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Medical Professionals (RHPA) - Dentists [*** consider all for cross-linking]
. Chaban v. Royal College of Dental Surgeons of Ontario
In Chaban v. Royal College of Dental Surgeons of Ontario (Div Court, 2023) the Divisional Court considered a JR by a dentist of a "decision of the of the Inquiries, Complaints and Reports Committee (the “Committee”) of the Royal College of Dental Surgeons of Ontario (the “College”)" to order them to "complete a specified continuing education or remediation program and to be verbally cautioned by a panel of the Committee" regarding sexually suggestive social media posts.
Here, the court sets out an example of disciplinary procedure:[9] On February 3, 2023, the Committee approved the College Registrar’s appointment of an investigator to examine Dr. Chaban’s conduct and determine whether he had engaged in professional misconduct under subsection 75(1)(a) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18.
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[16] On June 7, 2023, the Committee released the Decision. The Committee found that:1. The Videos were “sexualized, offensive and demonstrated a lack of professional judgment”.
2. The Videos “were directly linked to Dr. Chaban’s practice of dentistry”.
3. The First Video “appears to have been filmed in their dental office with [Dr. Chaban] in dental scrubs”.
4. The Videos “appear to contravene the Social Media Advisory by “[compromising] public confidence in the dental profession and the Dentist’s own professionalism.”
5. The Videos violate the Social Media Advisory’s directives that:
. “online “privacy” is never absolute;
. a dentist’s professionalism should extend to their private accounts; and that
. dentists should avoid posting material “that demonstrates, or appears to demonstrate, behaviour that might be considered unprofessional, inappropriate or unethical.” The Videos were unprofessional and inappropriate.
6. The Videos violate the Prevention Advisory, which “obliges dentists to maintain professionalism in their social media communication to avoid harm to their practice and their reputation”. The Prevention Advisory “gives guidance to dentists that they should not tell sexually suggestive jokes”. The Videos “were sexually suggestive”.
7. “Dr. Chaban’s response to the College’s investigation demonstrated a complete lack of insight into their conduct and understanding of their professional obligations”. ....
[20] The Committee’s conclusion was that Dr. Chaban’s conduct had raised “a concern or area of practice requiring remediation or significant improvement and that poses a moderate risk of directly affecting patient care or safety”. The Committee directed Dr. Chaban to complete, at his expense, a specified continuing education or remediation program. In addition, it required Dr. Chaban to attend for an oral caution.
Issues
[21] The key issue in this case is whether the Committee’s decision, including its concerns regarding Dr. Chaban’s conduct and its requirement for remediation was reasonable. . Fisher v. Health Professions Appeal and Review Board
In Fisher v. Health Professions Appeal and Review Board (Div Court, 2023) the Divisional Court considered (and denied) a JR of HPARB confirmations of
complaint dismissals by the Inquiries, Complaints and Reports Committee of the Royal College of Dental Surgeons.
The below quotes illustrates some of the College's complaint investigation, and HPARB procedures:[1] Mark Fisher applies for judicial review of three decisions of the Health Professions Appeal and Review Board, each dated October 31, 2022. In each decision, the Board confirmed a decision of the Inquiries, Complaints and Reports Committee of the Royal College of Dental Surgeons to take no further action regarding Mr. Fisher’s three complaints to the College about Dr. Harneal Baweja, Dr. Ara Cho, and Dr. Kevin Baweja (in his capacity as the owner of Solar Dental).
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[12] On July 8, 2021, Mr. Fisher exercised his right to have the Board review the Committee’s decision. The Board has the statutory authority to review the Committee’s decisions under s. 29(2) of the Code and s. 2 of the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998.[2] The Board’s mandate is to consider the adequacy of the Committee’s investigation and the reasonableness of the Committee’s decision.
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[20] In his oral submissions, Mr. Fisher raised three issues that were arguably related to the procedural fairness of the Board’s review.
[21] First, Mr. Fisher stated that the Board did not clarify or summarize his submissions. In my view, this does not breach the requirements of procedural fairness. Under the relevant provisions of the Code, the Board was required to give Mr. Fisher the opportunity to comment on the adequacy of the Committee’s investigation and the reasonableness of its decision to take no further action.[5] There is no requirement that the Board clarify or summarize Mr. Fisher’s submissions, particularly given their length. Moreover, it is not clear how such a summary would have assisted Mr. Fisher to present his case. There is no doubt that administrative tribunals must treat self-represented litigants fairly, but the Board did not violate the rules of procedural fairness in this case.
[22] Second, Mr. Fisher submitted that the Board would not permit its review process to be recorded. It is important to note that the Board’s review process is, by design, not a hearing within the meaning of the Statutory Powers Procedure Act.[6] No witnesses can be called to testify, and the parties may not question in each other. In these circumstances, I do not think any statute or regulation, or the common law of procedural fairness required the Board to record or transcribe its review of the Committee’s decisions.
[23] Third, Mr. Fisher asserted that the Board’s Vice-Chair “cut [him] off several times” and claimed that [he] repeated things.” Mr. Fisher submitted that he was not repeating things, he was “pointing out the further implications of the same things in different contexts.” The Board, and in particular the Vice-Chair presiding over a review, has broad powers to control its own process. A review process is meant to be conducted in a fair but expedited way. Given the volume of written information filed by Mr. Fisher, there is nothing inappropriate about the Vice-Chair asking him to move to another area when she understood his submissions on an issue. Mr. Fisher has not demonstrated that the Vice-Chair exercised her discretion in a way that was inconsistent with the principles of procedural fairness.
[24] Section 33 of the Code sets out the process to be followed by the Board when it conducts a review. It provides as follows:33(1) In a review, the Board shall consider either or both of,
(a) the adequacy of the investigation conducted; or
(b) the reasonableness of the decision.
(2) In conducting a review, the Board,
(a) shall give the party requesting the review an opportunity to comment on the matters set out in clauses (1) (a) and (b) and the other party an opportunity to respond to those comments;
(b) may require the College to send a representative;
(c) may question the parties and the representative of the College;
(d) may permit the parties to make representations with respect to issues raised by any questions asked under clause (c); and
(e) shall not allow the parties or the representative of the College to question each other. ....
[26] Similarly, I see no evidence that the Committee denied him procedural fairness. The Committee investigates complaints, it does not hold an adversarial hearing. In this case, the Committee provided Mr. Fisher with copies of the dentists’ responses to his complaints and permitted him to make further lengthy submissions. The Committee provided Mr. Fisher with copies of all the documents it obtained during its investigation, including the documents obtained from his subsequent treating dentist. I see no evidence that the Committee denied procedural fairness to Mr. Fisher. . 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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