Sep 21, 2020

The case of Reid v College of Chiropractors of Ontario, 2016 ONSC 1041 (CanLII), http://canlii.ca/t/gs27k involved a chiropractor who made inappropriate and harassing comments to the complainant (another chiropractor) and failed to adequately cooperate with the College’s investigation of the complaints. The case is notable because it touches on a number of “hot topics” in discipline. While some questions are clarified by this decision, others remain unsettled:

No bias on the part of discipline panel member who sat on previous panel involving the same member: Many regulators (particularly in smaller professions) face challenges when appointing discipline panels: quorum and composition have to be met and a reasonable apprehension of bias must be avoided. In this case, the member argued that a panel member’s participation in an earlier hearing involving the same member gave rise to a reasonable apprehension of bias. The Court disagreed and confirmed that “past participation by a Panel member in a matter does not amount to a valid concern about bias when the earlier hearing involved an Agreed Statement of Facts and no findings of credibility.”

College has authority to compel member’s cooperation in investigations: The Court noted that the Health Professions Procedural Code does not require a member to respond to a complaint; the language is permissive. However, the College in this case also had a written standard of practice setting out an expectation that members must cooperate with the College and its committees when reasonable requests for information are made. The letters written to the member in this case had also specifically requested a response to the complaints. In these circumstances, the Court held that the College had the authority to require a response from the member and the member’s failure to cooperate amounted to professional misconduct.

Confusion regarding standard of proof: The Divisional Court stated that the College was required to prove the allegations of professional misconduct “on the basis of evidence that is clear, convincing and cogent and that supports a finding that there has been a significant departure from acceptable professional standards” (relying on Re Bernstein and College of Physicians and Surgeons of Ontario and Barrington v. The Institute of Chartered Accountants of Ontario). The Court made no mention of the balance of probabilities standard as set out in F.H. v. McDougall. Nor did the Court refer to the recent Jacobs v. Ottawa (Police Service) decision, where the Court of Appeal held that “clear and convincing evidence” (as required under the Police Services Act) is a higher standard of proof than the balance of probabilities. Despite the relative certainty over the last several years that discipline committees were required to make findings on the balance of probabilities in all cases, this case raises the question of whether the old notion of a sliding scale (the more serious the conduct, the higher the standard of proof) is creeping back into judicial thinking.

Controversy over costs: The discipline panel had ordered costs against the member in the amount of $166,194.50, representing 51% of the total costs (the hearing was five and a half days and involved some agreed facts). The majority of the Divisional Court upheld this decision as reasonable. However, in a strong dissent, one judge found that the costs award was “unfair and abusive” and would have ordered costs of $60,000 instead. Although it was a dissent, regulators should expect members to raise many of the points made by the dissenting judge in future cases, including the need for a discipline panel to consider the reasonable expectations of the member (he paid his lawyer $32,000 compared to the College’s legal fees of over $260,000) and that costs awards must not be punitive.