Brett et al. v. Board of Directors of Physiotherapy (Ont.), (1991) 48 O.A.C. 24 (DC)

JudgeO'Leary, Carruthers and Coo, JJ.
CourtOntario Court of Justice General Division (Canada)
Case DateSeptember 21, 1990
JurisdictionOntario
Citations(1991), 48 O.A.C. 24 (DC)

Brett v. Physio. Bd. of Directors (1991), 48 O.A.C. 24 (DC)

MLB headnote and full text

Evelyn Brett and High Park Physiotherapy Centre (applicants) v. The Board of Directors of Physiotherapy (respondents)

(No. 925/89)

Indexed As: Brett et al. v. Board of Directors of Physiotherapy (Ont.)

Ontario Court of Justice

General Division

Divisional Court

O'Leary, Carruthers and Coo, JJ.

January 16, 1991.

Summary:

The Board of Directors of Physiotherapy found Brett guilty of professional misconduct and revoked her licence as a physiotherapist. Brett applied for judicial review.

The Ontario Divisional Court allowed Brett's application and quashed the Board's decision.

Administrative Law - Topic 2498

Natural justice - Procedure - At hearing - Participation by tribunal's counsel - The Board of Directors of Physiotherapy revoked a physiotherapist's licence for professional misconduct - The physiotherapist argued that counsel retained by the Board to give it legal advice during the hearing went far beyond the role of advising the Board, and actually participated in the hearing as a member of the Board and at times acted as its de facto chairman - The Ontario Divisional Court agreed that the role played by counsel resulted in the physiotherapist not having a fair hearing and therefore her conviction was quashed - See paragraphs 1 to 13.

Professional Occupations - Topic 5463

Physiotherapists - Disciplinary proceedings - Professional misconduct - What constitutes - The Board of Directors of physiotherapy revoked a physiotherapist's licence for professional misconduct - The Ontario Divisional Court quashed the decision because the board was not justified on the evidence before it in making a finding of professional misconduct and because the board found that the physiotherapist was motivated by greed and this finding tainted other findings - See paragraphs 1 to 56.

Professional Occupations - Topic 5463

Physiotherapists - Disciplinary proceedings - Professional misconduct - What constitutes - The Board of Directors of Physiotherapy held that a physiotherapist was guilty of professional misconduct because, inter alia, her clinic employed more than one auxiliary for every two physiotherapists and treated more than 5.5 patients per hour per physiotherapist - The Ontario Divisional Court held that the Board was not entitled to make these findings on the evidence before it - See paragraphs 14 to 30.

Professional Occupations - Topic 5463

Physiotherapists - Disciplinary proceedings - Professional misconduct - What constitutes - The Ontario Divisional Court stated that "where the alleged misconduct does not infringe a specific law and relates to the conduct or judgment of the member in performing his professional work, then the member can not be found guilty of professional misconduct if there exists a responsible and competent body of professional opinion that supports that conduct or judgment" - See paragraph 34.

Professional Occupations - Topic 5467

Physiotherapists - Disciplinary proceedings - Judicial review - The Ontario Divisional Court rejected the argument that it could only disturb the decision of the Board of Directors of Physiotherapy if the Board's findings were patently unreasonable - See paragraph 40.

Professional Occupations - Topic 5467

Physiotherapists - Disciplinary proceedings - Judicial review - The Board of Directors of physiotherapy revoked a physiotherapist's licence for professional misconduct - The Ontario Divisional Court quashed the decision because the board was not justified on the evidence before it in making a finding of professional misconduct and because the board found that the physiotherapist was motivated by greed and this finding tainted other findings, and because the board did not have before it clear, convincing and cogent evidence to support the finding of professional misconduct - See paragraphs 1 to 56.

Professional Occupations - Topic 5468

Physiotherapists - Disciplinary proceedings - Evidence - The Board of Directors of Physiotherapy held that a physiotherapist was guilty of professional misconduct because, inter alia, her clinic employed more than one auxiliary for every two physiotherapists and treated more than 5.5 patients per hour per physiotherapist - The Ontario Divisional Court held that the board was not entitled to make these findings on the evidence before it - See paragraphs 14 to 30.

Professional Occupations - Topic 5468

Physiotherapists - Disciplinary proceedings - Evidence - The Ontario Divisional Court stated that "where the alleged misconduct does not infringe a specific law and relates to the conduct or judgment of the member in performing his professional work, then the member can not be found guilty of professional misconduct if there exists a responsible and competent body of professional opinion that supports that conduct or judgment" - See paragraph 34.

Cases Noticed:

Matthews v. Board of Directors of Physiotherapy (1986), 15 O.A.C. 37; 54 O.R.(2d) 375, affd. 24 O.A.C. 319; 61 O.R.(2d) 475, refd to. [para. 32].

Maynard v. West Midlands Regional Health Authority, [1985] 1 All E.R. 635, refd to. [para. 36].

Re Casullo and College of Physicians and Surgeons of Ontario (1973), 2 O.R.(2d) 61, refd to. [para. 37].

Re Milstein and Ontario College of Pharmacy (1978), 20 O.R.(2d) 283 (C.A.), refd to. [para. 40].

Re Bernstein and College of Physicians and Surgeons of Ontario (1977), O.R.(2d) 447, refd to. [para. 41].

Re Fenton and College of Physicians and Surgeons of Ontario (1974), 6 O.R.(2d) 193, refd to. [para. 42].

Re Sawyer and Ontario Racing Commission (1979), 24 O.R.(2d) 673 (C.A.), refd to. [paras. 57, 58].

Statutes Noticed:

Drugless Practitioners Act, R.S.O. 1980, c. 127, sect. 6 [para. 31].

Drugless Practitioners Act Regulations, Reg. 253, sect. 10(a), sect. 11 [para. 2].

Authors and Works Noticed:

Canadian Physiotherapy Association, Guidelines for the use of Auxiliary Personnel in Physiotherapy Services (1983), p. 12 [para. 25].

Wolpert, Rhona, Physiotherapy Canada (Nov.-Dec. 1986), vol. 38, No. 6, pp. 361 [para. 16]; 366 [paras. 20, 21].

Counsel:

Tracey Tremayne-Lloyd, for the applicants;

R. Steinecke, for the respondents.

This application was heard on September 21, 1990, before O'Leary, Carruthers, Coo, JJ., of the Ontario Divisional Court. The decision of the court was delivered by O'Leary, J., and released on January 16, 1991:

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