The Appellant dentist appealed a decision made by the Discipline Committee of the College finding him guilty of professional misconduct and imposing a three-month suspension, terms and conditions related to the practice of orthodontics and costs of $10,000. The Court upheld the College’s decision and dismissed the Appellant’s arguments including reasonable apprehension of bias, issue estoppel/res judicata, inappropriate expert or opinion evidence, and insufficient disclosure by the College.

26. December 2006 0

Administrative law – Decisions of administrative tribunals – College of Dental Surgeons – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Investigations – Penalties and suspensions – Hearings – Evidence – Statutory provisions – Judicial review – Natural justice – Reasonable apprehension of bias – test – Procedural requirements and fairness – Estoppel and res judicata

Bygrave v. Royal College of Dental Surgeons of Ontario, [2006] O.J. No. 4299, Ontario Superior Court of Justice, October 16, 2006, M. Métivier, R.T.P. Gravely and G.J. Epstein JJ.

The Appellant was a general dentist who also provided orthodontic treatment to some of his patients, including a 26-year-old female patient who consulted the Appellant in 1995 requesting corrections to the protrusive appearance of her teeth. Following four years of ineffective treatment, and ultimately consulting a licensed orthodontist, the patient filed a complaint with the College.

The College had earlier received a complaint regarding the Appellant from another patient, which triggered an investigation under section 75(c) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, which focused on the Appellant’s record-keeping skills. The Appellant ultimately entered into a voluntary undertaking, by which he was to take various courses and have his practice monitored for 12 months by another dentist. By June 2001, the Appellant had completed the courses and the monitoring arising from the complaint was terminated. The complaint which was the subject of this appeal was filed in 1999, while the monitoring of the Appellant’s practice was still ongoing.

Subsequently, the College initiated an investigation into the Appellant’s orthodontic practice, this time pursuant to section 75(a). Unlike subsection (c), subsection (a) speaks to an investigation where there are “reasonable and probable grounds” as to “professional misconduct and incompetence”. It does not relate to a complaint from a patient as in subsection (c).

The College held a joint hearing into the matters of the patient’s specific complaint, as well as the College’s more general investigation pursuant to section 75(a). The Panel concluded that all of the allegations against the Appellant had been substantiated on the evidence. With respect to the complaint by his patient, the Panel found that the Appellant had failed to maintain the standard of practice, provided treatment beyond his expertise, failed to obtain informed consent, maintained substandard record-keeping, and conducted himself unprofessionally. With respect to the more general investigation into the Appellant’s competence, the Hearing Panel found that the Appellant had failed to maintain the standard of practice and engaged in deficient record-keeping.

The issues raised by the Appellant on this appeal pertained to natural justice and procedural fairness and, in the circumstances, the Court did not need to engage in an assessment of the appropriate standard of review.

The first issue raised by the Appellant was reasonable apprehension of bias, based on the presence on the Hearing Panel of the daughter and business partner of another dentist who was on the Executive Committee. The five-member Executive Committee on which the father sat had approved the appointment of an investigator. The report of that investigator had led to the Hearing. The daughter was on the Panel that was to decide the outcome of the Hearing into allegations of misconduct and incompetence against the Appellant. The Appellant argued that the filial relationship of these two persons raised a reasonable apprehension of bias due to the proximity of their relationship, the fact that the father and daughter practiced their profession together, and the fact that the father had made the decision to order the second section 75 investigation and the follow-up decision to send the matter to the Discipline Panel for a Hearing.

The Court held that the concern is about the appearance of bias, and even if the adjudicator is impartial, it is the impression given to other people that counts. While case authorities refer to the fact that judges routinely disabuse their minds of potentially prejudicial information and that thus the threshold is high for demonstrating a reasonable apprehension of bias, the same does not apply to an adjudicative body made up of non-judges and even non-lawyers. The threshold can be said to be lower in such cases. Nonetheless, the Court dismissed this ground of appeal. The father had not “made a decision” as was submitted, but was merely one of five members who did so. The daughter was one of a panel of three people (and not the chair) who heard all the evidence. In all the circumstances, the fact that a father and a daughter serve on different committees of the College and practice together is not sufficient to raise a reasonable apprehension of bias and did not offend the rules of natural justice and procedural fairness.

The Appellant argued that he was subjected to an unfair “double jeopardy” by virtue of the two section 75 investigations into his practice. The Court held that the two investigations had been distinct and arose from different matters. There had also been no “decision” in respect of the first section 75 investigation which led to the Appellant entering into a voluntary undertaking.

The Appellant also objected to the use of the evidence of the dentist who treated his patient after she left the Appellant’s care as “expert” evidence. The Court held that this witness’s evidence, although technically “opinion” evidence, was found on a continuum from facts to opinion and was closer to fact. The Appellant also had had the opportunity to cross-examine the dentist fully. The Hearing Panel’s use of the dentist’s evidence was reasonable in the circumstances.

The Appellant argued that the Panel had erred in its refusal to order disclosure of the patient’s records of previous orthodontic treatments. There was no evidence as to how this lack of information prejudiced the Appellant. The Panel had made no error in deciding that the issue was irrelevant. The Court further rejected the Appellant’s submission that he ought to have been provided with access to the functional appliance which he himself had prescribed for and which was used by the patient. Given that the Appellant had designed the appliance and would have been in a position to describe or present a similar model to the Discipline Panel or the College’s expert, there was no merit to this ground of appeal.

Finally, the Appellant argued that the penalty imposed was oppressive. The penalty included a reprimand, a three-month suspension, other remedial terms, conditions, and limitations, and ongoing monitoring for 24 months. The Court held that past penalties for different complaints were not of significant relevance and the concern of the College was for any ongoing risk that the dentist might pose to his patients if his skills or practice did not improve. The College’s decision to continue with its duty to protect the public was reasonable in these circumstances. In its totality, the penalty imposed considered relevant matters, applied the proper objectives, revealed a proper exercise of discretion and was reasonable in the circumstances.

In the result, the appeal was dismissed.

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