March 26, 2018

Concurrent penalties for the same misconduct: registrants in multiple jurisdictions

Administrative Law
Professional Regulation

A Saskatchewan court recently considered whether a decision of the College of Physicians and Surgeons of Saskatchewan (“CPSS” or the “Sask. College”) to strike Dr. Horri’s name from the register, with no right to reapply for a nine-month period, was a reasonable penalty for his having engaged in a sexual relationship with a former patient in Ontario, even though the College of Physicians and Surgeons of Ontario (“CPSO” or the “Ont. College”) had already revoked his Ontario licence, with no right to reapply for a one-year period: Horri v College of Physicians and Surgeons of Saskatchewan, 2017 SKQB 362 (“Horri”).

Dr. Horri was a licensed physician in both Ontario and Saskatchewan. Disciplinary proceedings in both provinces related to Dr. Horri’s having engaged in a sexual relationship with a former patient in Ontario. In March 2017, the Ont. College revoked Dr. Horri’s medical license. Under Ontario regulations, Dr. Horri could not apply for reinstatement for one year. [7-8] Dr. Horri subsequently appealed the penalty decision, which automatically stayed the penalty. [9] The Sask. College then struck him from its register, with no right to reapply to have his name restored for nine months, and a further condition that he attend counselling for boundary breaches before reapplying. Dr. Horri appealed the Sask. College’s decision to the Queen’s Bench.

Dr. Horri raised numerous arguments, none of which the court accepted. Dr. Horri contended that the Sask. College penalty was unreasonably punitive when considered cumulatively with the Ont. College penalty. Counsel had argued that, “Dr. Horri will be unable to practice medicine for at least 21 months between the two provinces.” [34] The court decided, however, that this argument was “disingenuous” as each penalty was specific to Saskatchewan or Ontario and could not be added together. The court noted that Dr. Horri had returned to Ontario to practice after his suspension in Saskatchewan. Further, Dr. Horri did not expect a decision regarding his appeal of the CPSO penalty until Spring 2018, allowing him to practice in the interim. As a result, the court found that, “it is extremely unlikely that there will be any cumulative effect on the penalty issued by the CPSS.” [38] The court decided the CPSS decision to revoke Dr. Horri’s license, with no right to reapply for 9 months, was reasonable.

Dr. Horri raised other arguments: (a) that the Sask. College failed to conduct its own analysis and simply followed the Ont. College’s decision; (b) that the Sask. College failed to consider mitigating factors; and (c) that the Sask. College’s requirement that he seek counselling was inappropriate.

The Sask. College considered a number of Saskatchewan cases in reaching its decision, as well as the impact of the Ont. College’s penalty on any CPSS penalty. [24] Ultimately, the Sask. College followed prior Saskatchewan decisions to impose a nine-month revocation, compared to CPSO’s one-year revocation.

While the Sask. College considered “some but not all” of the mitigating factors, its decision was reasonable. [49] Specifically, Sask. College had not considered the mitigating nature of Dr. Hori’s admission of guilt [47] or Dr. Horri’s clean disciplinary history after the subject of the proceedings. [45] In finding the decision reasonable, the court relied on s. 69.1 of the Medical Profession Act, 1981, SS 1980-81, c M-10.1, which sets out that “the protection of the public and safe and proper practice shall take priority over the rehabilitation, treatment and welfare of a person registered under this Act.”

Finally, the court found the requirement that the registrant attend counselling, as a condition of his re-applying, was reasonable. [52]

Note: While the court concluded in the Horri case that the tribunal did fail to consider specific mitigating factors, such a conclusion does not necessarily arise from a tribunal merely being silent about specific factors. Indeed, the same court has noted ,in the earlier case of College of Physicians and Surgeons of Saskatchewan v. Ali, 2016 SKQB 42, that “reasons do not have to address all arguments presented” (at para. 69). Thus, the court concluded in the Ali case that, “from reading the reasons of Council as a whole that it did not fail to consider these matters but concluded that to the extent these matters might have been mitigating factors, they were outweighed by the factors relied on by Council…”

Horri v College of Physicians and Surgeons of Saskatchewan, 2017 SKQB 362

Lisa C. Fong, Michael Ng and Will Pollitt