DATE: 20020422 DOCKET: C36082

COURT OF APPEAL FOR ONTARIO

LASKIN, MACPHERSON AND SIMMONS JJ.A.

B E T W E E N :

ANNIE LEE ROGERS and BRENDAN PATRICK CROUGH

John Legge and Cameron Pallett for the appellants

Plaintiffs (Appellants)

• and -

MICHAEL FAUGHT, AUSTIN WANG, ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO, THE COLLEGE OF DENTAL HYGIENISTS OF ONTARIO and MIDORI CARNEY

Terrence O’Sullivan and Tracy Wynne for the respondent Royal College of Dental Surgeons of Ontario

Richard Steinecke for the respondent Royal College of Dental Surgeons of Ontario

Defendants (Respondents)

Heard: February 15, 2002

On appeal from the judgment of Justice Donald R. Cameron dated February 23, 2001.

MACPHERSON J.A.:

A. INTRODUCTION

[1] On November 16, 2001, the Supreme Court of Canada released decisions in Cooper v. Hobart (2000), 2001 SCC 79, 206 D.L.R. (4th) 193 (“Cooper”), and Edwards v. Law Society of Upper Canada (2001), 2001 SCC 80, 206 D.L.R. (4th) 211 (“Edwards”). In both cases, regulatory bodies, the Registrar of Mortgage Brokers of British Columbia in Cooper and the Law Society of Upper Canada in Edwards, were sued for negligence arising from the manner in which they had allegedly failed to act responsibly and promptly after receiving information that members of the regulated professions had acted improperly. As a result of the alleged negligence, investors who had relied upon regulated professionals, namely, mortgage brokers and lawyers, lost substantial sums of money.

[2] In both Cooper and Edwards, aggrieved clients sued the professionals. However, they also sued the regulatory bodies. The courts in British Columbia and Ontario struck out the actions against the regulators on preliminary motions. In unanimous decisions, the Supreme Court of Canada upheld the lower court judgments, principally on the basis that the regulators did not owe a duty of care to individual members of the public. As expressed by Major J. in Cooper, at p. 208:

In this case, the statute does not impose a duty of care on the Registrar to investors with mortgage brokers regulated by the Act. The Registrar’s duty is rather to the public as a whole. Indeed, a duty to individual investors would potentially conflict with the Registrar’s overarching duty to the public.

See also: Edwards, at p. 218.

[3] The principal issue on the present appeal is whether the analysis and conclusions in Cooper and Edwards apply to two different regulatory bodies in Ontario, the Royal College of Dental Surgeons of Ontario and the College of Dental Hygienists of Ontario. A second issue is whether a patient of a dentist and dental hygienist can initiate claims grounded in ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (“the Charter”) against the bodies which regulate these two professions.

B. FACTUAL BACKGROUND

(1) The parties and the events

[4] The appellant Annie Rogers (“Ms. Rogers”) visited the offices of dental surgeons Dr. Michael Faught and Dr. Austin Wang in Peterborough on September 23, 1999 to have her teeth cleaned by Midori Carney, a dental hygienist. Ms. Rogers alleges that she suffered serious injuries to her temporomandibular joints (“TMJs”) as a result of negligent treatment by the hygienist. She claims that, despite her complaints of severe pain and requests that she be allowed to close her mouth and rest, the hygienist insisted that the cleaning continue and demanded that she open her mouth as wide as possible.

[5] Since having her teeth cleaned, Ms. Rogers claims that she has experienced severe and debilitating pain in her TMJs, neck, back, shoulders, arms, elbows, wrists, fingers and hands. She has also had recurrent headaches, severe restrictions on her ability to open her mouth, nausea, memory loss and light sensitivity. She also alleges that she suffers severe pain in the performance of routine daily tasks.

[6] Approximately 11 months after the cleaning, Ms. Rogers and her spouse, the appellant Brendan Crough, commenced an action against Dr. Faught, Dr. Wang and Ms. Carney. The core of Ms. Rogers’ claim against these defendants sounded in negligence.

[7] In addition, Ms. Rogers sued two regulatory bodies, the Royal College of Dental Surgeons of Ontario (“RCDSO”) and the College of Dental Hygienists of Ontario (“CDHO”). These bodies regulate, respectively, the professions of dentistry and dental hygiene in Ontario pursuant to inter alia, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the RHPA”) and Schedule 2 thereof, being the Health Professions Procedural Code (“the Code”).

[8] The claims against the RCDSO and the CDHO (collectively, the “Colleges”) were both more numerous and broader than those against the defendant dentists and hygienist and included claims for negligence, misfeasance of public office, breach of statutory duty, breach of fiduciary duty, and breaches of ss. 7 and 15 of the Charter.

(2) The litigation

[9] The Colleges brought motions on February 2, 2001 pursuant to Rules 21.01(1)(b), 21.01(3)(d), 25.06 and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order, inter alia, striking out the Amended Statement of Claim against the Colleges on the ground that it disclosed no reasonable cause of action.

[10] The motions were heard by Justice Donald R. Cameron. On February 23, 2001, Cameron J. released comprehensive reasons dismissing all of the claims against the Colleges. In supplementary reasons dated May 29, 2001, the motions judge ordered the plaintiffs to pay the RCDSO and the CDHO costs of $16,607.24 and $14,257.85 plus GST respectively.

[11] The appellants appeal against both of Cameron J.’s judgments.

C. ISSUES

[12] The issues on the appeal are:

(1) Did the motions judge err by striking the appellants’ common law and equity claims against the Colleges grounded in negligence, misfeasance of public office, breach of statutory duty and breach of fiduciary duty?

(2) Did the motions judge err by striking the appellants’ claims against the Colleges grounded in ss. 7 and 15 of the Charter?

(3) Did the motions judge err by awarding costs to the Colleges, the successful moving parties?

D. ANALYSIS

(1) The causes of action anchored in ‘Duty’

[13] The appellants advance claims against the Colleges grounded in negligence, misfeasance of public office, breach of statutory duty and breach of fiduciary duty. Central to all of these claims is the assertion that the Colleges owed various types of duties to the appellants and that the Colleges breached those duties. I will consider these claims separately; however, the essential theme of the analysis on the first claim, the negligence claim, will flow through to the analysis of the other claims.

(a) Negligence

[14] The essence of the appellants’ action is that the Colleges were negligent by failing to take adequate risk management steps, including the adoption and implementation of professional standards and programs for its member dentists to ensure that routine dental procedures which affect the TMJ do not cause injury. In my view, the evaluation of this claim turns entirely on the application of the recent decisions of the Supreme Court of Canada in Cooper and Edwards.

[15] In Cooper, the issue was whether a statutory regulator, the Registrar of Mortgage Brokers of British Columbia, owed “a private law duty of care to members of the investing public for (alleged) negligence in failing to properly oversee the conduct of an investment company licensed by the regulator” (p. 200). In Edwards, the issue was whether the Law Society of Upper Canada owed “a duty of care to persons who deposit money into a solicitor’s trust account in respect of losses resulting from misuse of the account” (p. 217).

[16] The Supreme Court of Canada treated Cooper and Edwards as companion cases, with Cooper being the lead case. In Cooper, the court re-affirmed its adoption of the so-called Anns test, from Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as the proper basis for determining whether a duty of care exists in a particular case. Major J. described the two-stage Anns test in this fashion, at p. 201:

In Anns . . . the House of Lords, per Lord Wilberforce, said that a duty of care required a finding of proximity sufficient to create a prima facie duty of care, followed by consideration of whether there were any factors negativing that duty of care.

[17] In Cooper, the appellants alleged that the Registrar of Mortgage Brokers should have acted earlier to suspend the mortgage broker, Eron Mortgage Corporation (“Eron”), or to warn investors of Eron’s alleged breaches of the governing statue. Major J. engaged in a careful analysis of the Mortgage Brokers Act, R.S.B.C. 1996, c. 313, which created the position and duties of the registrar. Based on that review, coupled with his application of the legal analysis from Anns, he concluded, at pp. 207-210:

In this case, the factors giving rise to proximity, if they exist, must arise from the statute under which the Registrar is appointed. That statute is the only source of his duties, private or public. Apart from that statute, he is in no different position than the ordinary man or woman on the street. If a duty to investors with regulated mortgage brokers is to be found, it must be found in the statute.

In this case, the statute does not impose a duty of care on the Registrar to investors with mortgage brokers regulated by the Act. The Registrar’s duty is rather to the public as a whole. Indeed, a duty to individual investors would potentially conflict with the Registrar’s overarching duty to the public.

The regulatory scheme governing mortgage brokers provides a general framework to ensure the efficient operation of the mortgage marketplace. The Registrar must balance a myriad of competing interests, ensuring that the public has access to capital through mortgage financing while at the same time instilling public confidence in the system by determining who is “suitable” and whose proposed registration as a broker is “not objectionable”. All of the powers or tools conferred by the Act on the Registrar are necessary to undertake this delicate balancing. Even though to some degree the provisions of the Act serve to protect the interests of investors, the overall scheme of the Act mandates that the Registrar’s duty of care is not owed to investors exclusively but to the public as a whole.

Accordingly, we agree with the Court of Appeal per Newbury J.A.: even though the Registrar might reasonably have foreseen that losses to investors in Eron would result if he was careless in carrying out his duties under the Act, there was insufficient proximity between the Registrar and the investors to ground a prima facie duty of care. The statute cannot be construed to impose a duty of care on the Registrar specific to investments with mortgage brokers. Such a duty would no doubt come at the expense of other important interests, of efficiency and finally at the expense of public confidence in the system as a whole.

[18] In Edwards, the appellants submitted that the Law Society of Upper Canada, as the governing body of the self-regulated legal profession in Ontario, owed a duty of care to persons who deposited money into a solicitor’s trust account in respect of losses resulting from misuse of that account. Major J. engaged in an analysis similar to his analysis in Cooper and reached the same conclusion. He said, at p. 219:

The Law Society Act is geared for the protection of clients and thereby the public as a whole, it does not mean that the Law Society owes a private law duty of care to a member of the public who deposits money into a solicitor’s trust account. Decisions made by the Law Society require the exercise of legislatively delegated discretion and involve pursuing a myriad of objectives consistent with public rather than private law duties.

[19] Based on Cooper and Edwards, the question becomes: do the structure and contents of the Ontario laws regulating the dentistry and dental hygiene professions, namely the RHPA and the Code, suggest an answer different from the answers in those two decisions? In my view, the answer to this question must be ‘No’.

[20] The objects of the two Colleges are contained in the RHPA and the Code. In broad terms, they focus on the regulatory role of the Colleges. Importantly, s. 3(2) of the Code, which by virtue of s. 4 of the RHPA applies to all health professions, provides:

3(2) In carrying out its objects, the College has a duty to serve and protect the public interest.

[21] Registration under the RHPA involves a balancing of competing interests, including rights for the professional applicants and duties to the public interest as a whole: ss. 15-23 of the Code. There is a complaints and discipline process with detailed rules balancing the rights of the complainants, witnesses and the regulated members of the professions, with an overall objective of protecting the public interest as a whole: ss. 25-56 and 70-79 of the Code. In contrast to the public discipline process, there is a private process to deal with concerns about physical or mental incapacity of members of the professions: ss. 57-74 of the Code. The Colleges are required to operate non-punitive quality assurance programs to assure the quality of the practice of the professions and to promote continuing competence by their members: ss. 79.1-83 of the Code. The Colleges must establish patient relations programs to enhance relations between members and patients: ss. 84-85 of the Code. The Colleges are required to provide funding for counselling and therapy for patients who have been sexually abused by members: s. 85.7 of the Code. Finally, and importantly, s. 38 of the RHPA provides:

No action or other proceeding for damages shall be instituted against . . . a College . . . for an act done in good faith in the performance . . . of a duty or in the exercise . . . of a power under this Act, a health profession Act . . . or a regulation or a by-law under those Acts or for any neglect or default in the performance or exercise in good faith of the duty or power.

This immunity provision is virtually identical to the one which Major J. characterized in Edwards, as “perhaps most indicative of the Legislature’s intent” (p. 219) not to create a duty relationship between a regulatory body and clients of members of the regulated profession.

[22] Based on this analysis of the RHPA and the Code, I conclude that their scheme is very similar to the schemes considered in Cooper and Edwards. Accordingly, the Colleges do not owe a duty of care to the patients of dentists and dental hygienists.

[23] The appellants advance a separate argument against this conclusion with respect to the RCDSO, but not the CDHO. They assert that the immunity provision in s. 38 of the RHPA only shields the Colleges against a civil action for acts of the Colleges done “in good faith”. With respect to the RCDSO, the appellants allege that its failure to take adequate steps in the area of TMJ education and practice was done in bad faith. The bad faith claim is grounded in the assertion that RCDSO operates its own private insurance program for dentists, the Professional Liability Program. The appellants contend that there is a conflict of interest between this component of its activities (one aspect of which would be a desire to keep insurance rates low) and the education component of its activities which would require the College to provide comprehensive and visible instruction about potential risks in the treatment of patients.

[24] I do not agree with this submission. Section 94(1)(y) of the Code specifically authorizes the Colleges to make by-laws “requiring members to have professional liability insurance that satisfies the requirements specified in the by-laws or to belong to a specified association that provides protection against professional liability . . . .” I do not see how the creation of an insurance scheme specifically authorized by the regulatory statute can be deemed as a “bad faith” exercise of power by the RCDSO.

[25] Finally, I note that in Cooper and Edwards the Supreme Court of Canada also held against potential liability in negligence of the regulators on the basis of the second stage of the Anns test, namely, the existence of policy reasons which negated any prima facie duty of care. The factors which the court relied on in this aspect of its analysis included the requirement in the governing statutes that the regulatory bodies balance public and private interests, the strong policy-making role of the regulators, the fact that some of their decisions were quasi-judicial in nature, the spectre of indeterminate liability and the impact on the taxpayer of judicial creation of a new and expensive insurance scheme in the absence of any indication that the legislature intended such a result. In my view, all of these factors are equally applicable to the scheme in issue in the present appeal; accordingly, the appellants cannot clear the hurdle of the second stage of the Anns test.

(b) Misfeasance of public office

[26] The appellants contend that the RCDSO (but not the CDHO) committed the tort of misfeasance of public office through abusive exercise of its administrative powers. They rely on a passage from Borins J.A.’s judgment in Odhavji Estate v. Woodhouse (2000), 2000 17007 (ON CA), 52 O.R. (3d) 181 at 197 (C.A.):

[T]he defining feature of the tort of misfeasance in public office is the exercise of . . . administrative powers by their recipients for purposes incompatible with those envisaged by the legislation under which they derive such powers.

[27] The incompatible purpose which the appellants assert animated the RCDSO’s failure to adequately perform its education and practice review responsibilities with respect to TMJ injuries was its improper and collateral purpose of keeping insurance rates for members of the profession as low as possible. This is a duplication of the ground ploughed, unsuccessfully, by the appellants in their negligence claim.

(c) Breach of statutory duty

[28] There is no separate tort of breach of statutory duty. The highest at which an alleged breach of a statutory duty can be put is that “it should be considered in the context of the general law of negligence”: see The Queen in Right of Canada v. Saskatchewan Wheat Pool (1983), 1983 21 (SCC), 143 D.L.R. (3d) 9 at 24 (S.C.C., per Dickson J.). In light of the previous analysis with respect to the negligence issue, this is of no assistance to the appellants.

(d) Breach of fiduciary duty

[29] Since the College’s overriding duty is, as discussed above, to the public interest, they cannot owe a duty, especially one at the high level of fiduciary, to an individual client of a dentist or dental hygienist. As noted by Dickson J. in Guerin v. The Queen (1984), 1984 25 (SCC), 13 D.L.R. (4th) 321 at 341 (S.C.C.):

[F]iduciary duties generally arise only with regard to obligations originating in a private law context. Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship.

See also: Farm Credit Corp. v. Pipe (1993), 1993 8588 (ON CA), 16 O.R. (3d) 49 at 60-61 (C.A.).

(2) The Charter causes of action

[30] The appellants allege that the failure of the Colleges to establish programs and standards of practice respecting the appropriate care to be taken when dealing with patient complaints relating to TMJs caused or contributed to Ms. Rogers’ injuries. The Colleges’ failure, contend the appellants, amounted to a violation of Ms. Rogers’ right under s. 7 of the Charter to security of the person.

[31] The appellants further contend that since most TMJ injuries occur in women, the failure of the Colleges had a disproportionate impact on women, thereby violating Ms. Rogers’ right under s. 15 of the Charter to the equal protection of the law without discrimination on the basis of sex.

[32] I disagree with the appellants’ submissions. As a general proposition, the application of the Charter is confined to government action, not inaction: see Ferrel v. Ontario (Attorney General) (1998), 1998 6274 (ON CA), 42 O.R. (3d) 97 (C.A.), leave to appeal to the Supreme Court of Canada refused December 9, 1999. The Colleges have the authority under the RHPA and the Code to develop and maintain programs and standards of practice for the professions of dentistry and dental hygiene. However, the Charter does not impose on the Colleges an affirmative duty to establish specific programs and standards of practice to deal with discrete medical problems.

[33] An exception to the general proposition can arise if a government, or a body acting with the authority of a government (such as the Colleges), legislates in a particular domain, but does so in a narrow fashion that infringes the rights of persons not covered by the legislation: see, for example, Eldridge v. British Columbia (Attorney General), 1997 327 (SCC), [1997] 3 S.C.R. 624. That is not this case; the alleged failures to act or omissions of the Colleges are not ‘laws’ or ‘government action’. In short, a failure by a statutory regulator to exercise a discretionary power cannot be equated with ‘underinclusiveness’ when the regulator has exercised the power.

[34] Moreover, with respect to the appellants’ s. 7 claim, it must fail, as the motions judge noted, because s. 7 of the Charter does not embrace the right to bring an action for the recovery of damages for personal injury. A civil action is economic and proprietary in nature and as such outside the range of interests protected by s. 7: see, Filip v. Waterloo (City) (1992), 1992 8652 (ON CA), 98 D.L.R. (4th) 534 at 537-38 (Ont. C.A.).

(3) Costs of the motion

[35] The motions judge awarded costs to the Colleges which he fixed at $16,607.24 plus GST for the RCDSO and $14,257.85 plus GST for the CDHO. The appellants appeal from the costs award and seek an order requiring the Colleges to pay costs to the appellants, even though the appellants lost all aspects of the motions. The appellants base this submission on the alleged novelty of the issues they raised relating to the liability of the Colleges and their assertion that their action against the Colleges was in reality public interest litigation, not a private lawsuit.

[36] I disagree. The motions judge said:

Costs normally follow the event. The Colleges were completely successful and the issue was sufficiently clear in view of R.H.P.A. s. 38 and Edwards v. LSUC. The plaintiff should have been aware of the risk of loss in adding the Colleges as defendants.

[37] I agree. The costs awarded by the motions judge, including quantum, were appropriate.

E. DISPOSTION

[38] I would dismiss the appeal. I would grant the appellants leave to appeal the costs order and dismiss the costs appeal.

[39] I would award the respondents their costs of the appeal which I would fix at $10,000 for each respondent. I would order that these costs be secured on any judgment that the appellants might obtain against the other respondents in this action.

RELEASED: April 22, 2002

“J. C. MacPherson J.A.”

“I agree J. I. Laskin J. A.”

“I agree Janet Simmons J.A.”