Leering v. College of Chiropractors (Ont.), 2010 ONCA 87

• Judge: Feldman, Juriansz and Epstein, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 14, 2009
• Jurisdiction: Ontario
• Citations: 2010 ONCA 87;(2010), 258 O.A.C. 209 (CA)

Leering v. College of Chiropractors (2010), 258 O.A.C. 209 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. FE.028

In The Matter Of a Hearing of a panel of the Discipline Committee of the College of Chiropractors of Ontario held pursuant to the provisions of the Health Professions Procedural Code of the Chiropractic Act, 1991, S.O. 1991, Vol. 2, c. 21 ("Chiropractic Act") respecting one Dr. Vincent Leering of the City of London in the Province of Ontario;

In The Matter Of the Chiropractic Act and Ontario Regulation 852/93, as amended ("Chiropractic Act Regulation").

Dr. Vincent Leering (appellant/respondent on appeal) v. College of Chiropractors of Ontario (respondent/appellant on appeal)

(C50227; 2010 ONCA 87)

Indexed As: Leering v. College of Chiropractors (Ont.)

Ontario Court of Appeal

Feldman, Juriansz and Epstein, JJ.A.

February 2, 2010.

Summary:

The Discipline Committee of the College of Chiropractors of Ontario found Leering guilty of professional misconduct because he had sexually abused a patient. He appealed the finding of professional misconduct, as well as the penalty of mandatory revocation of his certificate of registration. At issue was whether the Discipline Committee reached an unreasonable decision in finding there had been sexual abuse, given that Leering had an existing intimate relationship with the complainant at the time she became his patient.

The Ontario Divisional Court, in a decision reported at 243 O.A.C. 55, allowed the appeal. The decision of the Discipline Committee finding Leering guilty of professional misconduct and imposing the penalty of mandatory revocation of his certificate of registration was set aside, and the matter was referred back to the Discipline Committee for a new hearing. The College appealed.

The Ontario Court of Appeal allowed the appeal.

Professional Occupations - Topic 4552

Chiropractors - Disciplinary proceedings - Professional misconduct - What constitutes - Leering, a chiropractor, and A.M. started dating - Shortly after they started cohabiting, she sought chiropractic treatment from Leering - Leering had her sign an informed consent form and he billed her so that payment could be made through her insurer - The Discipline Committee of the College of Chiropractors of Ontario found Leering guilty of professional misconduct because he had sexually abused a patient (A.M.) - Leering appealed - The Divisional Court referred the matter back to the Discipline Committee for a new hearing - The College appealed - The Ontario Court of Appeal allowed the appeal - The court stated that "... in proceeding to impose a further requirement in order to find sexual abuse beyond the concurrence of a chiropractor-patient and a sexual relationship, the Divisional Court erred in law. The disciplinary offence of sexual abuse is defined in the [Health Provisions Procedural] Code for the purpose of these proceedings as the concurrence of a sexual relationship and a healthcare professional-patient relationship. There is no further inquiry once those two factual determinations have been made. ... As the term 'patient' is not defined in the Code, it is up to the discipline tribunal to apply its expertise in considering all the facts and circumstances in order to determine whether a complainant who was having a sexual relationship, including as a spouse, was also a patient of the health care professional and in that context, whether any medical care that was provided was merely 'incidental' medical care." - See paragraph 37.

Professional Occupations - Topic 4552

Chiropractors - Disciplinary proceedings - Professional misconduct - What constitutes - Leering, a chiropractor, and A.M. started dating - Shortly after they started cohabiting, A.M. sought chiropractic treatment from Leering - Leering had her sign an informed consent form and he billed her so that payment could be made through her insurer - The Discipline Committee of the College of Chiropractors of Ontario found Leering guilty of professional misconduct because he had sexually abused a patient (A.M.) - The Ontario Divisional Court referred the matter back to the Discipline Committee for a new hearing, holding, inter alia, that it unreasonably interpreted the word "incidental" to mean a question of frequency of treatment and that it did not look at the College's policy documents when assessing the issue - The College appealed - The Ontario Court of Appeal allowed the appeal - The issue was not whether the sexual activity was incidental to the professional relationship - The issue was whether the medical treatments were merely incidental to the spousal relationship and did not constitute the spouse as a patient, or whether they were of such a nature that the spouse was a patient within the meaning of the Health Provisions Procedural Code - The Divisional Court erred by imposing on the Discipline Committee the obligation to inquire into whether the parties' sexual relationship arose out of their spousal relationship or their doctor-patient relationship in order to determine whether there was sexual abuse - The Code required no such inquiry.

Cases Noticed:

Mussani v. College of Physicians and Surgeons (Ont.) (2004), 193 O.A.C. 23; 74 O.R.(3d) 1 (C.A.), appld. [para. 10].

R.A.R. v. College of Physicians and Surgeons (Ont.) (2006), 216 O.A.C. 357; 275 D.L.R.(4th) 275 (C.A.), appld. [para. 10].

Authors and Works Noticed:

McPhedran Report - see Ontario College of Physicians and Surgeons Task Force Report, The Final Report of the Task Force on Sexual Abuse of Patients.

Ontario College of Physicians and Surgeons Task Force Report, The Final Report of the Task Force on Sexual Abuse of Patients (McPhedran Report) (1991), generally [para. 25].

Counsel:

Chris G. Paliare and Karen Jones, for the appellant;

Timothy M. Lowman and Patrick J. Cotter, for the respondent.

This appeal was heard on July 14, 2009, by Feldman, Juriansz and Epstein, JJ.A., of the Ontario Court of Appeal. Feldman, J.A., delivered the following decision for the court on February 2, 2010.