September 21, 2010

Sexual Misconduct Series: Zero tolerance policies upheld in Ontario

Administrative Law
Professional Regulation

On the scale of how professions allow, selectively allow, or prohibit sexual relations between members and clients or former clients, health professions typically stand at or near the point of complete prohibition. This is illustrated in the case of recent case of Leering (2010 Ont).

Dr. Leering was a chiropractor who began giving chiropractic treatments to his common-law spouse. When the personal relationship ended, his former common-law spouse complained to the College regarding Dr. Leering’s attempts to collect unpaid fees for his chiropractic services. The College determined that Dr. Leering should be charged with sexual abuse. After a hearing, the Discipline Committee Panel found Dr. Leering guilty of professional misconduct for sexual abuse and revoked his certificate of registration.

Dr. Leering appealed the decision of the Discipline Committee Panel to the Ontario Divisional Court which overturned the Panel’s decision. The Court found the College’s code relating to sexual abuse was not meant to apply to situations where the sexual relationship began before the professional relationship, and therefore the Panel failed to ask itself the right questions in considering Dr. Leering’s conduct. It also found no evidence the consent to sexual activity was tainted by, or suspect because of, a power imbalance. The Court set aside the Panel’s decision and its penalty, and remitted the matter back to the College for a new hearing.

The College appealed to the Ontario Court of Appeal, which restored the Panel’s decision. The Court of Appeal held the Panel was correct in following the zero-tolerance mandatory revocation provision under the College Code in situations where a member had sexual intercourse with a patient, and therefore made a reasonable decision. The Divisional Court erred in law by not according deference to the Panel’s expertise by finding that it should have inquired into whether the sexual relationship of the parties arose out of their spousal or professional relationship to determine if sexual abuse had occurred.

Leering v. College of Chiropractors of Ontario, 2010 ONCA 87.