Administrative law – Decisions of administrative tribunals – College of Dental Surgeons – Dentists – Professional misconduct – Penalties and suspensions – Public interest – Judicial review – Natural justice – Bias – Procedural requirements and fairness – Standard of review – Correctness – Costs
Chuang v. Royal College of Dental Surgeons of Ontario),  O.J. No. 2300, Ontario Superior Court of Justice, June 9, 2006, Meehan, Macdonald and Cameron J.J.
The Discipline Committee of the Royal College of Dental Surgeons of Ontario (the “Discipline Committee” or “Committee”) found a dentist guilty of 15 out of 18 charges of professional misconduct in relation to dental treatment and subsequent conduct toward 4 female patients. The hearing lasted 31 days over 10 months and the dentist was self-represented throughout the hearing. He presented no evidence in his defence and was late or absent on numerous occasions. He did not attack the findings of fact on appeal. His licence to practice was revoked in the interests of public safety and was ordered the pay the College $250,000 in costs.
On appeal, the dentist raised issues about a reasonable apprehension of bias against 2 Discipline Committee members and an independent legal advisor to the Discipline Committee. He also argued there was a denial of natural justice as a result of the Committee’s refusal to grant adjournments to retain counsel, exclude the public, failure to ban publication and failure to grant an O’Connor application for the medical records of a witness. Finally, he argued the penalty and costs imposed were excessive. The Court dismissed all grounds of appeal apart from the Committee’s order as to costs.
The standard of review on issues of procedural fairness and natural justice is correctness. There was no reasonable apprehension of bias in the participation of the two members of the Committee under review. The Committee’s refusal to adjourn also did not result in a denial of natural justice and when the dentist’s lawyer resigned one month prior to hearing, the dentist was urged to retain new counsel. There was no evidence on record of what efforts he made to do so. The refusals to grant the other motions for a publication ban, excluding the public, and introducing medical evidence of a witness similarly did not result in a denial of natural justice.
A retired appellate judge was retained to provide legal advice to the Committee. The Law Society Rules of Professional Conduct provides that he could not “act as counsel or advocate…before any administrative board or tribunal without the express approval of Convocation” and it was conceded the judge did not obtain this approval. While his constant attendance and frequent participation gave the Court concern he may have crossed the line from independent legal advisor to something more in the nature of “a counsel or advocate”, his participation did not give rise to a denial of natural justice or result in an appealable error in the findings of the Committee following receipt of his legal advice.
Deference would be shown the Committee in the matter of penalty and the Court should not interfere except in a error of principle or clearly unfit penalty. In the Committee’s words, the dentist was “ungovernable” and his failure to abide by a previous mentorship order and attitude on hearing justified the Committee’s order to revoke his licence to practice.
Finally, the actual legal and investigative costs incurred by the Committee was over $400,0000. However, members should not be liable for the whole costs of defending themselves particularly when their right to practice is at stake. The fixing of costs is an inherently arbitrary process but they must be fair and reasonable. The costs of $250,000 were found to be unduly high and the Court fixed the costs at $200,000.
To stay current with the new case law and emerging legal issues in this area, subscribe here.