Court File and Parties
CITATION: Shah v. College of Physiotherapists of Ontario, 2020 ONSC 6240
DIVISIONAL COURT FILE NO.: DC-19-304
DATE: 20201019
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, BACKHOUSE and LABROSSE JJ.
BETWEEN:
SAMIR SHAH Appellant
– and –
COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO Respondent
COUNSEL: Todd J. Burke and Kaisha Thompson, for the Appellant Joanna Birenbaum, for the Respondent
HEARD by videoconfernce: October 7, 2020
Reasons for Judgment
LABROSSE J.:
Overview
[1] Mr. Shah pleaded guilty to allegations of professional misconduct. His plea was accepted by the Discipline Committee of the College of Physiotherapists of Ontario who found that Mr. Shah had breached various provisions of Ontario Regulation 388/08 under the Physiotherapy Act, 1991, S.O. 1991, c. 37. governing the conduct of physiotherapists in Ontario. After hearing submissions on penalty, the Committee determined that Mr. Shah should be suspended for an 18- month period in an order dated May 7, 2019.
[2] Mr. Shah now appeals from the penalty, submitting that a suspension of nine months would be reasonable.
Standard of Review
[3] An appeal under s. 70 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 can be made on questions of law or fact or both. The Appellant acknowledges that this appeal is on a question of mixed fact and law. The standard of review on questions of mixed fact and law where the legal principle is not readily extricable is palpable and overriding error: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37.
[4] However, this appeal is solely an appeal as to penalty. In Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039, the Divisional Court identified that a second question around the standard of review from Vavilov is required for an appeal of a penalty alone:
It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit.” The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances, College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56.
[5] Mr. Shah contends that the 18-month suspension is clearly disproportionate to other penalties imposed by the College and that it fails to take into account the evidence of Mr. Shah’s proven rehabilitation at the time the penalty was imposed.
Analysis
[6] In order to fully comprehend the circumstances surrounding the Committee’s decision, the history plays an important part as set out by the College in its submissions. This proceeding is Mr. Shah’s third disciplinary proceeding since 2011. The College highlights that no member has ever been found guilty in three separate disciplinary proceedings. Those proceedings can be summarized as follows:
a. In 2011, he made misrepresentations associated with the reporting of a patient incident. The circumstances involved an elderly patient who fell and became unconscious. Mr. Shah left the home rather than call 911 and returned with an acquaintance who he presented as Mr. Shah’s supervisor (which was not true). Mr. Shah then gave a false statement to his employer that he had stayed with the patient, checked the patient’s vital signs and told the wife to call 911 (none of which was true). The matter proceeded before the Committee by way of Agreed Statement of Facts and Joint Submission on Penalty and on September 21, 2012, Mr. Shah received a 3-month suspension, six weeks of which was were remitted should Mr. Shah complete remediation activities including the ProBe ethics course;
b. In September 2012, while under suspension following the first disciplinary hearing, he continued practicing physiotherapy at a clinic where he was a co-owner. He instructed staff to invoice the physiotherapy assessments and treatments and record all appointments under the name of the co-owner of the clinic. Also, he did not inform all his staff, nor any of his patients, of the suspension. At the discipline hearing on April 13, 2015, Mr. Shah was suspended for nine months with three months suspended/remitted provided he completed remediation activities which included participation in a practice monitoring program for a period of two years; and,
c. This current instance of professional misconduct commenced following an investigation into allegations that Mr. Shah had practiced without insurance. Prior to July 2012, Mr. Shah had professional liability insurance for roughly 8 years. During the 2012 discipline process, he failed to inform the College that he did not have insurance. The current discipline hearing proceeded by Agreed Statement of Fact and Mr. Shah admitted to practicing without insurance from July 2012 to February 2014 and to misleading the College in his 2013 annual renewal application. The Committee imposed an 18-month suspension. No portion of the suspension was remitted.
[7] A review of the Committee’s decision in this third disciplinary proceeding reveals how the Committee clearly views Mr. Shah’s completion of remediation efforts as having failed to reach their stated objectives. The Committee highlights the following examples where it questions Mr. Shah’s actions:
a. When he began to practice without insurance in mid-2012, he was involved in the Second Disciplinary Hearing process and he failed to identify his failure to maintain insurance;
b. In February 2013, Mr. Shah unsuccessfully followed the Professional Problem-Based Ethics (“ProBe”) course while continuing to practice without insurance. He was then given a second chance to pass the course, which he did;
c. In June 2013, he expressed his remorse for the second incident of professional misconduct and stated in a submission to the College that he had a “deep respect for the College and its rules and regulations” and “I can assure the College that non-compliance of this nature will never happen again”. At the time of these statements, he was practicing without insurance;
d. Mr. Shah stated to the College that he was unaware that professional liability insurance was required and thought it was voluntary. This, despite having obtained it for eight years prior to July 2012. At the hearing, he provided literature from the College that he relied upon in support of his belief that insurance was voluntary. The Committee commented on how it was unlikely that he was unaware.
e. Mr. Shah stated to the College that he made efforts to contact his adjuster to obtain insurance, but that evidence was contradicted by the College.
f. Despite the remedial steps taken during the previous disciplinary proceedings, Mr. Shah failed to self-report his failure to maintain insurance during the 18-month period in question or anytime thereafter. It was only after the commencement of the College’s investigation that he made the admission in January 2018.
[8] The Committee highlighted the various mitigating factors that applied to Mr. Shah’s circumstances and particularly that he had practiced without any other matters being referred to the College or Committee since 2014. On this point, the Court notes that Mr. Shah’s history of compliance since 2014 may have been more relevant had he self-reported this matter at the time he was taking the ProBe ethics courses. Rather, he waited until he was discovered.
[9] The Committee also considered if remorse was a proper mitigating factor. It was available to the Committee to question Mr. Shah’s remorse given that he had said he was remorseful in 2013 for previous misconduct and all the while being uninsured.
[10] The Committee considered the option of revoking Mr. Shah’s licence and concluded that if not for the mitigating factors, Mr. Shah’s licence would have been revoked. It was stated by the College that the applicable criteria for a revocation require the College to demonstrate that the member is ungovernable but the issue was not explored before this Court. However, the Committee demonstrated in its reasons that it certainly took Mr. Shah’s recent history of no disciplinary proceedings since 2014 into consideration and attached significant weight to it.
[11] While the Committee did reference Mr. Shah’s past incidents of misconduct, I am satisfied that it did not place undue weight on these prior instances of misconduct as aggravating factors in these proceedings. It is apparent from the reasons of the Committee that the history of misconduct is relevant on the issue of timing and as repeated instances of dishonesty.
[12] In support of his contention that his suspension should be reduced to nine months, Mr. Shah refers to various decisions of other regulated health professions where members practiced without insurance. Those cases range from one month to six month suspensions. These cases are distinguishable based on the duration of the misconduct and this is Mr. Shah’s third disciplinary proceeding related to dishonesty. Neither party was able to provide a similar case where a member of a health profession was found guilty of a third instance of misconduct related to dishonesty.
[13] The parties also rely on three cases before this Committee where suspensions of 15-months were imposed and the members in those cases had the opportunity to remit portions of their suspensions (see 2016 ONCPO 6, 2017 ONCPO 10 and 2019 ONCPO 22). However, it remains that those penalties were in fact 15-month suspensions and while the net duration is a factor to consider, the facts in those cases warranted the full penalty of 15-months. Here, Mr. Shah has had the benefit of remitting portions of penalties on two prior occasions. It was not unreasonable that the Committee did not remit a portion of the current penalty.
[14] Simply put, the three cases with 15-month suspensions did not involve multiple instances of misconduct for dishonesty. The College also highlighted a 12-month suspension in College of Physiotherapists v. Bayat/Bayfield 2014 ONSC 6570 which was upheld by the Divisional Court despite being that member’s first discipline matter.
[15] I am satisfied that the Committee turned its mind to the issue of parity when it acknowledged that the 18-month penalty was more that the other cases in the Books of Authorities. The Committee demonstrated that while considering parity, those sentences were not appropriate as none of those cases had similar aggravating circumstances and the heightened need for specific and general deterrence.
[16] In the end, the Committee recognized that these circumstances are exceptional and as such an exceptional penalty was required to properly address specific and general deterrence and to maintain the public’s and the profession’s confidence in the profession’s ability to self-regulate. I am satisfied that the Committee’s reasons reflect that it was aware that the 18-month suspension was a departure from other suspensions imposed by the Committee
[17] While reasonable people may reasonably differ on the appropriate term of suspension in Mr. Shah’s case, the Committee provided detailed reasons supporting its conclusion that Mr. Shah’s circumstances were exceptional and that they warranted a significant penalty. Given the nature of the misconduct involved and repeated instances of dishonesty, the period during which the misconduct continued and the apparent questionable approach Mr. Shah took with the College in attempting to explain his failure to maintain insurance, it was open to the Discipline Committee to conclude, as it did, that a lengthy period of suspension was required. The conclusion that an 18-month suspension is applicable in the circumstances is a reasonable conclusion that cannot be said to be “demonstrably unfit” or “clearly excessive”.
[18] The appeal is dismissed.
[19] On the issue of costs, the parties have agreed that the College is entitled to its costs of this application fixed in the amount of $6000.00 inclusive of HST and disbursements.
Labrosse J.
I agree.
Swinton J.
I agree.
Backhouse J.
Date of Release: October 19, 2020
CITATION: Shah v. College of Physiotherapists of Ontario, 2020 ONSC 6240
DIVISIONAL COURT FILE NO.: DC-19-304
DATE: 20201019
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, BACKHOUSE and LABROSSE JJ.
BETWEEN:
SAMIR SHAH Appellant
– and –
COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO Respondent
REASONS FOR JUDGMENT
LABROSSE J.
Date of Release: October 19, 2020