Playing Games

Practitioners facing serious allegations of misconduct have the right to a fair hearing, including adjournments, when necessary to prepare their case or because of health issues. However, where accommodations are repeatedly requested without a solid basis or avoidance techniques are employed with the apparent goal of delaying or derailing the process, regulators and the courts will allow the process to proceed without the practitioner. That was the case in Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49 (CanLII), The practitioner faced serious allegations related to false billing and incompetence. The practitioner obtained adjournments to seek legal counsel, some of whom later withdrew from representing the practitioner, and failed to attend various stages of the proceeding including a pre-hearing conference and the hearing on the merits of the allegations. The practitioner then sought to reopen the hearing to lead additional evidence both on the merits (expert opinion) and on the reasons for non-attendance (medical) but did not follow through on the specified procedure. Eventually, the discipline tribunal made a finding, revoked the practitioner’s registration, and imposed significant costs.

The Court dismissed all of the grounds of appeal:

Refusing the request for an adjournment of the hearing dates and proceeding with the hearing was procedurally fair in all of the circumstances including the lack of communication from the practitioner and the past history of adjournments.

The Committee found that there was no reasonable explanation for Dr. Gill’s failure to tender this new affidavit evidence sooner. It considered the prejudice to the College with re-opening at that stage – after cross-examinations were complete. It considered the negative impact on the integrity of the Committee’s rules and processes in permitting any further delay. The Committee properly exercised its discretion not to admit the new evidence.

The Committee considered the breadth, severity and persistence of Dr. Gill’s misconduct, and noted that his misconduct encompassed both grossly inadequate clinical care that put his patients at risk and dishonest actions by which he placed his own interests ahead of those of his patients and the public. It noted that there was no basis to conclude that the Appellant had shown insight or remorse, nor had he provided meaningful details about any remediation. It is clear from all the evidence that revocation was necessary in terms of the Appellant’s incompetence and was the only order that would adequately protect the public and maintain the public’s confidence in the medical system….

The findings against Dr. Gill were extremely serious, involving clinical incompetence and dishonest billing in the amount of $146,000. Revocation was well within the range of available penalties for this misconduct and has been imposed for similar misconduct in recent decisions upheld by this Court.

Where the conduct of the practitioner in delaying the process can reasonably be seen as undermining the process, the result can be a determination with minimal practitioner involvement.

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