Ontario Superior Court of Justice – Divisional Court

Bygrave v. Royal College of Dental Surgeons of Ontario

Date: 2006-10-16

Charles Roach, for the appellant;

Marie Henein, for the respondent.

(464/04)

Métivier, R.S.J.: Dr. Maurice Bygrave appeals the decision made by the Discipline Committee of The Royal College of Dental Surgeons of Ontario (the College) on September 22, 2003, and the Final Penalty Decision dated July 15, 2004.

The Discipline Committee found that Dr. Bygrave committed acts of professional misconduct.

The penalties imposed included a three-month suspension, terms and conditions related to the practice of orthodontics and costs in the amount of $10,000.

The hearing which made these determinations began on February 27, 2002 and continued over the course of 13 days. It was based on 2 Notices of Hearing: one relating to the orthodontic treatment of a patient named K.A. (Notice # 1 ) and the other relating to the record keeping for 6 other orthodontic patients (Notice #2).

ISSUES

The issues raised by the appellant are:

(a) the bias or apprehension of bias on the part of one of the panel members at the Hearing;

(b) an earlier Undertaking given by the Appellant related to a complaint by a previous patient Ms. G. and whether this acts as Issue Estoppel or Res Judicata;

(c) the inappropriate use of expert or opinion evidence from Dr. Chou, one of the witnesses at the Hearing;

(d) the non-production by the College of the orthodontic appliance prescribed and made by the Appellant for, and used by, Ms. K.A. and non-disclosure of records relating to orthodontic treatment she received some 6 years before she began treatment with Dr. Bygrave;

(e) the finding of lack of informed consent of Ms. K.A.;

(f) the appropriateness of the Penalty; and

(g) the imposition of an interim suspension.

THE LEGISLATIVE FRAMEWORK

The Court's jurisdiction is set out in s. 70 of the Health Professions Procedural Code ("the Code"), being Sched. 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 ("RHPA"), reads:

"Appeals from decisions

"70(1) A party to proceedings before the Board concerning a registration hearing or review or to proceedings before a panel of the Discipline or Fitness to Practise Committee, other than a hearing of an application under subsection 72(1), may appeal from the decision of the Board or panel to the Divisional Court.

"Basis of appeal

"70(2) An appeal under subsection (1) may be made on question of law or fact or both.

"Court's powers

"70(3) In an appeal under subsection (1), the Court has all the powers of the panel that dealt with the matter and, in an appeal from the Board, the Court also has all the powers of the Board."

The relevant legislation authorizes an investigation of a dentist's practice in certain cases. Section 75 of the Code, being Sched. 2 of the RHPA provides as follows:

"Investigators

"75. The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Executive Committee approves of the appointment;

(b) the Executive Committee has received a report from the Quality Assurance Committee with respect to the member and has requested the Registrar to conduct an investigation; or

(c) the Complaints Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation."

FACTS

Dr. Bygrave is a general dentist who also provides orthodontic treatment to some of his patients.

Ms. K.A. had begun to see Dr. Bygrave in 1995 when she was 26 years old, requesting corrections to the protrusive appearance of her teeth.

The patient had advised him that she did not want any extractions. Dr. Bygrave began to treat her after a cursory examination of approximately 20 minutes. He treated her for some 3 years. She then advised that she was not satisfied with the results, and according to Ms. K.A., Dr. Bygrave advised her that she would need to have 4 teeth extracted. She attended at another dentist, Dr. Searles, for these extractions.

Dr. Bygrave later disputed the fact that he had recommended extractions. His evidence was that these were done without his knowledge and without consultation with him. He testified that he had a 20 year working relationship with Dr. Searles and this was the first time that a patient of his had had extractions without the 2 dentists speaking to one another or his providing a prescription. Despite this fact, there were no notes in his records relating to these extractions.

Approximately 9 months after the extractions, Dr. Bygrave prescribed an appliance for Ms. K.A. that was to reposition her lower jaw by moving it forward.

Some 4 years after treatment started, Dr. Bygrave advised the patient of the need for repair to one tooth. Dr. Smith, the dentist who did the repair, also conducted a comprehensive examination, and became so concerned as to the state of Ms. K.A.'s tooth health that she recommended an immediately consultation with a licensed orthodontist.

Ms. K.A. then saw Dr. Chou, a licensed orthodontist who had been in practice for 25 years. Dr. Chou performed a comprehensive examination and numerous diagnostic tests and measurements. She found several serious problems, including root resorption on 11 teeth. While there were a variety of factors that could cause such resorption, x-rays from 1993 showed that Ms. K.A. had a normal bone level and normal roots at that time. Dr. Chou found the degree of difficulty of the K.A. case to be a significant one, warranting a rating of 7 on a scale of 1 to 10.

Dr. Chou testified that the protrusion complained of had not improved as a result of the treatment by Dr. Bygrave and may actually have increased by approximately a millimeter.

Ms. K.A. filed a complaint with the College in late August or early September 1999.

Dr. Bygrave and The College

In 1997, the College had received a complaint about Dr. Bygrave from another patient, Ms. G. This complaint had triggered a s. 75(c) investigation. The investigator, Dr. Patricia Abbey, had reviewed 25 patient charts and found numerous deficiencies in the appellant's record keeping skills. The focus was not on his orthodontic abilities. The Complaints Committee, on that occasion, permitted Dr. Bygrave to enter into a voluntary Undertaking, by which he was to take courses in oral diagnosis, treatment planning and record keeping, oral radiology, focusing on processing techniques and an oral surgery update. That Undertaking was dated November 12, 1998. His practice was to be monitored for 12 months by Dr. Waschuk, following his successful completion of the courses. By June 28, 2001, after numerous delays, Dr. Bygrave had completed the courses and the monitoring arising from this complaint was terminated.

In the fall of 1999, while this monitoring was still ongoing, Ms. K.A.'s complaint was filed. A Notice of Hearing #1, dated November 21, 2000, was issued.

Subsequently, because of concerns over Dr. Bygrave's competence in orthodontia and no concern that the problems alleged in the K.A.'s complaint might be found to be more pervasive in the Appellant's practice, the Registrar asked for approval to appoint an investigator to look into Dr. Bygrave's orthodontic practice, again pursuant to s. 75 of the legislation but this time under subsection (a). Unlike subsection (c), subsection (a) speaks to an investigation where there are "reasonable and probable grounds" as to "professional misconduct or incompetence". It does not relate to a complaint from a patient.

The Executive Committee approved this latter investigation on November 15, 2000. Dr. Abbey was again appointed to investigate specifically the orthodontic treatment provided by Dr. Bygraves. Dr. Abbey reviewed the files and records of 6 orthodontic patients.

As a result of that investigation, the Notice of Hearing #2, dated May 28, 2001, was issued.

The Hearing

On consent, the Notices were dealt with together. A first hearing was aborted due to a conflict involving one of the panel members. The hearing whose results are now being appealed was the one that began on February 27, 2002 as noted above.

At the hearing, Dr. Tompson, the head of the orthodontics department at the Faculty of Dentistry at the University of Toronto, gave expert evidence that Ms. K.A.'s treatment required first, a thorough examination and dental history together with a series of x-rays and oral photographs. His evidence was that Dr. Bygrave's records at the outset of treatment were wholly inadequate and fell below the standard of practice. He stated that Dr. Bygrave had never taken appropriate steps to diagnose Ms. K.A.'s problem nor to plan her treatment appropriately, nor to document any treatment, other than in the most cursory fashion.

With respect to the 4 teeth extractions, it was noted by Dr. Tompson that at no time, before or after these extractions, had Dr. Bygrave warned of any risks arising from these.

With respect to the appliance prescribed for Ms. K.A. 9 months after the extractions, the evidence of Dr. Tompson was categorical that no functional appliance could have any treatment value in a non-growing patient. Further, Dr. Tompson's view was that the patient's goals should have been met in 12 to 16 months or, if extractions were involved, 24 to 30 months. By the time the treatment ended, it had been ongoing for 4 years.

The Panel concluded that all of the allegations had been substantiated on the evidence. With respect to the first Notice of Hearing, the Panel found that Dr. Bygrave had:

• Failed to maintain the standard of practice;

• Provided treatment beyond his expertise;

• Failed to obtain informed consent;

• Maintained sub-standard record keeping; and

• Conducted himself unprofessionally.

With respect to the second Notice of Hearing, the Panel found that Dr. Bygrave had:

• Failed to maintain the standard of practice; and

• Engaged in deficient record-keeping.

STANDARD OF REVIEW

The issues raised by the Appellant pertain to natural justice and procedural fairness matters the court is obliged to enforce. (Gale v. College of Physicians and Surgeons (Ont.), 2003 30486 (ON SCDC), [2003] O.J. No. 3948; 178 O.A.C. 88 (Div. Ct.)). Where a tribunal is said to have failed to act in accordance with natural justice, the court does not need to engage in an assessment of the appropriate standard of review. Rather, it can go directly to the question of fairness. The court will assess the specific circumstances, and determine what safeguards are required to comply with the requirement for procedural fairness. (London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859; 176 O.A.C. 120 (C.A.), at para. 10)

ANALYSIS

Issue a) - Apprehension of Bias

At the outset of the Discipline Hearing, the Appellant brought a motion asking that Dr. Virginia Luks, a member of the Discipline Committee Panel, recuse herself from the proceedings based on a reasonable apprehension of bias. That allegation arose out of the fact that Dr. Virginia Luks was the daughter and business partner of another dentist who was on the Executive Committee, Dr. Eric Luks.

The Panel dismissed that motion.

Were they wrong to do so?

The five member Executive Committee on which the father sat had approved the appointment of an investigator. The report of that investigator had led to the hearing. The daughter was on the Panel that was to decide the outcome of the hearing into allegations of misconduct or incompetence against Dr. Bygrave.

The Appellant submits that the filial relationship of Dr. Virginia Luks to Dr. Eric Luks raises a reasonable apprehension of bias due to the proximity of the relationship, the fact that the father and daughter practise their profession together, and the fact that Dr. Eric Luks made the decision to order the second s. 75 investigation and the follow up decision to send the matter on to the Discipline Panel for a hearing.

While courts, including administrative tribunals, are wary of relationships between litigants and their judges or adjudicators, the Supreme Court of Canada, in Wewayakum Indian Band v. Canada and Wewayakai Indian Band, 2003 SCC 45, [2003] 2 S.C.R. 259; 309 N.R. 201, at para. 77, stated that there is no automatic rule of disqualification.

"Second, this is an inquiry that remains highly fact-specific. In Man O'War Station Ltd. v. Auckland City Council (Judgment No. 1), [2002] 3 N.Z.L.R. 577; [2002] UKPC 28, at para. 11, Lord Steyn stated that 'This is a corner of the law in which the context, and the particular circumstances, are of supreme importance.' As a result, it cannot be addressed through peremptory rules, and contrary to what was submitted during oral argument, there are no 'textbook' instances. Whether the facts, as established, point to financial or personal interest of the decisionmaker; present or past link with a party, counsel or judge; earlier participation or knowledge of the litigation; or expression of views and activities, they must be addressed carefully in light of the entire context. There are no shortcuts."

The ruling of the Discipline Panel on this issue applied the test articulated by the Supreme Court of Canada in Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., 1976 2 (SCC), [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, Laskin, C.J.C., stated at paragraph 64:

"[The] test is 'what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that the board member, whether consciously or unconsciously, would not decide fairly?'"

The ruling stated that the Panel was satisfied that Dr. Virginia Luks had not discussed the substance of the case with her father. In her submissions, counsel for the College pointed out that there were as well some practical problems with replacing Dr. Virginia Luks, since there had been several complaints against Dr. Bygrave, and various members of the Discipline Committee were "conflicted out". This constitution of the Panel was the second attempt to do so as the first attempt at a hearing had revealed a conflict with another of the Panel members, and therefore, according to the College, she was really the only available choice.

Counsel for Dr. Bygrave, however, submitted that the College could have used members from other committees to form the Panel. No reference was made to the support for this proposition.

I accept the submission of counsel for Dr. Bygrave that the concern is about the appearance of bias, and even if the adjudicator is impartial, it is the impression given to other people that counts.

While many of the cases the College cited, including the recent Ontario Court of Appeal decision in R. v. S.S., [2005] O.J. No. 326; 2005 6044 (ON CA), 193 O.A.C. 326 (C.A.), refer to the fact that judges routinely disabuse their minds of potentially prejudicial information and that thus the threshold is high for demonstrating a reasonable apprehension of bias, the same does not apply to an adjudicative body made up of non-judges and even non-lawyers. The threshold can be said to be lower in such cases.

The Li v. College of Physicians and Surgeons (Ont.), [2004] O.J. No. 4032; 2004 32260 (ON SCDC), 190 O.A.C. 346 (Div. Ct.), case involved a person who had testified as a fact and an expert witness, and who was then appointed to the Discipline Committee before a decision was rendered in the matter on which that doctor had testified. The decision was quashed on the basis that the presence on the Committee of a witness from the hearing could have affected how the committee members viewed that evidence.

In Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.), the chairman of a rent assessment committee resided with his father in a flat owned by the same owner as was before the committee. He had already advised his father and other tenants with respect to their rents and the landlords objected to him on the basis of apprehension of bias. The landlords were successful in their allegation of bias.

These cases involve far different factual considerations, the substance and tenour of which do not apply here.

First, Dr. Eric Luks did not "make the decision" as was submitted, but was merely one of five members who did so. The daughter was one of a Panel of three people (and not the chair) who heard all the evidence. In all of the circumstances here present, the fact that a father and a daughter serve on different committees of the College and practise together is not sufficient to raise a reasonable apprehension of bias and does not offend the rules of natural justice and procedural fairness.

The application of the test in Committee for Justice and Liberty v. National Energy Board, supra, would lead to the conclusion that informed persons "… would not think that the Panel here had not decided fairly".

The decision of the Panel on this point is not in error. The appeal fails on this ground.

Issue b) - Res Judicata or Issue Estoppel

The Appellant contends that he was placed in an unfair "double jeopardy" by virtue of the second Notice of Hearing. His counsel submits that, after the first investigation, arising out of the 1997 complaint, Dr. Bygrave was being monitored until June 2001 by Dr. Waschuk. The six orthodontic cases selected for the second investigation all existed during this period of monitoring.

Therefore, the Appellant says, since the "G." complaint was settled by way of an Undertaking this prevents the College from initiating any further review.

The Appellant submits that at least one of the files reviewed by Dr. Waschuk as a result of the Undertaking, dealt with an orthodontic case. Therefore the matter of his record keeping of orthodontic patients had been dealt with earlier and settled by the Undertaking.

Dr. Bygrave's counsel submits that as a result, the Appellant was "unjustly subjected to multiple Decisions and Penalty Orders of the College on the same issues".

It is then submitted that the College should be estopped from any adjudication of any issues or causes of action that were dealt with and resolved by the initial (1998) s. 75(c) investigation and the Undertaking/Agreement that followed. It is submitted that the College's prosecution and penalties have subjected Dr. Bygrave to a form of double jeopardy that is contrary to Canadian law and principles of natural justice.

The 1998 Undertaking explicitly provided:

"And WHEREAS the panel may take such action as it is entitled to take pursuant to subsection 26(2) of the Health Professions Procedural Code of the Dentistry Act, 1991, S.O. 1991, c. 24…"

also

"IT IS UNDERSTOOD AND AGREED that the representative(s) of the College conducting the inspections referred to above shall report the results of those inspections to the Executive Committee of the College and the Executive Committee may, if deemed warranted, take such action as it considers appropriate."

The College submits that the fact that Dr. Bygrave agreed to take courses and have inspections provides him with no immunity from discipline. A dentist always has to abide by the standards required.

Further, it submits, the Undertaking/Agreement was merely an opportunity for Dr. Bygrave to avoid adjudication - it was not a "decision" and therefore cannot found a claim for res judicata or issue estoppel or double jeopardy.

The decision of the Discipline Panel sets out:

"Dr. Bygrave's counsel raised the doctrines of issue estoppel, res judicata or double jeopardy in response to the allegation on the basis that Dr. Bygrave had entered into the Undertaking with the College concerning record-keeping relating to other patients. However, after carefully considering the evidence filed, the testimony given, as well as the submissions by counsel and the legal authorities to which they made reference, the panel concluded that these doctrines are not applicable in this case. The Undertaking signed by Dr. Bygrave in November 1998 pertained to an entirely different case and different circumstances from the case that resulted in two Notices of Hearing before this Panel. There was no overlap. Furthermore, the undertaking was a voluntary action by Dr. Bygrave. It was not a judicial or quasi-judicial determination. Furthermore, the Undertaking could not and did not preclude the College from the fulfillment of its legislative mandate to protect the public interest through the investigation of any subsequent complaints."

In the text by Richard Steinecke, A Complete Guide the RHPA (Aurora: Canada Law Book, 2005), at s. 6.1830, the following deals with "Issues previously determined by the College":

"Before the courts, a person cannot be tried for the same matter twice at the insistence of the same person if a final decision was made the first time. This would be unfair to the accused and creates the danger that the case will never end. This principle applies in disciplinary contexts as well, and generally means that the college cannot prosecute a practitioner twice for the same allegations. In order for the principle to apply, however, the following four criteria must be met:

(1) There must be a quasi-judicial decision made by a tribunal (e.g., a ruling by the discipline committee).

(2) The decision must be final in nature (a decision, for example, by the complaints committee that the allegations do not warrant a hearing probably does not prevent the college from proceeding on those same allegations later if new evidence aries).

(3) The allegations in the second case must be the same (e.g., the same events involving the same patients). The allegations must truly be the same for the college to be prevented from proceeding against the practitioner. The college has a continuing duty to regulate its members if similar, but not identical, complaints arise in the future. Allegations of similar substandard conduct but involving different patients are not the same.

(4) The parties must be the same."

A review of the evidence shows that on a factual basis, the Undertaking was the result of the "G." complaint and the 75(c) investigation conducted in 1998. The two Notices of Hearing arose as the result of the "K.A." complaint and the 75(a) investigation with respect to orthodontic record-keeping and the orthodontic skills of Dr. Bygrave. It is clear that this second investigation was quite different from the "G." investigation triggered and arising specifically and directly from a particular patient's treatment. The "K.A." complaint was of course that of a different patient.

In conclusion, the parties were not the same in that the complainants in each case were different; there had been no "decision" in respect of the "G." complaint; and it is apparent that no "Undertaking" can suspend the supervisory role of the College or render Dr. Bygrave immune from further proceedings.

I find no error in the decision of the Panel and the appeal fails on this ground.

Issue c) Was Dr. Chou's evidence used inappropriately?

The Appellant objects to the use of Dr. Chou as an "expert" witness. This is the dentist who treated Ms. K.A. as soon as she left the care of Dr. Bygrave.

The Appellant submits that the Discipline Panel misdirected itself in arriving at its decision by using expert opinion testimony of Dr. Chou when Dr. Chou was presented as a fact witness.

He further submits that he had no opportunity to examine her with respect to her qualifications to give expert evidence although there is no evidence that he sought to do so.

Dr. Chou's evidence appears to have been focused largely as to what she found and observed in Ms. K.A. and on her treatment of the patient with the required attention to her orthodontic history. She did proffer some evidence that may be classified as "opinion". She was of the view that an appliance such as was used by Dr. Bygrave would not have helped the patient. She also gave her opinion as to how she would rate the K.A. case on a scale of severity.

Counsel for the Appellant did have the opportunity to cross-examine the doctor fully.

It is my view that such statements, although technically "opinion" are found on a continuum from fact to opinion and are closer to fact.

The evidence of Dr. Chou was appropriately considered by the Discipline Panel having regard to the fact that Dr. Chou was able to examine the state of Ms. K. A.'s teeth at the precise time when she ceased treatment with the Appellant. The Panel gave the evidence appropriate consideration in 2 pages over the course of a 29-page judgment. It was entitled to accord whatever weight to the evidence that was felt to be appropriate. This was solely within its purview.

Finally, the Appellant failed to object to the scope of Dr. Chou's testimony at the hearing and has not pointed to any inappropriate consideration of the evidence.

While the Appellant did not deal with this issue in his argument, my analysis demonstrates it is without merit. The use of Dr. Chou's evidence was reasonable in the circumstances.

The appeal fails on this ground.

Issue d) Non Production of Appliance & Records

The Appellant submits that there was error by the Panel in its refusal to order the disclosure of Ms. K.A.'s records of previous orthodontic treatment.

The evidence at the hearing was that the patient could not locate the dentist in question despite going to the address where she had the previous treatment some 10 years earlier.

There was no evidence as to how this lack of information prejudiced Dr. Bygrave.

The Discipline Panel made no error in deciding this issue was irrelevant. The decision was reasonable and they were entitled to make it on the evidence.

The Appellant further submits that the functional appliance which he himself prescribed for and which was used by, Ms. K.A., should have been made available at the hearing, particularly for the purpose of the cross-examination of Dr. Tompson who opined as to its lack of usefulness without ever having seen it.

Counsel for Dr. Bygrave relies on a series of criminal cases on disclosure which do not apply in these circumstances.

The Appellant had designed the appliance and would have been in a position to describe or present a similar model to the Discipline Panel or to Dr. Tompson. He did not do so.

These two complaints of non-disclosure raise no meritorious ground of appeal.

Issue e) Informed Consent

The issue of informed consent arises as another ground of appeal, although it was not argued.

The Appellant submits that the Panel was in error in finding that there was no informed consent. Dr. Bygrave's testimony at the hearing was that such consent could be implied by Ms. Adams attending at his office and further that he had her mother's consent. Since the patient was twenty-six at the time, her own consent would have been required.

There was ample evidence to support the Panel's finding.

This ground of appeal has no merit.

Issue f) The Appropriateness of the Penalty

The Appellant then raises the question of whether the penalty was just in the circumstances of this case.

The Penalty imposed included:

(a) a reprimand;

(b) suspension for a period of 3 consecutive months;

(c) other terms, conditions and limitations including successful completion of a number of courses covering certain enumerated subjects together with proof of their completion; a restriction on performing orthodontics; and

(d) ongoing monitoring for twenty-four months following the successful completion of each of the two groups of courses, together with a payment of $600 for each visit of inspection, with a maximum of $2,400 for each group.

Dr. Bygrave submits that this penalty is oppressive. His counsel, while admitting that a just penalty would embody the protection of the public, argues that the College could have used the powers it had pursuant to the Undertaking to address its concerns about him.

He also points out that "the College had already discharged its duty of protection of the public in contemporaneous decisions". In particular, counsel referred to the disposition of the case of Bygrave-Panowski where Dr. Bygrave was "cautioned" after an investigation into a complaint received in 2002. The Panel of that Complaints Committee considered Dr. Bygrave's information as to courses he had taken while under supervision by the Royal College of Dental Surgeons of Ontario:

"As the treatment occurred over ten years ago, the panel requested additional information from Dr. Bygrave in terms of his recordkeeping. Dr. Bygrave provided the panel with information that he has taken a five-day course in oral diagnosis and recordkeeping given by the University of Toronto in 1999. In addition, Dr. Bygrave had his practice monitored by the RCDSO from June 2000 to June 2001, focusing on recordkeeping, diagnosis and treatment planning. As such, the panel feels that their concerns over Dr. Bygrave's records have been satisfied.

"With respect to Dr. Bygrave's orthodontic skills, the panel noted that the treatment was done eleven years ago and that Dr. Bygrave's skills may have improved since that time. The panel requested that Dr. Bygrave provide an outline of his continuing education and a description of his present orthodontic treatment. After examining the documentation provided, the panel agreed that Dr. Bygrave has taken continuing education in the area of orthodontics and that he has improved his orthodontic treatment planning, recordkeeping and techniques since the time of Dr. Panovski's treatment. The panel is satisfied that Dr. Bygrave is no longer practicing orthodontics in the manner he did eleven years ago."

Dr. Bygrave submitted that the penalty on this occasion should be in keeping with previous penalties such as described above.

I do not consider past penalties for different complaints to be of significant relevance. The concern of the College was for any ongoing risk that the dentist might pose to his patients if his skills or practice did not improve.

The College's decision to continue with its duty to protect the public was reasonable in these circumstances.

In the Divisional Court decision in Schulman v. College of Physicians and Surgeons (Ont.) (1980), 1980 1700 (ON SC), 29 O.R.(2d) 40 (Div. Ct.), the court stated:

"Discipline committees, which deal with standards of conduct on a regular basis, are in a better position than Courts generally, to assess the impact and consequences of professional misconduct. In my view, the decisions and penalties of professional discipline committees ought not to be lightly interfered with: see Re Isabey and College of Physicians & Surgeons of Manitoba (1975), 1975 1139 (MB QB), 56 D.L.R.(3d) 156, and Re Milstein and Ontario College of Pharmacy et al. (No. 2) (1976), 1976 858 (ON SC), 13 O.R.(2d) 700; 72 D.L.R.(3d) 202 (Div. Ct.), per Cory, J., at p. 708 O.R., p. 210 D.L.R. [varied 1978 1294 (ON CA), 20 O.R.(2d) 283; D.L.R.(3d) 392]."

The Ontario Court of Appeal in Milstein and Ontario College of Pharmacy et al. (No. 2), Re, (1976), 1976 858 (ON SC), 13 O.R.(2d) 700 (H.C.), varied (1978), 1978 1294 (ON CA), 20 O.R.(2d) 283 (C.A.), dealt with a penalty (the cancellation of a pharmacist's license) that that court and the Divisional Court below, considered as one of "excessive severity, having regard to all the reported penalties imposed upon professional persons in similar and even worse circumstances".

The words of the Decision in the case at bar are important. In considering the appropriate penalty, the Discipline Panel stated as follows:

"The nature of professional misconduct as found is, of course, a critical factor in determining what penalty order is appropriate. In this respect, the panel has had regard to all of the circumstances of this case. The panel considers that the misconduct as found is of a serious nature, albeit not in the category of conduct involving calculated, intentional wrongdoing such as fraud or sexual abuse. Dr. Bygrave himself accepts in his written submissions that the findings of misconduct are 'on the face serious when one considers them cumulatively'. It is clear to the panel that Dr. Bygrave embarked on treating complex orthodontic issues when he knew or should have known that they were beyond his skill level. His diagnostic procedures employed were entirely inadequate. He failed to fully explain what he was undertaking to the patient and obtain informed consent, and failed to develop, or in the very least document, his treatment objectives and treatment plan. Thereafter, he failed to adequately record the progress of the treatment. His response to developments in the course of treatment simply underlined his lack of expertise in the area. The orthodontic outcome, at least in the case of Ms. Adams, was undoubtedly the result of the combined effect of these deficiencies."

The Discipline Panel's findings of professional misconduct related to a prolonged and persistent course of conduct in respect of both Ms. K.A. and in the record keeping of six orthodontic patients. The facts as found by the Discipline Panel did not relate to an isolated incident or single lapse in professional judgment. Rather, the facts established that the Appellant suffered from grave deficiencies in respect of his orthodontic knowledge. Throughout the hearing, the Appellant resolutely maintained that his diagnostic skills were appropriate, his treatment plan for Ms. Adams was correct and that his records, although deficient, did not have any impact on his ability to properly diagnose and treat orthodontic patients. This was clearly in stark contradiction to the evidence of both Dr. Chou and Dr. Thompson, which was accepted by the Panel.

The Discipline Panel considered the objectives of a penalty as follows:

"In determining an appropriate penalty order, the panel had regard to the important objectives of public protection, general deterrence, specific deterrence, and the rehabilitation (or remediation) of the member. The panel was also conscious of the need to uphold the reputation of the profession; an appropriate penalty order must communicate to the public and other members of the profession that conduct of this nature is not appropriate and will not be tolerated. The panel's order ultimately must be one that is in the public interest.

"In this proceeding, the panel concluded that a moderate but meaningful suspension is required having regard to the objectives identified above and to all of the circumstances of the case. As well, the panel concluded that a primary objective of an appropriate penalty order must be to provide for the rehabilitation of the member through skills training, informative professional courses, and ultimately practice monitoring. Dr. Bygrave has the potential and desire to practice within the standards of the profession, and the panel's order should recognize this fact."

The penalty order is not unjust or oppressive. The penalty imposed was a result of more than a slip, it was in response to a long-standing practice of Dr. Bygrave to embark on cases he was not qualified to treat. The College submits and I agree, that the penalty is largely remedial, allowing Dr. Bygrave to improve his skills in orthodontics and provides for monitoring to deal with the "widespread deficiencies in Dr. Bygrave's diagnostics, record keeping and standards".

The conduct in issue needed to be corrected yet it had not been amenable to repeated recommendations, courses and monitoring. It was reasonable for the Panel to impose a penalty that in its view would be more effective.

It is unclear whether the Appellant was denied the opportunity to make submissions as to costs, or simply failed to anticipate that he should have done so at the hearing. The panel should have afforded the parties the opportunity to make costs submissions. However, before this Court there were no credible arguments that would suggest a cost order less than the one awarded.

I see no reason to interfere with the costs award.

In its totality the penalty imposed considered relevant matters, applied the proper objectives, revealed a proper exercise of discretion and was reasonable in the circumstances.

The appeal on this ground is therefore dismissed.

Issue g) Breach of natural Justice in the Imposition of the Interim Suspension

The Appellant argues that the Committee breached the requirements of natural justice by imposing restrictions on his practice without giving him an opportunity to be heard with respect to these issues.

On February 25, 2004 Dr. Bygrave attended at a long delayed Penalty Hearing without a lawyer and asked for a further adjournment. The College had been attempting to fix a hearing date since the release of their decision in September of 2003. The Discipline Panel permitted the adjournment but imposed an interim suspension. The interim suspension prohibited the Appellant from practising orthodontics, but was not to take effect for 30 days to allow the Appellant to transfer his patients. A penalty hearing was scheduled for May 18 and 19, 2003.

The interim order was almost immediately rescinded, on March 10, 2004. The Appellant suffered no prejudice as a result of the interim suspension. Since the matter was moot, it was not necessary to deal with it.

CONCLUSION

In summary, the whole of the appeal fails and it is dismissed.

The Respondent is to file written submissions on costs (not to exceed three pages in length) by October 25, 2006 and the Appellant within fourteen days thereafter.

Appeal dismissed.