Changing Society and Historical Law

Perhaps the most notorious sexual abuse case in recent years was determined by Ontario’s Court of Appeal earlier this month. In College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420,, a physician was found to have engaged in the sexual abuse of four patients by touching their breasts without consent or medical indication. Another finding of unprofessional conduct occurred because he “had asked a fifth patient on a date immediately following his medical examination of her during which her breasts were exposed”. The regulator sought revocation. However, the discipline panel imposed a six month suspension, numerous conditions and serious financial consequences.

The regulator appealed its own tribunal’s decision as it believed the sanction was not sufficient. The Divisional Court, in a particularly strongly worded decision, would have returned the matter for the imposition of a much more serious sanction. That Court found that the tribunal had based its penalty decision on an acceptance of a “lack of awareness” explanation by the physician that was inconsistent with the tribunal’s finding that the conduct was obviously sexual in nature and that the patients did not “misunderstand” Dr. Peirovy’s touching. The Divisional Court also held that reliance on a range of unfit penalties in previous cases did not justify a penalty that no longer reflected current societal values.

The majority of the Court of Appeal concluded that the Divisional Court had erred by reading the reasons of the discipline tribunal too rigorously and by failing to show adequate deference to the specialized knowledge of the expert disciplinary tribunal. The majority concluded that the discipline committee had considered and explained in its reasons why the sanction selected was reasonable and protected the public. One member of the Court of Appeal dissented, vigorously supporting the approach taken by the Divisional Court on both issues.

Interestingly, the Court of Appeal had very different interpretations of the subsequent amendments to the legislation that now require revocation for such conduct. The amendments were almost certainly a direct result of the controversy over the Discipline Committee’s decision in the Peirovy case. The majority indicated that the discipline panel was implementing the framework that existed at the time and the Legislature’s ensuing alteration of the framework was irrelevant.

The dissenting Justice viewed the amendments to the legislation as a reaction to the discipline panel’s failure to recognize that societal expectations had indeed shifted.

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