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...