College of Dental Hygienists of Ontario v. Wehrle, 2018 ONCDHO 5

Discipline Committee of the College of Dental Hygienists of Ontario

THE DISCIPLINE COMMITTEE OF THE COLLEGE OF DENTAL HYGIENISTS OF ONTARIO

IN THE MATTER OF a hearing directed by the Inquiries, Complaints and Reports Committee of the College of Dental Hygienists of Ontario pursuant to Section 26(1) of the Health Professions Procedural Code being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended.

BETWEEN:

THE COLLEGE OF DENTAL HYGIENISTS OF ONTARIO

• and –

Samantha Wehrle (Registration no. 016197)

PANEL MEMBERS:

Fernand Hamelin Terri Strawn Erin Betts

Chair, Public Member of Council Professional Member of Council Public Member of Council

COUNSEL

Robin McKechney, for the College of Dental Hygienists of Ontario Carlos Rippel, for the registrant, Samantha Wehrle Josh Koziebrocki, as Independent Legal Counsel

Hearing Date: July 24, 2018

Decision Date: July 24, 2018

Release of Written Reasons: September 11, 2018

DECISION AND REASONS

1This matter came on for hearing before a panel of the Discipline Committee on July 24, 2018 at the College of Dental Hygienists of Ontario at Toronto.

THE ALLEGATIONS

2The allegations against Ms. Wehrle as stated in the Notice of Hearing dated May 3, 2017, are as follows:

The Registrant

3At the material times Samantha Wehrle (the “Registrant”) was a duly registered member of the College of Dental Hygienists of Ontario, practicing at Dawson Dental Centre in Guelph, Ontario.

The Client

4Client #1 was a client of the Registrant’s and attended for dental hygiene treatment with the Registrant at Dawson Dental Centre on or about June 5, 2015, November 21, 2015, February 27, 2015 and April 16, 2016.

The Relationship between the Registrant and Client #1

5The Registrant and Client #1 have been romantically involved for approximately 8 years. They have an intimate sexual relationship that involves sexual intercourse.

6The Registrant says that when she became a dental hygienist, she understood that she could not treat Client #1 because of the intimate sexual nature of their relationship.

7The Registrant says that she began treating Client #1 because she mistakenly understood that an exemption had been enacted that allowed dental hygienists to treat their spouses.

8While they were engaged in a sexual relationship, the Registrant provided dental hygiene treatment to Client #1 at Dawson Dental Centre on or about June 5, 2015, November 21, 2015, February 27, 2015 and April 16, 2016.

Professional Misconduct Alleged

9It is alleged that the above conduct constitutes professional misconduct pursuant to:

a) Clause 51(1) (b.1) of the Health Professions Procedural Code: sexual abuse of a patient; and/or

b) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 2: contravening a standard of the profession; and/or

c) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s. 15, para. 47: contravening, by act or omission, the Act, the RHPA or the regulations under either of those Acts; and/or

d) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 52: engaging in conduct or performing an act, relevant to the practise of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and/or

e) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 53: conduct unbecoming a dental hygienist.

REGISTRANT’S PLEA

10Ms. Wehrle admitted the allegations set out paragraphs numbered 1 to 6 inclusively in the Notice of Hearing. The panel conducted a plea inquiry and was satisfied that the Registrant’s admission was voluntary, informed and unequivocal.

AGREED STATEMENT OF FACTS (“ASF”)

11Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows:

The Registrant

12At the material times Samantha Wehrle (the “Registrant”) was a duly registered member of the College of Dental Hygienists of Ontario, practising at Dawson Dental Centre in Guelph, Ontario.

The Client

13Client #1 was a client of the Registrant’s and attended for dental hygiene treatment with the Registrant at Dawson Dental Centre on or about June 5, 2015, November 21, 2015, February 27, 2015 and April 16, 2016.

The Relationship between the Registrant and Client #1

14The Registrant and Client #1 have been romantically involved for approximately 8 years. They have an intimate sexual relationship that involves sexual intercourse.

15The Registrant says that when she became a dental hygienist, she understood that she could not treat Client #1 because of the intimate sexual nature of their relationship. The Registrant says that she began treating Client #1 because she mistakenly understood that an exemption had been enacted that allowed dental hygienists to treat their spouses.

16The Registrant says that she began treating Client #1 because she mistakenly understood that an exemption had been enacted that allowed dental hygienists to treat their spouses.

17While they were engaged in a sexual relationship, the Registrant provided dental hygiene treatment to Client #1 at Dawson Dental Centre on or about June 5, 2015, November 21, 2015, February 27, 2015 and April 16, 2016.

Professional Misconduct Alleged

18It is alleged that the above conduct constitutes professional misconduct pursuant to:

a) Clause 51(1)(b.1) of the Health Professions Procedural Code: sexual abuse of a patient; and/or

b) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 2: contravening a standard of the profession; and/or

c) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s. 15, para. 47: contravening, by act or omission, the Act, the RHPA or the regulations under either of those Acts; and/or

d) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 52: engaging in conduct or performing an act, relevant to the practise of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and/or

e) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 53: conduct unbecoming a dental hygienist.

19By this document, the Registrant states that:

a) she understands fully the nature of the allegations against her;

b) she understands that by admitting the allegations, she is waiving his right to require the College to prove the case her and the right to have a hearing;

c) she understands that any agreement between her and the College with respect to penalty does not bind the Discipline Committee;

d) she understands that the decision of the Committee and a summary of its reasons including reference to her name will be published in the College’s annual report and may be reported in the College’s publication Milestones and the website of the College; and

e) she is executing this document voluntarily and after receiving legal advice.

ANALYSIS

20In considering this matter, the panel has considered the analysis in the decision of the Committee, College of Dental Hygienists of Ontario v. Alexandru Tanase 2018. That case was also decided by an Agreed Statement of Facts and is very similar to the facts in this case. In Tanase the panel found at paragraphs 29 and 30 the following:

29. The Registrant argues that his circumstances are different from Sliwin (the Divisional Court decision of Sliwin v. College of Physicians and Surgeons, 2017 ONSC 1947 (“Sliwin”)) because he would have qualified for the spousal exemption had it been passed. I would agree with the College on this point that whether or not the Registrant would have qualified for a spousal exemption is irrelevant as the legislature has not, to date, passed such an exemption.

30. For these reasons, I am of the view that there has not been a significant change in circumstances to warrant deviating from the decisions in Mussani and Sliwin (the Court of Appeal decision of Mussani v. College of Physicians and Surgeons of Ontario, 2004 (“Mussani”) and the Divisional Court decision of Sliwin v. College of Physicians and Surgeons, 2017 ONSC 1947 (“Sliwin”)).

21The panel agrees with the analysis in Tanase and agrees that the decisions in Mussani and Sliwin are still binding on this panel. Further, the Panel notes that at the time of this decision the legislature has still not passed any exemption for the College regarding a potential spousal exemption.

DECISION

22The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct and, in particular, finds that the Registrant committed an act of professional misconduct as alleged in paragraphs 1 to 6 inclusively of the Notice of Hearing in that her conduct constitutes professional misconduct pursuant to:

a) Clause 51(1)(b.1) of the Health Professions Procedural Code: sexual abuse of a patient; and/or

b) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 2: contravening a standard of the profession; and/or

c) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s. 15, para. 47: contravening, by act or omission, the Act, the RHPA or the regulations under either of those Acts; and/or

d) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 52: engaging in conduct or performing an act, relevant to the practise of the profession, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional; and/or

e) Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, s.15, para 53: conduct unbecoming a dental hygienist.

REASONS FOR DECISION

23Upon accepting the Agreed Statement of Facts, the Panel find that the facts constitute professional misconduct pursuant to subsection 51(b.1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991; and pursuant to Ontario Regulation 218/94 under the Dental Hygiene Act, 1991, section 15, paragraphs 2,47, 52, and 53.

PENALTY

24The College of Dental Hygienists of Ontario and Samantha Wehrle agreed and jointly submitted a joint submission on penalty and costs to the Panel. They submitted that the following would be an appropriate order as penalty and costs:

a) Ms. Wehrle is required to appear before a panel of the Discipline Committee immediately following the hearing of this matter to be reprimanded, with the fact of the reprimand and a summary of the reprimand to appear on the public register of the College.

b) The Discipline Committee shall direct the Registrar to revoke Ms. Wehrle’s Certificate of Registration effective immediately.

c) Ms. Wehrle is required to pay to the College costs in the amount of $ 1,000.00 within six months of the date of the Discipline Committee’s order.

PENALTY DECISION

25The panel accordingly orders:

a) That, Ms. Wehrle is required to appear before a panel of the Discipline Committee immediately following the hearing of this matter to be reprimanded, with the fact of the reprimand and a summary of the reprimand to appear on the public register of the College.

b) That, the Discipline Committee shall direct the Registrar to revoke Ms. Wehrle’s Certificate of Registration effective immediately.

26With respect to costs, the panel orders:

a) That, Ms. Wehrle is required to pay to the College costs in the amount of $750.00 within six months of the date of the Discipline Committee’s order because of special circumstance on the day of the hearing beyond the control of the registrant, in this case Ms. Wehrle.

I, Fernand Hamelin, sign this decision and reasons for the decision as Chair of this Discipline panel and on behalf of the members of the Discipline panel as listed below: