CITATION: Rohringer v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656
DIVISIONAL COURT FILE NO.: 624/17 DATE: 20171107
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DR. RON ROHRINGER
Applicant
– and –
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
Respondent
Neil M. Abramson and Lindsay Kantor, for the Applicant
Linda Rothstein, Jean-Claude Killey and Lauren Pearce, for the Respondent
HEARD at Toronto: November 1, 2017
Application under s. 2, 4 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1
SPIES J.
OVERVIEW
[1] The Applicant, Dr. Ron Rohringer, seeks an order quashing the interim Order of the Inquiries, Complaints and Reports Committee (the “ICRC”) of the Royal College of Dental Surgeons of Ontario (the “College”), dated October 17, 2017, suspending his dental licence without a hearing (the “Interim Order”). Dr. Rohringer also seeks to quash the decision of the ICRC upholding the Interim Order, dated October 24, 2017 (the “Affirming Decision”) (collectively, the “ICRC Decisions”).
[2] This application was brought pursuant to s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (the “JRPA”) as an urgent application for judicial review to a single judge, with leave. The Respondent consented and this Court granted leave, having determined that this is a case of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.
THE FACTS
The Florida Charges and College Investigation
[3] Dr. Rohringer is a member of the College and has been practicing dentistry in Ontario since 1985.
[4] In early March 2017, Dr. Rohringer was charged criminally in Florida with indecent exposure and trespass (the “Florida Charges”). The trespass charges have since been dropped. The trial with respect to the Florida Charges has not yet occurred, and Dr. Rohringer intends to challenge the prosecution of these charges.
[5] The Florida Charges pertain to allegations that, while in Florida, Dr. Rohringer exposed himself and masturbated in a car while asking teenaged girls for directions.
[6] The College became aware of the Florida Charges through media reports on March 7, 2017. The College immediately contacted the local authorities to confirm the reported information. The College was informed that there were three incidents in total, all with similar facts, that took place on February 22, 2016 and then again on February 16 and 17, 2017. Only two of these incidents resulted in charges of indecent exposure.
[7] On the basis of this information, on March 10th, 2017, the Registrar of the College initiated an investigation into Dr. Rohringer’s practice (the “Investigation”) pursuant to s. 75 of the Health Professions Procedural Code (the “Code”) being Schedule II to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”). The Florida Charges were the basis for the Investigation.
[8] Prior to the Interim Order, the Investigation consisted of interviews with two other dentists with whom Dr. Rohringer practices, as well as 19 staff members and two former staff members who work(ed) with Dr. Rohringer. In addition, the College collected various documents relating to the Florida Charges.
[9] Among the documents received in connection with the Florida Charges is an Offence Report by Detective Holsonback in which he records that he received a confession from Dr. Rohringer to three incidents of exposing himself and masturbating in front of underage girls and making video recordings of himself during these incidents.
[10] The two dentists interviewed practice in partnership with Dr. Rohringer. Dr. Peter Dan told Wendy Waterhouse, the investigator at the College who has been assigned to this matter (the “Investigator”), that prior to the Florida Charges he had never had concerns and/or complaints brought to him by any staff member and/or patient regarding Dr. Rohringer’s conduct at either of their two office locations. Dr. Edward Reiter told the Investigator that no patients or staff members have ever spoken to him about concerns related to Dr. Rohringer’s conduct or reported to him that they felt uncomfortable during a conversation with Dr. Rohringer and that he personally has no major concerns. He also reported that many of the staff members have been with the office for 25-30 years so they are like family.
[11] In terms of staff members and former staff members, the College relied on information from one long-term dental assistant who stated that Dr. Rohringer tells inappropriate sexual jokes in the presence of patients. She and four others also reported that he tells sexual jokes and/or makes sexual comments in the office although they cannot say if they are overheard by patients. One staff member confirmed that she and Dr. Rohringer were seen kissing by another staff member in the office some 14 to 15 years ago, that she thought nothing of this kiss and that it never happened again.
The ICRC Suspends Dr. Rohringer’s Licence to Practice
[12] By correspondence dated September 29, 2017, the Investigator wrote to then counsel for Dr. Rohringer that a panel of the ICRC intended to make an interim order suspending Dr. Rohringer’s Certificate of Registration to practice dentistry in Ontario pursuant to s. 25.4(1) of the Code. The ICRC invited Dr. Rohringer to respond in accordance with s. 25.4(6) of the Code. The Investigator advised that if no submissions were received by the deadline, the intended interim order of the ICRC would become final.
[13] On October 2, 2017, Dr. Rohringer’s counsel requested that the College disclose “the fruits of the ICRC’s ongoing investigation”. The requested material was provided on October 3, 2017. An extension of time to respond was granted until 9:00 a.m. on October 17th, 2017 and Dr. Rohringer was advised that the ICRC would be meeting that day to consider the matter.
[14] Unfortunately, Dr. Rohringer’s counsel at the time failed to respond by 9:00 a.m. on October 17th, as required, because he wrongly assumed that he had until the end of that day to respond.
[15] In the absence of any submissions from Dr. Rohringer, the ICRC rendered the Interim Order with written reasons, in which it suspended Dr. Rohringer’s dental licence effective immediately. The ICRC noted that Dr. Rohringer had voluntarily admitted the allegations in the Florida Charges while in police custody and that interviews with staff “indicates concerning behaviour regarding boundaries, including Dr. Rohringer making jokes and comments of a sexual nature to staff and patients, in addition to possible inappropriate touching of a staff member, among other things.” The panel then held:
In the opinion of the panel, Dr. Rohringer’s conduct exposes or is likely to expose his patients to harm or injury. The police reports document that Dr. Rohringer admitted to acts of indecent exposure in front of minors on more than one instance. In addition, based on the information contained in the interview, the panel is concerned that Dr. Rohringer crosses or violates boundaries of a sexual nature in his practice through inappropriate comments, jokes and possibly inappropriate touching. The panel believes that Dr. Rohringer’s conduct demonstrates a lack of control and/or judgment as to what constitutes appropriate behaviour, which puts his patients at risk of exposure to boundary violations of a sexual nature and/or sexual abuse. [Emphasis added]
[16] The ICRC also referred to a previous complaint to the College regarding Dr. Rohringer’s conduct. In 1994, an employee complained that Dr. Rohringer made inappropriate comments to her that were of a sexual nature (among other concerns). The Respondent submits that in the course of responding to that complaint, Dr. Rohringer admitted to having had an intimate relationship with that employee after her marriage ended, and to meeting with the employee’s ex-husband at her request but that was not referred to by the ICRC panel. The ICRC panel did note that the Complaints Committee took no action but that it did advise Dr. Rohringer to “draw stronger distinctions between his personal and professional life”, to recognize the power imbalance in favour of dentists typical in dental practices, and to adhere to the College’s then Guidelines for Professional Behaviour Regarding the Prevention of Sexual Abuse in the Dental Office. The ICRC then concluded that: “Dr. Rohringer’s prior history heightens the panel’s concerns that his conduct exposes or is likely to expose his patients to harm or injury.”
Dr. Rohringer’s Response
[17] Dr. Rohringer’s submissions in response were sent to the College at 4:00 p.m. on October 17th, 2017 (the “Response”) after the ICRC had made its order. In his submissions, Dr. Rohringer stated that he would be contesting the Florida Charges at trial in Florida, including the voluntariness of his confession to the police.
[18] The Response included a report dated September 23, 2017 setting out the expert opinion of Dr. Julian Gojer, a forensic psychiatrist who recently assessed Dr. Rohringer (the “Gojer Report”).
[19] The Gojer Report included a number of findings that counsel for the College relies upon, including that:
(a) Notwithstanding his stated intention to prove his innocence at trial, Dr. Rohringer admitted to Dr. Gojer that he had intentionally exposed himself to underage girls in Florida on three separate occasions;
(b) Dr. Rohringer intentionally sought out victims under the age of 17 because he thought that they were less likely to report him;
(c) There were no specific stressful life events in the time period leading up to his offending behaviours;
(d) In his dental practice he has clients of all ages, including children;
(e) Dr. Rohringer has a diagnosed problem with exhibitionism;
(f) Acts of exhibitionism cause harm to the victims; and
(g) Dr. Rohringer has “deviant urges” to expose himself, which he is working to eliminate.
[20] Notwithstanding these facts, in Dr. Gojer’s opinion, he “did not see [Dr. Rohringer] as posing any risk to his patients at his workplace”. This opinion was uncontradicted when the ICRC considered these submissions as the ICRC was not in possession of any other expert evidence.
[21] In addition, to address the ICRC’s concerns, the Response included Dr. Rohringer’s voluntary offer to consent to a term on his licence requiring him to have a regulated health professional present for all of his patient interactions (the “Monitoring Term”). I understand that his intention was to have a dental hygienist with him at all times when he was with a patient.
The Affirming Decision
[22] The ICRC reconvened on October 23, 2017 to review the Response. Written reasons were not provided by the ICRC this time. Instead, the Investigator sent a letter dated October 24, 2017 to Dr. Rohringer’s counsel, which stated that the ICRC had decided to:
… seek further information, including information from its own experts, as well as further information about the criminal charges in Florida against Dr. Rohringer.
… on an expedited basis … and … While this is ongoing, the panel is of the view that for public safety, the Interim Order remains in full effect.
The Investigation Since the Affirming Decision
[23] Since the Affirming Decision the Investigation has continued. The results of that further investigation are set out in the Respondent’s material. Mr. Abramson, counsel for Dr. Rohringer objected to the filing of this additional material since it was not before the ICRC when it affirmed its decision to suspend Dr. Rohringer’s licence. In fact the ICRC has not yet considered any of this additional information.
[24] Although the reasonableness of the ICRC Decisions must, in my view, be determined based on the information available to the ICRC at the time it made its decision, I will consider the additional material to determine if, in my view, it would impact the reasonableness of the ICRC Decisions once the ICRC considers this information. I do so to assist the parties because the Investigation is ongoing. In theory the Applicant could succeed in have the ICRC Decisions quashed by this Court and then face a new ICRC Decision suspending his licence on an interim basis, based on this additional information. Repeated trips to this Court are not in anyone’s interest.
[25] Since the Affirming Decision on October 24, 2017, the College has, among other things:
(a) obtained updated information from the Florida District Attorney about the details and status of the Florida Charges;
(b) sought and obtained an expert opinion from Dr. Philip Klassen relating to the harm posed by exhibitionism and the normal course of treatment and prognosis for that disorder;
(c) sought a second expert opinion from Dr. Sandy Welsh on the impact and implications of psychological harm for victims of indecent exposure, particularly teenage girls; and
(d) conducted four new witness interviews, two follow-up interviews of witnesses previously interviewed, and conducted a further visit to each of Dr. Rohringer’s practice locations.
[26] Having imposed an interim suspension, the College is required to investigate and prosecute Dr. Rohringer’s alleged misconduct expeditiously. The evidence of the Investigator, given through the affidavit of a lawyer employed by the College, is that she expects to provide her completed report of the Investigation to Dr. Rohringer by November 10th and that the panel of the ICRC that made the ICRC Decisions would be in a position to dispose of Dr. Rohringer’s matter as early as November 16, 2017, 2017 to consider what action to take, including whether to refer specified allegations of the member’s professional misconduct to the College’s Discipline Committee for adjudication, subject to Dr. Rohringer’s consent to an accelerated timeline.
[27] If the ICRC's disposition involves a referral of this matter to the Discipline Committee, Dr. Rohringer must be provided with an opportunity to defend himself at a full hearing of the Discipline Committee, and afforded all of the necessary procedural steps involved with same (i.e. disclosure, pre-hearing conference, etc.). If specified allegations of professional misconduct are referred to the College’s Discipline Committee, the College intends that the matter be prosecuted expeditiously and will be given precedence by the Discipline Committee.
Impact of the ICRC Decisions on Dr. Rohringer
[28] Although I accept Ms. Rothstein’s representation to this Court that the Registrar of the College is committed to moving this matter forward as quickly as possible, in my view given the steps that will need to be followed, it is likely that the suspension of Dr. Rohringer’s licence will be in effect for a significant period of time.
[29] Meanwhile, Dr. Rohringer’s ability to practice dentistry has been taken away without a hearing. There is no dispute that while the ICRC Decisions suspending Dr. Rohringer’s licence are in effect that he is unable to practice dentistry as he has done for the past 32 years and as such they prevent Dr. Rohringer from earning his livelihood. I accept that with each passing day, he continues to suffer economic and reputational harm.
Standard of Review
[30] There is no dispute that the ICRC Decisions are subject to a reasonableness standard of review. As stated by the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, per Bastarache and LeBel JJ. at para. 47, this Court must determine whether they fall “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”. In Kunynetz v. College of Physicians and Surgeons of Ontario, 2015 ONSC 6830 (Div. Ct.) [“Kunynetz”] at para. 40, Sachs J. stated that:
… reasonableness is a deferential standard animated by the principle that certain questions before administrative tribunals do not lend themselves to one particular result. In other words, the reasonableness standard recognizes that on certain questions reasonable people may disagree.
[31] In a recent decision of the Divisional Court, Morzaria v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1940, Gilmore J., speaking for the majority, stated at para. 26 that:
In determining reasonableness, a committee with expertise such as the ICRC must be given deference when it comes to imposing measures to protect the public. Further, such deference must extend to the choice of modality through which practice restrictions are imposed. As the Supreme Court of Canada explained in Ryan v. Law Society (New Brunswick), 2003 SCC 20, [2003] 1 S.C.R. 247 (S.C.C.), at para. 55:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere. This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling. [Citations Omitted.]
[32] I would note however, in this case the ICRC is composed of dentists and lay members, not psychiatrists and the issue before the ICRC was not one of standards of practice. As stated by Nordheimer J. (as he then was) in his dissenting decision in Morzaria, at para. 48: “[t]he ICRC … cannot use its cloak of expertise as a substitute for hard evidence.”
The Test
[33] Under s. 25.4 of the Code, the ICRC may, at any time following the receipt of a complaint or the appointment of an investigator, make an interim order to suspend, or to impose terms, conditions or limitations on a member’s Certification of Registration “if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury.” [Emphasis added] Such an order can be made before the matter is referred to the Fitness to Practice Committee or the Discipline Committee.
[34] Section 25.4 came into force on May 30, 2017 as part of a series of amendments to the Code. Prior to the enactment of s. 25.4, s. 37 of the Code provided that the ICRC could make an interim order to suspend or impose terms on a member’s certificate of registration, but only after an allegation of professional misconduct had been referred to a discipline hearing. Under the former s. 37 the test however was the same; the ICRC still had to be of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury.
The Issues
[35] The parties raise three issues that I must consider in determining whether or not to grant this application:
Did the ICRC have some evidence that Dr. Rohringer’s conduct exposes or is likely to expose his patients to harm or injury?
Did the ICRC improperly mischaracterize and rely on a 1994 decision of the Complaints Committee of the College?
Are the Interim Decisions unreasonable for failing to consider the least restrictive order possible?
The Position of the Parties
[36] Dr. Rohringer’s position is that the ICRC Decisions should be quashed as unreasonable. He submits that they were made despite a complete absence of any evidence of actual or probable harm to his patients, which harm must be established for an interim suspension. Indeed, there has been no suggestion that Dr. Rohringer has ever had sexual or otherwise inappropriate physical contact with any of his patients, nor has Dr. Rohringer ever been accused of exposing himself to them. On the contrary, the uncontroverted expert psychiatric evidence of Dr. Gojer expressly concluded that Dr. Rohringer does not pose any risk to his patients at his workplace.
[37] Further, Dr. Rohringer submits that the ICRC Decisions failed to consider the least restrictive order possible, as the ICRC is required to do, and that it ought to have accepted his offer to have a regulated health professional be present for all of his patient interactions.
[38] Finally, in the Applicant’s factum it is argued that the ICRC improperly relied upon a 1994 decision of the Complaints Committee, the predecessor to the ICRC, in which no action was taken against Dr. Rohringer.
[39] The position of the College is that the ICRC’s decision to suspend Dr. Rohringer’s Certificate of Registration on an interim basis was reasonable, and this application should be dismissed. The College argues it has a statutory duty to regulate the conduct of dentists in Ontario and, in so doing, to serve and protect the public. In light of the serious, impulsive, and predatory nature of Dr. Rohringer’s misconduct, including his acknowledgement that he experiences an ongoing urge to expose himself, the ICRC concluded that Dr. Rohringer’s conduct exposes, or is likely to expose, his patients to harm or injury. In the circumstances, the ICRC decided that it was necessary and appropriate to suspend Dr. Rohringer’s Certificate of Registration while it completed its Investigation.
[40] It is the position of the College that the ICRC is not required to wait for patients to actually be harmed before it can take action to protect them and that this decision falls squarely within the ICRC’s area of experience and expertise: assessing risk of harm and imposing measures to protect the public. The ICRC carefully reviewed the available evidence, and reached a considered conclusion which falls within the range of reasonable outcomes.
Analysis
Did the ICRC have some evidence that Dr. Rohringer’s conduct exposes or is likely to expose his patients to harm or injury?
[41] As stated by Nordheimer J. in his dissenting decision in Morzaria, at para. 45, evidence is a necessary prerequisite to making an interim order to suspend, referring to Liberman v. College of Physicians and Surgeons of Ontario, 2010 ONSC 337, [2010] O.J. No. 227 (Div. Ct.) where Jennings J. said at para. 34:
The Committee is clearly entitled to form its own opinion but it must do so on “some evidence”, not evidence of below standard conduct, but evidence of probable harm.
[42] The absence of evidence on a material point is an “important consideration in determining the reasonableness of a decision”; see Aris v. Ontario College of Teachers, [2011] O.J. No. 1400 (Div. Ct.), per curiam at para. 19.
[43] Furthermore, where a regulatory body seeks to issue an interim order against a member, there must be “more than mere speculation” since the ICRC must establish probable exposure to harm to patients by Dr. Rohringer based on the evidence before it; see Aris at para. 32. I agree with the position of the Applicant that this is particularly so where, as in this case, the governing statute allows an interim order to be issued pre-referral for prosecution.
[44] The Applicant relies on the facts of Liberman where Jennings J. heard an urgent application for judicial review to quash an order of the College of Physicians and Surgeons of Ontario’s Complaints Committee prohibiting the member from performing anesthesia, except in a hospital under the supervision of a certified anesthetist. This was a very serious case since Dr. Liberman had administered anesthesia to a patient, Ms. S., who died. The first expert retained by the College opined that Dr. Liberman did not meet the standard of practice in the case of Ms. S., but was unable to opine as to whether the member’s clinical practice exposed or was likely to expose his patients to harm with only one patient chart to review. The second College expert reviewed 55 charts and, apart from charting errors in three, concluded that those patients had not been exposed to any risk of harm beyond what would be expected. Two experts retained by the member were firmly of the opinion that there was no risk of, or exposure to, harm.
[45] Justice Jennings quashed the interim order holding that there was no evidence to support the Complaints Committee’s opinion that the member’s conduct exposed or was likely to expose patients to harm. In reaching his decision, Jennings J. stated at para. 34 that: “[w]ithout evidence of the probable exposure to harm, the Committee is merely speculating based in essence on one incident. This it cannot do.” [Emphasis added]
[46] It is the position of Dr. Rohringer that while the staff interviews suggest that he may have boundary issues with employees because of his provocative sense of humour, the vast majority of Dr. Rohringer’s co-workers articulated no concerns whatsoever about his conduct or humour. Moreover, and critically, not a single individual who was interviewed raised any suggestion that Dr. Rohringer had ever had sexual or otherwise inappropriate physical contact with any patients. Certainly, Dr. Rohringer has never been accused of exposing himself to patients. At best, the ICRC’s Investigation suggests that Dr. Rohringer may have boundary issues with staff members because of his provocative sense of humour.
[47] Dr. Rohringer submits that not only is there an absence of any evidence of actual or even probable harm or injury to his patients should he continue to practice dentistry, the uncontradicted expert opinion of Dr. Gojer, a forensic psychiatrist, is: “I do not see [Dr. Rohringer] as posing any risk to his patients in his workplace” [Emphasis added]. As Mr. Abramson submitted, despite the media attention the Florida Charges have received, no patients or any other complainants have come forward with a complaint. Mr. Abramson also relied on the fact that the College waited seven months before the ICRC made its order but on that point I agree with Ms. Rothstein that the College needed to undertake a proper investigation before taking action.
[48] The Respondent’s position is that Dr. Rohringer’s own admissions provide the necessary support for the ICRC’s assessment that he poses an unacceptable risk of harm to his patients. In the Gojer Report, Dr. Rohringer acknowledges that he has an ongoing urge to expose himself, and has exposed himself to minor females on three occasions already. It is impossible for the College to know the true extent of this impulsive and, until very recently, untreated behaviour. Indeed, Dr. Rohringer admitted that he intentionally targeted victims under the age of 17 in a calculated attempt to avoid detection by exploiting the power imbalance inherent in their age differences. While no patient has filed a formal complaint with the College, there are a number of staff members, who have expressed concerns to the College about Dr. Rohringer’s lack of respect for professional boundaries of a sexual nature. The Respondent submits that the ICRC relied on both Dr. Rohringer’s repeated indecent exposure to minors, and his violation of boundaries of a sexual nature in his practice, to find that his conduct demonstrated a lack of control and/or judgment about what constitutes appropriate behaviour, which in turn put his patients at risk of boundary violations of a sexual nature and/or sexual abuse.
[49] In assessing these competing submissions, I am faced with the difficulty that the ICRC gave no reasons for why it rejected both the opinion of Dr. Gojer and Dr. Rohringer’s offer of the Monitoring Term in its Affirming Decision. The Respondent submits that the ICRC was not required to be as detailed as reasons prepared following a full hearing, relying on the decision of Chadwick J. in Mohan v. College of Physicians and Surgeons of Ontario(1991), 1991 8328 (ON SC), 81 DLR (4th) 108 (Ont. Ct. (Gen. Div.) where he stated at p. 117:
In my view where the order made is an interim order only, and the statute prescribes a summary procedure for determining the factual situation, then one has to be more tolerant in scrutinizing the disciplinary body's reports and decisions. Neither the Registrar nor the Executive Committee have unlimited time in which to review and consider the reports and prepare detailed reasons.
[50] I am prepared to be “more tolerant” in scrutinizing the reasons of the ICRC but I have no reason to scrutinize in the Affirming Decision. This case is on par with Liberman, at para. 30 where Jennings J. concluded that it was incumbent on the Committee to “give some explanation however brief for rejecting all of the evidence that was contrary to its conclusion.” This passage was approved of in Aris where the Court stated:
The College argued that reasons were not required, as the decision of the Executive Committee was not a judicial one and was of an interim nature. Nevertheless, the Act gives the member of the College the right to make written submissions to the Executive Committee, which suggests a concern to provide procedural fairness to the individual and a recognition of the significance of the decision for the member. More importantly in this proceeding, the decision to grant an interim suspension has a significant impact on the member. The result of the decision was to remove the applicant’s source of income. It will also be published in the College registry, and so affect his reputation. It was noted in Baker, … [v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817] that the greater the impact on the individual, the more stringent the procedural protections that are mandated. In the Supreme Court’s words, “The importance of a decision to the individuals affected, therefore, constitutes a significant factor affecting the content of the duty of procedural fairness” (at para. 25).
In our view, fairness requires that an individual who loses his qualification to practice his profession through a suspension by his professional college, even on an interim basis, is entitled to an explanation for that decision. Absent some reasons, he or she will not know the basis for the decision, and more importantly, a reviewing court is left without the ability to scrutinize the decision to ensure that it was reasonable in the circumstances and made in accordance with the statutory authority conferred on the Executive Committee.
[51] In Aris the Court concluded that the reasons gave no indication for why, given existing controls on the member’s access to students, a suspension was necessary and since the reasons for the decision were not evident from the record, the Court could not undertake a meaningful review of the decision of the merits. On that basis alone, the Court held that the decision of the Executive Committee should be set aside “because it breached its duty of procedural fairness.” (at para. 36)
[52] I have the same difficulty in this case. Although the ICRC gave reasons before it received Dr. Rohringer’s Response, no further reasons were provided with the Affirming Decision. I have no idea why the opinion of Dr. Gojer and the Monitoring Term were rejected. Ms. Rothstein made submissions on how the Gojer Report and the offer of the Monitoring Term are deficient and raises questions, particularly in the light of the expert report of Dr. Klassen, which I will come to. They are interesting submissions but I have no idea if any of them were considered by the ICRC. Furthermore, I do not accept her submission that the ICRC should not criticize Dr. Gojer’s report in advance of a possible Discipline Hearing. The ICRC had a duty to give some reasons to explain why it was not persuaded by the Gojer Report and the offer of the Monitoring Term. In my view the failure to give any reasons is reason alone to set aside the ICRC Decisions.
[53] To make matters worse, I am concerned that the ICRC misunderstood the legal test it was required to consider. The Respondent’s factum repeatedly states that the evidence before the ICRC justified the conclusion that his inappropriate behaviour puts his patients “at risk” of harm. In fact, although in the original ICRC Decision, the panel set out the correct test at the opening of the key paragraph of its decision, it concluded his patients are at risk of exposure to boundary violations of a sexual nature and/or sexual abuse.
[54] With respect, however, risk of harm is not the test. There is no doubt that the fact Dr. Rohringer has admitted to Dr. Gojer to engaging in reprehensible conduct with vulnerable teenaged girls and that he has "deviant urges" to expose himself, which he is working to eliminate creates a risk of future harm but there is no dispute that there is no evidence of actual harm to any patients. The ordinary meaning of “risk” is the possibility of loss or injury” and in my view a risk of harm does not equate to a finding that Dr. Rohringer’s conduct is likely to expose his patients to harm or injury, particularly given the uncontradicted evidence of Dr. Gojer. The ICRC panel does not have the necessary expertise or an expert opinion to find that Dr. Rohringer’s conduct that he admitted to Dr. Gojer that forms the basis of the Florida Charges is likely to lead to conduct that exposes his patients to harm or injury.
[55] Ms. Rothstein submitted that the nub of the ICRC decision is that Dr. Rohringer has very poor impulse control but Dr. Rohringer has practiced for 32 years and has no disciplinary record. The fact that he has, as Mr. Abramson puts it in his factum, “boundary issues with employees because of his provocative sense of humour” and accepting that patients may overhear inappropriate jokes, that in my view cannot be the basis for a full suspension of his licence. The ICRC’s decision to issue the Interim Order must be based on more than mere speculation from the Florida Charges and his inappropriate jokes. In this case, it was not based on any evidence of probable or likely harm to Dr. Rohringer’s patients.
[56] The Respondent argues that the ICRC it is not required to wait for actual harm to patients and that Dr. Rohringer appears to suggest that the ICRC must have evidence of actual sexual impropriety with a named patient before it can impose an interim suspension under s. 25.4 of the Code. In my view that is not what Dr. Rohringer is submitting and clearly that is not required. I agree that the ICRC need not wait until Dr. Rohringer actually exposes himself to a patient and the patient reports this behaviour to the College. Section 25.4 permits the ICRC to make an interim suspension order if Dr. Rohringer’s conduct “is likely to expose his patients to harm or injury”. Such a finding requires some evidence and the risk of this happening is not enough.
[57] For these reasons alone the ICRC Decisions are set aside. However, as the Investigation is ongoing, I will provide my views on the other issues raised on this application.
[58] The Respondent submits that the additional information obtained after the date of the Affirming Decision provides further support for the ICRC Decisions. There are further staff interviews that provide more information along the same lines as before, save for one long time employee who alleges conduct that could possibly be considered sexual harassment.
[59] As well the College now has the expert opinion of Dr. Klassen. Dr. Klassen provided an opinion on a “no-name” basis relying on the results of the Investigation. He was not given a copy of the Gojer Report. Dr. Klassen identified some of the kinds and degrees of harm that can be caused by exhibitionism, suggesting it was more serious than what Dr. Gojer had said in his report. He also pointed out that the harm may be more severe were it to occur in the context of a dentist-patient relationship than between strangers. Dr. Klassen’s report also states that exhibitionism as a sexual preference is a lifelong condition, and that an important part of treatment of exhibitionism, and understanding the prognosis, is identifying the variables that led to acting out behaviour, and addressing those variables in addition to the underlying exhibitionism, and other diagnoses.
[60] It is important to note, however, that Dr. Klassen was not told the no-name member had a 32-year unblemished career and he was not asked to give any opinion on the likelihood of harm to patients should the no-name member continue in practice. Furthermore, he was not asked to opine on the Monitoring Term offered by Dr. Rohringer.
[61] Accordingly, even with the further results of the Investigation, once this new material is reviewed by the ICRC, in my view the ICRC will not be in possession of any evidence, and in particular any expert evidence which challenges, refutes or in any way contradicts Dr. Gojer’s expert opinion. Furthermore, the additional information from staff will not be evidence that could give rise to such a finding.
Did the ICRC Improperly Rely on a 1994 Complaints Committee Decision?
[62] Counsel for the parties did not make any oral submissions about this issue although it was addressed in both of their facta. The Applicant argues that the ICRC improperly relied on the Complaints Committee’s 1994 decision. This complaint was from a former co-worker who Dr. Rohringer admitted he had an intimate relationship with. The Respondent argues that the ICRC did not suggest in its Interim Order that the Complaints Committee had made any findings in respect of the 1994 complaint. Indeed, in its reasons, the ICRC refers merely to “allegations of boundary violations”, and states that “the panel took no action in the outcome”. That is true but the ICRC clearly relied on this decision to conclude that Dr. Rohringer’s prior history “heightens the panel’s concerns that his conduct exposes or is likely to expose his patients to harm or injury”.
[63] The Respondent argues that the ICRC’s focus was on the fact that, as a result of the complaint, Dr. Rohringer was advised to “draw stronger distinctions between his personal and professional life”, to recognize the power imbalance in favour of dentists typical in dental practices, and to adhere to College guidelines regarding sexual abuse in the dental office.
[64] If the ICRC had evidence that Dr. Rohringer’s conduct with his staff had some relevance to the likelihood of future harm to patients of the kind underlying the Florida Charges, that might be one thing, but the ICRC had no such evidence. In my view there was no evidence before the ICRC that the conduct alleged in the 1994 complaint is relevant to the question of whether Dr. Rohringer’s recent conduct is likely to expose his patients to harm. I agree with the submissions of the Applicant that it was unreasonable for the ICRC to rely on this dated decision. Instead the ICRC should have considered the fact that despite being in practice for 32 years, Dr. Rohringer has no prior disciplinary history with the College and has never been found to have acted improperly towards any patient in his practice.
[65] In Oakwood Development Ltd. v. St. Francis Xavier (Rural Municipality), 1985 50 (SCC), [1985] 2 S.C.R. 164 (S.C.C.) at para. 15, Wilson J. referred to a decision of Lord Denning for the proposition that a failure of an administration decision-maker to take into account a highly relevant consideration is just as erroneous as the improper importation of an extraneous consideration.
[66] In my view the ICRC erred in relying on the 1994 Complaints’ Committee decision to “heighten” its concern about Dr. Rohringer in these circumstances.
Did the ICRC Err in Failing to Consider the Least Restrictive Remedy?
[67] To my surprise, Ms. Rothstein argued that the ICRC was not required to consider the least restrictive remedy in making its decision. She argued that this is not part of the test in s. 25.4 of the Code nor is it an incident of reasonableness. Ms. Rothstein relied primarily on the Divisional Court decision of Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267. Ms. Rothstein fairly conceded that this case is totally different from the case at bar. In Iacovelli the Court considered an application for judicial review from a decision made by the ICRC of the College of Nurses of Ontario requiring the member to undergo an independent medical examination to assess his capacity to practice as a nurse. Section 59 (1) of the Code permitted the ICRC to make this order if it had “reasonable and probable grounds to believe that the member is incapacitated.” The member argued that the ICRC failed to consider that he already had a report from his treating physician who had diagnosed him as having an opioid dependence which had been in remission for five months.
[68] The member argued that the ICRC was required to exercise its powers in a manner that minimally infringed his Charter rights. This argument was rejected on the basis that the words “least onerous and least restrictive” occur nowhere in the RHPA and that the duty of the College is not to impose the least restrictions on its members but rather to protect the public (at para. 53).
[69] In my view this decision is clearly distinguishable as Dr. Rohringer is not arguing Charter values nor is he arguing that the College does not have to make its duty to protect the public paramount. The Code does not need to expressly state that the ICRC is required to adopt the least restrictive remedy. The test in s. 25.4 of the Code conforms to the College’s duty to protect the public. There is no doubt in my mind that if the ICRC failed to consider whether or not there were lesser restrictions that could be imposed on Dr. Rohringer’s licence than a full suspension; for example, the Monitoring Term offered by Dr. Rohringer, that would still protect the public from “likely harm”, the decision would be unreasonable.
[70] There is ample authority for this proposition which in my view is a matter of common sense. For example, in Aris, at para. 33 the Court held that the Executive Committee had to consider not only the serious criminal charge but as well “the evidence of measures already in place to protect students” and that the Executive Committee gave no indication that it considered these existing controls on the member’s access to students “nor did it explain why a suspension of the Certificate was necessary in addition to the existing measures” (at para. 34).
[71] Similarly in his dissenting reasons in Morzaria, Nordheimer J. stated at para. 46 that “[i]t is accepted that an interim order, of the type made here, ought to be the least restrictive order possible to protect the public. That approach accords with the reality, that exists at the time that the interim order is made, namely, that all the ICRC has are unproven allegations”; [Emphasis added] see also Huerto v. College of Physicians and Surgeons of Saskatchewan, [2004] S.J. No. 762 (Q.B.) at para. 22.
[72] In this case I have no reasons from the ICRC as to why the Monitoring Term offered by Dr. Rohringer would not adequately address the panel’s concern about likely harm to patients. I do not even know if the ICRC seriously considered this offer, which in my view would appear to address any legitimate concern it may have had about permitting Dr. Rohringer to continue practicing in a manner that would eliminate any likely harm to patients. Ms. Rothstein referred to Kunynetz, as an example of a case where monitoring did not work, but in my view, there is no reason to find that Dr. Rohringer would not comply with a Monitoring Term and without such evidence it would not be reasonable in my view to reject the offer.
[73] I also reject the Respondent’s submission that reasons were not required for the reasons I have already expressed. Certainly there is nothing obvious to me why such a proposal would not be accepted particularly since Dr. Rohringer has practiced for 32 years without any disciplinary findings against him. For these reasons alone, in addition to the earlier conclusions I have already come to, the ICRC Decisions cannot stand.
Disposition
[74] For all of the foregoing reasons, I grant Dr. Rohringer’s application and order that the ICRC Decisions be quashed effective immediately.
COSTS
[75] As the successful party, Dr. Rohringer is entitled to the costs of this application on a partial indemnity basis. Dr. Rohringer provided a Costs Outline that seeks about $33,000 for fees and $5,000 for disbursements. The Costs Outline of the College seeks partial indemnity costs in the amount of $12,727 all inclusive.
[76] The Applicant had two gowned counsel at the hearing and the Respondent had three. Because Mr. Abramson provided his Costs Outline after the hearing his time for the hearing is more accurate. The main explanation for the huge difference however between the two Costs Outlines is that there were multiple lawyers preparing the Applicant’s materials with hours totaling 117 hours versus the Respondent’s fewer lawyers whose hours total 53. I would expect the Applicant to spend more hours to prepare for the application but I would not expect the difference in costs to be so significant. I am concerned with the number of lawyers involved and the likelihood of duplication. As expected the Applicant’s disbursements are also higher but the cost of duplication seems extraordinary.
[77] This application was well prepared by both sides and the written submissions were excellent. Time was of the essence which arguably increased costs on both sides. Considering all of the circumstances and the reasonable expectations of the parties, I find that costs in the amount of $20,000, all-inclusive, is reasonable to be paid by the College to Dr. Rohringer within 30 days of the release of this decision.
___________________________ SPIES J.
Released: November 7, 2017
CITATION: Rohringer v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656
DIVISIONAL COURT FILE NO.: 624/17 DATE: 20171107
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DR. RON ROHRINGER
Applicant
– and –
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
Respondent
REASONS FOR DECISION
SPIES J.
Released: November 7, 2017