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RHPA - Suspensions. Kilian v. College of Physicians and Surgeons of Ontario
In Kilian v. College of Physicians and Surgeons of Ontario (Div Ct, 2025) the Divisional Court dismissed a JR, here against "the ICRC’s dismissal of the reconsideration request", this from an earlier ICRC "interim suspension and appointment of investigators".
The court considers an RHPA ICRC's jurisdiction to issue an interim order, here to "suspend or to place terms, conditions or limitations on a physician’s certificate of registration":[80] The ICRC may make an interim order directing the Registrar of the College to suspend or to place terms, conditions or limitations on a physician’s certificate of registration “if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury”: Code, s. 25.4(1). The ICRC may make interim orders without notice to the member if there is urgency: Code, s. 25.4(7). Where an interim order is made without notice, the member has a right to make submissions while the suspension or the terms, conditions or limitations are in place.
[81] In considering whether to impose an interim order, the ICRC must consider whether there is evidence of probable harm to patients: Fingerote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131, 53 Admin. L.R. (6th) 325 (Div. Ct.), at paras. 5-7; Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, 93 Admin. L.R. (6th) 331 (Div. Ct.), at para. 48. On judicial review, the court’s task is to determine whether the factual conclusions were reasonable, given the evidence before the ICRC, and whether the conclusions were explained logically, coherently and rationally. The court will not reweigh the evidence: Kadri, at para. 51.
[82] The standard is not an onerous one. The interim nature of the s. 25.4 orders and their protective purpose must be kept in mind. Thus, the court need only be satisfied that there was “some evidence” before the ICRC to justify the order: Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654, at paras. 23, 26-28; Luchkiw, at para. 51.
[83] The ICRC concluded that there were concerns about Dr. Kilian’s governability and that patient and public safety remained at risk. It therefore held that her continued suspension was the least restrictive order necessary to protect the public. . Casella v. Ontario (College of Chiropodists)
In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court considers an HPPC s.70(1-2) appeal from a misconduct finding (and related sanctions and costs) of the "Discipline Committee (the “Committee”) of the College of Chiropodists of Ontario". In these quotes, the court considered the practical effect of a 'suspension' - here of a "certificate of registration":1. The Appellant, a licenced chiropodist, appeals from misconduct findings of the Discipline Committee (the “Committee”) of the College of Chiropodists of Ontario (“the College” or “the Respondent”) dated January 13, 2023 (the “Liability Decision”), reported at 2023 ONCOCOO 1 (CanLII). He also appeals from the costs award of $70,000 dated May 13, 2023 (“Costs Decision”), reported at 2023 ONCOCOO 4 (CanLII). The Appellant was found to have failed to comply with a 2021 Discipline Order that suspended his certificate of registration for seven months for engaging in inappropriate business practices, offering inappropriate cash incentives to patients and submitting false documentation to the insurance company with the intention that the patients’ benefit plan pay for the incentives.
2. The Appellant submits that the Committee erred in finding that he violated his suspension by getting paid a modest salary by his professional corporation during the period of his suspension for working at his clinic with no patient contact and performing tasks that a non-professional staff member could perform. While the Appellant admitted that his website continued to describe him as a “chiropodist” during the period of his suspension (and that this supported one count of misconduct), he argued that this was an oversight and that the Committee erred in finding that this supported three other misconduct findings.
3. The Appellant also seeks a reduction in the costs award. He argues that the costs awarded were unreasonable and disproportionate.
4. For the reasons set out below, the appeal is dismissed. In summary, the Committee did not err in finding that the plain and ordinary meaning of suspension is a temporary removal of the member from their practice. A member who is suspended is required to either close their practice or transfer it to another. A member cannot subvert a suspension by continuing to hold themselves out as a practicing chiropodist, continuing to assume responsibility for regulated activities such as sterilization of medical instruments, and continuing to compensate themselves from the practice of chiropody by paying themselves a salary from patient- generated revenue. The College is duty bound to regulate the profession in the public interest. The question of what constitutes professional misconduct falls squarely within the bailiwick of the Committee.
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12. A professional health corporation is a particular kind of corporation created by statute. Under the Code, one or more members of the same health profession, including chiropodists, may establish a health profession corporation “for the purpose of practising their health profession.” Unlike a regular corporation, a health profession corporation owned by a chiropodist must be fully owned by one or more chiropodists and cannot carry on a business other than the practice of chiropody.[2] Chiropodists are only permitted to practise through health profession corporations upon receiving a certificate of authorization from the College. While the Appellant notes that his certificate of authorization was not revoked by operation of his suspension, as set out in the Code, a member’s professional obligations apply equally to their corporations, and to its directors, officers, shareholders, and employees, and are not diminished by the fact that a member is practicing through a health corporation. The Code is explicit that “[i]n the course of practising a health profession, a health profession corporation shall not do, or fail to do, something that would constitute professional misconduct if a member of the health profession did, or failed to do, it.”[3] At paras 28-50 the court goes on extensively to spell out the (IMHO harsh) limits that apply to a member under suspension. It summarizes:57. A member cannot subvert a suspension by continuing to hold themselves out as a practicing chiropodist, continuing to assume responsibility for regulated activities of the practice, and continuing to compensate themselves from the practice of chiropody by paying themselves a salary from patient- generated revenue. The College is duty bound to regulate the profession in the public interest. . Casella v. Ontario (College of Chiropodists)
In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court contrasts professional discipline with criminal law:Issue 1: Did the Committee err by finding that the Appellant breached the June 2021 Order by benefitting from the practice of chiropody?
28. The Appellant submits that at the time of his suspension, there was no regulatory prohibition on a suspended member benefitting from the practice of chiropody by others. While it was submitted in the Appellant’s factum that professional discipline statutes are to be strictly construed, at the hearing of this appeal, counsel for the Appellant conceded that a broader interpretative approach is the correct approach, namely the balancing of the public interest and the fair hearing rights of the accused, as set out in in Court of Appeal’s decision in Abdul v. Ontario College of Pharmacists, 2018 ONCA 699, 142 O.R. (3d) 682, at para. 18.
29. It is settled by the Supreme Court that professional discipline proceedings are not criminal (or quasi-criminal) in nature.[13] Successive Supreme Court and Court of Appeal decisions call for a broad and purposive approach to interpretation, to permit professional disciplinary bodies to fulfill their onerous public protection mandate.[14] As the Court of Appeal has confirmed on multiple occasions, the Discipline Committee of the College is required to interpret its powers “with a view to protecting the public interest in the proper regulation of the profession”.[15]
30. The Appellant argues that nothing in the regulatory framework necessarily implies that a suspension always prohibits a suspended member from benefitting from the practice of chiropody. The Appellant submits that the Code provides flexibility to the health professions to tailor regulations which address what each profession’s members who are suspended can do regarding benefitting from the practice of their profession during suspension. The Appellant argues that it is not self-evident from the legislative scheme what a suspension entails. He submits that either promulgating regulations or setting this out in the order of suspension is required, neither of which was present here.
31. Approximately half of Ontario’s health profession colleges specifically hold that it is professional misconduct for a member to benefit from the practice while under suspension, although all but one offer an exemption if the member discloses the benefit and obtains permission. The Appellant submits that if suspension necessarily precludes a suspended member from profiting from the practice during their suspension, the colleges would not have the authority to make an exemption. The Appellant argues that he was not on notice that he could not be remunerated for the work that he performed at the clinic while suspended (which he characterized as mostly janitorial services). The June 2021 Order did not prohibit the Appellant from benefitting from another’s practice of chiropody, and the Appellant should not be bound by the intent specified by the Committee after the fact in deciding the Liability Decision.
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