Legislature gave discipline committee task of fashioning penalties that would favour goal of eradicating sexual abuse of patients

In 2009 and 2010 six female patients of medical doctor in family practice in walk-in clinic complained of improper sexual touching. Discipline Committee of College of Physicians and Surgeons of Ontario found doctor committed unprofessional conduct with respect to five patients, sexually abused four, committed disgraceful, dishonourable or unprofessional conduct with respect to fifth, but allegations of sixth complainant were not proven. Committee suspended doctor’s licence for six months, imposed practice restrictions for 12 months, ordered training, and payment of $64,000 for complainants’ therapy, and $35,000 in costs. College successfully appealed from penalty. Doctor appealed. Appeal allowed; disciplinary committee’s penalty was restored. Disciplinary committee crafted careful penalty that reflected principle of protection of public while balancing other principles that it was required to consider, including proportionality and rehabilitation. Disciplinary committee was manifestly concerned with paramount principles of protection of public and accepted evidence that doctor posed low risk of recidivism. It was implicit that discipline committee was confident that his behaviour could be corrected, even if prurient interest could not be completely ruled out. Legislature gave discipline committee task of fashioning penalties that would favour goal of eradicating sexual abuse of patients while taking into account and balancing other relevant factors and unlike criminal sentences, self-regulated professions were mandated to make these determinations. Divisional Court had neither mandate nor evidentiary basis to intervene, let alone change, penalty range for entire category of behaviour and changing penalty range was effectively arbitrary exercise.

College of Physicians and Surgeons of Ontario v. Peirovy (2018), 2018 CarswellOnt 6790, 2018 ONCA 420, Paul Rouleau J.A., M.L. Benotto J.A., and L.B. Roberts J.A. (Ont. C.A.); reversed (2017), 2017 CarswellOnt 379, 2017 ONSC 136, Molloy J., Dambrot J., and Ramsay J. (Ont. Div. Ct.).