Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230124 DOCKET: C70489

Gillese, Tulloch and Roberts JJ.A.

BETWEEN

Dr. Hocine Benbella Applicant/Respondent (Appellant)

and

The National Dental Examining Board of Canada Respondent/Moving Party (Respondent)

Counsel: Yavar Hameed, for the appellant Monica Song and Sasha Coutu, for the respondent

Heard: December 14, 2022 by video conference

On appeal from the order of Justice Jasmine T. Akbarali of the Superior Court of Justice, dated February 28, 2022.

Reasons for Decision

[1] The appellant appeals an order dismissing his application for an injunction pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as disclosing no reasonable cause of action.

[2] At the conclusion of the hearing, we dismissed the appeal with reasons to follow. These are our reasons.

A. Background Facts

[3] The appellant is a dental school graduate. Among other requirements, he is required to pass the certification process administered by the respondent, the National Dental Examining Board of Canada, to qualify for admission to the profession of dentistry in Canada.

[4] The certification process has two components: a written exam and an Objective Structured Clinical Examination (“OSCE”).

[5] The appellant attempted the certification process in November 2018. He passed the OSCE but failed the written exam. He re-wrote the written exam in March 2019 but failed this attempt as well.

[6] As the appellant was entitled to under r. 21 of the respondent’s by-laws, he requested to have his written exams manually remarked. They were, but the results did not change.

[7] The appellant then sought to appeal the results of his written exam. He cited r. 5.25 of the by-laws in support of his claim that he was entitled to a “Special Appeal” before the respondent’s Appeal Committee.

[8] Rule 5.25 provides that “The Appeals Committee has the power to establish procedures for the conduct of Appeals or Special Appeals. In making a determination, a panel will determine that the Appeal be upheld or dismissed, or make such other determinations that it deems reasonable and just.”

[9] The respondent denied the appellant’s request for a Special Appeal. It advised him that the only appeal available to him was the manual rescoring under r. 21 of the by-laws, which had already been done for both of his written exams. In response, the appellant commenced legal action against the respondent.

B. Decision Below

[10] The appellant brought an application seeking mandatory interlocutory and permanent injunctions requiring the respondent to, among other things, hear his Special Appeal, provide him with the procedural rules governing r. 5.25, and provide materials including his written exams and score key to assist him with preparing for the appeal.

[11] The respondent filed a motion to strike the application, which was subsequently granted. The motion judge ordered that the application be struck in its entirety pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure as it disclosed no reasonable cause of action.

[12] In reaching her conclusion, the motion judge determined that the appellant’s application hinged on his ability to establish that he had a right to a Special Appeal. However, reading the by-laws as a whole, it was clear that no such right existed. The motion judge explained that “despite the oddity of a reference to a Special Appeal”, r. 5.25 was procedural in nature and did not grant any substantive rights. The rule appears in a section of the by-laws entitled “Appointment of Officers, Consultants, Committee Members, Examiners, Chief Examiners and Public Representative.” This section is administrative and procedural, as it addresses the manner in which positions are filled or committees are constituted.

[13] Furthermore, the motion judge reasoned that, if there was a substantive right to a Special Appeal, it would appear in rr. 20 to 23, where the other substantive appeal rights are located. The rules in this section include the right to have one’s written exam manually rescored (r. 21); the right to appeal a decision finding that someone has committed misconduct (r. 20); the right to appeal a failure of the assessment of clinical skills (r. 22); and the right to a compassionate appeal (r. 23). Importantly, there is no definition for “Special Appeal” in this section of substantive rights, nor anywhere else in the by-laws.

[14] Since the appellant has already exhausted his other appeal options (i.e., right to have his exams manually rescored), and there is no right to a Special Appeal, the motion judge concluded that his application had no reasonable cause of action. The application was struck in its entirety, as the other prayers for relief sought by the appellant were ancillary to the principal relief sought.

C. Analysis

[15] The standard of review to be applied to an appeal of a decision on a r. 21.01(1)(b) motion is correctness: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 38; Potis Holdings Ltd. v. The Law Society of Upper Canada, 2019 ONCA 618, at para. 19.

[16] The appellant submits that the motion judge erred in granting a motion to strike his application on three bases. First, he submits that the motion judge erred in holding that his application was dependant on the existence of a substantive right to appeal. Second, the appellant submits that the motion judge erred in finding that a Special Appeal is a procedural right. Third, the appellant submits that the motion judge erred in her interpretation of the by-laws to find that a Special Appeal was not available to him.

[17] We would not give effect to any of the appellant’s grounds of appeal. In our view, the motion judge correctly found it was plain and obvious that the appellant’s application disclosed no reasonable cause of action.

[18] We agree with the submissions of the respondent and the interpretation of the motion judge that the appellant’s motion is dependent on whether there exists a substantive right to a “Special Appeal” pursuant to the by-laws. The provisions of the by-laws must be read as a whole. As noted above, the various appeal mechanisms are clearly stated in rr. 20 to 23 of the by-laws. Nowhere within these provisions is there any stated substantive grounds of appeal from the failure of a written examination.

[19] As such, we agree with the interpretation of the motion judge that when the by-laws are read as a whole, the appeals provisions in rr. 20 to 23 must be distinguished from the clearly procedural provisions of r. 5.25, which leads to the ultimate conclusion that there is no right to a “Special Appeal”.

[20] We also agree with the motion judge that because there is no substantive right of appeal, the injunctive relief sought by the appellant must fail.

D. Disposition

[21] The appeal is dismissed. Costs of $9,000 inclusive shall be paid by the appellant to the respondent out of the monies held as security for costs.

“E.E. Gillese J.A.”

“M. Tulloch J.A.”

“L.B. Roberts J.A.”