On February 13, 2024, Ontario’s Divisional Court released its decision in Spirou v. College of Physiotherapists of Ontario (“Spirou”), with the Court confirming that the College of Physiotherapists of Ontario (the “College of Physiotherapists”) has jurisdiction to consider the actions taken by each of the four applicant physiotherapists pertaining to the management of their co-owned clinic.
In Spirou, the applicants were four physiotherapists who operated a shared business together. After being cautioned by the College of Physiotherapists’ Inquires, Complaints and Reports Committee (the “ICRC”) relating to the accuracy of their invoicing practice, the applicants sought a judicial review of the ICRC decision, asking that the decision to be dismissed on the basis, in part, that the ICRC lacked jurisdiction to make the aforementioned disposition.
The facts in this matter pertained to an investigation into the billing practices of the four physiotherapists. Specifically, the ICRC considered the physiotherapists’ practice of waiving insurance co-payments for its patients, while submitting invoices to Green Shield Canada for the full amount of the product or service, including the waived amounts.
Upon investigation, the College noted discrepancies in the billing practices and issued a caution to the applicant to ensure the accuracy of their invoicing practices. The caution was the subject of the judicial review, and the ICRC made the following statement regarding the central issue brought forward by the applicants:
…the College does not regulate physiotherapy clinics per se and in general, the College only regulates physiotherapists themselves. Nonetheless, the College may hold registered physiotherapists accountable, where appropriate, for systemic issues in the practices of clinics or businesses in which these physiotherapists participate in the ownership or management.
The Divisional Court concluded that the ICRC had jurisdiction over the business practices of the applicants, because the objects of the College of Physiotherapists are broad and include the ability “to regulate the practice of the profession”, “[t]o develop, establish and maintain standards of professional ethics for the members”, and “[t]o promote and enhance relations between the College and its members, other health profession colleges, key stakeholders, and the public.”
Ultimately, the Court dismissed the application for judicial review, holding that it would be “nonsensical for the College to have jurisdiction to regulate fees and billings of individual members, but no jurisdiction to regulate fees and billings over members that operate their practice through their own business. This would allow members to easily avoid oversight by the College by running their practice though a business.”
On February 16, 2024, just days after the above decision was released, the Divisional Court released its decision in Casella v College of Chiropodists of Ontario (“Casella”), which was an appeal of the College of Chiropodists of Ontario (“College of Chiropodists”) Discipline Committee decision finding that its member failed to comply with an earlier Discipline Order that suspended his certificate of registration for seven months for engaging in inappropriate business practices.
During his suspension, the member continued to hold himself out on his website to be an active chiropodist, paid himself his regular salary and sterilized the instruments used at the office. These factors were deemed by the Discipline Committee of the College of Chiropodists to be a breach of the Order suspending his certificate of registration. The appellant submitted that the Discipline Committee erred in finding that he violated his suspension by getting paid a modest salary by his professional corporation during the period of his suspension, for working at his clinic with no patient contact and performing tasks that a non-professional staff member could perform.
Rejecting the applicant’s submissions, the Divisional Court concluded that:
A member cannot subvert a suspension by continuing to hold themselves out as a practicing chiropodist, continuing to assume responsibility for regulated activities of the practice, and continuing to compensate themselves from the practice of chiropody by paying themselves a salary from patient-generated revenue. The College is duty bound to regulate the profession in the public interest. The question of what constitutes professional misconduct and the attendant costs are matters that fall squarely within the bailiwick of the Committee.
The appeal was dismissed.
Miller Thomson LLP regularly provides advice to regulated health professionals regarding risk management. Our team has significant expertise in the defence of regulated health professionals at the investigative and discipline stages. We would be pleased to assist you in matters pertaining to your professional obligations or in respect of a College investigation, discipline or fitness to practice matter.
