COURT OF APPEAL FOR ONTARIO

CITATION: Coscarella Dentistry Professional Corporation v. Harvey, 2025 ONCA 118

DATE: 2025-02-18

DOCKET: COA-24-CV-0191

Tulloch C.J.O., Paciocco and Nordheimer JJ.A.

BETWEEN

Coscarella Dentistry Professional Corporation, Franco Coscarella, Gennaro Coscarella and Gennaro Coscarella Dentistry Professional Corporation

Appellants

and

Clifford Harvey and Clifford Harvey Dentistry Professional Corporation

Respondents

Counsel:

J. Thomas Curry, Amy Goudge and Herschel Chaiet, for the appellants

Jeremy Martin and Hardeep Dhaliwal, for the respondents

Heard: January 28, 2025

On appeal from the judgment of Justice Andra Pollak of the Superior Court of Justice, dated January 17, 2024.

REASONS FOR DECISION

[1] Until 2018, Dr. Franco Coscarella (“Dr. Franco”) operated two dental clinics (for convenience, the “Clinic”) in Windsor, Ontario. For many years, Dr. Clifford Harvey worked as an independent contractor with Dr. Franco pursuant to an oral agreement. Their arrangement was simple. In return for 50% of his billings, Dr. Harvey carried on his dental practice in Clinic facilities, with the support of Clinic staff. The dentists would serve each other’s patients in emergency circumstances if a patient’s own dentist was not available.

[2] In 2018, Dr. Franco’s son, Dr. Gennaro Coscarella (“Dr. Gennaro”) purchased the Clinic by buying shares of Coscarella Dentistry Professional Corporation, which had acquired ownership of the Clinic. In circumstances that are not material to the outcome of this appeal, Dr. Harvey decided to move his dental practice to a location across the street from one of the Clinic locations. Before leaving, he accessed and took photos of electronic files for patients that he had treated in the previous two years and sent them undated letters announcing that he was moving his practice to “a newly constructed and equipped office”. The letter continued, “[e]ven though my location is changing, I can assure you that I will be offering the same range of dental services as I currently do.” He destroyed the photographs after extracting the contact information.

[3] On December 21, 2018, shortly before his departure, five employees of the Clinic handed in their resignations, effective January 4, 2019, and subsequently began working for Dr. Harvey in his clinic. Dr. Harvey ultimately obtained patient charts from the Clinic through authorizations signed by the patients who sought his continued dental services.

[4] Dr. Franco, Dr. Gennaro and Coscarella Dentistry Professional Corporation, (“the appellants”) launched an action against Dr. Harvey and Clifford Harvey Dentistry Professional Corporation 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.

[7] Although the appellants did not pursue on appeal the claims they had made relating to the departure of the employees, they advanced a broad and evolving appeal of the balance of the decision. At the completion of their oral argument, we dismissed their appeal for reasons to follow. These are our reasons.

[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.

[10] Third, we see no reversible error in the trial judge’s failure to give more complete reasons for rejecting the fiduciary breach claim. The appellants’ theory is that Dr. Harvey breached his fiduciary duty by abusing confidential information. The trial judge’s finding that the information was not confidential put an end to this claim. There was no need to say more.

[11] In any event, the trial judge explained why Dr. Harvey did not fall within a presumptive fiduciary class, and she did not need to address the ‘case-by-case” analysis, given that, on its face, this claim is thoroughly untenable. For a fiduciary duty to be found on a case-by-case basis, the fiduciary must have the “scope for the exercise of some discretion or power”, the exercise of which can “affect the beneficiary’s legal or practical interest”, in circumstances where the beneficiary is “peculiarly vulnerable to the fiduciary holding the discretion”: Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574 at p. 581. Dr. Harvey’s practical ability to access patient records does not amount to “the exercise of some discretion or power” to affect the legal or practical interests of the appellants or make them peculiarly vulnerable. If it did, the simple power of anyone to access the property of another would convert them into fiduciaries.

[12] Fourth, we do not accept that the trial judge erred by failing to address the contractual good faith obligation. The function of the doctrine of good faith is to ensure that the parties to a contract “perform their contractual duties honestly and reasonably and not capriciously or arbitrarily”: Bhassin v. Hyrnew, 2014 SCC 71, [2014] 3 S.C.R. 494, at para. 63. Once the trial judge decided, without any demonstrated error, that there were no contractual duties on Dr. Harvey relating to accessing patient information or soliciting his patients, the submission that he did not exercise good faith in doing so became immaterial. Dr. Harvey was not performing contractual duties when he was doing these things. There was therefore no need for the trial judge to address whether he exercised good faith in doing so.

[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.

[14] Sixth, we do not entertain the appellants’ submission, made for the first time during oral argument, that the trial judge erred in finding that Dr. Harvey contacted only his own patients. The appellants did not raise this issue in their factum. Even if they had done so, it is unclear whether the challenge that they tried to make to this factual finding during oral argument was based on an alleged misapprehension of the evidence or on the claim that this finding is the product of some palpable and overriding error. We have not been provided with either a legal basis for this challenge, or an evidentiary foundation for disrupting this factual finding, which is entitled to deference.

[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.

[16] Relatedly, we reject the submission that the trial judge erred by not considering whether the letter that Dr. Harvey sent to his patients constituted a “solicitation”. The trial judge had no need to consider this question given that absent a contractual obligation, there is no prohibition on soliciting one’s own patients.

[17] Finally, we reject the submission, again made for the first time during oral submissions, that the trial judge erred by admitting into evidence an RCDSO panel Decision and Reasons of January 18, 2022. That document was jointly admitted by the parties. In it, the panel expressed concerns about some of Dr. Harvey’s conduct, finding that he “may have behaved inappropriately” in several respects. If anything, the content of this report would have assisted the appellants. The appellants cannot now build a ground of appeal out of what clearly was a tactical decision on their part to put this document before the trial judge, particularly given that doing so has caused no discernible prejudice. The trial judge drew nothing from the contents of the report, simply reciting that it provided advice and recommendations to Dr. Harvey to “carefully adhere to the rules and regulations, as well as any contractual agreements, on the solicitation of patients.”

[18] For these reasons, we dismissed the appeal. The respondents are entitled to their costs of the appeal fixed in the agreed amount of $40,000.00, inclusive of disbursements and HST.

“M. Tulloch C.J.O.”

“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”