E v. Health Professions Appeal and Review Board, 2022 ONSC 2179

CITATION: E v. Health Professions Appeal and Review Board, 2022 ONSC 2179

DIVISIONAL COURT FILE NO.: 229/21

DATE: 20220411

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, D.L. Corbett and Baltman JJ.

BETWEEN:

DR. CHARLES SIW E

Applicant

– and –

HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO, and G.C.

Respondents

Carolyn Brandow and Sarah Martens, for the Applicant

David P. Jacobs, for the Respondent Health Professions Appeal and Review Board

Denise Cooney and William Watson, for the Respondent Royal College of Dental Surgeons of Ontario

HEARD at Toronto (by videoconference): March 23, 2022

Swinton J.

Overview

1The applicant, Dr. Charles Siw E, seeks judicial review of a decision of the Health Professions Appeal and Review Board (the “Board”) dated February 25, 2021. The Board dismissed a review of a decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the Royal College of Dental Surgeons of Ontario requiring the applicant to appear for a caution and to participate in a specified continuing education or remediation program (“SCERP”).

2For the reasons that follow, I would dismiss the application, as the applicant was accorded procedural fairness by the ICRC, and the decision of the Board was reasonable.

Factual Background

3The applicant is a general dentist who provides orthodontic treatment. One of his patients, C, made a complaint to the College in 2017 about her treatment by the applicant in 2015 and 2016.

4In a decision dated April 12, 2018, the ICRC ordered the applicant to attend for an in-person caution concerning proper record-keeping, obtaining informed consent, and conducting a proper case work-up prior to conducting orthodontic treatment. It also ordered him to undertake a SCERP consisting of a course on record-keeping, a course on informed consent, and a course on orthodontics (with an emphasis on case work-up/treatment planning), as well as practice monitoring.

5The applicant sought a review before the Board, which granted the review in part on May 8, 2019. Pursuant to s. 33(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”), the Board, on a review, may consider the adequacy of the ICRC’s investigation and/or the reasonableness of its decision.

6The Board found that the ICRC investigation was adequate and upheld the SCERP requirement with respect to record keeping. However, the Board concluded that the ICRC decision was unreasonable on the issues of informed consent and work-up/treatment planning, because the ICRC had failed to address the majority of the applicant’s written submissions or explain why it had rejected his responses to their concerns about his work-up/treatment planning. Further, the ICRC’s comments with respect to the issue of informed consent were found not to be supported by the record. The Board remitted the matter to the ICRC to reconsider these issues and provide new reasons.

7In a second decision, dated July 4, 2019, the ICRC, differently constituted, again directed the caution in person and the SCERP requirements respecting proper case work-up and informed consent and monitoring. Prior to reaching its decision, the ICRC had refused the applicant’s request that he be allowed to make further written submissions. The ICRC did so on the basis that the Board had found the ICRC investigation adequate in its review.

8In its second decision, the ICRC found the applicant’s clinical knowledge of orthodontic case work-ups and treatment planning to be deficient - for example, the orthodontic work-up he completed for C was significantly less detailed than what is required for a proper work-up. It also found that his submissions - such as the statement that there were “no material risks or material side effects of the treatment” - demonstrated his lack of knowledge about what is required to obtain informed consent.

9The applicant sought a further review before the Board.

The Board’s Decision of February 25, 2021

10The Board found, first, that the ICRC investigation was adequate. It noted that the ICRC had considered the complaint and the applicant’s response, his written submissions prior to the first ICRC decision, the dental records of C and correspondence (including from C’s new orthodontist), the initial decisions by the ICRC and the Board, and the applicant’s submissions to the Board on its 2019 review. The Board ultimately found that there was no persuasive indication that the further submissions that the applicant had sought to make to the ICRC would have altered the ICRC’s analysis of the possible risks of the orthodontic treatment.

11The Board also found that the second ICRC decision was reasonable as it related to the issues of informed consent and case work-up/treatment planning. The Board concluded that both dispositions of the ICRC addressed the public interest and were justified by the information that was before the ICRC. Therefore, the Board dismissed the review.

The issues on this application for judicial review

12The applicant raises two issues: first, whether the ICRC denied the applicant procedural fairness when it refused to accept his further written submissions prior to making the second decision, and second, whether the Board’s decision was unreasonable.

There was no denial of procedural fairness

13There is no standard of review with respect to procedural fairness. The task of the reviewing court is to determine whether the appropriate level of procedural fairness has been accorded.

14The applicant argues before this Court that the ICRC violated the duty of procedural fairness by refusing to allow him to make further written submissions following the Board’s referral. He submits that the Board’s comments in its 2019 decision amounted to new information or a shifting of the ground to which he should have been allowed to respond.

15I disagree. The Board, in its first decision, found that the ICRC’s investigation into C’s complaint had been adequate. Its concern was the lack of explanation for the ICRC’s conclusions respecting work-ups and informed consent, given the record and the written submissions from the applicant that had been before it. The Board sent the matter back to be considered in light of the record and the applicant’s submissions and instructed the ICRC to provide new reasons.

16An important aspect of procedural fairness is the right to be heard. That right was respected by the ICRC. When the matter was returned to the ICRC by the Board, there was no need for new submissions by the applicant. There was no new information before the ICRC because of the Board’s decision. It is clear from the Board’s reasons that the ICRC was required to consider the record that had resulted from the initial investigation, as well as the applicant’s earlier, and numerous submissions. While the Board in other cases has required the ICRC to consider further submissions, it did not do so in the present case (contrast, for example, AM v. College of Psychologists of Ontario, 2020 ONHPARB 27935 at para. 43).

17The duty of procedural fairness did not require the ICRC to accept further submissions from the applicant nor to conduct any further investigation, because the Board’s decision was neither new information nor a shifting of the grounds, as the applicant submits.

18Subsection 26(1) of the Code sets out the powers of the ICRC. In accordance with that provision, the ICRC may make certain orders, such as a referral to discipline, after conducting an investigation into a complaint and considering submissions from the member and “making reasonable efforts to consider all records and documents it considers relevant to the complaint.” In the present case, the ICRC reasonably concluded that the Board’s decision did not create a different focus for its deliberations and did not create a new issue for the ICRC to consider. It reasonably concluded that the applicant did not have the right to provide further information and further submissions to the ICRC.

19In effect, the applicant sought to adduce new evidence and further argument before the ICRC. Given s. 26(1) of the Code, the ICRC had the discretion whether to accept further information and submissions.

20In the second review of the ICRC’s decision, the Board was again asked to find the ICRC’s investigation was inadequate. The Board considered the new submissions that the applicant had sought to put before the ICRC, and it concluded that the submissions would not likely have affected the decision of the ICRC. It then concluded that the ICRC’s investigation was adequate even though the ICRC had refused the further submissions.

21In my view, the Board’s conclusion was reasonable. The temporomandibular joint issues that the applicant discussed were only one of many material risks that the applicant was found not to have advised C of. As well, the ICRC’s concern was not about the applicant’s failure to obtain a cephalometric radiograph, but rather his failure to conduct an adequate case work-up by any means.

22In sum, the applicant was not denied procedural fairness before the ICRC, and the Board’s decision as to the adequacy of the ICRC’s investigation was reasonable.

The Board’s decision on the merits was reasonable

23The parties agree that the standard of review with respect to the Board’s decision on the merits is reasonableness.

24The applicant submits that the Board’s decision was unreasonable, because it upheld the ICRC’s unreasonable decision.

25Again, I disagree. The ICRC was concerned that the applicant had commenced orthodontic treatment on C, including the extraction of one tooth, without having done a full orthodontic work-up. It was also concerned about deficiencies in the protocols to obtain informed consent, and it observed that informed consent depends on a proper case work-up. In its reasons, the ICRC set out its areas of concern in some detail. It also determined that the public interest would be protected if the applicant received a caution and underwent the SCERP requirements. At p. 11 of its reasons, the ICRC stated,

In sum, this panel felt that Dr. E’s own submissions expose his lack of knowledge of what is required to properly obtain informed consent for orthodontic treatment, as well deficiencies in his clinical knowledge of orthodontic case work-ups and treatment planning.

26This was a reasonable conclusion in the circumstances, and adequately justified by the ICRC.

27The Board noted, in its second decision, that the ICRC had specifically addressed the applicant’s submissions regarding alginate impression models, extraction of tooth 42, and a contingency plan concerning the use of a retainer (at para. 65). The Board concluded that the ICRC concerns about the applicant’s case work-up and treatment plan were supported by the Record and, in part, by the applicant’s submissions (at para. 71). At paras. 81-82, the Board stated,

The Board finds that the Committee engaged in a chronological examination of the sequence of events which demonstrated that an inadequate case work-up and treatment plan was undertaken, and that the Committee applied its expertise related to the expected standards of the profession and reached a decision that was based on a chain of analysis that was rational and coherent and supported by the information in the Record.

The Board comes to the same conclusion concerning the Committee’s decision to impose a caution and a SCERP regarding the issue of informed consent.

28The arguments that the applicant raises on this application for judicial review are those which it made before the Board. The Board carefully considered the ICRC’s decision and explained why it found the ICRC decision was reasonable. The applicant has failed to show that the Board’s decision dismissing the review of the second ICRC decision was unreasonable based on the record and the submissions before it.

Conclusion

29The application for judicial review is dismissed. Costs to the College are fixed at the agreed amount of $11,000.00 all inclusive, payable by the applicant. The Board does not seek costs.

Swinton J.

I agree _______________________________

D.L. Corbett J.

I agree _______________________________

Baltman J.

Released: April 11, 2022

CITATION: E v. Health Professions Appeal and Review Board, 2022 ONSC 2179

DIVISIONAL COURT FILE NO.: 229/21