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Medical Professionals (RHPA) - Dentists [*** consider all for cross-linking]
. Benbella v. The National Dental Examining Board of Canada [not an RHPA case]
In Benbella v. The National Dental Examining Board of Canada (Ont CA, 2023) the Court of Appeal considers an appeal against a RCP 21 (non-suit) dismissal of an R14.05 application for injunction against the 'National Dental Examining Board of Canada', a Canada professional standards body. These quotes reveal some of the body's procedures [be careful to distinguish Rules of Civil Procedure (RCP) R21 with NDEBC by-law 21]:[3] The appellant is a dental school graduate. Among other requirements, he is required to pass the certification process administered by the respondent, the National Dental Examining Board of Canada, to qualify for admission to the profession of dentistry in Canada.
[4] The certification process has two components: a written exam and an Objective Structured Clinical Examination (“OSCE”).
[5] The appellant attempted the certification process in November 2018. He passed the OSCE but failed the written exam. He re-wrote the written exam in March 2019 but failed this attempt as well.
[6] As the appellant was entitled to under r. 21 of the respondent’s by-laws, he requested to have his written exams manually remarked. They were, but the results did not change.
[7] The appellant then sought to appeal the results of his written exam. He cited r. 5.25 of the by-laws in support of his claim that he was entitled to a “Special Appeal” before the respondent’s Appeal Committee.
[8] Rule 5.25 provides that “The Appeals Committee has the power to establish procedures for the conduct of Appeals or Special Appeals. In making a determination, a panel will determine that the Appeal be upheld or dismissed, or make such other determinations that it deems reasonable and just.”
[9] The respondent denied the appellant’s request for a Special Appeal. It advised him that the only appeal available to him was the manual rescoring under r. 21 of the by-laws, which had already been done for both of his written exams. In response, the appellant commenced legal action against the respondent. . Griffith v. Health Professions Appeal and Review Board
In Griffith v. Health Professions Appeal and Review Board (Div Ct, 2021) the Divisional Court sets out the disciplinary process under the Health Professionals Procedural Code, here with respect to the Dentistry Act:Statutory Framework
[37] Dentistry is a self-regulated profession. The College is the regulatory body established by statute to regulate and govern the members of the profession of dentistry in Ontario. The statutory scheme governing the College is contained in the Regulated Health Professions Act, 1991 (the “RHPA”),[10] the Health Professions Procedural Code (the “Code”),[11] the Dentistry Act, 1991,[12] and the regulations established thereunder.
[38] In carrying out its objects, the College has an express duty to serve and protect the public interest.[13] The College’s other objectives include establishing and maintaining standards of practice and of professional ethics, and promoting continuing competence among its members.[14] It does these, in part, through a complaints and discipline process.
The Inquiries, Complaints, and Reports Committee
[39] The Code establishes seven committees of the College, one of which is the ICRC.[15]
[40] The ICRC’s role is to assess complaints and Registrar’s reports, conduct or initiate investigations and fact-finding, and refer matters to adjudicative committees for determination, if appropriate.[16]
[41] The ICRC is made up of dentists and public members. In this case, the panel of the ICRC consisted of two dentists and one layperson.
[42] Before disposing of a complaint or a report, the ICRC must consider the submissions of the member, and make reasonable efforts to consider all records and documents it considers relevant to the complaint or report.[17] The ICRC does not hold “in person” hearings nor does it hear oral evidence. All decisions are made on the basis of a paper record.
[43] Section 26(1) of the Code provides that the ICRC may do any one of the following at the conclusion of its investigation:(a) refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee (following which the Discipline Committee will hear and determine allegations of professional misconduct);
(b) refer the member to a panel of the ICRC for incapacity proceedings (following which the Fitness to Practise Committee will hear and determine allegations of incapacity);
(c) require the member to appear before a panel of the ICRC to be cautioned; or
(d) take action it considers appropriate that is not inconsistent with the RHPA, the Code, the Dentistry Act, the regulations under those Acts, or the College’s by-laws. This includes requiring the member to complete a SCERP.[18] [44] In 2017, the Code was amended to require regulated health colleges to provide greater transparency to the public regarding complaints and discipline against their members.[19] As a result, the College’s public register must now contain a notation of every caution and every SCERP that a member receives from the ICRC.[20]
HPARB’s Review of ICRC Decisions
[45] In the case of a complaint to the College, if the ICRC elects not to refer a member to discipline or incapacity proceedings, the complainant or the member who was the subject of the complaint may request the HPARB to review the ICRC’s decision.[21] In its review, the HPARB is to consider either or both the “adequacy of the investigation conducted” and/or “the reasonableness of the decision.”[22]
[46] In conducting a review, the member and the complainant are entitled to make submissions and respond to the submissions of the other party.
[47] Following its review of an ICRC decision, the HPARB may:(a) confirm all or part of the decision;
(b) make recommendations to the ICRC that the HPARB considers appropriate; and
(c) require the ICRC to do anything it or a panel may do under the RHPA and the Code, except request the Registrar to conduct an investigation.[23] [48] There is no statutory right of appeal from decisions of HPARB.[24] . Griffith v. Health Professions Appeal and Review Board
In Griffith v. Health Professions Appeal and Review Board (Div Ct, 2021) the Divisional Court considered the different roles of cautions versus disciplinary steps when issued by the ICRC (Inquiries, Complaints, and Reports Committee) under the RHPA:[90] The Applicant argues further that HPARB’s reasons are inadequate because they failed to give due consideration to his concern that the Caution would negatively impact his career and livelihood. This argument also lacks merit.
[91] Vavilov is clear that it is only where “the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes.”[64] In imposing this requirement, the Court relied upon its own decisions in Baker and Kane, which held that a:higher standard of justice is required when the right to continue in one’s profession or employment is at stake… A disciplinary suspension can have grave and permanent consequences upon a professional career.[65] [92] This case does not meet that threshold. The Applicant is not at risk of a disciplinary suspension, or of losing his employment. The Applicant’s “concern” that his livelihood will be affected by the publication of the Caution is not based in evidence. As held by this Court in Silverthorne, (where the caution in issue was published on the internet, albeit not by the College) mere “perceptions” that an advisory caution may have an effect on one’s career are insufficient to impose a higher standard of Reasons than would otherwise be required.[66]
[93] This court recently considered in Geris v. Ontario College of Pharmacists, 2020 ONSC 7437, whether the requirement that a caution must now be published on the College’s Register by statute moves a caution from being remedial to a sanction. Penny J., writing for the court, held:[33] Cautions and educational or remedial directions are not meant as sanctions or penalties but are meant to benefit the practitioner and the patients by avoiding future complaints of a similar nature: Armogan, para. 9.[67]
[34] It is true, as the applicant argues, that cautions and remedial orders regarding attendance at education programs are now placed on the public register. This was not the case when a number of the leading cases dealing with such orders were decided. However, the fact that the Legislature felt it would be in the public interest to make health disciplines bodies publish remedial orders of the kind issued by the ICRC in this case does not fundamentally alter the preventive, educational and remedial nature of such orders. I cannot agree that an entirely different approach must be taken now that remedial orders appear on the public register.
[35] Among other things, there is a mechanism in the legislation to remove entries from the public register where “the information is obsolete and no longer relevant to the member’s suitability to practise.”
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[41] Directing the applicant to attend and receive an oral caution is not a penalty. Rather it is an educational and remedial measure intended to prevent the applicant from having a similar experience in the future and to protect the public…The applicant is asking this court to re-weigh the relevant factors and come to a different result. That is not the role of any court on judicial review, especially where remedy is concerned: Mitelman v College of Veterinarians of Ontario, 2020 ONSC 3039. [94] Similarly it is not the role of this court to reweigh the relevant factors and come to a different result than that of the ICRC and HPARB. For these reasons, I would not accept the assertion of the Applicant that the Decision of HPARB was unreasonable . Park v. Royal College of Dental Surgeons of Ontario
In Park v. Royal College of Dental Surgeons of Ontario (Div Ct, 2021) the Divisional Court set out factors to be considered when deciding whether a professional is ungovernable:[34] In making this argument, Dr. Park states that, at the hearing before the Discipline Committee, his counsel and counsel for the College referred to the Law Society Tribunal’s decision in Law Society of Upper Canada v. Robin Douglas Scott, 2006 ONLSHP 48, at para. 17 and 18, which sets out the following test for ungovernability:
[17] The jurisprudence does not draw a bright line for the determination of ungovernability nor does the manifestation of the behavior automatically mean disbarment.
[18] Factors which inform the determination whether a member is ungovernable include the following:(a) the nature, duration and repetitive character of the misconduct;
(b) any prior discipline history;
(c) any character evidence;
(d) the existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;
(e) the degree of willingness to be governed by the Society;
(f) medical or other evidence that explains (though does not excuse) the misconduct;
(g) the likelihood of future misconduct, having regard to any treatment being undertaken, or other remedial efforts;
(h) the member's ongoing co-operation with the Society in addressing the outstanding matters that are the subject of the misconduct.
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