2020 ONSC 555

DIVISIONAL COURT FILE NO.: 292/18

DATE: 20200210

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DR. MAHMOUD HADDAD POUR, Applicant

AND:

THE NATIONAL DENTAL EXAMINING BOARD OF CANADA, Respondent

BEFORE: Boswell, Penny and Favreau JJ.

COUNSEL: Gary Srebrolow, for the Applicant

Monica Song, for the Respondent

HEARD AT TORONTO: January 27, 2020

ENDORSEMENT

BOSWELL J.

OVERVIEW

[1] Dr. Haddad Pour immigrated to Canada in October 2013. He brought with him his family and twenty-three years of experience as a dentist in Iran. He immediately set to work on obtaining the necessary qualifications to practice his chosen profession in Canada.

[2] Coming from a “non-accredited” dental program, Dr. Haddad Pour was required to successfully complete an equivalency process established by The National Dental Examination Board of Canada (the “NDEB”). The equivalency process consists of three assessments: fundamental knowledge; clinical judgment; and clinical skills. Candidates have three attempts to pass each assessment.

[3] Dr. Haddad Pour passed the first two assessments on his first attempt. The assessment of clinical skills (the “ACS”) proved to be more difficult for him. He failed on attempts in December 2015 and June 2016. A third and final attempt ended in failure – albeit marginally – in June 2017. He filed a written appeal of his results to the Appeals Committee of the NDEB as he was entitled to do according to the Board’s By-Laws. His appeal was dismissed by way of short written reasons dated November 5, 2017.

[4] Dr. Haddad Pour applies for judicial review of the dismissal of his appeal.

THE ISSUES

[5] There is no dispute that the standard of review is reasonableness with respect to the substance of the decision: see Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65 (“Vavilov”).

[6] There is no standard of review that applies to issues of procedural fairness; rather, as held in Vavilov, the procedural requirements applicable to a particular case are to be determined in accordance with the five factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.

[7] Counsel advanced three grounds in argument as to why the decision of the Appeals Committee was unreasonable and procedurally unfair:

(i) They failed to follow their own By-Laws by not ordering an oral hearing when one was called for in the circumstances;

(ii) They failed to justify why they were not ordering an oral hearing; and,

(iii) The procedure was unfair to Dr. Haddad Pour because he did not receive an expected post-evaluation review upon the completion of his ACS.

[8] In my view, none of these grounds is persuasive. I am not, for the reasons that follow, satisfied that the decision of the Appeals Committee was unreasonable, or that Dr. Haddad Pour has demonstrated any procedural unfairness.

DISCUSSION

The Oral Hearing Issue

[9] The 2017 iteration of the NDEB’s By-Laws established a process whereby a candidate who failed the ACS could make written submissions to the Appeals Committee of the Board setting out the grounds for requesting to have the “Fail” changed to a “Pass”.

[10] Central to this application is section 22.04 of the By-Laws, which provides as follows:

If, on consideration of the appeal record as identified in the Assessment of Clinical Skills Appeal Process (Appendix VIII)[^1], the Panel of the Appeals Committee determines, on a prima facie basis, that there may have been a procedural irregularity with respect to the administration of the Assessment of Clinical Skills of such significance that it might change the Appellant’s “Fail” to a “Pass”, then the Appellant’s results of the Assessment of Clinical Skills will be referred to a Special Appeal Hearing.

[11] The main thrust of this application is Dr. Haddad Pour’s assertion that he should have been granted a Special Appeal Hearing. He claims that his written submissions to the Appeals Committee established, on a prima facie basis, that there were significant procedural irregularities during the ACS. The Special Appeal Hearing would have, amongst other things, permitted Dr. Haddad Pour to make oral submissions.

[12] To understand Dr. Haddad Pour’s position, it is necessary to know a little bit about how the ACS is conducted and where Dr. Haddad Pour ran into trouble during the assessment.

[13] The ACS is a psychomotor assessment. Candidates are assessed on their demonstrated skills over two days and twelve tests. The tests are completed on typodonts (essentially manufactured teeth) mounted in mannequins placed in simulated dental chairs.

[14] The impugned test in this instance is known as a “Class II Amalgamation Preparation”. Most Canadians will be familiar with having a cavity fixed by their dentist. It is a common procedure. It usually begins with a needle, then some drilling. Finally, a filling. A Class II Amalgamation Preparation is the drilling part. Candidates are tasked with removing simulated decay (what the NDEB refers to as “caries”) from a typodont in preparation for a filling.

[15] The ACS candidates are provided with grading guidelines. To put it broadly, they are required to drill to remove the caries, but no more than necessary to do so.

[16] Dr. Haddad Pour received low grades on this particular test because he purportedly drilled too deep within the typodont and he also left an area of unsupported enamel. The grading criteria for the test made it clear that a D grade (which is what Dr. Haddad Pour received) would be assessed if the pulpal floor of the typodont was too deep, specifically more than 2.5 mm but less than 3.0 mm. Furthermore, a D grade would be assessed if there was unacceptable unsupported enamel.

[17] Dr. Haddad Pour alleges two procedural irregularities with the ACS that, taken individually or together, should have, he says, been enough to trigger a Special Appeal Hearing. Both relate to alleged defects in the typodont he was provided. Specifically,

(i) The depth of the caries in his typodont went below 2.5 mm and he was obliged to drill below that depth to remove them all; and,

(ii) There were grey lines in some areas of the typodont that simulated caries but were in fact a manufacturing defect.

[18] I am not persuaded by Dr. Haddad Pour’s submissions for the following reasons.

(i) The Depth of Caries

[19] Dr. Haddad Pour’s position regarding the depth of caries is problematic for two reasons.

[20] First, his submissions on this application are not consistent with the written submissions he made to the Appeals Committee.

[21] Second, he failed to provide the Appeals Committee with any evidentiary support for the assertion that his typodont was defective.

[22] Dr. Haddad Pour made the following written submission to the Appeals Committee regarding the depth he drilled into the typodont:

I would like to note that the depth of the pulpal floor is approximately 2.0-2.3 mm except in one point and that is due to the extent of caries. Due to the presence of deep caries, I had to remove all of the caries to avoid getting an E mark for leaving any remaining caries. Nevertheless, I was able to maintain a pulpal floor depth less than 2.5 mm. Please refer to the attached photos below that clearly demonstrate that the depth of the pulpal floor is less than 2.5 mm. (Emphasis added).

[23] It is apparent that Dr. Haddad Pour did not submit to the Appeals Committee that his typodont had defectively deep caries. Rather, he submitted, in essence, that his work met the criteria for a higher grade. The Appeals Committee confirmed that it did not.

[24] The application before this court is, in fact, the first time that Dr. Haddad Pour has advanced the assertion that the caries in his typodont went defectively deep. He made no complaint during the course of the test that the caries in his typodont went deeper than the 2.5 mm floor he was expected to work within. He made no mention of any purported defect in the Participant Communication Form he completed immediately following the test.

[25] Even if Dr. Haddad Pour’s written submissions on this point were capable of supporting an assertion of a defective typodont, he failed to point to any evidence supporting such an assertion.

[26] To trigger a Special Appeal Hearing, a candidate must establish a prima facie basis for concluding that there may have been a significant procedural irregularity during the administration of the ACS.

[27] The By-Laws do not define what will constitute a “prima facie basis”.

[28] In my view, a prima facie basis must mean something more than a bald allegation. If not, then the NDEB might just as well do away with the presumptive written appeals process because any allegation, however spurious, would trigger an oral hearing. In my view, the appellant must be able to point to some evidence at least capable of establishing the alleged irregularity and thereby triggering the need for an expanded, oral hearing.

[29] Dr. Haddad Pour did not point to any such evidence in his written submissions. Before this court, his counsel argued that Dr. Haddad Pour was entitled to expect that the caries in his typodont would not run below 2.5 mm in depth. He says that expectation supports an inference that Dr. Haddad Pour would not have drilled below 2.5 mm if the tooth had not been defective. I disagree. The suggested inference is not a reasonable one in the circumstances of this case. The test procedures are specifically designed to address the problem Dr. Pour has raised. The candidates are given 30 minutes before the examination begins to inspect all equipment including the typodonts. Further, the candidates are clearly advised that if, during the examination, “a problem occurs with the supplied equipment (including typodonts and heads), an invigilator must be informed immediately.” Dr. Haddad Pour did not raise any issues with an invigilator.

[30] The examination criteria, of which Dr. Pour must be deemed to have been well aware, repeatedly emphasized the importance of not “overpreparing” the affected site and drilling too deep. Candidates were explicitly required to drill no deeper than 2.5 mm. They were therefore obliged to pay close attention to how deep they were drilling. If the inference Dr. Pour has urged upon the Court were regarded as reasonable, it would render this particular skills test meaningless. It simply cannot be that any time a candidate drills below the prescribed 2.5 mm depth, an inference arises that the typodont was defective.

(ii) The Grey Lines

[31] In relation to the low grade he was assessed for leaving unsupported enamel, Dr. Haddad Pour submitted to the Appeals Committee the following:

Please reconsider this criterion as I could not detect any unsupported enamel, but just some areas of roughness which can be considered under “A” category. As can be seen in below photos, some light areas of grey lines are left. But I have tried to remove those dark lines simulating caries in order to avoid getting an “E” grade under caries remaining and that could have led to the minor roughness…Please consider this manufacture defect while re-evaluating my project.

[32] Again, Dr. Haddad Pour took the position before the Appeals Committee that his work was not deficient.

[33] To explain some apparent roughness in his work, he referred to what he perceived as a deficiency in the typodont – some grey lines. But the test protocol clearly provided that there may be a small cement-filled space between the simulated enamel and simulated dentin which may, as a result of the manufacturing process, appear grey. It was made clear that this grey material was not caries. Candidates were not to remove it.

[34] In short, the grey lines were not an irregularity. They were a known and identified feature of the standard typodonts.

[35] An additional difficulty for Dr. Haddad Pour is that the area where he purportedly excavated grey material was identified by him in his Participant Communication Form as being “at the lingual wall of distal box” (sic). The area identified by the assessors as being insufficiently supported was at the mid-occlusal. Again, this conclusion was confirmed by the Appeals Committee.

[36] I am not satisfied that Dr. Haddad Pour has made out any entitlement to a Special Appeal Hearing. The decision to dismiss the appeal on a written record was a reasonable one.

The Justification Issue

[37] The Appeals Committee did not expressly comment on the failure of Dr. Haddad Pour to meet the threshold test for a Special Appeal Hearing. He submits that he was entitled to an explanation as to why he was not afforded such a hearing. He says the Committee’s failure to give reasons for deciding the appeal in writing is a failure of transparency and justification. He says it renders their decision unreasonable.

[38] I disagree.

[39] As I noted, Dr. Haddad Pour did not complain, in his written submissions, about a procedural irregularity. For that reason alone, it was unnecessary for the Appeals Committee to address the issue of a Special Appeal Hearing.

[40] The reasons of the Appeals Committee were responsive to the issues raised by Dr. Haddad Pour.

[41] In Vavilov, the Supreme Court instructed that administrative decision-makers must adopt a culture of justification. Reasonable decisions are ones that are based on an internally coherent and rational chain of analysis and justified in relation to the facts and law that constrain the decision-maker. (Para. 85).

[42] In this instance, the Appeals Committee was constrained by the appeal record, by the By-Laws and by the written submissions made by Dr. Haddad Pour. Within that context, their decision was clearly intelligible, transparent and justified.

The Post-Evaluation Review Issue

[43] As a matter of practice, evaluators at the ACS will conduct post-evaluation reviews. They pay particular attention to candidates, like Dr. Haddad Pour, who have received marginal failing grades. The review includes an assessment of whether errors are judged to be the result of the difference between a typodont and a natural tooth. Sometimes, as a result of the review, an assessed grade may be raised.

[44] Dr. Haddad Pour argues that there is no evidence he received such a review. Moreover, that as a matter of procedural fairness, he should have.

[45] I am not certain that procedural fairness required that Dr. Haddad Pour receive a post-evaluation review. But in any event, Dr. Haddad Pour does not actually depose that he did not receive one. He says only that the NDEB does not have any record that he did.

[46] The NDEB’s evidence is that a Post-Evaluation Review takes place after all ACS evaluations. For candidates who receive failing grades on multiple requirements, the review is brief. For candidates who receive a failing grade on fewer than five requirements, such as Dr. Haddad Pour, there is an in-depth post-evaluation conducted by at least three members of the Post-Evaluation Team. The NDEB’s affiant asserts that the Board followed this process after the June 2017 ACS and that Dr. Haddad Pour therefore received a Post-Evaluation Review in this case.

[47] Dr. Haddad Pour’s argument, in my view, reflects an attempt to shift the onus of proof. It is Dr. Haddad Pour’s onus to establish that the process was unfair. In the absence of evidence that he did not receive a post-evaluation review, this ground must fail.

[48] In any event, Dr. Haddad Pour did not raise this issue on his appeal to the Appeals Committee nor has he established that a Post-Evaluation Review would have led to a different outcome than the review conducted by the Appeals Committee.

CONCLUSION

[49] The application for judicial review is therefore dismissed.

[50] By agreement between the parties, costs are fixed at $12,000 payable by the applicant to the respondent within 30 days.

Boswell J.

I agree _______________________________

Penny J.

I agree _______________________________

Favreau J.

[^1]: Appendix VIII to the By-Law defined the “appeal record” as consisting of the following: a. Appellant’s submissions and any and all documents the Appellant deems necessary; b. Report of Results for the grades under consideration; c. Typodonts with all Assessment teeth in position; d. Participant Communication Form; e. Invigilator Notes Form for Participant; and, f. Any photographs taken during the evaluation of the Appellant’s typodonts.