Attallah v. College of Physicians and Surgeons of Ontario 2021 ONSC 3722

DIVISIONAL COURT FILE NO.: 255/20

DATE: 20210525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Edwards R.S.J., Penny J. and Doyle J.

BETWEEN:

DR. GABRIEL ATTALLAH, Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Respondent

Alexi N. Wood and Jennifer P. Saville for the Appellant

Lisa Brownstone and Ruth Ainsworth for the Respondent

HEARD: March 1, 2021

REASONS FOR JUDGMENT

Overview

[1] This is an appeal by Dr. Attallah from the findings of professional misconduct by the Discipline Committee the College of Physicians and Surgeons of Ontario and the penalty imposed by the Committee of revocation of his certificate of registration to practice medicine.

[2] There was a 7-day hearing before the Committee. The College called a total of 15 witnesses. The Appellant did not testify or call any evidence in his defence. There was, in addition, an extensive documentary record including the OHIP Schedule of Benefits and the Appellant’s OHIP billing records and clinical notes. The Appellant was found by a unanimous panel of the Committee to have engaged in a multi-year scheme of improperly collecting OHIP numbers from the relatives of his patients; intentionally billing OHIP for services he did not provide; intentionally up-charging OHIP to bill for lengthier, more lucrative encounters than actually occurred; and falsifying patient records to justify his improper billing: 2020 ONCPSD 12.

[3] Following a further hearing on penalty, at which the Appellant did testify, the Committee concluded that revocation was the only penalty that would adequately serve the critical goals of protecting the public, promoting public confidence in the profession and deterring the membership at large from engaging in similar misconduct: 2020 ONCPSD 38.

Background

[4] The Appellant is a family physician who has practised in Ontario since 2003.

[5] OHIP is a publicly funded payment system for Ontario’s physicians. It operates as a trust-based “honour system,” with finite resources. As OHIP is a third-party payer, the “customer” does not receive a bill and is generally unaware of what services the physician bills for. When physicians receive a billing number from OHIP, they are provided with educational materials including the Schedule of Benefits, the document that establishes how much physicians are paid for their services. Physicians are expected to familiarize themselves with the billing codes that pertain to their practice and to stay informed of periodic update bulletins from the Ministry regarding billing. When the Appellant applied for his billing number, he signed an acknowledgment of his responsibility to have read and understood the Schedule of Benefits and other relevant documents. As well, he acknowledged that he bore sole responsibility for complying with the Schedule of Benefits and for the veracity of his OHIP claims.

[6] Only two categories of billing codes used by family physicians are at issue in this case: “A” codes, which are assessment codes; and “K” codes, which are counselling codes. Unlike most OHIP codes, K codes are time-based. They are billed in units requiring a minimum amount of time spent in direct contact with the patient: one unit is at least 20 minutes; two units is 46 minutes; and three units is 76 minutes. All insured services have “constituent and common elements” which are included in the service a physician is paid for. For both K and A codes, this includes “obtaining and reviewing information from any appropriate source”, including the patient’s representative. Further, “assessments” include “discussion with … the patient’s representative … on matters related to the service.”

[7] Physicians cannot claim both a K code and an A code for the same patient on the same day (subject to certain exceptions); if they do, their billings will be automatically rejected.

[8] The A codes and three of the K codes at issue involve care provided directly to a patient. Other K codes in issue, in particular K002, involves an interview with a patient’s relative, rather than care provided directly to the patient. This service can be billed in the limited circumstance where a physician conducts an interview with a relative or other person authorized to make a treatment decision on the patient’s behalf, for a purpose other than to obtain consent. The Schedule of Benefits states that this applies to “situations where medically necessary information cannot be obtained from or given to the patient or guardian, e.g. because of illness, incompetence, etc.” It cannot be billed for “inquiry, discussion or provision of advice or information … to a patient’s relative or representative that would ordinarily constitute part of an assessment.” The interview must be booked as a separate appointment lasting at least 20 minutes. It must be billed to the OHIP number of the patient, not the family member. It cannot be billed on the same day as an assessment of the patient: if both a K002 and an assessment are billed for a patient on the same day, the K002 bill will be rejected.

[9] Dr. Attallah was in the top 5% of physicians in Ontario billing K002 in 2007, and received a letter from the Ministry in May 2008, reminding him of the eligibility requirements and payment rules for K002 claims.

[10] Following the hearing, in a lengthy and detailed written decision of 97 pages, the Committee found that the Appellant had committed acts of professional misconduct under para. 1(1)33 of O. Reg. 856/93 in that he has engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

[11] The Committee found that:

• Dr. Attallah improperly collected the health card numbers of family members who were at his office solely to accompany their relatives who were his patients.

• Dr. Attallah used those health card numbers to improperly bill OHIP for interviews that he knew would not be paid for if he billed them, as he should, to the patients’ health card numbers.

• Dr. Attallah billed OHIP using patients’ and family members’ health card numbers for services that he did not provide, or he spent insufficient time providing time-based services to justify the claims he made.

• Dr. Attallah created false or inaccurate charts to justify his claims to OHIP, including charts for family members who were not his patients.

[12] The Committee made no specific finding regarding the quantum of the improper billing.

[13] At the 2-day penalty hearing, the College presented no further evidence. The only additional evidence before the Committee at the penalty hearing was the testimony of Dr. Attallah and a brief of character references. The Committee did not, at the penalty hearing, allow Dr. Attallah to testify about the circumstances of his billing practices, the training and instruction he received regarding these practices when he relocated to Ontario in 2003, and the efforts that he made to understand how the Schedule of Benefits was to be interpreted. It did so on the basis that such evidence was relevant only to the merits of the misconduct allegations, not to the question of appropriate penalty for the findings of misconduct the Committee had already made.

[14] On 10 September 2020, the Committee delivered the Penalty Decision. It directed that:

(a) the Registrar revoke Dr. Attallah’s certificate of registration;

(b) Dr. Attallah attend before the panel to be reprimanded; and

(c) Dr. Attallah pay costs to the College in the amount of $124,440.39.

Issues

[15] The following issues must be determined on this appeal:

(a) What is the standard of review?

(b) Did the finding of professional misconduct involve errors of law or palpable and overriding errors of fact?

(c) Did the penalty imposed, namely, revocation, involve an error in principle or was it clearly unfit? and,

(d) If the answer to issue b) or c) is yes, what is the appropriate remedy on appeal?

Appellant’s Position

[16] In brief, the Appellant submits that both decisions contain palpable and overriding errors of fact and incorrect holdings in law, such that they must be set aside. The Appellant accepts that the palpable and overriding error standard applies to both the Committee’s assessment of the evidence and the penalty decision.

[17] However, the Appellant submits that the questions as to whether:

(i) the Committee erred in admitting hearsay evidence;

(ii) the Committee erred in admitting opinion evidence from the College’s fact witness, Dr. Anweiler; and

(iii) the Committee’s failure to allow the Appellant to testify regarding the circumstances of his practice; are extricable issues of law which must be reviewed on the correctness standard.

The Appellant asks that the Court substitute its own decision or, in the alternative, to remit the decisions back to the Committee for reconsideration with directions from the Court.

Analysis

Standard of Review

[18] The standard of review of a decision of the Discipline Committee is correctness in relation to an error of law and palpable and overriding error with respect to findings of fact, inferences of fact and findings of mixed fact and law. If a finding of mixed fact and law is founded on an extricable question of law, that question is reviewed on the correctness standard.

[19] Significant deference is owed to determinations by the hearing tribunal regarding credibility and reliability of witnesses and the weight to be given to evidence. Similarly, an appellate court must defer to inferences of fact drawn by the hearing tribunal:

[W]here evidence exists to support this inference, an appellate court will be hard

pressed to find a palpable and overriding error:

Housen v. Nikolaisen, 2002 SCC 33, paras. 22-23

[20] To overturn a penalty decision, it must be shown that that the decision maker made an “error in principle” or that the penalty is “clearly unfit”, in that it is “clearly unreasonable”, “clearly or manifestly excessive” or a “substantial and marked departure” from similar cases.

The Findings of Misconduct

(i) Whether the Committee erred in permitting Dr. Anweiler to provide opinion evidence

[21] The first ground of appeal deals with the evidence of Dr. Anweiler who was called by the College as a fact witness. The College introduced the 2005 Schedule of Benefits into evidence through Dr. Anweiler and asked her questions about the Schedule and, generally, to provide evidence of the “nuts and bolts or the mechanics of how OHIP works. Dr. Anweiler’s evidence was directed to guiding the Committee through the fee codes that were in issue and pointing out provisions in the Schedule regarding billing eligibility. The principle that it is appropriate to call an individual familiar with a regulatory regime to testify about the mechanics of that regime appears not to be in dispute. However, the Appellant seeks to characterize some of Dr. Anweiler’s evidence as “interpretation” of the Schedule and opining about proper standards of practice in billing.

[22] In one instance, Dr. Anweiler gave evidence about billing for counselling and family medicine provided during the same visit, which she said was not permitted. When asked whether this was set out in the Schedule, she replied: “I’m not aware that it says that explicitly, but assessments are not time based, so there’s no -- most physicians are aware of that, I would imagine.”

[23] In the other instance raised by the Appellant, Dr. Anweiler was asked about talking to a patient and family member at the same time and whether the doctor would be permitted under the Schedule to bill both for the time with the patient and with the family member. She said this would not be permitted. When asked if there was a payment rule in the Schedule applying to that situation, she replied:

A. I’m afraid I can’t think of one off the top of my head. I think it just — I think my own opinion ---

Q. So —

A. So, I can’t give an opinion. Okay.

Q. So, we’re not asking you for your opinion today.

A. Okay. No opinion today. I’m sorry. I don't know where a payment rule is

that says you can’t bill twice for the same period of time.

[24] While it is a fair point that Dr. Anweiler was not called to testify about what “most physicians” would be aware of, it is clear that, reviewing her evidence as a whole, this was a minor slip. The same might be said of the double billing comment, although one wonders whether the medical profession needs evidence about a specific rule to understand that one should not, under a time-based billing structure, bill twice for the same service.

[25] The Appellant was unable to point the Court to anything in the Committee’s reasons referring to or suggesting reliance on either of these two specific answers given by Dr. Anweiler. The Committee was clearly alive to the distinction between a fact witness and an expert. During the hearing the Committee redirected questioning, when appropriate, recognizing this distinction, and did not rely on any opinion evidence in its decision. A witness who is called to give otherwise admissible evidence may inadvertently provide inadmissible evidence, but this does not undermine the tribunal’s decision where it does not rely on that evidence.

[26] I would not give effect to the Appellant’s arguments on this ground of appeal.

(ii) Whether the Committee relied on hearsay evidence for its conclusion about the collection of OHIP numbers from patients’ family members

[27] The Appellant argues that the Committee’s finding that the Appellant collected health card numbers without a proper purpose was almost entirely based on hearsay evidence which ought not to have been relied on for the truth of its contents. One family member, for example, said she was told by the receptionist, when asked for her health card, that “everyone who goes back there [to the consultation room]” is billed to OHIP. This evidence was admitted, not for the truth of its content but because it was relevant to what the patient’s family member did and observed subsequently.

[28] The appellant further argues that the only receptionist called to provide first-hand testimony gave “unreliable” evidence that “ought to have been disregarded”.

[29] Again, the Committee was clearly alive to the evidentiary requirement that an out of court statement by a non-party witness it is inadmissible if the statement is tendered for the truth of its contents. This distinction was addressed at the hearing in multiple rulings made by the Committee. These particular statements were found to be relevant for reasons other than the truth of their contents. What the Appellant’s argument ignores, however, is that there was a good deal of additional evidence, some of it from statements made to the witnesses by the Appellant himself (and therefore admissible for the truth of the utterance as a statement of a party against interest) and evidence taken from the documentary record, tending to support the alleged improper purpose.

[30] The Committee’s decision sets out the extensive evidence that led to its finding that the Appellant collected OHIP numbers for an improper purpose, none of which is inadmissible hearsay statements of staff, patients or patient’s family members. And, as with the prior argument, the Appellant can point to no example of reliance on inadmissible hearsay in the Committee’s reasons.

[31] In addition, the Committee’s conclusions about the evidence of the receptionist, its finding that she was credible and reliable, and its determination of the weight to be given to her evidence, were all matters squarely within the Committee’s expertise and purview as the trier of fact. The issues now raised by the Appellant about the receptionist’s evidence were raised before, addressed and rejected by the Committee. For example:

• The Committee was aware that the receptionist was testifying in 2019 about events that occurred in 2006. It nonetheless concluded, with appropriate reasons, that her evidence was reliable;

• The Committee addressed why its conclusions were not affected by Ms. E’s evidence (another family relation of a patient) that she did not ultimately provide her health card number to the receptionist; and

• The Committee’s conclusion that there was a policy of improperly collecting health numbers over a period of years was not solely based on the receptionist’s evidence, but the result of a reasonable inference arising from her evidence that the policy existed in 2006, when taken together with other evidence that health numbers were improperly sought and collected over a period of years, and the absence of any other explanation for this ongoing practice.

[32] I would dismiss the appeal on this ground.

(iii) Whether the Committee erred in finding the Appellant created false charts

[33] The Appellant submits that the Committee erred in a number of respects in concluding that he created false patient charts. The Appellant argues that the Committee accepted lay witness evidence about whether they received health services in defined categories such as counselling, psychotherapy, primary mental health care or assessment. This, he argues, was inadmissible opinion evidence. The Appellant also submits these witnesses gave “unreliable” evidence about events that had taken place over 10 years earlier and that neither of the two “staff” witnesses gave evidence that the Appellant had deliberately created false or inaccurate records.

[34] I cannot accept this argument. The Committee’s findings were not based on “opinion” evidence from family members. Family members were not asked whether their interactions with the Appellant satisfied criteria for billing OHIP in the categories of counselling, psychotherapy, primary mental health care or an assessment. They were asked to provide factual descriptions of what occurred in these encounters. While this included questions about whether they engaged in “therapy”, “psychotherapy” or “counselling”, these terms have a factual meaning which is within the experience of lay witnesses. This evidence was was not relied on by the Committee to determine whether the technical criteria for billing OHIP codes were met.

[35] The Committee considered the totality of the witnesses’ evidence in arriving at its conclusions about what did or did not occur in these encounters, as its reasons demonstrate. In addition to evidence from patients that they never received counselling or therapy, the Committee relied on evidence that the Appellant never saw these family members alone; that they considered their role as being to assist their relatives with their care; that they were never physically examined; and that they never discussed their own health with the Appellant except for general or passing comments.

[36] The Committee expressly considered the implications of the passage of time for the witnesses’ ability to recall details and explained why, in spite of the passage of time, it accepted certain witnesses’ evidence in some cases and why, in other cases, it did not. For example, one factor, among others, was that many witnesses recalled and were able to contrast the brevity of their encounters with the Appellant in the consultation room with the lengthy wait times preceding those encounters.

[37] I would not give effect to this ground of appeal.

(iv) Whether the Committee erred in finding the Appellant created charts for individuals who were not his patients

[38] The Appellant argues that while three witnesses denied being patients, and therefore denied receiving any medical services, in each case, the interactions took place in a professional setting (his medical office), the Appellant’s records contained notes of medical discussions with those witnesses about issues such as cholesterol or anxiety, and there were OHIP billing records for these consultations. The Appellant argues that a lay person’s subjective view about the existence of a physician/patient relationship is “irrelevant” to the question of whether such a relationship existed.

[39] I do not agree that the understanding of family members as to whether they were patients of the Appellant, in the context of this case, is “irrelevant” to the issue of whether they received medical services from him. Evidence that family members attended appointments to accompany their relatives and that they did not believe themselves to be patients in their own right is: a) within their capacity and knowledge; and, b) logically probative of whether they received care from the Appellant or (as several of the family members testified) simply engaged in small talk with him.

[40] While it is true that an individual’s view of whether a doctor/patient relationship exists is not dispositive of the existence of such a relationship, there is a difference between the test referred to by the Appellant (dealing with whether care was provided within a doctor-patient relationship or whether care provided was “incidental”) and evidence as to whether any care was, in fact, provided at all. In any case, the Committee considered the test for a doctor/patient relationship and these factors in determining whether the family members were patients. The Committee did not simply rely on family members’ assertions that they were not the Appellant’s patients: it considered the totality of the evidence and found the Appellant had not provided the care to them which he billed to OHIP.

[41] I would dismiss the appeal on this ground.

(v) Whether the Committee’s inference that the Appellant intended to make improper claims to OHIP reasonably and logically followed from the evidence

[42] From the Committee’s finding that the Appellant collected health card numbers from patient’s family members without a proper purpose, it inferred that the Appellant’s intention was to make improper claims to OHIP. This inference, the Appellant argues, does not logically and reasonably follow from the evidence and is, as a result, mere conjecture or speculation.

[43] The Appellant’s argument is that merely collecting health card numbers (however improperly) does not result in billing. However, the health card number was necessary in order for the Appellant to bill for services. The Appellant’s position is that he collected the health card numbers in anticipation that the patients and their family members would receive an insured service that day. Even Dr. Anweiler confirmed that some patients, who had provided their health card information, were not billed. Thus, the argument goes, if the Appellant’s intention was to inappropriately bill OHIP, he would have billed for services for all patients from whom he collected a health card number.

[44] I am unable to accept this argument. First of all, the Appellant offered no alternative explanation. As he did not testify, it is he, rather than the Committee, who is speculating about his intentions and what he “anticipated” at the time. The Committee’s finding that the Appellant intentionally billed OHIP for services he did not provide is grounded in extensive direct and circumstantial evidence before the Committee and is entitled to significant deference. As the Committee states in its reasons, “the intentionality evident in Dr. Attallah’s routine, improper collection of health card numbers logically carries over to his approach to billing and maintaining charts.” The Appellant argues this is drawing one inference from another inference. I disagree. What the Committee is saying is that the same matrix of evidence which led the Committee to conclude that the Appellant intentionally collected OHIP numbers with no proper purpose, also led it to conclude that he intentionally billed OHIP improperly. There is no palpable and overriding error in concluding that the same evidence may support more than one inference.

[45] The Committee’s conclusion that the Appellant’s practice of intentionally overbilling OHIP potentially reflected a larger, purposeful pattern of actions over an extended period of time, between February 2006 and January 2010, was similarly reasonable. It was based on evidence that throughout this entire period the Appellant collected health card numbers and billed for services he did not render, pointing to a deliberate policy, rather than mere administrative error. In any event, the Committee did not make a specific finding about the total value of improper OHIP billing and none of its findings of professional misconduct turn on that fact, one way or another.

[46] I would not accept this ground of appeal.

(vi) Whether the Committee erred when it drew an adverse inference from Dr. Attallah’s decision not to testify

[47] After the close of the College’s case, the Appellant submitted that the College had failed to establish a prima facie case of disgraceful, dishonourable or unprofessional conduct. Accordingly, the Appellant elected not call a defence. That was, of course, his right, but his position that there was no case to meet was not binding on the College or the Committee.

[48] Now, the Appellant argues that an adverse inference is discretionary and can only be drawn after a prima facie case has been established by the College, which bears the burden of proof. He submits that the College failed to meet its burden of proving a prima facie case against him and that, as a result, no adverse inference may be drawn from the Appellant’s failure to testify.

[49] There is no merit to this argument. At the close of the College’s case there was ample evidence which, if left unanswered, could establish professional misconduct on a balance of probabilities. In these circumstances, it is well settled that an adverse inference may be drawn from the physician’s failure to testify without any implicit alteration of the burden of proof: Ontario (College of Physicians and Surgeons of Ontario) v Liberman, 2011 ONCPSD 13, pp. 85-87, aff’d 2013 ONSC 4066 at para 42; Ontario (College of Physicians and Surgeons of Ontario) v McIntyre, 2015 ONCPSD 25, at pp. 30-31, aff’d 2017 ONSC 116 (Div. Ct.), at paras. 34-35.

[50] I would reject this ground of appeal.

(vii) Whether Dr. Attallah’s actions amounted to disgraceful, dishonourable or unprofessional conduct

[51] The Appellant submits that not every act of professional misconduct or breach of standards of practice on the part of a physician amounts to “disgraceful, dishonourable, or unprofessional” conduct. The provision is “not intended to capture the legitimate exercise of professional discretion or mere errors of judgment and that “disgraceful, dishonourable, or unprofessional” conduct is not made out unless the element of intentionality on the part of the physician is proven. Moreover, not all professional or practice errors amount to professional misconduct. Something more than an error or even an act of professional misconduct is required for a finding of “disgraceful, dishonourable, or unprofessional” conduct. That “something more” can be either “moral failure”, or “a serious or persistent disregard for one's professional obligations.”

[52] The Appellant argues that the Committee failed to make any such findings of fact, or, if it did, that there was insufficient evidence upon which to base such findings. Thus, the Appellant submits, no disgraceful, dishonourable, or unprofessional conduct was made out. I do not agree.

[53] The determination by a discipline panel that conduct amounts to professional misconduct is entitled to significant deference:

In professional disciplinary appeals, [… i]mportant questions of mixed fact and

law calling for deference by a reviewing court will often include i) the standard

of practice the profession expects in any particular case, and ii) whether, on the

facts, the professional subjected to discipline has met that standard.

Al-Ghamdi v College of Physicians and Surgeons of Alberta, 2020 ABCA 71 at para 11. See also: Re Matthews and Board of Directors of Physiotherapy, 1987 4372 (Ont. C.A.), at para. 3; Salway v Assn of Professional Engineers & Geoscientists (British Columbia), 2010 BCCA 94 at paras 29-30.

[54] Contrary to the Appellant’s submissions, the Committee made express findings that the Appellant engaged in dishonest conduct and showed moral failings. The contention that the quantum of overbilling suggests “an administrative error” is directly contradicted in the Committee’s explicit findings. In any event, discipline committees of the College have routinely recognized that moral failure is not a precondition for a finding under this category of professional misconduct. As recently stated by the Committee in Ontario (College of Physicians and Surgeons of Ontario) v Rabiu, 2020 ONCPSD 15, at p. 26:

[D]isgraceful, dishonorable or unprofessional conduct is often referred to as a

broad catch-all provision, and “is intended to capture any improper misconduct

that is not caught by the wording of the specific definitions of professional

misconduct”. Further, “conduct need not be dishonest or immoral to fall within the definition. A serious or persistent disregard for one's professional obligations is sufficient.” […] The Committee finds that conduct can be unprofessional in

the absence of any element of moral failure.

[55] I would not give effect to this ground of appeal and, accordingly, would dismiss the Appellant’s appeal from the Committee’s finding of professional misconduct.

The Penalty of Revocation

[56] The Appellant submits that the penalty of revocation is clearly unfit because:

(a) the penalty is inconsistent with previous decisions in similar cases;

(b) the Panel’s failure to consider the quantum of improper billings was unreasonable; and

(c) the Committee’s failure to allow the Appellant to testify regarding the circumstances of his practice was an error in law.

[57] The Appellant submits that on a proper application of the law relating to penalty to these facts, revocation is not needed to meet the purpose of imposing a penalty: the need for public protection; maintaining the reputation and integrity of the profession and public confidence in the College’s ability to regulate the profession in the public interest; specific deterrence of the member; and general deterrence of the profession.

[58] The Committee acknowledged that many of the penalty precedents cited by both parties could be readily distinguished by virtue of the presence of aggravating and mitigating factors that were not present in this case. The Committee found however, that among the decisions released since 2010, the facts in Taylor were most like the facts in the present case: CPSO v. Taylor, 2016 ONCPSD 22 (liability) and 2017 ONCPSD 17 (penalty); Taylor v. CPSO, 2018 ONSC 4562 (Div. Ct.).

[59] The Committee observed that the facts in Taylor included deliberate billing for services not provided, falsification of patient charts, and the absence of prior discipline history or conviction for fraud. The Committee found that these facts were broadly similar to those in the present case, although it acknowledged that the physician in Taylor involved his employees more extensively in the improper conduct. The penalty of revocation in Taylor was upheld on appeal. The Committee found Taylor “useful” in determining the appropriate penalty in this case.

[60] The Appellant argues that the facts in Taylor are in no way analogous to the findings made by the Committee in this case and that aggravating factors that played “a dominant role in determining the appropriate penalty” in Taylor are not present in, and therefore not relevant to, the situation of the Appellant. The Appellant therefore submits that reliance on Taylor was an error which took the penalty of revocation imposed in this case outside of the range of similar penalties for similar findings of professional misconduct in other cases.

[61] The Appellant also submits that the quantum of billings in question was small relative to other cases that have come before other discipline committees. Indeed, the College only provided specific evidence of $4,152.18 questionable billings. There was also evidence, however, that the Appellant made what he termed an “ex gratia” payment of $9,214.85 to OHIP which he described as “a gratitude payment” for having the criminal charges against him withdrawn. He initially denied this was a “repayment” at all but later allowed that the amount represented billings for work that he had done in respect of which there may have been a “discrepancy”.

[62] Despite the College’s evidence and without making a specific finding about the amount of the billings actually associated with the unprofessional conduct in question, the Committee went on to “note” that “the quantum may in fact be higher than $9,000.00” and, the Appellant argues, used this suggestion to justify a higher penalty. In a somewhat contradictory passage, the Committee also held that “Regardless, whether the true quantum is small or large - whether Dr. Attallah’s dishonest actions yielded a small or a large financial gain - is of limited significance.” This too, the Appellant argues, was a marked departure from past decisions.

[63] Finally, the Appellant argues that during the penalty hearing, the Committee refused to allow him to give evidence addressing the College’s allegations of fraud and deceit. The Appellant argues that his insights into the billings was a relevant factor for the Committee to consider in arriving at its decision. The failure to allow the Appellant to testify about these issues was an error in law.

[64] I am unable to accept any of these arguments.

[65] The range of penalties imposed by the Discipline Committee for intentional, premeditated overbilling of OHIP has included revocation for the past 20 years. This recognizes the seriousness of misconduct involving deception, dishonesty and breach of the high public trust granted to physicians. A review of the cases cited by the Appellant shows that revocation has been imposed (or would have been imposed, had the member not already resigned) in numerous cases involving similar misconduct, including Taylor, Kumra, Chandra, Patel and Scott.

[66] In the majority of cases cited by the Appellant, where a suspension was imposed instead of revocation, the physician had shown insight and remorse. The Committee specifically found a lack of any remorse on the Appellant’s part. It found that this was not an aggravating factor but found that lack of insight is, nevertheless, a key consideration in determining what penalty is necessary to protect the public. Here, the Committee made an express finding that the Appellant lacked insight into the nature and consequences of his actions. The Committee noted that Dr. Attallah put forward no remediation plan and no practice plan to ensure that the public would be protected in the future. Nor did he lead any evidence that he had undergone training or education in ethics. He had no plan for oversight for his proposed return to practice. The only change he said he would make was to no longer collect health cards from family members in the future.

[67] The Committee determined that supervision and/or monitoring would not be realistic or sufficient as it would require constant supervision during patient encounters. In addition, due to the Appellant’s lack of insight, it was unlikely he would change his behaviour.

[68] The Committee was not blind to the differences between the Taylor and the present case. It acknowledged the differences and explained why Taylor nonetheless provided an adequate precedent.

[69] The Committee noted that improper billing under the OHIP “honour” system has remained a persistent and serious problem. As early as 2002, a discipline committee of the College warned that physicians should expect much harsher penalties for intentional overbilling in the future. Further, penalties for misconduct associated with intentional, improper OHIP billing have increased over the past 20 years.

[70] Revocation was clearly within the range of penalties available to the Committee. The Committee considered the relevant factors and determined that revocation, while a serious penalty, was necessary to protect the public, promote public confidence in the profession and serve as general deterrence to the membership. It expressly noted that the Appellant could reapply for membership after one year. As this court stated in Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041, at para. 127 (motion for leave to appeal dismissed, 2016 ONCA 779), the “penalty imposed was on the high side of the scale of an appropriate penalty, but was in the range”.

[71] The Committee did not prevent the Appellant from testifying at his penalty hearing but did refuse to admit evidence that it determined could only serve as a collateral attack on its liability decision. It did not err in doing so. Where defence counsel in a professional discipline matter opts for the tactical advantage of not calling the respondent at the merits hearing, the respondent could not subsequently be permitted to testify during the penalty phase in an effort to rebut the core evidence heard by the panel during the liability phase. This would be a fundamental abuse of the principle of finality and of “time-honoured and accepted” trial and sentencing procedures : R. v. Braun, 1995 16075 (MBCA), at p. 451.

[72] The evidence that was excluded by the Committee could only have served to undermine the Committee’s finding that the overbilling was improper and intentional. It was not evidence about “insight” and was not tendered as such. Defence counsel at the merits hearing (who was not counsel on the appeal) specifically told the Committee that “To be clear, though, my submission was not particularly that this evidence would be relevant to Dr. Attallah’s insight into the conduct that was alleged…”

[73] Assessing penalty is at the heart of the discretion of a professional discipline panel and should be interfered with only if the panel commits an error of principle, or the penalty is clearly unfit. No error in principle has been shown. The penalty imposed, in the circumstances of this case, cannot be said to be clearly unfit.

[74] I would dismiss the Appellant’s appeal on penalty.

Conclusion

[75] For the foregoing reasons, I would dismiss the appeal.

Costs

[76] The parties agreed that costs of $10,000 should be awarded to the successful party. Costs are therefore payable by the Appellant to the College in this amount (all inclusive).

Penny J.

I agree _______________________________

Edwards R.S.J.

I agree _______________________________

Doyle J.

Released: May 25, 2021