



COURT OF APPEAL FOR ONTARIO

CITATION: College of Chiropractors of Ontario v. Dies, 2016
    ONCA 2

DATE: 20160105

DOCKET: C60513

Simmons, Pepall and Pardu JJ.A.

BETWEEN

College of Chiropractors of Ontario

Applicant (Respondent)

and

Stephen Dies

Respondent (Appellant)

Alex Minkin, for the appellant

Chris G. Paliare and Karen Jones, for the respondent

Heard: January 4, 2016

On appeal from the Order of Justice Elizabeth M. Stewart of
    the Superior Court of Justice, dated May 1, 2015.

ENDORSEMENT

[1]

At the conclusion of the oral hearing, we
    dismissed the appeal for reasons to follow.  These are our reasons.

[2]

On May 19, 2006, a consent order was granted
    requiring that the appellant refrain from: using the title doctor or
    chiropractor; holding himself out as a person qualified to
practise
as a chiropractor; and performing any controlled acts, including
    spinal adjustment/manipulation, unless registered with, and a member of, the
    College of Chiropractors of Ontario.

[3]

In reasons released on December 30, 2014, the
    motion judge found the appellant to be in contempt of the 2006 order.  By order
    dated May 1, 2015, she sentenced him to house arrest for a period of six months
    and ordered that if the appellant breached any of the terms of the order for
    house arrest, he should be brought before the court and ordered to serve the
    balance of his sentence in custody. In addition, the motion judge granted the
    respondent leave to issue a writ of sequestration directing the Sheriff to take
    possession and dispose of the appellants office and chiropractic equipment,
    and also ordered that the appellant pay the costs of the proceeding, fixed in
    the amount of $35,000.

[4]

The appellant appeals from the order finding him
    in contempt and also seeks leave to appeal sentence.

[5]

First, he submits that the motion judge erred in
    assessing credibility and making a finding of contempt in the absence of
viva
    voce
evidence.  He argues that as there was conflicting evidence on the
    central question of whether he had performed any controlled acts, the motion
    judge erred in failing to order a trial of the issue. He relies on
R. v.
    Jetco Manufacturing Ltd.

(1987), 57 O.R. (2d) 776,
Fischer v.
    Milo
, (2007), 44 R.F.L. (6th) 134, and
Campo v. Campo
, 2015 ONSC
    1349 in support of his position.

[6]

We do not accept his submission.

[7]

With the benefit of counsel, the appellant
    agreed to a timetable for the contempt hearing that provided for no
viva
    voce
evidence.  He never sought to withdraw from that
    position.  At the motion itself, again with the benefit of counsel, he
    confirmed that he did not want to call
viva voce
evidence.  The motion judge noted his position on the record.

[8]

None of the cases relied upon by the appellant
    reflect such a factual record. The history of this proceeding, including the
    motion judge's endorsement, makes it clear that the appellant chose to proceed
    with the motion based on affidavit evidence and cross-examinations, and without
    oral evidence. Having made that tactical decision and lost, the appellant is
    not entitled to resile from it now: See
Lauzier v. Ranger
1995 CanLII 298 (Ont. C.A.).

[9]

Moreover, there was ample and overwhelming
    evidence to support the finding of contempt.  There was no real dispute about the
    acts performed by the appellant and there was uncontradicted expert evidence on
    their characterization as chiropractic treatment. Additionally, extensive
    unchallenged evidence of the investigations conducted by the respondent was
    before the motion judge.  Despite the appellants undertaking to comply fully
    with the 2006 order, the motion judge was justifiably satisfied that the
    evidence demonstrated beyond a reasonable doubt that the appellant was in
    breach of the 2006 order.

[10]

Second, the appellant submits that the motion
    judge erred in failing to impose the least restrictive sanction to ensure
    compliance and accord with principles of fundamental justice.  He states that a
    finding of contempt coupled with a costs award would achieve this objective. 
    He argues that as his contempt had been fully purged at the time of sentencing,
    there was no need for an order structured to ensure compliance and the motion
    judge failed to impose the least restrictive sanction available in these
    circumstances.

[11]

We reject this submission. The motion judge
    expressly considered the principle of the least restrictive sanction and the
    steps the appellant had taken to purge his contempt. She also accepted as fact
    that he is aging, has health issues, and is the sole caregiver and attendant
    for his ailing wife. However, in her reasons, she also noted:

In this case, [the appellants] defiance of
    Smith J.s order has been obvious, unrepentant and ongoing up to just days
    before his sentencing hearing.  For years, [the appellant] has been an
    obstinate scofflaw, demonstrating an utter lack of respect for the governing
    body of his former profession, the public whose safety the College is obliged
    to protect, and the courts to whom the College turned as a last resort when all
    else failed to deter his conduct.

There is therefore a significant element of
    public protection involved in the fashioning of a consequence fit for this
    case.  [The appellant] has been engaging in a regulated activity without
    regulation of competence or capacity, and outside mandatory rules of conduct. 
    A serious penalty is called for.

[12]

The motion judge's findings are fully supported
    by the record and we see no basis to interfere with her decision.

[13]

Lastly, on consent we order a variation of the
    language of paragraph 3 of the May 1, 2015 order so that it states:

THIS COURT ORDERS that if the
    respondent breaches any of the conditions set out in paragraph 2 herein, he
    will be brought before the Court and ordered to serve the balance of his
    sentence in custody unless he can show why incarceration should not at that
    time be enforced.

[14]

The appeal is therefore allowed in part and paragraph 3 of the
    May 1, 2015 order is varied as described above.  The appellant is to pay the
    respondent its costs on a substantial indemnity scale fixed in the amount of
    $15,000 inclusive of disbursements and HST.

Janet Simmons
    J.A.

S.E. Pepall J.A.

G. Pardu J.A.


