A decision made by a Panel of the College of Dental Surgeons of British Columbia was remitted back to the Panel for reconsideration and determination of the appropriate penalty after the Court held that it was inappropriate for the Panel to decide, in the face of submissions from both parties that the appropriate penalty was suspension and cancellation of the member’s registration as a dentist in British Columbia

Administrative law – Dentists – Disciplinary proceedings – Penalties – Decisions of administrative tribunals – College of Dental Surgeons – Judicial review – Natural justice – Procedural requirements and fairness

Gavrilko v. College of Dental Surgeons of British Columbia, [2004] B.C.J. No. 2437, British Columbia Supreme Court, November 24, 2004, Williamson J.

The Appellant dentist appealed the decision made by a Panel of the College of Dental Surgeons of British Columbia (“College”). The Appellant was the subject of a number of complaints and investigations by the College. A citation had been issued setting out thirteen allegations, of which the Appellant admitted twelve. The only issue at the hearing was penalty.

In the proceedings before the Panel, counsel for the College advocated a six to twelve-month suspension, to run from that date, while counsel for the Appellant submitted that a six-month suspension was appropriate, but that it should run from the date of an earlier suspension. Without informing counsel that it was of the view that a suspension was inappropriate, the Panel cancelled the Appellant’s registration and effectively terminated his career as a dentist.

On appeal, the Appellant argued that there was a denial of natural justice, on the principle audi alteram partem that is to impose a cancellation when neither the College nor the Appellant had submitted arguments with respect to that extreme penalty.

The Court held that on the core issue of cancellation versus suspension, there was a joint submission as between the College and the Appellant. While counsel for the College had referred in its submissions to the Panel’s ability to cancel the Appellant’s registration, the submission of the College was that a six to 12-month suspension was appropriate. In turn, counsel for the Appellant responded to the submission of the College, as opposed to a potential, theoretical penalty.

The Court concluded that when there is a joint submission on a critical point, while a Panel may reject such a submission, it is an error to fail to take the step of notifying counsel that the joint submission may not be accepted and giving them an opportunity to make submissions. The Court noted that there were good policy reasons, aside from the fairness issue, for this requirement. As counsel respond to one another’s submissions, it would not be appropriate if the law required all defence or respondent’s counsel to make submissions on any and every possible sentence when both sides have sought a lesser penalty from the Panel.

Where a Panel decides, in the face of submissions from both parties that suspension is appropriate, that they will cancel an Appellant’s registration and thereby deny him his professional livelihood, fairness dictates that they so inform counsel and give them the opportunity to be heard.

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