CITATION: Chen v. The College of Denturists of Ontario, 2017 ONSC 530

DIVISIONAL COURT FILE NO.: 077/16 DATE: 2017/01/20

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

KITELEY, SWINTON and RAMSAY JJ.

BETWEEN:

YASONG CHEN, DD

Appellant

– and –

THE COLLEGE OF DENTURISTS OF ONTARIO

Respondent

Pierre Champagne, for the Appellant

Rebecca Durcan, for the Respondent

HEARD at Toronto: January 20, 2017

RAMSAY J. (Orally)

The Penalty Decision

1The revocation of the Appellant’s licence to practice denturism cannot be characterized as unreasonable.

2The Discipline Committee held as follows:

For the panel, the sheer numbers associated with the Member’s professional misconduct were staggering. The panel was gravely concerned by the number of dental services provided, all outside of the Member’s scope of practice, to multiple patients, including vulnerable children, for a period of approximately 2 ½ years. By providing dental services, outside of a denturist’s scope of practice, and within approximately one (1) year after graduating from George Brown College, the Member displayed a blatant disregard for the well-being of his patients. The panel noted, that in at least two (2) cases, complications, in the form of prolonged infections, did in fact occur.

Of further concern to the panel was the numbers associated with the false or misleading claims submitted to the insurance companies. Without their knowledge, the Member used the identity of two (2) dentists to submit 911 false or misleading claims, representing numerous patients and totaling approximately $91,831.49.

For the panel, these acts of professional misconduct, and the attendant numbers, are egregious.

3There is no principle that restricts revocation to cases in which the Member re-offends after being disciplined or declines to participate in the process. The Discipline Committee set out the mitigating factors in detail in its reasons. They had good reason to give them little weight compared to the enormity of the acts of misconduct.

4The Abdelrahman decision on which the Member relies heavily concerned acts of misconduct that were significantly less serious, as the Discipline Committee pointed out.

5The Discipline Committee took a far more serious view of his conduct than did the Member. The analysis by the Discipline Committee was thorough, based on the uncontradicted evidence and on all of the criteria for establishing penalty. The evidence amply supported the decision. The penalty imposed was within the range of reasonable outcomes. Revocation was not a “clearly unfit” penalty; indeed it was the inevitable outcome, even if this was the first time the Member was disciplined. We are not persuaded that the Discipline Committee erred in principle in arriving at the penalty of revocation.

The Costs Decision

6The Discipline Committee noted that the key principle is that costs must be reasonable in the particular situation and that in prior decisions, the courts had indicated that an award of not more than two thirds of actual costs was appropriate. It went on to say the following:

The panel also recognizes that cost recovery is a necessary strategy in smaller colleges like this College, and while the Member has the right to a thorough investigation and the right to a hearing, he also bears some responsibility for the overall costs. The costs of the investigative and discipline process cannot solely be the onus of the rest of the College’s membership. The amount of $70,000 ordered by the panel, represents approximately fifty-five (55) percent of the costs incurred by the College. It allows the College to offset a significant chunk of the costs that would otherwise be carried by the relatively small membership of the College of Denturists of Ontario.

7The decision of the Discipline Committee was based on appropriate legal principles and on the uncontradicted evidence. The amount of costs ordered was well within a reasonable range of outcomes. We are not persuaded that the Discipline Committee erred in principle in arriving at the award of costs.

8Accordingly, the appeal is dismissed.

COSTS – Kiteley J.

9I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons. Costs $10,000.”

___________________________ Ramsay J.

I agree

Kiteley J.

I agree

Swinton J.