeons of Ontario (2005), 2005 28853 (ON SCDC), 77 O.R. (3d) 280 (Div. Ct.).

[32] I conclude that there is no valid issue of bias in this case as the 2010 Disciplinary Decision was based upon an Agreed Statement of Facts and no evidence was called. Credibility of the Appellant was not in issue. There is no breach of natural justice based on potential bias.

Issue 2: Did the Panel provide sufficient reasons in the Liability Decision?

[33] The Appellant argued that the Panel breached its duty of procedural fairness by providing insufficient reasons for its finding that the Appellant failed to adequately participate in the College’s investigation. Specifically, while the Panel found that the Appellant’s response was not “meaningful”, there is no analysis of why the Appellant’s response was deficient.

[34] Even if there are insufficiencies, applying the decision and method mandated in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the adequacy of reasons is not a stand-alone ground for overturning a decision. As recently noted by this Court in Byrnes v. Law Society of Upper Canada, [2015] O.J. No. 4332 (Div. Ct.), at para. 60:

The question that must be determined with respect to the sufficiency of the reasons is whether the reasons in the Hearing Panel Decision fall within the broad ambit of the test outlined in Newfoundland Nurses. In other words, do the reasons allow a reviewing court "to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes"?

[35] I find that the reasons are sufficient and they allow for appellate review. The issue of what is a meaningful response to the investigator’s request for information is part of the Appellant’s challenge on the merits of the Liability Decision, and will be considered later in these reasons.

Issue 3: Did the Panel reach reasonable conclusions regarding the Appellant’s professional misconduct as a result of interactions with Dr. Paynter in the Liability Decision?

[36] The hearing spanned a period of five days, with an additional half day for argument. The Panel reviewed the evidence and its factual findings and concluded that “we found on the evidence presented and discussed above that Dr. Reid has a serious and persistent disregard for his professional obligations.”

[37] The Panel stated at page 5 of the Liability Decision that “most of the facts in this case were not in dispute. What was in dispute was the significance of certain facts and Dr. Reid’s motivation for attempting to communicate with Dr. Paynter”.

[38] The Panel defined the issues for determination as:

1. Whether Dr. Reid’s communications with Dr. Paynter and his staff were inappropriate;

2. Whether Dr. Reid’s response to the College and the College investigator was timely and/or reasonable; and,

3. Whether, in the circumstances, Dr. Reid’s actions and or omissions in relation to issues 1 and 2 constitute professional misconduct.

[39] The Appellant challenges the adequacy of the facts underpinning the findings of professional misconduct. The particulars of these challenges include:

• There was no evidence to substantiate the finding by the Panel that the three telephone calls and two clinic visits by the Appellant in 2011 constituted harassment by the Appellant of Dr. Paynter;

• The conclusion that the Appellant would know that the email address of “ clinic@ …” was not a personal address of Dr. Paynter was not a reasonable inference; and,

• The emails were inappropriate and offensive but are not evidence of harassment to a member of the public.

[40] The Panel heard evidence from the complainant, his staff and the Appellant. The Panel concluded after hearing the evidence that the Appellant’s communications with Dr. Paynter amounted to harassment arising from the 2010 Complaint.

[41] I find that the Panel properly framed the issues, and they drew reasonable factual inferences from the evidence they heard.

[42] The Appellant is inviting this Court to dissect the reasons of the Panel and to consider specific facts divorced of their context. The findings of fact of the Panel must be considered as a whole and in accordance with the guidelines from Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Newfoundland Nurses.

[43] There was evidence that supported the inference that the Appellant was harassing the complainant and his staff. The evidence of Dr. Paynter’s staff confirms that the contact with the Appellant was disturbing. The Panel found that the emails contained “insulting, threatening and disrespectful language.” It was a reasonable inference that the emails directed to the complainant’s clinic were not going to a personal email address.

[44] I do not accept the argument that the emails were not threatening, and were rather a simple, though serious, lapse in judgment. In both their tone and their specific content, the emails were angry and threatening.

[45] Taken together, the emails contain a tone that goes beyond rudeness to language that is more akin to a threat. That the threat was for civil litigation does not diminish the threatening nature of these emails.

[46] The Appellant’s expert testified that the emails were evidence of a personal conflict, rather than communication affecting the public. Although a member of the public was not directly affected, and notwithstanding evidence of a personal conflict between the Appellant and Dr. Paynter, I conclude that interference and harassment of a complainant – whether a member of the public or another professional – undermines the integrity of the professional disciplinary process. It is therefore an issue of public interest capable of sustaining a finding of professional misconduct.

[47] The context and personal animosity between these two practitioners is a relevant consideration in assessing the gravity of the conduct relevant to the appropriate penalty.

[48] The findings by the Panel that, during 2011 and 2012, the Appellant contravened a standard of practice of the profession and failed to maintain the standard of practice expected of members of the profession pursuant to section 51(1)(c) of the Health Professions Code and para 1(2) of O. Reg. 852/93, and that the Appellant performed an act, that having regard to all the circumstances would be reasonably be regarded by members as unprofessional – in particular with respect to his conduct towards and communications with Dr. Paynter during 2011 and 2012 – pursuant to section 51(1)(c) of the Health Professions Code and 1(33) of O. Reg. 852/93 are reasonable.

[49] Although there are two discrete findings of professional misconduct in this aspect of the Liability Decision, the findings may be distilled to one essential conclusion: the communications between the Appellant and the complainant amounted to inappropriate and unprofessional harassment, and therefore the Appellant was in breach of professional standards of behavior.

[50] For these reasons, I find that there is no merit to this ground of appeal.

Issue 4: Did the Panel err in its conclusion that the College has the authority to compel members to provide submissions in response to complaints?

[51] The Appellant was found to have committed two counts of professional misconduct for failure to respond and cooperate with the College and its investigator.

[52] Before challenging the finding on the merits, the Appellant challenges the authority of the College to mandate such a response.

[53] When the College provided copies of the complaints to the Appellant in the letters dated October 30 (the Manulife Complaint) and November 20, 2012 (the 2012 Complaint), the College cited section 25.2 of the Health Professions Code in support of the obligation to respond.

[54] That section provides [emphasis added]:

25.2 (1) A member who is the subject of a complaint or a report may make written submissions to the Inquiries, Complaints and Reports Committee within 30 days of receiving notice under subsection 25 (6).

[55] The letter from the College dated November 20, 2012 stated [emphasis added]:

The role of the ICRC [Inquiries Complaint and Reports Committee] is to investigate complaints and render a decision. As part of its investigation, the ICRC requests your written response to the complaint within 30 days of receiving this notice. A response by December 21, 2012 is therefore requested. A copy of section 25.2 of the Health Professions Procedural Code describing your right to make written submissions is enclosed. A copy of your response will be sent to Dr. Paynter for comment. The ICRC will then consider whether further investigation is required.

[56] The Appellant did not respond to the Manulife Complaint dated October 20, 2012, nor did he respond to 2012 Complaint letter dated November 20, 2012.

[57] The Appellant argued before the Panel and before this Court that section 25.2 of the Health Professions Code is meant to allow a member to respond complaints. It does not compel a member to respond.

[58] The College argues that section 25.2 must be read in conjunction with other sections of the Health Professions Code, notably section 26. This section empowers the College to make reasonable inquiries into complaints based on “all records and documents it considers relevant to the complaint”. The College further argues that section 25.2 must be read in light of the mandatory requirements stipulated in the College’s policy on member/College communication, i.e., “Standard of Practice S-020, Cooperation and Communication with CCO”. The Standard of Practice Cooperation and Communication with CCO “mandates cooperation with the College and its committees when reasonable requests are made for information.”

[59] The Panel adopted the conclusion of the Divisional Court in Artinian v. College of Physicians and Surgeons of Ontario, 1990 6860 (ON SC), [1990] O.J. No 1116, at para. 9, which confirms: “Fundamentally every professional has an obligation to co-operate with his self-governing body.”

[60] I find that the provisions of section 25.2 of the Health Professions Code must be read in conjunction with the governing policy communicated to chiropractors as to their obligations to cooperate and communicate. Although section 25.2 is permissive, the Standard of Practice is mandatory in requiring cooperation and communication in response to reasonable requests.

[61] Therefore I conclude that the College has the authority to mandate cooperation from a member in response to a complaint when reasonable requests for information are made.

Issue 5: Did the Appellant fail to cooperate with the College in 2012 and 2013 in response to the 2012 Complaint prior to the investigator being appointed?

[62] Allegations of professional misconduct must be proven on the basis of evidence that is clear, convincing and cogent and that supports a finding that there has been a significant departure from acceptable professional standards: see Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON SC), 15 O.R. (2d) 447 (Div. Ct.); Barrington v. The Institute of Chartered Accountants of Ontario, 2011 ONCA 409, 333 D.L.R. (4th) 401.

[63] The Panel found that the Appellant had committed an act of professional misconduct by failing to respond to the 2012 Complaint of Dr. Paynter:

… in that he engaged in conduct and performed an act, that, having regard to all circumstances, would reasonably be regarded by members as unprofessional, and in particular with respect to… his failure to respond in a meaningful and timely way to the [College’s] requests in 2012 and 2013 to respond to complaint(s) made about him by Dr. Paynter…

[64] The telephone calls and the visits by the Appellant to Dr. Paynter’s clinic took place in October 2011, and the offensive emails were dated October 7 and 10, 2012. It was after the offensive emails that the 2012 Complaint was made by Dr. Paynter.

[65] The College sent a letter to the Appellant dated November 20, 2012 regarding the 2012 Complaint. It then sent three follow up letters.

[66] The first was dated December 12, 2012, and it enclosed another copy of the Manulife Complaint. That letter stated [emphasis added]:

Please note that it is your professional obligation to respond to a notice of complaint and failing to do so could constitute professional misconduct. A reply by December 28, 2012 is required. If no response is received the Inquiries, Complaints and Reports Committee will review this complaint without the benefit of information from you.

[67] A further follow up letter was sent January 11, 2013 again referring to the Manulife Complaint and the Appellant’s failure to respond. This letter states: “Please note that it is your professional obligation to respond to a notice of complaint and failing to do so could constitute professional misconduct.”

[68] The third letter containing the 2012 Complaint was sent to the Appellant on January 23, 2013. The Appellant was again informed that failing to respond to the College could constitute professional misconduct.

[69] The Appellant contends that even if there were delays in his participation with these initial requests by the College, none of these delays rise to the level of professional misconduct sufficient to constitute obstruction of the College’s investigation. Furthermore, the College never made any specific requests for information or documents that were denied by the Appellant.

[70] Although the initial letter to the Appellant dated November 20, 2012 cited the permissive section 25.2 of the Health Professions Code as justification for the request to respond, and was generic in its request for cooperation, the later correspondence on December 28, 2012, January 12 and 23, 2013 confirmed that the Appellant was required to respond. Further, these letters confirmed that a failure to respond could result in a finding of professional misconduct.

[71] The College relies on the expert evidence of both parties to confirm that a chiropractor is obligated to respond to an inquiry of professional misconduct. Initially the Appellant’s expert opined there was no obligation to respond, but altered his opinion during cross-examination when confronted with an article he had written when he was the president of the Chiropractic Association. The article confirmed the obligation to respond to a complaint. Finally, during cross-examination, the Appellant confirmed that he was obligated to respond to the letters of the College.

[72] The Panel considered the wording of the Health Professions Code, the wording of the Standard of Practice, the correspondence and the viva voce evidence.

[73] I find that the Panel’s conclusion that the Appellant failed to cooperate with inquiries by the College is confirmed by the expert evidence and the Appellant’s own testimony.

[74] Therefore, the findings by the Panel that, during the 2012-2013 investigations of the 2012 Complaint and the Manulife Complaint, the Appellant committed an act of professional misconduct as provided by section 51(1)(c) of the Health Professions Code and section 1(2) of O. Reg. 852/93 are reasonable. Specifically, the Appellant contravened the standard of practice established by S-020 – Cooperation and Communication with the CCO. This same conduct contravenes section 1(33) of O. Reg. 852/93, as the Appellant engaged in conduct that could be reasonably seen by members of the College to be unprofessional.

[75] The expert evidence called at the hearing supports the obligation to respond to the College, and that to fail to do so is professional misconduct.

[76] I conclude that the issues raised by the Appellant are relevant to the issue of the seriousness of the breach and penalty, not whether the failure to respond constituted professional misconduct.

Issue 6: Do the undisputed facts support the finding that the Appellant failed to cooperate once the College investigator was appointed, such that it justified a further and separate finding of professional misconduct?

[77] There has not been a specific case addressing the standard of review for interpreting section 76(3.1) of the Health Professions Code, but the use of the closely related investigator appointment powers (i.e., section 75 of the Health Professions Code) has been reviewed on the standard of reasonableness: see Beitel, at para. 17.

[78] The Court of Appeal confirms in Barrington that, in the post-Dunsmuir era, significant deference is owed to a specialized tribunal determining when a standard has been breached: see Barrington, at paras. 117-118. This post-Dunsmuir decision references the difference between an error of judgment and an actual breach of a professional standard. In deciding to reinstate the findings of professional misconduct that the Divisional Court had quashed, Karakatsanis J.A. (as she then was) noted that the wrong-doing in this case reached the level of professional misconduct, because the actions in question were “so significant”.

[79] Justice Karakatsanis confirmed that the Tribunal must articulate the proper test and determine whether the departure by a professional was significant enough to bring an error of judgment to the threshold of professional misconduct:

[122] The DC articulated the proper test and the requirement that any departure from the standards of the profession must be so significant that it constitutes professional misconduct: para. 54. Similarly, after making the findings that the particulars were proven, the DC specifically addressed the issue of whether the departures from the required standards and the failure to comply with GAAP constituted professional misconduct. It found that the breaches by the members were “significant enough, in and of themselves, to constitute professional misconduct”: paras. 327-29.

[80] When considering the allegation in this case, I reiterate the applicable legal test that must be applied: allegations of professional misconduct must be proven on the basis of evidence that is clear, convincing and cogent and that supports a finding that there has been a significant departure from acceptable professional standards: see Re Bernstein; Barrington.

Case Law on Failure to Cooperate

[81] The few cases on professionals not cooperating with disciplinary investigations suggest that it is not enough for there to be delayed or sparse responses, but rather there must be a clear refusal to cooperate with the investigation.

[82] In Wise v. LSUC, 2010 ONSC 1937, the Divisional Court upheld a finding of professional misconduct, as the lawyer categorically refused to be interviewed by the Law Society. He was given a deadline of six months to submit to the interview, and yet, even after six months had passed, he refused to submit to the mandatory interview.

[83] Justice Ferrier upheld the finding of professional misconduct. He confirmed that, to find professional misconduct for failure to cooperate, the College must act fairly, giving the licensee a chance to comply with the request. Further, the reasons must specify the basis of the finding of the misconduct:

[26] There is unquestionably an obligation on a licensee to provide information in an interview. The Panel correctly noted, however, that in requiring the licensee to attend for an interview, the Society must not act in an arbitrary or fundamentally unfair way

[27] In this case the Society gave the appellant ample opportunity to co-operate and clearly did not act arbitrarily or in an unfair manner.

[28] The reasons for decision of the Panel are lengthy, detailed, thorough and well reasoned. The decision of the Panel is reasonable within the parameters of Dunsmuir, supra.

Decision of the Panel on Failure to Cooperate with the College Investigator

[84] The decision of the Panel that the facts supported a separate finding of professional misconduct for failure to cooperate with the College investigator must be reviewed on the standard of reasonableness.

[85] At page 25 of the Liability Decision, the Panel found: “…in view of the overall failure to respond in a timely manner and the failure to respond in a meaningful way, the Panel concluded that the Member failed to cooperate with the CCO’s investigator in 2013” [Emphasis added].

[86] This sparse statement is the extent of the analysis by the Panel on this issue to underpin a further finding of professional misconduct, pursuant to section 76(3.1) of the Health Professions Code.

Facts Relevant to this Allegation

[87] The College appointed the Investigator in three separate documents on March 5, 2013: first, with respect to failure to cooperate with the investigation of the Manulife Complaint (which was resolved in the Appellant’s favour); second, with respect to the failure to cooperate with the College for the 2012 Complaint by Dr. Paynter, dated October 30, 2012; and third, for an investigation into professional misconduct pursuant to section 51(1)(c) of the Health Professions Code.

[88] The College alleged that the Appellant failed to cooperate with the College investigator once appointed.

[89] The Appellant challenges the reasonableness of the Panel’s conclusion that the Appellant failed to cooperate with the investigator in a timely or meaningful way once the investigator was appointed, based upon the undisputed facts and communication that took place in the chronology.

[90] After the initial email sent by the investigator on April 17, 2013, there were over 15 emails exchanged over a one-month period. The messages between the parties were cordial, though curt. The responses were timely. Initially, the Appellant politely declined to communicate with or to meet with the investigator, based upon advice he received from his “counsel”, who was in fact a paralegal. This advice was wrong.

[91] In response to these emails, the College’s investigator sent a letter dated May 14, 2013, informing the Appellant that “section 76 of the Health Professions Code required him to meet with her”.

[92] Once sent a copy of the governing legislation confirming the mandatory obligation to meet, the Appellant was cooperative and the meeting took place within a reasonable time period.

Conclusion on this Allegation

[93] I conclude that the Appellant’s responses to the investigator do not support a clear finding of professional misconduct after the College investigator was appointed.

[94] While there was some initial resistance by the Appellant to meeting with the investigator, a meeting took place between them within six to seven weeks after the initial contact. There is no allegation that the Appellant was not cooperative at that meeting.

[95] A finding of professional misconduct carries significant consequences. It must be based upon evidence that is clear, cogent and convincing. In my view, the evidence in respect of the allegation that the Appellant failed to cooperate with the investigator was not sufficient to ground a finding of professional misconduct.

[96] In Barrington, Karakatsanis, J.A. confirmed that a tribunal or panel must articulate the proper test and determine whether the departure was significant enough to bring an error of judgment to the level of professional misconduct. I conclude that the Appellant’s initial refusal to meet with the investigator could, at best, be characterized as an error of judgment, especially considering the erroneous advice he received. Once informed of his obligation to meet with the investigator, he complied.

[97] For these reasons, I conclude that the finding of professional misconduct that during the 2013 investigation of the 2012 Complaint, the Appellant failed to cooperate with the College’s investigator, in contravention of section 76(3.1) of the Health Professions Code, is not supported by the evidence. It is unreasonable and must be set aside.

Issue 7: Appeal from the Penalty Decision

[98] Determining a penalty is at the heart of the discretion of an administrative tribunal and a penalty decision is owed great deference. As noted by the Court of Appeal in Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1, at para. 113: “It is well settled that the disposition of a professional disciplinary committee respecting the appropriate sanction to be imposed in a particular case is entitled to great deference from the courts…”

[99] To overturn a penalty order, the decision-maker must have either made an “error of principle”, or the penalty must be “clearly unfit”: see, for example, Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1 (C.A.); Chuang v. Royal College of Dental Surgeons of Ontario (2006), 2006 19433 (ON SCDC), 211 O.A.C. 281 (Div. Ct.); and Tomaszewska v. College of Nurses of Ontario (2007), 2007 14931 (ON SCDC), 226 O.A.C. 177 (Div. Ct.).

[100] Although the imposition of a penalty is inherently discretionary, crafting the appropriate penalty must be guided by proportionality and an assessment of the range of appropriate penalties dependent upon the facts of each case, guided by penalties imposed in other cases.

[101] The penalty imposed was a twelve-month suspension (or until such later date as the Appellant agrees to abide by the College’s standards, regulations, guidelines and policies); to attend before the Panel to be reprimanded; restrictions on his certificate of registration; a $10,000 fine and publication of his misconduct.

[102] Counsel for the College acknowledged in argument that the penalty was on the “high side”, but, as it was in the range, it was reasonable and ought not be disturbed as principles of significant deference apply.

[103] The Appellant argues that the Penalty is grossly excessive, outside the range of penalty imposed in comparable cases and is therefore clearly unfit. Counsel for the Appellant argues that several factors were inappropriately considered by the Panel that constitute errors in principle.

[104] The Appellant sought a penalty of a fine and a reprimand, and argued that a suspension was not appropriate given the facts of the case.

[105] I will consider the arguments raised by the Appellant.

The Penalty Imposed was Outside the Range of Appropriate Sentences:

[106] The Appellant submits that there are cases where similar acts of professional misconduct not related to the quality of practice have resulted in significantly lower penalties. Counsel argues that this punishment is outside any comparable range of penalties for inappropriate conduct, is grossly excessive and hence is unfit.

[107] The Panel in its reasons did not refer to any of the case law provided by the Appellant.

[108] Looking at other cases for penalties ordered against chiropractors in this country provides context in assessing the Penalty Decision: see, for example, Pankiw v. Chiropractors’ Assn. (Saskatchewan), 2009 SKQB 268, 336 Sask. R. 43 ($1,200 fine, apology letters and psychological assessment for publically insulting members of the Association); Kai v. College of Chiropractors (Ontario) (2010), 2010 ONSC 2792, 263 O.A.C. 229 (Div. Ct.) (40-60 day suspension for failing to attend a mandatory class after 11 warnings from the College); Ressel v. College of Chiropractors of Ontario, [2003] O.J. No. 3032 (Div. Ct.) (nine month suspension for verbally abusing a patient, keeping improper records and recommending unnecessary treatments).

[109] I note that these cases did not involve individuals with a history of prior disciplinary complaints. This is an important distinction.

Personal Circumstances:

[110] The Appellant argues that the Panel failed to take into account that the admittedly offensive emails were sent the day of, and soon after the Appellant’s wife announced that she was separating from him. The Appellant was in a state of extreme personal crisis. The Appellant argues that it was unreasonable to ignore his personal circumstances as a mitigating factor. Furthermore, it was unreasonable to require corroboration about the separation from his former wife, especially since she was living in the Caribbean.

[111] It is appropriate for the Panel to consider the personal circumstances of the Appellant as a relevant factor in assessing penalty. However the content of the offensive emails cannot be excused by any personal circumstance. I note that the inappropriate conduct of contacting the complainant after the 2010 Complaint including trying to telephone the complainant as well as visits to his office occurred in 2011 and is not related to any matrimonial difficulties of the Appellant. There is no merit to this argument.

The Behavior Did Not Affect the Public:

[112] Apart from the unsubstantiated Manulife Complaint, all of the other complaints originate from Dr. Paynter and his wife concerning the Appellant’s advertising practices and his inappropriate behavior towards Dr. Paynter and his staff.

[113] The Panel did not accept the submission of the Appellant that the dispute between the two chiropractors was personal. The Panel was rightly concerned about the Appellants actions in contacting a complainant and harassing Dr. Paynters staff and appropriately considered penalty through the lens of the public to maintain and protect the professional disciplinary process.

Lack of Responsibility for Wrong-Doing:

[114] The Panel noted in the Penalty Decision that: “There were no submissions from Dr. Reid that he accepts responsibility for his actions that resulted in findings of professional misconduct”. It also noted that there were no submissions from the Appellant that he now agrees with and will comply with the College`s standards of practice, policies, guidelines and regulations.

[115] The Appellant submits that treating a failure to acknowledge one’s professional misconduct as an aggravating factor is an error in principle. In support of this proposition, the Appellant cites case law from the Court of Appeal and this Court: see Watt v. Law Society of Upper Canada, [2005] O.J. No. 2431; College of Physicians and Surgeons (Ontario) v. Gillen (1993), 1993 8641 (ON CA), 13 O.R. (3d) 385 (Div. Ct.).

[116] The Appellant felt strongly that what he had done, although clearly a lapse of judgment, was not such a marked departure from professional standards as to constitute professional misconduct. The Appellant argued that the conflict with the complainant was personal, and not in the public domain.

[117] It is not appropriate to consider a member’s lack of remorse as an aggravating factor in establishing a penalty, though certainly had remorse been present, it would have been a mitigating factor as confirmed in the recent decision of D’Mello v. The Law Society of Upper Canada, 2015 ONSC 5841 (Div. Ct.), at para. 89:

Remorse may be a mitigating factor, and the lack of remorse may mean that there are no mitigating factors, but lack of remorse is not an aggravating factor. Mr. D’Mello sincerely believed that he had no obligation to comply without disclosure of the information to which he believed he was entitled. Although the Hearing Panel found that belief to be misguided, Mr. D’Mello still had a right of appeal, which he intended to exercise. He cannot be penalized in that situation for failing to express remorse, which would be a confession of wrongdoing.

[118] However the penalty imposed is reasonable which suggests that the Panel’s observation was an appropriate reference to the absence of a mitigating factor not the presence of an aggravating one.

Breached the Undertaking:

[119] The 2010 Disciplinary Decision required the Appellant to undertake to the College to review and abide by the professional guidelines and policies of the College.

[120] The Panel noted that the Appellant’s breach of his undertaking was a consideration relevant to the appropriate penalty. The Appellant argued that there was no evidence before the Panel that he breached the undertaking, nor was there any indication of how he breached it.

[121] There is no merit to this argument. The fact that the Appellant was found guilty of further counts of professional misconduct involving contravention of the College’s guidelines and policies, after the undertaking was entered into, supports the finding that he breached his undertaking to comply with the College’s rules and procedures.

Earlier Reminders and Progressive Discipline:

[122] The Panel found that the Appellant’s response to the First Decision was to lash out against the complainant, and to fail to abide by the undertaking. The Panel concluded that “progressive discipline with a serious penalty is appropriate in these circumstances”. The Panel declined to order an undertaking, as the earlier undertaking did not modify the Appellant’s behaviour after the 2010 Complaint.

[123] The Appellant challenges the finding that progressive discipline is appropriate. I disagree with the Appellant’s arguments that the character of the prior conduct is different and hence not relevant.

[124] The penalty in this case was progressive, beginning with a reprimand about advertising practices on one prior occasion, followed by two cautions and increasing in the 2010 Disciplinary Decision to a three-month suspension.

[125] It was reasonable for the Panel to apply the principle of progressive discipline given the Appellant’s history.

Conclusions on Penalty

[126] Although I have concluded the finding of professional misconduct for failure to cooperate with the investigator should be set aside, in my view that determination has no impact on the essential finding that the Appellant failed to cooperate when the investigation was initiated by the College. Therefore I do not consider that there should be any impact upon the penalty assessed by the Panel.

[127] Counsel for the College acknowledges that the penalty imposed was on the high side of the scale of an appropriate penalty, but was in the range. We agree with this submission. Assessing penalty is at the heart of the discretion of a professional panel and should be interfered with only if the Panel commits an error of principle, or the penalty is clearly unfit. The fact that one of the findings of professional misconduct was set aside by this Court, does not undermine the essential finding that the Appellant failed to cooperate.

[128] The appeal of the Penalty Decision is dismissed.

Appeal from the Cost Decision

Dissenting Decision on Costs

J. Wilson, J.

[129] I respectfully disagree with my colleagues with respect to the appeal from the award of costs.

[130] The Panel awarded the College costs in the amount of $166,194.50, representing 51% of the total costs to conduct the investigation and to hold a straight forward, five and a half day hearing. There was an agreed statement of facts and the Appellant called two witnesses.

[131] The Appellant points out that this hearing resulted in the highest award of costs ever rendered by the College, and one of the highest cost awards ever rendered before by any of the 26 regulated health Colleges in Ontario. This assertion is not disputed.

[132] I find the cost award in this case to be excessive, a barrier to access to justice and that the award of this magnitude for a relatively straight forward case crosses the line from imposing reasonable costs to the unsuccessful party, to being punishment. The cost award, in the context of this case is in my view, unfair and abusive.

[133] The Appellant acknowledges this was an appropriate case for the Panel to make a reasonable award of costs, however he makes several arguments for why the quantum of costs cannot stand as the Panel:

• failed to consider the complexity and seriousness of the case in rendering the Costs Decision;

• failed to consider the principles of proportionality and expectations of the unsuccessful party;

• erred in concluding that the Appellant’s actions prolonged the hearing;

• erred in placing the onus on the Appellant to provide evidence of impecuniosity resulting from the costs award;

• inappropriately considered the Appellant’s failure to accept an offer to settle; and,

• failed to take into account access to justice in awarding costs of this magnitude.

[134] For reasons that I will outline, I accept the arguments advanced by the Appellant. I find that the Panel erred in the principles it applied to determine costs, and that the Costs Decision is plainly wrong. I would set aside the cost award made, and impose costs payable by the Appellant in the amount of $60,000.00 inclusive.

The Legal Test

[135] The power to award costs has been recognized by the courts as being a very discretionary one with a standard of review of reasonableness, as the Panel is interpreting its own statute and exercising discretion: see Freedman v. College of Dental Surgeons, [2001] O.J. No 1726 (Div. Ct.), at para. 3; and Venneri v. College of Chiropractors of Ontario, 2010 ONSC 473, at para. 6.

[2] In interpreting the reasonableness of an award, as noted by the Court of Appeal in McNaughton Automotive Ltd. v. Co-Operators General Insurance Co., 2008 ONCA 597, 95 O.R. (3d) 365, at para. 26, a costs award will be overturned when there is an error in principle or if the award is “plainly wrong”.

Components of the cost award

[136] The total Bill of Costs submitted on behalf of the College was $325,871.57. The Bill of Costs is comprised of three categories:

• Legal Costs: $261,715.83 – including the cost of hiring three counsel to prosecute or assist in the hearing:

o Counsel for the College: Mr. Chris Paliare, (with 43 years of experience charging between $525 and $600 per hour) and Ms. Karen Jones (with 16 years of experience charging $525.00 per hour), together charging fees and disbursements totaling $213,528.05;

o Independent Counsel: Mr. Brian Grover, counsel retained to attend the hearing and provide advice to the Panel charging fees and disbursements of $47,370.42;

• Initial Investigation Costs: $1,784.36; and,

• Hearing Costs: $62,371.38 – this figure includes the cost of: Panel members’ varying per diem compensation and out-of-pocket expenses to attend, including expenses for the 3 professional members on the Panel totaling $21,816.17; expenses for non-council member expenses of $8,027.48; meeting expenses of $9,827.12; general expenses of $4,240.99; expert fees of $5,077.30 and court reporter fees of $13,382.32.

[137] The cost of the initial investigation was modest ($1,784.36). The major cost items for this hearing are the legal fees and the hearing costs. It is the quantum of contribution to these latter two amounts that is challenged.

[138] The lion’s share of the cost award was for legal fees. The Panel found that this was an appropriate case for two counsel, but did not consider the level of experience and hourly rate of counsel in assessing what was reasonable. Ms. Jones, a senior counsel in her own right, had 16 years of experience and Mr. Paliare was a 43-year veteran.

[139] The combined hourly rate for counsel for the College for the entire hearing was between $1050 and $1125 per hour for a total of $213,528.05. This is not the case of a senior lawyer, working with a junior lawyer to reduce the costs, but rather a situation of two senior lawyers engaged in a relatively straight forward file. It is not reasonable to simply pass on to the Appellant 51% of this magnitude of legal fees.

[140] The Bill of Costs also includes a claim for Hearing Costs in the amount of $62,371.38. This figure includes the cost of the professional Panel members’ expenses and per diems totaling $21,816.17; expenses for non-council member expenses of $8,027.48; meeting expenses of $9,827.12; general expenses of $4,240.99; expert fees of $5,077.30 and court reporter fees of $13,382.32.

[141] I note that in civil cases there is no requirement for litigants to contribute to the infrastructure of providing a forum to adjudicate disputes. Section 53.1 of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, S.O. 1991, c. 18 (the Code) includes an ability to claim for “[t]he College’s costs and expenses incurred in conducting the hearing.”

[142] I would also observe that, while a reasonable contribution to expert fees, room rental and court reporter fees may be appropriate under this provision, allowing panel members to order the payment of their own per diems and expenses puts them in a difficult position that may raise questions of transparency and impartiality.

The Legislation

[143] In 1991, the Supreme Court of Canada in Pearlman v. Manitoba Law Society Judicial Committee, 1991 26 (SCC), [1991] 2 S.C.R. 869, at p. 893, confirmed that the legislative provisions allowing the province’s law society to make cost awards did not violate section 7 of the Charter of Rights and Freedoms. The lawyer member was not challenging the quantum of a cost award made under these provisions, but rather he challenged the constitutionality of the provisions.

[144] In the words of the Court, the legislative provision allowing costs to be recovered, in section 52(4) of the Law Society Act, R.S.M. 1987, c. L100, “does not in and of itself, put into doubt the impartiality of those proceedings”. This provision is very similar to section 53.1 of the Health Professions Code.

[145] Justice Iacobucci confirmed, however, that “if there were to be an unfair or otherwise abusive order as to costs pursuant to section 52(4), Pearlman would have the full panoply of administrative remedies open to him”. [Emphasis added]

[146] Section 53.1 the Code was brought into effect on December 31, 1993, permits Colleges to recover costs in an appropriate case for all aspects of the proceedings for professional misconduct brought against their members, including:

53.1 In an appropriate case, a panel may make an order requiring a member who the panel finds has committed an act of professional misconduct or finds to be incompetent to pay all or part of the following costs and expenses:

1. The College’s legal costs and expenses.

2. The College’s costs and expenses incurred in investigating the matter.

3. The College’s costs and expenses incurred in conducting the hearing.

[147] The College argues that, by enacting section 53.1 of the Code, the legislature has granted the College broad powers to seek indemnification for its costs and expenses. Counsel for the College argues that those who breach the rules of conduct should be required to pay the costs of the disciplinary proceeding, as these costs should not be borne by chiropractors who conform to the College’s rules.

[148] It appears that there is no decision that specifically considers what are reasonable costs in light of section 53.1 of the Code, which is the governing provision permitting cost awards to be granted in an appropriate case for the 26 health professions governed by the legislation.

[149] Professional Colleges established by the legislature are charged with the obligation to protect the public interest. Disciplinary proceedings brought by a College are quasi-criminal in nature, and they are brought against a member in furtherance of every College’s obligation to protect the public.

[150] Prior to 1993, Colleges governed by the Regulated Health Professions Act had no authority to seek costs against a person found guilty of professional misconduct following the criminal model. After the changes in 1993, costs may now be claimed “in an appropriate case”.

Context: This Cost Award Compared to Others

[151] Although section 53.1 of the Code was passed in 1993, it is only recently that the cost awards in professional misconduct cases, particularly in the Chiropractic College, have been escalating.

[152] For example, in 2010, this Court heard another costs appeal from a member of the College in Venneri. After a 12 day hearing, the Panel found the member guilty of a number of serious offences, including: performing an unnecessary form of treatment outside of the member’s expertise as a chiropractor; failing to obtain the patient’s consent for this treatment and failure to properly assess the patient. The Panel then ordered the member to pay $128,000 in costs.

[153] This Court ultimately upheld the costs award by citing factors like “the serious nature of the professional misconduct” and “the length and complexity of the hearing”, even though the member argued that it was the highest in the College’s history.

[154] The member in Venneri also argued that, before his case, the highest costs award handed down by the College had been $87,948.58. This cost award came after a 13 day hearing in 2003 that heard from 12 witnesses and included 100 exhibits: see Ressel.

[155] To provide further context, I review two of the only reported healthcare professional misconduct cases in Ontario where costs were awarded that are in excess of what was awarded in this case. In these two other cases the circumstances were extreme.

[156] In Chuang (2006), the Discipline Committee for the Royal College of Dental Surgeons of Ontario ordered the member to pay $250,000 in costs. However, this award was imposed after a 31 day hearing with findings of 18 different charges of professional misconduct. Even still, this Court found the costs award to be unreasonable, and reduced it to $200,000 (at para. 19):

We assume the additional legal costs and investigative legal costs would bring the Committee's costs to over $400,000. The members of the Royal College of Dental Surgeons should not be liable for the costs of guilty members. However, members should not be liable for the whole costs of defending themselves, particularly when their right to practice is at stake. Costs of $400,000 were not in the contemplation of Dr. Chuang at the time. The fixing of costs is an inherently arbitrary process but they must be fair and reasonable. In the circumstances, we find the costs of $250,000 unduly high. We fix the costs at $200,000.

[Emphasis added]

[157] Recently, the Discipline Committee for the Ontario College of Pharmacists imposed a costs award of $180,000 for an eight day hearing, an amount that the committee hoped would be a “deterrent”: see Ontario (College of Pharmacists) v. Kothari, 2015 ONCPDC 17. The circumstances are distinguishable from the facts here. In Kothari, the member was found guilty of serious, fraudulent misconduct over an extended period of time: “The Discipline Committee Panel… concluded that Bhavesh Kothari… engaged in professional misconduct, as alleged in the Notice of Hearing, by making approximately $190,000 in unsubstantiated claims to the Ontario Drug Benefit Plan… for eleven drugs and products over a two-year period” (at para. 1).

[158] As compared to the present matter, it appears clear that these other cases involved much more serious breaches of professional misconduct, and lengthier, more complex hearings.

[159] It appears that the cost award in the present appeal is out of proportion to the awards made in these cases.

[160] The Appellant raised various challenges to the reasons of the Panel in the Costs Decision which I find have merit.

Complexity of Case and Seriousness of Conduct

[161] The independent counsel advised the Panel that the complexity and the seriousness of the case were not relevant factors in assessing appropriate costs. They were advised that only the success factor was relevant.

[162] The Panel concluded: “Notwithstanding the Member’s submission that ‘the conduct in this matter was not of the greatest severity or importance’ and that it ‘was of moderate importance’, the Panel accepts Mr. Grover’s advice that when considering costs ‘the Panel should be governed by the findings that it made, and the parties’ relative success at the hearing…”

[163] In assessing costs, the result in terms of numbers of allegations proved is only part of the equation, particularly when, as in this case, there is significant overlap between the allegations of professional misconduct. The conduct deserving of censure simply put was inappropriate contact with the complainant, and failing to initially cooperate with the College before the investigator was appointed.

[164] One of the findings of professional misconduct has been set aside as not being supported by the evidence. This is relevant to determining the appropriate quantum of costs.

[165] In assessing the costs, all of the circumstances must be taken into consideration, not just the result, including the seriousness of the allegations, the complexity of the proceeding as well as the result: see Venneri, at para. 7.

[166] This was a relatively simple case, with an Agreed Statement of Facts. The Appellant testified and called one expert witness. This was a case of, at best, moderate seriousness as confirmed by the Panel: “the conduct in this matter was not of the greatest severity or importance” and that it “was of moderate importance”.

[167] The complexity and seriousness of the case compared to other cases should have been taken into account in assessing the appropriate quantum of costs, not simply reviewing the outcome. The Panel erred in this respect.

Proportionality and Expectations of the Unsuccessful Party:

[168] The Appellant argues that cost awards for disciplinary matters must be proportionate and “in an amount that the unsuccessful party would reasonably have expected to pay” having regard to other similar cases.

[169] The Appellant argued before the Panel that for this five and a half day hearing, when applying the principle of proportionality¸ the quantum of costs payable should not be more than the costs he has incurred paying his own counsel (i.e., $32,000). The Appellant confirmed that the request for costs by the College was 6.5 times the costs incurred by the Appellant to pay his counsel. He argues the extreme differential cannot meet the test of proportionality.

[170] In support of the argument of reasonable expectation of the parties, the Appellant lists a series of cases where significantly lower cost awards were made pursuant to section 53.1 of the Health Professions Code for six day hearings. These decisions were not considered by the Panel.

[171] The Appellant notes that the College of Physicians and Surgeons of Ontario (“CPSO”), which also awards costs under section 53.1 of the Code, uses a guideline for fees when determining costs awards. This fees schedule of the “Rules of Procedure of the Discipline Committee of the College of Physicians and Surgeons of Ontario” is known as “Tariff A – Costs and Expenses for the College to Conduct a Day of Hearing”. The Tariff was formerly $4,500.00 per day of hearing, and was recently revised (i.e., January 1, 2016), and the amount is now $5,000.00 per day.

[172] The College argues that the Panel is not required to follow practices used by the CPSO. Obviously a guideline from one health discipline is not binding upon another, but it provides some helpful parameters as to expectations of what is reasonable and proportionate given that the same legislative framework applies to the cost awards for doctors and chiropractors.

[173] The Panel accepted at face value the significant costs incurred for this relatively straight forward proceeding (including the entire costs for three senior counsel) and all of the out-of-pocket expenses without doing any comparison with costs incurred in similar cases, and simply applied a percentage to these costs payable by the Appellant.

[174] I accept the Appellant’s submission that the Panel ignored the principle of the reasonable expectations of the parties and failed to consider cost awards in similar cases to award costs that are proportionate and reasonable.

Appellant’s Actions Prolonged the Disciplinary Proceedings:

[175] The Panel considered as one of the justifications for the costs award that “the nature of Dr. Reid’s defence which was mostly unsuccessful and resulted in a more protracted hearing”.

[176] The Appellant argues that the Panel applied a different degree of scrutiny to his submissions because it found that he should have accepted the Agreed Statement of Facts as dispositive.

[177] The College submits that the Panel had ample evidence to find that the Appellant needlessly prolonged the proceedings.

[178] The Panel confirmed that “what was in dispute was the significance of certain facts and Dr. Reid’s motivation for attempting to communicate with Dr. Paynter.”

[179] The Appellant pointed out that it was the College that called numerous witnesses. Dr. Reid’s defence included his evidence and the evidence of his expert, which cannot be viewed as excessive.

[180] It appears that the Panel took the position that the entire hearing was a waste of time as the facts essentially were not disputed, and as the Appellant should have simply pleaded guilty in accordance with the Agreed Statement of Facts.

[181] I have reviewed the transcripts of the hearing. It appears to have been a regular hearing conducted professionally and cordially with the usual sparring between counsel, as often initiated by counsel for the College as was initiated by counsel for the Appellant. Understandably, some time was spent reviewing the expert evidence.

[182] I find it unreasonable to conclude that the Appellant prolonged the proceeding, since he agreed to most of the facts and called only two witnesses.

[183] The Appellant was unsuccessful. Apart from proceeding to a hearing and refusing to plead guilty to the accusations, there is no evidence that his conduct unnecessarily prolonged the proceeding.

[184] A professional charged with misconduct is entitled to a hearing to challenge allegations raised without being criticized and penalized by costs.

[185] If the professional needlessly prolongs the hearing by unacceptable tactics or behavior, this would be a valid factor to take into account in awarding costs. No such tactics or behavior deserving of censor are present in this case.

Failure to Provide Evidence of Impecuniosity:

[186] The Appellant also takes issue with the Panel’s suggestion that for impecuniosity to be considered, that the Appellant must file formal proof. The Panel observed that as the Appellant did not present evidence of financial hardship that would result from a costs award of this magnitude, impecuniosity should not be considered.

[187] The Appellant argues that is a dangerous precedent.

[188] Counsel made submissions that the magnitude of costs sought by the College would obviously result in financial hardship. The Panel did not consider impecuniosity as a relevant factor in assessing costs. In my view, this oversight was an error. The only reasonable inference is that the Appellant would suffer profound financial hardship from a costs award of this magnitude, particularly when coupled with the penalty imposed of a one-year suspension and fine.

[189] It is not reasonable for a Panel to require a party to file proof of financial hardship before the Panel will consider the issue.

Impact of College’s Offer to Settle on Costs:

[190] On May 14, 2014, the College presented the Appellant with an offer to settle prior to the hearing. The offer was to admit to four of the five allegations of professional misconduct, agree to a twelve-month suspension, and pay the College’s costs on a sliding scale (between $12,500 and $30,500) depending on when the offer to settle was accepted.

[191] The Appellant declined to accept this offer. In his opinion, the offer was not a compromise, but rather a complete capitulation.

[192] Counsel for the College acknowledged that the offer to settle was “at the forefront” of the cost submissions made.

[193] How to assess the impact, if any, of the Offer to Settle raises the issue of where allegations of professional misconduct lie in the spectrum between criminal and civil cases.

[194] The dynamics and consequences of a quasi-criminal allegation of professional misconduct with the objective of protection of the public lie closer to criminal cases, than to civil cases, where costs are awarded in the context of a dispute between parties advancing their respective self-interest.

[195] In the Liability Decision, the Panel found the Appellant guilty of all five allegations of professional misconduct. In the Penalty Decision, the Appellant was subject to a $10,000 fine in addition to the twelve-month suspension.

[196] The Panel used the offer to settle as a factor for awarding costs. They considered “Dr. Reid’s failure to accept an offer to settle which contained lesser findings than were ultimately ordered by the Panel”.

[197] The Appellant argues that offers to settle in the context of a hearing for professional misconduct should not be treated like offers to settle in civil litigation. I agree with this submission. An allegation of professional misconduct is quasi-criminal in nature, with far reaching consequences resulting from a finding of professional misconduct. The fear of a crippling costs award should not drive the resolution of a disciplinary decision.

[198] If offers to settle are to be considered as relevant to costs in matters of professional misconduct, the Appellant argues that this offer to settle was not a reasonable offer or a compromise, and was rather an offer to capitulate on all fronts. This appears to be the case.

[199] Counsel for the College acknowledged in oral submissions that a twelve-month suspension based upon the facts was at the upper end of the range of appropriate penalties.

[200] The College submits that fostering settlements is clearly a part of the College’s mandate to conduct just and speedy proceedings. The College argues that while members have the right to challenge allegations of professional misconduct, choosing not to accept reasonable settlement offers will carry financial consequences.

[201] The College relies on the recent decision of this Court in Baird v. College of Chiropractors of Ontario, [2015] O.J. No. 1339 (Div. Ct.). In that case Sachs J. upheld the penalty and cost award from the panel, but in that case there was no discussion about the effects of an offer to settle on cost awards. Rather the arguments focused on the panel’s decision to not allow fresh evidence before rendering the penalty and costs award.

[202] The only case specifically considering offers to settle in the context of professional misconduct is a decision of the Divisional Court in Law Society of Upper Canada v. Mohammedally, 2015 ONSC 4040.

[203] At paras. 13-14, the Divisional Court found that the principles regarding offers to settle and their financial consequences in civil proceedings should not apply in disciplinary proceedings, where the public interest may be at stake:

[13] The Appeal Panel held that the Hearing Panel erred in applying the costs principles with respect to offers to settle in civil proceedings to a discipline hearing, given the differences between a civil action and a disciplinary proceeding - notably, the obligation of the Law Society to act in the public interest.

[14] The Appeal Panel held that the Society was not acting unreasonably in rejecting the proposed settlement and asking a Hearing Panel to adjudicate whether the appellant was knowingly involved in multiple mortgage frauds. It also held that the mixed results warranted a substantial discount in the Society’s requested costs.

[204] I note that professional disciplinary proceedings raise not only issues of public protection as confirmed in Mohammedally, but also raises issues of a professional’s reputation, integrity and livelihood.

[205] I concur with the view of the Appeal Panel adopted by the Divisional Court in Mohammedally that an offer to settle rule in the civil context (dealing primarily with financial issues) should not be treated in disciplinary hearings in the same fashion as in civil cases. Rather, an offer to settle may be one of the factors to consider, but should not, in the words of counsel, be “front and center” of the submissions as to costs.

[206] The Panel in this case gave undue weight to the offer to settle, which was virtual capitulation, and improperly applied principles from the civil context without due regard to all of the other factors relevant to costs.

[207] It is a valid objective for Professional Colleges to resolve, where possible, professional misconduct allegations by agreement between the parties, as the Appellant did during the 2010 Complaint. However, an accused should not risk financial ruin by refusing an offer to settle and by requiring a hearing to challenge the allegations made.

Access to Justice:

[208] The Appellant submitted that if the Panel were to award costs in the magnitude sought by the College “it would risk the creation of a system where members plead guilty to avoid the risk of financial catastrophe from an adverse costs award”.

[209] The quasi-criminal nature of professional misconduct cases have far reaching consequences for not only the public, but for the professional as well. The threat of cost awards in this magnitude for a straight forward case with the Appellant cooperating by agreeing to the essential facts will have a dangerous ripple effect that may force those accused of professional wrongdoing to plead guilty to allegations regardless of the merits to avoid financial ruin. The Appellant raises valid access to justice issues.

[210] Further, the cost award of $166,194.50 not only raises an access to justice issue, but is punitive in its magnitude, particularly when considered in context of the levels of fines awarded as penalty in this and other cases. The fine imposed of $10,000 in this case pales in comparison to the cost award.

Dissenting Conclusions on Costs

[211] A cost award applying the standard of review of reasonableness, will only be overturned when there is an error in principle or if the award is “plainly wrong”. For the foregoing reasons, I conclude that the cost award in this matter clearly meets this test.

[212] I accept the Appellant’s arguments that the Panel:

• failed to consider the complexity and seriousness of the case in rendering the Costs Decision;

• failed to consider the principles of proportionality and expectations of the unsuccessful party by failing to consider cost awards in other cases of similar length, complexity and seriousness;

• erred in concluding that the Appellant’s actions unnecessarily prolonged the hearing;

• erred in placing the onus on the Appellant to provide evidence of impecuniosity resulting from the cost award;

• inappropriately considered the Appellant’s failure to accept an offer to settle; and,

• failed to take into account access to justice in awarding costs of this magnitude.

[213] This is the first case to consider in any detail the appropriate application of section 53.1 of the Code introduced in 1993 governing 26 health professionals.

[214] What then are the applicable principles to assess costs permitted pursuant to this provision having regard to the quasi-criminal nature of a professional disciplinary proceeding guided by the principles in the civil case law and the issues in this case? I suggest that the following:

• Costs must be reasonable, proportionate, and comparable on a case-by-case basis – regardless of the particular choice of lawyers retained by the College – taking into account the severity of the allegations, the complexity and the length of the case to ensure consistency and fairness to the professional, as well as the impartiality of the College.

• Costs must be guided by the reasonable expectations of the unsuccessful professional.

• Offers to settle have limited application in quasi-criminal professional misconduct cases, and the cost consequences in the civil case law for failure to accept an offer to settle has no application to professional misconduct cases.

• A professional charged with professional misconduct has a right to challenge the allegations asserted by the College without criticism or fear of facing a punitive cost award.

• The magnitude of cost awards should not be a barrier to access to justice, and should not be punitive.

• Colleges establishing guidelines for cost awards is helpful. As noted above, CPSO uses a guideline for fees when determining costs awards. The guideline has recently been increased to $5,000.00 per day of hearing. This guideline provides useful context and structure for the 26 Colleges governed by the Code in awarding reasonable, transparent and consistent costs to an unsuccessful professional. A guideline would not be determinative, if the case is exceptional.

[215] I conclude that the costs suggested by the College in their offer to settle of $30,000 up to the date of the hearing is ample for the investigation of the complaint and trial preparation. I adopt the guidelines used by the CPSO of a further fee in the amount of $5,000.00 per day of hearing as reasonable fee, for a total award of costs of $60,000, inclusive of HST and disbursements.

Majority Decision on Costs

ACJSC Marrocco and Pattillo J.

[216] We have read and agree with the reasons of our colleague concerning the disposition of the Appellant’s appeal from the decisions of the Panel of the College dealing with both liability and penalty. With respect, however, we are unable to agree with her decision concerning costs. In our view, the Panel’s decision with respect to costs was reasonable and should not be interfered with. We would accordingly dismiss the Appellant’s appeal with respect to costs.

[217] The College sought costs of $211,816.52 which was 65% of its total costs of the discipline proceedings against the Appellant. The total costs were $325,871.57 made up of legal costs of $261,715.83 ($213,528.05 for College counsel and $47,370.42 for Panel counsel); $1,784.36 for the College’s investigation costs; and $62,371.38 for the hearing costs (Panel expenses, expert fees, meeting expenses, court reporter fees and general expenses).

[218] After considering the evidence and the submissions of the parties, the Panel awarded the College costs of $166,194.50 or 51% of the amount claimed.

[219] The jurisdiction to award costs in a health professional misconduct matter is found in s. 53.1 of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, S.O. 1991, c. 18 (the “Code”). That section grants to the Panel a broad discretion to order that “in the appropriate case” the College be indemnified for not only its legal costs but for the costs incurred for both the investigation and the hearing. What is an “appropriate case” is a matter of discretion: Freedman v. Royal College of Dental Surgeons (Ontario), [2001] O.J. No. 1726 (Div. Ct.).

[220] The Appellant concedes that it was appropriate for the Panel to award costs of the proceedings to the College. The only issue with respect to costs therefore, is the quantum.

[221] The Appellant submits that the Panel erred in law in awarding the quantum of costs in respect of four issues: it failed to apply the proper legal test in determining the quantum; it erred in concluding that the Appellant’s conduct prolonged the hearing and taking it into account; it erred in taking into account the College’s offer to settle made in advance of the hearing; and it erred in awarding a quantum of costs that was unreasonable.

[222] The standard of review of a costs decision under s. 53.1 of the Code is reasonableness as the Panel is interpreting its own statute. Venneri v. College of Chiropractors of Ontario, 2010 ONSC 473 (Div. Ct.) at para. 6.

[223] As noted, the Panel’s jurisdiction to award costs arises from s. 53.1 of the Code. As a result it is not bound by the principles from the Rules of Civil Procedure concerning civil cases. Costs pursuant to s. 53.1 are broader than legal costs awarded in civil proceedings between parties. Further, the costs awarded can be “all or part”. In our view, therefore, in determining the question of costs pursuant to s. 53.1 of the Code, the Panel must first determine whether the proceeding is an appropriate case for costs and if so, having regard to all the circumstances, what is a fair and reasonable amount for such costs.

[224] In its decision, the Panel set out s.53.1 of the Code and correctly stated that the section gave it a broad discretion to make an award of costs in favour of the College in an “appropriate case.”

[225] The Panel noted that it had reviewed the submissions of the parties as well as its own findings of professional misconduct and penalty and then set out a number of factors that it relied on in coming to its decision on costs including its findings on the liability hearing, the relative success of the College, the fact that notwithstanding the lengthy agreed statement of facts, the Appellant’s “meritless defence” was the primary cause of the lengthy six day hearing; the College’s witnesses spoke of matters not contained in the agreed statement of facts and was useful and relied upon by the Panel; the number of lawyers used by the College, their hourly rates and hours spent; and the Appellant’s failure to comply with a prior undertaking to the College to, among other things, comply with all of the College’s standards of practice, guidelines and policies.

[226] At the conclusion of setting out the factors, the Panel concluded that it was an appropriate case to award costs in favour of the College. The Panel stated it had reviewed the cases put forward by the parties, considering the most similar cases for guidance. It concluded as follows:

The Panel reminded itself that the costs order is not meant to be a penalty. Instead, it is meant to indemnify the College for (typically, a portion of) the costs it has incurred as a result of a member’s professional misconduct. Having considered all of the relevant factors in the circumstances of this matter and what is fair and reasonable and for these reasons the Panel makes the following costs order:

[227] The Appellant raises a number of reasons why the Panel failed to apply the proper legal test in determining quantum. While he agrees that the Rules are not applicable, he submits that the Panel did not adequately address the two factors of “fundamental importance” in determining reasonableness: proportionality and the reasonable expectations of the losing party. While proportionality is certainly one of the factors to be considered, based on its reasons and the result, we are of the view that the Panel clearly had that factor in mind.

[228] We do not agree, however, that the reasonable expectations of an unsuccessful party is a factor that must be considered by the Panel. The costs provided for by s. 53.1 of the Code are much broader than the unsuccessful party’s legal costs which is often the measure of the reasonable expectations. The Appellant purports to compare his legal costs with those of the College. In the circumstances, it is apples and oranges and therefore not comparable. The Panel did not accept the comparison and neither do we.

[229] In determining quantum, the Panel considered the cost outline provided by the College along with detailed back up documentation.

[230] The Appellant takes issue with the Panel’s response to his submission that the hourly rates and number of hours of the College’s lawyers along with the fact that the College had two senior lawyers at the hearing were unreasonable. It is clear from the Panel’s reasons, not only with respect to costs but also liability and penalty, that this was not a simple discipline case. As part of his defence, the Appellant challenged a cornerstone of professional regulation: the requirement that a member must respond to allegations of misconduct. Given the issues raised by the Appellant, the College was entitled to have experienced, senior counsel act for it. In the circumstances, we do not consider the Panel’s response to the Appellant’s submissions concerning the College’s lawyers to be unreasonable.

[231] For the above reasons, therefore, we conclude the Panel did not misapprehend the proper test to be applied in respect of the determination of costs. In our view, the Panel was clearly aware of the test.

[232] As part of its cost submissions before the Panel and before us, the Appellant submitted that the Panel erred in concluding and then taking into account the Appellant’s conduct in prolonging the hearing. The Panel over saw the hearing, heard all the evidence and the parties’ submissions and was therefore clearly entitled to reach that conclusion. Further the Panel set out three reasons why the Appellant’s conduct prolonged the hearing. Having made that finding, the Panel was entitled to take it into account in determining costs.

[233] Nor do we consider that it was an error for the Panel to take the College’s offer to settle into consideration. While the provisions in the Rules concerning offers have no application to regulatory discipline proceedings, it does not mean offers to settle cannot still play an important role. Offers to settle facilitate settlement which in turn often leads to the most just, expeditious and cost-effective resolution of a matter. In discussing the offer the Panel noted that by not accepting it, the Appellant failed to recognize his misconduct; and caused significant costs for a six-day hearing, the result of which was worse for him than the offer. In our view, the offer was a relevant factor the Panel could and did take into account in determining whether it was appropriate to award costs under s. 53.1 of the Code.

[234] Finally, the Appellant submits that the quantum of costs awarded by the Panel was unreasonable. There is no question that the total costs incurred by the College were high. But a significant portion of the costs relates to the hearing itself which, as the Panel found, was prolonged by the Appellant’s “inexplicable position that his conduct, which he admitted in the agreed statement of facts, did not constitute acts of professional misconduct”.

[235] In the circumstances, therefore, and given the significant reduction by the Panel of the College’s total costs, it is our view that the Panel’s cost order is reasonable and falls within the range of acceptable reasonable outcomes that are defensible in light of the facts and law.

[236] Accordingly, we would therefore dismiss the Appellant’s appeal in respect of costs.

Conclusions on the Appeals

[237] For the above reasons, the Appellant`s appeals are dismissed in their entirety, with the exception of the finding in the Liability Decision that the Appellant failed to cooperate with the College investigator.

[238] Taking account the magnitude of costs awarded by the Panel in the Costs Decision, we conclude that this is a case where no cost order should be granted to either party.

___________________________ J. Wilson J.

Marrocco ACJ.

Pattillo J.

Released: June 13, 2016

CITATION: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041

DIVISIONAL COURT FILE NO.: 14-606,15-214, 15-519

DATE: 20160613

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

A.C.J.S.C. Marrocco, J. Wilson, Pattillo JJ.

BETWEEN:

DR. MICHAEL REID

Appellant

– and –

COLLEGE OF CHIROPRACTORS OF ONTARIO

College

REASONS FOR JUDGMENT

J. WILSON J.

Released: 20160613