College of Dental Hygienists of Ontario v. Cynthia DeMarco, 2022 ONCDHO 8

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;

AND IN THE MATTER of the Dental Hygiene Act, 1991, S.O. 1991, c.22, as amended, and the regulations thereunder, as amended.

BETWEEN:

THE COLLEGE OF DENTAL HYGIENISTS OF ONTARIO

– and –

Cynthia DeMarco

PANEL MEMBERS:

Vanessa Pereira Mary Yeomans Meghan Leuprecht Erin Betts Jacqueline White

Professional Member, Panel Chair Professional Member Public Member Public Member Professional Member

COUNSEL

Anastasia-Maria Hountalas, for the College of Dental Hygienists of Ontario

Elyse Sunshine, as Independent Legal Counsel

Hearing Date:

April 29, 2022

Decision Date:

April 29, 2022

Release of Written Reasons:

August 9, 2022

DECISION AND REASONS FOR DECISION

1A panel of the Discipline Committee of the College of Dental Hygienists of Ontario (the “Panel”) heard this matter virtually by Zoom videoconference on April 29, 2022.

2Ms. DeMarco (the “Registrant”) was not present for the hearing. The hearing recessed for 15 minutes to allow for the Registrant to appear. Upon reconvening, the Panel noted that the Registrant was not in attendance and was not represented by counsel.

3Counsel for the College provided satisfactory evidence that the Registrant had received adequate notice of the date, time and link to the hearing. The Panel was satisfied that the Registrant had been provided with appropriate notice of the hearing and accepted that the hearing could proceed in the Registrant’s absence pursuant to section 7 of the Statutory Powers Procedure Act, 1990, c S.22.

4At the conclusion of the hearing, the Panel delivered its findings orally with written reasons to follow.

THE ALLEGATIONS

5The allegations of professional misconduct against the Registrant were listed in the Notice of Hearing, dated October 11, 2019, which was filed as Exhibit 1, and read as follows:

1. The Registrant was at the material times a duly registered dental hygienist in Ontario, holding a certificate of registration in the General class from the College of Dental Hygienists of Ontario (the “College”).

2. On February 8, 2019, the Registrant was suspended for non-payment of fees.

3. ln or about January 2017, the Registrant reported to the College that she had been charged with certain criminal offences. The Registrant failed to respond in a timely way to the College’s request for further information about the charges. The matter was subsequently referred to the lnquiries, Complaints and Reports Committee (the “ICRC”) for an investigation.

4. On or about November 5, 2018, the ICRC directed the Registrant to attend for a caution and to successfully complete a Specified Continuing Education or Remediation Program consisting of the Professional/Problem-Based Ethics (“PROBE”) course delivered by the Center for Personalized Education for Physicians on or before November 8, 2019, and to provide proof to the Registrar, by May 8, 2019, that she had registered for PROBE.

5. The Registrant was sent a copy of the ICRC’s decision and reasons on November 8, 2018.

6. The Registrant has failed to attend for the caution and she has failed to provide proof of registering for the PROBE course by May 8, 2019.

7. ln the course of investigating her alleged failure to comply with the November 5, 2018, ICRC decision, the Registrant failed to respond to the investigator’s numerous requests for an interview.

8. A copy of the investigator’s report was sent to the Registrant on or about August 2, 2019. The Registrant did not provide a substantive response to the report.

9. It is alleged that the above conduct constitutes professional misconduct pursuant to the following paragraphs of section 15 of Ontario Regulation 218/94 under the Dental Hygiene Act, 1991:

a. paragraph 44 (failing to attend an oral caution of the Complaints [ICRC] Committee); and/or

b. paragraph 45 (failing to comply with an order or direction of a Committee or a panel of a Committee of the College); and/or

c. paragraph 50 (failing to cooperate with an investigator of the College); and/or

d. paragraph 52 (disgraceful, dishonourable or unprofessional conduct); and/or

e. paragraph 53 (conduct unbecoming a dental hygienist).

REGISTRANT’S PLEA

6Given that the Registrant did not attend the hearing, and was not represented by Counsel, she was deemed to have denied the allegations set out in the Notice of Hearing.

EVIDENCE

7Counsel for the College tendered documentary evidence and called two witnesses to establish its case on the merits.

Evidence of Eva Rosenstock

8Eva Rosenstock is the Case Manager, Complaints and Investigations at the College (“Ms. Rosenstock”). She gave evidence about the Registrant’s registration history and the College’s investigation in this matter.

9Ms. Rosenstock testified that when this matter originated in 2017, she was a Manager, Complaints and Investigations, at the College and was responsible for taking inquiries and complaints, managing the College’s investigations and liaising with the College’s Registrar. Ms. Rosenstock explained that when the College commenced an investigation into a particular matter, her role was to manage the administrative side of the investigation.

10Ms. Rosenstock testified that she managed the administration of the ICRC investigation into the Registrant’s conduct. In particular, Ms. Rosenstock identified the Registrant’s public register profile (Exhibit 3, Tab 1) and an ICRC decision dated November 5, 2018 (Exhibit 3, Tab 2) directing the Registrant to attend for a caution and successfully complete a Specified Continuing Education or Remediation Program (“SCERP”) consisting of the PROBE ethics course. Ms. Rosenstock testified that the ICRC’s decision arose out of events in January 2017 when the Registrant reported to the College that she had been charged with certain criminal offences and subsequently failed to respond in a timely way to the College’s request for further information about the charges.

11Ms. Rosenstock then identified and reviewed her correspondence with the Registrant regarding the ICRC’s order. In particular, she identified her November 8, 2018, correspondence to the Registrant enclosing a copy of the ICRC’s decision dated November 5, 2018, as well as her email correspondence with the Registrant regarding her compliance with the ICRC’s order. Ms. Rosenstock confirmed that, despite being ordered by the ICRC to attend for a caution and register and complete the PROBE ethics course, the Registrant did neither.

12Ms. Rosenstock testified that, as a result, the College commenced a subsequent investigation into the Registrant’s non-compliance with the ICRC’s decision dated November 5, 2018. Ms. Rosenstock stated that following the completion of the College’s investigation, she provided a copy of the investigation report to the Registrant on August 2, 2019 (Exhibit 3, Tab 10), but that the Registrant did not provide any substantive response.

Evidence of Roula Anastasopoulos

13Roula Anastasopoulos, the College’s investigator (“Ms. Anastasopoulos”), gave evidence about her investigation into the Registrant’s alleged conduct in this matter.

14Ms. Anastasopoulos testified that she was appointed to investigate allegations that the Registrant failed to comply with the ICRC’s decision dated November 5, 2018, and identified her Appointment of Investigator (Exhibit 3, Tab 13). Ms. Anastasopoulos explained her investigation and, in particular, her numerous attempts to contact the Registrant to arrange an interview. Ms. Anastasopoulos identified and reviewed her correspondence with the Registrant (Exhibit 3, Tabs 14-15).

15Ms. Anastasopoulos testified that, after an extended period of non-responsiveness, the Registrant indicated in an email on July 12, 2019, that she was available for an interview “whenever.” Ms. Anastasopoulos testified that she subsequently tried to arrange an interview with the Registrant, but that the Registrant did not attend the interview or otherwise respond to Ms. Anastasopoulos going forward. Ms. Anastasopoulos confirmed that she was never able to interview the Registrant as part of her investigation.

SUBMISSIONS OF THE PARTIES ON FINDINGS

16The College submitted that the Registrant’s conduct constituted the acts of misconduct as set out in the Notice of Hearing.

17The College submitted that there was clear, cogent and convincing evidence that the Registrant engaged in professional misconduct when she failed to attend for an oral caution as required by the ICRC and otherwise failed to comply with the ICRC’s November 5, 2018, order. The ICRC directed the Registrant to attend for a caution and complete the PROBE ethics course in its November 5, 2018, decision (Exhibit 3, Tab 2). A copy of the ICRC’s decision was sent to the Registrant on November 8, 2018. Contrary to the ICRC’s order, the Registrant did not attend to receive a caution. The Registrant did not confirm her registration in the PROBE ethics course.

18The College also submitted that the evidence establishes that the Registrant engaged in professional misconduct when she failed to cooperate with Ms. Anastasopoulos’ investigation.

19Ms. Anastasopoulos described her numerous attempts to contact the Registrant to arrange an interview. Despite the Registrant indicating that she was available to attend an interview in July 2019, the Registrant did not answer her phone or otherwise attend for an interview at any point or respond any further.

20The College submitted that the Registrant’s conduct also would be disgraceful, dishonourable or unprofessional, and unbecoming a dental hygienist. The College submitted that the Registrant’s conduct demonstrates a serious and persistent disregard for the College’s regulatory authority and public protection mandate. The Registrant’s failure to comply with the ICRC’s order and subsequent failure to cooperate with Ms. Anastasopoulos’ investigation demonstrates a concerning lack of understanding about her obligations as a regulated professional.

21The Registrant did not attend the hearing and did not make any submissions.

DECISION ON FINDINGS AND REASONS

22The College bears the onus of proving the allegations set in the Notice of Hearing. The standard of proof is on a balance of probabilities, whether it is more likely that the alleged conduct occurred. The Panel found that the allegations have been proven by the College on a balance of probabilities by evidence that is clear, cogent and convincing. The Panel found that the Registrant committed the following acts of professional misconduct:

a. paragraph 44 (failing to attend an oral caution of the Complaints [ICRC] Committee); and/or

b. paragraph 45 (failing to comply with an order or direction of a Committee or a panel of a Committee of the College); and/or

c. paragraph 50 (failing to cooperate with an investigator of the College); and/or

d. paragraph 52 (disgraceful, dishonourable or unprofessional conduct); and/or

e. paragraph 53 (conduct unbecoming a dental hygienist).

23The Panel found the College’s witnesses to be credible. They each had first-hand knowledge of the events in question, which strengthened the reliability of their evidence. Their testimony was corroborated by documentary evidence filed by the College. The Panel accepted the witnesses’ uncontroverted evidence in its entirety.

24The Panel found that the College’s evidence established, on a balance of probabilities, the factual allegations the Notice of Hearing, which supported findings that the Registrant engaged in the acts of professional misconduct alleged.

25The Panel’s findings with respect to each act of professional misconduct are outlined below.

Failing to attend an oral caution (paragraph 44)

Failing to comply with an order or direction of a Committee (paragraph 45)

26There was documentary and uncontroverted oral evidence that the Registrant had been ordered to attend an oral caution and to complete a SCERP and did not do so. There was correspondence from the Registrant which indicates that she received and was aware of this order. Further, the Registrant took issue with the imposition of the caution and informed Ms. Rosenstock that she would not be attending the oral caution. She further discussed that she intended to resign from the College. The Registrant also took issue with the requirement to complete the SCERP and there were several emails from her taking issue with the requirement to complete PROBE. At no time did the Registrant attend the oral caution or comply with the order of the ICRC and accordingly, these acts of misconduct have been made out on a balance of probabilities.

Failing to cooperate with an investigator (paragraph 50)

27There was overwhelming evidence of the attempts made by Ms. Anastasopoulos to schedule an investigation interview with the Registrant and no interview ever took place. Initially, Ms. Anastasopoulos attempted to get in touch with the Registrant on three occasions, and there was no response. The Registrant did respond on one occasion and said she could meet but ultimately, attempts to schedule that meeting were unsuccessful. Every member of the profession is obliged to cooperate with the College in its investigations, and to respond appropriately and within a reasonable time to College inquiries when requested to do so. This is part of the responsibility of belonging to an independent, self-regulating body. The obligation to respond to communications from a professional regulator and to cooperate with investigators is part of the ethical duty as a member of a regulated profession. The Registrant did not comply with her duties in that regard and ultimately engaged in misconduct by failing to cooperate with the College’s investigator.

Disgraceful, dishonourable or unprofessional conduct (paragraph 52)

Conduct unbecoming (paragraph 53)

28The Registrant’s failure to respond to the College and her disregard for her professional obligations by not complying with the order of the ICRC reflects poorly on the profession and undermines public confidence in the integrity of the profession and its members. It is well established that in order to ensure effective governance, a member of a regulated profession must respond to and comply with their regulator. Her lack of timely response frustrates the ability of the College to regulate its registrants. Consequently, the Registrant’s failure to respond to communications from her regulator demonstrated a lack of integrity, ethics, and respect for her professional obligations, which undermines the College’s ability to regulate the profession and protect the public and constitutes disgraceful, dishonourable and unprofessional conduct.

29Moreover, the Panel accepted Independent Legal Counsel’s advice that an allegation of unbecoming conduct is generally intended to capture conduct that occurs outside the practice of the profession. In this case, the Registrant’s misconduct did not occur in a treatment room or relate to direct treatment of a client, but it demonstrated the Registrant’s lack of respect for the College and the principles of self-governance. Accordingly, this conduct would reasonably be regarded by registrants as conduct unbecoming a dental hygienist.

30A penalty hearing should be scheduled at the first available opportunity.

I, Vanessa Pereira, 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:

___________________________________________ August 9, 2022 >

Vanessa Pereira, Professional Member, Panel Chair Date