CITATION: Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246

DIVISIONAL COURT FILE NO.: 558/19

DATE: 20210823

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Backhouse, Penny and Favreau JJ.

BETWEEN:

Elon Jean Griffith, DDS

Applicant

– and –

Health Professions Appeal and Review Board, The Royal College of Dental Surgeons of Ontario and M.M.

Respondents

Brian Moher for the Applicant

Steven G. Bosnick for the Respondent, Health Professions Appeal and Review Board

Linda Rothstein and Glynnis Hawe for the Respondent, the Royal College of Dental Surgeons of Ontario

HEARD in Toronto by video conference: July 14, 2021

Backhouse J.

Introduction

1In 2017, the Inquiries, Complaints, and Reports Committee (the “ICRC”) of the Respondent, the Royal College of Dental Surgeons of Ontario (the “College”) disposed of a complaint (the “Complaint”) filed by a former patient (the “Complainant”) of the Applicant, Dr. Elon Jean Griffith.

2In its Decision and Reasons, the ICRC expressed concern that the Applicant had recommended and performed unnecessary dental restorations on the Complainant’s teeth, and also that the Applicant’s responses to the College in the course of the investigation were not accurate. In its preliminary decision, the ICRC identified specific parts of the Applicant’s submissions to the College that it found were not supported by the documentary record and expressed concern with their accuracy and truthfulness. After receiving further submissions from the Applicant, the ICRC issued a final decision in which it found, amongst other matters, that the Applicant’s responses were not accurate

3The ICRC ordered the Applicant to complete a specified continuing education or remediation program (“SCERP”) and to appear before the ICRC to be cautioned to ensure “that information provided to the College in response to a regulatory investigation is accurate, truthful and supported by the records.” (the “Caution”) The Applicant sought review of the ICRC’s decision by the Health Professions Appeal and Review Board (“HPARB”). The HPARB affirmed the ICRC’s decision as reasonable.

4The central issue the Applicant raises in this judicial review is the Caution which admonishes him to be truthful in dealing with the College. He submits that the Caution is only justified if the ICRC determined that he purposively misled the College in responding to the Complaint. He submits that the ICRC made impermissible findings of dishonesty and regarding his credibility. Given the public nature of the censure which is posted on the College’s website, the Applicant submits that his personal and professional interests are at risk of being harmed. He submits that the ICRC’s decision is unreasonable.

5The Applicant submits that HPARB failed to provide any meaningful analysis of the ICRC’s findings of dishonesty and that its decision is also therefore unreasonable.

6For the reasons set out below, I find that the decisions of the ICRC and HPARB are reasonable and this application should be dismissed.

The Factual Background

The Complaint

7The Complainant received dental services from the Applicant on four occasions in 2017. Over the course of those four visits, the Applicant identified pit and fissure caries (cavities) on eight of the Complainant’s teeth and performed restorations on two of her teeth, before she decided not to return to the Applicant’s office. The Complainant was subsequently treated by Dr. Chang and Dr. Lee at College Street Dental, where she had two further restorations.

8On April 9, 2017, the Complainant filed a complaint to the College about what she felt were “unnecessary” restorations performed and recommended to her by the Applicant.

9The Applicant filed two sets of written submissions in response to the College’s investigation.

The Complainant’s Treatment by the Applicant

1. First and second visits

10On the Complainant’s first visit, January 30, 2017, the Applicant took full x-rays of her mouth.

11When she returned for a second visit, on February 6, 2017, according to the Complainant, the Applicant told her that she had “at least five non-urgent cavities (in the enamel)” in Teeth #17, 27, 46, 47, and 48 and that she was “strongly advised” to have the teeth filled to prevent their progression.

12During the February 6, 2017 appointment, the Applicant’s hygienist made the following notations in the Complainant’s chart under “Next Recommended Treatment:”

[next visit] resto (1) 17, 27 [9 units] (2) resto 46, 47, 48 [9 units]…

13Each tooth has five surfaces. Each surface of the tooth that requires restoration equals one “unit” of restoration.

14The Applicant advised the College that the hygienist’s note indicates that these teeth represent areas of concern but it does not constitute a diagnosis requiring the patient to schedule an appointment.

15The Applicant conducted a treatment consultation with the Complainant at the end of the second appointment. Afterwards, he entered the following in the Complainant’s Progress Notes:

16The day after the second visit, on February 7, 2017, the Applicant’s office submitted an insurance predetermination request to restore three surfaces on Tooth #17.

2. Third visit

17The Complainant returned for her third visit on February 13, 2017. The appointment was originally scheduled for the restoration of Tooth #17. The Applicant did not proceed with a restoration of Tooth #17 because a later review of the radiographs showed that there were only pit and fissures on it but no cavities. Decay was observed in Tooth #27 and the Applicant restored three surfaces on that tooth. The Applicant also informed the Complainant during that visit that there might also be an issue with Tooth #26, which was not one of the five teeth he had previously recommended be restored. At the end of the visit, the Applicant wrote “next visit – continue restorations” in the Complainant’s progress notes.

18The day after her third visit, on February 14, 2017, the Applicant’s office submitted an insurance predetermination request to restore three surfaces on Tooth #26.

3. Fourth visit

19On the Complainant’s fourth visit, on February 21, 2017, the Applicant restored three surfaces on Tooth #26. The Applicant also advised her that she may have an additional cavity not previously identified, in Tooth #37. The Complainant became “upset and worried” that her insurance would not cover the fillings required for so many cavities and she asked the Applicant to request predeterminations for all of the remaining teeth to be filled. At the end of the visit, the Applicant wrote “next visit – continue restorations” in the Complainant’s progress notes.

20The day after the Complainant’s fourth visit, on February 22, 2017, the Applicant’s office submitted two predetermination requests. The first was for restorations of five surfaces on each of Teeth #46, 47, and 48 and three surfaces on each of Teeth #36 and 37. The second predetermination request was for restorations of only three surfaces on each of Teeth #46, 47, and 48 (as opposed to the prior predetermination request for five surfaces on those teeth).

21The Applicant points out that none of the surface fillings on Teeth #36, 37, 46, or 48 were restored by him and that he had no intention to restore the 3 to 5 surfaces on each of Teeth #36, 37, 46, 47, or 48, given that the cavities in the enamel were “not urgent” as the Complainant confirmed she was told. The Applicant stated that his office “made predeterminations for all possible tooth surfaces to provide the Complainant with complete information of the maximum potential costs prior to treatment.”

4. Treatment at College Street Dental

22Following her fourth visit, the Complainant called to inform the Applicant’s office that “she may go to another dentists [sic] because fees are cheaper.”

23On February 27, 2017, the Complainant attended College Street Dental and met with Dr. Lee. Dr. Lee recorded in her chart that a “dentist told her she had cavities and wanted a 2^nd opinion.” According to the Complaint, Dr. Lee examined her teeth and told her that she had no cavities.

24When she asked him specifically about Tooth #17 in regard to which the Applicant had submitted an insurance predetermination request to restore three surfaces, Dr. Lee told her that there was some decay on the tooth that could potentially become a cavity, but that “it was nothing to worry about”. The Complainant asked him to fill it, “just in case.” According to the Complainant, Dr. Lee was “reluctant” to fill the tooth, but restored a single surface on Tooth #17 to give her peace of mind. Dr. Lee noted in her chart, “clinically a decay is on 17O/she wanted that fixed today.”

25The Complainant also asked Dr. Lee about Tooth #36 in regard to which the Applicant had submitted an insurance predetermination request to restore three surfaces. Dr. Lee informed her that Tooth #36 had “attrition marks/tooth wear” and did not require treatment.

26Approximately eight months later, in October of 2017, Dr. Chang from College Street Dental noted some decay on Tooth #46, in regard to which the Applicant had submitted an insurance predetermination request to restore five surfaces. Dr. Chang later restored one surface of Tooth #46, and put Teeth # 16, 36, and 48 on watch.

The ICRC’s Preliminary Decision

27On October 3, 2018, the ICRC released its preliminary decision regarding the Complaint. The ICRC was concerned that the Applicant had created an aggressive and unnecessary treatment plan for restorations that were not required, restored some tooth surfaces that did not require restoration and billed for additional surfaces that did not appear to the ICRC to have been restored.

28The ICRC was also concerned that in responding to the Complaint, the Applicant had provided information to the College that “may not have been accurate or truthful”.

29As a result of these concerns, the ICRC formed an intention to require the Applicant to complete a SCERP and be cautioned.

30The Applicant provided written submissions through counsel in response to the ICRC’s preliminary decision.

The ICRC’s Final Decision

31On November 14, 2018, the ICRC issued its final Decision and Reasons.

32The ICRC remained concerned that the Applicant had created an aggressive and unnecessary treatment plan for restorations that were not required, restored surfaces that did not require restoration, and billed for restorations on surfaces that did not appear to the Panel to have been restored. Specifically, the ICRC was concerned that:

(a) The Applicant’s restoration of Tooth #27 was unnecessary because the photos he submitted showed staining as opposed to decay, and he had billed and charted the restoration incorrectly;¹

(b) The Applicant charted and billed for a three-surface restoration of Tooth #26 when it did not appear to the ICRC that the third surface required restoration or that he had actually restored the third surface;²

(c) The Applicant’s treatment planned for 9 units of restoration to Teeth #45, 46, 47 without specifying which surfaces required treatment and there was a lack of clinical documentation to support such a treatment plan;³

(d) The Applicant’s treatment planned a five-surface restoration of Tooth #46, but the Complainant’s subsequent treating dentist restored only one surface;⁴ and

(e) The Applicant’s treatment planned for $650 worth of bite adjustments, without any supporting clinical documentation.⁵

33The ICRC remained concerned that the information provided by the Applicant to the College in responding to the Complaint was not accurate. Specifically, the ICRC was concerned that:

(a) The Applicant submitted that he had Teeth #36, 37, 46, 47, and 48 on a “Watch List” and did not intend to actually perform restorations on those teeth. “Watching the teeth” was not noted in the Complainant’s chart (except in the case of tooth #46 which is discussed below) and the Complainant’s chart demonstrated that the Applicant had planned to conduct those restorations over the course of the Complainant’s “next visit(s)” (including Tooth #46);⁶ and

(b) The Applicant submitted that his findings were “similar” to those of Dr. Chang, the Complainant’s subsequent treating dentist. However, the documentation demonstrated that the Applicant had planned restorations to three teeth (#37, 47, 48) that Dr. Chang did not treat at all, and that Dr. Chang had restored a single surface of Teeth #46 and 17, where the Applicant had planned to restore five surfaces and three surfaces, respectively.⁷

34As a result, the ICRC directed the Applicant to complete a SCERP in caries diagnosis and treatment planning, that his practice be monitored for 24 months at his own expense, and that he attend before the ICRC to be cautioned that:

(a) he must avoid overdiagnosis as it subjects patients to an unnecessary cycle of re-restoration;

(b) chart entries and billing should accurately reflect surfaces restored; and

(c) he should ensure that information provided to the College in response to a regulatory investigation is accurate, truthful and supported by the records.⁸

The HPARB Decision and Reasons

35The Applicant sought a review of the ICRC’s decision by the HPARB.

36At the review, the Applicant’s counsel made both written and oral submissions, and the Complainant made submissions in writing. The HPARB reviewed the entirety of the Record that was before the ICRC and determined that its investigation was adequate and its decision was reasonable and supported by the evidence.⁹

Analysis

Statutory Framework

37Dentistry is a self-regulated profession. The College is the regulatory body established by statute to regulate and govern the members of the profession of dentistry in Ontario. The statutory scheme governing the College is contained in the Regulated Health Professions Act, 1991 (the “RHPA”),¹⁰ the Health Professions Procedural Code (the “Code”),¹¹ the Dentistry Act, 1991,¹² and the regulations established thereunder.

38In carrying out its objects, the College has an express duty to serve and protect the public interest.¹³ The College’s other objectives include establishing and maintaining standards of practice and of professional ethics, and promoting continuing competence among its members.¹⁴ It does these, in part, through a complaints and discipline process.

The Inquiries, Complaints, and Reports Committee

39The Code establishes seven committees of the College, one of which is the ICRC.¹⁵

40The ICRC’s role is to assess complaints and Registrar’s reports, conduct or initiate investigations and fact-finding, and refer matters to adjudicative committees for determination, if appropriate.¹⁶

41The ICRC is made up of dentists and public members. In this case, the panel of the ICRC consisted of two dentists and one layperson.

42Before disposing of a complaint or a report, the ICRC must consider the submissions of the member, and make reasonable efforts to consider all records and documents it considers relevant to the complaint or report.¹⁷ The ICRC does not hold “in person” hearings nor does it hear oral evidence. All decisions are made on the basis of a paper record.

43Section 26(1) of the Code provides that the ICRC may do any one of the following at the conclusion of its investigation:

(a) refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee (following which the Discipline Committee will hear and determine allegations of professional misconduct);

(b) refer the member to a panel of the ICRC for incapacity proceedings (following which the Fitness to Practise Committee will hear and determine allegations of incapacity);

(c) require the member to appear before a panel of the ICRC to be cautioned; or

(d) take action it considers appropriate that is not inconsistent with the RHPA, the Code, the Dentistry Act, the regulations under those Acts, or the College’s by-laws. This includes requiring the member to complete a SCERP.¹⁸

44In 2017, the Code was amended to require regulated health colleges to provide greater transparency to the public regarding complaints and discipline against their members.¹⁹ As a result, the College’s public register must now contain a notation of every caution and every SCERP that a member receives from the ICRC.²⁰

HPARB’s Review of ICRC Decisions

45In the case of a complaint to the College, if the ICRC elects not to refer a member to discipline or incapacity proceedings, the complainant or the member who was the subject of the complaint may request the HPARB to review the ICRC’s decision.²¹ In its review, the HPARB is to consider either or both the “adequacy of the investigation conducted” and/or “the reasonableness of the decision.”²²

46In conducting a review, the member and the complainant are entitled to make submissions and respond to the submissions of the other party.

47Following its review of an ICRC decision, the HPARB may:

(a) confirm all or part of the decision;

(b) make recommendations to the ICRC that the HPARB considers appropriate; and

(c) require the ICRC to do anything it or a panel may do under the RHPA and the Code, except request the Registrar to conduct an investigation.²³

48There is no statutory right of appeal from decisions of HPARB.²⁴

Standard of Review

49The parties are agreed that the standard of review is reasonableness on a judicial review of an HPARB review of an ICRC decision.

Reasonableness of the Decision

50The Applicant only challenges the portion of the ICRC’s Caution that states that he should ensure that information provided to the College in response to a regulatory investigation is accurate, truthful and supported by the records. He submits this aspect of the Caution goes to his integrity. He submits that the ICRC is not permitted to make credibility findings but that this aspect of the Caution suggests that the ICRC determined that he purposively misled the College in responding to the Complaint. He submits that the ICRC’s findings were unreasonable and constituted impermissible findings of credibility with respect to three factual issues:

(a) that he was misleading when he claimed to the College that he was watching five teeth because “watching teeth” is not recorded on the patient’s chart;

(b) that he had made an inaccurate mis-statement when he represented to the College that his findings were “similar” to those of the Complainant’s subsequent treating dentist; and

(c) that he intended to mislead the College in his submission that the request for insurance predeterminations did not reflect his recommendations for treatment or what he actually scheduled for treatment.

51The points raised above go to the granular level of the ICRC decision. It is only in extraordinary circumstances that it is appropriate for this court to interfere with factual findings. Moreover, this judicial review entails a determination of whether the HPARB’s decision was reasonable. It is not a reasonableness review of the ICRC’s decision which was undertaken by the HPARB. While it is necessary to refer to the ICRC’s decision to determine whether the HPARB’s decision was reasonable, the focus must be on the HPARB’s decision.

52Before considering the points raised, it is important to identify what is not contested on this judicial review. In its final Decision the ICRC found:

Dr. Griffith created an aggressive and unnecessary treatment plan for resin restorations where they were not required, restored some surfaces that did not require restoration and billed for additional surfaces that do not appear to have been restored and treatment plan for unnecessary occlusal adjustment. In addition, the panel remained of the view that some of the information that Dr. Griffith provided in his response was not accurate…²⁵

53The only part being contested is the last sentence that some of the information that the Applicant provided in his response was not accurate. I now go on to consider the points raised by the Applicant.

(a) Was it unreasonable for the ICRC to find that the Applicant was misleading when he claimed to the College that he was watching five teeth because “watching teeth” is not recorded on the patient’s chart?

54The Applicant submits that the ICRC unreasonably found that he was misleading when he claimed he was watching five teeth because “watching teeth” is not recorded on the patient’s chart. He submits that what he told the College was that he had advised the Complainant on her fourth visit, after restoring two of her teeth, “that the remaining recommendations [to restore Teeth #36, 37, 46, 47, and 48] should be on a Watch List”. He submitted that he did not intend to actually perform restorations on those teeth. This resulted in the ICRC’s concern in the Preliminary Decision that the Applicant had not been entirely truthful or accurate because “watching the teeth” is not noted in the Complainant’s chart.

55In his response to the Preliminary Decision, the Applicant submitted that there is a clear notation made in the Complainant’s record of Clinical Examination on the Complainant’s first visit to his office on January 31, 2017 that identifies Tooth #46 with a handwritten “W” which means “watch”.

56The ICRC found that the Complainant’s chart demonstrated that the Applicant had planned to conduct those restorations over the course of the Complainant’s next visit(s) (including Tooth #46). It went on to find:

…in the progress note for February 6, 2017 Dr. Griffith made a notation at the bottom of the page that says “NV resto 17, 27, 46, 47, 48”. The panel is familiar that the notation “NV” is a common abbreviation for “next visit”. There are also notations in the progress notes for February 13, 2017 and February 21, 2017 which both say “next visit continue restorations”.²⁶

57The ICRC found that even in his initial letter of response to the Complaint, the Applicant responded that pit and fissure carries were noted on eight teeth including tooth #46.²⁷ The ICRC noted the Applicant’s submission regarding tooth #46²⁸. However, putting one tooth on a watch list does not support the Applicant’s submission that he told the Complainant that five teeth should be on a watch list. The Complainant told the College that although the Applicant told her that the cavities were “non urgent”, he “strongly advised” to have the teeth filled to prevent their progression. The ICRC ultimately concluded that the Applicant’s submissions regarding “watching” the teeth in general (not only with respect to Tooth #46) were not supported by the Complainant’s dental records.²⁹ The other evidence supported the ICRC’s finding that he intended to actually perform restorations on five teeth and misled the College in that regard. I find nothing unreasonable in the ICRC’s finding in this regard.

58If the ICRC’s Reasons are read as a whole and in light of the evidence and submissions, as they are required to be, the Applicant’s allegation that the Complainant’s dental records contradict the ICRC’s decision is untenable.

(b) Was it unreasonable for the ICRC to find that the Applicant’s use of the word “similar” was misleading?

59The Applicant submitted that the ICRC’s conclusion that the Applicant had made an inaccurate mis-statement to his governing body in the course of an investigation when he represented to the College that his findings were “similar” to those of Dr. Chang was unreasonable. However, the documentation demonstrated that the Applicant had planned restorations to three teeth (#37, 47, 48) that Dr. Chang did not treat at all, and that Dr. Chang had restored a single surface of Teeth # 46 and 17, where the Applicant had planned to restore five surfaces and three surfaces, respectively.³⁰ The Applicant’s response to the ICRC’s preliminary concerns about truthfulness and accuracy in responding to the College’s investigation was that he was referring to general areas of concern when he submitted that his findings were “similar” to Dr. Chang’s. In its final Decision, the ICRC still disagreed that his findings were “similar” and found that “categorizing the findings as similar is not a matter of opinion but clearly a mis-statement and not an accurate submission to make to his governing body in the course of an investigation.”³¹

60The Applicant submits that the ICRC had no power or means by which it could determine what was in his mind when he described his findings as “similar” to Dr. Chang’s and that it is unreasonable for the ICRC to opine on the meaning of the word “similar” and, in doing so, to find that the Applicant intentionally misled the College when using that word.

61Reading the ICRC’s reasons as a whole and in the context in which they arise, the ICRC’s logic is clear: in a clinical sense, planning to repair five surfaces of a tooth is not “similar” to planning to repair three surfaces, and planning multi-surface restorations on multiple other teeth is not “similar” to merely watching the teeth, with no treatment planned.

62The ICRC’s conclusion that the Applicant’s findings were not similar to those of the subsequent treating dentist was reasonable because it arose directly out of the ICRC’s expertise in the field: in the opinion of the dentists on the panel, it is not accurate to say that findings are “similar” where the restorations performed are different in scope and where one dentist recommends treatment on three teeth, where the other dentist recommends no treatment at all. Such conclusions are supported by the record and are owed substantial deference by this court.

63The Applicant also objects to the ICRC’s decision on the basis that its conclusions were impermissible findings of credibility and outside of its jurisdiction.

64In its Preliminary Decision, the ICRC expressed a concern that the information provided by the Applicant “may not have been entirely truthful or accurate.”³² Ultimately, however, the Panel concluded only that the Applicant’s submissions were simply not accurate:

After consideration of the submissions of Dr. Griffith and his lawyer […] the panel remained of the view that some of the information that Dr. Griffith provided in his response was not accurate.³³

65The Applicant submits that the only rationale for including the word “truthful” in the Caution imposed that “he should ensure that information provided to the College in response to a regulatory investigation is accurate, truthful and supported by the records”, is that they found him untruthful which is an impermissible credibility finding.

66The ICRC did not find the Applicant to have been dishonest nor did it question his integrity. The ICRC’s concerns are not akin to a credibility finding – it did not concern itself with the moral question of whether the Applicant was being honest, whether he was willing to speak the truth, whether he intended to mislead the Committee or, what was in his mind when he described his findings as similar. Rather, it was a concern that his submissions were not accurate.³⁴

67The ICRC is primarily a screening committee, and in carrying out that role it cannot make findings that are reserved to the other committees of the College; it has “no power to make determinations or findings of fact concerning incompetence, incapacity, failure to meet standards or professional misconduct.”³⁵

68However, it is not correct to say that the ICRC has no fact-finding powers at all. Rather, while the ICRC “does not assess credibility per se, [it] is permitted to engage in some limited weighing of the facts to assess the complaint.”³⁶ The ICRC is entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues.³⁷ Where an independent account, such as documentary evidence, is available to corroborate a version of events, there is no need for oral evidence or cross-examination for the ICRC to reach factual conclusions.³⁸

69In Reyhanian v. Ontario (HPARB), the ICRC was faced with a similar task, in which it had to weigh the submissions of one party against the contemporaneous notes of another. Ultimately, where the two were inconsistent, the ICRC preferred the written notes.³⁹ The Court held that the ICRC’s decision, and the HPARB’s subsequent review decision, was reasonable; it was not outside of the ICRC’s mandate to assess the material before it, to weigh the facts, and for the ICRC to conclude that it preferred the documentary evidence that was clear on its face.

70In making its determination in this case, the ICRC was squarely within this fact-finding sphere. It looked critically at the documentary record before it and the Applicant’s submissions and identified areas where, in its opinion, it was clear that the Applicant’s submissions were inconsistent with the dental records that he and his staff created.

71The issue is not whether the ICRC was correct, but whether the HPARB’s decision upholding ICRC’s decision was a reasonable one. Deference is required. The ICRC’s decision was appropriate and reasonable. The HPARB, as will be discussed further below, concluded that the ICRC’s decision was reasonable, based on all of the information before it and the ICRC’s expertise.

(c) Was it unreasonable for the ICRC to find that the Applicant intended to mislead the College in his submission that the request for insurance predeterminations did not reflect his recommendations for treatment or what he actually scheduled for treatment?

72First, it is important to emphasize that the ICRC did not confirm its preliminary concern that the Applicant may not have been truthful. In its final decision it did not find that the Applicant had intended to mislead the College, or been dishonest or untruthful.

73The Applicant advised the College that his office had requested insurance predeterminations specifically requested by the Complainant for budgeting purposes. The Applicant further advised that his office software would only permit him to submit predeterminations if they were electronically inputted into a treatment plan and the predeterminations noted every possible surface that might be treated if a restoration were done on each tooth. The Applicant advised that in this case, the treatment plan and predetermination did not reflect his recommendations to the Complainant or what he actually scheduled for treatment and he would have refined such findings following a microscopic examination.

74The Applicant submits that it would have been more reasonable to determine that the request for insurance predeterminations was for budgeting purposes and did not reflect his recommendations for treatment because:

(a) the Applicant’s subsequent treatment of the Complainant’s teeth was not consistent with the hygienist’s note recorded in the chart;

(b) the ICRC’s analysis makes no reference to Teeth #36 and 37; and

(c) the Complainant told the College in her Complaint that the Applicant told her that the cavities were non-urgent.

75There is no dispute that the Applicant’s office submitted predeterminations to the Complainant’s insurance company at the Complainant’s request as noted by the ICRC in its Decision.⁴⁰ Moreover, the ICRC did not conclude, as the Applicant claims, that he had been untruthful as to why his office had requested insurance predeterminations for the Complainant.⁴¹ Nor did the ICRC conclude that the Applicant had “intended” to mislead it.⁴²

76Rather, the ICRC was of the view that whatever the Applicant’s intentions:

“...it is not appropriate to pre-determine every possible future procedure. Doing so may be confusing or misleading to the patient and may not be accurate as some dental events are impossible to predict.”⁴³

77This is a normative conclusion of expert members of the ICRC that it is not appropriate to pre-determine every possible future procedure because it has a potential to mislead patients. There is nothing unreasonable in the ICRC’s conclusion.

78The ICRC concluded that the Applicant’s submission that the predeterminations and treatment plan did not reflect his recommendations to the Complainant or what he actually scheduled for treatment was not supported by the Complainant’s dental records.⁴⁴ This conclusion was reasonable and supported by the evidence before it:

(a) in the Complaint, the Complainant reported that the Applicant told her she had “five non-urgent cavities” and she was “strongly advised to have them filled to prevent them from progressing”;⁴⁵

(b) in the Applicant’s first response to the College, he noted that eight of the Complainant’s teeth had “pit and fissure caries”;⁴⁶

(c) following the Complainant’s second visit, the Applicant’s hygienist noted in the Complainant’s chart: “next visit restoration” Teeth #17, 27, 46, 47, 48 and the Applicant charted “predetermine recommendations for treatment”;⁴⁷

(d) after each of the Complainant’s second and third visits, the Applicant submitted insurance predeterminations for teeth he then went on to restore;⁴⁸

(e) at each of the Complainant’s third and fourth visits, after performing restorations on the Complainant’s teeth, the Applicant himself charted in the Complainant’s records: “next visit – continue restorations”;⁴⁹ and

(f) nowhere in the Complainant’s chart had the Applicant noted that his planned restorations required further investigation⁵⁰ (with the exception of Tooth #46 which had the “W” beside it but in regard to which the Complainant’s chart also noted “next visit restoration”).

79The Applicant’s fundamental complaint is simply that the ICRC did not accept his explanations. As set out above, the ICRC is entitled to engage in a limited weighing of the facts. In this case, the ICRC concluded that the dental records prepared by the Applicant and his staff did not support his submissions. This is a decision upon which the ICRC directly brought to bear its expertise and experience. The ICRC’s decision was coherent, rationally supported by the record and reasonable.

Was the Outcome Unreasonable?

80The Applicant submits that it is unclear from the ICRC’s decision or the HPARB’s decision what aspects of the in-office monitoring imposed flow from the ICRC’s fundamental factual error that the Applicant was dishonest and that therefore the entire decision is tainted and should be set aside or quashed. He further submits that there is a potential danger in the outcome which imposed practice monitoring for 24 months with no defined parameters because he has a very large financial stake at $1000 per attendance.

81As this court has held many times, a decision of the ICRC to caution a member is not a sanction or a penalty.⁵¹ A caution is entirely remedial in nature; it arises when the ICRC is concerned about an aspect of a dentist’s practice, professionalism, or conduct, and believes that the dentist would benefit from direction about the issues raised.⁵² It is not a sanction for the dentist’s past conduct but rather guidance for the future.⁵³

82The Applicant did not raise the timing of the practice monitoring in his Notice of Application or in his Factum. That issue is a matter to be left to the proper department of the College.

HPARB’s Decision

83The Applicant submits that the HPARB did not engage in any meaningful analysis of the ICRC’s findings of dishonesty and instead cited the expertise of the ICRC as the justification for the decision. He further submits that the HPARB failed to respond to the Applicant’s concern that the Caution will have a “seriously negative” impact on his career and livelihood.

Did the HPARB fail to analyse the ICRC decision?

84Reasons explain “how and why a decision was made.”⁵⁴ “Responsive reasons”, as held by the Supreme Court in Vavilov, require that administrative decision makers meaningfully account for the central issues and concerns raised by the parties.⁵⁵ However, decision makers are not expected to “respond to every argument or line of possible analysis” or to “make an explicit finding on each constituent element… leading to its final conclusion.”⁵⁶

85Vavilov also requires courts to read reasons in light of the record and with due sensitivity to the setting in which they were given. An administrative decision cannot be divorced from the institutional context in which the decision was made, nor from the history of the proceedings.⁵⁷ As this court recently stated in Mitelman v. College of Veterinarians of Ontario, the relevant context and history includes the “submissions of the parties and other decisions pertinent to the matter in issue.”⁵⁸

86The HPARB did not fail to grapple with the ICRC’s concerns that the Applicant had not been accurate or truthful in his response to the College. To the contrary, the Reasons demonstrate that the HPARB set out the ICRC’s concerns, examined the basis for those concerns in the Complainant’s dental records, contrasted them to the response provided by the Applicant, and concluded that, taking into consideration the expertise of the ICRC, its reasoning process and the outcome were reasonable.

87For example, with respect to the Applicant’s submission that his clinical findings were “similar” to that of the Complainant’s subsequent treating dentist, HPARB reviewed the Applicant’s submissions, which were that his “general” findings were similar to those of the subsequent treating dentist, because both dentists had noted decay on the same teeth (#17 and 46) and the subsequent dentist made a note to “watch” some of the same teeth for which the Applicant had treatment planned.⁵⁹ The HPARB’s Reasons also detail the ICRC’s concerns that the Applicant’s submissions were untenable:

The Committee noted that the Applicant’s treatment planned for a 5 surface restoration for tooth 46 and the subsequent treating dentist performed a one surface restoration. For tooth 17 the subsequent treating dentist performed a one surface restoration where the Applicant’s treatment planned for three. No treatment was performed for the other three teeth that the Applicant had treatment planned (27, 47, 48).⁶⁰

Moreover, after considering the Applicant’s reiterated position that his findings were “similar” to those of the subsequent treating dentists, the Committee disagreed and finds that categorizing the findings as similar is not a matter of opinion but clearly a mis-statement and not an accurate submission to make to his governing body in the course of an investigation.⁶¹

88Ultimately, the HPARB concluded that the concerns of the ICRC were reasonable because they were supported by the “totality of the information before it” and because the ICRC possessed the “necessary collective expertise to analyse the clinical information and conclude that the Applicant’s response was not accurate.”⁶²

89While the Applicant objects that in order to understand the Reasons, one has to have reference to the ICRC’s decision, this is not a basis for finding the decision unreasonable. The Vavilov framework explicitly provides that decisions must be read in light of the history of the proceeding, which includes prior decisions.⁶³ Reading the Reasons in this manner, the HPARB’s reasoning is clear and intelligible: the HPARB accepted that the ICRC had the necessary expertise to (1) assess the Complainant’s dental records, (2) consider the Applicant’s submissions, (3) and determine that the Applicant’s explanations for the treatment decision was not justified.

Did the HPARB fail to consider the impact upon the Applicant?

90The Applicant argues further that HPARB’s reasons are inadequate because they failed to give due consideration to his concern that the Caution would negatively impact his career and livelihood. This argument also lacks merit.

91Vavilov is clear that it is only where “the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes.”⁶⁴ In imposing this requirement, the Court relied upon its own decisions in Baker and Kane, which held that a:

higher standard of justice is required when the right to continue in one’s profession or employment is at stake… A disciplinary suspension can have grave and permanent consequences upon a professional career.⁶⁵

92This case does not meet that threshold. The Applicant is not at risk of a disciplinary suspension, or of losing his employment. The Applicant’s “concern” that his livelihood will be affected by the publication of the Caution is not based in evidence. As held by this Court in Silverthorne, (where the caution in issue was published on the internet, albeit not by the College) mere “perceptions” that an advisory caution may have an effect on one’s career are insufficient to impose a higher standard of Reasons than would otherwise be required.⁶⁶

93This court recently considered in Geris v. Ontario College of Pharmacists, 2020 ONSC 7437, whether the requirement that a caution must now be published on the College’s Register by statute moves a caution from being remedial to a sanction. Penny J., writing for the court, held:

33Cautions and educational or remedial directions are not meant as sanctions or penalties but are meant to benefit the practitioner and the patients by avoiding future complaints of a similar nature: Armogan, para. 9.⁶⁷

34It is true, as the applicant argues, that cautions and remedial orders regarding attendance at education programs are now placed on the public register. This was not the case when a number of the leading cases dealing with such orders were decided. However, the fact that the Legislature felt it would be in the public interest to make health disciplines bodies publish remedial orders of the kind issued by the ICRC in this case does not fundamentally alter the preventive, educational and remedial nature of such orders. I cannot agree that an entirely different approach must be taken now that remedial orders appear on the public register.

35Among other things, there is a mechanism in the legislation to remove entries from the public register where “the information is obsolete and no longer relevant to the member’s suitability to practise.”

[41]Directing the applicant to attend and receive an oral caution is not a penalty. Rather it is an educational and remedial measure intended to prevent the applicant from having a similar experience in the future and to protect the public…The applicant is asking this court to re-weigh the relevant factors and come to a different result. That is not the role of any court on judicial review, especially where remedy is concerned: Mitelman v College of Veterinarians of Ontario, 2020 ONSC 3039.

94Similarly it is not the role of this court to reweigh the relevant factors and come to a different result than that of the ICRC and HPARB. For these reasons, I would not accept the assertion of the Applicant that the Decision of HPARB was unreasonable.

Conclusion

95The ICRC’s decision was within the range of reasonable outcomes, was a product of its expertise, and the justification for it is transparently and intelligibly set out in its two sets of reasons. The ICRC’s decision was reasonable and was owed deference by the HPARB. The HPARB’s decision was reasonable and justified in all the circumstances.

96For the foregoing reasons, I would dismiss the application for judicial review.

Costs

97In accordance with the parties’ agreement, the College, as the successful party, shall be entitled to costs of $12,000 to be paid by the Applicant. No costs are claimed by the HPARB.

Backhouse J.

I agree _______________________________

Penny J.

I agree _______________________________

Favreau J.

Footnotes

1. 1ICRC Final Decision, November 14, 2018, Respondent’s Record of Proceeding (“ROP”), Vol 2, p 536.
2. 2ICRC Final Decision, November 14, 2018, ROP, Vol 2, p 536.
3. 3ICRC Final Decision, November 14, 2018, ROP, Vol 2, p 536.
4. 4ICRC Final Decision, November 14, 2018, ROP, Vol 2, p 536.
5. 5ICRC Final Decision, November 14, 2018, ROP, Vol 2, p 536.
6. 6ICRC Final Decision, November 14, 2018, ROP, Vol 2, p 537, 539-540.
7. 7ICRC Final Decision, November 14, 2018, ROP, Vol 2, p 537, 540 - The decision says that the three teeth that were not restored were (27, 47, 48) but that is an error, as the Applicant restored Tooth #27 at the first appointment.
8. 8ICRC Final Decision, November 14, 2018, ROP, Vol 2, p 542.
9. 9HPARB Decision and Reasons, ROP, Vol 4, p 853-854, 855 at paras 25-30, 44.
10. 10S.O. 1991, c. 18 (“RHPA”).
11. 11Schedule 2 to the RHPA (the “Code”).
12. 12S.O. 1991, c. 24.
13. 13Code, s. 3(2).
14. 14Code, s. 3(1).
15. 15Code, s. 10.
16. 16Iacovelli v. College of Nurses of Ontario, 2014 ONSC 7267 (Div Crt) at para 19.
17. 17Code, s. 26(1).
18. 18Code, s. 26.
19. 19Protecting Patients Act, 2017, S.O. 2017, c. 11, Schedule 5, s. 11.
20. 20Code, s. 23(2).
21. 21Code s. 29(1).
22. 22Code, s. 33(1).
23. 23Code, s. 35(1).
24. 24The appeal rights that are available are set out in s. 70 of the Code.
25. 25ICRC Final Decision, November 14, 2018, page 9.
26. 26ICRC Final Decision, November 14, 2018, ROP, Vol.2, p.537, 539-540.
27. 27ICRC Final Decision, November 14, 2018, ROP, Vol.2, p.539.
28. 28ICRC Final Decision, November 14, 2018, ROP, Vol.2, p.540.
29. 29ICRC Final Decision, November 14, 2018, ROP, Vol.2, p.537,540.
30. 30ICRC Final Decision, November 14, 2018, ROP, Vol.2, p.537, 540.(See Footnote 50 to the College’s Factum).
31. 31ICRC Final Decision, November 14, 2018, ROP, Vol.2, p.540-541.
32. 32ICRC Final Decision, ROP, Vol 4, p 537.
33. 33ICRC Final Decision, ROP, Vol 4, p 541.
34. 34Ontario (College of Physicians and Surgeons of Ontario) v. Phipps, 2018 ONCPSD 48, 2018 CarswellOnt 14049 (CPSO DC) at para 144.
35. 35McKee v. Health Professions Appeal and Review Board (Div Crt) at paras 13, 36; see also Lum et al v. ICRC of the College of Physiotherapists of Ontario, 2015 ONSC 7227 (Div Crt) at paras 4-6, leave to SCC ref’d 2016 60506 [“Lum”], wherein the Divisional Court held that the ICRC’s “concerns” regarding a member’s conduct were just that – concerns – and did not constitute a finding of professional misconduct that was outside of the jurisdiction of the ICRC to make.
36. 36K.D. v. S.V.Z. at para 22; L.C. v. V.D. at para 22; Reyhanian v. Ontario (Health Professions Appeal Review Board), 2013 CarswellOnt 2061, 2013 ONSC 297, [2013] O.J. No. 1292, 226 A.C.W.S (3d) 281 at para 16.
37. 37Reyhanian at para 20.
38. 38Kimvar Enterprises Inc. v. Nextnine Limited at para. 9; BM v. VM (HPARB) at para 33; L.C. v. V.D. at para 22;AW v. DDP (HPARB) at para 29; Lum at paras 4-7.
39. 39Reyhanian at paras 16-20.
40. 40ICRC Final Decision, ROP, Vol 2, p 534-535, 537.
41. 41ICRC Final Decision, ROP, Vol 2, p 537-540.
42. 42ICRC Final Decision, ROP, Vol 2, p 537-540.
43. 43ICRC Final Decision, ROP, Vol 2, p 540.
44. 44ICRC Final Decision, ROP, Vol 2, p 539.
45. 45Complaint, ROP, Vol 1, p 5 .Complainant’s Submissions to HPARB, ROP, Vol 5, p 858-859.
46. 46Griffith’s First Submissions, ROP, Vol 1, p 42.
47. 47Progress Notes, February 6, 2017, ROP, Vol 1, pp 77 and 80;Progress Notes, February 6, 2017, ROP, Vol 1, p 81, 83.
48. 48Dental Predetermination, February 7, 2017 and February 14, 2017, ROP, Vol 1, p 8.Dental Predetermination, February 22, 2017, ROP, Vol 1, p 9.
49. 49Progress Notes, February 13, 2017, ROP, Vol 1, 86, 88.
50. 50ICRC Final Decision, ROP, Vol 2, p 539.
51. 51Fielden v. HPARB, 2013 ONSC 4261 (Div Crt) at para 10; Silverthorne at para 16 citing Modi v. Ontario (Health Professions Board)
52. 52M.J.S. v M.P. at para 83 .
53. 53A.T. v. D.D. at paras 79-80 .
54. 54Vavilov at para 79.
55. 55Vavilov at paras 127-128.
56. 56Vavilov at paras 79, 127-128.
57. 57Vavilov at para 91.
58. 582020 ONSC 3039 (Div Crt) at para 30 [“Mitelman”].
59. 59HPARB Decision, ROP, Vol 4, p 851-852.
60. 60HPARB Decision, ROP, Vol 4, p 856.
61. 61HPARB Decision, ROP, Vol 4, p 859.
62. 62HPARB Decision, Vol 4, p 855, para 48.
63. 63Vavilov at para 91; Mitelman at para 30.
64. 64Vavilov at para 133.
65. 65Baker v. Canada (Minister of Citizenship and Immigration) at para 25, citing Kane v. Board of Governors of the University of British Columbia at p 1113.
66. 66Silverthorne v. Ontario College of Social Workers and Social Services Workers (Div Crt) at para 16 [“Silverthorne”].
67. 67Armogan v. Health Professions Appeal Review Board, 2013 ONSC 3095 (Div.Crt.).