Nov 18, 2020

Courts tend to require discipline panels to ensure that any sanctions imposed are consistent with previous orders in similar cases. This is often referred to as the concept of “parity”. However, the Ontario Divisional Court has affirmed that in exceptional cases a more severe sanction can be imposed.

In Shah v. College of Physiotherapists of Ontario, 2020 ONSC 6240 (CanLII), http://canlii.ca/t/jb46c a physiotherapist was suspended for 18 months for failing to carry professional liability insurance and for making a false declaration to the College about having such coverage. Most discipline cases for similar misconduct involved significantly lesser sanctions; no prior precedent had imposed a suspension that long.

However, the Court upheld the sanction because of the aggravating factors at play in the case. In particular, this was the third finding of professional misconduct for dishonesty against the practitioner. The conduct occurred contemporaneously with an ethics and professionalism course the practitioner was taking because a previous discipline finding. The practitioner did not disclose the lack of insurance coverage until the regulator began investigating him for it.

The Court said:

I am satisfied that the Committee turned its mind to the issue of parity when it acknowledged that the 18-month penalty was more that [sic] the other cases in the Books of Authorities. The Committee demonstrated that while considering parity, those sentences were not appropriate as none of those cases had similar aggravating circumstances and the heightened need for specific and general deterrence.

In the end, the Committee recognized that these circumstances are exceptional and as such an exceptional penalty was required to properly address specific and general deterrence and to maintain the public’s and the profession’s confidence in the profession’s ability to self-regulate. I am satisfied that the Committee’s reasons reflect that it was aware that the 18-month suspension was a departure from other suspensions imposed by the Committee….

The conclusion that an 18-month suspension is applicable in the circumstances is a reasonable conclusion that cannot be said to be “demonstrably unfit” or “clearly excessive”.