Court File and Parties

COURT FILE NO.: 277/04

DATE: 2005/10/05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Between: Dr. Se Yong Yune v. The Royal College of Dental Surgeons of Ontario

Before: Aston S.J., Greer and Swinton JJ.

Counsel: David Harvey and Victoria Paris for the Appellant Dr. Yune Nick Coleman for the Respondent Royal College of Dental Surgeons

Heard: September 27, 2005

REASONS FOR DECISION

[1] Dr. Yune was facing five allegations of professional misconduct. He now appeals the decision of the Discipline Committee of the Royal College of Dental Surgeons May 10, 2004, denying his request for an adjournment of the hearing into those allegations.

[2] The allegations relate to complaints from an elderly patient stemming back to 1998 and 1999. The full particulars are set out in the Notice of Hearing dated July 15, 2002. The original pre-hearing conference in January 2003 was adjourned at the request of Dr. Yune. The hearing itself, originally scheduled for January 2004, was also adjourned at his request, albeit on consent and for the purpose of exploring a mediated resolution. Three days were then set aside for the hearing, starting May 10, 2004, peremptory as against Dr. Yune.

[3] At the eleventh hour, Dr. Yune sought a further adjournment based upon the unavailability of his expert witness and technical advisor, Dr. Clokie, and because it had become apparent that the hearing could not be completed in the allotted three days. When the adjournment request was refused, Dr. Yune’s counsel withdrew from the hearing on his client’s instructions. The hearing proceeded in the absence of Dr. Yune and his counsel. Reasons for the refusal of the adjournment were subsequently given as part of the decision on the merits of the case, June 23, 2004.

[4] The primary ground of appeal is that refusing the adjournment in the circumstances, and proceeding with the hearing prior to delivering reasons for that refusal, constitutes a denial of natural justice and procedural fairness.

[5] We begin by adopting the standard of review and statement of legal principles articulated by this court in Kalin v Ontario College of Teachers, 2005 18286 (ON SCDC), [2005] O.J. No. 2097, at paragraphs 9, 30 and 31 which read as follows:

Every tribunal is entitled to control its own procedure and will be accorded deference on matters requiring an exercise of discretion, such as matters of scheduling or adjournment requests. However, where there has been a breach of natural justice or procedural unfairness, it is not necessary to engage in an analysis of the appropriate standard of review. Decisions which do not comply with the rules of procedural fairness and natural justice cannot stand: Baker v. Canada (Ministry of Citizenship and Immigration) (1997), 1999 699 (SCC), 174 D.L.R. (4th) 193 (S.C.C.); Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419 (Div.Ct.).

Matters such as scheduling and deciding whether or not to grant an adjournment involve an exercise of discretion. Generally speaking, decisions made in the exercise of discretion are entitled to considerable deference, provided the discretion is exercised judicially and in accordance with principles of fairness and natural justice: Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560 at para 18; Baker, supra, at para 53.

A tribunal is entitled to control its own processes and is not obliged to grant an adjournment merely to accommodate the "convenience" of a party: Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 1669 (ON SC), 99 D.L.R. (3d) 165 (Ont.Div.Ct.). However, in exercising its discretion as to whether to grant an adjournment, a tribunal is not permitted to act arbitrarily. The tribunal may take into account the public interest and the interest of the tribunal itself in having matters move expeditiously. But, it must take into account all of the relevant factors, including the reasons for the request and the implications of not granting the request and whether the public interest may be adequately protected by alternate means: Re Flamboro Downs, supra; Richmond Square Development Corp. v. Middlesex Condominium Corp. No. 134 (1993), 1993 9380 (ON SCDC), 103 D.L.R. (4th) 437 (Div.Ct.); Kooner v. College of Physicians and Surgeons of Ontario, [2002] O.J. No. 5198 (Div.Ct.), aff'd [2003] O.J. No. 4233 (C.A.).

[6] The Discipline Committee considered Dr. Yune’s right to an opportunity to fully and fairly answer the allegations and present his case. It also considered, as it was entitled to do, such factors as the previous adjournments, other options for hearing the witnesses, and the need for an expeditious hearing in the public interest. Though it did not allude to the interest of the complainant, that too is a legitimate consideration.

[7] Dr. Clokie had known since February 2004, that May 10, 11 and 12 were the fixed days for the hearing. He had advised Dr. Yune’s counsel in February that he was unavailable on the Monday, May 10. At least 10 days before the start of the hearing Dr. Clokie had advised Dr. Yule’s counsel he was also unavailable on the Tuesday. On Friday May 7 he further advised that he could not be available May 12. Dr. Clokie was apparently “unavailable” because he chose to attend to other professional obligations as a priority. There is no evidence that his unavailability was due to circumstances beyond his own control. (See the letter dated May 7, 2004 at Tab 12 of the Exhibit Book.)

[8] There was an opportunity to explain why Dr. Hunter, Dr. Yune’s other expert witness, had not been contacted over the weekend of May 8 and 9, or the morning of May 10 for that matter, to ascertain his availability as a substitute for Dr. Clokie. No explanation was offered.

[9] The College provided full disclosure of its case, including expert reports and will-say statements of witnesses, well in advance of the hearing. Dr Yune, and any expert he wished to consult or retain, had months of time to be ready. His counsel of choice was available.

[10] At the time the adjournment was requested, it was apparent the hearing would not be completed in the three days that had been scheduled. Counsel for Dr. Yune submits that there was, therefore, no compelling reason not to adjourn the proceeding so that it could proceed uninterrupted at a later time. However, administrative tribunals routinely sit for only several days at a time with breaks between sittings. The fact that the hearing could not be completed in three days does not mean it should not have been started.

[11] In its reasons for the decision to deny the adjournment the Panel addressed, and seemed to approve, the idea that cross-examination of the College’s expert witnesses could be deferred until Dr. Yune’s expert(s) had had a chance to review a transcript of their examination-in-chief. The panel seems to have overlooked the fact that Mr. Coleman, on behalf of the College, joined Mr. Elliott in rejecting this method of proceeding. However, this oversight undermines only one of several solid reasons supporting the Panel’s conclusion. Furthermore, no submissions were made on this possible method of proceeding and the Panel did not decide to proceed in that manner, only indicating that it was a possibility to explore, if necessary.

[12] Dr. Yune was not denied procedural fairness when his adjournment request was refused, nor does the delay in giving reasons for that decision amount to a breach of natural justice or procedural unfairness in the particular circumstances of this case.

[13] The appellant also submits that the interventions by the Panel’s independent counsel, Mr. Pinelli, and the adjournment granted to the College the second day of the hearing, give rise to a reasonable apprehension of bias.

[14] Mr. Pinelli’s questions did not involve any substantive issue and were proper and neutral questions focused on the adjournment request. The adjournment was granted to the College May 11, 2004, because an expert witness scheduled for May 12 was not available a day earlier than planned. Given that the hearing proceeded more quickly than anticipated in Dr. Yune’s absence, the adjournment does not provide any evidence of bias or show that the Panel granted to the College an indulgence denied to Dr. Yune. Nor do the comments of the chair of the Panel suggest any reasonable apprehension of bias.

[15] The appeal is dismissed with costs, fixed at $12,500 inclusive of disbursements and G.S.T.

Aston S.J.

Greer J.

Swinton J.

Released: