COURT FILE NO.: 239/04

DATE: 20060609

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: DR. DAVID CHUANG v. ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO

BEFORE: Justices Meehan, E. Macdonald and Cameron

COUNSEL: Morris Manning, Q.C., for the Appellant

Chris G. Paliare and Margaret L. Waddell, for the Respondent

HEARD: June 5, 2006 at Toronto

E N D O R S E M E N T

[1] This is an appeal from the decision of the Discipline Committee of the Royal College of Dental Surgeons of Ontario (the “Discipline Committee” or the “Committee”) dated April 29, 2004.

[2] The Committee was asked to consider allegations of various acts of professional misconduct brought by the Royal College of Dental Surgeons of Ontario (the “College”) against Dr. David Chuang.

[3] Dr. Chuang was charged with 18 acts of professional misconduct under s. 51(1)(c) of the Dentistry Act, and with various breaches under s. 2 of the Dentistry Act Regulations, in relation to the dental treatment, and subsequent conduct towards patients Heather Da Prato, Lucy Farias, Rebecca Washington, and Shari Carter. He was found guilty on 15 of such acts.

[4] Dr. Chuang was self-represented from May 1, 2004, a month prior to the hearing.

[5] The hearing lasted 31 days held over 10 months. Not all days were full days. He presented no evidence in his defence. He was late or absent on numerous occasions. Comprehensive reasons were issued. The Appellant does not attack the findings of fact.

[6] Dr. Chuang’s licence to practice was revoked in the interests of public safety and he was found liable to pay the College $250,000 in costs.

[7] Dr. Chuang raises the following issues on this appeal:

a) a reasonable apprehension of bias against 2 members of the Committee;

b) a reasonable apprehension of bias against an independent advisor to the Committee;

c) a denial of natural justice as a result of the Committee’s refusal to grant adjournments to retain counsel, excluding the public, failure to ban publication and failure to grant an O’Connor Application for the medical records of a witness;

d) revocation of his licence when a suspension would have been more appropriate;

e) costs of $250,000 were unreasonable.

[8] The standard of review varies with the nature of the decision. On issues of procedural fairness and natural justice, correctness is the standard.

[9] The apprehension of bias must be a reasonable one held by a reasonable and right-minded person obtaining the required information and judged objectively.

[10] Dr. Watson’s participation is rationally supportable. His prior experience with Dr. Chuang involved no findings of credibility and were based on an agreed statement of fact, guilt and penalty. There was no reasonable apprehension of bias on the part of Dr. Watson.

[11] There is no reasonable apprehension of bias in Ms. Luk’s participation. Her father’s and partner’s former position as chairman of the Executive Committee and current chair of the Discipline Committee raises no reasonable apprehension of bias in light of evidence that he never spoke to Ms. Luk about his cases.

[12] The Committee’s refusal to adjourn did not result in a denial of natural justice. Dr. Chuang knew the substance of the charges against him in December 2003. He started to negotiate a settlement but none was ever concluded. The hearing dates were settled on March 4, 2004, but no settlement had yet been reached. The case was proceeding. When his lawyer resigned on May 1, 2004 he was urged to retain a new lawyer. He did not. We have no evidence on the record of what efforts he made.

[13] He again pressed for an adjournment to obtain a lawyer in mid-July, 2004. He was granted a week. No lawyer showed up and there was no letter from a lawyer undertaking to act for him was received. In these circumstances we see no denial of procedural fairness or natural justice.

[14] The retired appellate Judge, The Honourable Patrick Galligan, was retained to provide legal advice to the Committee as contemplated by s. 44 of the Regulated Health Professions Act. Rule 6.08(3) of the Law Society Rules of Professional Conduct provides that he cannot act “as a counsel or advocate … before any administrative board or tribunal without the express approval of Convocation”. It is conceded he did not obtain the approval of Convocation under this section. As we understand it, the rationale for Rule 6.08(3) is to prevent the former judge from unfairly engaging in the “rough and tumble” of litigation on a return to practice: See Re The Solicitors Act and Sir James O’Connor, [1930] I.R. 623. Mr. Galligan’s almost constant attendance and the frequent participation as displayed on the portions of the transcript in the record given to us gave us concern that he may have crossed the line from independent legal advisor in s. 44 to something more in the nature of “a counsel or an advocate” in the Rule. Mr. Manning has quite properly raised the issue. However, we do not think that Mr. Galligan’s participation resulted in a denial of natural justice for Dr. Chuang or resulted in an appealable error in the findings of the panel following receipt of advice from Mr. Galligan.

[15] We acknowledge receipt of Mr. Manning’s letter of June 6, 2006. The content of the letter is considered. It does not change our disposition of the case.

[16] The refusals to grant motions of Dr. Chuang during the currency of the hearing on:

a) adjourning to find a lawyer;

b) a publication ban;

c) excluding the public from the hearing; and

d) introduction of the medical evidence of a witness

did not result in a denial of natural justice. The Committee is responsible for protecting the public interest. The evidence of a doctor as to the stability of a witness was not sufficient to warrant the O’Connor Application. He never produced documentation from any lawyer undertaking to appear and none appeared at any time during the hearing.

[17] The evidence demonstrates outrageous and indefensible conduct of Dr. Chuang. There was no responding evidence at any time.

[18] Deference should be shown to the Committee in the matter of a penalty. They have the responsibility to protect the public. The court should not interfere except in an error of principle or a clearly unfit penalty, particularly when it is a revocation. In the circumstances of this case, of his failure to abide by a previous mentorship order and his attitude on this hearing, the Committee was justified in revoking his licence to practice. To use the Committee’s words, he was “ungovernable”. We see no reason to interfere with the Committee’s finding.

[19] We assume the additional legal costs and investigative legal costs would bring the Committee’s costs to over $400,000. The members of the Royal College of Dental Surgeons should not be liable for the costs of guilty members. However, members should not be liable for the whole costs of defending themselves, particularly when their right to practise is at stake. Costs of $400,000 were not in the contemplation of Dr. Chuang at the time. The fixing of costs is an inherently arbitrary process but they must be fair and reasonable. In the circumstances, we find the costs of $250,000 unduly high. We fix the costs at $200,000.

[20] Unless the parties can agree to costs of June 5, 2006, the Respondent shall make short submissions in writing within 15 days of the release of these reasons addressed to the Registrar of the Divisional Court. The Appellant shall respond in writing within 10 days thereafter.

MEEHAN J.

E. MACDONALD J.

CAMERON J.

DATE: June 9, 2006