July 25, 2016

The duty of registrants to respond during investigations; the size of disciplinary costs awards

Administrative Law
Professional Regulation

An Ontario court canvassed an array of issues before upholding of discipline relating to a chiropractor engaging in inappropriate communications and failing to cooperate with his college’s investigation, resulting in a 12-month suspension, a $10,000 fine and costs against him of about $166,000 for a five-day hearing: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041.

That case started with various complaints by Dr. P, another professional, about the respondent’s advertising practices – in 2006, 2008, and 2009 (resolved informally) and again in 2010 (which led to an agreed statement of facts and a 3-month suspension). In relation to the complaints in 2010, the respondent contacted the complainant by email using inappropriate and threatening language, e.g., “You have gotten me pissed beyond measure” and “You pissed in the wrong bear cave asshole, game on” (but in caps). These emails led to a complaint about unprofessional conduct in 2012.

Further, in 2012, an insurance company complained that the respondent had practiced while under suspension, i.e., during his 3-month suspension. This allegation was unfounded (as buyers of his clinic had erroneously continued to use the respondent’s code for billings) but the respondent refused to respond to queries until the college appointed an investigator. In 2013, the college alleged professional misconduct due to his failing to respond to the college’s queries.

The respondent raised, but the court dismissed, the following concerns.

1. The fact that the chair of the discipline panel in 2010 also participated in the most recent discipline decision did not create an issue of bias, where the 2010 decision was based on an agreed statement of facts, without anyone calling any evidence. [32]

2. No procedural fairness issue arose from the panel failing to provide sufficient reasons. Adequacy of reasons is not a stand-alone ground for overturning a decision. [34]

3. The panel’s conclusion that the respondent’s communications with the complainant amounted to professional misconduct was reasonable. [49]

4. The college had authority to mandate a response from the respondent. The college had set a policy on member-college communications which mandated cooperation with the college and its committees when reasonable requests are made for information. The panel adopted a conclusion of the Ontario Divisional Court in Artinian v. College of Physicians and Surgeons of Ontario, [1990] O.J. No. 1116, at para. 9, which confirms: “Fundamentally every professional has an obligation to co-operate with his self-governing body.” The court found that the standard of practice was mandatory in requiring cooperation and communication in response to reasonable requests. [60]

5. The respondent failed to respond. Notably, the respondent called an expert witness who first opined that chiropractors had no obligation to respond, but was cross-examined in relation to an article he had written, when president of the Chiropractic Association, confirming a duty to respond to a complaint. [71]

6. The court set aside one finding that the respondent failed to cooperate after the committee had appointed an investigator. [93]

7. While the penalty was on the high side of the scale of an appropriate penalty, it was within the range. “Assessing penalty is at the heart of the discretion of a professional panel and should be interfered with only if the Panel commits an error of principle, or the penalty is clearly unfit.” [127]

8. Two of the three justices decided that the costs award of about $166,000 was appropriate. The college’s total costs were over $325,000, including legal costs over $260,000 (including panel counsel), and over $62,000 for hearing costs (including panel expenses). The majority noted that costs under the Health Professions Procedural Code were “broader” than legal costs awarded in civil proceedings between parties. [223 and also 228] The panel also rejected the respondent’s contention that having two senior lawyers at the hearing was unreasonable. The panel noted that the defence “challenged a cornerstone of professional regulation: the requirement that a member must respond to allegations of misconduct” [230].

In dissent, Justice Wilson held that the costs award (which was 51 percent of the total costs of investigation and a 5.5 day hearing) was excessive, unfair and abusive. Justice Wilson took issue with the bill of costs including hearing costs, including panel member per diems and expenses, expert fees and court reporter fees. [140-141] The dissenting judge would have reduced costs to $60,000, plus taxes and disbursements.

NOTE: We’ve previously written about costs awards in British Columbia by disciplinary tribunals. Click here and here.

Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div.Ct.)
Lisa C. Fong and Michael Ng