Incarceration for Civil Contempt for Unauthorized Practice

There is significant discretion in imposing a penalty for civil contempt of court for breaching an order prohibiting the unauthorized use of title, holding out, and performing controlled acts. The Court in Royal College of Dental Surgeons of Ontario v. Alsoma, 2024 ONSC 1924 gave guidance on how that discretion can be exercised.

Mr. Alsoma, an unregistered individual, operated and managed a dental practice. In 2018 he consented to the regulator obtaining a civil court order prohibiting him from calling himself “Doctor” or from holding himself out as a dentist. A complaint was subsequently filed with the regulator about the dental care provided by Mr. Alsoma. An investigation revealed that Mr. Alsoma had repeatedly performed procedures in a speciality area of dentistry related to implants. The Court accepted that the 2018 consent order had been breached and that Mr. Alsoma had also performed controlled acts.

The Court imposed a penalty consisting of 45 days of house arrest, 100 hours of community service, a fine of $10,000, future compliance with the prohibition, cooperation with the regulator monitoring compliance, and substantial indemnity costs payable to the regulator of $31,807.

In fashioning this penalty, the Court made the following points:

  • The purpose of the penalty is to ensure compliance with court orders and respect for the courts and the principle of the rule of law.
  • Courts should consider alternatives to imprisonment whenever possible.
  • In this case there were several aggravating factors and no mitigating factors. The breach of the consent order, which was designed to maintain public health, was flagrant, intentional, and repeated. The breach involved specialized dental care that requires additional training by dentists. The breach was worsened by the absence of records which created further health risks for the patient. There was actual harm to a patient, not just a theoretical risk of harm. Mr. Alsoma showed no remorse and had not admitted the breach.
  • In the circumstances, the penalty was proportionate and measured, and was designed to achieve the goals of denunciation and general and specific deterrence.
  • The amount of the fine in this case was related to the profit made by Mr. Alsoma in the treatment of the patient.
  • The fine was payable to the government, not the patient or the regulator, to avoid an appearance that it was a form of civil damages.
  • The costs reflected the legal expenses incurred by the regulator. This amount of costs was indicated by the nature of the contempt and supported the deterrent effect of the order. However, the Court declined to order payment of the costs of the investigation in the circumstances of this case.

The penalty for contempt of court in this case accounted for the deliberate and intentional nature of the breach and the concern about possible future breaches even though this was a first-time violation of the order.

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