Penalty Again

Given the principle of proportionality (i.e., that the sanction in discipline cases should be relatively consistent), it is often difficult to raise the range of sanctions for a particular type of conduct. If done carefully, the range can be increased where there is evidence that societal expectations have changed: Schwarz v. The College of Physicians and Surgeons of Ontario, 2021 ONSC 3313 (CanLII), (See More Guidance on Scrutiny of Discipline Decisions for further discussion on this point.)

Another recent case suggests other considerations that can result in the upping of the range of penalty: Attallah v. College of Physicians and Surgeons of Ontario, 2021 ONSC 3722 (CanLII), In that case, a physician’s registration was revoked for deliberately billing for services that were either ineligible for payment or were falsified. In upholding revocation, the Court noted the following:

  • In a prior decision almost 20 years earlier, the reasons of the discipline panel noted that false billing was a serious matter and that sanctions needed to increase.
  • There were a few prior cases of revocation where there were significant aggravating factors. Generally the range of sanctions for dishonest billing had gradually increased since those prior cases were decided.
  • The finding of the panel in this case was that the false billing was intentional and deliberate and thus revocation “was necessary to protect the public, promote public confidence in the profession and serve as general deterrence to the membership”.

The Court found that “[n]o error in principle has been shown. The penalty imposed, in the circumstances of this case, cannot be said to be clearly unfit.”

The case had a number of other interesting issues. For example, it contains guidance on various evidentiary issues, including that an inference can be drawn from a practitioner’s failure to testify:

At the close of the College’s case there was ample evidence which, if left unanswered, could establish professional misconduct on a balance of probabilities. In these circumstances, it is well settled that an adverse inference may be drawn from the physician’s failure to testify without any implicit alteration of the burden of proof ….”

In addition, the Court held that the catch-all definition of professional misconduct (i.e., conduct that is disgraceful, dishonourable or unprofessional) does not require moral failure. A serious or persistent disregard for one’s professional obligations is sufficient.

Finally, the Court held that it was entirely appropriate for the hearing panel to not permit the practitioner to testify at the sanction phase of the hearing about the findings of misconduct:

The Committee did not prevent the Appellant from testifying at his penalty hearing but did refuse to admit evidence that it determined could only serve as a collateral attack on its liability decision. It did not err in doing so. Where defense counsel in a professional discipline matter opts for the tactical advantage of not calling the respondent at the merits hearing, the respondent could not subsequently be permitted to testify during the penalty phase in an effort to rebut the core evidence heard by the panel during the liability phase. This would be a fundamental abuse of the principle of finality and of “time-honored and accepted” trial and sentencing procedures ….

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