Court File and Parties

CITATION: Ibrahim v. The National Dental Examining Board of Canada, 2019 ONSC 198

DIVISIONAL COURT FILE NO.: 715/17

DATE: 20190110

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Mark Ibrahim, Applicant

AND:

The National Dental Examining Board of Canada, Respondent

BEFORE: Swinton, Hackland and Thorburn JJ.

COUNSEL: Kevin Sherkin and Neal Altman, for the Applicant

Monica Song, for the Respondent

HEARD at Toronto: January 8, 2019

Endorsement

Swinton J.:

[1] The applicant seeks judicial review of a decision of The National Dental Examining Board of Canada (the “Board”) that refused to grant him a second appeal hearing with respect to his performance on an equivalency exam.

[2] The applicant is a graduate of a non-accredited dentistry program. The Board’s by-laws provide that graduates of such programs may proceed to take the two examinations required to obtain a national certificate of qualification for a general practitioner dentist if they have first passed three equivalency exams. A candidate has three opportunities to pass each of these equivalency exams.

[3] The applicant appealed some of his grades after he failed the Assessment of Clinical Skills (“ACS”) examination in December 2016. This was his second attempt at this exam, which is a two-day psychomotor assessment in which participants perform 12 dental procedures in a simulated clinical setting. He has since failed this examination a third time.

[4] In his appeal relating to the second examination, the applicant raised a number of issues relating to technical assessments resulting in four of the grades he received. He raised no procedural issues. That appeal was dismissed in a letter sent to him dated April 11, 2017.

[5] Subsequently, the applicant requested a second appeal hearing, raising what he characterizes as “procedural issues” relating to the condition of the typodonts (a plastic model of the oral cavity with assessment teeth) that he was required to use, and the fact that another participant had suffered a nervous breakdown, causing the applicant to drop the provisional crown on which he was working and lose time in finding it. In a later letter, his counsel raised a medical condition that was said to have affected the applicant’s performance.

[6] In a letter dated November 9, 2017, the Board refused to accord a second appeal hearing, given that the applicant had failed to raise these procedural issues in his written submissions concerning his earlier appeal.

[7] The applicant submits that the process before the panel of the Appeals Committee that rejected his appeal in April 2017 was flawed, because the panel did not have his typodonts before it. He relies on the omission of typodonts, in paragraph 128 of the affidavit of Dr. Gerow, the Executive Director and Registrar of the Board, which listed the material before the Appeals Committee panel.

[8] There is no merit to this submission. The Appeal Process requirements, found in a schedule to the Board’s by-laws, require that the typodonts, among other items, be before the panels of the Appeals Committee. The panel’s letter of decision states that the typodonts, among other things, were before it. Furthermore, Dr. Gerow, during cross-examination, explained that the practice is to place the typodonts before the panels. Indeed, he stated that the panel could not carry out an appeal without the typodont and assessment teeth. Dr. Gerow explained that his failure to refer to the typondonts in paragraph 128 of his affidavit was an oversight.

[9] I am satisfied, based on the reasons of the panel of the Appeals Committee and Dr. Gerow’s evidence, that the panel had the proper material before it, including the typodonts, when it determined the initial appeal. Accordingly, the proper procedure for an appeal was followed.

[10] In the alternative, the applicant argues that there was a denial of procedural fairness because the Board rejected his request for a second appeal. He submits that he had a legitimate expectation that a second appeal would be afforded when he raised procedural issues, given that the Board had provided a second appeal in two other cases.

[11] The Board’s by-laws do not contemplate a second appeal except in accordance with By-law 22.4. It provides that a panel of the Appeal Committee, hearing an appeal in writing, may refer the appeal to a second appeal hearing if it “determines on a prima facie basis, that there may have been a procedural issue with the conduct of the Assessment of Clinical Skills for the appellant of such significance that it might alter the appellant’s Fail.” The applicant did not raise any procedural issues in his initial appeal materials, and the panel of the Appeals Committee did not consider By-law 22.4. I do not accept the applicant’s submission that the Appeals Committee was required to consider issues of procedural fairness that he did not raise before them.

[12] The by-laws provide that the decision of a panel of the Appeals Committee is final. There is no further right of appeal contemplated by the by-laws. I accept the Board’s characterization of the applicant’s request for a second appeal hearing as, in fact, a request for reconsideration. There is no reference to reconsideration in the by-laws.

[13] The applicant submits that he had a legitimate expectation that the initial appeal decision would be reconsidered because of the new information he provided. I disagree. An individual bringing an appeal would have a legitimate expectation that the Board would follow the appeal procedures set out in the by-laws, and act in an unbiased manner, without arbitrariness, and in accordance with its ACS Protocol.

[14] The Board acted in accordance with the by-laws, which provide no right to a second appeal (other than By-law 22.4, which does not apply here) or to reconsideration. It explained why it refused to reconsider the applicant’s appeal. The applicant could and should have raised the procedural issues respecting the faulty equipment and the other student at the time of the assessment by informing the invigilators and by recording the concern in his Participant Communication Form. Material provided to him before the assessment makes it clear that this is the appropriate way to proceed. Moreover, he could and should have raised such concerns in his initial appeal materials.

[15] Finally, to the extent that he required accommodation for a medical condition, he should have informed the Board of this need in advance of the assessment, as set out in the Board’s 2016 ACS Protocol. It was too late to raise this as an issue after the appeal decision.

[16] In conclusion, there was no denial of procedural fairness, in the initial appeal or the refusal to reconsider. The Board reasonably concluded that it would not reconsider the applicant’s appeal. The fact that it may have done so in another case is not proof of procedural unfairness, as the decision to reconsider turns on the facts of the particular case. Dr. Gerow explains in his affidavit that in cases where a reconsideration has been granted, it has been because the panel of the Appeals Committee did not address issues raised by the participant.

[17] Accordingly, the application for judicial review is dismissed. The parties are agreed that there will be no order with respect to costs.

Swinton J.

I agree _______________________________

Hackland J.

I agree _______________________________

Thorburn J.

Date: January 10, 2019