Parity in Penalties Remains Important

Even before the Court of Appeal rendered its decision in College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420,, the courts have been reaffirming the importance of consistency in sanctions. In Billing v. College of Physicians and Surgeons of Ontario, 2018 ONSC 2624,, Dr. Billing was found guilty of professional misconduct relating to record keeping and a lack of sterile technique in procedures. The Discipline Committee imposed a two month suspension and extensive monitoring and supervision restrictions. The Court said:

The Discipline Committee conducted an appropriate parity analysis. It expressly stated that, in general, like cases should be treated alike, and it had considered the cases cited. Despite the appellant’s argument that the penalty was outside the range, the suspension was within the range of penalties in prior decisions, which ranged from zero to six months suspension. Each case obviously turns on its particular circumstances.

The Committee also correctly observed that parity is not the only relevant consideration. It explained that a suspension was warranted because the misconduct was pervasive and systemic in the appellant’s practice, it related to many patients over an extended period of time, and it exposed his patients to a risk of serious harm. The Committee was concerned about both general and specific deterrence, as well as the need to address the impact of the conduct on public confidence in the College’s regulation of the profession.

The Committee did not misconstrue the Peirovy decision (at the Divisional Court) as no longer requiring it to take prior decisions into account. It expressly stated that similar cases should generally be dealt with in a similar fashion. It also stated that it had considered past cases and was “satisfied that the penalty imposed on Dr. Billing is reasonable and proportionate given the particular facts of this case.”

While consistency in orders is not the only consideration, it remains an important factor.

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