Ontario Court of Appeal Overturns Divisional Court’s Decision in CPSO v. Peirovy

 

The Ontario Court of Appeal recently released its decision in College of Physicians and Surgeons v. Peirovy, overturning the Divisional Court’s decision. The Court of Appeal confirmed that significant deference is owed to penalty orders made by disciplinary tribunals and held that appellate courts should not attempt to change established penalty ranges.

Discipline Committee’s Decision

During a hearing in 2015, the Discipline Committee of the College of Physicians and Surgeons of Ontario (CPSO) found Dr. Peirovy guilty of sexual abuse of four patients.[1] The Committee found that Dr. Peirovy made contact with the patients’ nipples during medically indicated lung examinations which were conducted under the patients’ clothing. The Committee also found that Dr. Peirovy had engaged in unprofessional conduct by asking a different patient out on a date after conducting a medical examination of her.

The Committee ordered a 6 month suspension of Dr. Peirovy’s medical certificate, a reprimand, and terms and conditions upon his return to practice. This included having a female practice monitor present while treating female patients. In its decision, the Committee cited expert evidence that Dr. Peirovy was at a low risk to reoffend and had done substantial remedial work over the previous two years on boundaries, patient sensitivity, consent and professionalism.

Divisional Court Quashed Discipline Committee’s Penalty Order

The CPSO appealed the Committee’s penalty order to the Divisional Court. The Divisional Court allowed the appeal and quashed the penalty order.

The Divisional Court held that the Committee’s factual findings during the penalty hearing were wrong and that different findings should have been made. The Divisional Court acknowledged that the 6 month suspension and terms/conditions were within the historical range of penalties for similar offences, but held that “a litany of clearly unfit penalties does not justify the penalty imposed in this case”.[2] The Divisional Court held that community standards had changed and a penalty less than revocation or a multi-year suspension was manifestly unfit.

Court of Appeal Overturns Divisional Court

Dr. Peirovy was granted leave to appeal the Divisional Court’s decision to the Court of Appeal. Justices Rouleau, Benotto and Roberts heard the appeal on November 27, 2017. Their decision was released on May 3, 2018. In a 2:1 decision, the Court of Appeal allowed Dr. Peirovy’s appeal, set aside the Divisional Court’s decision and restored the penalty imposed by the Discipline Committee. Justice Rouleau authored the majority’s opinion, with Justice Benotto writing in dissent.

There are a number of important takeaways from the Court of Appeal’s decision:

  1. Penalty decisions of Discipline Committees are entitled to a high degree of deference because they are tribunals composed of members of the profession and the public who have more expertise than courts in determining appropriate penalties for professional misconduct.
  2. A reasonableness review does not allow an appellate court to retry the case. The Court of Appeal held that the Divisional Court “effectively sought to retry the case in a manner inconsistent with the proper application of the standard of review… It must apply it and refrain from substituting its own view for that of the tribunal.”[3] The Court of Appeal found that the Divisional Court had subjected the reasons of the Committee to “excessive scrutiny, rejecting the reasonable, available findings made by the Discipline Committee and arriving at different factual findings based on its improper reassessment of the evidence de novo.”[4]
  3. An appellate court cannot arbitrarily re-define the appropriate penalty range for a disciplinary offence. The Court of Appeal held that, “The Divisional Court should not have simply declared that the penalties imposed in the cases making up the well-established range, of which it was not seized, were wrong. The penalties imposed in those case were not appealed and, in some cases, were the result of joint submissions by the College and the offender…The Divisional Court should not have opined, long after the fact, that penalties in a whole series of cases, which were ‘intricately bound’ to their own factual contexts, were incorrect.”[5]
  4. Penalty ranges may change over time, but such change should come from Discipline Committees based on a substantial evidentiary record, rather than from appellate courts. The Court of Appeal found that the Divisional Court “had neither the mandate nor the evidentiary basis to intervene, let alone change, the penalty range for an entire category of behaviour”.[6] The Divisional Court’s change to the established penalty range “was effectively an arbitrary exercise”.[7]
  5. The 2017 legislative changes in Ontario that would have made the finding of sexual abuse in this case subject to mandatory revocation of Dr. Peirovy’s medical certificate were irrelevant to the penalty applicable for conduct occurring in 2009-2010. The Court of Appeal held that, “In accordance with the proper administration of justice and procedural fairness, Dr. Peirovy’s case had to be adjudicated based on the law in force at the time. Any legislative change that followed is irrelevant”.[8]

Dissent

Justice Benotto dissented and would have dismissed Dr. Peirovy’s appeal. Justice Benotto disagreed that the Divisional Court had erred in its application of the standard of review. She held that the Discipline Committee had made internally inconsistent findings of fact, reached a conclusion that was unsupported by the evidence, and imposed a penalty that did not fulfill its mandate.[9] These errors led to an unreasonable decision and a clearly unfit penalty. Justice Benotto acknowledged that the penalty imposed was within the range of penalties imposed in past Discipline Committee decisions involving sexual abuse, but held that “reasonableness is not a static concept and ranges are not set in stone…Where society has evolved such that a range no longer reflects societal values, there is reason to question the validity of the range”.[10]

Case Information

College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420

Docket: C63644

Date of Decision: May 3, 2018

Note: McCarthy Tétrault LLP acted as counsel to Dr. Peirovy at all levels.

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[1] College of Physicians and Surgeons of Ontario v. Peirovy, 2015 ONCPSD 30 (“Committee Peirovy Decision”).

[2] College of Physicians and Surgeons of Ontario v. Peirovy, 2017 ONSC 136 (“Div Ct Peirovy Decision”).

[3] College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, para 53 (“ONCA Peirovy Decision”).

[4] ONCA Peirovy Decision, para 54.

[5] ONCA Peirovy Decision, para 81.

[6] ONCA Peirovy Decision, para 83.

[7] ONCA Peirovy Decision, para 83.

[8] ONCA Peirovy Decision, para 87.

[9] ONCA Peirovy Decision, para 103.

[10] ONCA Peirovy Decision, para 132.

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