|
Professionals - Competition for Clients. Coscarella Dentistry Professional Corporation v. Harvey
In Coscarella Dentistry Professional Corporation v. Harvey (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from the dismissal of an action between two dental enterprises "alleging the conversion and improper solicitation of Clinic patients and Clinic employees, the appropriation of confidential information, and breach of fiduciary obligation against Dr. Harvey alone relating to the misuse of confidential information.":[5] The trial judge dismissed the action after concluding that: (1) pursuant to the oral agreement, the dentists carried on independent practices within the Clinic; (2) Dr. Harvey contacted “only … his own patients and not … any patients treated exclusively by the Plaintiffs”; (3) the information that he accessed was not confidential because he required it to comply with his professional obligation to notify his patients of the change in location of his practice; and (4) the contact he undertook was done in consultation with the Royal College of Dental Surgeons of Ontario (“RCDSO”) practice advisor. She quoted from the decision in Bacher v. Obar, [1989] O.J. No. 1392 (H.C.) at para. 50, aff’d [1993] O.J. No. 3578 (Ont. C.A.), that, “[p]atients have the right to choose their dentist. They are not property to be bought and sold like inventory.” She also found that there was no evidence that Dr. Harvey had solicited employees.
[6] Based primarily on these findings she concluded that the appellants failed to discharge their burden of proving improper solicitation, and she dismissed the conversion and breach of confidence claims. She also rejected the Plaintiff’s submission that the RCDSO restrictions on solicitation should be implied as terms of the contract, noting that these regulatory restrictions do not govern private contractual relationships and exist as part of the RCDSO’s exclusive jurisdiction to regulate professional misconduct, and that in any event, its restrictions on solicitations “only prohibits solicitation by a departing associate of the principal member’s patients, not the departing associate’s own patients.” Finally, she denied the fiduciary breach claim, noting that the relationship between a senior dentist and an associate is not presumed to be fiduciary, and that although “[i]n every relationship, the existence and scope of the duty must be examined in light of the particular circumstances”, “[o]n the basis of the evidence in this trial” a fiduciary relationship was not established.
....
[8] First, we reject the appellants’ submission that the trial judge “mischaracterized the central issue” by determining liability based solely upon: (1) the fact that there are no proprietary rights in patients, and (2) that Dr. Harvey was entitled to contact his patients and advise them of his new location (“considerations (1) and (2)”). They argue that instead of resolving their claims based upon considerations (1) and (2), the trial judge was required to decide whether Dr. Harvey breached his obligations to the appellants after determining the nature and scope of their relationship. We are not persuaded by this submission because the trial judge did determine the nature of the relationship, and her decision turns on that determination. She found that pursuant to the oral agreement, “Dr. Harvey contracted with the Plaintiff Dr. Franco to perform dental services in exchange for payment consisting of a portion of the revenues generated”; that they “carried on independent dental practices”; that “part of the associate relationship” was that the “clinic agreed to maintain the patient records”, and that this “arrangement does not result in any confidentiality attaching to patient records that Dr. Harvey was professionally required to create and keep.” She also considered and rejected the submission that there are “implied contractual restrictions prohibiting the solicitation of patients.” Contrary to the appellants submission, her decision did not turn solely or even mainly on considerations (1) and (2).
[9] Second, we are not persuaded by the submission that the trial judge failed to give reasons for her finding that the information accessed was not confidential. She fully explained that “the treating dental professional” “has the professional, legal and ethical responsibility to maintain a complete record of each patient’s dental care” and that the Clinic agreed to maintain those records as part of the associate relationship. The trial judge found that Dr. Harvey accessed those records to obtain patient contact information to fulfil his professional obligations. The trial judge did not need to say anything more to explain her finding that Dr. Harvey did not breach confidences by accessing this information.
....
[13] Fifth, we reject the appellants argument that the trial judge erred by failing to recognize that in claiming conversion relating to the solicitation of patients the appellants were not claiming property in the patients themselves, but rather property in the Clinic’s “good will”. This submission represents an unconvincing effort to indirectly acquire ownership interests relating to dental patients by semantics. The appellants were correct in not pursuing this claim in their oral submissions.
....
[15] Seventh, even if we assume that the overtures made by Dr. Harvey to his patients amount to “solicitation”, a proposition that we are sceptical of but need not decide, we do not accept the appellants’ proposition that it is wrongful and actionable for a dentist to solicit their own patients. The first question that arises from this startling proposition is who has a right of action against a dentist for soliciting their own patients. What standing would the appellants have in this case to do so, and what damages could they possibly claim? The only authority the appellants offered for this counter-intuitive proposal is a single passage from the case of Bacher v. Obar. However, there was no claim in that case against Dr. Obar for soliciting his own patients. The relevant claim Dr. Bacher made was for “the solicitation by Dr. Obar of the patients of Dr. Bacher”: at para. 11. In the passage that the appellants rely upon as establishing that even the solicitation of one’s own patients by a dentist is actionable, Saunders J. said, at para. 52, “Dr. Obar was entitled to inform his patients of his new location. He did so by announcement card. He was not entitled, as a dentist, to solicit patients, including those of Dr. Bacher and other dentists. He may have done so although no direct evidence was called to substantiate this allegation.” When this passage is read in the context of the issue in that case, it is plain Saunders J. was saying in the underlined sentence that Dr. Obar was not entitled, as a dentist, to solicit Dr. Bacher’s patients or the patients of other dentists. We therefore reject the submission that the trial judge erred by failing to recognize that “Dr. Harvey was entitled to notify his patients of his new location” but “was not entitled to solicit them”. That is not the law.
|
