Rare Example of a Court Permitting the Rejection of a Joint Submission

Discipline panels should generally accept joint submissions unless doing so would bring the administration of justice into disrepute or would be contrary to the public interest. Recently the Divisional Court emphasized that only where the joint submission in a discipline hearing was “unhinged” from the conduct should the joint submission not be accepted: Bradley v. Ontario College of Teachers, 2021 ONSC 2303 (CanLII), https://canlii.ca/t/jdz7v.

But in another recent case, the Divisional Court, including one Judge who sat on the Bradley case, upheld a rejection of a joint submission. In Sammy Vaidyanathan v. College of Physicians and Surgeons of Ontario, 2021 ONSC 5959 (CanLII), https://canlii.ca/t/jj39x a physician had been found to have engaged in professional misconduct for various actions including recklessly prescribing and dispensing of controlled substances, including opioids, that exposed patients to potential harm. A partial joint submission (there was disagreement as to the length of the suspension) was tendered. One of the terms of the joint submission was restrictions on the practitioner’s ability to prescribe or dispense controlled substances in his out-of-hospital practice. The panel expressed concern that the restrictions did not apply to the practitioner’s hospital practice as well. After hearing additional submissions, the panel concluded that there was no rational basis to exclude the restrictions from the practitioner’s hospital practice and the panel rejected the joint submission.

On appeal the Court upheld the rejection of the joint submission:

In my view, the Committee’s extensive explanation and its pronounced rejection of the joint submission, demonstrated in clear and cogent terms that the Committee understood and considered the “undeniably high threshold” for its departure from a joint submission. It applied the requirements of R v. Anthony-Cook 2016 SCC 43, paras. 34 and 60, and it met those requirements. Its repeated references to the public interest and its concern that the joint submission would be difficult to support and explain, captured the depth of its concern that the Committee’s acceptance of the joint submission would bring the administration of justice into disrepute.

While the Court reaffirmed the established criteria for rejecting a joint submission, this case indicates that there can be situations where the high test is met.

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