Top 5 Civil Appeals From The Court Of Appeal - June 2018

With the dog days of summer upon us, take a moment to cool off with the Top 5 Court of Appeal decisions from May: the latest entry in the Chevron saga; confirmation that discoverability applies to claims for contribution and indemnity under s. 18 of the Limitations Act, 2002; enforcement of a non-solicitation clause in an employment contract; the proper application of the standard of review to a decision of a professional disciplinary tribunal; and interpretation of an "illegal substances clause" in an agreement of purchase and sale (in a case involving past use of a property as a marijuana grow-op).

This month's Netletter author, William Pepall, also brings you his picks for the Top 5 summer concerts.

1. College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 (Rouleau, Benotto and Roberts JJ.A.), May 3, 2018

   This appeal concerned the proper application of the standard of review to a decision of a professional disciplinary tribunal.

   The appellant, Dr. Javad Peirovy, was found guilty of professional misconduct by the Discipline Committee of the College of Physicians and Surgeons of Ontario. He was granted leave to appeal from the order of the Divisional Court, which had overturned the penalty imposed on him by the Discipline Committee and remitted the penalty decision back to the Discipline Committee for reconsideration.

   Dr. Peirovy's misconduct involved the sexual abuse of four female patients and inappropriate conduct with respect to a fifth at a walk-in family medicine clinic in 2009 and 2010. The Discipline Committee imposed a penalty consisting of a six-month suspension and restrictions on his return to practice, which included supervision during all encounters with female patients and the posting of a sign publicizing this requirement for a minimum of 12 months. The penalty also included a requirement that Dr. Peirovy undergo individualized instruction on consent, boundaries and doctor-patient communications, and that he complete a clinical education program focused on physical examinations. The Discipline Committee also ordered that Dr. Peirovy pay $64,240 for the victims' therapy costs, plus $35,680 in costs of the proceedings.

   The College appealed the penalty decision on the basis, inter alia, that it was unreasonable in that the Discipline Committee made inconsistent findings of fact and the penalty imposed was manifestly unfit.

   The Divisional Court allowed the College's appeal. While acknowledging that the Discipline Committee's decision on penalty was subject to deference, the Divisional Court determined that the penalty imposed was unreasonable on the bases submitted by the College.

   In an expansive decision, a majority of the Court of Appeal allowed Dr. Peirovy's appeal and restored the Discipline Committee's penalty.

   Writing for a majority of the Court of Appeal, Rouleau J.A. (Roberts J.A. concurring) held that while the Divisional Court correctly selected and articulated the reasonableness standard of review, it failed to properly apply it - instead incorrectly substituting its own assessments of the evidence and penalty for those of the Discipline Committee. Rouleau J.A. also held that the Divisional Court erred in concluding that the Discipline Committee made inconsistent findings of fact warranting intervention.

   The Divisional Court rejected the Discipline Committee's suggestion that Dr. Peirovy's lack of awareness with respect to his behaviour could possibly explain his abuse of his patients. According to the Divisional Court, there was:

   [N]o line of analysis that could reasonably lead the tribunal to conclude that [Dr. Peirovy's] awkward, unskilled and non-empathic manner was a factor in understanding his abusive behaviour or that it could reasonably infer that he was genuinely and completely unaware of the ways in which his behaviour in relation to his patients was in fact abusive.

   The "possible inference" of unawareness drawn by the Discipline Committee was, in the Divisional Court's view, inconsistent with the finding of fact that there were several offences. More importantly, the Divisional Court found that this inference was inconsistent with the Discipline Committee's finding that Dr. Peirovy had touched the complainants in a way that an objective observer would find to be sexual. The Divisional Court also noted that Dr. Peirovy had been found guilty of criminal assault against two of the complainants.

   Rouleau J.A. found several problems with the Divisional Court's conclusion. He noted that the Discipline Committee's finding was well supported by expert testimony as well as its assessment of Dr. Peirovy's testimony. He pointed out that the Discipline Committee did not, as the Divisional Court suggested, find that Dr. Peirovy's "awkward, unskilled and non-empathic manner" was the only cause of his misconduct; it simply opined that it was a factor. Rouleau J.A. also noted that the Discipline Committee specifically considered the significance of the number of incidents, and rejected the inference that Dr. Peirovy had predatory intent or uncontrollable deviant urges. In Rouleau J.A.'s view, this finding was open to the Discipline Committee on the record, as was its conclusion that this improved the prognosis and lessened the risk that Dr. Peirovy would re-offend. It was also open to the Discipline Committee to suggest that the number of incidents, including one which occurred after Dr. Peirovy had been informed of a complaint against him, might be explained...