When a discipline panel applies criminal sentencing principles at the penalty stage of a hearing, it is considered an aggravating factor to have previously been found to have engaged in criminal behaviour. In those circumstances, a more severe penalty can be imposed. For this principle to apply fully there must have been a formal finding made before the most recent conduct. There is some evolution of these principles in the criminal law sphere, but that is the “classic” approach to the issue.
However, a key difference between “classic” criminal sentencing principles and professional disciplinary sanctions is illustrated where a discipline panel considers the previous complaints history of the registrant. A screening committee’s disposition of a complaint with a warning or remedial action (e.g., educational measures) is not a formal finding. It also does not always occur before the most recent conduct before the discipline committee. However, the discipline panel can still consider the prior complaint disposition in a discipline hearing when crafting a sanction that effectively protects the public.
In Dhaliwal v. College of Veterinarians of Ontario, 2025 CanLII 22518 (ON SCDC), a veterinarian had been found to have engaged in professional misconduct in three separate proceedings. There was one appeal encompassing all three matters. The allegations related to informed consent, surgical issues and, in two cases, record keeping. When imposing sanction, the hearing panel considered the veterinarian’s complaints history, including prior warnings to ensure that he had obtained fully informed consent from clients and to improve his record keeping.
The Court found that there was no error in the Discipline Committee considering the extensive complaints history and multiple warnings issued to the veterinarian: “It did not treat these as aggravating factors but simply as confirmation of the need to impose TCLs [terms, conditions, and limitations].” The Court accepted that the veterinarian had ignored and failed to heed prior advice and warnings such that specific restrictions were required to “increase the prospect of successful remediation”.
Other points made in the decision include:
- A two-stage referral of a complaint to discipline is acceptable. Stage one is a referral in principle. Stage two is approval of formal specified allegations prepared by legal counsel.
- Legal counsel’s advice on the wording of the specified allegations is protected by solicitor-client privilege.
- Where undue delay is alleged, the discipline panel can take into account delays created by the registrant bringing multiple motions and registrant’s counsel failure to respond promptly to requests to schedule hearing dates.
- Upon making a finding of misconduct, the discipline panel has the authority to impose an interim suspension pending the sanctions phase of the hearing under the authority of the Statutory Powers Procedure Act.
A registrant’s prior complaints history can be used to fashion an effective sanction so long as it is not treated as an “aggravating factor” warranting more severe punishment.