Court File and Parties
COURT FILE NO.: 544/03
DATE: 20041206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, MATLOW AND GROUND JJ.
B E T W E E N:
RUSSELL BAJURNY
Appellant
- and -
THE COLLEGE OF DENTURISTS
Respondent
Heather C. Devine, for the Appellant
Richard Steinecke, for the Respondents
HEARD: December 6, 2004
Oral Reasons for Judgment
LANE J.: (Orally)
[1] We are all of the view that the appeal against the Discipline Committee’s findings of professional misconduct must be dismissed. The notice adequately alerted the appellant to the issues. The evidence was unchallenged that the dentures in question failed to meet the professional standard. That the Committee’s reasons contained an error as to when the dentures were fabricated cannot alter the finding that they were deficient. Similarly inadequate record-keeping was established by the evidence.
[2] It is said there was an unlawful warrantless search and seizure, but on the evidence there was no search and no seizure. The investigator was voluntarily supplied with the tape recording made by the Member of his conversation with a patient; and she copied the appellant’s “Refund Policy” from a framed copy hanging on the wall of the office. There was no expectation of privacy as to this document.
[3] The tape and the copy of the policy were not found to be privileged from production in the case nor did their admission into evidence at the hearing bring the administration of justice into disrepute. Even if there had been a search and seizure there would thus be no exclusion of the evidence. The Committee gave full reasons for its findings and they stand up to scrutiny. There was ample evidence of the inadequacy of the records and of the dentures. That the appellant’s secret tape recording of his conversation with a dissatisfied patient constitutes professional misconduct is a matter at the heart of the expertise of the professional body which is entitled to some deference from us. The finding is not unreasonable. Similarly, the Committee’s view that it was obvious that the undertaking required the appellant to provide copies of his refund policy to each patient and not just hang a copy on the wall is by no means unreasonable given the language used in the undertaking. Similarly, the failure of the appellant to act in a timely way to arrange the course in denture fabrication, leading to it being completed after June 21st, albeit only a few days late, is capable of reasonably being seen, in these facts, as professional misconduct.
[4] As to the penalty imposed, we are concerned that the errors in the reasons as to the timing of the fabrication of the Harris dentures and associated records could have affected the penalty imposed.
[5] As well, the Committee seems to have proceeded upon the misperception that the appellant’s practices were not improved after taking the courses; whereas the review of his practices pre-dated his taking of the course. We therefore remit the matter of penalty to the Committee for reconsideration.
[6] The parties are to make written submissions as to costs.
LANE J.
MATLOW J.
GROUND J.
Date of Reasons for Judgment: December 6, 2004
Date of Release: December 17, 2004
COURT FILE NO.: 544/03
DATE: 20041206
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, MATLOW AND GROUND JJ.
B E T W E E N:
RUSSELL BAJURNY
Appellant
- and -
THE COLLEGE OF DENTURISTS
Respondent
ORAL REASONS FOR JUDGMENT
LANE J.
Date of Reasons for Judgment: December 6, 2004
Date of Release: December 17, 2004