Casella v. Ontario (College of Chiropodists), 2024 ONSC 899

DIVISIONAL COURT FILE NO.: 332/23

DATE: 20240216

Sachs, Backhouse and Lococo JJ.

BETWEEN:

Angelo Casella

Appellant

– and –

The College of Chiropodists of Ontario

Respondent

Howard L. Krongold and Zoë Hountalas for the Appellant

Amy Block for the Respondent

HEARD at Toronto via video conference: January 16, 2024

By the Court:

Overview

1. The Appellant, a licenced chiropodist, appeals from misconduct findings of the Discipline Committee (the “Committee”) of the College of Chiropodists of Ontario (“the College” or “the Respondent”) dated January 13, 2023 (the “Liability Decision”), reported at 2023 ONCOCOO 1. He also appeals from the costs award of $70,000 dated May 13, 2023 (“Costs Decision”), reported at 2023 ONCOCOO 4. The Appellant was found to have failed to comply with a 2021 Discipline Order that suspended his certificate of registration for seven months for engaging in inappropriate business practices, offering inappropriate cash incentives to patients and submitting false documentation to the insurance company with the intention that the patients’ benefit plan pay for the incentives.

2. The Appellant submits that the Committee erred in finding that he violated his suspension by getting paid a modest salary by his professional corporation during the period of his suspension for working at his clinic with no patient contact and performing tasks that a non-professional staff member could perform. While the Appellant admitted that his website continued to describe him as a “chiropodist” during the period of his suspension (and that this supported one count of misconduct), he argued that this was an oversight and that the Committee erred in finding that this supported three other misconduct findings.

3. The Appellant also seeks a reduction in the costs award. He argues that the costs awarded were unreasonable and disproportionate.

4. For the reasons set out below, the appeal is dismissed. In summary, the Committee did not err in finding that the plain and ordinary meaning of suspension is a temporary removal of the member from their practice. A member who is suspended is required to either close their practice or transfer it to another. A member cannot subvert a suspension by continuing to hold themselves out as a practicing chiropodist, continuing to assume responsibility for regulated activities such as sterilization of medical instruments, and continuing to compensate themselves from the practice of chiropody by paying themselves a salary from patient- generated revenue. The College is duty bound to regulate the profession in the public interest. The question of what constitutes professional misconduct falls squarely within the bailiwick of the Committee.

5. Section 53.1 of the Health Professions Procedural Code[^1] (the “Code”) confers on the Committee broad discretion to order costs against a member. The Committee’s costs award is entitled to significant deference; a court should not interfere unless the adjudicator made an error in principle or was plainly wrong. There are no grounds to interfere with the costs award in this case.

Background

The 2021 Discipline Proceeding

6. In a June 25, 2020 Notice of Hearing, the College alleged that the Appellant, a licensed chiropodist practicing in Hamilton, engaged in professional misconduct from approximately August 2019 to January 2020. The particulars of those allegations are set out in the Committee’s Decision and Reasons dated August 5, 2021, reported at 2021 ONCOCOO 5. The Appellant admitted that he offered and provided a cash incentive to patients for the purchase of orthotics, charged excessive costs to insurance companies and failed to provide adequate or any follow-up care to his patients. On June 15, 2021, the Committee accepted the parties’ Joint Submission as to Penalty and Costs (the “June 2021 Order”), which terms in part were:

2. An order suspending the Member’s certification of registration for a period of seven (7) months commencing thirty (30) days following the date of the Discipline Committee’s decision;

3. An order directing the Registrar to impose terms, conditions, and limitations on the Member’s certificate of registration requiring the following:

(a) The Member is prohibited from imaging, casting, prescribing, constructing, fitting, dispensing and/or ordering the fabrication of orthotics for a period of twelve (12) months (the “Restricted Period”), which will commence at the conclusion of the Member’s suspension period referred to in paragraph 2 above. The Member is additionally not entitled to assign these duties to anyone else in his clinic, regardless of whether he receives a fee or not, during the Restricted Period, but shall refer such duties to another member of the College in good standing at another clinic not affiliated with the Member’s clinic.

(b) At his own expense, the Member will receive supervision of his chiropody practice with a supervisor approved by the Registrar for a period of twelve (12) months from the date on which the Member returns to practise from the suspension. The terms of the supervision are as follows: …

7. The Appellant’s seven-month suspension did not begin immediately following the June 2021 Order. He was granted a 30-day stay of the suspension for the express purpose of allowing him time to either properly close or transfer his practice to others.

The College’s Discontinuation of Services Advisory

8. The College’s Discontinuation of Services Advisory, which was posted on the College’s website, provided members with guidance on the steps required to close their practices, including in circumstances related to licence revocations and suspensions. This included notification to patients regarding the closure of the practice and the transfer of records and patients to another member of the profession. The Advisory also reminds persons who are suspended that they are not permitted to say that they are a member of the College and/or use the title “chiropodists” or “podiarists” and that this is an offence under the Chiropody Act, 1991, S.O 1991, c. 20. The Appellant’s evidence is that he did not consult the Advisory on being suspended.

9. Shortly after the Appellant’s first suspension terminated, the College adopted Suspension Guidelines which state, among other things, that a suspended member must not benefit or profit from the practice of chiropody. The Deputy Registrar, Meghan Clarke, testified at the hearing that Suspension Guidelines were adopted because there was a need to clarify for members who were suspended “what practicing meant and what they could do and could not do in their hiring a locum”. Ms. Clarke’s undisputed evidence was that the Guidelines merely set out the College’s expectations for conduct during a suspension; it did not alter members’ existing obligations or the College’s interpretation of those obligations prior to its adoption, which that College says were the same as set out in the Guidelines.

10. The Appellant relies upon the fact that the Suspension Guidelines did not exist during his suspension and were only adopted three days after his first suspension terminated. His submission is that during his suspension, there was no prohibition on benefitting from the practice of chiropody and a suspension did not necessarily imply such a prohibition.

The Appellant’s Health Profession Corporation

11. Before and throughout the suspension, the Appellant operated his clinic through his health profession corporation. He was, and continues to be, the sole owner of the clinic.

12. A professional health corporation is a particular kind of corporation created by statute. Under the Code, one or more members of the same health profession, including chiropodists, may establish a health profession corporation “for the purpose of practising their health profession.” Unlike a regular corporation, a health profession corporation owned by a chiropodist must be fully owned by one or more chiropodists and cannot carry on a business other than the practice of chiropody.[^2] Chiropodists are only permitted to practise through health profession corporations upon receiving a certificate of authorization from the College. While the Appellant notes that his certificate of authorization was not revoked by operation of his suspension, as set out in the Code, a member’s professional obligations apply equally to their corporations, and to its directors, officers, shareholders, and employees, and are not diminished by the fact that a member is practicing through a health corporation. The Code is explicit that “[i]n the course of practising a health profession, a health profession corporation shall not do, or fail to do, something that would constitute professional misconduct if a member of the health profession did, or failed to do, it.”[^3]

13. The Appellant’s clinic remained open during the suspension period. The Appellant entered into oral contracts with locum chiropodists who were compensated by the Appellant’s corporation on a per-patient basis. The locums were not involved in the management of the clinic. Throughout the suspension, the Appellant, through the corporation, processed the payments of patients treated by the locums into the clinic’s bank account which he controlled. The Appellant paid the locums by cheque a percentage of patient-generated revenue. From the remaining amount of these patient generated revenues, throughout the suspension period, he paid clinic expenses, his own salary (which was the same as the salary he paid himself prior to his suspension) and accrued vacation.

The Clinic’s Website

14. The Appellant failed to amend the clinic’s website during the period of his suspension. The Appellant’s position was that this was an honest mistake. The Appellant’s evidence was that the only way to book an appointment through the website was to phone the clinic where the person would have been told that they would not be seeing the Appellant because he was not practicing chiropody. The Appellant submits that there was no evidence that any patients were misled as a result of the website.

15. Through his website, the Appellant identified himself to the public as a chiropodist, held himself out as practising the profession and advertised that his chiropody services were available at the clinic, including by making the following statements:

a) “Chiropodist Angelo Casella does an initial assessment and provides a treatment plan to reduce pain and prevent foot problems.

b) Angelo Casella, BSc. D.Ch. MSc. (Podiatry).

c) Angelo Casella recently completed his Masters in Podiatry (MSc. Podiatry) from Queen Margaret University.

d) Angelo has been providing a wide range of foot care for his Hamilton area patients, including orthotics and orthopaedic footwear, since 1990.

e) We provide a full range of orthotic inserts (from soft accommodative to firm support braces) for all ages.

f) With proper assessment and routine foot care by a qualified Chiropodist, many of these diabetic foot complications can be treated and/or prevented. At the West Mountain Footcare Clinic, we see many diabetics for routine foot assessments and treatment.

g) Feel free to make an appointment for a foot assessment and treatment plan.

h) [Have] your doctor fax a referral to our office, 905 538-6805.

i) We assess all foot injuries and provide personalized treatment plans to assist in recovery.”

16. The Appellant was the only chiropodist identified on the clinic’s website as available to offer these services. While the Appellant asserted that through inadvertence, he kept his website live during his suspension, he acknowledged on cross-examination that he did not take his website down even after having been notified of the concern during the College’s investigation.

Appellant’s activities at the clinic during the suspension

17. Throughout the suspension, the Appellant attended at the clinic outside of business hours for the purpose of cleaning, sterilization of medical instruments and administrative tasks.

The Committee’s Liability Decision

18. On January 13, 2023, the Committee found that the Appellant engaged in professional misconduct by not fully abiding by the terms of the June 2021 Order. More specifically, the Committee found that during the period from about June 2021 to February 2022, the Appellant engaged in professional misconduct by: signing or issuing, in the member’s professional capacity, a document that contains a false or misleading statement; contravening sections of the Chiropody Act and, the Regulated Health Professions Act, or regulation under those Acts; engaging in conduct or performing an act, in the course of practising the profession that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional; and failing to comply with an order of the Complaints Committee, the Discipline Committee or the Fitness to Practise Committee.

19. The Committee found that:

The Member failed to adequately remove himself from the practice of chiropody during his period of suspension, contrary to the June Order. In particular, his failure to revise his Clinic’s website, his continued involvement in sterilizing instruments at the Clinic, and his decision to continue to collect a salary from his health profession corporation effectively violated the June Order and amounts to professional misconduct, as alleged.[^4]

20. The Committee accepted that the Appellant “took adequate steps to ensure that he did not perform any chiropody services himself while he was suspended”[^5] but found that “engaging in the practice of chiropody includes more than simply performing a chiropody service on a patient. In the Committee’s assessment, it also includes continuing to hold yourself out as a chiropodist and doing things that only a member of the College or a person supervised by that member can do.”[^6]

21. The Committee held that sterilizing instruments was contrary to the June 2021 Order because such sterilization is “governed by the Infection Control Standard of the Practice and is limited to members of the College or to members’ staff, delegated to do so and who are overseen by a member” whereas the Appellant “undertook this task without transferring responsibility for the supervision or monitoring of the sterilization process to a current member.”[^7] The Committee also held that the Appellant’s “decision to continue to receive a salary from the revenue generated by the chiropody services performed at the Clinic is contrary to the intent of the June Order.”[^8]

The Committee’s Penalty and Costs Decision

22. In its Penalty and Costs Decision dated May 13, 2023, the Committee found that a $70,000 costs order against the Appellant, payable over 24 months, was reasonable. The Committee found that the Appellant’s actions “did not amount to compliance and revealed a disregard for his professional obligations and for the Discipline Committee’s process.”[^9] The Committee further wrote:

It is important that [the Member] and the membership at large understand that compliance with orders made by College committees is at the heart of professional self-regulation. The Member did not comply with the June Order. He continued to benefit from the practise of chiropody. The penalty must be sufficiently serious so as to deter such behaviour.[^10]

Issues

23. The Appellant raises the following issues on this appeal:

24. Did the Committee err by finding that the Appellant breached the June 2021 Order by benefitting from the practice of chiropody?

25. Did the Committee err by finding that the Appellant engaged in prohibited actions with respect to medical instruments or sterilization equipment?

26. Did the Committee err by finding that the Appellant’s failure to update his website supports four misconduct findings?

27. Did the Committee err in its Costs Decision?

Court’s Jurisdiction

24. The Divisional Court is authorized to hear appeals on questions of law or fact or both with respect to proceedings before the Committee and has all the powers of the Committee that dealt with the matter: Code, ss. 70(1) and (2).

Standard of Review

25. In accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the standard of review is correctness on questions of law, palpable and overriding error on findings of fact, and palpable and overriding error on questions of mixed fact and law (absent an extricable question of law).

26. To the extent the issues raised on this appeal challenge the Committee’s findings that the Appellant failed to comply with the June 2021 Order, including the Committee’s assessment of the Appellant’s conduct during the period of suspension, the appeal raises a question of mixed fact and law reviewable only for palpable and overriding error.[^11] Palpable and overriding error is a highly deferential standard which recognizes the expertise and competence of the Committee.[^12]

27. The standard of review that applies to an appeal of a costs award is one of considerable deference. A costs award should be set aside on appeal only if the adjudicator made an error in principle or was plainly wrong: Kennedy v. College of Veterinarians, 2018 ONSC 3603, at para. 24, citing Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.

Analysis

Issue 1: Did the Committee err by finding that the Appellant breached the June 2021 Order by benefitting from the practice of chiropody?

28. The Appellant submits that at the time of his suspension, there was no regulatory prohibition on a suspended member benefitting from the practice of chiropody by others. While it was submitted in the Appellant’s factum that professional discipline statutes are to be strictly construed, at the hearing of this appeal, counsel for the Appellant conceded that a broader interpretative approach is the correct approach, namely the balancing of the public interest and the fair hearing rights of the accused, as set out in in Court of Appeal’s decision in Abdul v. Ontario College of Pharmacists, 2018 ONCA 699, 142 O.R. (3d) 682, at para. 18.

29. It is settled by the Supreme Court that professional discipline proceedings are not criminal (or quasi-criminal) in nature.[^13] Successive Supreme Court and Court of Appeal decisions call for a broad and purposive approach to interpretation, to permit professional disciplinary bodies to fulfill their onerous public protection mandate.[^14] As the Court of Appeal has confirmed on multiple occasions, the Discipline Committee of the College is required to interpret its powers “with a view to protecting the public interest in the proper regulation of the profession”.[^15]

30. The Appellant argues that nothing in the regulatory framework necessarily implies that a suspension always prohibits a suspended member from benefitting from the practice of chiropody. The Appellant submits that the Code provides flexibility to the health professions to tailor regulations which address what each profession’s members who are suspended can do regarding benefitting from the practice of their profession during suspension. The Appellant argues that it is not self-evident from the legislative scheme what a suspension entails. He submits that either promulgating regulations or setting this out in the order of suspension is required, neither of which was present here.

31. Approximately half of Ontario’s health profession colleges specifically hold that it is professional misconduct for a member to benefit from the practice while under suspension, although all but one offer an exemption if the member discloses the benefit and obtains permission. The Appellant submits that if suspension necessarily precludes a suspended member from profiting from the practice during their suspension, the colleges would not have the authority to make an exemption. The Appellant argues that he was not on notice that he could not be remunerated for the work that he performed at the clinic while suspended (which he characterized as mostly janitorial services). The June 2021 Order did not prohibit the Appellant from benefitting from another’s practice of chiropody, and the Appellant should not be bound by the intent specified by the Committee after the fact in deciding the Liability Decision.

32. The Committee acknowledged that the College did not have written suspension guidelines in place at the time of the Appellant’s suspension and that it therefore did not measure the Appellant’s conduct against the Guideline for Suspension approved after the completion of the Appellant’s suspension. The Committee also accepted that there was no specific guidance offered by the College at the time to clarify for the Appellant how and to what extent he could continue to use his corporation to maintain his clinic. However, it found that if he had any questions, he had resources available to him, including the College and his counsel. The College’s uncontradicted evidence, as noted above, was that the Guidelines merely formalized for members the options available to them: while suspended, the member either closes their practice or transfers the practice to a locum but is not permitted to profit or benefit from that engagement.

33. The Committee accepted that there was no prohibition against the Appellant using his corporation to issue invoices, pay staff and locums and to maintain the clinic’s business operations. But it found that by authorizing his corporation to pay him a salary from funds derived from chiropody services throughout the period of suspension, the Appellant violated the intent and purpose of the June 2021 Order.

34. The fact that other health colleges have passed a regulation enumerating “benefiting or profiting from the practice of the profession during a suspension” as a separate head of misconduct is not determinative as to whether the Appellant failed to comply with the June 2021 Order. The fact that the College had not enacted regulations creating an independent head of misconduct for “prohibiting a member from benefiting during suspension” does not mean such conduct may not be captured elsewhere, under a more general head of misconduct, such as “failing to comply with an order of the “Discipline Committee.”

35. The Appellant was advised that he was required to either wind down his practice and close it for seven months, or transfer it to a locum chiropodist who would assume responsibility for its operations. The Committee found in its Liability Decision:

41. The Member was present for the hearing which resulted in the June Order. The hearing was a consent hearing, meaning that the Member admitted to the allegations before that panel and was presumably involved in the discussions and negotiations which ultimately led to the terms set out in the June Order. He knew or ought to have known that the June Order, including the lengthy period of suspension was meant to be onerous.

36. The Appellant was found in the June 2021 Order to have engaged in inappropriate business practices, offering inappropriate cash incentives and submitting false documentation with the intention that a third party fund these incentives. There is nothing unreasonable in the Committee’s assessment that the Appellant’s ensuing suspension would be significantly denuded in its effect if he was permitted to continue to engage in and profit from the practice of chiropody during the period of suspension.

37. The context in which the Committee found the Appellant to have breached the June 2021 Order by benefitting from the practice of chiropody is important. His June 2021 suspension was based on a finding that he engaged in fraudulent business practices. The Appellant admitted to the Committee that throughout the period of his suspension pursuant to the June 2021 Order, he continued to hold himself out to the public on his website as a chiropodist. This cannot be characterized as a mere oversight. The website was the Appellant’s primary presentation of himself to the public as a professional where he continued to hold out his status as a chiropodist open for business.

38. The Appellant’s characterization of the work he remunerated himself for while suspended (a janitor at the clinic) does not accord with the Committee’s findings, which were that the Appellant performed work restricted to members of the College (supervision or monitoring of the sterilization of medical instruments and infection control) and failed to extricate himself from his practice as required by his suspension.

39. The fact that a Suspension Advisory came out shortly after the Appellant’s suspension does not absolve the Appellant from turning over and transferring his practice. The Appellant knew that he was required to turn over his practice, which he never really did. Instead, he figured out a way to make money from it without fully handing it over. In fact, as the Committee found, he paid himself the same salary while he was suspended as he did before he was suspended. From a protection of the public perspective, allowing members to operate in this way during a period of suspension would undermine the deterrent effect that suspensions are supposed to have on members’ conduct. Given the context, there is no palpable or overriding error in the Committee’s finding that the Appellant breached the June 2021 Order by benefitting from the practice of chiropody.

Issue 2: Did the Committee err by finding that the Appellant engaged in regulated activities with respect to sterilization of medical instruments?

40. The Appellant submitted that the Committee erred in finding that he engaged in the practice of chiropody while suspended by playing a role in helping the locum chiropodists sterilize their medical instruments. The Appellant submitted that there were three contract chiropodists at the clinic during his suspension and they were aware of his suspension: they had obligations to ensure that the Infection Control Standard was met. The Appellant submitted that he was not ultimately responsible.

41. In the negotiated Statement of Facts which was before the Committee, the Appellant admitted to being involved in sterilizing instruments. Although the Committee recognized that any staff member could perform the sterilization tasks the Appellant performed, it found that because there was no authorized chiropodist who was responsible for the sterilization of the instruments, the Appellant was acting as a chiropodist.

42. The Committee found that the act of sterilizing instruments is governed by the Infection Control Standard of the Practice and is limited to members of the College or to members’ staff, delegated to do so and who are overseen by a member. Members are ultimately responsible for training staff and monitoring the process. The Committee found that the Appellant undertook this task while under suspension and therefore while not a member of the College. The Committee found that the Appellant failed to affect the transfer of the regulated activity of the supervision or monitoring of the sterilization and infection control to another regulated member.

43. The fact that locum chiropodists may also be responsible for failures to adhere to infection prevention and control obligations does not absolve the Appellant from his obligation to transfer his practice while suspended, including the ultimate responsibility for sterilization.

44. There is no palpable and overriding error in the Committee’s finding that by failing to extricate himself from his practice and failing to affect the transfer of the regulated activity for the supervision or monitoring of the sterilization of instruments and infection control to another regulated member, the Appellant failed to comply with the June 2021 Order.

Issue 3: Did the Committee err by finding that the Appellant’s failure to update his website supports four misconduct findings?

45. The Appellant admitted that when suspended, he erred in failing to take down or correct his clinic’s website, which described him as a chiropodist before his suspension. He submitted that this was an oversight and there was no basis to think any patient was materially misled by the mistake. The Appellant concedes that he was represented on the website as a practicing chiropodist while he was suspended. But he submitted that the Committee erred in finding that this single act also supported its three other misconduct findings: that the Appellant had issued a false document; engaged in disgraceful, dishonourable, or unprofessional conduct; and breached the suspension order.

46. The Appellant does not challenge the finding that the failure to remove references to him as a chiropodist from his clinic’s website is misconduct (under allegation 3(a)(iv)), but he submits that this is insufficient to establish the other three misconduct allegations. He submits that he did not “sign or issue a false or misleading document” as alleged, particularly as the alleged misconduct is found under the “Record Keeping and Reports” heading in the regulations and is concerned with promulgation of fraudulent documents. Further, not all misconduct is disgraceful, dishonourable, or unprofessional: this heightened standard does not capture mere errors in judgment. Finally, he argues that the failure to update his website was not a breach of the suspension order.

47. It is settled law that one set of facts may ground multiple findings of professional misconduct. While the Appellant asserted that his failure to amend his website was an “honest” mistake, the Committee was “left with the impression that the Member did everything he could to minimize the negative impact the suspension would have on him personally”.[^16] The Committee found the onus lies on the Appellant to ensure he was not holding himself out in any communication or on any platform as a chiropodist,[^17] and that the Appellant had ample time in the 30-day period to ensure the website was accurate.[^18] The Appellant acknowledged not having read the Discontinuation of Services Advisory which alerted him directly to this.

48. Reading the Code broadly pursuant to the Committee’s mandate to protect the public, a finding that the Appellant continued to hold himself out as a chiropodist during his suspension by not updating his public profile on the website could reasonably come within the Professional Misconduct Regulation, s.1(20), made under the Chiropody Act: “Signing or issuing in the member’s professional capacity a document that contains a false or misleading statement.”

49. Moreover, the Appellant’s website contravened the advertising regulation by broadcasting false and misleading information.[^19] Even in the absence of moral turpitude, or abject dishonestly, misguided conduct which is not disgraceful is nonetheless unprofessional and accordingly can support a finding of professional misconduct under the head “disgraceful, dishonourable or unprofessional. Breaching College undertakings or College orders, even inadvertently, routinely amounts to “disgraceful, dishonourable or unprofessional” conduct.[^20]

50. There was no palpable and overriding error in finding that the Appellant breached the June 2022 Order, the Chiropody Act, the Regulated Health Professions Act, 1991 or regulations under those Acts.

Issue 4: Did the Committee err in its Costs Decision?

51. The Appellant concedes that if he is unsuccessful in his liability arguments, he is not asking this court to adjust the penalty.

52. The Appellant submits that the quantum of costs awarded was demonstrably excessive. The liability hearing lasted 1.5 days during which the Appellant admitted nearly the entirety of the College’s case. The Appellant argues that the costs award greatly exceeds awards for regulated health professions where a costs tariff is in place. He further submits that it does not appear that the court has ever upheld a costs award of this magnitude for such a short, streamlined hearing and that the Committee offers no meaningful explanation for its unprecedented costs award.

53. The College presented a detailed Bill of Costs to the Committee. The Appellant did not. A comparison of parties’ bills of costs is frequently how an appropriate amount for costs is determined. The Appellant argued that the file was overworked and the costs disproportionate. The Committee looked at the evidence, heard the submissions and gave reasons. In these circumstances, it would be inappropriate to second guess the Respondent’s Bill of Costs, especially since the Appellant failed to provide one of the main bases on which a court can assess whether another party’s costs are disproportionate—their own bill of costs.

54. Section 53.1 of the Code grants the College broad discretionary power to make costs orders. A Committee’s costs award is entitled to significant deference; a court should not interfere unless the adjudicator made an error in principle or was plainly wrong. The Committee recognized that the amount ordered was significant but found that it reflected approximately two-thirds of the actual costs incurred, and that this was a reasonable amount for the Appellant to pay given the need to ensure that the membership at large is not left with the burden of paying a disproportionate share of the costs associated with proceedings generated as a result of another member’s misconduct. While the Appellant argued that the Alberta Court of Appeal has taken a different approach to the awarding of costs in professional regulatory proceedings ( a large portion of the costs should be borne by the membership), that case is not binding on us and is not consistent with the approach taken by the Ontario courts.

55. The tariff rates set by other Colleges do not bind or limit the Committee’s statutory discretion to award costs.

56. There is no error in principle or other basis for this court to intervene with respect to the costs award.

Conclusion

57. A member cannot subvert a suspension by continuing to hold themselves out as a practicing chiropodist, continuing to assume responsibility for regulated activities of the practice, and continuing to compensate themselves from the practice of chiropody by paying themselves a salary from patient- generated revenue. The College is duty bound to regulate the profession in the public interest. The question of what constitutes professional misconduct and the attendant costs are matters that fall squarely within the bailiwick of the Committee. There is no palpable and overriding error and no error of law or principle. The appeal is dismissed.

Costs of the Appeal

58. In accordance with the parties’ agreement on costs, the Respondent shall be entitled to costs of the appeal in the all-inclusive amount of $10,000.

Backhouse J.

Sachs J.

Lococo J.

Released: February 16, 2024

CITATION: Casella v. Ontario (College of Chiropodists), 2024 ONSC 899

DIVISIONAL COURT FILE NO.: 323/23

DATE: 20240216

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Lococo JJ.

BETWEEN:

Angelo Casella

Appellant

– and –

The College of Chiropodists of Ontario

Respondent

REASONS FOR JUDGMENT

By the Court

Date of Release: February 16, 2024

[^1]: Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

[^2]: Code, s. 85.11(1).

[^3]: Code, s. 85.14.

[^4]: Liability Decision, at para. 4.

[^5]: Liability Decision, at para. 29.

[^6]: Liability Decision, at para. 30.

[^7]: Liability Decision, at para. 32.

[^8]: Liability Decision, at para. 40.

[^9]: Penalty and Costs Decision, at para. 22.

[^10]: Penalty and Costs Decision, at para. 23.

[^11]: Law Society of Ontario v Diamond, 2021 ONCA 255, 458 D.L.R. (4th) 603, at para.39.

[^12]: Housen, at paras.12-13.

[^13]: Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R (4th) 328, at paras. 48, 54.

[^14]: Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at paras. 35-36; Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, at paras. 93-101; Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546. 96 O.R. (3d) 241, at paras. 17, 29.

[^15]: Abdul, at. 16; Sazant, at para. 101.

[^16]: Liability Decision and Reasons, para.51.

[^17]: Liability Decision and Reasons, para. 31.

[^18]: Liability Decision and Reasons, para. 31.

[^19]: Section 7(1) of O. Reg 203/94 made under the Chiropody Act, 1991.

[^20]: Ontario (College of Physicians and Surgeons of Ontario) v. Maytham, 2007 ONCPSD 25; Ontario (College of Physicians and Surgeons of Ontario) v. Savic, 2019 ONCPSD 4; Gutman v. College of Physicians and Surgeons of Ontario, 2018 ONSC 6936 (Div. Ct.) at para. 3.