A dentist (“Dr. Hover”) was unsuccessful in his appeal from a decision of the Alberta Dental Association upholding a finding of professional misconduct, including a finding that he had failed to produce his records to them without justification

Administrative law – Dentists – Disciplinary proceedings – Hearings – Failure to produce records – Penalties and suspensions – Judicial review – Bias – Standard of review – Reasonableness simpliciter – Evidence –  Of administrative tribunals – Dental Association

Hover v. Alberta Dental Association, [2005] A.J. No. 1254, Alberta Court of Appeal, October 3, 2005, Conrad, Picard and O’Brien JJ.A.

The Alberta Dental Association received a complaint against Dr. Hover in May of 1999. Dr. Hover failed to provide his records and the hearing was adjourned several times. Charges of failing to produce the records were added to the initial complaint. A hearing was ultimately concluded in April of 2002 where Dr. Hover was found guilty of professional misconduct for failure to produce his records. Dr. Hover’s licence was suspended and his name was ordered published. In addition, the Discipline Committee imposed fines and costs.

Dr. Hover appealed to the Board of the Dental Association and the Board dismissed his appeal. Dr. Hover had not provided sufficient justification for his ongoing refusal to produce his records.

On the appeal to the Alberta Court of Appeal, Dr. Hover argued that the Board erred in relying on a memorandum from counsel for the Dental Association. The same lawyer continued to act for the Dental Association. Dr. Hover argued that the lawyer had made himself a witness in the proceedings and that therefore there was a reasonable apprehension of bias.

The Court applied the functional and pragmatic analysis from Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 to conclude that the standard of review should be reasonableness simpliciter.

The memorandum that Dr. Hover objected to was created by counsel for the Dental Association after a telephone discussion with Dr. Hover’s lawyer in a civil suit. Although Dr. Hover argued that the memo should not have been relied upon because counsel for the Dental Association did not refer to it during the hearing, and it consisted of hearsay as well as information that was provided in breach of solicitor-client privilege, the Court of Appeal held that the Discipline Committee and Board were entitled to consider all evidence on the record before them, and given that they were not bound by the Rules of Evidence, the fact that the memo contained hearsay was of no moment. The Court went on to say that the memo was not given an undue amount of weight as it was only one of several considerations by the Discipline Committee and the Board in support of the decision. With respect to the objection that the memo was privileged, the Court held that the introduction of the memo was not determinative of the issues before the Discipline Committee and the Board.

The Court of Appeal also held that it was reasonable for the Board to continue to permit counsel for the Dental Association to act. The Court noted that an apprehension of bias is generally raised against an adjudicator or decision maker, whereas Mr. Kozak was counsel. There was also no evidence to support the apprehension of bias argument. The Court stated that the civil action commenced by Dr. Hover against the Dental Association was a separate proceeding and that “while Mr. Kozak may become a witness in that civil action, no conflict exists because it is completely separate from the current matter”.

In addition, the Court of Appeal held that the Board’s conclusion that Dr. Hover was guilty of professional misconduct for failing to produce his records was a reasonable conclusion pursuant to the statutory authority held by the Board. The penalty taken against Dr. Hover was also held to be reasonable, as were the fines and payment of thrown-away costs.

The appeal was dismissed.

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