CITATION: Clokie v. The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773
DIVISIONAL COURT FILE NO.: DC 276/16
DATE: 20170519
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, TAYLOR & MATHESON JJ.
BETWEEN:
DR. CAMERON CLOKIE
Appellant
– and –
THE ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
Respondent
Scott K. Fenton, for the Appellant
Mark J. Sandler and Amanda M. Ross, for the Respondent
HEARD at Toronto: April 25, 2017
W. MATHESON j.
[1] This is an appeal from a decision of a panel of the Discipline Committee of the Royal College of Dental Surgeons of Ontario (the “Panel”) dated February 1, 2016, the related penalty decision dated June 8, 2016 and the costs decision dated September 13, 2016. The Panel found that the appellant had committed sexual abuse of a patient, as defined in s. 1(3) of the Health Professions Procedural Code (the “Code”) and had engaged in conduct that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, unprofessional and unethical. Given the sexual abuse finding that was made, mandatory revocation of the appellant’s licence to practice was required under s. 51(5) of the Code.
[2] A constitutional challenge to the mandatory revocation provisions of the Code was withdrawn before the hearing of this appeal as a result of the recent decision in Sliwin v. College of Physicians and Surgeons of Ontario, 2017 ONSC 1947 (Div. Ct.).
[3] After withdrawal of the constitutional challenge, the main issue on the appeal became the Panel’s finding that R.B. was the appellant’s patient on October 14, 2006. It was ultimately admitted that the appellant had sexual intercourse with R.B. on that day. If R.B. was Dr. Clokie’s patient, the finding of sexual abuse and the penalty of mandatory revocation unquestionably follow. I conclude that the appellant has failed to show that the finding that R.B. was the appellant’s patient on October 14, 2006 was unreasonable. Similarly, the appellant has failed to show that the costs order was unreasonable. The appeal should therefore be dismissed.
Brief background
[4] R.B. was in a motor vehicle accident in October 1993 and sustained injuries to her face and jaw. She had jaw surgery in April 1996 by Dr. Vigna, but was unsatisfied with her post-surgical condition.
[5] R.B. moved from Canada to Sweden in approximately 2004. She returned to Canada for a second surgery in April 2006. Dr. Ellis, an ear, nose and throat doctor, conducted surgery on R.B. to address problems arising from the prior surgery as well as inserting chin and jaw implants, among other procedures. R.B. then returned to Sweden.
[6] R.B. began to have problems with the chin and jaw implants. She began searching for an oral maxillofacial surgeon who could perform reversal surgery.
[7] R.B. found Dr. Clokie’s name online and learned that he practised in Toronto. R.B. obtained a referral to Dr. Clokie through her family dentist in Ontario. She then returned to Toronto to see Dr. Clokie.
[8] R.B.’s first consultation with Dr. Clokie took place on September 7, 2006 at Mount Sinai Hospital. Dr. Clokie examined R.B., discussed surgery and developed a plan. Dr. Clokie’s clinical notes set out the plan as follows: “Plan: 1) try to find pre-tx [treatment] records (pt [patient] to find); 2) pt to have chin implant removed; 3) wait 4-6 weeks; 4) full work up + plan.”
[9] On September 13, 2006, R.B. called Dr. Clokie’s office to ask that his office obtain her records from Dr. Vigna’s office. R.B.’s patient chart indicates that R.B. also requested a treatment plan on that call.
[10] On September 14, 2006, as noted by a staff member in R.B.’s chart, Dr. Clokie asked the staff member to request models from another doctor’s office. That note also recorded that Dr. Clokie indicated that R.B.: “needs chin implant out – back to [Mount Sinai] to re-evaluate then tx plan will be completed.”
[11] On September 20, 2006, R.B. had an appointment with Dr. Gerczuk, a periodontist. Dr. Gerczuk’s letter regarding the appointment, dated October 4, 2006, referred to R.B. having significant problems in regards to her jaw. The letter stated, “Dr. Clokie will be looking after her in that regard.” The letter was copied to Dr. Clokie, and there is no evidence that he disputed the description of his role set out in this letter at the time.
[12] R.B. had a second appointment with Dr. Clokie on September 21, 2006 at Mount Sinai Hospital. On that date, Dr. Clokie removed a bone fragment from R.B.’s mouth using tweezers. After noting that procedure, Dr. Clokie’s notes of that appointment say, “Review options with patient.” His notes set out the “Plan” including R.B. arranging for removal of the chin implant, followed by a “workup.”
[13] During the September 21, 2006 appointment, Dr. Clokie and R.B. also discussed Dr. Clokie’s upcoming trip to Sweden for a conference. The conference was only a few weeks away. Emails were exchanged following the appointment to arrange for the two to meet when Dr. Clokie was in Sweden.
[14] On October 14, 2006, in Sweden, Dr. Clokie and R.B. met and they went back to Dr. Clokie’s hotel room later that day. As was admitted in final argument before the Panel, that night they had sexual intercourse.
[15] There was no evidence introduced at the hearing before the Panel demonstrating that, at any point between the initial consultation on September 7, 2006 and October 14, 2006, Dr. Clokie told R.B. that the doctor-patient relationship had terminated or that he would not continue to see her in relation to the contemplated surgery.
[16] Dr. Clokie returned to Canada the next day and continued his contact with R.B. by email, including personal emails, emails about upcoming treatment and emails that included both subjects.
[17] Dr. Clokie’s emails immediately after the events of October 14, 2006 included a personal email on October 15, 2006; an email exchange on October 23, 2006 about the 3D imaging software that Dr. Clokie had told R.B. he would like to use to assess her face; and, an email on November 2, 2006. In the November 2 email, a matter of weeks after October 14, 2006, Dr. Clokie emailed R.B. that: “I was thinking that maybe I will take out the chin implant when you are next in town.” Emails continued.
[18] R.B. returned to Canada in February of 2007. Dr. Clokie performed surgery to remove the chin implant in March 2007 at Mount Sinai Hospital. He performed another surgery in 2011. There were also appointments at other times.
[19] The personal and professional relationship between Dr. Clokie and R.B. continued until late 2011 and is amply documented in emails, texts and medical records. There is no dispute that R.B. was a patient during the period after her return to Canada in 2007. There is also no issue that personal and sexualized emails, as well as emails about R.B.’s dental care, were sent by Dr. Clokie in that period. There is, however, considerable dispute about whether there were more instances of sexual intercourse or other sexual conduct that would give rise to mandatory revocation. Only the one instance of sexual intercourse, on October 14, 2006, is admitted.
Decision under appeal
[20] The Panel found as follows:
(1) that the appellant sexually abused a patient, namely R.B., in the period from 2006 to 2011, contrary to s. 51(1)(c) of the Code and s. 2(8) of O. Reg. 853/93 (Professional Misconduct), under the Dentistry Act, 1991, S.O. 1991, c. 24; and,
(2) that the appellant engaged in disgraceful, dishonourable, unprofessional and unethical conduct relative to R.B. over that same time period, contrary to s. 2(59) of O. Reg. 853/93.
[21] The College withdrew other allegations at the outset of the hearing regarding alleged failures to meet the standard of practice of the profession.
[22] In final submissions before the Panel, the appellant admitted that he and R.B. had sexual intercourse on October 14, 2006. The Panel found that Dr. Clokie and R.B. were in a doctor-patient relationship at that time. The Panel noted the events that were recorded in Dr. Clokie’s own patient records from the appointments on September 7, 2006 and September 21, 2006; the chart entries made by his staff on September 13 and 14, 2006; and, the letter from Dr. Gerczuk in September 2006. Although the events described in the medical records were the main focus of the Panel’s reasons for decision in this regard, the Panel also relied on R.B.’s testimony that she believed Dr. Clokie was her doctor at that time, which was corroborated by Dr. Gerczuk’s letter.
[23] The Panel recognized that within Dentistry it is not unusual for some patients not to see their family dentist on a regular basis or have treatments beyond dental checkups and prophylaxis. Yet, the patient would reasonably believe that the dentist remained “their” dentist.
[24] The Panel concluded that any reasonable member of the public or dental profession would have recognized R.B. as Dr. Clokie’s patient on October 14, 2006.
[25] The Panel found no evidence that Dr. Clokie ever terminated the doctor-patient relationship and, in fact, Dr. Clokie had lied to the College about doing so. Although Dr. Clokie did not testify at the hearing, he had written to the College in 2013 saying that he specifically told R.B. at the September 21, 2006 appointment that he could not assist or treat her. This proposition was not documented in the 2006 medical records, was contrary to some of the medical records and emails from around that time and was not pursued at the hearing through evidence from Dr. Clokie.
[26] The Panel rejected the arguments put forward on behalf of Dr. Clokie regarding the issue of whether there was a subsisting doctor-patient relationship on October 14, 2006, including submissions based upon R.B. living in Sweden, there being no subsequent appointment scheduled, there being no reason to expect R.B. to return to Canada and because the facial surgery or other treatments were predicated on certain events and the involvement of other practitioners, among other arguments. The Panel gave reasons addressing these arguments.
[27] On the issue of whether conduct that fell within the definition of sexual abuse took place, Dr. Clokie admitted only sexual intercourse on October 14, 2006. The Panel’s other findings of sexual conduct are best understood within the context of the definition of sexual abuse, which is set out in s. 1(3) of the Code as follows:
“sexual abuse” of a patient by a member means,
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,
(b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient.
[28] With respect to s. 1(3)(a), R.B. testified about one other incident of sexual intercourse, on April 25, 2007. The Panel was unable to conclude that the College’s evidence of that second incident met the standard of proof. With respect to “remarks of a sexual nature” under s. 1(3)(c), there was an ample record of emails and texts from Dr. Clokie of a sexual nature. With respect to s. 1(3)(b), R.B. testified to other incidents of “touching” of a sexual nature.
[29] Only conduct within s. 1(3)(a) or (b) gives rise to mandatory revocation. The Panel concluded that “other encounters of a sexual nature” did occur. However, the Panel did not make any specific finding of conduct that would fall within s. 1(3)(a) or (b) other than with respect to October 14, 2006.
[30] The Panel was not persuaded about another incident that R.B. testified to, when, at a September 2011 medical appointment at which her then husband also attended, Dr. Clokie allegedly threw a plastic skull across the examining room narrowly missing R.B.
[31] The Panel expressly considered R.B.’s credibility and accepted some but not all of her testimony. The Panel referred to evidence corroborating R.B.’s testimony in some respects, including not only medical records, emails and texts but also a pair of R.B.’s underwear that was stained with Dr. Clokie’s semen.
[32] Although noting that a cautious approach was required when considering this type of evidence, the Panel also found evidence of consciousness of guilt in Dr. Clokie’s post-offence conduct. That conduct included Dr. Clokie’s 2013 letter to the College stating that he had told R.B. on September 21, 2006 that he could not assist or treat her, which the Panel found to be false. There was also a fabricated affidavit and confession. Dr. Clokie presented the College with a concocted affidavit from an employee who (wrongly) claimed that she authored Dr. Clokie’s incriminating emails, not him. Dr. Clokie also fabricated a “confession” purportedly made by R.B. saying that she had falsely reported having a sexual relationship with Dr. Clokie.
[33] The Panel found that this conduct demonstrated Dr. Clokie’s awareness that he was in a “problematic” relationship with R.B., and that he needed to fabricate a defence.
[34] On penalty, the Panel was obliged to and did order mandatory revocation of the appellant’s licence to practice under s. 51(5) of the Code, as well as the mandatory reprimand under that section. The Panel found that even if s. 51(5) had not prescribed the penalty, the same outcome would have been the appropriate penalty in this case.
[35] Section 53.1 of the Code provides that in an appropriate case, a panel may make an order requiring a member who the panel finds has committed an act of professional misconduct pay all or part of the College’s legal costs and expenses, investigation costs and hearing costs.
[36] Before the Panel, the appellant conceded that costs in the amount of $100,000 were appropriate, but challenged the larger award sought by the College. The College sought, and the Panel awarded, $318,297.87, which was two-thirds of the costs incurred by the College excluding the investigation costs. The Panel recognized that the award was substantial but found it fair and reasonable in the circumstances. In its decision, the Panel took into account the exclusion of the investigation costs and the reduction of the other costs by one-third. The Panel also considered other relevant factors such as efficiencies achieved at the hearing, the withdrawal of the standard of practice charges and proportionality. It also considered the absence of any evidence that the quantum of costs would cause undue hardship.
[37] The Panel ordered that the costs be paid over a period of 12 months in monthly installments.
Issues and analysis
[38] There is no issue that the standard of review on this appeal is reasonableness. The main issue is whether the Panel’s decision that R.B. was Dr. Clokie’s patient on October 14, 2006 was reasonable. If so, revocation is mandatory and the only remaining issue is the quantum of costs. Other issues were also raised on the appeal but do not affect the outcome except as they relate to the doctor-patient relationship issue.
Doctor-patient relationship
[39] The appellant submits that the Panel’s finding that R.B. was a patient on October 14, 2006 was unreasonable.
[40] The appellant has accepted that the issue of whether there is a doctor-patient relationship is a factual inquiry: Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, 98 O.R. (3d) 561, at para. 38.
[41] The appellant submits that a doctor-patient relationship can be episodic, and that sexual relations could take place during breaks in the doctor-patient relationship without constituting sexual abuse. The appellant relies on a case involving an emergency room physician that mainly serves to underscore that the issue of whether there is a doctor-patient relationship is a factual inquiry: College of Physicians and Surgeons of Ontario v. Redhead, 2013 ONCPSD 18. The appellant also relies on G.L. and College of Physicians and Surgeons (1993), 1993 9362 (AB CA), 110 D.L.R. (4th) 214 (Alta. C.A.), which also arises in markedly different circumstances and emphasizes that the issue must be resolved by “a close examination of the relationship”: at para. 17.
[42] Because the term “patient” is not defined in the Code, “it is up to the discipline tribunal to apply its expertise in considering all the facts and circumstances in order to determine whether a complainant who was having a sexual relationship [with a member]… was also a patient…”: Leering, at para. 38.
[43] The Panel considered the appropriate factual context, applying its expertise in Dentistry. The Panel decided that R.B. was Dr. Clokie’s patient on October 14, 2006. In the reasons for decision, the Panel set out the facts upon which its decision was based. Those facts are mainly found in the medical records, including the following:
(i) after obtaining a referral from her family dentist, R.B. attended for an appointment with Dr. Clokie on September 7, 2006;
(ii) at that appointment, Dr. Clokie examined R.B., discussed surgery and put forward a plan that indicated that there would be further consultation;
(iii) the plan set out in the patient records of September 7, 2006, was itself a treatment plan, and it contemplated a full “workup” and further plan once certain steps had been taken;
(iv) the chart for R.B. included staff notes made on September 13 and 14, 2006, showing that Dr. Clokie was facilitating the collection of patient records, and noting a request from R.B. for a treatment plan;
(v) R.B. attended for a second appointment with Dr. Clokie on September 21, 2006, for the removal of a bone fragment; and,
(vi) at the September 21, 2006 appointment, Dr. Clokie’s notes indicate that R.B. needed to have the chin implant removed and there would then be a workup.
[44] The Panel also relied on R.B.’s evidence that she believed Dr. Clokie was her doctor. The Panel found that this belief was supported by the letter by Dr. Gerczuk, dated October 4, 2006 and copied to Dr. Clokie. That letter reported on Dr. Gerczuk’s appointment with R.B., her problems in regards to her jaw, and said that, “Dr. Clokie will be looking after her in that regard.”
[45] The appellant submits that there were inconsistent findings by the Panel regarding R.B.’s credibility, giving rise to an unreasonable decision. The appellant submits that since the Panel was not persuaded that certain events took place (specifically, the April 25, 2007 instance of sexual intercourse and the throwing of the plastic skull), and given other inconsistencies in R.B.’s evidence, the Panel’s reasons for decision did not adequately explain its findings.
[46] In my view, the Panel was free to accept some, all or none of R.B.’s evidence. The Panel gave reasons for its various findings. Further, the key finding – that R.B. was a patient on the October date – did not rest on R.B.’s testimony. That finding was mainly founded on facts set out in medical records including the charted notes of what transpired at appointments and the plan after each appointment. While the Panel did refer to R.B.’s belief, it reasonably found that her belief in that regard was corroborated by Dr. Gerczuk’s letter.
[47] The appellant further submits that the Panel’s finding of a doctor-patient relationship was unreasonable because it did not consider all of the relevant circumstances, such as R.B.’s residency in Sweden, the lack of a next appointment, the steps that had to be taken before a further treatment plan could be made, some of which had to be taken by R.B., and the possibility that R.B. would have another doctor remove the chin implant. However, these arguments were addressed by the Panel.
[48] The appellant also submits that the Panel’s finding that the “Plan” recorded in the chart entry for the first appointment was a treatment plan was unreasonable. This argument presupposes that there could be only one treatment plan, yet no authority was provided for that proposition.
[49] The appellant also submits that the Panel erred by relying on unspecified emails and on semen-stained underwear as evidence as corroborating R.B.’s testimony. The appellant mainly submitted that since R.B. testified that her semen-stained underwear was from the April 25, 2007 incident, and the Panel found that intercourse on that day had not been proved, the underwear could not be corroborative of anything.
[50] I find it unsurprising that the Panel would make general references to the semen-stained underwear as corroborative of sexual abuse given the testimony of R.B. about incidents of sexual abuse and the admission that it was Dr. Clokie’s semen on her underwear. However, as of final argument at the discipline hearing, there was an admitted incident of sexual intercourse on October 14, 2006 that needed no corroboration. Further, the finding of a doctor-patient relationship on that day was not predicated on the semen-stained underwear. Given the now admitted instance of sexual intercourse on October 14, 2006, this corroboration issue no longer affects the outcome of this appeal.
[51] The appellant further submits that the Panel erred in its analysis of consciousness of guilt, but this has also become an issue that does not affect the outcome of this appeal. The fabrication of evidence was not relied upon by the Panel in its determination that there was a doctor-patient relationship and there is an admitted instance of sexual intercourse.
[52] The appellant also seeks to rely on guidelines of the College of Physicians and Surgeons (the “CPSO”). However, those guidelines address the propriety of a sexual relationship between a physician and a former patient. In that context, the CPSO guidelines indicate that it “may not be inappropriate” to have a sexual relationship with a former patient within a short time following the end of the doctor-patient relationship. These guidelines were considered by the Panel, which noted the absence of evidence that Dr. Clokie had terminated the doctor-patient relationship with R.B.
[53] The appellant also submits that the Panel’s reasons for decision are faulty or insufficient for appellate review. Reasons for decision need not mention every piece of evidence. They too must be reviewed on the basis of reasonableness. Although the Panel’s reasons for decision are somewhat repetitive, they are sufficient to understand why the Panel made its decision and to determine whether its conclusion is within the range of reasonable outcomes.
[54] The Panel considered relevant agreed facts and evidence, and concluded that Dr. Clokie and R.B. were in a doctor-patient relationship at the material time in October 2006. This was well within the Panel’s expertise. The appellant has not demonstrated that this finding was unreasonable.
Costs order
[55] The appellant does not dispute that this was an appropriate case for the Panel to order costs under s. 53.1 of the Code. Section 53.1 provides as follows:
53.1 In an appropriate case, a panel may make an order requiring a member who the panel finds has committed an act of professional misconduct or finds to be incompetent to pay all or part of the following costs and expenses:
The College’s legal costs and expenses.
The College’s costs and expenses incurred in investigating the matter.
The College’s costs and expenses incurred in conducting the hearing.
[56] This section allows for a costs order that includes not only the College’s legal costs and expenses but also costs and expenses of the investigation and of the hearing.
[57] The power to award costs is discretionary. The standard of review is reasonableness. As is accepted by the appellant, to overturn the cost award, he must demonstrate that there was an error of principle or that the award is “plainly wrong”: Venneri v. College of Chiropractors of Ontario, 2010 ONSC 473 (Div. Ct.), at para. 6.
[58] The appellant disputes the quantum of costs. The appellant submitted to the Panel that the appropriate quantum was $100,000.
[59] The Panel ordered that $318,297.87 be paid to the College in respect of costs. This figure was two-thirds of the amount incurred by the College for its legal costs and expenses (under s. 53.1 #1) and the costs and expenses incurred in conducting the hearing (under s. 53.1 #3). The College did not make a claim for its costs and expenses incurred in its investigation, although permitted under s. 53.1 #2.
[60] The appellant submits that the quantum of costs ordered by the Panel was unreasonable because of a number of factors, including the following: the withdrawal of the standard of care allegations; the failure to prove all of the particulars of sexual abuse, including the instance of sexual intercourse on April 25, 2007, and efficiencies resulting from the appellant’s conduct of the hearing.
[61] The appellant has not demonstrated any error in principle in the Panel’s decision on costs. The Panel recognized that its costs award was substantial. It took into account the factors now put forward on appeal.
[62] The Panel took into account the efficiencies achieved at the hearing, but noted that they contained the costs rather than changing what was claimed. The appellant had changed counsel prior to hearing, after which there was a more efficient approach. But beforehand, that was not the case. A considerable portion of the costs incurred related to the prehearing stage.
[63] The Panel took into account the admissions that were made and also took into account when various admissions were made. The admission regarding sexual intercourse was not made until final argument.
[64] The Panel took into account the withdrawal of the allegations regarding standards of practice. The College submitted that those costs were not significant. The appellant put forward no specific information about his actual costs regarding those allegations or anything else.
[65] The Panel considered and rejected the appellant’s submission that the outcome was “mixed success” because certain particulars were not proven. The Panel made no error in principle in that regard. The breaches of the Code that proceeded at the hearing, as alleged in the Notice of Hearing, were proved without the need to prove every particular. Further, the appellant could have, but did not, put forward evidence that he had incurred substantial costs in relation to the unproven particulars.
[66] The Panel considered and rejected a submission based on the financial impact of the award, given no evidence to support it. Before the Panel, the appellant had submitted that his “principal” source of income had “decreased dramatically” as result of the penalty of mandatory revocation, but his submissions also made it clear that he had other sources of income. No evidence was put forward regarding the overall financial impact.
[67] The appellant submits on this appeal that the quantum of the costs award essentially penalized him for mounting a defence. This concern is not borne out in the circumstances of this case.
[68] There is no doubt that costs are compensatory only. And in its award, the Panel gave only partial compensation to the College for the costs that were incurred and may be awarded under s. 53.1 of the Code. The Panel properly focused on the particular circumstances of the case before it, and how it been conducted, giving rise to the substantial costs incurred by the College. It was open to the appellant to put forward information to show that the College’s costs were dramatically more than his own costs. This would have been another measure of whether the College’s costs were reasonable. The Panel also considered proportionality in comparison to costs awards in other matters.
[69] The appellant chose not to put forward his own costs as a measure of reasonableness, but he did make a significant concession about the College’s costs claim. The appellant agreed before the Panel that the number of hours spent was reasonable.
[70] The appellant did not expressly raise his own reasonable expectations as a factor before the Panel. However, that factor is an established consideration in civil cases: Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.).
[71] This court has recently rejected the proposition that the reasonable expectations of the losing party is a factor that must be considered when ordering costs under s. 53.1 of the Code: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.), at para. 228 (per Marrocco ACJSC and Pattillo J.). The appellant relies on the minority judge’s costs decision in Reid.
[72] The costs award unsuccessfully challenged in Reid was $166,194.50. The court concluded that the panel considered the appropriate principles and upheld the award. In doing so, the court noted that s. 53.1 of the Code expressly permits a broader costs claim than the scope of a claim in a civil proceeding. The court held the reasonable expectations of the losing party need not be considered, but that proportionality should be considered, as it was here.
[73] The minority judge in Reid raised a number of issues about the costs award arising from the particular circumstances of that case. Unlike the appellant’s case, Reid was a relatively simple case, involving much less serious allegations, where the College nonetheless claimed for two senior counsel at a high total hourly rate, which was a significant component of the amount. There is no suggestion that in Reid the pre-hearing steps were made more complex by the appellant, and thus more costly, as is the case here. Further, the minority judge in Reid held that the only reasonable inference in the case before her was that the appellant in that case would suffer “profound financial hardship” and there was therefore no need for evidence to establish that inference. Here, the appellant admits to other sources of income but has not quantified them.
[74] There is no question that the costs award here is high. It is unusually high. I would expect much more moderate awards in most cases. However, the quantum was largely driven by the defence strategy before the hearing, and admissions made only late in the process, resulting in a large number of hours having already been spent that the appellant agrees were reasonable. While the number of hours is only one factor, the Panel considered all relevant factors in the particular circumstances of this case. In doing, the Panel made no error of principle, and its decision is not plainly wrong.
[75] The Panel concluded that the position of the College, which waived the costs of the investigation and reduced the other costs by one-third, was fair and reasonable, and made its order accordingly. The appellant has failed to demonstrate that this was an unreasonable exercise of discretion in the circumstances of this case.
Order
[76] The appeal is dismissed with costs to the respondent in the agreed amount of $7,500, all inclusive.
Justice W. Matheson
I agree _______________________________
Justice I.V.B. Nordheimer
I agree _______________________________
Justice G.E. Taylor
Released:
CITATION: Clokie v. The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773
DIVISIONAL COURT FILE NO.: DC 276/16
DATE: 20170519
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
NORDHEIMER, TAYLOR & MATHESON JJ.
BETWEEN:
DR. CAMERON CLOKIE
Appellant
– and –
THE ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
Respondent
REASONS FOR decision
Released: May 19, 2017