



WARNING

The court directs that the
    following should be attached to the file:

NOTICE OF PUBLICATION BAN

An order restricting publication
    in this proceeding imposed under s. 47(1) of the Health Professions Procedural
    Code (the Code), Schedule 2 to the
Regulated Health Professions Act, 1991
,
    S.O. 1991, c. 18 shall continue.

In the College of Physicians and
    Surgeons of Ontario and Dr. Javad Peirovy, the Discipline Committee ordered
    under s. 47(1) of the Code that no person shall publish or broadcast the
    identity of any information that could identify certain complainants.

Subsection 93(1) of the Code,
    addresses a failure to comply with these orders:

Every person who contravenes an
    order made under  section 45 or 47 is guilty of an offence and on conviction
    is liable,

(a) in the case of an individual
    to a fine of not more than $25,000 for a first offence and not more than
    $50,000 for a second or subsequent offence; or

(b) in the case of a corporation
    to a fine of not more than $50,000 for a first offence and not more than
    $200,000 for a second or subsequent offence.




COURT OF APPEAL FOR ONTARIO

CITATION: College of Physicians and Surgeons of Ontario v.
    Peirovy,

2018 ONCA 420

DATE: 20180503

DOCKET: C63644

Rouleau, Benotto and Roberts JJ.A.

BETWEEN

College of
    Physicians and Surgeons of Ontario

Appellant
    (Respondent)

and

Dr.
    Javad Peirovy

Respondent (Appellant)

W. Niels F. Ortved, David
    M. Porter, and Jordan Katz, fo  r the appellant

Elisabeth Widner and Ruth
    Ainsworth, for the respondent

Heard: November 27, 2017

On appeal from the order of
    the Divisional Court (Justices Molloy, Dambrot and Ramsay), dated January 17,
    2017, with reasons reported at 2017 ONSC 136, [2017] O.J. No. 194, reversing a
    decision of the Ontario College of Physicians and Surgeons Discipline Committee,
    dated July 17, 2015, with reasons reported at 2015 ONCPSD 30, [2016] O.C.P.S.D.
    No. 14.

Rouleau J.A.:

A.

OVERVIEW

[1]

This appeal concerns the proper application of the standard of review applicable
    to the decision of a professional disciplinary administrative tribunal by an
    appellate court.

[2]

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

[3]

Dr. Peirovys 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. These
    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 training.
    It was also ordered that he pay the victims therapy costs, and $35,680 in
    costs of the proceedings. The College of Physicians and Surgeons of Ontario (the
    College) appealed from 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.

[4]

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

[5]

Dr. Peirovy was granted leave to appeal the Divisional Courts decision.
    He submits that it should be set aside and the Discipline Committees penalty
    be reinstated.

[6]

For the reasons that follow, I agree that the appeal should be allowed
    and the Discipline Committees penalty be restored. Dr. Peirovys behaviour was
    reprehensible. However, the Discipline Committee is the expert tribunal created
    by the legislature to assess allegations of misconduct in the medical
    profession and to determine the penalty appropriately tailored to the
    circumstances of each case. As I will explain, the Discipline Committees
    decision on penalty contained no inconsistent findings of fact nor was the
    penalty imposed manifestly unfit. While the Divisional Court properly identified
    reasonableness as the standard of review, it failed to correctly apply that
    deferential standard to the Discipline Committees findings of fact and
    determination of penalty. Instead, the Divisional Court erroneously re-weighed
    the evidence and substituted its own view of what might constitute an
    appropriate penalty in the absence of any reversible error made by the
    Discipline Committee.

B.

Decision below - liability

[7]

In the liability phase of the hearing, the Discipline Committee heard
    from the various complainants and Dr. Peirovy. The allegations included claims
    that while examining patients with a stethoscope, he cupped patients breasts,
    touched patients nipples, placed his stethoscope directly on patients nipples
    and in one instance tweaked or squeezed a patients nipple.

[8]

Dr. Peirovy testified in his defence and denied that he had conducted
    the examinations in an inappropriate manner. He explained his touching as the
    result of his practice of examining lungs by placing his stethoscope under the
    patients clothes. He acknowledged that he may have occasionally and
    inadvertently touched a patients breast.

[9]

The Discipline Committee also heard conflicting evidence from experts as
    to the appropriateness of the manner in which Dr. Peirovy examined the
    complainants.

[10]

The
    Colleges expert, Dr. Howard J. Goldstein, maintained that Dr. Peirovys
    decisions to conduct lung examinations of three of the patients was clinically
    appropriate. Regarding a fourth patient, the expert characterized the decision to
    conduct a physical examination as not unreasonable. He agreed that it was
    appropriate for Dr. Peirovy to place the stethoscope directly on the patients
    bare skin, corresponding to the various areas of the lung. He acknowledged that
    it was possible during such an examination that a physicians hand might come
    in contact with the skin.

[11]

However,
    the Colleges expert opined that in all four of those cases, there was no
    medical necessity for Dr. Peirovys placement of the stethoscope or his fingers
    on the nipples of the patients or his hand on their breasts during the
    examinations. He opined that
there would be no
    benefit or medical necessity to place the stethoscope in that manner because
    the density of the breast tissue would influence the quality of the breath
    sounds one was listening for.
In his view, the breasts of a female
    patient, being private and sensitive areas, particularly the nipples, would be
    sort of generally excluded as part of a routine lung examination. He noted
    that [b]esides the fact that in my opinion it is medically unnecessary 
    touching the nipple with either the stethoscope or the hand may be
    misinterpreted by the patient. He did agree during cross-examination that some
    of the authoritative textbooks provide for the placement of the stethoscope
    near or on the nipple of patients for the purposes of examining the right
    middle lobe of the lung and that it was possible to hear breath sounds through
    breast tissue.

[12]

In
    the opinion of Dr. Peirovys expert, Dr. Wayne Weston, the manner in which
    all four of those examinations were conducted in the setting of a very busy
    clinic was clinically appropriate. He opined that given the limited amount of
    space when trying to examine important areas of the lung under a bra with a
    stethoscope, it would be difficult to always avoid touching and almost
    inevitable that the hand or fingers holding the stethoscope would touch the
    breast or maybe even the nipple of the patient. He was of the view that it was
    necessary to auscultate the lung on locations over the breast tissue because
    otherwise a physician would be missing important parts of the lungs, such as,
    for example, the right middle lobe. Dr. Westons report states that
    auscultating near the nipple and listening longer than expected by the patient could
    be misinterpreted as sexual contact unless the physician has provided a prior
    explanation.

[13]

The
    Discipline Committee accepted the evidence of the four complainants as to the
    inappropriateness of the touching, finding that their description of what had
    occurred was inconsistent with a misunderstanding. The Discipline Committee
    therefore rejected Dr. Peirovys evidence to the effect that there had
    been no inappropriate touching, or that it was inadvertent or misunderstood by
    those four women.

[14]

The
    Discipline Committee also accepted the opinion of the Colleges expert. It
    concluded that the manner in which four of the examinations were conducted was medically
    unnecessary and inappropriate.

[15]

The
    Discipline Committee concluded that the allegations had been made out, that the
    touching was deliberate and that there was no consent from the patients or
    clinical reason for Dr. Peirovy to have touched them in that manner.

[16]

When
    considering whether the inappropriate touching constituted sexual abuse, the
    Discipline Committee explained that it need not find that Dr. Peirovys
    touching of the breasts and nipples of the complainants was sexually motivated.
    It adopted the objective approach articulated by the Supreme Court of Canada in
R. v. Chase
,
[1987] 2
    S.C.R. 293, as follows:

In its deliberations on whether or
    not Dr. Peirovys actions were of a sexual nature, the Committee took guidance
    from the Supreme Court of Canada in the case of
R. v. Chase
[1987], 2
    SCR 293. Sexual assault is an assault that is committed in circumstances of a
    sexual nature, such that the sexual integrity of the victim is violated. The
    Court concluded that the test to be applied is an objective one, stating
    viewed in light of all the circumstances, is the sexual or carnal context of
    the assault visible to the reasonable observer. Sexual motivation on the part
    of the perpetrator is one factor to be considered but
the
    absence of sexual motivation, or in situations where the offenders motivation
    is unknown, would not preclude a finding that the behaviour in question is
    sexual in nature
. This is exemplified in a criminal case,
R. v. KBV
[1993], 2 SCR 857, where the accused was convicted of sexual assault for
    grabbing the genitals of his 3-year-old son, despite the obvious absence of
    sexual motivation. [Emphasis added.]

[17]

Using
    this approach, the Discipline Committee noted that it need only be satisfied
    that when viewed objectively, the actions in question were of a sexual nature. As
    the Discipline Committee observed:

The female breast is private and sensitive both physiologically
    and emotionally. Female patients have a right to expect that physicians will
    understand and respect their privacy when examinations of this nature are being
    conducted. A violation of the sexual integrity of a patient, including the
    deliberate touching of a patients breast without her consent and for no proper
    medical reason, constitutes sexual abuse.

[18]

For
    these reasons, the Discipline Committee concluded that, even in the absence of a
    finding as to Dr. Peirovys motivation, a finding of sexual abuse could be
    made where the touching in question was objectively a violation of a patients
    sexual integrity.

[19]

As
    a result, the Discipline Committee found as a fact that an objective observer
    would conclude that Dr. Peirovys conduct constituted violations of the sexual
    integrity of the complainants, regardless of his motivation, given his
    deliberate touching of the complainants private and sensitive areas without
    their consent and for no necessary medical reason.

[20]

The
    Discipline Committee therefore found Dr. Peirovy guilty of sexual abuse in
    relation to the four patients. In each case, the abusive conduct consisted of medically
    unnecessary touching of the breast or nipples of the patients during medically
    required chest examinations conducted using a stethoscope.

[21]

The
    Discipline Committee also found that Dr. Peirovy had asked a fifth patient on a
    date immediately following his medical examination of her during which her
    breasts were exposed. While not found to be sexual abuse, that conduct, as well
    as the four sexual abuse incidents, constituted disgraceful, dishonourable and
    unprofessional conduct.

[22]

The
    Discipline Committee was also informed that Dr. Peirovy had pleaded guilty to
    simple assault of two of the complainants in relation to these same incidents.
    These convictions, for which Dr. Peirovy received a conditional discharge, were
    considered relevant to his suitability to practice. The Discipline Committee
    also considered these convictions to be professional misconduct.

C.

Decision below - penalty

[23]

Several
    months later, the Discipline Committee held a separate hearing on penalty
    during which it heard evidence from two experts: Dr. Rootenberg, a forensic
    psychiatrist, who specializes in the assessment and treatment of persons who
    have committed sexual and other offences, including their risk of re-offending;
    and Dr. Martin, an educational consultant in the Office of Post-Graduate
    Medicine at the University of Toronto with a PhD in curriculum teaching and
    learning, who specializes in assisting physicians with patient communications,
    boundary awareness and maintenance and remediation training and has provided
    remedial training to over 100 physicians on referral from the College. Their
    qualification as experts in these areas was not challenged.

[24]

The
    Discipline Committee accepted the expert evidence of Dr. Rootenberg that Dr.
    Peirovy did not meet the diagnostic criteria for psychopathology or sexual
    deviance, which, he testified, is relevant with respect to relapse and
    prevention. Dr. Rootenbergs opinion was based on numerous sources, including
    assessment interviews he conducted with Dr. Peirovy, assessment interviews
    conducted by a forensic psychologist and forensic social worker, and
    information obtained from collateral sources including the managers of the two
    medical clinics where Dr. Peirovy currently practices. Dr. Rootenberg also drew
    from the Discipline Committees liability decision, and the evidence given and
    exhibits filed at the liability hearing.

[25]

The
    Discipline Committee also accepted the expert evidence that the risk of Dr. Peirovy
    re-offending by committing further sexual transgressions in the future was low.
    In Dr. Rootenbergs view, Dr. Peirovy had worked hard to understand his
    inappropriate behaviour, was very embarrassed and ashamed of what he had done,
    and was sincere in his desire that this not happen again.

[26]

Dr.
    Martins expert evidence was relevant to the issues of remediation and risk
    management that the Discipline Committee was required to consider in
    determining the appropriate penalty. She highlighted deficits in Dr. Peirovys
    interactive skills with patients that give rise to the same risk factors of
    misunderstanding by patients outlined by the experts who testified at the
    liability hearing. The Discipline Committee agreed with Dr. Martins assessment
    of Dr. Peirovy which it summarized as follows:

Dr. Ds [Dr. Martins] assessment
    of Dr. Peirovy indicated that, in her opinion, he had deficits in a number of
    areas. These included his interviewing skills, his manner (which was described
    as awkward and clumsy), his verbal communication, his awareness of issues
    pertaining to patient consent, his sensitivity to how his patients were
    perceiving him, and how his behaviour was affecting his patients. Dr. D [Dr.
    Martin] stated that Dr. Peirovy was largely unaware of his professional
    responsibilities in maintaining appropriate boundaries in the doctor/patient
    relationship.

[27]

The
    Discipline Committee also accepted Dr. Martins opinion that Dr. Peirovy
    had made good progress in remedying the deficits identified. She had worked
    with him from August 2013 to June 2015. Dr. Martin reported that there had been
    huge professional maturation. No concerns had been expressed by the practice
    monitor. Although the Discipline Committee acknowledged the substantial
    progress, it nonetheless felt further remediation work was needed as he had not
    yet taken full responsibility for his actions.

[28]

With
    the benefit of the expert evidence, the Discipline Committee was able to
    conclude that some of the antecedents to Dr. Peirovys sexual misconduct were
    due to serious deficits in his communication skills, his sensitivity to the
    extent of his patients vulnerability, and his understanding of boundaries and
    consent. Although the Discipline Committee acknowledged that those deficits
    in no way diminish or excuse the fact that he repeatedly subjected several
    patients to abusive experiences, the Discipline Committee found as a fact that
    Dr. Peirovys awkward, unskilled, and non-empathic manner with his female
    patients was a factor in understanding his abusive behaviour.

[29]

The
    assessment of the Discipline Committee, however, was that a full understanding
    of Dr. Peirovys motivations remained unclear. The expert evidence effectively
    ruled out psychopathology or sexual deviance, which the Discipline Committee
    found lessened the risk of re-offence. However, while no finding of sexual
    motivation was made, a degree of prurient interest in the patients could not be
    completely excluded.

[30]

The
    Discipline Committee then explained that the fact that four patients had been
    subjected to sexual abuse in fairly close succession was an aggravating factor.
    Based on the expert evidence, it declined however to infer that this was
    indicative of predatory intent or uncontrollable deviant urges on
    Dr. Peirovys part. It is at this point that the Discipline Committee
    posited another possible inference that could explain why there were four
    patients abused in close succession:

Another possible inference is that
    this pattern reflects a physician who was genuinely and completely unaware of
    the ways in which his behaviour in relation to his patients was, in fact,
    abusive.

[31]

It
    is this quote that the Divisional Court cites as demonstrating that the
    Discipline Committee made an unreasonable finding that contradicted the
    findings it made at the liability stage.

[32]

The
    Discipline Committee ultimately suspended Dr. Peirovys licence for six months.
    He was ordered to submit to a reprimand, and required to pay $64,240 for the victims
    therapy costs and $35,680 in costs of the proceedings. He was also ordered to continue
    undergoing individualized instruction with Dr. Martin focused on consent,
    boundaries, and doctor-patient communications, and to complete a clinical
    education program focused on physical examinations.

[33]

A
    number of restrictions were also imposed on Dr. Peirovys return to practice. He
    was prohibited from engaging in any encounter with female patients except under
    the supervision of a practice monitor approved by the College. He was also
    required to post a sign in the waiting room and examination rooms at each of
    his practice locations advising patients of this restriction. The practice
    monitor condition could be reconsidered on an application to the Committee
    after a minimum of one year following his return to practice. Dr. Peirovy was
    also required to tell patients how to access the Discipline Committees
    decision if requested, and to submit to unannounced inspections of his practice
    locations and patient charts by the College in order to ensure compliance.

D.

ISSUES

[34]

Dr.
    Peirovy raises two issues:

1.

Did the Divisional
    Court err in concluding that the Discipline Committee made inconsistent
    findings of fact warranting intervention; and

2.

Did the Divisional
    Court err in determining that the penalty imposed by the Discipline Committee was
    manifestly unfit?

[35]

I
    will deal with both of these issues in turn.

E.

Analysis

[36]

To
    frame my analysis of the issues on appeal, it is important to set out the
    standard of review that the Divisional Court was required but failed to
    properly apply to the penalty decision of the Discipline Committee.

[37]

When
    it acts as a reviewing court of an administrative tribunal, the Divisional
    Court must not interfere if the decision is reasonable, that is [i]f any of
    the reasons that are sufficient to support the conclusion are tenable in the
    sense that they can stand up to a somewhat probing examination:
Law
    Society of New Brunswick v. Ryan
,
2003 SCC 20, [2003] 1 S.C.R. 247, at para. 55 and
Groia v. Law Society
    of Upper Canada
, 2016 ONCA 471, 131 O.R. (3d) 1, at para. 81.

[38]

To
    overturn a penalty, the Discipline Committee must have made an error in
    principle or the penalty must be clearly unfit:
Reid v. College of
    Chiropractors of Ontario
, 2016 ONSC 1041, [2016] O.J. No. 3080 (Div. Ct.),
    at para. 99. A penalty will be clearly unfit where the decision does not fall
    within a range of possible, acceptable outcomes which are defensible in
    respect of the facts and law:
Dunsmuir v. New Brunswick
, 2008 SCC 9,
    [2008] 1 S.C.R. 190, at para. 47.

[39]

Where,
    as here, there is a statutory appeal from a decision of a specialized
    administrative tribunal, the appropriate standards of review are the ones that
    apply on judicial review, not those that normally apply on appeal:
Mouvement
    laïque québécois v. Saguenay (City)
, 2015 SCC 16, [2015] 2 S.C.R. 3, at
    para. 29. The question this court must answer is whether the Divisional
    Court chose the appropriate standard of review and applied it correctly. This
    requires the court to step into the lower courts shoes and focus on the
    administrative decision:
Agraira v. Canada (Minister of Public Safety and
    Emergency Preparedness)
, 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 46.

[40]

The
    Divisional Court correctly selected and articulated the reasonableness standard
    of review. However, as I will explain in the following paragraphs, the
    Divisional Court failed to properly apply the reasonableness standard. Instead,
    it incorrectly substituted its own assessments of the evidence and penalty for
    those of the Discipline Committee.

(1)

Did the Divisional Court err in concluding that the Discipline Committee
    made inconsistent findings of fact warranting intervention?

[41]

The
    Divisional Court found the Discipline Committees penalty decision to be unreasonable
    because it was based on inconsistent findings of fact.

[42]

Specifically,
    it rejected the Discipline Committees suggestion that Dr. Peirovys unawareness
    as to how his behavior was abusive could possibly explain the abuse of four
    patients. According to the Divisional Court, there was:

[N]o line of analysis that could
    reasonably lead the tribunal to conclude that [Dr. Peirovys] 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.

[43]

This
    possible inference of unawareness drawn by the Discipline Committee was, in
    the Divisional Courts view, inconsistent with the finding of fact that there
    were several offences. More importantly, the inference was considered inconsistent
    with the Discipline Committees finding at the liability stage that Dr. Peirovy
    had touched the complainants in a way that an objective observer would find to
    be sexual and which the complainants described as blatantly sexual.

[44]

There
    are several problems with the Divisional Courts concern. First, the Discipline
    Committees finding is well supported by the testimony of the experts, some of
    which I have summarized above. This includes the Colleges expert at the
    liability hearing, who testified that touching a female patients nipple with
    either the hand or the stethoscope during a lung examination should be avoided
    because it is medically unnecessary and could be misinterpreted. In addition, the
    finding is supported by the Discipline Committees assessment of Dr. Peirovys
    testimony. Finally, the Discipline Committee did not, as the Divisional Court
    suggests, find that Dr. Peirovys awkward, unskilled and non-empathic
    manner was the only cause; it simply opined that it was a factor.

[45]

The
    Discipline Committee specifically considered the significance of the number of
    incidents. It rejected the inference that Dr. Peirovy had a predatory intent
    or uncontrollable deviant urges on the basis of the entire record and Dr. Rootenbergs
    evidence. This finding was open to the Discipline Committee, as was the
    inference that this improves the prognosis and lessens the risk of re-offence. It
    was also open to the Discipline Committee to suggest that the number of
    incidents, including one that occurred after Dr. Peirovy was informed of a
    complaint against him, might be explained by his lack of insight as to the
    abusive nature of his conduct.

[46]

It
    is to be recalled that Dr. Peirovys culpability was based on the finding of
    objectively sexual misconduct. The paramount principle animating the penalty
    proceedings was, as the Discipline Committee recognized, the protection of the
    public. In essence, the questions the Discipline Committee had to answer were
    first, the appropriate sanction for the misconduct, and second, whether it was
    safe to allow Dr. Peirovy to continue to practice and, if so, subject to what
    conditions.

[47]

The
    Divisional Court advanced a second basis for rejecting the Discipline Committees
    suggestion that the several counts of sexual abuse could possibly be explained
    by Dr. Peirovys genuine and complete unawareness of the ways in which his
    behaviour was abusive. In the Divisional Courts view, such an inference is
    inconsistent with Dr. Peirovy having been found guilty of criminal assault on
    two of the complainants.

[48]

This
    basis is also flawed. The Discipline Committees possible inference is not inconsistent
    with a finding of guilt for simple assault. Simple assault contemplates an
    unwanted touching. The Discipline Committee found that Dr. Peirovy deliberately
    touched the complainants in areas that were medically unjustified and that the
    complainants had not consented to the touching. This is sufficient to support
    the simple assault convictions. Such inferences are not inconsistent with the finding
    that Dr. Peirovy lacked understanding with respect to appropriate boundaries,
    patient consent, and sensitivity to how patients were perceiving him. Clearly,
    there was touching by Dr. Peirovy in a manner that had not been consented to. A
    sexual motivation need not be proven to support a conviction for simple assault.

[49]

The
    Divisional Court then expressed the view that Dr. Peirovys motivation can
    have been nothing but sexual. It stated that the Discipline Committee had made
    such a finding in the liability phase of the hearing and then contradicted
    itself in its sentencing reasons. The Divisional Court explained that it would
    be unreasonable for the Discipline Committee to rule at the sentencing phase that
    Dr. Peirovy did not understand his conduct to be sexual abuse after having found
    that an objective observer would have considered that it constituted a
    violation of the patients sexual integrity.

[50]

The
    difficulty with the Divisional Courts position is that it reflects a
    misunderstanding of the nuanced findings made by the Discipline Committee and
    misconstrues the objective test articulated in
Chase
. The objective
    test that led to the Discipline Committees finding of sexual abuse turned on
    the perspective of a reasonable observer, and did not go so far as to attribute
    subjective sexual motivation to Dr. Peirovy. As set out earlier, the Discipline
    Committee was not able to make any clear finding as to the presence or absence
    of sexual motivation in Dr. Peirovys conduct. It was not required to do so in
    the circumstances of this case, where it found that the sexual integrity of the
    patients had been violated because private and sensitive areas of the body had been
    touched without the patients consent and without medical necessity. Nevertheless,
    in fashioning the appropriate penalty, the Discipline Committee was careful to
    note that a degree of prurient interest could not be completely ruled out. This
    made clear that it took this possibility into account in designing the penalty
    imposed.

[51]

It
    may well be that conclusions and inferences different from those reached and
    made by the Discipline Committee are possible, but the standard of
    reasonableness is satisfied so long as the explanation given for the conclusion
    is reasonable even if it is not one that the reviewing court finds
    compelling:
Ryan
, at para. 55 and
Groia
, at para. 81. Deference
    requires respectful attention to the tribunals reasoning process:
Stewart
    v. Elk Valley Coal Corp.,
2017 SCC 30, [2017] 1 S.C.R. 591, at para. 27.

[52]

This
    courts role is to determine whether the reviewing court chose and applied the
    correct standard of review:
Agraira
, at paras. 45-47. If that was not
    the case, we must assess the administrative bodys decision in light of the
    correct standard of review, namely, reasonableness:
Dr. Q. v. College of
    Physicians & Surgeons (British Columbia)
, 2003 SCC 19, [2003] 1 S.C.R.
    226, at para. 43 and
Victoria University v. GE Canada Real Estate Equity
,
    2016 ONCA 646, [2016] O.J. No. 4493, at para. 84.

[53]

Here,
    the Divisional Court chose the correct standard of review. However, in my view,
    the Divisional Court not only erred in its understanding of the evidence and of
    the reasons of the Discipline Committee, it effectively sought to retry the
    case in a manner inconsistent with the proper application of the standard of
    review. This is contrary to the Supreme Courts holding in
Dunsmuir
,
    at para. 48, that a reviewing court must do more than simply cite the correct
    standard of review. It must apply it and refrain from substituting its own view
    for that of the tribunal. The reviewing court must resist the temptation to place
    itself in the position of the decision-maker of first instance and compare the
    decision it would have made against the decision actually made at first
    instance, as this approach is prone to undue conclusions of unreasonableness:
Ottawa
    Police Services v. Diafwila
, 2016 ONCA 627, 352 O.A.C. 310, at para. 66.

[54]

There
    were no inconsistent findings of fact warranting intervention by the Divisional
    Court. It subjected the reasons of the Discipline 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
.

(2)

Did the Divisional Court err in concluding that the penalty imposed by
    the Discipline Committee was manifestly unfit?

[55]

The
    Divisional Courts second basis for allowing the appeal is that the Discipline
    Committee imposed an unfit penalty. As I will explain, the Divisional Courts
    analysis is flawed. First, it misunderstood the Discipline Committees reasons
    and misapplied the reasonableness standard of review. As the Divisional Court
    properly stated, a penalty decision of such a tribunal is at the heart of its
    discretion and is due great deference. Nevertheless, the Divisional Court in
    effect simply substituted its view of what might constitute an appropriate penalty
    and did not defer to the Discipline Committees decision as was required. Furthermore,
    the penalty imposed was not manifestly unfit but represented the Discipline
    Committees careful consideration of all relevant factors and was within the
    range of reasonable outcomes.

[56]

To
    be overturned by a reviewing court, the Discipline Committee must have made an
    error in principle or the penalty must be clearly unfit:
Reid
, at
    para. 99. The Supreme Court recently considered the meaning of similar phrases
    in the criminal context in
R. c. Lacasse
, 2015 SCC 64,
[2015] 3 S.C.R. 1089,
noting that courts have
    used a variety of expressions to describe a sentence that reaches this
    threshold, including demonstrably unfit, clearly unreasonable, clearly or
    manifestly excessive, clearly excessive or inadequate or representing a
    substantial and marked departure. Wagner J. observed,
at para. 53, that all these expressions reflect the very high threshold
    that applies to appellate courts when determining whether they should intervene
    after reviewing the fitness of a sentence.
He concluded, at para. 54,
    that a sentence will be demonstrably unfit if it constitutes an unreasonable
    departure from the principle of proportionality.

[57]

A
    similarly high threshold applies in the administrative context. To be clearly
    unfit, the penalty must fall outside of the range of reasonableness. A
    reasonable penalty will be guided by proportionality and an assessment of the
    range of appropriate penalties dependent upon the facts of each case, [and] guided
    by penalties imposed in other cases:
Reid,
at para. 100.

[58]

The
    Discipline Committee considered a number of its previous decisions involving
    the sexual abuse of patients. The factual scenarios in those cases are, like the
    present case, disturbing. However, they show that the penalty imposed on Dr.
    Peirovy is in line with those that have been imposed in Ontario. In fact, a
    six-month suspension has been imposed for sexual misconduct more egregious than
    the misconduct at issue here: see
C.P.S.O. v. Lee
, [2009] O.C.P.S.D. No.
    10;
Rakem (Re)
, 2014 ONCPSD 25, [2014] O.C.P.S.D. No. 22. Only one
    decision in which a doctors licence was revoked was submitted to the
    Discipline Committee.
C.P.S.O.

v.
    Minnes
, 2015 ONCPSD 3, [2015] O.C.P.S.D. No. 3 involved a physicians
    attempted sexual assault of a 17-year-old female counsellor, a non-patient, at
    a summer camp where he was camp physician.  The Discipline Committee noted that
    the horrific circumstances of the attempted sexual assault required no penalty
    short of revocation in that case, which bore little similarity to the present
    one.

[59]

The
    penalty imposed by the Discipline Committee was carefully tailored to the
    circumstances of this case, and fit comfortably within the range of penalties
    imposed in other similar or more serious cases of sexual abuse of patients. It
    was based on forensic psychiatric evidence accepted by the Discipline Committee
    as well as the evidence it heard during the liability phase. It also took into
    account the progress shown by Dr. Peirovy in addressing some of the
    concerns. Further, following the lodging of the complaints, Dr. Peirovy had
    practiced with supervision for about five years without any incident.

[60]

The
    Divisional Court relies on four errors allegedly made by the Discipline
    Committee to justify its interference with the penalty imposed. I will address
    each of them in turn.

(a)

Did the Discipline Committee fetter its discretion with respect to the
    penalty of revocation?

[61]

The
    first basis advanced by the Divisional Court is that the Discipline Committee improperly
    fettered its discretion by proceeding on the basis that revocation of
    registration is reserved for egregious conduct or offenders with a high risk to
    re-offend.

[62]

Had
    the Discipline Committee proceeded on this basis, it may well have erred, even
    on the reasonableness standard of review. This is not, however, an accurate or
    reasonable interpretation of what the Discipline Committee said or intended. In
    the relevant portion of the reasons, the Discipline Committee was discussing
    two of the several principles of sentencing: maintaining public confidence in
    the integrity of the profession and protection of the public.

[63]

The
    Discipline Committee explained that protection of the public is generally taken
    as the paramount principle of sentencing. It is then that the Discipline
    Committee stated:

Although the two principles are
    not identical, and there will be cases where the egregious nature of the misconduct
    itself will demand revocation even where the risk of re-offence is low, a
    well-informed public would be expected to maintain confidence in a
    self-regulating process which results in the public being protected from
    abusive physicians.

[64]

In
    this passage, the Discipline Committee was quite properly pointing out that revocation
    is sometimes demanded by egregious conduct alone. As it indicated in other
    parts of its reasons, however, it is tasked with arriving at a fair and just
    penalty that addresses all of the sentencing principles. Those principles
    include the paramount consideration of protection of the public, as well as maintenance
    of public confidence in the reputation and integrity of
the profession, effective self-governance, general deterrence, specific
    deterrence, and the potential for the member's rehabilitation. Proportionality
    is also an important consideration.

[65]

The
    Discipline Committees reasons as a whole make clear that it did not
    erroneously assume that revocation was available only in a narrowly constrained
    set of circumstances. Rather, it concluded that the suspension and practice
    restrictions imposed struck the most appropriate balance between the variety of
    sentencing principles at play in this case.

(b)

Was the suspension imposed by the Discipline Committee unreasonably
    short?

[66]

The
    second concern raised by the Divisional Court is that the six-month suspension
    imposed by the Discipline Committee was too short. The Divisional Court
    explained that the suspension was clearly inadequate to deter others and to
    contribute meaningfully to the eradication of sexual abuse in the profession. The
    Divisional Court opined that on the facts of this case, it would expect the
    Committee to be debating whether to revoke the members registration or impose
    a suspension measured in years, as opposed to months.

[67]

I
    disagree. The penalty imposed was serious and within the range of reasonable
    outcomes. In my view, the Divisional Court improperly substituted its own view
    for the Discipline Committees determination, as a statutorily-mandated,
    specialized tribunal, of what is required to respond to the legislatures goal
    of eradicating the sexual abuse of patients.

[68]

A
    court examining the reasonableness of a disciplinary tribunals decision on
    penalty is concerned with whether the decision falls within a range of
    possible, acceptable outcomes which are defensible in respect of the facts and
    law:
Dunsmuir
, at para. 47. The Divisional Court ought not,
    therefore, to have effectively substituted its view of the appropriate penalty
    for that of the Discipline Committee. As explained by the Supreme Court of
    Canada in
Dr. Q
, at para. 31:

A statutory purpose that requires
    a tribunal to select from a range of remedial choices or administrative
    responses, is concerned with the protection of the public, engages policy
    issues, or involves the balancing of multiple sets of interests or considerations
    will demand greater deference from a reviewing court.
[Citations
    omitted.]

See also
Association des
    courtiers et agents immobiliers du Québec v. Proprio Direct Inc.
, 2008 SCC
    32, [2008] 2 S.C.R. 195, at paras.
17-21 and
Ryan
, at para. 51.

[69]

It
    is undeniable that the conduct exhibited by Dr. Peirovy in this case is to be
    roundly condemned. This is the approach followed by the Discipline Committee in
    this case. The penalty imposed was serious. It followed a lengthy period during
    which Dr. Peirovy was required to practice under supervision and with
    restrictions. The Discipline Committee did not accept the four-month suspension
    proposed by Dr. Peirovy but imposed six months, in keeping with the range
    of similar and in some cases more serious instances of sexual abuse.

[70]

Further,
    as already highlighted, the penalty imposed did not consist solely of a
    suspension. It contained other restrictions, including supervision during all
    interactions with female patients and the posting of a sign advising patients
    of this restriction on Dr. Peirovys practice. The penalty provides that these
    restrictions will continue for a minimum of one year after Dr. Peirovy has
    served his suspension. Dr. Peirovy will also have to continue individualized
    instruction and pay significant sums for costs incurred in the prosecution and
    for therapy undergone by the complainants.

[71]

Although
    not coming to a final determination on the issue of Dr. Peirovys
    motivation for his conduct, it is implicit that the Discipline Committee was
    confident that his behaviour could be corrected, even if a prurient interest
    could not be completely ruled out. In fact, the Discipline Committee found that
    it was possible for Dr. Peirovy to continue to practice safely. This conclusion
    did not depart from the range of reasonable outcomes in the circumstances,
    considering the evidence of the experts and the numerous mitigating factors.
    Those included the progress made by Dr. Peirovy since the last incident,
    his engagement in the rehabilitation process, the lack of deviant urges, his
    embarrassment and shame for his actions, and the effectiveness of the practice
    monitor condition.

[72]

The
    legislature gave the Discipline Committee the task of fashioning penalties that
    will favour the goal of eradicating sexual abuse of patients while taking into
    account and balancing other relevant factors. Unlike criminal sentences, which
    are determined by the courts pursuant to the
Criminal Code
, self-regulated
    professions are mandated to make these determinations.

[73]

Deference
    is owed to discipline committees because they are tribunals composed of members
    of the profession and of the public with the expertise to assess the level of
    threat to the public and the  profession posed by certain forms of behaviour.
    Therefore, they are in a better position than the courts to determine
    appropriate penalties for professional misconduct: see
Ryan
,
at para. 33 and
The Law Society of
    Upper Canada v. Abbott
, 2017 ONCA 525, 139 O.R. (3d) 290, leave to appeal
    to SCC requested, at paras. 12-15 and 52-54;
Richardson v. Law Society
    (New Brunswick)
, 2011 NBCA 108, 381 N.B.R. (2d) 391, at para. 4.

[74]

As
    this court has said in the past, [t]he issue of the appropriate penalty for
    infractions within a profession or industry is one that is uniquely within the
    experience, expertise and discretion of the relevant disciplinary tribunal and
    is therefore subject to a high degree of deference:
Stetler v.
    Agriculture, Food and Rural Affairs Appeal Tribunal
(2005), 76 O.R. (3d)
    321 (C.A.), at para. 108.

[75]

In
Abbott
, this court also highlighted, at para. 13, two additional
    reasons why professional disciplinary bodies are entitled to deference from a
    reviewing court. First, the committee has the benefit of hearing live testimony
    directly from witnesses and consequently has a more comprehensive understanding
    of the evidence. Second, determining an appropriate penalty is a question of
    mixed fact and law, which does not lend itself to the extrication of a pure
    question of law. In
Ryan
, the Supreme Court observed, at para. 41:

The question of what sanction Mr.
    Ryan should face as a result of his misconduct is a question of mixed fact and
    law since it involves the application of general principles of the Act to
    specific circumstances. The Court of Appeal impugned the weight that the Committee
    assigned to particular mitigating evidence and also disapproved of the
    Committee's selection of factually similar cases. These are fact-intensive
    elements within the question of mixed fact and law. They do not involve easily
    extracted and discretely framed questions of law. The Committee's decision on
    sanction is not one that will determine future cases except insofar as it is a
    useful case for comparison. The decision is intricately bound to many factual
    findings and inferences about the misconduct of Mr. Ryan and the interests of
    the public and the profession.

[76]

A
    reviewing court that fails to show due deference effectively usurps the
    administrative bodys statutory role. The concept of deference is rooted in
    part in respect for the legislatures decision to create and delegate powers to
    administrative bodies:
Dunsmuir
, at para. 48. The Divisional Courts
    decision did not respect the legislatures choice to delegate the determination
    of the appropriate penalty to the Discipline Committee:
Dunsmuir
, at para.
    49. Reasonable penalties should not be overturned when deference is due.
    Otherwise, nothing prevents reviewing courts from arbitrarily intervening in
    every administrative decision and undermining the disciplinary scheme created
    by the legislature. This would also have the effect of introducing uncertainty
    in the finality of disciplinary penalties.

(c)

Did the Discipline Committee incorrectly treat public confidence as a
    shifting standard?

[77]

The
    third error the Divisional Court purported to identify is that the Discipline
    Committee incorrectly viewed public confidence in the medical profession to be
    a shifting standard.

[78]

In
    my view, the Divisional Courts concern with the Discipline Committees
    reference to public confidence is unclear and, in any event, misplaced. The
    relevant quotation from the Discipline Committees reasons is as follows: The
    committee accepted that the maintenance of public confidence is a shifting
    standard. This statement appears to simply be an acceptance by the Discipline
    Committee of a submission made by the College. The Discipline Committee was properly
    observing that what needs to be done to maintain the publics confidence must
    constantly be reassessed in light of considerations such as changes in society
    and in the practice of medicine. This is a reasonable observation. It neither
    constitutes a palpable and overriding error nor an error in principle. Moreover,
    it is in keeping with the Divisional Courts concern that the Discipline
    Committees penalties remain current with public standards and expectations.

(d)

Do the prior decisions considered by the Discipline Committee constitute
    a litany of clearly unfit penalties?

[79]

The
    final basis advanced by the Divisional Court for interfering is that all the penalties
    imposed in similar cases were, in the Divisional Courts view, a litany of
    clearly unfit penalties. In other words, it considered that the penalties imposed
    by numerous other discipline committees over the course of more than a decade were
    wrong and that the Discipline Committee erred in referring to these as
    precedents.

[80]

By
    this statement the Divisional Court was, in effect, acknowledging that the
    penalty imposed was consistent with the range of penalties established in the
    existing authorities. Although the Discipline Committee was not bound by its previous
    decisions, it is well settled that consistency in sentencing is as important in
    professional bodies as in the criminal courts, and that consideration should be
    given to disciplinary penalties imposed in similar cases: see
Re Stevens
    and Law Society of Upper Canada
(1979), 55 O.R. (2d) 405 (Div. Ct.), at p.
    411;
Law Society of Upper Canada v. Neinstein
(2008), 241 O.A.C. 199
    (Div. Ct.), at para. 15.

[81]

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 cases were not appealed and, in some
    cases, were the result of joint submissions by the College and the offender:
Le
    (Re)
, [2010] O.C.P.S.D. No. 10;
C.P.S.O. v. Marks
, 2012 ONCPSD
    13, [2012] O.C.P.S.D. No. 19;
Rakem (Re)
. 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.

[82]

In
    its submissions before this court, the respondent suggests that we should interpret
    the Divisional Courts decision as appropriately declaring that a change to the
    penalty range was required. In other words, the Divisional Court viewed the
    penalty range that has existed for over a decade to be too low. Therefore, even
    if we were to accept that the prior cases cited by Dr. Peirovy were properly
    decided, under current circumstances, the range that these reflected was no
    longer appropriate. In support of this submission, the respondent points to the
    Colleges Revised Draft Sexual Abuse Principles prepared in 2015 and the
    legislatures 2017 amendment, the
Protecting Patients Act
, 2017, S.O.
    2017, c. 11, to the governing statute, the
Regulated Health Professions Act
,
    1991, S.O. 1991, c. 18. The 2017 amendment made revocation mandatory for sexual
    abuse of the nature committed in this case.

[83]

I
    disagree. First, this is not what the Divisional Court said. More importantly,
    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. This is not to suggest that penalty ranges cannot change. The
    Discipline Committee was in the best position to assess whether a deviation
    from the range of penalties previously imposed for similar misconduct or a
    wholesale change was required. However, in the circumstances of this case, changing
    the penalty range was effectively an arbitrary exercise. The Divisional Courts
    conclusion that the penalty imposed in this and similar cases was inadequate
    to protect the public and vindicate the integrity of the profession was not
    grounded in the jurisprudence of the Discipline Committee.

[84]

The
    courts conclusion was also made in the absence of a proper and sufficient record
    showing that the Discipline Committee was not properly carrying out its mandate
    and that its approach was failing or manifestly out of step with contemporary
    social values. As already explained, specialized tribunals like the Discipline
    Committee have been given the mandate to design appropriate penalties for
    professional misconduct. They have been consistently recognized as being in the
    best position to assess the level of threat posed to the public by certain
    forms of behaviour:
Mussani v. C.P.S.O.
(2004), 74 O.R. (3d) 1 (C.A.)
,
at para. 113;
Ryan
,
    at para. 33.

[85]

As
    for whether the time had come for change, the Discipline Committee noted that
    the College had prepared Revised Draft Sexual Abuse Principles in 2015 which proposed
    more severe penalties. The Discipline Committee was aware of and would therefore
    have taken account of the increasing concern for sexual abuse by physicians.
    This concern is not new. Since at least 1991, when a taskforce on the sexual
    abuse of patients submitted its report, it has been recognized that sexual
    abuse tarnishes public trust in the entire profession. The legislative response
    to that taskforce report came in 1993 with the introduction of a zero
    tolerance/mandatory revocation scheme for specified sexual acts between health
    professionals and their patients.

[86]

In
    2017, after the decision under appeal, the legislature responded to the Colleges
    2015 Draft Sexual Abuse Principles. It determined that penalties for sexual
    abuse should be increased by expanding the application of mandatory revocation.
    That penalty is now mandatory in cases where touching of a sexual nature occurs
    on the patients genitals, anus, breasts or buttocks. Dr. Peirovys conduct
    would likely be covered by this definition. The amendments further require the discipline
    committees to make interim orders suspending a members certificate of
    registration immediately upon making a finding of sexual abuse that would
    attract a mandatory revocation.

[87]

These
    2017 legislative amendments do not retroactively validate the Divisional
    Courts erroneous application of the deferential standard of review to the
    Discipline Committees 2016 decision on penalty for offences occurring in 2009
    and 2010. A penalty must reflect the context in which the misconduct occurred:
Law
    Society of Upper Canada v. Neinstein
(2007), 85 O.R. (3d) 446 (Div. Ct.), revd
    on other grounds 2010 ONCA 193, 99 O.R. (3d) 1, at para. 104. In accordance
    with the proper administration of justice and procedural fairness, Dr. Peirovys
    case had to be adjudicated based on the law in force at the time. Any
    legislative change that followed is irrelevant.

[88]

In
    fact, to some extent, the legislative response serves to further highlight the
    differing institutional roles at play in this case. The legislature is
    responsible for setting the framework under which the Discipline Committee
    operates. The application of the framework is left in the hands of the Discipline
    Committee, and deference is owed to the way in which the Discipline Committee
    discharges its duties within the scope of that mandate. The fact that the
    legislature chose to modify the parameters under which the Committee operates
    in 2017 does not render decisions made under the previous regime unreasonable.

[89]

As
    already noted, the suspension imposed was serious, accompanied by other
    restrictions, and lasted for a longer term than requested by Dr. Peirovy. Furthermore,
    the range of penalties imposed in the cases reviewed by the Committee show that
    the penalty received by Dr. Peirovy was in keeping (and exceeding in some
    instances) those imposed in Ontario and across Canada.

[90]

The
    Divisional Court panel clearly felt that the penalties being imposed on medical
    practitioners by discipline committees for sexual abuse had not been severe
    enough for many years and should be increased. However, in the absence of
    reviewable error by the Discipline Committee or the imposition of a penalty
    outside the range of possible, acceptable, and defensible outcomes open to it
    on the evidence, the Divisional Court could not and should not have interfered
    to substitute its own opinion for that of the expert panel charged with the
    duty of determining the appropriate penalty.

[91]

No
    reversible error has been identified in the Discipline Committees decision on
    penalty. The Discipline Committee correctly stated and applied the established
    principles it was required to consider at the penalty phase. It was aware of
    the range of the penalties that it could impose, which included revocation of Dr.
    Peirovys licence to practice, as urged by the respondent. Acknowledging that
    it was not bound by previous decisions, the Discipline Committee properly
    looked to them for assistance in establishing the range of possible acceptable
    and defensible outcomes that were open to it on the evidence.

[92]

Most
    importantly, the Discipline Committee was manifestly concerned with the paramount
    principle of the protection of the public. It accepted Dr. Rootenbergs
    evidence that Dr. Peirovy posed a low risk of recidivism. Risk is to be assessed
    in light of the conditions that can be imposed in order to mitigate that risk
    for the purposes of sentencing: see
R. v. Proulx
,
2000
    SCC 5, [2000] 1 S.C.R. 61, at para. 72
;
R. v. Esmonde
(2002)
, 161 O.A.C. 40 (C.A.), at para.
    11. In this case, in addition to the suspension imposed, the Discipline
    Committee imposed conditions on Dr. Peirovys return to practice to address the
    particular nature of his risk to the public. Overall, the Discipline Committee crafted
    a careful penalty that reflected the principle of the protection of the public,
    while balancing the other principles that it was required to consider,
    including proportionality and the rehabilitation of Dr. Peirovy.

F.

CONCLUSION

[93]

For
    these reasons, I would allow the appeal and restore the penalty imposed by the
    Discipline Committee. I would award Dr. Peirovy his costs in the amounts
    agreed. Those amounts are $15,000 for the appeal, $1,500 for the application
    for leave to appeal, and $7,500 in the Divisional Court, all of which are
    inclusive of disbursements and applicable taxes.

Paul Rouleau J.A.

I agree L.B. Roberts
    J.A.


Benotto J.A. (dissenting):

[94]

This
    appeal concerns the duty of the Discipline Committee of the College of
    Physicians and Surgeons (the Discipline Committee) to protect the public from
    doctors who sexually abuse their patients.

[95]

I
    agree with my colleague as to the standard of review to be applied to the
    Discipline Committees penalty decision. However, I do not agree that the
    Divisional Court erred in its application.

[96]

I
    would dismiss the appeal.

OVERVIEW

[97]

The
    College of Physicians and Surgeons (the College) received six separate
    complaints from young women seen by Dr. Peirovy at walk-in clinics. The
    complainants described that, while examining them with a stethoscope, Dr.
    Peirovy cupped their breasts, touched their nipples, in one case tweak[ed] a
    nipple, and asked one patient out on a date. Dr. Peirovy denied the
    inappropriate touching.

[98]

Dr.
    Peirovy was charged criminally with six counts of sexual assault based on the
    complainants allegations. He pleaded guilty to simple assault of two of the
    complainants and the other charges were withdrawn.

[99]

The
    Discipline Committee conducted a two-phase hearing regarding the complaints: a
    liability hearing and a penalty hearing. At the liability phase, the Discipline
    Committee found that Dr. Peirovy had committed acts of professional misconduct
    per s. 51(1) of the
Health Professions Procedural Code
(Schedule 2 to
    the
Regulated Health Professions Act
, 1991, S.O. 1991, c. 18) (
Procedural
    Code
). Specifically, it found that: he sexually abused four patients; his
    conduct with respect to the four patients would also reasonably be regarded as
    disgraceful, dishonourable or unprofessional; his conduct with respect to a
    fifth patient would similarly reasonably be regarded as disgraceful,
    dishonourable or unprofessional; and he had been found guilty of offences
    relevant to his suitability to practise medicine.

[100]

At the penalty
    phase, the Discipline Committee ordered that Dr. Peirovys certificate of
    registration be suspended for a period of six months and that certain
    conditions be imposed, including that Dr. Peirovy have a practice monitor
    present during all professional encounters with female patients and post a sign
    at his practice locations publicizing this requirement.

[101]

The Divisional
    Court allowed the Colleges appeal from the Discipline Committees penalty
    decision. I agree with my colleague that the Divisional Court correctly selected
    reasonableness as the applicable standard of review. The Divisional Court quite
    rightly recognized that reasonableness in this context means a penalty can only
    be overturned if the Discipline Committees reasons disclose an error in
    principle or if the penalty is clearly unfit:
Reid v. College of Chiropractors
    of Ontario
, 2016 ONSC 1041 (Div. Ct.), at para. 99.

[102]

My colleague has
    determined that the Divisional Court failed to properly apply the standard it
    articulated, substituting instead its own assessment of the evidence and view
    of the penalty. With respect, I do not agree. The Divisional Court identified
    significant errors in principle in the Discipline Committees reasons and found
    that the penalty imposed was clearly unfit. The Divisional Court concluded that
    the Discipline Committees penalty decision was unreasonable and remitted the
    matter back to the Discipline Committee.

[103]

In my view, the
    Divisional Court did not err in reaching this conclusion. In its penalty
    decision, the Discipline Committee made internally inconsistent findings of
    fact, reached a conclusion that was unsupported by the evidence, and imposed a
    penalty that does not fulfill its mandate. These errors in principle led to an
    unreasonable decision and a penalty that was clearly unfit.

ANALYSIS

(1)

Inconsistent findings

[104]

The Discipline
    Committee contradicted its own factual findings from the liability phase during
    the penalty phase. As I will demonstrate, having rejected the submission that
    Dr. Peirovys blatant sexual abuse could be explained by misunderstanding, the
    Discipline Committee accepted the opposite in its penalty decision.

[105]

During the
    liability phase, the Discipline Committee:

·

Rejected Dr. Peirovys evidence that he did not touch the
    complainants breasts as they alleged;

·

Accepted the complainants evidence that Dr. Peirovys conduct
    was blatantly sexual, deliberate, and could not be explained as inadvertent
    or incidental to a legitimate examination;

·

Expressly rejected misunderstanding as an explanation for the
    complaints;

·

Rejected Dr. Peirovys submission that his guilty pleas to
    assault were not relevant to his suitability to practise [Dr. Peirovy had
    argued they were irrelevant since they arose from mere technical breaches of
    the
Criminal Code
, R.S.C. 1985, c.
    C-46,
related to his failure to obtain specific consent to place
    his stethoscope on or near the patients nipples. The Discipline Committee
    found it difficult to imagine a clearer example of an offence relevant to a
    physicians suitability to practise than a finding that the physician had
    assaulted his patients in his office during the course of a sensitive physical
    examination.]; and

·

Found Dr. Peirovys evidence evasive and somewhat lacking in
    credibility with respect to the patient he asked out on a date during an
    examination.

[106]

In rejecting Dr.
    Peirovys submission that the sexual abuse could be explained by
    misunderstanding, the Discipline Committee stated, at para. 95:

[T]he Committee finds that the precise and detailed evidence of
    four of the complainants with respect to how Dr. Peirovy touched their breasts
    is
not consistent with misunderstanding as the
    explanation
for their complaints. [Emphasis added.]

[107]

During the
    penalty phase, however, the Discipline Committee found the opposite. It
    accepted that Dr. Peirovys communication deficits, insensitivity, and awkward
    and unskilled manner were antecedents to, and factors in understanding, his
    sexual abuse. At para. 195, the Discipline Committee stated:

[T]he
    Committee was of the view that we do, in fact, understand some of the
    antecedents to Dr. Peirovys sexual misconduct
Dr. Peirovy is a
    physician who, at the time this misconduct occurred, had very serious deficits
    in his communication skills, his sensitivity to the extent of his patients
    vulnerability, and his understanding of boundaries and consent. These deficits
    in no way diminish or excuse the fact that he repeatedly subjected several
    patients to abusive experiences.
In the view of the
    Committee, however, Dr. Peirovys awkward, unskilled, and non-empathic manner
    with his female patients was a factor in understanding his abusive behaviour
.
    [Emphasis added.]

[108]

The Discipline
    Committee also endorsed, at para. 198, the possible inference that Dr.
    Peirovy was genuinely and completely unaware of the ways in which his
    behaviour was abusive.

[109]

These findings
    are irreconcilably inconsistent with the Discipline Committees own findings at
    the liability phase. While the Discipline Committee is entitled to make and
    rely on additional findings of fact during the penalty phase, these findings
    cannot be inconsistent with its earlier findings on liability:
College of
    Physicians and Surgeons of Ontario v. McIntyre
, 2017 ONSC 116 (Div. Ct.),
    at para. 44, leave to appeal to Ont. C.A. refused, July 7, 2017.

[110]

Where, as here,
    a decision is internally inconsistent, this alone renders it unreasonable:
Sangmo
    v. Canada (Minister of Citizenship and Immigration),
2016 FC 17, at para.
    21.

(2)

Unsupported conclusion

[111]

The Discipline
    Committees finding regarding the impact of Dr. Peirovys awkwardness, lack of
    skill, and unawareness is also without foundation. I respectfully disagree with
    my colleague when he says that this finding is well supported by the testimony
    of the experts during the penalty phase.

[112]

The Discipline
    Committees related finding regarding Dr. Peirovys motivations is similarly
    unfounded. Again, I respectfully disagree with my colleague when he
    characterizes the Discipline Committees finding on this point as nuanced. In
    my opinion, the evidence of Dawn Martin
[1]
and Dr. Rootenberg was not capable of supporting either of these conclusions.

[113]

A decision may
    be unreasonable where the outcome ignores or cannot be supported by the
    evidence:
Intact Insurance Company v. Allstate Insurance Company of Canada
,
    2016 ONCA 609, 131 O.R. (3d) 625, at para. 65, leave to appeal refused, [2016] S.C.C.A.
    No. 392. In my view, the Discipline Committees unsupported findings regarding
    Dr. Peirovys motivations and the role of his manner in the sexual abuse, both
    of which it relied on in crafting the appropriate penalty, constitute further
    errors in principle that render its decision unreasonable.

(a)

Dawn Martins evidence

[114]

Dawn Martin is a
    PhD who specializes in assessing and training physicians in communication,
    interviewing skills, collaboration, and professionalism. Dr. Peirovy was
    referred to her for assessment and education with respect to his faulty communication
    skills. She worked with him to assist in that regard, and provided a written
    report and testified at the penalty phase.

[115]

The Discipline
    Committee summarized Ms. Martins evidence as follows, at para. 174:

[Ms. Martin]s assessment of Dr. Peirovy indicated that, in her
    opinion, he had deficits in a number of areas. These included his interviewing
    skills, his manner (which was described as awkward and clumsy), his verbal
    communication, his awareness of issues pertaining to patient consent, his
    sensitivity to how his patients were perceiving him, and how his behaviour was
    affecting his patients. [Ms. Martin] stated that Dr. Peirovy was largely
    unaware of his professional responsibilities in maintaining appropriate
    boundaries in the doctor/patient relationship.

[116]

Ms. Martins
    evidence presented no new information but repeated what had already been addressed
    at the liability phase: Dr. Peirovy has poor communication skills and this
    created a substantial risk of patient misunderstanding.

[117]

Specifically,
    during the liability phase the Discipline Committee accepted expert evidence
    that the way Dr. Peirovy was practising placed him at high risk for
    misunderstandings with patients. Despite this, as previously mentioned, it
    found that the complainants precise and detailed evidence regarding how Dr.
    Peirovy touched their breasts was inconsistent with misunderstanding as the
    explanation for their complaints. It similarly noted there was no evidence that
    the physical touching at issue was clinically necessary. The Discipline
    Committee stated, at paras. 95-96:

The Committee found that [the
    expert evidence] with respect to the general issue of patient complaints about
    physicians and the risk factors identified in the literature, which appeared
    to make complaints more likely, to be credible and informative.
This evidence, however, was of limited utility
. The
    Committee accepts that most of the identified risk factors are present with
    respect to the complaints of these six patients. The Committee accepts that Dr.
    Peirovys walk-in practice, by its nature, may have been a high risk setting
    where complaints were more likely to occur than with other physicians
    practising in other ways. The position of the defence, essentially, is that the
    complainants misunderstood Dr. Peirovys actions as sexual in nature, due in
    part to the presence of risk factors referred to above.
The
    Committee accepts that Dr. Peirovy, in relation to these complainants, was
    practising in a fashion in which the risks of poor communication and patient
    misunderstanding were substantial
. As will be stated below,
however, the Committee finds that the precise and detailed
    evidence of four of the complainants with respect to how Dr. Peirovy touched their
    breasts is not consistent with misunderstanding as the explanation for their
    complaints
.

[The expert evidence did not
    offer] the opinion that there was a clinical necessity for Dr. Peirovy to have
    placed his stethoscope directly on the nipple of a patient, tweak the nipples
    of one complainant, or cup the breasts of two complainants with his hand.
    [Emphasis added.]

[118]

Ms. Martins
    evidence was therefore not relevant to the conduct Dr. Peirovy had been found
    liable for. Her evidence spoke to Dr. Peirovys awkward and clumsy
    interviewing skills, and his insensitivity to how patients perceived him and
    how his behaviour was affected them. It related to his conduct during
    sensitive history taking and clinical exams.

[119]

The professional
    misconduct found at the liability phase did not involve an interview, history
    taking, or a clinically necessary exam. The Discipline Committee found that Dr.
    Peirovy had engaged in deliberate physical touching that violated the sexual
    integrity of his patients and was clinically unnecessary. Dr. Peirovys inept
    verbal skills and poor sensitivity around intimate exams are not related to
    this conduct. Moreover, they could not have been a factor in his sexual abuse
    given the Discipline Committees finding that his conduct could not be
    explained by misunderstanding.

[120]

That Ms. Martin
    conflated Dr. Peirovys communication deficits with his physical sexual abuse
    became evident when she was asked directly about the Discipline Committees
    findings:

Q.      You have read the Committees decision-making findings
    of sexual abuse in relation to the four patients and disgraceful, dishonourable
    and unprofessional conduct in relation to all four and also to [a fifth
    patient]In your view, how has the work that you have done with Dr. Peirovy
    addressed the findings made by the Committee?

A.      Well, I think that the two
    are very inter-connected in the sense that he had poor interviewing skills,
    poor relationship-building skills that needed to be addressed. Intimate exams
    are  youre far more  you need to pay attention to how vulnerable the patient
    is. And I think there was a lot of reflection, skill building, decoding for him
    of how and who he needed to be in that relationship. I dont think it was so
    much as any mal intent as it was awkward and naïve,
making
    himself vulnerable to being  confusing people around not providing
    explanations.
And I think he is clear on that and what he needs to do
    now.

[121]

This answer ignores
    the Discipline Committees conclusion regarding the nature of Dr. Peirovys
    conduct at the liability stage; the Discipline Committee had already accepted
    that his behaviour was not misunderstood or medically justified. There were no
    explanations that could justify his conduct.

(b)

Dr. Rootenbergs evidence

[122]

Dr. Rootenberg
    is an expert in forensic psychiatry. He specializes in the assessment and
    treatment of persons who have committed sexual and other offences, including
    their risk of re-offending. He assessed Dr. Peirovy at the request of Dr.
    Peirovys counsel, and provided a written report and testified at the penalty
    phase.

[123]

In its penalty
    decision, the Discipline Committee relied upon Dr. Rootenbergs evidence to
    eliminate the possibility that Dr. Peirovys conduct was motivated by a
    predatory intent or uncontrollable urges. It stated, at para. 194:

The expert evidence now effectively rules out psychopathy or
    sexual deviance, and this is an important finding with respect to the issue of
    Dr. Peirovys motivation.

[124]

And later, at
    paras. 197-198:

The fact that Dr. Peirovys sexual
    misconduct with these four patients occurred in fairly close succession, over a
    time frame of several months, and continued to occur even after he was aware
    that a complaint had been made, was considered by the Committee. The Committee
    did not, however, infer that this pattern is indicative of predatory intent or
    uncontrollable deviant urges on Dr. Peirovys part, and thus a serious
    aggravating factor.

In fact, the
    expert evidence appears to rule out motivation of this nature
. [Emphasis
    added.]

[125]

In so doing, the
    Discipline Committee expanded Dr. Rootenbergs opinion evidence beyond its
    limits. Reasonably conceived, Dr. Rootenbergs evidence could not support the
    Discipline Committees conclusions regarding Dr. Peirovys motivation. I say
    this for two reasons.

[126]

First, Dr. Rootenbergs
    evidence was not capable of supporting the conclusion that the absence of a
    psychiatric disorder rules out sexual motivation. There was no evidence before
    the Discipline Committee that sexual abuse is committed by persons with
    identifiable mental illness or deviant behaviours. In fact, courts have
    recognized that this is not true.

[127]

In
R. v.
    Mohan,
[1994] 2 S.C.R. 9, the Supreme Court of Canada considered the
    admissibility of expert evidence to show that a doctor accused of sexual
    misconduct with patients did not possess character traits fitting the
    psychological profile consistent with the abuse charged. The Court concluded,
    at pp. 37-38, that the evidence was not admissible as there is no acceptable
    body of evidence that doctors who commit sexual assaults fall into a
    distinctive class with identifiable characteristics.

[128]

This holding is
    consistent with a long line of authority, including this courts decision in
R.
    v. McMillan
(1975), 7 O.R. (2d) 750 (C.A.), affd [1977] 2 S.C.R. 824, in
    which Martin J.A. stated, at p. 764:

Where the crime under
    consideration does not have features which indicate that the perpetrator was a
    member of an abnormal group, psychiatric evidence that the accused has a normal
    mental make-up  is inadmissible.

[129]

The fact that
    Dr. Peirovy did not have sexual deviance or psychopathy does not relate to his
    degree of culpability. The Discipline Committees reliance on this fact to find
    that a lesser penalty was called for was an error.

[130]

Second, assuming
    he were qualified to opine on Dr. Peirovys motivation, Dr. Rootenbergs
    opinion was based on evidence the Discipline Committee had rejected at the
    liability phase. One of the sources of information identified in Dr.
    Rootenbergs report was assessment interviews conducted with Dr. Peirovy. Dr.
    Rootenberg testified that Dr. Peirovys comments to him were the same as in his
    testimony before the Discipline Committee: Dr. Peirovy insisted that the
    sexually abusive conduct was inadvertent. It was illogical and inconsistent for
    the Discipline Committee to embark upon an analysis of Dr. Peirovys motivation
    as gleaned from evidence it had heard itself and not accepted.

(3)

Failure to fulfill mandate

[131]

My colleague
    concludes that the penalty imposed by the Discipline Committee was one of the
    options available and thus deference requires that appellate courts not
    interfere. With respect, I again disagree.

[132]

I recognize that
    the penalty imposed was within the range of penalties imposed in past
    Discipline Committee decisions involving sexual abuse. However, reasonableness
    is not a static concept and ranges are not set in stone. Our collective social
    conscience is continuously changing. What was once reasonable may no longer
    accord with the modern conscience. Where society has evolved such that a range no
    longer reflects societal values, there is reason to question the validity of
    the range.

[133]

In this case,
    the Discipline Committee imposed a penalty that failed to fulfill its mandate
    and is clearly unfit.
In my view, the mere fact that it falls
    within
the historical penalty range is insufficient to render it
    reasonable
.


(a)

The Discipline Committees mandate

[134]

The legislature has entrusted the Discipline Committee with
    holding hearings of allegations of physician misconduct and fashioning
    penalties where it finds a member has committed an act of professional
    misconduct:
Procedural Code
, ss. 38(1) & 51.

[135]

This role is crucial. As explained by LeBel J. in
Pharmascience
    Inc. v. Binet,
2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36:

This Court has on many occasions
    noted the crucial role that professional orders play in protecting the public
    interest. As McLachlin J. stated in
Rocket v. Royal College of Dental
    Surgeons of Ontario
, [1990] 2 S.C.R. 232, [i]t is difficult to overstate
    the importance in our society of the proper regulation of our learned
    professions (p. 249). The importance of monitoring competence and supervising
    the conduct of professionals stems from the extent to which the public places
    trust in them. Also, it should not be forgotten that in the client‑professional
    relationship, the client is often in a vulnerable position. The Court has
    already had occasion to address this point in respect of litigants who entrust
    their rights to lawyers (
Fortin v. Chrétien
, [2001] 2 S.C.R. 500, 2001
    SCC 45, at para. 17). The general publics lack of knowledge of the
    pharmaceutical field and high level of dependence on the advice of competent
    professionals means that pharmacists are another profession in which the public
    places great trust.

[136]

As with litigants and their lawyers and the public and
    pharmacists, [a]n unequal distribution of power is frequently a part of the
    doctor-patient relationship. Patients seek the help of doctors when they are
    vulnerable  when they are sick, when they are needy, and when they are
    uncertain about what needs to be done:
Norberg v. Wynrib
, [1992] 2 S.C.R.
    226, at p. 258, citing
The

Final Report of the Task Force on
    Sexual Abuse of Patients
, An Independent Task Force
    Commissioned by The College of Physicians and Surgeons of Ontario (November 25,
    1991) (Chair:  Marilou McPhedran), at p. 11.

[137]

In exercising its delegated power, the Discipline Committee
    is guided first and foremost by a duty to protect the public:
McIntyre
,
    at para. 50. As stated by LeBel J. in
Pharmascience
, at para. 36:


I have no hesitation in applying the comments I wrote for this
    Court in
Finney
, at para. 16, generally to the health field to
    emphasize the importance of the obligations imposed by the state on the
    professional orders that are responsible for overseeing the competence and
    honesty of their members:

The primary objective of those orders is not to provide
    services to their members or represent their collective interests. They are
    created to protect the public, as s. 23 of the
Professional Code
makes
    clear .

The privilege of professional self‑regulation
    therefore places the individuals responsible for enforcing professional
    discipline under an onerous obligation. The delegation of powers by the state
    comes with the responsibility for providing adequate protection for the public.
Finney
confirms the importance of properly discharging this obligation
    and the seriousness of the consequences of failing to do so.

[138]

In
McIntyre,
the Divisional Court described the Discipline Committees broad
    policy-based view of its own mandate as follows, at para. 62:

[T]o protect the public; to
    recognize the devastating impact on patients when the trust they place in
    doctors has been violated, particularly through sexual abuse; and to maintain
    public confidence in the ability of the medical profession to regulate itself
    in the public interest.

[139]

Section 1.1 of the
Procedural Code
further
    specifies the purpose of its sexual abuse provisions as follows:

The purpose of the provisions of this Code with
    respect to sexual abuse of patients by members is to encourage the reporting of
    such abuse, to provide funding for therapy and counselling for patients who
    have been sexually abused by members and,
ultimately,
    to eradicate the sexual abuse of patients by members
.
    [Emphasis added.]

[140]

The Discipline Committees mandate to protect the public, maintain
    public confidence in the medical professions ability to self-regulate, and 
    in acting pursuant to the
Procedural Code
s
    sexual abuse provisions  eradicate the sexual abuse of patients by members was
    not fulfilled with a penalty that is clearly unfit.

(b)

The penalty is clearly unfit

[141]

In its penalty
    decision, the Discipline Committee found, at para. 166, that Dr. Peirovy
    demonstrated a pattern of behaviour over a period of time which was causing harm
    to the public and noted it was extremely concerned by his actions.

[142]

I agree with the
    Divisional Court that the short suspension imposed in this case, given the
    conduct found by the Discipline Committee, is clearly inadequate to deter
    others and to contribute meaningfully to the eradication of sexual abuse in the
    profession, and is inadequate to protect the public and vindicate the
    integrity of the profession: at paras. 37-38.

[143]

Moreover, the
    conditions placed on Dr. Peirovy demonstrate a lack of confidence in his
    ability to practise medicine. It is unreasonable for a patient to attend a
    walk-in clinic with a physician who requires a chaperone with half the worlds
    population and which features a prominent sign indicating his limited capacity.
    Such conditions  in these circumstances  belies the trust inherent in the
    doctor-patient relationship, undermines public confidence, and fails to protect
    the public.

[144]

Reasonableness takes its colour from the context
:
    Canada (Citizenship and Immigration) v. Khosa
, 2009 SCC 12, [2009] 1
    S.C.R. 339, at para. 59. Where a statutory mandate expressly tethers the scope
    of an administrative decision making power, a decision that is inconsistent
    with, or undermines, that mandate will be unreasonable:
Williams Lake Indian
    Band v. Canada (Aboriginal Affairs and Northern Development)
, 2018 SCC 4,
    417 D.L.R. (4th) 239, at paras. 33-34.

[145]

This is equally
    true where an administrative tribunal renders a decision that does not fulfill the
    values underlying its grant of discretion. In
Baker v. Canada (Minister of
    Citizenship and Immigration)
,

[1999] 2 S.C.R. 817,
the Supreme Court considered
    the decision of an immigration official that failed to account for the
    applicants children. Justice LHeureux-Dubé held that the decision was
    unreasonable since it failed to fulfill the mandate of protecting children. She
    stated, at p. 859:

The reasons of the immigration
    officer show that his decision was inconsistent with the values underlying the
    grant of discretion. They therefore cannot stand up to the somewhat probing
    examination required by the standard of reasonableness.

[146]

I acknowledge
    that the penalty the Discipline Committee imposed was statutorily available to
    it at the time of its decision.
[2]
However, the Discipline Committees mandate and the stated purpose of the
    sexual abuse provisions restricted the range of acceptable and defensible
    outcomes in the circumstances. By imposing a penalty that undermines public
    confidence in the self-regulation of medical professionals, fails to protect
    the public, and is inconsistent with the eradication of
sexual
    abuse of patients by physicians, the Discipline Committee rendered an
    unreasonable decision.

[147]

The fact that
    the penalty imposed was in line with past cases does not insulate the
    Discipline Committees penalty decision from appellate interference. I agree
    with the College that a court or tribunal is entitled to look critically at the
    penalties imposed in prior cases and to conclude that those penalties are no
    longer appropriate. A deferential standard of review does not require the
    acceptance of an unreasonable decision in a contemporary context, much less
    create a static range from which no future development can be made.

[148]

In the context
    of criminal law, courts have surpassed previous sentencing ranges where the
    penalty no longer reflected societal values. In
R. v. D.(D.)
(2002),

58
    O.R. (3d) 788 (C.A.),

this court approved a higher sentence in a
    case involving the long-term sexual assault of children, noting that the time
    had long since passed when the nature and extent of the damage caused by child
    sexual abuse was not known. Similarly, in
R. v. Klimovich
, 2013 ONSC 2888,
the court declined to
    follow sentencing precedents which were out of step with social values
    regarding domestic assault.

[149]

As with these
    examples, society has evolved in respect of the gravity of the breach of trust
    and damage caused by the sexual abuse of patients by their doctors. As noted by
    my colleague, since 1991, the College has recognized the devastating
    consequences of sexual abuse of patients by physicians. Over twenty-five years
    ago,
The Final Report of the Task Force on Sexual Abuse of Patients
reported:

The essence of the relationship
    between doctor and patient is trust. When this trust is abused, the results are
    devastating  For society as a whole, it is an act of trust to grant
    self-regulation to a profession, relying on the professions leadership to
    govern itself in the public interest.

[150]

More broadly,
    courts have recognized the pervasiveness of sexual violence against women and
    its fundamental incompatibility with any concept of equality for women. As
    expressed by LHeureux-Dubé J. in
R. v. Ewanchuk
, [1999] 1 S.C.R. 330,
    at paras. 68-69:

In Canada, one-half of all women are said to have experienced
    at least one incident of physical or sexual violence since the age of 16
    (Statistics Canada, The Violence Against Women Survey, The Daily, November
    18, 1993). The statistics demonstrate that 99 percent of the offenders in
    sexual assault cases are men and 90 percent of the victims are women (Gender
    Equality in the Canadian Justice System: Summary Document and Proposals for
    Action (April 1992), at p. 13, also cited in R. v. Osolin, [1993] 4 S.C.R. 595,
    at p. 669).

Violence against women is as much a matter of equality as it is
    an offence against human dignity and a violation of human rights. As Cory J.
    wrote in Osolin, supra, at p. 669, sexual assault is an assault upon human
    dignity and constitutes a denial of any concept of equality for women.

[151]

These concepts
    must inform the penalty here.

[152]

In recent years,
    growing recognition and the resulting shift in societal standards have given
    rise to legislative change. In 2017  after the Discipline Committees Decision
     the legislature enacted the
Protecting Patients Act
, 2017, S.O.
    2017, c. 11, which amended the
Procedural Code
to implement a zero
    tolerance policy on sexual abuse of patients by any regulated health
    professional. Revocation of a members certificate of registration is now
    mandatory in cases of sexual abuse consisting of touching of a sexual nature of
    the patients genitals, anus, breasts or buttocks: s. 51(5). The amendments
    also introduced mandatory interim suspension orders upon findings of sexual
    abuse that would attract mandatory revocation: s. 51(4.2).

[153]

I do not agree
    that the 2017 legislative amendments are irrelevant. In my opinion, they are
    indicative of and indeed confirm the shift that has taken place in societys
    understanding of the consequences of physician sexual abuse and its tolerance
    for such behaviour.

[154]

It was incumbent
    on the Discipline Committee to look beyond the penalties imposed in previous
    decisions and craft a penalty consistent with the reality of societys values
    as they related to its mandate. In my view, its failure to take the relevant
    societal context into account was a serious error in principle and resulted in
    a penalty that was clearly unfit.

CONCLUSION

[155]

For these
    reasons, I would dismiss the appeal.

M.L. Benotto J.A.

Released: May 03, 2018





[1]

In order to distinguish medical doctors from PhDs, I do not
    use Dr. Martin, which appears in the majority decision.



[2]
As noted by my colleague and discussed below, the
Regulated Health
    Professions Act
was amended in 2017. Had Dr. Peirovys conduct occurred
    following these amendments, it would likely be captured by the new mandatory
    revocation provision and a suspension would not have been available to the
    Discipline Committee.


