Administrative law – Dentists – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Decisions of administrative tribunals – College of Dental Surgeons – Judicial review – Witnesses – Bias – Evidence – Standard of review – Reasonableness simpliciter
Sigesmund v. Royal College of Dental Surgeons of Ontario,  O.J. No. 3267, Ontario Superior Court of Justice, August 3, 2005, P.T. Matlow, R.W.M. Pitt and D.R. Aston JJ.
Dr. Sigesmund had restricted his practice to the treatment of temporomandibular joint disorders (“TMD”). It was alleged that Dr. Sigesmund was in breach of his undertaking to abide by the College’s guidelines entitled “Respecting the Diagnoses and Management of Temporomandibular Disorders” (the “Guidelines”). Therefore, the main issue before the Discipline Committee was whether the diagnostic steps, methods, and course of treatment of particular patients identified in those allegations complied with the Guidelines. Dr. Sigesmund was also the subject of charges regarding record keeping and charging excessive fees.
The Discipline Committee panel found Dr. Sigesmund guilty of professional misconduct, reprimanded him, suspended him for four months, ordered him to pay costs of $411,000, and his Certificate of Registration was subject to certain conditions and limitations.
On review of the Discipline Committee decision, the Court held that the standard of review should be reasonableness simpliciter. The Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provided for a right of appeal to the Divisional Court on questions of law or fact or both but contained no privative clause to screen the Discipline Committee’s decision from court scrutiny. It was recognized that disciplinary bodies of self-governing professions should be given a large degree of autonomy.
Dr. Sigesmund argued that the participation of one Dr. Krueger on the Discipline Committee gave rise to a reasonable apprehension of bias. The Court articulated the test for a reasonable apprehension of bias as a consideration of whether a reasonable person, properly informed, would perceive that there was bias. The threshold for establishing a reasonable apprehension of bias was said to be high because of the strong presumption in favour of impartiality on the part of the tribunal. It was significant that Dr. Sigesmund did not take any objection to Dr. Krueger’s participation in the Discipline Committee hearing despite the fact that it went on for 66 days over the course of four years, until after the final decision was rendered. In addition, counsel for Dr. Sigesmund appeared to expressly waive any objection to the participation of Dr. Krueger on the Discipline Committee by saying to him, on the record:
You have indicated at the time you initially considered this matter that you consider your involvement in this Committee in whatever way would not affect your judgment or your fairness and we take your word without hesitation or reservation.
The basis for the allegation of a reasonable apprehension of bias on the part of Dr. Krueger was that he had been a member of the Quality Assurance Committee prior to the disciplinary hearing against Dr. Sigesmund. As a member of that Committee, he had had some involvement in receiving submissions on the Guidelines in considering their approval.
The Court held that if a member of a discipline committee panel has previously participated on an advisory committee, (here, the Quality Assurance Committee), with a witness who testifies in disciplinary proceedings, it may give rise to a conflict of interest or a reasonable apprehension of bias, but it does not always do so.
In this instance, there was evidence from Dr. Krueger that he did not have an independent recollection of the letters submitted to the Quality Assurance Committee by Dr. Sigesmund in respect of the Guidelines, and that his memory was only triggered when those letters were filed as evidence by counsel for Dr. Sigesmund. Dr. Sigesmund did not object to Dr. Krueger’s participation earlier, and there appeared to be an implicit waiver after counsel gave the clear, express and unequivocal waiver on the 26th day of hearing.
The Court concluded that Dr. Krueger’s participation on the panel of the Discipline Committee did not give rise to a reasonable apprehension of bias.
Dr. Sigesmund proceeded to argue that the conduct of the panel as a whole had given rise to a reasonable apprehension of bias. The Court rejected this submission.
Dr. Sigesmund’s final argument was that the Discipline Committee should have permitted one Dr. Mulrooney to testify on his behalf as an expert witness on the issue of whether Dr. Sigesmund had breached the Guidelines, and whether he had met the standard in treating TMD.
The Court held that Dr. Mulrooney’s proposed expert testimony satisfied the R. v. Mohan criteria of relevance, necessity in assisting the trier of fact, and absence of any exclusionary rule. However, the Discipline Committee found that he was not properly qualified as an expert and that his training and experience were insufficient to be of any material benefit to them in their deliberations. The Court considered Dr. Mulrooney’s qualifications, including his studies regarding TMD dating back to the 1960s and his position as a fellow of the International College of Cranio Mandibular Orthopaedics. Dr. Mulrooney had been treating TMD cases for more than 30 years. The Court concluded that Dr. Mulrooney could have given evidence of the standards of the profession, and not just on the issue of whether Dr. Sigesmund had breached an undertaking to follow the Guidelines.
The Court held that the Discipline Committee panel had erred in its refusal to allow Dr. Mulrooney to give relevant expert evidence. The conclusions of the Discipline Committee which depended on expert evidence were quashed. Certain other findings of misconduct were sustained, given that they did not depend on expert testimony. The penalty and cost dispositions, linked as they were to the allegations about the diagnosis and treatment of TMD, were quashed and the main issues were referred back to a newly constituted Discipline Committee panel for determination.
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