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Importance of Clear Guidelines and Policies
Perspectives for the Professions

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:

  1. The advice did not come from an appropriate official;
  2. The reliance was unreasonable; and
  3. 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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