Silwin v College of Physicians and Surgeons, 2017 ONSC 1947, upholding a Discipline Committee's decision to reject a defence of officially induced error on the basis that the professional unreasonably misinterpreted the guidelines.
Dr. Silwin was a plastic surgeon who engaged in a sexual
relationship over a period of years with a woman, CH, who at times
was employed by Dr. Silwin's clinic and was a patient
undergoing a series of cosmetic procedures. Both the employment and
sexual relationship ended and CH commenced a civil suit against Dr.
Silwin. On advice of counsel, CH also filed a complaint with the
College. The College's Discipline Committee found Dr. Silwin
guilty of professional misconduct by engaging in sexual abuse with
CH, as defined in the Health Professions Procedural Code
(a schedule to the Ontario Regulated Health Professions
Act). This resulted in his license to practice being
revoked.
In its decision, the Discipline Committee considered Dr.
Silwin's defence of officially induced error. Dr. Silwin argued
that he had considered the College's policies and summaries of
discipline cases published the College's periodical and relied
on the advice therein. Ultimately, the Discipline Committee denied
the defence for three reasons:
- The advice did not come from an appropriate official;
- The reliance was unreasonable; and
- Dr. Silwin knew that this conduct was wrong.
Dr. Silwin appealed this decision to the Ontario Superior Court
of Justice.
The Court upheld the Discipline Committee's decision. Notably,
the Court determined that the College's guidelines and policies
constituted official advice. However, the Court accepted the
Discipline Committee's finding that Dr. Silwin's reliance
on the official advice was unreasonable as Dr. Silwin's
interpretation of them was not supported by their clear meaning.
Given the clear and unambiguous policies and guidelines, it was
reckless and unreasonable for Dr. Silwin not to seek confirmation
of his interpretation from an official of the College or from legal
counsel. Thus, the Discipline Committee was entitled to find that
Dr. Silwin's reliance on the official advice was unreasonable
and the defence could not be made out.
Comment: The Court's confirmation that
guidelines and policies are in the nature of official advice
highlights the importance of regulators ensuring that the
information provided to their membership is clear and unambiguous.
In this case, the clarity of the guidelines rendered Dr.
Silwin's misinterpretation and failure to seek confirmation of
his interpretation from the College or legal counsel unreasonable.
However, if a guideline is not clear and could reasonably lead a
professional to misinterpret it, the professional's reliance
may be reasonable and he/she could invoke the defence of officially
induced error. A successful defence of officially induced error
results in a stay of proceedings.
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