Case Deals with Hot Topics in Discipline – Part 2

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:

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.

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