The College of Physicians v. Surgeons of Saskatchewan, 2023 SKCA 110

Court of Appeal for Saskatchewan Docket: CACV4008 Citation: The College of Physicians and Surgeons of Saskatchewan v Leontowicz , 2023 SKCA 110 Date: 2023-09-29 Between: The College of Physicians and Surgeons of Saskatchewan Appellant/Respondent on Cross-Appeal (Respondent/Plaintiff) And Jesse Leontowicz Respondent/Appellant on Cross-Appeal (Appellant/Respondent) Panel: Richards C.J.S., Schwann and Leurer JJ.A. Disposition: Appeal allowed in part; cross-appeal allowed in part Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Leurer On appeal from: 2022 SKQB 98 , Regina Appeals heard: January 17, 2023 Counsel: Rochelle Wempe for the Appellant Darren Kraushaar and Lauren Wihak for the Respondent Schwann J.A. I. INTRODUCTION [ 1 ] This appeal raises the challenging question of the extent to which a professional regulatory body can discipline a member of its profession for off-duty conduct.

The demarcation between conduct that is private and beyond the scope of the regulatory discipline and that which is unprofessional is often difficult to determine. [ 2 ] The College of Physicians and Surgeons of Saskatchewan [College] charged Jesse Leontowicz, M.D., with one count of professional misconduct arising from an off-duty sexual encounter he had with a woman who was not his patient. The Discipline Hearing Committee [Committee] accepted the complainant’s evidence and found Dr. Leontowicz guilty of unbecoming, improper, unprofessional or discreditable conduct within the meaning of s. 46 (

o) of The Medical Profession Act, 1981 , SS 1980-81, c M-10.1 [ MPA ]: Leontowicz v The College of Physicians and Surgeons of Saskatchewan (11 June 2020) Saskatoon, CPSS [ Committee Decision ]. By way of penalty, the Council of the College [Council] suspended Dr. Leontowicz’s licence indefinitely and issued a reprimand: Leontowicz v The College of Physicians and Surgeons of Saskatchewan (25 September 2020) Saskatoon, Council of the CPSS (Sask) [ Penalty Decision ].

The Council later imposed a full indemnity costs award against him totalling $96,577.10: Leontowicz v College of Physicians and Surgeons of Saskatchewan (20 November 2020), Saskatoon, Council of the CPSS (Sask) [ Costs Decision ]. [ 3 ] Dr. Leontowicz appealed the three decisions to what was then the Court of Queen’s Bench, pursuant to s. 62 of the MPA . The judge who heard the matter concluded that the Committee had erred in finding Dr.

Leontowicz guilty of off-duty professional misconduct, quashed its decision and dismissed the charge against him: Leontowicz v The College of Physicians and Surgeons of Saskatchewan , 2022 SKQB 98 [ QB Decision ]. Having reached that conclusion, the judge said it was unnecessary for him to consider Dr. Leontowicz’s arguments on the penalty and costs imposed by the Council.

However, in obiter reasons, he stated that had it been necessary to decide the issue, he would have set aside both the penalty and award of costs and remitted these matters to the Council for reconsideration. [ 4 ] The College was granted leave to appeal the QB Decision to this Court, pursuant to s. 66 of the MPA . Dr.

Leontowicz was granted leave to cross-appeal on three questions bearing on whether the judge erred in failing to find error with the Committee’s handling of the medical evidence of Lori Haskell, Ph.D., and Huse Kamencic, M.D., and in failing to make an order quashing the penalty and costs decision. [ 5 ] For the reasons that follow, I conclude the judge erred in quashing the Committee Decision and in vacating the professional misconduct charge against Dr. Leontowicz. That part of the College’s appeal must be allowed and the finding of professional misconduct against Dr. Leontowicz restored.

However, the College’s appeal from the part of the QB Decision that dealt with penalty and costs is dismissed. I am satisfied that the Council erred in making those orders and that the appropriate remedy is to set them aside and remit the matter of penalty and costs to the Council for reconsideration. [ 6 ] Dr. Leontowicz’s cross-appeal is allowed only to the limited extent of quashing the penalty and costs order that were made by the Council. The balance of his cross-appeal is dismissed. II. FACTS [ 7 ] At the time of the events in question, Dr.

Leontowicz was in the fourth year of his medical studies with the College of Medicine at the University of Saskatchewan. He and the complainant, J.T., had connected online through a well-known dating application. They met at a local restaurant, had supper and a few drinks, and generally appeared to get along.

[ 8 ] Dr. Leontowicz and J.T. ended up at his apartment and proceeded to his bedroom a short while later. J.T. agreed to have sexual intercourse with Dr. Leontowicz, but asked him to wear a condom. He obliged. During the intercourse that followed, Dr. Leontowicz inquired if she liked rough sex. J.T. said she did. He then slapped her lightly and manhandled her limbs. After the intercourse ended, Dr. Leontowicz went to the bathroom and removed his condom. [ 9 ] The parties differed on what followed next. According to J.T., Dr.

Leontowicz pinned her down by the sternum and penetrated her vaginally without wearing a condom. She also testified that he struck her repeatedly on the face (roughly 50 times) and that she was “beaten … to the point of seeing stars”. She said he then put his penis in her mouth, masturbated and ejaculated on her face. [ 10 ] J.T. agreed that she had consented to having vaginal sex with Dr.

Leontowicz with a condom and some amount of rough sex (which she interpreted as manhandling, hard thrusting, gentle slapping, spanking and hair pulling), but maintained that she did not consent to sex without a condom or to the infliction of pain and bruises. [ 11 ] In key respects, Dr. Leontowicz’s testimony differed from J.T.’s. He recounted four separate, sequential episodes of consensual sex, with each occasion lasting about 20 minutes. He claimed to have worn a condom on the first three times they engaged in sexual intercourse but not the last because J.T. had initiated things by getting on top of him. Dr.

Leontowicz described that episode as being spontaneous and consensual. Like J.T.’s evidence, he said their interaction ended with oral sex and him ejaculating into her mouth. Dr. Leontowicz was adamant that J.T. had consented to all of the sexual activities they had engaged in throughout the evening. [ 12 ] Their testimony also differed on the extent and severity of the physical contact Dr. Leontowicz had inflicted on J.T. During their first sexual encounter, Dr. Leontowicz said J.T. agreed to having what he called rough sex and that, after a few slaps, he inquired if she was okay with it.

He claimed to have repeatedly checked in with J.T. about the rough sex throughout the time they had sexual intercourse and said that J.T. willingly agreed to it and even reciprocated by choking him with both hands. In total, Dr. Leontowicz said he slapped J.T. five to seven times, spit on her, and ejaculated on her face and called her a “dirty slut”. He steadfastly maintained that all of his actions were consensual. [ 13 ] Although the parties initially exchanged innocuous, if not friendly, texts in the days that immediately followed their encounter, three days later J.T.’s tone changed. She called Dr.

Leontowicz a “nut case”, insisted that she had told him not to remove his condom and that, while she had agreed to having rough sex, it did not involve “beating me about the face so hard that I am covered in bruises”. J.T. reported her interaction with Dr. Leontowicz to the Regina Police Service; however, no criminal charges ensued. More than a year later, J.T. gave her account of what had occurred to the College. Following an investigation into the matter, the College charged Dr. Leontowicz with unbecoming, improper, unprofessional or discreditable conduct, contrary to s. 46 (

o) of the MPA . [ 14 ] The particulars of that charge are as follows: You Jesse Leontowicz are guilty of unbecoming, improper, unprofessional, or discreditable conduct contrary to the provisions of

section 46 (

o) of The Medical Profession Act, 1981 . The evidence that will be led in support of this charge will include some or all of the following: 1) You engaged in sexual intercourse with J.T. without her consent. 2) You applied physical force to J.T. without her consent. 3) You met J.T. on Tinder and went on a date on the evening of January 22, 2018. 4) You and J.T. went back to your apartment after the date. You and J.T. took your clothes off, kissed, you put a condom on, and engaged in consensual vaginal intercourse with J.T. 5) After some time you took the condom off.

J.T. told you to put a condom back on and that she was not consenting to vaginal sex without a condom. You forced her to have vaginal sex without a condom. 6) Although J.T. consented to rough sex, after you took the condom off you held her down, hit her repeatedly causing significant bruising to her body, forced your penis into her mouth, and spit on her. III. THE COMMITTEE DECISION [ 15 ] The Committee was composed of two physicians and one lawyer. It presided over a three-day hearing in May of 2020 and subsequently rendered its written decision on June 11, 2020. The Committee began its written decision with a

summary of the testimony of the College’s witnesses – J.T., Dr. Haskell, Dr. Kamencic, J.M. (a co-worker of J.T.’

s) and B.M. (a work supervisor) – and of Dr. Leontowicz, who had testified on his own behalf. [ 16 ] Next, the Committee noted that the College bore the burden of proof in professional discipline matters and that it was required to prove the charge on a balance of probabilities. It understood that the evidence of the two principal witnesses – J.T. and Dr. Leontowicz – diverged in relation to what had transpired on the night in question on these three key points: (

a) the number of times they had sexual intercourse; (

b) the force Dr. Leontowicz used during the so-called rough sex; and (

c) what precisely J.T. had consented to. [ 17 ] The Committee found J.T. to be a credible witness and that her evidence was supported by the testimony of some of the other witnesses. For instance, J.T. testified that, because she suffered from endometriosis, penile penetration more than once was painful and not

something she could endure. Dr. Kamencic, J.T.’s gynecologist, confirmed her medical condition and opined generally that pain during sexual intercourse was a common symptom of endometriosis. This led the Committee to find Dr. Kamencic’s evidence “persuasively corroborative of [J.T.’s] claim of only one instance of vaginal intercourse with Dr. Leontowicz” ( Committee Decision at para 125). [ 18 ] The Committee moved on to consider J.T.’s allegation about the degree of force that had been applied by Dr. Leontowicz throughout their sexual encounter.

It examined the photographs J.T. had taken of herself immediately following her night with Dr. Leontowicz and those of the Regina Police Service when she had reported the incident several days later. It noted bruising to J.T.’s jaw and neck, as depicted in the photographs. The Committee also referenced the testimony of J.T.’s co-workers, J.M. and B.M., who had testified to seeing bruising on J.T. and noticing a marked change in her demeanor. [ 19 ] While the Committee said it was unable to make any finding about the amount of force Dr.

Leontowicz had applied, it found J.T.’s testimony more consistent with the photographic evidence and the observations of her co-workers. It concluded by stating, “What we can say is that the bruising we saw in the photographs all along [J.T.’s] left jaw, could not be the result of a few light slaps” (at para 129). The Committee returned to the topic of rough sex later in its decision, noting there was a “significant difference between the ‘rough sex’ … to which [J.T.] consented and full on hard hits” (at para 137).

In the end result, it accepted J.T.’s evidence about what had occurred. [ 20 ] Turning next to J.T.’s allegation of unprotected sexual intercourse, the Committee recognized that both J.T. and Dr. Leontowicz had agreed that it had occurred but had differed on whether J.T. had consented to it. The Committee rejected Dr. Leontowicz’s testimony in this regard. It pointed to J.T.’s insistence that he wear a condom, which even Dr. Leontowicz had acknowledged in his examination-in- chief. It said J.T.’s insistence on condom use “was explicit, clear and unmistakable.

She consented only to the act of sexual intercourse if his penis was sheathed” and saw no credible evidence to suggest that she had changed her mind (at para 133). In the result, the Committee concluded that J.T. “did not consent to unprotected vaginal/penile intercourse” (at paras 134). [ 21 ] Before leaving its credibility analysis, the Committee paused to consider the various inconsistencies in the parties’ respective evidence and J.T.’s possible motive for initiating a complaint with the College.

It also pondered what to make of J.T.’s failure to flee after they had had sex and why she appeared to be interested in seeing Dr. Leontowicz again after their encounter. To resolve this supposed dissonance, the Committee found Dr. Haskell’s opinion helpful as it provided a satisfactory explanation for such matters and, thus, determined that it did not undermine J.T.’s credibility. To conclude on the topic of credibility the Committee said this: 149.

In conclusion on the subject of credibility and reliability, we are satisfied on a thorough review of all the evidence, that [J.T.’s] testimony is consistent with the independent evidence presented and is in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in these circumstances. Where the testimony of [J.T.] conflicts with that of Dr. Leontowicz, we prefer [J.T.’s] account for the reasons articulated above. [ 22 ] Those matters resolved, the Committee returned to the core issue: whether the College had established that Dr.

Leontowicz’s off-duty conduct constituted conduct unbecoming, improper, unprofessional or discreditable within the meaning of s. 46 (

o) of the MPA . In answering that question, the Committee said (

a) it was entitled to use its own knowledge of the profession to determine, if proven, whether the “conduct is unprofessional” (at para 152), (

b) while not criminally charged, Dr. Leontowicz’s conduct “meets the definition of sexual assault” (at para 154), and (

c) the complaint, “[e]xcept insofar as the hearing of this matter was public”, had not been publicized (at para 154). IV. THE PENALTY DECISION [ 23 ] Pursuant to s. 54 of the MPA , where a member is found guilty of professional misconduct, it falls to the Council to impose an appropriate penalty. [ 24 ] Not surprisingly, the parties took opposing positions at the penalty hearing. The College urged the Council to revoke Dr. Leontowicz’s licence, issue a reprimand and make an order directing him to pay the full amount of the cost of the investigation and hearing. For his part, Dr.

Leontowicz observed that he had effectively served the equivalent of a 12-month suspension by the time the Council heard argument on penalty and suggested that a definite term suspension be imposed equal to time served, plus the imposition of conditions on his return to practice. He filed a number of letters in support. [ 25 ] The Council briefly reviewed the Committee’s findings, some case authority and the submissions of the parties.

By way of general principle, it noted how the penalty imposed must protect the public and that the reasonableness of any sentence depends on the facts of each case and the circumstances of the offence and the offender. That said, the Council accepted the College’s proposition that, given the circumstances at hand, general and specific deterrence was the overriding consideration. [ 26 ] The Council acknowledged that the letters of support filed by Dr.

Leontowicz spoke in positive terms about his academic performance and clinical acumen; however, it found them to be irrelevant because the sanctionable conduct occurred off-duty. By the same token, it also discounted various letters of support that had been filed by his friends and family, stating, “no evidence of general good character could possibly validate or mitigate a violent sexual assault even on the premise that such an assault was an isolated event that occurred in a fleeting moment of time” ( Penalty Decision at para 14). [ 27 ] The Council took umbrage with Dr.

Leontowicz’s failure to accept responsibility for his actions, pointedly noting that “he has demonstrated no treatment specific to the rehabilitation of a rapist , he has not undergone any assessment of his risk to society for this behavior to recur and has not admitted to charges under the Criminal Code ” (emphasis added, at para 17). Similarly, the Council found it troubling that Dr. Leontowicz did not express remorse for his deeds. [ 28 ] In the end result, “by the narrowest of margins” the Council declined to revoke Dr. Leontowicz’s licence (at para 22).

Instead, it imposed an indefinite suspension without spelling out any conditions for reapplication, reasoning that “a practitioner who is indefinitely suspended faces the same total removal from practice while under suspension but is able to make application to the Council to end the suspension” (at para 22). In this way, the Council said the door was left open for Dr. Leontowicz’s return to practice “given a

demonstration of rehabilitation and proof of minimal risk to reoffend” (at para 22). [ 29 ] To summarize, the penalty imposed by the Council was as follows: Council’s decision The Council of the College of Physicians and Surgeons imposes the following penalty on Dr. Jesse Leontowicz pursuant to The Medical Profession Act, 1981 (the “ Act ”): 1) Dr. Leontowicz no longer has a licence to practise medicine. 2) Pursuant to Section 54(1) (

b) of The Medical Profession Act , 1981 , Dr. Leontowicz is immediately suspended from the privileges of a duly qualified medical practitioner under this Act until Council rescinds or modifies the suspension. 3) The Council reserves to itself, upon application by Dr. Leontowicz, the right to rescind or modify the suspension. 4) Pursuant to Section 54(1) (

e) of The Medical Profession Act , 1981 , the Council hereby reprimands Dr. Leontowicz. The format of that reprimand will be determined by the Council. Dr. Leontowicz is required to appear before the next regularly scheduled meeting of the Council to be present to have the reprimand administered in person. [ 30 ] The Council’s two-page Costs Decision was rendered on November 20, 2020. In it, the Council ordered Dr. Leontowicz to pay full indemnity costs of $96,577.10. V. THE QB DECISION [ 31 ] Dr. Leontowicz appealed all matters to the Court of Queen’s Bench.

The judge began his decision by thoroughly reviewing the evidence that was before the Committee, the Committee’s reasoning underpinning its decision, and the relevant provisions of the MPA and the Regulatory Bylaws for Medical Practice in Saskatchewan (August 2020) [ Regulatory Bylaws ]. [ 32 ] Turning next to the standard of review for an appeal brought under s. 62 of the MPA , the judge took guidance from Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [2019] 4 SCR 653 [ Vavilov ].

Because s. 62 created a statutory right of appeal, he said he was obliged to apply the appellate standards of review in his consideration of the Committee Decision . This meant that, as per Housen v Nikolaisen , 2002 SCC 33 , [2002] 2 SCR 235 [ Housen ], he would review Dr.

Leontowicz’s allegations of legal error on the correctness standard and errors of fact and mixed fact and law (absent an extricable question of law) for palpable and overriding error. [ 33 ] The judge was also alert to this Court’s decision in Strom v Saskatchewan Registered Nurses’ Association , 2020 SKCA 112 , 453 DLR (4th) 472 [ Strom ], where it was determined that a finding of professional misconduct was a discretionary decision.

As such, he said, appellate intervention is only warranted “if the decision-maker erred in principle, misapprehended or failed to consider material evidence, failed to act judicially, or reached a decision so clearly wrong that it would result in an injustice” ( QB Decision at para 68, quoting Strom at para 60 ). He went on to remark that, given the similarities of the legislative structure between that in Strom and the MPA , the Strom analysis would be applied “to the question of whether Dr.

Leontowicz’s conduct in the circumstances of this case amounted to professional misconduct as defined by the MPA , 1981 ” ( QB Decision at para 70). [ 34 ] Regarding the standard of review on which he was to assess the Penalty Decision , the judge noted two streams of thought on the matter, as elucidated by decisions such as Alsaadi v Alberta College of Pharmacy , 2021 ABCA 313 , 463 DLR (4th) 335 [ Alsaadi ], and Dhalla v College of Physicians and Surgeons of Manitoba , 2022 MBCA 7 , [2022] 6 WWR 388.

Ultimately, the judge settled on the reasonableness standard, which he interpreted to mean that “an administrative penalty should not be disturbed on appeal except where it is shown to be (

i) demonstrably unfit such that it is disproportionate or falls outside the range of penalties imposed in other cases, or (ii) based on an error in principle” ( QB Decision at para 79). [ 35 ] As to Dr. Leontowicz’s nine grounds of appeal, the judge found no palpable and overriding error in the Committee’s findings of fact but held that it had erred in three ways in its professional misconduct analysis. First, he reasoned that, since the Regulatory Bylaws do not speak directly to sexual misconduct outside of a physician–patient relationship, “a proper

interpretation of ss. 46 (

o) and (

p) of the MPA , 1981 does not support the conclusion that it qualifies as ‘unbecoming, improper, unprofessional or discreditable’ conduct under that subsection” ( QB Decision at para 184). Second, he focused on what he saw as the Committee’s determination that a criminal offence had been made out. He found the Committee erred because “this characterization of Dr. Leontowicz’s conduct appears to have infected the Committee’s analysis of whether his conduct amounted to unprofessional conduct for [the] purposes of s. 46 (

o) of the MPA , 1981 ” (at para 191). The third and final error he identified was his conclusion that there was no evidentiary basis for the Committee to have believed that the charge against Dr. Leontowicz would generate reputational concerns for either him or the medical profession at large. [ 36 ] All of this caused the judge to conclude that the Committee had committed errors in its nexus analysis sufficient to warrant appellate intervention. He said as follows: [201] Taking account of the “full panoply of contextual factors” peculiar to Dr. Leontowicz’s case, I am persuaded the Committee erred in principle when finding him guilty of professional misconduct as set out in s. 46 (

o) of the MPA , 1981 . Respectfully, the Committee’s analysis was “one dimensional”, to quote Strom at para 128 . To be sure, Dr. Leontowicz’s conduct that night exhibited a grievous error in judgment and lapse of personal responsibility.

Yet, no true nexus, let alone a significant one, had been established between his sexual encounter with the complainant on January 22, 2018, and the Committee’s finding that because of it, he could not be trusted to practice medicine safely, a career for which he has trained for many years, and has the educational credentials to pursue. [ 37 ] The judge allowed the appeal, quashed the Committee Decision and dismissed the charge of unprofessional conduct against Dr. Leontowicz. Given that result, and while he found it unnecessary to determine Dr.

Leontowicz’s appeal from the Penalty Decision , the judge went on to briefly address it, concluding that it was stringent, demonstrably unfit and “disproportionate as it is an indefinite and not

a definite suspension” ( QB Decision at para 216). He also determined that the costs award was fraught with several errors in principle: the most egregious being the Council’s acceptance of full indemnity as its default position without weighing and balancing the applicable factors and, most notably, considering whether it delivered a “‘crushing financial blow’ to Dr. Leontowicz in these circumstances” (at para 219). [ 38 ] The judge closed his analysis on penalty and costs by stating that had it been necessary for him to address these matters, he would have allowed Dr.

Leontowicz’s appeal, set aside those decisions and remitted the matters to the Council for reconsideration. VI. ISSUES [ 39 ] The College was granted leave to appeal on the following five grounds: (

a) Did the judge misapply the standard of review and merely substitute his own view for what constitutes unprofessional conduct? Did the judge fail to treat the Committee Decision with deference? (

b) Did the judge err by applying a higher level of scrutiny to the Committee’s decision because the impugned conduct is not specifically defined as unprofessional conduct under The Medical Profession Act, 1981 , or the College of Physicians and Surgeons of Saskatchewan’s Regulatory Bylaws ? (

c) Did the judge err by concluding the Committee had erred in finding Dr. Leontowicz’s conduct constituted sexual assault within the meaning of the Criminal Code ? (

d) Did the judge err in concluding the Committee had improperly analyzed the nexus issue? Did the judge err in determining that evidence of a nexus was required? (

e) Did the judge err in relation to his decision on penalty and costs by (

i) selecting and applying the wrong standard of review; (ii) concluding the penalty was demonstrably unfit and disproportionate in the circumstances at hand; and (iii) concluding that the penalty fell outside the range for penalties for similar conduct committed in similar circumstances? [ 40 ] Dr. Leontowicz was granted leave to cross-appeal on the following issues: (

a) Did the judge err in law by finding that the Committee did not err in accepting and relying on the expert evidence of Dr. Haskell and, if so, did that error have an impact on its assessment of the credibility and reliability of the complainant? (

b) Did the judge err in law by finding that the Committee did not err in its treatment and use of the evidence of Dr. Kamencic and, if so, did that error have an impact on its assessment of the credibility and reliability of the complainant? (

c) Did the judge err in failing to make an order quashing the penalty and costs order? VII. ANALYSIS A. The College’s appeal from the QB Decision [ 41 ] As noted, the College was granted leave to appeal on five grounds. I will deal with each ground in turn, with the first two matters addressed together because they raise similar issues. 1. Failure to approach the Committee Decision with deference [ 42 ] The matter before the judge was a statutory appeal.

The parties are of one mind that, in Saskatchewan at least, the standard of appellate review to be applied by a reviewing judge respecting a professional disciplinary decision is that set out in Strom . This means that the Committee’s determination that Dr. Leontowicz’s behaviour constituted professional misconduct was a discretionary decision that had to be assessed by the judge in accordance with the standard of review for those sorts of decisions. [ 43 ] Kot v Kot , 2021 SKCA 4 , 63 ETR (4th) 161 [ Kot ], provides a recent summation of the standard of review for discretionary decisions: [20] In

summary, these cases confirm that appellate intervention in a discretionary decision is appropriate where the judge made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider material evidence. Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed the exercise of their discretion or misapplied those criteria, thereby committing an error of law.

Such errors may include a failure to give any or sufficient weight to a relevant consideration. [ 44 ] Although the College concedes that the judge identified the correct standard of review, it says he erred by failing “to give the Discipline Hearing Committee the deference required and instead substituted his own views on whether Dr. Leontowicz’s off-duty conduct constituted unprofessional conduct”. This argument is grounded in what the College refers to as a long, unbroken line of authority to the effect that “members of a self-regulated profession are best suited to determine the ethics of their profession”.

Further, it says, because they have the requisite knowledge, understanding and first-hand experience about the “core values and principles of the

profession”, members of the profession are, by extension, best suited to determine the correlation between a member’s impugned conduct and the profession. The College builds on its argument by pointing to the wording of s. 46 (

o) of the MPA , which expressly confers broad discretion on discipline hearing committees to determine whether a set of circumstances amounts to conduct that is unbecoming, improper, unprofessional or discreditable. Further, it says that, much like trial judges, the Committee had the benefit of hearing and seeing the witnesses and, ultimately, bore the task of making credibility and reliability findings. Those findings, it says, “significantly informed their decision on whether Dr.

Leontowicz’s off-duty conduct was unprofessional”. [ 45 ] To sum up its position, I take the College to argue that since the Committee did not err in any of the ways described in Kot , the judge had no basis to interfere with the Committee Decision . In the result, it says the judge did no more than substitute his own view for whether Dr. Leontowicz was guilty of professional misconduct for that of the Committee. [ 46 ] In assessing this argument, I begin by reminding myself of the role this Court plays in sitting as a secondary appellate court.

In that regard, an appellate court is to determine whether the judge chose the correct standard of review and applied it properly. This is a question of law, reviewable on the correctness standard: Dr. Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at paras 43–44 , [2003] 1 SCR 226.

In practice, once the appellate court has identified the correct standard of review, it “steps into the shoes” of the reviewing court and reviews the decision of the administrative tribunal in accordance with that standard ( Teamsters Canada Rail Conference v Canadian National Railway Company , 2021 SKCA 62 at para 41 , 327 LAC (4th) 322). [ 47 ] As I see it, the College’s argument under this heading is built around four somewhat interrelated lines of reasoning.

As discussed below, I conclude that none of those pillars – individually or collectively – provides a basis for appellate intervention. [ 48 ] The College begins by pointing to case law, which, it submits, has repeatedly held that members of a self-regulated profession are best suited to determine the ethics of their own profession and to identify the profession’s core values and principles. I do not take the judge, or Dr. Leontowicz for that matter, to suggest otherwise.

Indeed, the fact that the Legislature entrusted the medical profession with the responsibility of self-regulating its members explicitly makes that point. However, it is also of significance that the Legislature gave members an express right of appeal from a Committee’s decision as per s. 62 of the MPA . This underscores the fact that the Committee’s decision-making authority is not unfettered nor impervious to judicial intervention where warranted.

A similar point was made by this Court in Law Society of Saskatchewan v Abrametz , 2020 SKCA 81 [ CA-Abrametz 2020 ], rev’d 2022 SCC 29 , 470 DLR (4th) 328 [ SCC-Abrametz ] (but not on this issue), noting that the presence of a statutory appeal is a clear signal “that the Legislature intended to subject the decision-maker to appellate oversight and the application of the appellate standard” ( CA-Abrametz 2020 at para 75). [ 49 ] Second, the College says the breadth of the wording in s. 46 (

o) confers broad discretionary authority on the Committee to determine whether a set of facts gives rise to conduct that is unbecoming, improper, unprofessional or discreditable. I agree. The wording of the provision is clearly open-ended. It states as follows: Charges 46 Without restricting the generality of “unbecoming, improper, unprofessional or discreditable conduct”, a person whose name is entered on a register is guilty of unbecoming, improper, unprofessional or discreditable conduct, if he or she: … (

o) does or fails to do any act or thing where the discipline hearing committee considers that action or failure to be unbecoming, improper, unprofessional or discreditable … . (Emphasis added) [ 50 ] Neither am I persuaded by the College’s implicit argument that, when considering the bottom-line question of whether a member of the medical profession is guilty of misconduct, great deference must be shown to the Committee because it is called upon to make a finding of fact. With respect, that is an overly simplistic proposition and is at odds with Strom , where the same argument was advanced but rejected.

Speaking for the Court on that occasion, Barrington-Foote J.A. had this to say in response to that proposition: [73] In the result, a discipline committee deciding whether a registered nurse is guilty of professional misconduct is not deciding a question of fact for standard of review purposes. It is either deciding a question of mixed fact and law or making a discretionary decision. As to which, there is no bright line which neatly divides these two categories. Both call for the decision-maker to find the facts and apply legal principles to those facts.

The import of that observation is that, although discretionary in nature, the Committee Decision remained subject to judicial oversight, albeit through the lens of the applicable standard of review. [ 51 ] As mentioned, Strom settled the point that a discipline hearing committee’s decision is discretionary in nature. However, that discretion is not unfettered: see Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119 [ Rimmer ].

Furthermore, one must not lose sight of the fact that the standard of review applied by an appellate court in assessing a discretionary decision “depends on the nature of the error alleged to have been made and not on the type of judicial decision that was made” (emphasis added, Kolodziejski v Maximiuk , 2023 SKCA 103 at para 24 , referencing MacInnis v Bayer Inc. , 2023 SKCA 37 at para 38 ). [ 52 ] By way of its third proposition, the College points to the fact that the Committee had the benefit of seeing and hearing the witnesses and was therefore best positioned to make credibility findings, which, in turn, informed the question of whether Dr.

Leontowicz’s conduct was unprofessional. Once again, I take no issue with that general proposition; indeed, credibility findings fall within the domain of triers of fact and warrant deference on appeal. However, the Committee’s ability to hold a hearing, hear evidence and make findings of fact, including assessing the credibility and reliability of the witnesses, does not necessarily mean that inferences drawn from those facts or, as discussed above, the bottom-line conclusion of professional misconduct, is impervious to appellate scrutiny. Strom says as much.

In any event, the judge did not overturn the Committee Decision on issues of credibility or reliability. He did so because he found the conclusion was grounded in legal error.

[ 53 ] This leaves the College’s wide-ranging submission that a reviewing court owes something akin to an additional or super-added layer of deference to the Committee in connection with its disciplinary decisions. Respectfully, this argument is inconsistent with the jurisprudence and must be rejected. While the College has cited a plethora of case authority to support its position on deference, none of them are persuasive, largely because they all predate Vavilov and are at odds with the shift in direction provided by that decision.

Where the legislation allows for a statutory appeal to be taken (as it does here), the Legislature can be understood to have intended that the normal appellate standards of review apply: see Vavilov at para 36 . [ 54 ] I am satisfied the judge understood the proper legal framework within which he was to review the Committee’s decision and that, contrary to the College’s position, the applicable standard of review did not oblige him to approach the Committee’s determination with an enhanced level of deference.

Respectfully, the issue on this appeal is whether the judge erred in his application of the proper standard of review of the Committee Decision , and it is to that issue that I now turn. 2. Application of the standard of review [ 55 ] The College says the judge erred in his application of the standard of review by (

a) applying a higher level of scrutiny to the impugned conduct because it was not specifically defined as unprofessional conduct in the MPA or the Regulatory Bylaws ; (

b) concluding the Committee erred in finding that Dr. Leontowicz’s conduct constituted sexual assault within the meaning of the Criminal Code ; and (

c) improperly analyzing the nexus between private, off-duty conduct and the practice of medicine. [ 56 ] I will deal with each argument in turn. a. Professional misconduct and the Regulatory Bylaws [ 57 ] The judge was critical of the Committee for failing to undertake an analysis of the governing legislation – notably the phrase professional misconduct – or to meaningfully consider how Dr. Leontowicz’s off-duty actions fell within the ambit of that term as used in s. 46 (

o) of the MPA . He also found the Committee’s failure to reference the Regulatory Bylaws to be a significant oversight. Given what he saw as the Committee’s analytical shortcomings, the judge said a “closer scrutiny of the Committee’s conclusions on this issue is warranted” ( QB Decision at para 183). [ 58 ] The provisions identified by the judge include s. 46 (

o) of the MPA (which is repeated here for ease of reference) and s. 8.1 of the Regulatory Bylaws : Charges 46 Without restricting the generality of “unbecoming, improper, unprofessional or discreditable conduct”, a person whose name is entered on a register is guilty of unbecoming, improper, unprofessional or discreditable conduct, if he or she: … (

o) does or fails to do any act or thing where the discipline hearing committee considers that action or failure to be unbecoming, improper, unprofessional or discreditable … . 8.1 Bylaws Defining Unbecoming, Improper, Unprofessional or Discreditable Conduct (

a) In this section: … (iv) “Sexual misconduct” means the threatened, attempted or actual conduct of a physician towards or with a patient that is of a sexual nature and includes any of the following conduct: 1. sexual intercourse between a physician and a patient of that physician; 2. genital to genital, genital to anal, oral to genital, or oral to anal contact between a physician and a patient of that physician; 3. masturbation of a physician by, or in the presence of, a patient of that physician; 4. masturbation of a physician’s patient by that physician; 5. encouraging a physician’s patient to masturbate in the presence of that physician; 6. touching of a sexual nature of any part of a patient’s body, including a patient’s genitals, anus, breasts or buttocks by a physician.

For the purpose of this paragraph “touching of a sexual nature” does not include performing an appropriate physical examination that is appropriate to the service provided; 7. kissing of a sexual nature with a patient; 8. sexual acts by the physician in the presence of the patient; 9. any incident or repeated incidents of objectionable or unwelcome conduct, behaviour or remarks of a sexual nature by a physician

towards a patient that the physician knows or ought reasonably to know will or would cause offence or humiliation to the patient or adversely affect the patient’s health and wellbeing.

For the purpose of this paragraph “sexual nature” does not include any conduct, behaviour or remarks that are appropriate to the service provided; 10. acts or behaviours which are seductive or sexually-demeaning to a patient or which reflect a lack of respect for the patient’s privacy, such as examining a patient in the presence of third parties without the patient’s consent or sexual comments about a patient’s body or underclothing; 11. making sexualized or sexually demeaning comments to a patient; 12. requesting details of sexual history or sexual likes or dislikes when not clinically indicated; 13. making a request to date a patient or dating a patient; 14. initiating or participating in a conversation regarding the sexual problems, preferences or fantasies of the physician … . [ 59 ] In general terms, the College takes issue with the judge’s self-instruction to pay closer scrutiny to the Committee’s conclusion because it did not specifically engage in an analysis of the MPA or the Regulatory Bylaws . [ 60 ] I see no error in his approach.

An examination of paragraph 183 of the QB Decision demonstrates that the judge understood that the critical issue before the Committee was whether Dr. Leontowicz’s actions constituted professional misconduct. He was, therefore, correct to begin his analysis by focusing on how the Committee had interpreted and applied s. 46(

o) of the MPA and the Regulatory Bylaws . [ 61 ] The College next asserts the judge erred in concluding that, because Dr. Leontowicz’s conduct did not fall within the specifically defined examples of unprofessional conduct set out in the MPA (presumably referring to s. 46(

a) to s. 46(n)), nor fall within the list of what constitutes sexual misconduct under s. 8.1 of the Regulatory Bylaws , his behavior was less likely to constitute unprofessional and sanctionable conduct. [ 62 ] The alleged error is said to arise from paragraph 184 of the QB Decision , where the judge said as follows: [184] Second, as the Regulatory Bylaws did not cover the kind of conduct which the Committee found Dr. Leontowicz engaged in – namely sexual misconduct wholly outside a physician–patient relationship – a proper

interpretation of ss. 46 (

o) and (

p) of the MPA , 1981 does not support the conclusion that it qualifies as “unbecoming, improper, unprofessional or discreditable” conduct under that subsection. [ 63 ] I understand the judge to have made two points. Sexual misconduct that occurs off-duty and outside of a physician–patient relationship does not fall under the definition of sexual misconduct in s. 8.1 of the Regulatory Bylaws . This should be interpreted to mean, he said, that (

a) s. 46 (

o) cannot be used to backfill the Regulatory Bylaws , and, as such, s. 46 (

o) should be interpreted narrowly, and (

b) the conduct must be seen as removed from the profession and less likely to amount to professional misconduct. [ 64 ] The error embedded in the first prong of that reasoning process is obvious. The wording of the MPA reveals a legislative intent to bestow broad discretion on a discipline hearing committee to determine, on a case-by-case basis, if any act or thing done or failed to be done by a physician is “unbecoming, improper, unprofessional or discreditable” (s. 46(o)).

This point was made by Josh Koziebrocki and Lidiya Yermakova, “Off-Duty Conduct: Issues to Consider for Regulators, Practitioners and Professionals” (Spring 2019) 37 Adv J No 4, 12–14 (QL): [12] … in most regulated professions, it is

an act of professional misconduct to engage in “conduct unbecoming” the profession, or conduct that would be regarded by others in the profession as “disgraceful, dishonourable or unprofessional” terms which are not further defined. Allegations of wrongdoing which take place off-duty are typically brought under these broad and all-encompassing categories of professional misconduct. (Footnotes omitted) [ 65 ] While it is true to say that s. 46 (

p) envisions the possibility of a bylaw being enacted that defines a specific act or failure to act to be unbecoming conduct, and so on, that provision should not be read in a way that limits, colours or confines the operation of s. 46(o). For that to be the case, s. 46 (

o) would have to be prefaced with limiting words such as, subject to the provisions of any bylaw , but it is not. [ 66 ] Further, s. 46(

o) cannot be read in isolation from the lead-in language of the section, which evinces a conscious legislative choice not to draw hard boundaries around what might constitute sanctionable conduct under the MPA . By prefacing s. 46 with the words “without restricting the generality of ‘unbecoming, improper, unprofessional or discreditable conduct’”, the Legislature indicated that sanctionable conduct was not exhaustively limited to the types of activities, actions or omissions listed in s. 46(

a) to s. 46(p). Put another way, inclusion of the phrase “without restricting the generality of” at the commencement of s. 46, followed by a list of specific examples of what constitutes sanctionable conduct, is an indicator that the list is not all-inclusive. Ruth Sullivan in her text The Construction of Statutes , 7th ed (Toronto: LexisNexis, 2022) at c 4, §4.04, makes the same point in her discussion of drafting protocols: [3] Non-exhaustive

definitions … Ironically, when faced with a list of examples, interpreters sometimes disregard the general language the examples are meant to illustrate and rely on the examples to read down the scope of the general language. To preclude this possibility, drafters sometimes rely on the phrase “without limiting the generality of the foregoing” or words to that effect. (Footnotes omitted) See also Strom at paras 76 and 94 .

[ 67 ] A somewhat similar argument arose in Kapoor v Law Society of Saskatchewan , 2019 SKCA 85 , 438 DLR (4th) 672 [ Kapoor ], where the appellant was found guilty of conduct unbecoming a member of a law society when he failed to bring relevant and adverse authorities to the attention of the presiding judge. That particular conduct was not specifically proscribed by the legal profession’s Code of Professional Conduct [ Code ].

On appeal, the appellant argued that because the Code did not particularize the impugned conduct as being conduct unbecoming, by necessary implication, it did not constitute conduct unbecoming. That argument was rejected by this Court: [24] … In contrast, the preface to the Code — specifically said to form part of the Code — was reasonably relied upon by the hearing committee as providing “some assistance in interpreting and applying it in the context of the discipline process” ( Hearing Committee Decision [2016 SKLSS 13] at para 33).

The preface states that “[i]t is impossible for any code to prescriptively or exhaustively establish what might constitute conduct unbecoming”. Instead, the preface reminds that this determination is left to the Benchers, “who are guided by the legislation, this Code ” (emphasis added) and other matters. [ 68 ] Returning to the matter at hand, I conclude the judge also erred in his conclusion that because Dr. Leontowicz’s actions fell outside of the definition of sexual misconduct contained in the Regulatory Bylaws they were somehow removed from the scope of professional misconduct.

This omission is a factor in the

interpretation of the legislation to be sure, but one that fits more comfortably in the nexus analysis. [ 69 ] To conclude on this ground of appeal, I find the judge erred in law in his approach to s. 46 of the MPA and its interrelationship with the Regulatory Bylaws . Sexual misconduct that takes place outside of a clinical or physician–patient relationship is not specified as being misconduct under the Regulatory Bylaws ; but that fact does not preclude a discipline hearing committee from concluding that, in an appropriate case, the impugned action is unbecoming, improper, unprofessional or discreditable. b.

The Committee’s determination of sexual assault [ 70 ] The judge also concluded that the Committee fell into error by analyzing Dr. Leontowicz’s conduct through a criminal law lens. The judge’s analysis on this point focused on the following two paragraphs of the Committee Decision : 153. The conduct under consideration here is that Dr.

Leontowicz (then a fourth year medical student, now an M.D.), on a date with the Complainant, without her consent had unprotected sex with her and hit her multiple times with such force as to cause injury to her face. [J.T.] was not a patient and the assault did not occur in the context of Dr. Leontowicz’s medical practice. 154. Dr. Leontowicz was not criminally charged although the matter was reported to the police. While Dr. Leontowicz was not criminally charged, his conduct in the context of this proceeding, meets the definition of sexual assault . (Emphasis added) [ 71 ] On the Queen’s Bench appeal, Dr.

Leontowicz argued that, in framing his conduct as sexual assault in the criminal law sense of the term , the Committee failed to assess whether all of the elements of that offence had been made out. The judge agreed with Dr. Leontowicz , stating, “As I read these two paragraphs, particularly para. 154, the Committee appears to refer to the criminal definition of sexual assault contained in s. 271 of the Criminal Code , RSC 1985, c C-46 , when they concluded Dr. Leontowicz’s conduct satisfied ‘the definition of sexual assault’. Respectfully, this is an error of law …” ( QB Decision at para 188).

Later, he said the Committee fell into error “when they purported to find that the elements of the criminal offence of sexual assault had been met” (at para 191). [ 72 ] The judge went on to detail why he found that conclusion to be legally problematic. First, h e said it was “not insignificant” that Dr. Leontowicz was not charged criminally, and in consequence “no criminal court has found that Dr. Leontowicz’s conduct constituted sexual assault” (at para 189). Additionally, he reasoned that (

a) an administrative hearing “could not determine criminal liability”, (b) “Dr. Leontowicz did not have the protections afforded to accused persons by s. 11 of the Charter ”, (

c) the College was not required to “prove the factual allegations set out in its charge beyond a reasonable doubt”, and (

d) the Committee did not “have to grapple with issues such as the requisite mens rea or the more difficult question of honest but mistaken belief in communicated consent either or both of which arise in many criminal prosecutions for sexual assault” (at para 190). [ 73 ] Those points made, the judge concluded that the Committee fell into error “when they purported to find that the elements of the criminal offence of sexual assault had been met” (emphasis added). This finding was significant because, as the judge went on to say, “this characterization of Dr.

Leontowicz’s conduct appears to have infected the Committee’s analysis of whether his conduct amounted to unprofessional conduct for [the] purposes of s. 46 (

o) of the MPA , 1981 ” (at para 191). [ 74 ] It is the College’s position on appeal that the judge misunderstood the Committee’s function and misconstrued its characterization of Dr. Leontowicz’s actions as sexual assault in the criminal sense of the term. I agree with the College. [ 75 ] First, the Committee did not err simply because it used a term that has a meaning in a criminal law context. The term sexual assault is one that has a colloquial or general usage in a variety of civil and administrative law contexts.

Bodies like the Committee are empowered to label certain impugned behavior as sexual assault in the same manner that decision-makers in civil actions refer to actions like fraud or theft, which also constitute crimes.

The jurisprudence is replete with case law where the term sexual assault is used in a non-criminal context: see, for instance, Calgary (City) v Canadian Union of Public Employees Local 37 , 2019 ABCA 388 , 439 DLR (4th) 405, where, in the context of the review of a labour arbitration decision concerning sexual harassment in the workplace, the Alberta Court of Appeal said, “There can be no doubt that the grabbing and squeezing of another’s breast without consent is sexual assault .

Sexual assault , by its very definition, is serious misconduct” (emphasis in original, at para 11), and “Many courts and arbitrators have been quick to recognize that harassment with a physical component constitutes a form of sexual assault and is among the most serious form of workplace misconduct” (at para 31): see also Professional Institute of the Public Service of Canada v Communications, Energy and Paperworkers’ Union of Canada, Local 3011 , 2013 ONSC 2725 at para 20 , 308 OAC 191. [ 76 ] Second, there was nothing wrong in law with the Committee concluding that the elements of a criminal offence had been proven to have occurred based on the evidence before it and then relying on those proven facts as amounting to professional misconduct.

[77] This does not mean that the Committee was empowered to make a finding of criminal liability. Criminal liability can only bedetermined based on proof beyond a reasonable doubt, after all procedures appropriate to the making of such a finding have been followed.However, the Committee did not purport to make a finding of criminal liability. [78] In this context, I see no error with the Committee determining that Dr. Leontowicz’s “conduct in the context of this proceeding,meets the definition of sexual assault” (Committee Decision at para 154).

Moreover, these words must be read in situ and not taken inisolation. In the immediately preceding paragraph, the Committee expressed what it understood to be the impugned conduct at issue in thisway (repeated here for reference): 153. The conduct under consideration here is that Dr. Leontowicz (then a fourth year medical student, now an M.D.), on a date with theComplainant, without her consent had unprotected sex with her and hit her multiple times with such force as to cause injury to her face.[J.T.] was not a patient and the assault did not occur in the context of Dr. Leontowicz’s medical practice.

Nothing in that paragraph suggests that the Committee saw itself as being tasked with making criminal findings. As I see it, the Committeewas merely trying to get a handle on whether Dr. Leontowicz’s conduct constituted unwanted sexual touching for purposes of establishingthe relative seriousness of the alleged misconduct within the broader context of determining if it amounted to professional misconductunder s. 46(

o) of the MPA. [79] Paragraph 154 of the Committee Decision is also of interest. It, as well, is repeated here for ease of reference: “Dr. Leontowiczwas not criminally charged although the matter was reported to the police. While Dr. Leontowicz was not criminally charged, his conductin the context of this proceeding, meets the definition of sexual assault”. [80] In stating that although the Committee knew that Dr. Leontowicz had not been criminally charged, it understood that itspurpose was to examine his conduct; as it said, it found that conduct to be sexual assault in the context of this proceeding.

By this, Iunderstand the Committee to say that all of the elements of a criminal offence had been proven on a balance of probabilities and that theseproven facts amounted to professional misconduct. A second and most obvious point is that paragraph 154 does not mention the CriminalCode nor link it to sexual assault in a criminal context. [81] In

summary, I take the Committee in this case to have done nothing different than reason on a basis that was similar to casessuch as Laroche v Beirsdorfer (1981), (FCA), 131 DLR (3d) 152 (FCA), when, in its assessment of the relativeseriousness of the impugned conduct, it saw something that was effectively equivalent to criminal behaviour. [82] The third point I would make is the fact that Dr. Leontowicz had not been charged criminally did not prevent the Committeefrom finding that actions that might amount to a criminal offence had been proven to have occurred based on the evidence before it.

Proofof a conviction might have precluded Dr. Leontowicz from arguing that a criminal offence had not taken place: Toronto (City) v C.U.P.E.,Local 79, 2003 SCC 63 at para 57, [2003] 3 SCR 77. However, the opposite is not true. There are many reasons why criminal chargesmay not have been brought.

In the absence of admissible evidence explaining why this decision was taken, and why it was probative to thequestions before the Committee, there was no basis for the judge to say that it was “not insignificant … no criminal charges were laid”(QB Decision at para 189). [83] To conclude, I agree with the College that the judge erred in law in finding fault with the Committee basing its finding ofprofessional misconduct on its conclusion that a sexual assault had occurred. c. The nexus issue i.

General principles on nexus [84] It is generally accepted that professional regulatory bodies have the authority to investigate and discipline members of theirprofession for conduct that arises outside of the execution of their professional duties. The extent of the authority to investigate andsanction a member for off-duty conduct typically falls under the broad umbrella of conduct that is unbecoming, improper, unprofessionalor discreditable. Canadian courts have thus far been consistent in their articulation of the standard required for a finding of professionalmisconduct to be made.

That said, the application of that standard to the facts of each case remains challenging, if not uncertain. Asconcluded by Bryan Salte, The Law of Professional Regulation, 2d ed (Toronto: LexisNexis, 2023), the “issue of discipline for off-dutyconduct remains a difficult one for Discipline Committees and courts to address.

It is difficult to enunciate and apply principles thatdifferentiate off-duty conduct that is unprofessional and subject to discipline and conduct that is not subject to discipline” (at §6.08). [85] At one time, the demarcation between off-duty conduct that is unprofessional and that which is beyond the reach of theregulator was thought to be whether the conduct was “reprehensible in anyone” (Marten v Disciplinary Committee of the Royal College ofVeterinary Surgeons, [1965] 1 All ER 949 at 953).

That approach was subsequently found to be overly simplified and has been rejected.For instance, in Yee v Chartered Professional Accountants of Alberta, 2020 ABCA 98, 9 Alta LR (7th) 10, the Alberta Court of Appealsaid many factors must go into the consideration, and “[t]he closer the conduct comes to the activities of the profession, the more possibleit is that personal misconduct will amount to professional misconduct” (at para 45). [86] Similarly, Strom also rejected the general proposition that an egregious event or one that is reprehensible, distasteful,undesirable or improper on its own amounts to professional misconduct.

As clarified in Strom, off-duty conduct may be professionalmisconduct “if there is a sufficient nexus or relationship of the appropriate kind between the personal conduct and the profession to engagethe regulator’s obligation to promote and protect the public interest” (at para 89).

The test is whether the impugned conduct was such thatit would have a “sufficiently negative impact on the ability of the professional to carry out their professional duties or on the profession toconstitute misconduct” (at para 89): see also Klop v College of Naturopathic Physicians of British Columbia, 2022 BCSC 2086 atpara 110, leave to appeal to BCCA refused, 2023 BCCA 125. [87] Strom went on to identify three competing interests at stake in connection with fair and effective self-governance: those of thepublic, those of the profession at large and those of the member.

Balancing these interests requires a professional disciplinary body toexamine the circumstances and have regard for the “full panoply of contextual factors particular to an individual case before making that

determination” ( Groia v Law Society of Upper Canada , 2018 SCC 27 at para 83 , [2018] 1 SCR 772 [ Groia ]) – see also Strom at para 113 . However, precisely where that balance is struck is for the disciplinary body to determine, “provided that there is no reviewable error” ( Strom at para 114 ). [ 88 ] Determining whether the required nexus exists calls for a contextual analysis.

Factors relevant to that analysis include “the nature of the profession; the relationship of the misconduct to the work of the profession or the personal characteristics considered necessary to practice the profession; and whether the person charged is identified or purported to act as a member of that profession are relevant” (at para 90). [ 89 ] Thus, the question for the judge was not whether he would have come to a different conclusion than the one arrived at by the Committee but whether, framed in the standard of review context, “the Discipline Committee failed to apply or misapplied the criteria governing the exercise of its discretion, thereby committing an error of law” ( Strom at para 111 ). ii.

The QB Decision on nexus [ 90 ] Like the judge, I agree that the Committee might have devoted more of its analysis to the question as to whether Dr. Leontowicz’s off-duty conduct constituted professional misconduct as envisioned by s. 46 of the MPA . Since the Committee’s findings are brief, I will replicate them in their entirety: 161. A core value of the medical profession is to do no harm. Further, the essence of the work of the profession is to help and heal other human beings. Sexual assault is the antithesis of this creed and unacceptable to the profession.

Though the conduct here did not take place in the course of duty, it discredits both Dr. Leontowicz and the profession. Dr. Leontowicz, in practice, will undoubtedly deal with female patients, disrobed and vulnerable. He has shown himself, by his conduct towards [J.T.], as unworthy of the trust which is placed in physicians by their female patients and the public generally. His conduct, as found in this case, is not only damaging to his own reputation but to that of the profession at large. By his conduct Dr.

Leontowicz not only did physical harm to the Complainant but demonstrated disregard for the very notion of consent – a foundation of the physician/patient relationship. 162. The medical profession holds its members to high standards both in their personal lives and their professional lives. Maintaining those standards of personal and professional conduct engenders and ensures public trust. Physicians hold positions of elevated status in society for their technical and intellectual abilities but also because they are trusted always to heal not harm. Dr.

Leontowicz’s conduct was such as to erode the confidence the public now has that they can feel safe with their physician. [ 91 ] The judge began his consideration of the nexus issue by instructing himself to apply the precepts of Strom in analyzing the Committee’s reasoning. Ultimately, he concluded that the Committee took “an overly narrow view of the situation” and did not “appropriately analyze the nexus between [Dr. Leontowicz’s] private conduct and the medical profession” ( QB Decision at para 196).

He gave two specific examples of what he saw to be the Committee’s deficiency in this regard. [ 92 ] The first related to the nature of the profession, the relationship of the misconduct to the work of the profession and the personal characteristics considered necessary to practice in that profession. To repeat on this point, the Committee linked Dr. Leontowicz’s future interactions with female patients who (it assumed) may be disrobed and vulnerable, with whether Dr. Leontowicz could be trusted to respect the issue of consent in his interactions with patients.

In fact, it found he was “unworthy of the trust which is placed in physicians by their female patients and the public generally” ( Committee Decision at para 161). [ 93 ] The judge found the first part of that statement to be no more than speculation, stating that there was “no evidence before the Committee which shows Dr. Leontowicz had ever ignored or disregarded a patient’s wishes in violation of the physician–patient relationship” ( QB Decision at para 195). I interpret the judge to have reasoned that, because there was nothing before the Committee to show that Dr.

Leontowicz had previously disregarded a patient’s wishes or violated the physician–patient relationship, the Committee’s conclusion had no foundation in the evidence. [ 94 ] The second error the judge found related to whether the private conduct would have an adverse effect on Dr. Leontowicz’s ability to carry out his professional obligations or have an adverse effect on the medical profession at large. The judge reasoned that because the allegations against Dr.

Leontowicz had not been publicized there was no basis in the evidence to suggest the charge against him would result in a “loss of public confidence in [his] abilities as a medical professional or cast the profession as a whole in a negative light” (at para 193). [ 95 ] Having found error, the judge undertook his own analysis of the nexus question by applying what he called a “full panoply of contextual factors” (at para 198, referencing Groia at para 83 and Strom at para 113 ), all of which led him to conclude that the Committee had erred in finding Dr. Leontowicz guilty of professional misconduct. iii.

Analysis on nexus [ 96 ] Even thoug h its analysis was brief, the College argues that the Committee operated from an understanding that (

a) it could not sanction Dr. Leontowicz just because it found his actions reprehensible, and (

b) there had to be a link or nexus between his conduct and his ability to practice medicine and to the profession at large. While the Committee did not use the word nexus (because Strom had not yet been released at the time of its decision), its reasons demonstrate that it was alert to the idea that the test is nuanced and contextual, as shown by the following passage of the Committee Decision : 151. Counsel for the parties agree that “off-duty” conduct may constitute conduct unbecoming, improper, unprofessional or discreditable.

Further, that the factors to be considered in determining whether this is the case are summarized in The Law of Professional Regulation , Bryan Salte, LexisNexis Canada Inc. 2015, at page 126, as follows: 1. Whether the conduct damages the member’s reputation with the public; 2. Whether the conduct damages the profession’s reputation with the public;

3. Whether the conduct has a negative effect on the member’s ability to practice his or her profession; 4. Whether the conduct is more unacceptable for a person in the member’s profession than for members of the public. [97] Dr.

Leontowicz does not take issue with how the Committee framed its analysis. [98] Before delving into the main thread of the College’s argument, I wish to address its submission that the judge erred byimproperly relying on Strom and Hughes v Law Society of New Brunswick, 2020 NBCA 68, 94 Admin LR (6th) 210 [Hughes], which itsays were distinguishable on their facts. [99] In my view, the judge used Strom as no more than a roadmap from which he drew general legal principles respecting thediscipline of a member by their professional body for off-duty conduct.

While the facts in Strom engaged questions about off-duty freedomof speech and the need for enhanced emphasis on personal autonomy, I do not interpret the judge’s reasoning to be oblivious to thisdistinction or to have blindly followed the result in Strom in rendering his decision. Neither do I see Hughes to be problematic. True, thefacts in that case are distinguishable in several ways from the matter at hand, but the judge did not rely on Hughes to draw parallels to thefactual circumstance before him.

He did no more than cite Hughes to make the point that a disciplinary body must consider broader factorsbefore determining whether a misconduct charge is made out. The Supreme Court made the same point in Groia. The judge relied onHughes to that limited extent. [100] Next, the College says the Committee undertook the required analysis and drew appropriate inferences about the reputationalinterests at stake based on its knowledge of the profession, which allowed it to draw an inference that Dr. Leontowicz’s conduct had anegative impact on the medical profession at large and his ability to practice.

The College says the judge erred in concluding that theCollege had to adduce direct evidence to establish impairment and that, in any event, it would be next to impossible to adduce that sort ofgeneralized evidence. There is support for the College’s position in the jurisprudence. [101] The decision in Fountain v British Columbia College of Teachers, 2007 BCSC 830, [2007] 11 WWR 281 [Fountain 2007], andthe subsequent appeal from a reconsideration decision, Fountain v British Columbia College of Teachers, 2013 BCSC 773 [Fountain2013], offers helpful guidance. Mr.

Fountain, a teacher, had a contentious relationship with his adult sons. What started as a verbaldomestic dispute escalated into a physical altercation, with Mr. Fountain’s two sons physically assaulting him. That, in turn, causedMr. Fountain to fire his gun in the direction of his fleeing sons, though upward at a 45-degree angle. Mr. Fountain was charged andconvicted of careless use of a firearm. Even though that conviction was later overturned, his professional regulatory body found him guiltyof conduct unbecoming. [102] Much like the argument advanced by Dr. Leontowicz, Mr.

Fountain’s actions took place outside of his professional workplacesetting. This led him to argue that, to constitute conduct unbecoming, the regulator had to adduce direct evidence to establish that hisconduct had an adverse effect on the school system (to which he, as a teacher, owed a duty of responsibility) or upon his ability to carryout his professional obligations.

Similar to the College’s position in the matter at hand, the regulatory body argued that direct evidencewas not required and that harm to the profession in the form of the community’s loss of confidence in the school system could be inferredfrom Mr. Fountain’s egregious conduct. [103] The BC Supreme Court in Fountain 2007 agreed with the regulator’s position.

Its analysis began with Fraser v Public ServiceStaff Relations Board, (SCC), [1985] 2 SCR 455 [Fraser], where the Supreme Court spoke of two aspects of impairment.The first, direct impairment – which refers to the impairment of the regulatee’s ability to perform their specific job – requires directevidence. However, as Fraser emphasized, this rule is not absolute: “When, as here, the nature of the public servant’s occupation is bothimportant and sensitive and when, as here, the substance, form and context of the public servant’s criticism is extreme, then an inferenceof impairment can be drawn” (at 472).

Based in part on Fraser, the BC Supreme Court concluded that “direct evidence of impairment”was not necessarily required and that “impairment can be inferred” (Fountain 2007 at para 65(c)). [104] The decision in Ross v New Brunswick School District No. 15, (SCC), [1996] 1 SCR 825 [Ross], whichfollowed Fraser, was also touched upon in Fountain 2007. In Ross, a teacher had disseminated racist and anti-Semitic views outside of theclassroom. Mr. Ross argued that, since there was no proof of harm, he could not be sanctioned.

Speaking for the Supreme Court, LaForest J. agreed with the arbitrator: [49] … As to whether there is impairment on a broader scale, I conclude on the authority of Fraser, supra, that a reasonable inference issufficient in this case to support a finding that the continued employment of the respondent impaired the educational environmentgenerally in creating a “poisoned” environment characterized by a lack of equality and tolerance. The respondent’s off-duty conductimpaired his ability to be impartial and impacted upon the educational environment in which he taught.

See also Kempling v British Columbia College of Teachers, 2005 BCCA 327, 255 DLR (4th) 169, leave to appeal to SCC refused,. [105] Drawing from these authorities, the BC Supreme Court in Fountain 2007 summarized when an inference of impairment can bemade: [59] In

summary, the case law establishes that in appropriate circumstances it is permissible to draw an inference of direct impairment orof impairment in the wider sense in the absence of direct evidence. Relevant factors to be considered include: (

a) the nature of the conduct at issue [derived from Ross and Fraser]; (

b) the nature of the position [Ross and Fraser]; (

c) whether there is evidence of a pattern of conduct [Kempling v British Columbia College of Teachers, 2004 BCSC 133, leave to appealto SCC refused, [Kempling 1], and Kempling v British Columbia College of Teachers, 2005 BCCA 327 [Kempling 2]]; (

d) evidence of controversy surrounding the conduct [Ross and Kempling 1];

(

e) evidence that the private conduct has been made public [Ross and Kempling 1]; and (

f) evidence that the private conduct has been linked by the member to the professional status of the member [Kempling 1 and 2]. This list is not exhaustive. [106] The final two factors mentioned above, i.e., evidence of controversy surrounding the conduct and evidence that a private matterhas been made public, deserve mention.

On the latter point, the BC Supreme Court in Fountain 2013 found that no “direct evidence wasgiven that this private matter was made public, but in any event the panel drew the inference that harm to the school system had occurred”and held that this was not a reasonable inference to draw (at para 44). The BC Supreme Court found that Mr.

Fountain’s incident was “notlike certain criminal acts, such as indecency, that can establish evidence of harm from the conduct, by its very nature, which will present a‘significant risk of harm’” (at para 45, referencing R v Butler, (SCC), [1992] 1 SCR 452, and R v Labaye, 2005 SCC 80,[2005] 3 SCR 728). What I take from that comment in Fountain 2013 is that some conduct is inherently evidence of harm. [107] In this case, the Committee found as a fact that Dr.

Leontowicz had committed the alleged misconduct: i.e., administering blowsthat exceeded what the complainant had consented to and removing his condom against her expressed wishes. That finding was notdisturbed by the judge, who went so far as to say that his decision should “not be taken as excusing [Dr. Leontowicz’s] conduct in anyway. Truly, it deserves disapprobation” (QB Decision at para 225) and that these events “bring [Dr. Leontowicz] no credit and, indeed,represent a stain on his personal integrity and reputation” (at para 194). Despite these rather telling statements about the grievousness ofwhat Dr.

Leontowicz was found to have done, the judge did not find it was enough for professional sanction. [108] Respectfully, I find the judge placed too much stock in the brevity of the Committee’s reasons and the lack of direct evidence ofa connection to the professional setting and too little on the nature of the conduct and how it relates to the profession itself.

Indeed, thispoint was recognized in Jha v College of Physicians and Surgeons of Ontario, 2022 ONSC 769 (Div Ct), where the Ontario SuperiorCourt of Justice observed that the behaviour of a professional in their private life may be such as to be self-evidently inconsistent with thecore values of the profession and the need to maintain the confidence of the public in the profession. [109] The Committee identified that a “core value of the medical profession is to do no harm” and that the “foundation of thephysician–patient relationship” is consent (Committee Decision at para 161).

Given that physicians hold positions of elevated status insociety because “they are trusted always to heal not harm” (at para 162), the College drew an inference that Dr. Leontowicz was thus“unworthy of the trust which is placed in physicians by their female patients and the public generally” (at para 161).

While this conductdid not occur in a professional setting, I do not find it to be an unreasonable inference that a person who violated the physical safety andintegrity of an intimate partner with which he was entrusted might also not respect personal boundaries in a professional setting. [110] Further, the Committee observed that private behaviour that is so fundamentally at odds with these integral aspects of the practiceof medicine does damage to the integrity of the profession as a whole.

Critically, it identified the point that physicians are “trusted alwaysto heal [and] not harm”, and thus, this conduct was such as to “erode the confidence the public now has that they can feel safe with theirphysician” (at para 162). With the greatest respect, I am of the opinion that the judge’s analysis placed too much emphasis on whether theincident occurred in Dr.

Leontowicz’s capacity as a professional at the expense of the more robust analysis of the circumstances as awhole. [111] In addition to the concerns raised about the nature of the profession, the judge said there was “no basis in the evidence whichwould suggest the College’s charge against him would result in a loss of public confidence in Dr. Leontowicz’s abilities as a medicalprofessional or cast the profession as a whole in a negative light” (QB Decision at para 193).

While the public nature of the misconduct isone of the factors identified in the jurisprudence as being helpful to consider in the overall analysis, I find that he erred in his applicationof the standard of review because the Committee was entitled to infer harm from the conduct itself. [112] In my view, the Committee Decision, brief though it is, was responsive to the considerations related to the nature of this particularprofession and the circumstances of this case by effectively addressing questions such as these: (

a) Is it within the public interest to allow doctors who have been found to have committed these kinds of acts to continue to haveclose contact with patients in close and vulnerable settings? (

b) Does the conduct negatively reflect on the characteristics required to be a competent and ethical member of the profession? (

c) Can a competent and ethical member of the profession ignore the bodily autonomy, integrity and consent of others in hispersonal life but be trusted to protect them in his professional realm? (

d) Does the conduct harm the standing or reputation of the medical profession? and, the related question, would this conductimpair a patient’s trust in the profession? iv. Conclusion on nexus between professional and off-d

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