This matter came before a panel of the Discipline Committee of the College of Optometrists of Ontario this 24th day of January 2014, in Toronto, Ontario, at 9:30 am at 222 Bay Street.

The purpose of the hearing was to consider allegations of professional misconduct against Dr. Andrew Mah. The five members of the Discipline Panel, referred to above were in attendance as well as the Counsel for the College of Optometrists of Ontario, Mr. Moher. The member was also present but not represented by counsel. Ms. Martin was also present to serve as independent counsel to the Discipline Panel.

The hearing was called to order at 10:30 am. The chair introduced the panel and the other people present in the room.

REASONS FOR DECISION

Preliminary Matter

Mr. Moher advised the panel that Dr. Mah had previously been represented by an agent, Don Brown, however, Mr. Brown was not present at the hearing. Mr. Moher then filed Exhibit 1 a which was a handwritten signed note from Dr. Mah stating that he was aware that he had a right to be represented by legal counsel. Dr. Mah further stated in Exhibit 1 a that he wanted to proceed with the hearing and that he had had the benefit of advice from his agent who had participated in reaching a resolution of this matter.

The Chair then confirmed with Dr. Mah that the information in Exhibit 1 a was correct and that he wished to proceed with the hearing and represent himself.

Allegations and Evidence

It was alleged in the Notice of Hearing, which was made Exhibit 2, that Dr. Mah committed acts of professional misconduct as follows:

a) He recommended or provided unnecessary diagnostic or treatment services contrary to paragraph 1(1) 16 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35;

b) He failed to maintain the standard of practice of the profession contrary to paragraph 1(1)17 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35 ;

c) He charged fees that are excessive or unreasonable in relation to the services performed contrary to paragraph 1(1)33 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35 ;

d) He charged or received more than the amount payable to an insured person under the Ontario Health Insurance Plan for the insured service, contrary to paragraph 1(1)38 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35

e) He engaged in conduct or performed an act that, having regard to all the circumstances , would reasonably be regarded by members as disgraceful, dishonourable, unprofessional or unethical, contrary to paragraph 1(1)53 of Ontario Regulation 859/93 made under the Optometry Act, 1991, S.O. 1991, c. 35.

Mr. Moher filed an Agreed Statement of Facts as Exhibit 3 which contained, the Agreed Statement of Facts itself the Notice of Hearing at Schedule “A”, a list of patients and amounts at Schedule “B” and an Undertaking at Schedule “C”.

In response to a question from the Chair Dr. Mah confirmed that he accepted the filing of the Agreed Statement of Facts. The Chair then asked Dr. Mah if he was pleading guilty to the allegations against him as set out in the Agreed Statement of Facts and he stated that he was.

The main facts from the Agreed Statement of Facts are that between January 1 and July 22, 2011 Dr. Mah did the following for patients listed at Schedule “B” to the Agreed Statement of Facts:

1. Used Visual Field Examinations for a number of patients that were not clinically indicated and were unnecessary and for some of the Visual Field Examinations he charged both OHIP and the patients;

2. Used Pachymetry testing for a number of patients when it was not clinically indicated and was unnecessary and charged some of the patients for this test;

3. Used Anterior Ocular Imaging and Digital Retinal Imaging for a number of patients when it was not clinically indicated and was unnecessary and charged some of the patients for this test;

4. Used the Heidelberg Retinal Tomography test for a number of patients when it was not clinically indicated and unnecessary and charged some of the patients for this test;

5. Used the OHIP diagnostic code for Glaucoma unnecessarily and in support of the misconduct above; and

6. Engaged in inadequate record keeping.

Other relevant facts from the Agreed Statement of Facts are as follows:

1. Throughout the investigation of this matter Dr. Mah fully cooperated with the College; and

2. Dr. Mah executed an Undertaking which was made Exhibit 4, the details of which are set out below.

Decision Regarding Allegations

The panel retired to review the allegations and facts. The panel found that the facts supported the guilty plea with respect to all of the allegations in the Notice of Hearing except allegation 1(b) which was that Dr. Mah failed to maintain the standards of practice of the profession contrary to paragraph 1(1)17 of Ontario Regulation 859/93. The reason for this was that the panel did not feel that administering too many tests could be seen as a failure to maintain the standards of practice but rather felt that he was exceeding the testing required for his patients.

Submissions on Penalty

Mr. Moher filed a Joint Penalty Submission as Exhibit 5. The Chair asked Dr. Mah if he agreed with it being made and exhibit and he responded that he did. The College and Dr. Mah submitted together that the appropriate penalty in this case was as follows:

1. That Dr. Mah be reprimanded;

2. That his certificate of registration be suspended for a period of three months and that this suspension be suspended provided that Dr. Mah make full restitution to the patients identified in Dr. Mah’s Undertaking to the College within six months of the date of the Order of the Committee, failing which the member’s certificate of registration shall be suspended immediately;

3. That Dr. Mah pay the legal and investigatory costs of the College in the amount of $11,000 payable to the College of Optometrists of Ontario within six months of the date of the Order of this Committee; and

4. That the terms of the above penalty shall be included in the Register of the College and shall be fully accessible to the public.
Mr. Moher stated that the primary purpose of penalty was the protection of the public and that it was the role of the Discipline Committee to ensure that this occurs.

In addition he submitted as follows:

1. That ensuring that the patients were reimbursed was the most significant way in which patients could be protected;

2. That the suspension of the 3 month suspension was predicated on the repayment of patients who were financially hurt by his actions;

3. That with respect to general deterrence this penalty would send a message to the profession that individuals have to work for the right to practise as optometrists and to do so with honesty and integrity;

4. That an additional factor with respect to general deterrence is the costs of award of $11,000 which is significant when compared to other cases;

5. That the same points applicable to general deterrence apply to specific deterrence;

6. That Dr. Mah will also be deterred as a result of the practice assessment and practice reinspection;

7. That Dr. Mah will be deterred by the potential referral to OHIP by the Registrar which Mr. Moher referred to as frightening.

Mr. Moher submitted that the joint penalty submission would best meet all of these objectives.

Dr. Mah apologized for his behaviour, he said that he had not upheld the standards of the profession, he referenced the fact that this affected the public’s trust and he said that he was committed to this conduct not happening again.

Decision on Penalty

The purpose of the penalty is as follows:

1. The protection of the public which includes ensuring that the public can trust members;

2. Ensuring that this conduct does not recur;

3. The specific deterrence of the member from this type of conduct;

4. The general deterrence to ensure that other members of the professional will not engage in conduct of this nature.

The Panel considers Dr. Mah’s actions to be of a serious nature. Optometrists have a duty to their patients to provide appropriate services and honest billing. When an optometrist fails to respect this duty his or her actions affect the public’s perception of this profession.

Notwithstanding the gravity of the misconduct, the Panel found that there were mitigating factors in this case:

1. Dr. Mah admitted his wrongdoing and pleaded guilty to the allegations;

2. He offered restitution for his improper billing;

3. Dr. Mah was proactive in taking responsibility for his wrongdoing and expressed remorse;

4. Dr. Mah cooperated with the investigation and prosecution;

5. Dr. Mah provided an Undertaking, which was made Exhibit 4, the main provisions of which are as follows:

a. That Dr. Mah shall undergo a practice assessment and re-inspection with respect to both his clinical judgment and records, and his billing practices that will conform with the following conditions:

i. The practice assessment and practice re-inspection will be random, occurring once at some point in time within 12 and 24 months of the Order of this Committee;

ii. The practice assessment and practice re-inspection will involve the review of 25 patient charts; and

iii. The practice assessment and re-inspection will be at Dr. Mah’s cost as well as any remediation required as identified by these two processes.

b. That he shall provide restitution to the patients who were improperly charged as set out at Appendix “A” to the Undertaking within six months of the Order of the Committee;

c. That he shall provide the restitution referred to above in a manner acceptable to the College and provide proof of the restitution in a manner acceptable to the College within six months of the Order of this Committee;

d. Acknowledging that the College may in its absolute discretion make a referral of the matter to the General Manager of OHIP with respect to Dr. Mah’s billing practices;

e. Acknowledging that a breach of any term of the Undertaking may constitute an act of professional misconduct and that a failure to meet the terms of the Undertaking regarding restitution will result in the suspension of his certificate of registration effective six months from the date of the Order of this Committee.

The Panel unanimously accepted the Joint Submission on Penalty which was Exhibit 5 to the Hearing with one minor change to paragraph 2 and therefore orders as follows:

1. That the member should be required to appear before the Discipline Committee and be reprimanded;

2. That Dr. Mah’s certificate of registration be suspended for a period of three months and that this suspension be suspended provided that:

i. Dr. Mah make full restitution to the patients identified in Dr. Mah’s Undertaking to the College within six months of the date of the Order of the Committee; and

ii. If at the conclusion of six months three are unallocated funds from the amount referred to in clause i. above, Dr. Mah shall make a donation of this amount to the Vision Institute of Canada and provide proof of same to the Registrar.

Failing which Dr. Mah’s certificate of Registration shall be suspended immediately.

3. That Dr. Mah shall pay the legal and investigatory costs of the College in the amount of $11,000 payable to the College of Optometrists of Ontario within six months of the date of the Order of this Committee; and

4. That the terms of the above penalty shall be included in the Register of the College and shall be fully accessible to the public.

The Panel believes that this is a unique case and that public protection dictates that he be able to provide optometric care to his existing patients and to be able to reimburse his patients whom he hurt through his actions. If the Panel did not suspend his suspension he would not have been able to reimburse the patients and his existing patients would not receive care.

The Panel concluded that the combination of the mitigating factors and the public protection aspect referred to above made the joint penalty submission the most appropriate disposition in this case. In the absence of these mitigating factors and the need for patients to be reimbursed and Dr. Mah’s current patients cared for the suspension would not have been suspended given the nature of the misconduct.

The Panel finds that in the circumstances of this case the Joint Penalty Submission satisfies the principles of penalty:

1. The public will be protected because there is very little chance of Dr. Mah repeating this behaviour in the future and his patients will be reimbursed for the monies he improperly billed them;

2. Dr. Mah will be deterred from committing this type of conduct again because this process was both financially and emotionally onerous for him. He will pay $4,706 back to his patients, $11,000 in costs to the College as well as the cost of the practice assessment and re-inspection. His optometric practice will also be scrutinized during the two year period of the assessment and re-inspection.

3. The profession will be deterred from committing similar conduct because of the significant cost award made against Dr. Mah, and the potential lengthy suspension for failing to comply with the Undertaking. In addition the profession will be deterred by the public reprimand and the public recording of the penalty in the Register of the College which reinforce the severity and consequences of this conduct.

At the conclusion of the hearing, Dr. Mah waived his right of appeal and proceeded to receive the reprimand from the Discipline Panel.

Dated this 24th day of January 2014 at Toronto, Ontario.

This matter was heard by a panel of the Discipline Committee of the College of Optometrists of Ontario on February 27, 2013.

Allegations and Evidence

The allegations in respect of the Member’s conduct were as follows:

1. Dr. Klundert made a misrepresentation with respect to treatments or devices provided to patients contrary to paragraph 11 of s.1(1) of Ontario Regulation 859/93;

2. Dr. Klundert recommended or provided unnecessary diagnostic or treatment services to patients contrary to paragraph 16 of s. 1(1) o f Ontario Regulation 859/93;

3. Dr. Klundert caused or permitted, directly or indirectly, a publication that has a relation to or a bearing on his practice that is false or deceptive by reason of inclusion or omission of information contrary to clause ii of paragraph 25 of s. 1(1) of Ontario Regulation 859/93;

4. Dr. Klundert caused or permitted, directly or indirectly, a publication that has a relation to or a bearing on his practice that could be regarded by the profession as demeaning the integrity or dignity of the profession or being likely to bring the profession into disrepute contrary to clause x of paragraph 25 of s. 1(1) of Ontario Regulation 859/93;

5. Dr. Klundert failed to make and maintain records as required by the regulations with respect to patients contrary to paragraph 27 of s. 1(1) of Ontario Regulation 859/93;

6. Dr. Klundert signed or issued, in his professional capacity, a certificate, report or similar document that contains a statement he knew or should have known was false, misleading or otherwise improper, or withheld statements or information that he knew or ought to have known should have been disclosed with respect to patients contrary to paragraph 29; of s. 1(1) Ontario Regulation 859/93;

7. Dr. Klundert submitted accounts for services rendered to patients that he knew or should have known were false or misleading contrary to paragraph 32 of s. 1(1) of Ontario Regulation 859/93;

8. Dr. Klundert failed to issue a statement or receipt to a patient or to a third party responsible for the payment of the account of patients contrary to paragraph 35 of s. 1(1) of Ontario Regulation 859/93;

9. Dr. Klundert issued a statement or receipt which did not itemize the services provided and the fees charged, describe the ophthalmic appliances utilized in the performance of the services, or set out the commercial laboratory cost incurred by him in the provision of the services to patients contrary to paragraph 36 of s. 1(1) of Ontario Regulation 859/93;

10. Dr. Klundert charged or received payment for contact lenses or eyeglasses in excess of the commercial laboratory cost incurred by him in the provision of the service to patients contrary to paragraph 37 of s. 1(1) of Ontario Regulation 859/93;

11. Dr. Klundert charged or received more than the amount payable to an insured person under the Ontario Health Insurance Plan for the insured service with respect to patients contrary to paragraph 38 of s. 1(1) of Ontario Regulation 859/93; and

12. Dr. Klundert engaged in conduct or performed an act that, having regard to all the circumstances, would reasonable be regarded by members as disgraceful, dishonourable, unprofessional or unethical contrary to paragraph 53 of s.1(1) of Ontario Regulation 859/93.

Dr. Klundert admitted to the allegation set out in paragraph 3 of the Amended Notice of Hearing. It was further advised that the College was withdrawing the allegations set out in paragraphs 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, and 12.

Dr. Klundert pled guilty to the allegation set out in paragraph 3 of the Amended Notice of Hearing.

It was alleged in paragraph 3 that Dr. Klundert committed an act of professional misconduct in that he breached paragraph 1(1)25 of Ontario Regulation 859/93, as amended, made under the Optometry Act, 1991, S.O. 1991, c. 35, in that he caused or permitted, directly or indirectly, a publication that has a relation or bearing on his practice that is false or deceptive by reason of inclusion or omission of information.

The salient facts from the Agreed Statement of Facts and the three Schedules attached to the Agreed Statement of Facts are as follows:

1. Dr. Klundert practises in Windsor from his optometric practice at 2849 Howard Avenue. Adjacent to his practice, at 2851 Howard Avenue, is Ambassador Eyewear.

2. The College received a complaint in May 2009 from Green Shield Canada that Dr. Klundert had placed a sign in front of his practice indicating “Free Eye Exam with Glasses”.

3. Dr. Klundert acknowledged that he ran the advertisement on a number of occasions between 2005 and 2009; however, as soon as he was alerted to the complaint by Green Shield Canada, the advertisement was removed.

4. During the time in and around May 2009 that Dr. Klundert was displaying the advertisement, he performed 25 eye examinations on the patients listed at Appendix “E” to the Amended Notice of Hearing and submitted accounts for each of those 25 patients to Green Shield Canada.

5. Dr. Klundert did not intend to provide free eye examinations to those patients who had insurance coverage; however, he admitted that the eye examinations for the 25 patients in question were billed to Green Shield Canada.

After reviewing the Agreed Statement of Facts and the Schedules to the Agreed Statement of Facts with the Panel, the Panel found Dr. Klundert guilty of professional misconduct as set out at paragraph 1(1)25 of Ontario Regulation 859/93.

Finding

The Panel unanimously found that the facts set out in the Agreed Statement of Facts proved that Dr. Klundert was guilty of professional misconduct as set out in paragraph 3 of the Amended Notice of Hearing.

Although Dr. Klundert intended to charge for eye exams for patients who have insurance coverage for eye exams, the sign omitted this information. Members of the public would have been deceived by this sign because it appeared as though all eye exams would be free with glasses. Accordingly, the sign that Dr. Klundert used for his practice was false and deceptive contrary to paragraph 1(1)25 of Ontario Regulation 859/93.

Finding on Penalty

The Panel unanimously accepted the Joint Penalty Submission and ordered as follows:

1. That Dr. Klundert be reprimanded; and

2. That Dr. Klundert pays the College’s costs of $25,000.

At the conclusion of the hearing, Dr. Klundert waived his right of appeal and received the reprimand from the Discipline Panel. The reprimand was done in public but it was not recorded.

This matter was heard by a panel of the Discipline Committee of the College of Optometrists of Ontario on February 21, 2013.

Summary: A Panel of the Inquiries, Complaints and Reports Committee (ICRC) referred specified allegations of professional misconduct to the Discipline Committee. Two of the allegations of professional misconduct were the result of a Registrar’s report and two of the allegations of professional misconduct were the result of a complaint received by the College. Both referrals were considered at the hearing.

Registrar’s Report:. Based on information Dr. Charron provided in his 2010 Annual Report, the College sought clarification regarding Dr. Charron’s home address. When the College attempted to contact Dr. Charron to seek clarification, there began a series of voice mail messages and exchanges of correspondence lasting nearly two years. Over the first two months, the College called Dr. Charron and left seven messages. Dr. Charron did not respond to those messages until mid-February. By Spring 2012, the College had asked for Dr. Charron’s home address and phone number approximately 14 times. In light of Dr. Charron’s initial unresponsiveness and, later, his comments and queries regarding the College’s authority to collect personal information, the College reasonably (but incorrectly) believed that Dr. Charron was refusing to provide the College with information. Shortly before Dr. Charron’s disciplinary hearing (after the College had already begun preparing for it), Dr. Charron advised the College of the error. By that time, the College’s costs were approximately $30,000.

Complaint: In the Spring of 2012, for approximately four or five days, Dr. Charron posted a sign, “Refugees stay for free. You & me pay the fee” under the banner “Optometrists, Dr. R.J. Charron & Associates” in front of his practice. On the other side of the sign, the word, Canada, was posted upside-down. Although Dr. Charron asserted that he did not intend the sign to be discriminatory, the College believed that the sign was distasteful; and believed that it could dissuade persons from seeking optometric care because they might feel uncomfortable or discriminated against.

Guilty Plea: Dr. Charron pled guilty to two allegations of professional misconduct, namely:

(1) that he engaged in conduct or performed an act that, having regard to all circumstances, would reasonable be regarded by members as disgraceful, dishonourable, unprofessional or unethical; and

(2) that he caused or permitted, directly or indirectly, a publication through any medium of communications that has a relation to or a bearing on a member’s practice that, could be regarded by the profession as demeaning the integrity or dignity of the profession or being likely to bring the profession into disrepute.

The College withdrew the remaining two allegations of professional misconduct, namely:

(1) that he signed or issued, in his professional capacity, a certificate, report or similar document that contained a statement that the Member knew or should have known was false, misleading or otherwise improper; or that withheld statements or information that the Member knew or ought to have known should have been disclosed; and

(2) that he engaged in conduct or performed an act that, having regard to all circumstances, would reasonable be regarded by members as disgraceful, dishonourable, unprofessional or unethical.

The Panel’s Reasons: The panel accepted Dr. Charron’s guilty plea. On the matter related to Dr. Charron’s Annual Report, the Panel considered that, as regulated professionals, optometrists have an obligation to respond to requests from their College and that failing to do so is unprofessional. With respect to the allegation regarding the sign in front of Dr. Charron’s practice, the Panel found that that the sign was offensive and did not reflect the dignity of the profession.

Penalty: The Panel accepted a joint submission on penalty. It ordered Dr. Charron to appear before the Discipline Panel and be reprimanded. It also ordered Dr. Charron to, at his own expense, successfully complete a professional problem based ethics course within six months; and to contribute towards the College’s costs in the amount of $15,000.

This matter was heard by a panel of the Discipline Committee of the College of Optometrists of Ontario on August 8, 2012.

The Allegations

The allegations in respect of the Member’s conduct were as follows:

1. Dr. Ng recommended or provided unnecessary treatment services to patients contrary to paragraph 16 of O. Reg. 859/93 1. (1);

2. Dr. Ng failed to maintain the standards of practice for patients when he provided vision therapy for patients with no clinical support for such therapy and when he failed to notify patients as required by the Personal Health Information Protection Act, when he lost their clinical records contrary to paragraph 17 of O. Reg. 859/93 1. (1);

3. Dr. Ng failed to make and maintain records for patients as required by the Regulations when he lost all of the records of the patients whose treatment for vision therapy was billed to Great West Life, failed to maintain records for those patients for whom he provided treatment on a “pro bono” basis and failed to maintain an appointment book contrary to paragraph 27 of O. Reg. 859/93 1. (1) and contrary to O. Reg. 119/94 Part IV Records, Paragraph 8;

4. Dr. Ng signed or issued, in his professional capacity, a certificate, Report or similar document that contains a statement he knew or should have known was false, misleading or otherwise improper contrary to paragraph 29 of O. Reg. 859/93 1. (1);

5. Dr. Ng submitted an account for services rendered that he knew or should have known was false or misleading contrary to paragraph 32 of O. Reg. 859/93 1. (1);

6. Dr. Ng charged fees that were excessive or unreasonable in relation to services performed to the patients contrary to paragraph 33 of O. Reg. 859/93 1. (1);

7. Dr. Ng charged a fee for a service that exceeds the fee set out in the schedule of fees published by the Ontario Association of Optometrists at the time the service was rendered without informing the patient, before the service was performed, of that excess amount contrary to paragraph 34 of O. Reg. 859/93 1. (1);

8. Dr. Ng engaged in conduct or performed an act that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable, unprofessional or unethical contrary to paragraph 53 of O. Reg. 859/93 1. (1).

The Agreed Statement of Facts stated that Dr. Ng was pleading guilty to the allegations contained in paragraphs 1, 2, 3, 6, 7, and 8. The allegations contained in paragraphs 4 and 5 were withdrawn.

Plea

The Panel accepted Dr. Ng’s guilty plea and the facts set out in the Agreed Statement of Facts. Page 2 of 2

Decision Regarding Penalty

The Panel unanimously accepted the Joint Submission on Penalty and therefore orders as follows:

1. The Registrar shall be directed to suspend the Member’s certificate of registration for 3 months.

2. The Member shall be required to appear before the Panel to be reprimanded.

3. The Registrar shall be directed to impose the following specified terms, conditions and limitations on the Member’s certificate of registration: a. The Member shall take the first available Professional Problem Based Ethics Course offered by the Federation of Regulatory Health Colleges

b. The Member shall undergo a full practice re-inspection 6 months after completing the Ethics Course.

c. Items a and b immediately above shall be conducted at the Member’s expense.

4. The Member shall pay the College’s legal costs and expenses in the amount of $15000, payable in 5 equal monthly instalments beginning the first day of the first month following the Decision of the Discipline Committee in this matter.

This matter was heard by a panel of the Discipline Committee of the College of Optometrists of Ontario on April 24, 2012.

Allegations and Evidence

It was alleged that Dr. Stepec committed an act of professional misconduct in that he breached paragraph 1(1)49 of Ontario Regulation 859/93, as amended, made under the Optometry Act, 1991, S.O. 1991, c. 35, in that, on or about September 29, 2010, he was convicted of an offence that affects his fitness to practise optometry.

It was further alleged that that Dr. Stepec committed an act of professional misconduct in that he breached paragraph 1(1)53 of Ontario Regulation 859/93, as amended, made under the Optometry Act, 1991, S.O. 1991, c. 35, in that, he engaged in conduct or performed an act that having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, unprofessional or unethical.

The Agreed Statement of Facts stated that Dr. Stepec was pleading guilty to the first allegation and that the second allegation was being withdrawn by the College.

Other relevant facts from the Agreed Statement of Facts are as follows:

1. Evidence of personal circumstances which affected the member’s judgement at the time of the misconduct was presented;

2. In or around January 2007 to November 2009 Dr. Stepec engaged in improper billings to the Ontario Health Insurance Plan (“OHIP”). As a result of this fraudulent billing, in September 2010, Dr. Stepec was convicted of two counts of fraud not exceeding $5000;

3. In December 2009, almost four months prior to his arrest in March 2010, and prior to being contacted by the Ontario Provincial Police, Dr. Stepec retained legal counsel, for the purposes of making full restitution to OHIP;

4. Dr. Stepec was given a conditional sentence of 90 days house arrest and ordered to make restitution to OHIP in the amount of $30,000 which was an approximation made by Dr. Stepec of the amount of his improper billings; and

5. Dr. Stepec has executed a monitoring Undertaking with the College.

Plea

The Panel accepted Dr. Stepec’s guilty plea and the facts as set out in the Agreed Statement of Facts.

Decision regarding Penalty

The Panel unanimously accepted the Joint Submission on Penalty and therefore orders as follows:

1. That the member should be required to appear before the Discipline Committee and be reprimanded;

2. That the member’s Certificate of Registration be suspended for a total period of two months commencing at a time or times to be approved by the Registrar of the College;

3. That the member shall pay the legal and investigatory costs of the College in the amount of $7500 payable to the College of Optometrists of Ontario with such costs to be payable within 90 days of the date the Discipline Committee renders its decision; and 4. That the terms of the above penalty shall be included on the Register of the College and be fully accessible to the public.

Decision and Reasons for Decision:

A hearing before a panel of the Discipline Committee was held on September 24, 2009 at the College of Optometrists of Ontario council chambers to hear allegations of professional misconduct against Dr. Kenneth Cresswell. The hearing commenced at 10:00 a.m. after waiting for 30 minutes for Dr. Cresswell or his representative to make an appearance either in person or via teleconference. It was explained to the panel by counsel for the College that this was appropriate and within the Rules of Procedure. Independent Legal Counsel (ILC) for the panel concurred. It was explained that Sections 6 and 7 of the Statutory Powers Procedure Act allow the panel to proceed in Dr. Cresswell’s absence. It was also noted that the Notice of Hearing indicated “And further take notice that if you do not attend at the Hearing at the above date, or on any subsequent date fixed by the Discipline Committee, the panel of the Discipline Committee may proceed in your absence and you will not be entitled to any further notice.” The panel noted that Dr. Cresswell had not attended the pre-hearing conference and was convinced that Dr. Cresswell was given adequate notice of hearing. The panel decided that it was appropriate to proceed in Dr. Cresswell’s absence.

Motion to Ban Publication:

A motion was put forward by College prosecution to have a publication ban made on the proceedings. It was explained that much of the material to be presented to the panel was of a sensitive nature as it involved the identity of minors that were involved in alleged sexual impropriety by Dr. Cresswell. ILC advised the panel that this was appropriate and supported in law. The panel therefore made an order to ban publication of the names of the victims under section 45(3) of the Health Professions Procedural Code.

College’s Case:

Prosecution filed with the panel the Document Book as exhibit #1 which consisted of:

1. The Notice of Hearing dated March 26, 2009
2. Certified copy of Reasons for Judgment of Mr. Justice R. MacKinnon dated December 14, 2006
3. Certified copy of the Decision of the Ontario Court of Appeal dated January 30, 2009

Mr. Stephenson indicated that there were 5 allegations in the Notice of Hearing and that the College was only proceeding on allegations 1 and 2 as follows:

1. You committed an act of professional misconduct as provided by s. 51(1)(a) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 in that on or about December 14, 2006 you were found guilty of an offence that is relevant to your suitability to practise optometry.
2. You committed an act of professional misconduct as provided by s. 51(1)(c) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18, and as set out by s. 1(1), paragraph 49 of O. Reg. 859/93 of the Optometry Act 1991, S.O. 1991, c. 35, in that on or about December 14, 2006 you were convicted of an offence that affects your fitness to practise optometry.

The chair indicated that the panel would be proceeding as if Dr. Cresswell was pleading not guilty to the allegations.

To support the two allegations that the College was prosecuting, College prosecution referred to the Reasons for Judgment made by Mr. Justice MacKinnon of the Superior Court of Justice dated December 14, 2006 in Barrie, Ontario. The charges involved 5 counts of indecent assault and 1 count of sexual intercourse under 14. These included unwanted male homosexual genital fondling and masturbation by the accused together with his unwanted acts of fellatio and anal penetration on the then young boys whom were as young as 11 to when one was 21. These acts were unwanted and nonconsensual and occurred repeatedly over an extended period of time, as described in the Reasons for Judgment made by Mr. Justice MacKinnon. The accused was at all times about 20 years or more older than the boys. Dr. Cresswell was in a position of trust with the boys. Mr. Justice MacKinnon found Dr. Cresswell guilty on all 6 counts and entered convictions against Dr. Cresswell on all 6 counts.

As further support to the allegations, College prosecution also referred to the Court of Appeal Decision dated January 30, 2009. This document sets out the grounds for appeal and the reasons the Court dismissed the appeal. Dr. Cresswell at that point began his 9.5-year prison term.

The panel recessed after receiving legal advice from ILC.

Decision:

The panel was charged with deciding whether to make a finding of professional misconduct based solely on the evidence placed before it. The onus is on the College to prove its case. The evidence must be clear, convincing and cogent and the standard of proof is on the balance of probabilities (more likely than not that the event occurred).

As regards to allegation 1, the panel had to decide if the offences Dr. Cresswell was found guilty of were relevant to his suitability to practise optometry. We decided that the offences, especially in regards to minors, constituted dishonest and abusive behaviour, relevant to Dr. Cresswell’s suitability to practise. We therefore found Dr. Cresswell had committed professional misconduct on allegation 1.

As regards to allegation 2, the panel had to decide if the offences Dr. Cresswell was convicted of affected his fitness to practise optometry. The panel decided that Dr. Cresswell’s lack of judgment in issues of propriety affected his fitness to practise optometry. The public must be assured that their health professionals have an acceptable level of judgment and self control andthe actions of Dr. Cresswell clearly show he lacks these qualities. We therefore found that Dr. Cresswell had committed professional misconduct on allegation 2.

The panel dismissed allegations 3, 4, and 5 as listed in the Notice of Hearing as there was no evidence produced to support these allegations.

The hearing was reconvened and these decisions were announced.

College Submission on Penalty:

College prosecution proceeded with their submission on penalty. It was explained that the penalty should have both elements of specific deterrence and general deterrence. That is to say that the penalty should deter Dr. Cresswell from committing further acts of professional misconduct (specific deterrent) and the penalty should send a message to the profession that this type of behavior will not be tolerated (general deterrent). The College suggested a penalty which consisted of a 6 month suspension of his certificate of registration, a condition being placed on his certificate of registration that he must not provide services to patients under the age of 18, and a cost award to the College in the amount of $2500.00. The College believed that these various penalty elements provided adequate specific and general deterrence. The panel retired to consider its options after receiving legal advice from ILC.

Decision on Penalty:

The panel decided that the College had not suggested a strong enough penalty given the severity of the misconduct Dr. Cresswell had committed and in keeping with the wording of the applicable misconduct allegations. The wording stated that he was found guilty of an offence that is “relevant to your suitability to practise optometry” and was convicted of an offence that “affects your fitness to practise optometry”.

The panel had a number of penalty options open to it as provided for by legislation. These include a fine of up to $35,000.00; a reprimand; imposing terms, conditions, and limitations on the certificate of registration; a suspension of the certificate of registration; or a revocation of the certificate of registration.

The Panel Decided to:

1. Direct the Registrar to revoke Dr. Cresswell’s certificate of registration.

2. Order a cost amount of $5000.00 to the College.

Reasons for Penalty Decision:

The panel decided that due to the nature of Dr. Cresswell’s actions, he was neither suitable nor fit to practise optometry. This reflects back on the panel’s reasons for determining that professional misconduct did in fact occur. If he is neither suitable nor fit to practise optometry, then it flows to the conclusion that Dr. Cresswell should not have a certificate of registration.

This does not mean that he cannot apply to have his certificate of registration re-instated at some point in time after the mandatory one year revocation. He must apply to have his certificate of registration re-instated through another hearing where he would be assessed to ensure he is suitable and fit to practise again.

Dr. Cresswell was found guilty and convicted by Mr. Justice MacKinnon of five counts of indecent assault and one count of sexual assault. This was upheld in the Court of Appeal. These crimes were a series of sexual crimes against adolescents, committed by a health professional to the detriment of the health and welfare of children. It was proven in court that Dr. Cresswell had engaged in these criminal activities over a 10 year period with no gap against 5 different minor individuals. According to the submitted court documents, Dr. Cresswell offended and reoffended over a long period of time with 5 boys (starting at age 11-14) and these offences included forced anal intercourse, masturbation and fellatio and were regular and persistent in relation to 2 of the boys.

It was emphasized in court that Dr. Cresswell was in a position to have gained the trust of his victims and their parents (in some cases as a “Big Brother”) and had betrayed that trust by deliberately grooming and creating surprise sexual opportunities to molest them. Dr. Cresswell deliberately planned and executed these crimes and abused his position of influence and trust. One of his victims was in fact in an employee/contractor relationship (painting the office).

The panel determined that the College’s submission on an age restricted condition on his certificate of registration did not protect the general public enough from a person with such lack of judgment, abuse of influence, and deceit. It was also noted that one of the victims was abused until he was 21.

Dr. Cresswell’s lack of suitability to practise optometry relates to the public trust and confidence in the profession and its members. It was determined by the panel that it is neither in the public’s nor the profession’s interest to accommodate individuals with such lack of judgment, abuse of influence, and with this type of criminal activity. Dr. Cresswell’s consistent assertions that the various sexual encounters were fabrications even though there was clear evidence to the contrary reveal a lack of judgment and level of deceit which also affects his suitability and fitness to practise. This also reveals a lack of remorse. The Courts determined that the offences were serious enough to incarcerate Dr. Cresswell for 9.5 years. The seriousness of the crimes warranted a relatively serious penalty from a professional standpoint as well.

The panel also decided that the higher amount ordered for costs was more in keeping with the actual costs of running this discipline hearing.