A Suspension Is a Suspension

Ontario’s Divisional Court has upheld a finding that a registrant engaged in professional misconduct by trying to circumvent the impact of a suspension.

In Casella v. Ontario (College of Chiropodists), 2024 ONSC 899 (CanLII), the registrant (a chiropodist) was, after a discipline hearing, suspended for seven months for “fraudulent business practices”. During the suspension the registrant’s website continued to portray him as the only practising chiropodist at the office. The registrant also sterilized instruments after hours. Finally, the registrant paid himself his usual salary out of the billings of the locum who took over his clinical practice. This conduct was found to have circumvented the intent and effect of the suspension. The registrant was suspended for a further nine months, had restrictions imposed, and was ordered to pay $70,000 in costs.

On appeal, the Court upheld the finding that the registrant had circumvented the suspension. In terms of the website, the Court agreed that this was not a minor breach or oversight, saying: “The website was the Appellant’s primary presentation of himself to the public as a professional where he continued to hold out his status as a chiropodist open for business.” The Court agreed that this one omission had separate aspects supporting four findings, including that the registrant had misrepresented his registration status; “had issued a false document; engaged in disgraceful, dishonourable, or unprofessional conduct; and breached the suspension order.”

Even though sterilizing instruments was not an activity limited to registrants, under the regulator’s policy, a registrant had to take responsibility for its performance.

In terms of profiting from the practice while suspended, the Court said:

The Appellant knew that he was required to turn over his practice, which he never really did. Instead, he figured out a way to make money from it without fully handing it over. In fact, as the Committee found, he paid himself the same salary while he was suspended as he did before he was suspended. From a protection of the public perspective, allowing members to operate in this way during a period of suspension would undermine the deterrent effect that suspensions are supposed to have on members’ conduct. Given the context, there is no palpable or overriding error in the Committee’s finding that the Appellant breached the June 2021 Order by benefitting from the practice of chiropody.

The Court did not accept the argument that the regulator could not act because there was no explicit regulation or policy in place at the time stating that a suspended registrant could not profit from their practice while suspended even though other regulators had such provisions.

In terms of the costs order, the Court chose not to follow the Alberta Court of Appeal approach in Jinnah v Alberta Dental Association and College, 2022 ABCA 336 (CanLII), which states that the profession should ordinarily bear the costs of discipline hearings. In upholding the costs order, the Court said:

The Committee recognized that the amount ordered was significant but found that it reflected approximately two-thirds of the actual costs incurred, and that this was a reasonable amount for the Appellant to pay given the need to ensure that the membership at large is not left with the burden of paying a disproportionate share of the costs associated with proceedings generated as a result of another member’s misconduct.

In doing so the Court noted that the registrant had not provided their Bill of Costs to the hearing panel. Failing to do so removed a key piece of information. “A comparison of parties’ bills of costs is frequently how an appropriate amount for costs is determined.”

This decision reinforces the deterrent effect of disciplinary suspensions.

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