Penalty Hearing

How the Tribunal Decides Penalties and Costs

In contested matters, the penalty phase of the hearing will be scheduled after the panel makes its decision on the allegations.

During the penalty phase of the hearing, particularly where the penalty is contested, the parties may call witnesses to present oral evidence and/or present documentary evidence relevant to the issue of the appropriate penalty order. This is not the time to call evidence or make submissions about the fairness or correctness of the panel’s decision. The only issue is what order the panel should make, based on its findings regarding professional misconduct and/or incompetence. Making submissions on penalty does not affect your right to appeal the decision.

Often, penalty hearings do not involve any new evidence. Rather, the parties simply make submissions about the appropriate penalty order based on the findings of fact made by the panel. Submissions happen in the same order as opening and closing statements: the College goes first, then you. College counsel then has the right to reply to your submissions regarding penalty. 

Previous decisions from the courts and the Tribunal may be presented in this portion of the hearing. It is often helpful during your submissions as to the appropriate penalty to demonstrate that your proposed penalty is within the range of penalties ordered in the past in similar circumstances.

Penalties Available to the Tribunal

The Tribunal may make one or more of the orders authorized by Section 51(2) or 52(2) of the Code if you are found to have committed professional misconduct. These possible orders, also set out in the Notice of Hearing, include:

• Requiring you to appear before the panel to receive a reprimand (a reprimand is mandatory in certain cases of sexual abuse);
• Directing the Registrar to revoke your certificate of registration (revocation is mandatory in certain cases of sexual abuse);
• Ordering a suspension of your certificate of registration;
• Imposing terms, conditions, or limitations on your certificate of registration (for example, requiring you to practise under supervision or to complete education or training);
• If the misconduct involves sexual abuse, requiring you to reimburse the College for any funding provided to the patient for therapy and counselling, and to post security to guarantee payment of those amounts;
• Ordering you to pay a fine of up to $35,000 to the Minister of Finance.

If the Tribunal finds you incompetent, meaning your care of a patient or client showed a lack of knowledge, skill, or judgment to such a degree that you are unfit to continue practising or should practise only with restrictions, it may order a revocation, suspension, or impose terms, conditions, or limitations on your certificate of registration.

In addition to any of these penalties, the Tribunal may also order you to pay costs to the College if there is a finding of professional misconduct. These costs help cover the expenses of the investigation and hearing. For more information on costs, please see section titled Evidence or Submissions on Costs.

If your certificate of registration is revoked, you may apply for reinstatement after one year. However, if the revocation was due to sexual abuse, the law requires a minimum waiting period of five years before you can apply.

Mandatory Revocation

In some cases, the panel does not have discretion about whether to revoke a certificate of registration. Under section 51(5.2) of the Health Professions Procedural Code, revocation is mandatory where a registrant has been found to have committed sexual abuse of a patient or when a registrant has been found guilty criminally of certain prescribed offences (e.g. child pornography). In these situations, an interim suspension is automatically imposed and takes effect immediately once the finding is made, until the mandatory revocation order is issued.

Evidence or Submissions on Costs

Evidence and/or submissions about costs are usually presented during the penalty phase of the hearing. Costs are the expenses the College asks you to help cover the expenses of the investigation and the hearing.

In a contested hearing, you may present evidence about your ability to pay. This could support a request to reduce the amount of costs ordered, or to extend the time you are given to pay them.

The amount of costs that the College asks for may be made based on Tariff A of the HPDT Rules or on case-specific factors. The Tribunal will consider the parties’ submissions and supporting evidence before deciding on the appropriate costs amount.