COURT FILE NO.: 770/2001

DATE: 20040402

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MACFARLAND, WILSON AND SWINTON JJ.

B E T W E E N:

DR. SAMUEL SPODEK

Applicant/Appellant

• and -

DR. ELIAS FORTSAS, ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO, HEALTH PROFESSIONS APPEAL AND REVIEW BOARD

Respondents/Respondents

In Person

Linda Rothstein, for the Royal College of Dental Surgeons of Ontario

David Jacobs, for the Health Professions Appeal and Review Board

HEARD: April 2, 2004

MACFARLAND J.: (Orally)

1The applicant raises two grounds of review. First, the adequacy of the investigation and the reasonableness of the decision and second, the reasonable apprehension of bias. At the hearing before the Complaints Committee, Dr. Spodek essentially raised three issues that he required the Committee to inquire into: (i) Dr. Fortsas stole money from Dr. Spodek when they worked together (ii) Dr. Fortsas breached the terms of a verbal associateship agreement with Dr. Spodek when he practised across the street, and (iii) Fortsas solicited Spodek’s patients after he left.

2The Complaints Committee afforded Dr. Spodek the opportunity to respond to Dr. Fortsas’s response to his complaint and to present any evidence he considered appropriate. The investigation is detailed in the Board’s reasons. We find no error in the Board’s finding that in all of the circumstances, the Committee’s investigation is adequate.

3As to the reasonableness of the decision, the Board, in careful reasons reviewed the record before the Complaints Committee in respect of all three allegations and concluded in each instance that the Committee’s decision to take no further action was reasonable.

4In our view, their decision was not only reasonable, it was correct. None of the complaints raised had anything to do with patient care. All related to the business dispute between Dr. Spodek and Fortsas many years ago. Criminal charges were withdrawn by the Crown Attorney. Dr. Fortsas denied the existence of any verbal associateship agreement and the evidence disclosed that Dr. Fortsas did not solicit Dr. Spodek’s patients after he left.

5In our view, the only reasonable conclusion the Complaints Committee could make was to proceed no further. These were not matters relating to the competence of Dr. Fortsas or patient care. If Dr. Spodek wanted to pursue Dr. Fortsas, he should do so in the civil courts. The discipline process is no place to resolve commercial disputes.

6As to bias and reasonable apprehension of bias, there is simply no basis in the record to support this ground. Dr. Spodek did not comply with the order of this Court made February 9, 1995. The record demonstrates that the College did not pursue Dr. Spodek at the time because it was of the belief that he was out of the jurisdiction. Only when he complained about Dr. Fortsas in January, 1999, did it become aware of his presence in the jurisdiction and Dr. Spodek himself concedes he was out of dentistry for some time. In our view, there is no evidence of bias.

7Next, Dr. Spodek suggests bias by reason of the College’s investigation of him under s.75. In March, 2000, the College received information which caused the Registrar to determine that he had reasonable and probable grounds to conduct an investigation of Dr. Spodek’s practice and with the required approval of the Executive Committee an investigation under s.75 of the Health Professions Procedural Code was undertaken. In our view, the College’s actions were entirely reasonable and in compliance with its statutory obligations.

8The last ground relied upon by the applicant is that bias is demonstrated by the College and Board resisting his application before this Court. Were there any merit to this argument, all applications would proceed before this Court unopposed.

9The non-disclosure issue raised in the factum, but not argued before us is without merit. Paragraph 41 of the factum, submitted on behalf of the College answers this ground entirely. The application is dismissed.

10The application record will read as follows: “For oral reasons given this day the application is dismissed. Costs to the College fixed in the sum of $3,000.00. We are not prepared to award costs to the Board which is a public body particularly so, where as here, all issues were fully canvassed by the College.”

MACFARLAND J.

WILSON J.

SWINTON J.

Date of Reasons for Judgment: April 2, 2004

Date of Release: April 15, 2004

COURT FILE NO.: 770/2001

DATE: 20040402

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT