Chuang v. Royal College of Dental Surgeons of Ontario, 2007 CanLII 14919 (ON SCDC)

COURT FILE NO: 472/06

DATE: 20070427

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GREER, LEDERMAN, & M.G.J. QUIGLEY, JJ.

DR. DAVID CHUANG, DMD

Applicant

• and -

ROYAL COLLEGE of DENTAL SURGEONS of ONTARIO

Respondent

Dr. David Chuang,

Self represented

Ian J. Roland & Robert A. Centa,

for the Respondent

HEARD at Toronto: April 3, 2007

REASONS FOR JUDGMENT

M.G.J. QUIGLEY J:

1On this application, Dr. David Chuang (“the Applicant”) seeks a number of orders against the Royal College of Dental Surgeons of Ontario (“the College”). These include orders abridging the time for filing and serving both this application for judicial review and his Notice of Appeal from an order of the Discipline Committee of the College (“Discipline Committee”) dated June 9, 2001, and orders setting aside both the interim suspension of his right to practice dentistry issued by the Executive Committee of the College on June 25, 2004, and the order of Justice Wilton-Siegel dated August 30, 2004. The Applicant also seeks numerous orders for disclosure of information, for the return to him of patient information and charts, and orders staying all complaints, investigations and hearings related to him.

2Most important to the Applicant, however, in addition to his request for judicial review by this panel of the June 25, 2004 suspension of his licence to practice dentistry, is his request for a permanent injunction precluding a number of people from having any further dealings with him, and for an order that the College pay punitive and exemplary damages for allegedly wrongful and illegal actions taken by the College against him.

3The Applicant’s principal claim before this court is that the Executive Committee denied natural justice to him in suspending his licence on June 25, 2004 and thereby exceeded its jurisdiction. Notwithstanding that his licence to practice dentistry has now been revoked with finality, he submits that a quashing of that 2004 suspension decision is the necessary first step on the long road back to his reinstatement as a licensed dental surgeon. The College submits, however, that the key issue before this Court is whether it should undertake any judicial review under the application brought by the Applicant having regard to the present circumstances and the background to this application.

Background

4Over the past six years there were two distinct sets of discipline hearings held by the College with respect to the Applicant’s conduct as a dentist and his misconduct now found to have taken place in his treatment of his patients. Originally, the Discipline Committee found that he had committed acts of professional misconduct and suspended his licence for one month. As well, they stipulated that he was to be monitored by a mentor for a period of time. Five years later, on November 20, 2006, Swinton J. dismissed the Applicant’s motion for leave to extend the time for filing an appeal of that discipline order.

5Meanwhile, in June of 2002, the Discipline Committee issued four separate notices of hearing charging the Applicant in respect of eighteen allegations of professional misconduct against four former patients. The second disciplinary hearing was held between June, 2003 and March of 2004. On April 5, 2004, the Discipline Committee found the Applicant guilty of 15 of the 18 alleged acts of professional misconduct. His certificate of registration as a practicing dental surgeon was revoked.

6The Applicant appealed that decision to this Court. On June 9, 2006, a different panel of this Court dismissed the Applicant’s appeal against the findings and penalty imposed by the second Discipline Committee. However, that panel of this Court reduced the costs that had been awarded against the Applicant from $250,000 to $200,000, but ordered that he pay $24,041 in costs and disbursements with respect to the appeal itself.

7While these proceedings were ongoing, in 2004 the College was undertaking further investigations with respect to the Applicant continuing in the practice of dentistry while under suspension, and his alleged repeated prescription of large amounts of narcotics and related drugs rarely used in dentistry, at least in the amounts he had prescribed. This gave rise to the June 2004 interim suspension of his licence by the Executive Committee of the College. The Executive Committee was clearly of the view that such an interim suspension was required respecting these most recent allegations, given that his appeals against the Discipline Committee’s earlier findings of misconduct and its licence revocation decision had stayed the revocation order while those appeals were pending.

8The Applicant sought leave to appeal the result of the second hearing of the Discipline Committee to the Court of Appeal of Ontario. On September 22, 2006, that leave to appeal application was dismissed with costs of $1,500 awarded to the College. On September 26, 2006, the Applicant filed an application for leave to appeal to the Supreme Court of Canada from the dismissal of his leave application to the Ontario Court of Appeal. The day after, he sought to stay the effect of the Ontario Court of Appeal’s order pending the result of his Supreme Court leave to appeal application. However, Justice Borins dismissed his stay application on September 28, 2006 and ordered costs against him of $1,500. The final act in this long procedural saga played out on February 15, 2007 when the Supreme Court of Canada dismissed the Applicant’s leave application. As a result of that dismissal, any stay of the College’s revocation of the Applicant’s right to practice dentistry was lifted. All appeals against the decision of the second Discipline Committee came to an end. The Applicant was no longer legally permitted to practise dentistry. It is important to recount this history since it is directly relevant to the entitlement of the Applicant to the relief he seeks from this Court.

9The Applicant asserts a conspiracy by the College to deprive him of his livelihood. He claims that the Honourable Patrick Galligan, a distinguished and highly respected former Justice of the Court of Appeal for Ontario, who participated in these hearings as counsel to the Discipline Committee, was biased, and that he participated in those hearings inappropriately, along with two other Discipline Committee members. The Applicant casts aspersions against the integrity and professional conduct of members of the Paliare Roland firm, who serve as counsel to the College, accusing them of unprofessional conduct and dishonesty. As well, the Applicant’s legal proceedings cast a wide net of allegations of conspiracy and innuendo of wrongdoing against a broad and diverse group of individuals involved in the regulation of the practice of dentistry in Ontario. However, there was no cogent or reliable evidence whatsoever before us to substantiate any of these accusations or claims against any of the individuals involved in these matters.

Analysis

10It goes without saying, but must here be said, that the exercise by this Court of its supervisory jurisdiction to judicially review proceedings of the Discipline Committee of the College and the decisions it reached is an entirely discretionary matter. While the Applicant does have the right under our law to seek judicial review, he does not have the right to require that this Court actually undertake judicial review of the impugned decisions of the Discipline Committee: see Jazairi v. Ontario (Human Rights Commission) (1999), 175 D.L.R. (4th) 302 (O.C.A.), citing Lamer C.J.C. in Canadian Pacific Ltd. v. Matsqui Indian Band (1995), 122 D.L.R. (4th) 129 (S.C.C.).

11There are several reasons why this Court ought to and does now decline to undertake judicial review of the June 25, 2004 proceedings and suspension of the Applicant’s registration by the Executive Committee of the College while his earlier revocation order was stayed pending appeal. The first and foremost reason is that even if this Court were to review the proceeding that gave rise to that interim suspension, and even in the event that it were to determine that that decision could not stand, it would still have no impact on the Applicant’s entitlement to practise dentistry. The Applicant’s licence was revoked and remains revoked to this day as a result of the second Discipline Committee hearings. The Applicant may only seek re-instatement of his licence to practise dentistry under the Regulated Health Professions Act, 1991 S.O. 1991, c.18, in compliance with the rules set out in s. 72 of that statute. That procedure stipulates that he could only apply for re-instatement at least one year after the last prior revocation or suspension of his practice entitlement, and it sets out the rules under which his application for re-instatement would be reviewed by the Discipline Committee of the College, or the Fitness to Practice Committee of the College. As such, there is no decision that this Court could make with respect to the June 2004 interim suspension that would affect, in any way, the reality that the Applicant may no longer practise dentistry by reason of the revocation of his registration. As such, the alleged impropriety of the interim suspension of the Applicant by the Executive Committee on June 25, 2004, and his request for judicial review of that determination, is an entirely moot question which this Court ought not to address: see Borowski v. Canada (Attorney General) (1989), 57 D.L.R. (4th) 231 at 239 (S.C.C.); Tamil v. Co-operative Homes Inc. v. Arulappah (2000), 192 D.L.R. (4th) 177 at paras. 13, 26 (Ont. C.A.).

12On the ground of mootness alone the application must necessarily fail, but even if the issues were not moot, I would observe that this Court has consistently upheld the deference that is due to administrative tribunals and in particular professional regulatory bodies rendering decisions within the scope of their expertise (See: Perelman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 at 888; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557 at 591; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Moreau-Bérubé v. New Brunswick Judicial Council, 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 50), and the special deference that must be shown to a Discipline Committee of a professional body which decides a question of penalty against one of its members: Re Takahashi and College of Physicians and Surgeons of Ontario (1979), 26 O.R. (2d) 353 (Div. Ct.). Even if we were to agree to review the actions of the College’s Executive Committee on judicial review, the standard of review established by the case law is reasonableness. There was no information in the record before us that has any reliable or cogent evidentiary foundation that would support either the conclusion that the College denied procedural fairness to the Applicant, or that its decision was unreasonable (See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).

13The other matters raised by the Applicant may be dealt with more quickly. With respect to his request for an order extending the time for serving and filing a Notice of Appeal from the order of the Discipline Committee dated June 9, 2001, no such relief ought to be granted insofar as Justice Swinton dismissed the Applicant’s motion for precisely that relief on November 20, 2006. With respect to the Applicant’s request for an order setting aside the order of Justice Wilton-Siegel dated August 30, 2004, which had ordered him to comply with the interim suspension of his certificate of registration by the College, no such order can be provided by this Court since Justice Spence dismissed the Applicant’s motion for precisely that relief on October 11, 2006. Next, the Applicant seeks an order requiring that the College disclose “ ‘the undated and unsigned’ letter from Dr. Brown”. No such order can be provided as the College attests to the fact that no such letter exists, and this Court accepts that evidence.

14The Applicant’s prayer for relief goes on to ask the Court to provide an order that the College provide disclosure to him relating to the allegations made by Lucy Farias against him. However, Ms. Farias’ allegations were part of the very hearing that led to the decision of the Discipline Committee to revoke the Applicant’s certificate of registration. The College asserts, and we accept, that the Applicant received full disclosure from it at that time, but in any event, that issue is also moot insofar as all of the Applicant’s appeals from that decision of the Discipline Committee have now, as previously noted, been fully, completely and finally exhausted.

15The Applicant seeks an order that the College return to him certain of his former patient files and charts. He alleges this information was obtained by the College as a result of an “illegal search warrant”, and asks this court to order that the College disgorge all information received regarding his former patients. However, the College indicated in affidavit evidence filed before the Court on the application that it had already returned copies of those seized documents to the Applicant, as it was required to do under the terms of the Regulated Health Professionals Act, and thus there is no further information retained by the College in respect of which a disgorgement order could arise. Moreover, the College observes that the Applicant could have no legitimate use at this time for any of those files given that his certificate of registration as a practising dentist has been revoked. Since he could have no legitimate use for any of those files there is no basis in fact or law for this Court to issue such an order. In any event, I accept the argument of counsel for the Respondent that the search warrant obtained by the College in order to permit it to obtain this information in connection with the second Discipline Committee hearing was legally and properly obtained at that time.

16There are two final matters in respect of which the Applicant seeks orders of this Court. Taking the last first, he seeks an order requiring the College to pay him compensatory, punitive and exemplary damages for public malfeasance, and wrongful and illegal actions. These, however, are not the only legal proceedings commenced by the Applicant. He has also commenced lawsuits against many of the officials involved from the College and other individuals. In the first of those lawsuits, seeking $75 million in damages from the College and its officials, Justice Sproat of this Court struck out the Applicant’s claim on February 12, 2007 without leave to amend. Justice Sproat concluded that the Applicant’s claim was vexatious and that was the foundation for his order. Interestingly, the Applicant did not see fit to attend before Justice Sproat that day. Further, the Applicant has now commenced a lawsuit in the amount of $110 million against many of the same defendants. If he seeks damages of the type he claims for public malfeasance, and wrongful and illegal actions, they ought to be claimed in connection with such civil proceedings, given that relief by way of an award of damages is not properly available on an application for judicial review.

17Finally, the Applicant seeks an order banning all College officials who have dealt with him at any time in the past from dealing with him in the future. At its simplest, however, this is nothing more than a request by the Applicant for an order of this Court effectively enjoining all officials and members of the Royal College of Dental Surgeons of Ontario from regulating their profession, as they are required to do by statute. Apart from the Applicant’s failure to meet the preconditions to the issuance of injunctive relief (see: R.J.R.-Macdonald Inc v. Canada (Attorney General), [1994] S.C.J. No.17; American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396), it is relief that this Court is not able to give not only because it is claimed against an unnamed class of persons, but indeed because any such order would effectively fly in the face of the specific statutory provisions of the Regulated Health Professions Act that require the College to regulate dental surgeons, including apparently ungovernable members, such as the Applicant.

18For all of the foregoing reasons, this application for judicial review must necessarily fail. In summary, the issues in question are either moot, or the relief sought is legally unobtainable. As previously noted, even if the issues in this matter were not moot, that is if the issue of the Applicant’s suspension by the Executive Committee is not rendered moot by the subsequent revocation of his licence, having regard to the deference which this Court ought to grant in favour of a Discipline Committee of a professional body, such as the Discipline Committee of the College, I would decline to interfere or to change in any way the result reached at the conclusion of that hearing. For the reasons indicated, all other claims for relief must also be dismissed.

19At the conclusion of the hearing, the parties were requested to send in submissions respecting costs. We have reviewed and considered those submissions carefully. As the Applicant has not been successful and the College has succeeded fully on this application, in our view the College is, or would be, entitled to be awarded costs on a substantial indemnity basis for a number of reasons. First, the Applicant seeks relief here that has already been denied to him by other Courts. Secondly, his complex, prolix and virtually indecipherable Amended Notice of Application added unnecessary complexity to the proceedings, raising issues relating to disciplinary and judicial proceedings extending back at least six years. Finally, as these reasons indicate, not only did the Applicant make unsubstantiated allegations of dishonesty and deceit against numerous public officials, but as well he sought relief that was simply unavailable or inappropriate, and that could only realistically be described as vexatious and an abuse of the Court’s process.

20Counsel for the College submitted a costs outline reflecting both partial indemnity costs and full indemnity costs. Given our view that at least substantial indemnity costs would be merited, and the fact that the full indemnity costs sought by the College amount to less than what the costs would be were we to fix them on a substantial indemnity basis, they shall have the full indemnity costs they seek in the amount of $31,761 for fees and disbursements, excluding GST, based on the costs outline of the Respondent.

M.G.J. QUIGLEY J.

GREER J.

LEDERMAN J.