Court File and Parties

COURT FILE NO.: Toronto 64/2002 DATE: 20050803

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MATLOW, PITT AND ASTON JJ.

B E T W E E N:

DR. STEWART SIGESMUND Appellant

• and -

ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO Respondent

Counsel: Neil M. Abramson and Lisa Corrente, for the Appellant Ian J. Roland, for the Respondent

HEARD: November 24, 2004 and December 20, 2004

Reasons for Decision

BY THE COURT:

[1] Dr. Sigesmund appeals from a decision of the Discipline Committee of the Royal College of Dental Surgeons of Ontario, in which he was found guilty of multiple counts of professional misconduct. He also appeals the Committee’s decision on penalty and costs. As a preliminary matter, he brought a motion to introduce further evidence for use in this appeal, which was granted during the course of the hearing.

[2] Section 20 of the Health Professions Procedural Code (Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c.18) provides for a right of appeal to the Divisional Court on questions of law or fact or both. The Act contains no privative clause to screen the Discipline Committee’s decision from court scrutiny. However, the Supreme Court of Canada has determined that disciplinary bodies of self-governing professions should be given a large degree of autonomy and their decision should not be interfered with “unless judicial intervention is clearly warranted.” (See Pearlman v. Manitoba Law Society Judicial Committee 1991 26 (SCC), [1991] 2 S.C.R. 869 at 888. As to penalty, See Re: Takahashi and College of Physicians and Surgeons of Ontario, (1979) 1979 2045 (ON SC), 26 O.R. (2d) 353 (Div. Ct.)). The standard of review for this appeal is, therefore, reasonableness simpliciter.

[3] Dr. Sigesmund is a dentist who has restricted his practice to the treatment of temporomandibular joint disorders (“TMD”) for almost twenty years. There are two sets of allegations against Dr. Sigesmund. The first set of allegations arises from a complaint by a former patient, Mrs. S. The second set arises from the monitoring and investigation of Dr. Sigesmund’s practice by the College. The main focus of these allegations is Dr. Sigesmund’s undertaking to abide by the College’s guidelines entitled “Respecting the Diagnoses and Management of Temporomandibular Disorders” (the “Guidelines”). That undertaking was given by Dr. Sigesmund as part of the resolution of three earlier patient complaints made against him. Central to the proceedings before the Discipline Committee was the issue of diagnosis and management of TMD and the interpretation of the Guidelines. The main issue of fact to be determined by the Discipline Committee panel was whether the diagnostic steps, methods, and course of treatments of particular patients identified in the allegations complied with the Guidelines. There were also secondary issues involving Dr. Sigesmund’s record-keeping and charging excessive fees.

[4] The hearing before the panel proceeded for sixty-six days intermittently over the course of four years between October, 1998, and October, 2002. Both parties retained experts who gave evidence at length. The evidence of those experts was in conflict and the panel’s decision rests upon its preference for the evidence of the College’s expert, Dr. Mock. The panel concluded that Dr. Sigesmund’s use of anterior repositioning appliances in the treatment of patients was at odds with the Guidelines and, as a result, constituted a breach of his undertaking to follow the Guidelines as well as a breach of the standards of practice of the profession.

[5] Approximately two years after the discipline matters now under review were concluded, in the context of a different proceeding, the College disclosed to Dr. Sigesmund minutes of three meetings of the College’s Quality Assurance Committee which were held back in 1996. These minutes are now relied upon by Dr. Sigesmund to support his contention that one of the Discipline Committee members, Dr. Krueger, had an undisclosed conflict of interest or bias and that the findings of the discipline committee ought, therefore, to be set aside. There are other grounds as well, noted below.

[6] After convicting Dr. Sigesmund, the panel imposed a penalty (also the subject of an appeal before this court) as follows:

1. that Dr. Sigesmund appear before a panel of the Discipline Committee to be reprimanded.
2. that his right to practice be suspended for four consecutive months.
3. that his Certificate of Registration (and entitlement to practice dentistry) be subject to conditions and limitations including completing certain courses at his own expense within seven months, and that his practice be monitored on a continuing basis by the College for a period of twenty-four months.

[7] In a subsequent decision, the panel awarded costs of $411,000 to be paid by Dr. Sigesmund to the College

[8] The three issues for this Court to consider are these:

1. did Dr. Krueger’s participation on the panel of the Discipline Committee give rise to a reasonable apprehension of bias?
2. did the conduct of the panel during the hearing, as a result of having been tainted with Dr. Krueger’s bias, or otherwise, give rise to a reasonable apprehension of bias?
3. in the alternative, did the panel err in law (i) in refusing to accept Dr. Mulrooney as an expert witness or, (ii) by making findings against Dr. Sigesmund that were not supported by any evidence?

[9] As to the first two issues, the relevant inquiry is not whether there was, in fact, actual bias on the part of the adjudicator but whether a reasonable person, properly informed, would perceive that there was bias. The question for the court to answer is this: “What would an informed person, viewing the matter realistically and practically - and having thought the matter through – conclude? Would he think that it is more likely than not that [he], whether consciously or unconsciously, would not decide fairly”. (See Committee for Justice and Liberty v. Canada (National Energy Board) 1976 2 (SCC), [1978] 1 S.C.R. 369 at 394).

[10] The threshold for establishing a reasonable apprehension of bias is high because there is a strong presumption in favour of impartiality on the part of the tribunal. In this particular case, each panel member was asked at the commencement of the proceeding whether he could judge the matters impartially, without a predisposition. Dr. Sigesmund’s counsel specifically referred to this on the twenty-sixth day of the hearing when he expressly waived any objection to Dr. Krueger’s ongoing participation in the Discipline Committee hearing in the following words:

You have indicated at the time you initially considered this matter that you consider your involvement in this [Quality Assurance] Committee in whatever way would not affect your judgment or your fairness and we take your word without hesitation or reservation (emphasis added).

Accordingly, Dr. Sigesmund must now demonstrate a real likelihood or probability of bias, more than a mere suspicion. There must be more than mere conjecture.

[11] In relation to the allegations respecting Mrs. S., Dr. Sigesmund was found guilty of the following:

1. failing to maintain the standards of practice of the profession; and
2. failing to keep records as required.

In relation to the other ten patients, Dr. Sigesmund was found guilty of:

1. failing to maintain the standards of practice of the profession;
2. making representations about a remedy, treatment device or procedure for which there is no generally accepted scientific or empirical basis;
3. failing to keep records;
4. charging a fee that was excessive or unreasonable; and
5. failing to abide by his undertaking to the College, which included a promise to adhere to the Guidelines.

Dr. Sigesmund was found not guilty of:

1. charging an excessive or unreasonable fee to Mrs. S.;
2. engaging in disgraceful, dishonourable, unprofessional or unethical conduct;
3. recommending or providing an unnecessary dental service; and
4. failing to reveal the nature of a remedy, treatment, device or procedure following a patient’s request to do so.

[12] There is no debate about the fact the Guidelines prohibit anterior repositioning devices as a first treatment option. One main focus of the Discipline Committee was whether a Gelb device, or “modified Gelb” as Dr. Thomas described it, was used by Dr. Sigesmund and, if so, whether it was an anterior repositioning device.

[13] The College’s case centred around the testimony of Dr. Mock, an expert in the diagnosis, management and treatment of TMD. Dr. Mock testified for a total of forty-four days. The essence of his testimony was that in each of the eleven cases in issue, Dr. Sigesmund’s treatment did not comply with the Guidelines despite his undertaking to do so. Dr. Thomas testified on behalf of Dr. Sigesmund over the course of sixteen days on precisely the same issues as Dr. Mock, reaching an opposite conclusion.

[14] The outcome of the Discipline Committee hearing ultimately rested on its assessment of the relative weight to be given to the expert evidence of Drs. Mock and Thomas. Between March and September, 1996, these two professionals had debated, through correspondence, certain technical issues underlying the Guidelines. As a member of the Quality Assurance Committee, Dr. Krueger was presumptively engaged in that debate. The Discipline Committee accepted the view of Dr. Mock and rejected the view of Dr. Thomas. A major issue now raised is whether Dr. Krueger should be seen as predisposed to Dr. Mock’s point of view by the earlier debate.

[15] If a member of a Discipline Committee panel has previously participated on an Advisory Committee (such as the Quality Assurance Committee, in this case), with a witness who testifies in the discipline proceedings, it may give rise to a conflict of interest or reasonable apprehension of bias, but it does not always necessarily have that result.

[16] The primary ground of appeal emphasized by Dr. Sigesmund is that there is a reasonable apprehension of bias because of Dr. Krueger’s participation in the discipline proceeding. Certain correspondence came to the attention of Dr. Krueger in 1996, several years before the start of the Discipline Committee hearing. Dr. Krueger’s name does not appear on any of that correspondence but it may be reasonably inferred that, as a member of the Quality Assurance Committee, it came to his attention. Dr. Krueger had been on that Quality Assurance Committee at an earlier time when the Guidelines were drafted and approved by council — a fact which he specifically disclosed during the course of the hearing and which was expressly waived by Dr. Sigesmund’s counsel after overnight consideration of the issue. It is clear that Dr. Mock was not only relied upon for the drafting of the Guidelines, approved by council in 1995, but that Dr. Sigesmund knew of Dr. Mock’s role and, therefore, that he knew Dr. Krueger was familiar with Dr. Mock’s opinions on the subject of the Guidelines. Given the waiver by Dr. Sigesmund at the hearing, he cannot now complain that Dr. Krueger’s role in the approval of the Guidelines, or his knowledge of Dr. Mock’s opinion on the Guidelines before their approval, supports his contention of a reasonable apprehension of bias.

[17] Dr. Sigesmund knew that Dr. Mock was the principal author of the Guidelines long before the Discipline Committee hearing started and, therefore, knew that Dr. Krueger and Dr. Mock had crossed paths in the passing of those Guidelines when they were developed and approved. In the post-approval correspondence between Drs. Sigesmund, Thomas and Mulrooney, on one hand, and the College on the other, and in the 1996 minutes of the Quality Assurance Committee (the fresh evidence on this appeal) there is no evidence to suggest that Dr. Krueger himself had any opinion, one way or the other, before the Discipline Committee hearing started, as to how those Guidelines should be interpreted or enforced.

[18] The issue to be decided by Dr. Krueger and the rest of the panel was not the appropriateness of the Guidelines but, rather, whether Dr. Sigesmund had complied with those Guidelines. The issue was not what the Guidelines should say but, rather, what they do say.

[19] Dr. Krueger had no independent recollection of the letters submitted to the Quality Assurance Committee by Dr. Sigesmund or Dr. Mulrooney in 1996. He deposes he did not recognize either name prior to the discipline hearing. This 1996 correspondence was produced by Dr. Sigesmund in his defence during the evidence in-chief of his own witness Dr. Mulrooney. As soon as it was produced, and before it became an exhibit, Dr. Krueger advised everyone that he had been on the Quality Assurance Committee “at that time”. Dr. Krueger went on, in response to specific questions, to more particularly indicate that he had been on the Quality Assurance Committee at the time the Guidelines were passed in 1995. Dr. Sigesmund now takes the position that he believed Dr. Krueger was only disclosing an involvement in 1995 and not in 1996. Though the particulars of Dr. Krueger’s disclosure might have been more fully explained by him, the fact is that his reference to “at that time” was in the context of the introduction into evidence of 1996 correspondence. There is certainly nothing in the record to indicate Dr. Krueger was hiding or misrepresenting his participation in the Quality Assurance Committee in 1996.

[20] Dr. Krueger stated on the record on the twenty-fifth day of the hearing that he had not made an earlier revelation about his participation in the Quality Assurance Committee “because I did not feel that it would colour my objectivity on this panel”. There is no scintilla of evidence to show that it did colour his objectivity.

[21] The names of the members of the Quality Assurance Committee are published annually and made known to the profession. When Dr. Krueger made a declaration concerning his membership on the Quality Assurance Committee at the time the Guidelines were created, Dr. Sigesmund might well have asked himself whether Dr. Krueger was also privy to subsequent correspondence with the Quality Assurance Committee in 1996. He could readily have ascertained that Dr. Krueger was, in fact, a member of that Committee in 1996. Dr. Sigesmund did not take advantage of that opportunity before expressly waiving any objection to Dr. Krueger’s ongoing participation in the Disciplinary Committee hearing, and the hearing continued for another forty days over the course of another two years, during which time an apprehension of bias was never once raised. Even if it was not immediately apparent to Dr. Sigesmund that Dr. Krueger’s 1996 involvement would have necessarily exposed him to the correspondence and, more particularly, the views of Dr. Mock concerning the Guidelines, Dr. Sigesmund had another forty days of hearing over the next two years to raise the issue. Instead, he waited until after the decision had been rendered against him. Having regard to the fact that there had been a clear, express and unequivocal waiver, given after “serious consideration,” on the twenty-sixth day of the hearing, it is not unreasonable to infer, in the particular circumstances of this case, that there was an implicit waiver every subsequent day, when the hearing proceeded without objection to Dr. Krueger’s 1996 participation on the Quality Assurance Committee.

[22] The timing of Dr. Krueger’s disclosure of his participation in the Quality Assurance Committee is consistent with the conclusion that he never gave a moment’s thought to his prior involvement before particular correspondence was introduced into evidence by counsel for Dr. Sigesmund, jogging Dr. Krueger’s memory. There is no suggestion of any motive Dr. Krueger might have for hiding his prior role on the Quality Assurance Committee. There is nothing in the lengthy record to suggest any specific words or statements by Dr. Krueger that convey the least hint of any bias.

[23] We conclude that Dr. Krueger’s participation on the panel of the Discipline Committee did not give rise to a reasonable apprehension of bias.

[24] The secondary ground of appeal is that the conduct of the panel as a whole also gives rise to a reasonable apprehension of bias, in support of which three submissions are made:

1. the Discipline Committee panel erred in failing to qualify Dr. Mulrooney as an expert and not allowing him to give opinion evidence;
2. the Discipline Committee panel made findings of fact, in the absence of evidence; specifically the absence of any evidence of the standards of practice. There was no specific question and answer in Dr. Mock’s testimony identifying in what manner Dr. Sigesmund had failed to comply with the accepted standard of practice of the profession; and
3. certain comments made by the Discipline Committee panel members during the course of the proceeding illustrate bias.

[25] Having concluded that Dr. Krueger’s participation on the panel of the Discipline Committee does not give rise to a reasonable apprehension of bias, it cannot be said the panel was “tainted” by his participation. Some other indication of bias must be found to support a conclusion of “apprehension of bias” of the panel as a whole.

[26] None of the comments referred to by counsel for Dr. Sigesmund, either on their own or cumulatively, amounted to an indication of any bias when taken in context.

[27] The submissions reflected in items 1. and 2. of paragraph 24 of these reasons do not, on their own, engage or invite any conclusion concerning “bias”, but nevertheless must be considered as alternative grounds.

[28] Alternatively to the submission that the panel’s decision must be set aside based on a reasonable apprehension of bias, Dr. Sigesmund submits that the panel erred in law in refusing to admit the opinion evidence of Dr. Mulrooney.

[29] Dr. Sigesmund had given an undertaking to abide by the Guidelines. In this case, the failure to abide by the Guidelines, in and of itself, would amount to a breach of the standards of practice. Even Dr. Thomas conceded that point. The central factual issue for the panel to decide was whether Dr. Sigesmund had, indeed, breached those Guidelines. On this controversial point, the Committee accepted the evidence of Dr. Mock and rejected the evidence of Dr. Thomas. Dr. Mulrooney would have given evidence favourable to Dr. Sigesmund on this central issue if he had been permitted to give opinion evidence.

[30] The Discipline Committee panel concluded that “a breach of the Guidelines necessarily constitutes a breach of the standards of practice.” According to s.95 (1)(n) of the Health Professions Procedural Code (Schedule II of the regulated Health Professions Act, 1991, S.O. 1991, c.18), the council of the Dental College may make regulations prescribing the standards of practice of the profession. However, the Guidelines in question in this proceeding have never been given such regulatory force. The Guidelines are simply non-binding recommendations created to inform and guide dentists in Ontario on the treatment of TMD. In the absence of prescribed written standards of practice, a Discipline Committee panel is left to rely on expert testimony to determine what constitutes the standard of practice for the profession when allegations are made relating to a breach of those standards. Dr. Mock’s testimony did not specifically and expressly address that issue but, rather, seemed to assume that non-compliance with the Guidelines was, in and of itself, a breach of the standard of practice. In our view, Dr. Mock and the Discipline Committee panel were entitled to make that assumption based on the Guidelines themselves.

[31] The Guidelines are a detailed document. The preamble states that the Guidelines constitute the College’s accepted standard of practice: “College Guidelines contain practice parameters and standards which should be considered by all Ontario dentists in the care of their patients. It is important to note that these Guidelines may be used by the College or other bodies in determining whether appropriate standards of practice and professional responsibilities have been maintained.”

[32] The Discipline Committee panel did not bring its own standards to the decision. The Guidelines were used by the panel as the accepted standard of practice. Dr. Sigesmund had ample opportunity to challenge the Guidelines as the appropriate benchmark or standard but did not do so, except for the first time, on this appeal. However, he did attempt to qualify Dr. Mulrooney as an expert witness, someone who might have given evidence on whether Dr. Sigesmund had breached those Guidelines.

[33] Fundamental to most of the allegations against Dr. Sigesmund was an interpretation and understanding of the Guidelines – whether certain diagnostic steps, methods and courses of treatment complied with those Guidelines.

[34] Given that Dr. Krueger had no personal experience with TMD treatment, and the second of the three people on the panel was a lay person, it is difficult to understand why Dr. Mulrooney would not be recognized as an expert whose evidence might be helpful to an understanding of the technical issues.

[35] There is no dispute that Dr. Mulrooney’s proposed expert testimony satisfied the first three criteria enunciated in R. v. Mohan: relevance, necessity in assisting the trier of fact, and absence of any exclusionary rule. The Discipline Committee found, however, that he was not a “properly qualified expert”. It seems obvious that Dr. Mulrooney’s knowledge and experience in the area of interpreting the Guidelines, and whether Dr. Sigesmund’s treatment fell within or outside of those Guidelines, went well beyond that of the members of the Discipline Committee panel.

[36] At Tabs 16A and 16B of the amended Appeal Book and Compendium are transcripts of the portion of Dr. Mulrooney’s evidence dealing with his qualifications as an expert witness and the Discipline Committee’s conclusion that “the extent of his training and experience is not sufficient to be of any material benefit to assist us in our deliberations.” There is no explanation for that conclusion.

[37] Dr. Mulrooney has been studying issues relating to TMD since the 1960’s including an ongoing review of literature, attendance at various courses, and personal telephone conferences with pioneers and leaders in this field. Dr. Mulrooney became a fellow of the International College of Cranio Mandibular Orthopaedics, an organization with which the chairman of the Discipline Committee panel was unfamiliar. He specifically made it a point of investigating the use of instruments and appliances in treating TMD. He has published articles and was on the Publications Committee of the Ontario Dental Association. His CV (exhibit 60) identifies publications which are specifically related to TMD. (See also exhibit 61, the document specifically identifying “TMD-related courses and activities.”) His practice is not limited to the area of TMD but he has treated a substantial number of patients over the years and has had patients with TMD referred to him from otolaryngologists, chiropractors, other dentists, and occasionally plastic surgeons. He has been treating TMD cases for more than thirty years and estimated that he takes on three or four cases of this type every month. He has experience doing hospital accreditation for the Canadian Dental Association and would have knowledge of the standards of practice expected of dentists generally. His experience includes professionally reviewing the records of other dentists for hospitals. Therefore, he could have given evidence of the standards of the profession, not just on the issue of whether Dr. Sigesmund had breached an undertaken to follow the Guidelines.

[38] We conclude, therefore, that the Discipline Committee panel erred in its refusal to allow Dr. Mulrooney to give relevent expert evidence going to the very heart of the factual issue.

[39] The conclusions of the Discipline Committee panel which depended on expert evidence cannot, therefore, be sustained. The finding that Dr. Sigesmund failed to maintain the standards of practice of the profession in relation to his patient, Mrs. S., and in relation to the other ten patients is quashed, as are the findings that he made representations about a remedy, treatment, device or procedure for which there is no generally accepted scientific or empiral basis and the finding that he failed to abide by his undertaking to the College which included a promise to adhere to the Guidelines. The other findings of misconduct against Dr. Sigesmund do not depend upon the expert testimony and ought to be sustained.

[40] The penalty and costs dispositions quite obviously need to be reconsidered since the most significant and serious allegations are now quashed. They are, therefore, set aside and referred to a newly constituted Discipline Committee panel for its determination. Should the College choose to initiate a new hearing on the particular allegations that depended on expert testimony, quashed by this decision, that hearing will also be before the newly constituted Discipline Committee panel.

[41] Counsel may make submissions with respect to the costs of this appeal. Those submissions should be exchanged between counsel and delivered to the Registrar of this Court within a reasonable period of time.

Matlow J.

Pitt J.

Aston J.

Released: August 3, 2005

COURT FILE NO.: Toronto 64/2002 DATE: 20050803

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

B E T W E E N:

DR. STEWART SIGESMUND Appellant

• and –

ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO Respondent

REASONS FOR JUDGMENT

By the Court.

Released: August 3, 2005