CITATION: Clokie v. Royal College of Dental Surgeons (Ontario), 2016 ONSC 4164
DIVISIONAL COURT FILE NO.: 276/16
DATE: 20160622
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
DR. CAMERON CLOKIE
Moving Party/Appellant
– and –
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
Respondent
Ian Smith and Lynda Morgan, for the Moving party/ Appellant
Mark Sandler and Amanda Ross, for the Respondent
HEARD: June 15, 2016
M. DAMBROT J.:
[1] The appellant is a dental surgeon. On February 1, 2016, the Discipline Committee of the Royal College of Dental Surgeons of Ontario (the “committee”) found that the appellant had committed professional misconduct. Specifically it found that he committed the offence of sexual abuse of a patient and that he engaged in conduct or performed an act or acts that would reasonably be regarded as disgraceful, dishonourable, unprofessional and unethical in relation to that same patient.
[2] On June 8, 2016, the committee ordered the revocation of the appellant’s licence to practice dentistry effective June 18, 2016.
[3] The appellant has appealed both decisions to the Divisional Court, and brings this motion for a stay of the penalty pending the disposition of his appeal.
[4] The test for such a stay is well known. The moving party must satisfy the Court that:
there is a serious question to be determined;
irreparable harm will be suffered by the moving party if the stay is not granted; and
the balance of convenience favours a stay.
[5] I will consider each prong of the test in turn.
Serious Question
[6] I need say very little about the details of the misconduct found to have been committed. However it is necessary to know the following in order to assess the grounds of appeal.
[7] On October 26, 1993, RB was in a motor vehicle accident and sustained injuries to her face and jaw. She underwent two surgeries prior to consulting Dr. Clokie, but was unsatisfied. She moved to Sweden and was living and working there in 2006, in part to avoid encountering friends because of her appearance.
[8] Following her second surgery RB began searching for an oral maxillofacial surgeon who could perform a reversal surgery, and was referred to Dr. Clokie. She came to Toronto to see him.
[9] She consulted Dr. Clokie on September 7, 2006 at Mount Sinai Hospital. Dr. Clokie examined her, discussed surgery and proposed a plan. A second appointment took place on September 21, 2006. On that occasion Dr. Clokie removed a bone fragment or fragments from RB’s mouth with tweezers, and they discussed removal of a chin implant. I will not recite the considerable body of evidence entirely aside from the evidence of RB suggesting that a doctor-patient relationship had been formed during this period.
[10] RB was “back and forth” between Sweden and Canada at this time. She was in the process of returning to Canada. Following the second appointment, a series of emails were exchanged between the appellant and RB to arrange for them to meet in Sweden.
[11] On October 14, 2006 the appellant met RB. They had dinner, saw a movie and ultimately had sexual intercourse in his hotel room.
[12] Following this encounter, the appellant exchanged emails about both her treatment and their relationship. They also saw each other when she was in Canada.
[13] On March 23, 2007, the appellant removed RB’s chin implant. On March 30, 2007, RB attended at the appellant’s office for a post-surgical appointment.
[14] I will not outline the various encounters RB said she had with the appellant during March and April 2007 that were both professional and sexual. She was not challenged on most of this evidence in cross-examination. However I will note that RB testified that they had sexual intercourse for a second time sometime around April 25, 2007. The panel was unable to find that this event occurred as described.
[15] During the College’s investigation, the appellant presented the College with an affidavit from an employee who falsely claimed that she had authored the emails, and gave an elaborate explanation for doing so. In the appellant’s letter accompanying that affidavit, he denied authoring these emails and texts, and denied having sexual relations with RB. The appellant also represented to the College that RB had confessed to another doctor that she had never had sexual relations with him. By the time of the hearing, it was clear that affidavit was demonstrably false. As a result, the appellant admitted that the texts and emails were his and did not dispute that he had had sexual intercourse with RB.
[16] These texts and emails demonstrate beyond any doubt that the appellant made repeated sexual remarks to RB while they were unquestionably in a doctor-patient relationship during the period from October 14, 2006 to April 28, 2009.
[17] On his appeal, the appellant will argue that:
the committee erred in finding that a doctor-patient relationship existed between him and RB on October 14, 2006, when he had sexual intercourse with RB;
the committee erred in assessing RB’s credibility;
the committee erred in finding that RB’s testimony was corroborated;
the committee erred in its analysis of evidence relevant to consciousness of guilt;
the committee erred in finding that it was required to resolve a credibility contest;
the committee erred in finding that the appellant had engaged in deceitful and dishonourable conduct that did not form part of the allegations against him in the notice of hearing;
the reasons of the committee failed to adequately explain the basis on which the decision was made, and constitutes a decision that falls outside the range of possible, acceptable outcomes;
the committee erred in finding that the mandatory revocation provisions of the Health Procedure Code do not violate ss. 7 and 12 of the Charter; and
the penalty was inappropriate.
[18] In my view, the appellant is most unlikely to be successful on this appeal. Grounds 3, 4, 5, 6, 7, 8 and 9 seem to me to be entirely unmeritorious. In particular, the constitutional issues raised in ground 8 have already been decided adversely to the appellant by the Court of Appeal save for one entirely unpersuasive sub-issue. However with respect to grounds 1 and 2, I am only able to say that they are weak but, when viewed together, they are arguable. I say they are weak but arguable for the following reasons.
[19] It is hard to imagine an issue in relation to which an expert panel of medical professionals would be owed greater deference by the Divisional Court than whether or not the appellant and RB were in a doctor-patient relationship on October 14, 2006. Given that the standard of review on the issue is reasonableness, success for the appellant is an uphill battle. However when this issue is combined with the committee’s alleged error in assessing the credibility of RB, I conclude that the two grounds together, while weak, are arguable. Describing these two issues as arguable is a far cry from an opinion that they are meritorious. But the standard on this prong of the test for a stay is a very low one.
[20] However the question of whether or not there is a serious question to be determined involves more than a determination that there is an arguable ground of appeal. The arguable ground of appeal must be capable of affecting the outcome of the appeal in a relevant way. Here, it is not. However much force there is to the argument that RB’s credibility was not properly evaluated, which in turn might have affected her evidence about the existence of a doctor-patient relationship in October 14, 2006, in the end her credibility cannot affect the conclusion that the findings of misconduct will be upheld in whole, or at least in part, and that revocation or, at least, a period of suspension is inevitable. I say this for two reasons.
[21] First, even if the evidence of RB relating to the existence of a doctor-patient relationship at the time of the intercourse is entirely discounted, the remaining evidence, including powerful documentary evidence, is overwhelming. Second, and perhaps more important, there can be absolutely no question that the appellant subsequently sent sexually-laden messages to RB and repeatedly expressed his desire to engage in more sexual activity with her in the midst of what was undeniably a doctor-patient relationship. The committee found that this constituted sexual abuse of a patient, as it indisputably did. Even if this finding of misconduct stood alone, it would undoubtedly attract a penalty of suspension for a substantial period of time.
[22] Given the inevitability of a finding of misconduct and a suspension, I cannot say that there is a serious question to be determined that would be decisive of the outcome in the appellant’s favour in the sense that it would leave him free to practice his profession immediately.
Irreparable Harm
[23] Revocation has serious consequences for the appellant, both financial and reputational. But if at least a period of suspension is inevitable, then the appellant will not be harmed by being required to begin serving his penalty now. I am assured by counsel for the College that the period of time that the appellant cannot practice between now and the ultimate release of a decision on appeal will count towards any period of suspension that may ultimately be imposed.
Balance of Convenience
[24] In view of my conclusions on the first two prongs of the test, this question does not really arise.
Disposition
[25] For these reasons, the motion is dismissed.
[26] Counsel agreed that costs should follow the event, and should be fixed at $5,000 all-inclusive. As a result, I award costs to the moving party fixed in that amount.
Dambrot J.
RELEASED: June 22, 2016
CITATION: Clokie v. Royal College of Dental Surgeons (Ontario), 2016 ONSC 4164
DIVISIONAL COURT FILE NO.: 276/16
DATE: 20160622
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N :
DR. CAMERON CLOKIE
Moving Party/Appellant
– and –
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
M. DAMBROT J.
RELEASED: June 22, 2016