CITATION: Park v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 8088
DIVISIONAL COURT FILE NO.: 286/21
DATE: 20211213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Favreau and O’Bonsawin JJ.
BETWEEN:
Dr. Stan Park
Appellant
– and –
Discipline Committee of the Royal College of Dental Surgeons of Ontario
Respondent
Matthew Wilton, for the Appellant
M. Jill Dougherty and Debra McKenna, for the Respondent
HEARD at Toronto (by videoconference): September 16, 2021
REASONS FOR DECISION
Favreau J.
Overview
[1] The appellant, Dr. Stan Park, appeals a decision of the Discipline Committee of the Royal College of Dental Surgeons of Ontario dated April 12, 2021, revoking his certificate of registration.
[2] Dr. Park does not appeal the findings of misconduct. He only appeals the penalty. Dr. Park argues that the Discipline Committee made several errors in principle in deciding to revoke his certificate of registration, that the reasons were insufficient and that the Committee considered irrelevant factors.
[3] For the reasons below, the appeal is dismissed. I see no errors in principle in the Discipline Committee’s decision to revoke Dr. Park’s certificate of registration. The decision was based on several findings of professional misconduct, including Dr. Park’s persistent failure to abide by undertakings and a finding that Dr. Park lacked insight into his misconduct. In that context, the finding that Dr. Park is ungovernable was fully supported and the decision to revoke his certificate of registration was a fit and appropriate penalty. There is also no merit to the argument that the reasons were insufficient.
Background
[4] Dr. Park received his certificate of registration from the College in January 1989. He works at a clinic that he owns and operates.
Prior findings of misconduct
[5] In 2013, the Discipline Committee found Dr. Park guilty of falsifying records, performing unnecessary dental treatment to cover up billing irregularities, and misleading College investigators. The Discipline Committee accepted a joint submission made by Dr. Park and the College, and imposed a 7-month suspension of Dr. Park’s certificate of registration. The Discipline Committee also directed Dr. Park to take remedial steps, including completing courses on professional ethics, prosthodontics and recordkeeping.
Complaints and proceedings leading to the revocation decision
[6] On April 8, 2014, a patient complained that Dr. Park improperly installed dental implants and overcharged for the implants. Following the complaint, on April 9, 2015, Dr. Park voluntarily entered into an undertaking not to initiate new implant therapy until he completed a course on implants approved by the College and until the College approved a mentor to supervise his performance of further implant therapy. The undertaking also required Dr. Park to report to the College when he completed the course and required the mentor to provide monthly reports to the College (2015 Undertaking).
[7] On August 2, 2017, the College received another complaint against Dr. Park by a patient identified as J.S.S.. This patient alleged that Dr. Park performed implant treatment between November 2015 and July 2016 that resulted in nerve damage. As this procedure appeared to violate Dr. Park’s 2015 Undertaking, the College conducted an investigation that revealed that Dr. Park performed 22 unauthorized implant treatments since he entered into the undertaking. The investigation also revealed that, while Dr. Park completed an implants course, he did not submit proof of completion to College. In addition, while he retained a mentor, Dr. Lin, he did not obtain the College’s approval. With respect to the 22 implant patients, Dr. Park treated 18 of them without being supervised by Dr. Lin. Based on these circumstances, on October 5, 2017, the College’s Inquiries, Complaints and Reports Committee made an interim order restricting Dr. Park from performing any implant therapy (2017 Interim Order).
[8] On December 15, 2017, while represented by counsel, Dr. Park signed a second undertaking to replace the 2015 undertaking (2017 Undertaking). In this undertaking, Dr. Park agreed to never again perform any implant therapy treatment and to permit the College to monitor his practice through unannounced inspections.
[9] During two monitoring inspections between 2017 and 2019, College inspectors found that Dr. Park performed implant therapy treatments on five patients in violation of the 2017 Undertaking. As a result, the Inquiries, Complaints and Reports Committee made a second interim order on May 22, 2020 restricting Dr. Park’s practice “such that he will not perform any implant therapy including, but not limited to, diagnosis, treatment planning, surgical placement, restoration and/or removal of implants”. (2020 Interim Order)
[10] On a monitoring visit held November 13, 2020, the College did not find that Dr. Park was performing any implant-related treatments.
Hearing and revocation decision
[11] The allegations of professional misconduct against Dr. Park were referred to the Discipline Committee for a hearing. The allegations of professional misconduct were set out in four separate notices of hearing that dealt with the events referred to above, including the breaches of the 2015 Undertaking, the treatment of J.S.S. that led to nerve damage and the breaches of the 2017 Undertaking.
[12] Dr. Park pleaded guilty to all allegations of professional misconduct. The only issue at the hearing was the penalty to be imposed. The College sought revocation of Dr. Park’s certificate of registration while Dr. Park argued that a nine-month suspension and a period of supervision would be a fit sentence.
[13] The hearing took place over four days between January and March 2021. In advance of the hearing, the parties submitted an agreed statement of facts that detailed the circumstances referred to above. The agreed statement of facts also included an acknowledgement by Dr. Park that he breached his undertakings and an acknowledgment by the College that it would have approved Dr. Lin as a mentor.
[14] Besides the agreed statement of facts, at the hearing, Dr. Park testified and called two other witnesses, including Dr. Lin.
[15] The Discipline Committee released its decision on April 12, 2021.
[16] The first few pages of the decision are taken up with a detailed review of the allegations in four Notices of Hearing that led to the hearing.
[17] The decision then goes on to state that Dr. Park “admitted the allegations of professional misconduct as set out in the Notices of Hearing… With regard to the conduct, [Dr. Park] admitted that his conduct would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.”
[18] The decision also includes the text from the agreed statement of facts, including Dr. Park’s admissions of professional misconduct.
[19] In summarizing Dr. Park’s conduct, the Discipline Committee stated that he “admitted to performing implant treatment on 22 patients, in direct violation of his 2015 Undertaking and an additional 5 patients, in direct violation of his 2017 Undertaking. In one instance (patient J.S.S.) the treatment resulted in paraesthesia. The Member’s conduct was clearly disgraceful, dishonorable and unprofessional.”
[20] The Discipline Committee went on to review the respective positions of the parties on penalty. The College submitted that revocation was the only appropriate remedy on the basis, in part, that Dr. Park had “engaged in a pattern of making promises to the College that he fails to keep and then makes excuses as to why he was unable to keep those promises”.
[21] Dr. Park argued that revocation was not appropriate in part because he did not appreciate that he was breaching his undertaking. Instead, he argued that he should be subject to a nine-month suspension, a reprimand and 36 months of supervision. In reviewing Dr. Park’s submissions on penalty, the Discipline Committee referred to Dr. Park’s evidence that he believed he was abiding by the undertaking:
The Member testified on his own behalf, and called two additional witnesses to support his position that while he had failed to abide by the undertakings he entered into with the College, he did so because he did not fully appreciate that his actions were contrary to either undertaking. In particular, and with respect to the first undertaking given, the Member testified that he believed he was abiding by the undertaking by enrolling in an implant course and by seeking assistance and review from the course provider (Dr. Lin) on a case by case basis. He believed that by doing so, he had fulfilled the re-education and mentorship requirements of the undertaking. The course provider, Dr. Lin testified that while he never formally agreed to become Dr. Park's mentor, he did provide him with advice and mentorship from time to time on Dr. Park's implant cases. With respect to the second undertaking, the Member testified that he did not fully appreciate that any implant related work was prohibited, including repair work. The Member argued that given his good faith attempts to abide by the undertakings, a suspension of nine months, a reprimand and 36-months of monitoring were more appropriate sanctions than revocation. In addition, the Member argued that a costs order in the amount of $15,000.00 was fair.
[22] The Discipline Committee then went on to explain why it found that revocation was the appropriate penalty in this case. In doing so, the Discipline Committee provided the following rationale:
a. The Committee started by reviewing the general issues it was to consider in imposing a penalty, including the seriousness of the misconduct, that the “primary objective of its order must be public protection and the public’s confidence in the College’s ability to self-regulate”, that the penalty must act as a specific and general deterrent, whether remediation or terms might address the risk of reoffending, and mitigating and aggravating factors.
b. The Committee found that Dr. Park breached the 2015 Undertaking and the 2017 Undertaking. Specifically, he continued to perform implant work without taking the steps required by the 2015 Undertaking. The Committee specifically referred to the implant work Dr. Park performed on J.S.S.. The Committee found that the “injury to J.S.S. occurred after Dr. Park had completed a course in implants and could have been prevented had he taken the necessary precautions as required by the Undertaking”. The Committee found that the evidence demonstrated that Dr. Park treated eighteen implant patients before securing a mentor, contrary to the 2015 Undertaking.
c. The Committee rejected Dr. Park’s attempt to “deflect blame”, finding that “he ignored repeated attempts by the College to make him accountable and restrict his activities” and that there was no evidence Dr. Park did not understand the undertakings at the time he signed them. The Committee also noted that Dr. Park made no efforts to ensure that he understood his obligations. The Committee held that the “requirements of the undertakings were put in place to minimize patient risk; something Dr. Park chose to ignore”.
d. The Committee noted that Dr. Park’s 2013 discipline finding related to inappropriate billings and falsifying record. The Committee also noted that Dr. Park misled College investigators twice in 2019 about whether he had performed implant work. The Committee stated that this evidence “caused the Panel to question Dr. Parks’ integrity and trustworthiness”
e. The Committee noted that Dr. Park appeared to show remorse and that he has a commendable “charitable track record and standing in his community”, but that “this did not offset the fact that he failed in his prime responsibilities to the College and the public”.
[23] Based on these findings, the Discipline Committee concluded that “the Member is ungovernable and that revocation is the only appropriate penalty in all of the circumstances. At this stage, the Panel is simply not confident that the Member can practice safely and in compliance with his obligations to the College.” The Committee went on to state in the same paragraph that “[s]hould that change in future [sic], [Dr. Park] should have to satisfy a panel of the Discipline Committee that he can return to practice safely and that he can be governed”.
[24] Based on these reasons, the Discipline Committee made the following order:
a) The Member shall appear before the Panel of the Discipline Committee to be reprimanded within sixty (60) days of this decision becoming final or on a date to be fixed by the Registrar;
b) The Registrar is directed to revoke the Member's certificate of registration;
c) The Member is required to pay costs to the College in the amount of $29,000.00 in respect of this discipline hearing, such costs shall be payable within thirty (30) days of this decision becoming final.
Standard of review that applies to a penalty decision
[25] Pursuant to subsections 70(1) and (2) of the Health Professions Procedural Code, under Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”), Dr. Park has a right to appeal a decision of the Discipline Committee to the Divisional Court on a question of law or fact or both.
[26] Given the statutory right of appeal, the appellate standard of review applies: Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, at para. 37. The court is to review errors of law on a correctness standard and errors of fact or mixed fact and law, except for extricable errors of law, on a palpable and overriding standard.
[27] As held by this Court in Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039, at para. 18, on an appeal from a penalty decision, the Court will only interfere if the Discipline Committee made and error in principle or if the penalty is clearly unfit:
It is well established that in order to overturn a penalty imposed by a regulatory tribunal, it must be shown that the decision-maker made an error in principle or that the penalty was “clearly unfit.” The courts in the criminal context have used a variety of expressions to describe a sentence that reaches this threshold, including “demonstrably unfit”, “clearly unreasonable”, “clearly or manifestly excessive”, “clearly excessive or inadequate” or representing a “substantial and marked departure” from penalties in similar cases. This high threshold applies equally in the administrative law context. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances. A fit penalty is guided by an assessment of the facts of the particular case and the penalties imposed in other cases involving similar infractions and circumstances, College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420 at para. 56.
Issue 1 – Did the Discipline Committee make any errors in principle in revoking Dr. Park’s certificate of registration?
[28] Dr. Park argues that the Discipline Committee made a number of errors in principle in its decision to revoke his registration. Specifically, he argues that the Discipline Committee failed to consider any precedents to ensure that revocation falls within the range of appropriate penalties for similar offences and to ensure that the penalty was proportional to the offences. He also argues that the Discipline Committee failed to define and apply the legal test for ungovernability.
[29] I do not find that the Discipline Committee made any errors in principle.
[30] In making the argument that the Discipline Committee failed to consider similar cases to assess whether revocation was a fit and proportionate penalty, Dr. Park relies on the Court of Appeal’s decision in College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420. In Peirovy, at para. 57, the Court of Appeal held that, in determining whether a penalty is “clearly unfit”, the Court should be guided by proportionality and an assessment of the range of appropriate penalties dependent upon the facts of each case and penalties imposed in other similar cases.
[31] Dr. Park suggests that this case requires the Discipline Committee to explicitly consider and refer to other similar cases in its decision. However, this is not what the Court of Appeal held in Peirovy. It held that, in order to be found unfit, as sentence must be disproportionate to the circumstances of the offence and fall outside the range of penalties for similar offences. The Court did not hold that the Discipline Committee must explicitly cite other decisions involving similar circumstances. There is no doubt that citing other cases would be preferable, but the failure to do so is not an error in principle. The Discipline Committee only committed an error in principle if Dr. Park can demonstrate that the penalty actually falls outside the range for penalties in similar circumstances.
[32] However, for the purpose of this appeal, Dr. Park did not put forward any cases that demonstrate that revocation in this case falls outside the range of penalties in similar circumstances. This is not surprising. The Discipline Committee’s decision was based on a finding that Dr. Park deliberately and repeatedly disregarded his undertakings to the College. On at least one occasion, this conduct harmed a patient. On its face, revocation is a fit sentence because it addresses the concern that Dr. Park cannot be counted on to abide by further conditions or limitations imposed on his ability to practice dentistry. In the absence of a clear line of cases showing that the Discipline Committee has not imposed revocation in similar cases, I do not find that the Discipline Committee made an error in principle by failing to refer to specific similar cases in its decision.
[33] Dr. Park also argues that the Discipline Committee made an error in principle by failing to review the test that applies to deciding whether a member of a profession is ungovernable. This argument is similar to the alleged error discussed above. Dr. Park does not argue that the Discipline Committee made an error in principle in finding that the circumstances of this case meet the test for a finding of ungovernability. Rather, he argues that the Committee erred by failing to explicitly address the test.
[34] In making this argument, Dr. Park states that, at the hearing before the Discipline Committee, his counsel and counsel for the College referred to the Law Society Tribunal’s decision in Law Society of Upper Canada v. Robin Douglas Scott, 2006 ONLSHP 48, at para. 17 and 18, which sets out the following test for ungovernability:
[17] The jurisprudence does not draw a bright line for the determination of ungovernability nor does the manifestation of the behavior automatically mean disbarment.
[18] Factors which inform the determination whether a member is ungovernable include the following:
(a) the nature, duration and repetitive character of the misconduct;
(b) any prior discipline history;
(c) any character evidence;
(d) the existence or lack of remorse. Remorse includes a recognition and understanding of the seriousness of the misconduct;
(e) the degree of willingness to be governed by the Society;
(f) medical or other evidence that explains (though does not excuse) the misconduct;
(g) the likelihood of future misconduct, having regard to any treatment being undertaken, or other remedial efforts;
(h) the member's ongoing co-operation with the Society in addressing the outstanding matters that are the subject of the misconduct.
[35] Again, Dr. Park points to no case that supports his argument that the Discipline Committee must explicitly refer to a test or case law before making a finding of ungovernability. However, it is evident from the Discipline Committee’s reasons that it did consider the relevant factors listed above, including the following:
a. The Committee considered that Dr. Park breached two undertakings over several years and that, in one case, this resulted in an injury to a patient;
b. The Committee considered that Dr. Park had already been found liable for professional misconduct involving matters relevant to his character and integrity;
c. The Committee did consider the evidence of Dr. Park’s charitable work, but found that it did not offset against the seriousness of the misconduct;
d. The Committee considered that Dr. Park expressed remorse but found that he did not appear to understand the seriousness of his misconduct given the excuses he offered;
e. The Committee made several findings that Dr. Park did not appear to be willing to be governed by the College, including the finding that he “chose to ignore” his undertakings; and
f. There was no medical evidence or other evidence to explain his misconduct, other than his excuses about not understanding the undertakings, explanations the College explicitly rejected.
[36] In my view, the Discipline Committee committed no errors in principle nor has Dr. Park demonstrated that the penalty is clearly unfit. In revoking Dr. Park’s licence, the Discipline Committee had regard to Dr. Park’s ongoing failure to comply with his undertakings and the potential risk this poses to public safety and confidence.
Issue 2 – Are the Discipline Committee’s reasons deficient?
[37] Dr. Park argues that the Disciplinary Committee’s reasons are so deficient that this amounts to an error of law. I see no merit to this argument.
[38] In R. v. R.E.M., 2008 SCC 5, at para. 15, the Supreme Court of Canada explained that courts should take a functional approach to assessing the sufficiency of reasons: “reasons must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review”. At para. 17, the Court held that the “foundation” of the decision “must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”.
[39] In Mitelman, at paras. 29-31, this Court addressed a similar argument regarding the sufficiency of reasons in the context of a penalty decision. In that case, at para. 30, the Court held that “[i]f the reasons state their conclusions in brief compass and these conclusions are supported by the evidence, the decision will not be overturned merely because it fails to discuss every aspect or issue relevant to the case”.
[40] I am satisfied that the Discipline Committee’s reasons are sufficient to explain why the Committee concluded that revocation was appropriate in he circumstances of this case. As reviewed above, the reasons set out the full text of the four Notices of Hearing and the agreed statement of fact. These documents provide the details of the allegations against Dr. Park, including his agreement that he has committed professional misconduct. The decision also sets out some evidence provided by Dr. Park about his explanations for not abiding by his undertakings. In the analysis section, the Discipline Committee explains the basis for finding that revocation is an appropriate remedy, including the finding that Dr. Park is ungovernable given his ongoing pattern of failing to abide by his undertakings. This is not a borderline case. The reasons are more than sufficient to explain why the Discipline Committee came to its conclusion.
[41] Dr. Park argues that the Committee failed to address his evidence and make any findings of fact. I do not accept this argument. This is a case in which there was an agreed statement of facts and therefore there were very few findings of fact to be made. Insofar as Dr. Park complains that the Discipline Committee did not consider his evidence regarding his explanation for failing to comply with the undertaking, the Discipline Committee did consider the evidence but it did not accept it. Dr. Park’s evidence was that he misunderstood his obligations. However, the Committee found that there was no evidence that he did not understand his obligations at the time he signed the undertakings and that he made no efforts to clarify his obligations. Similarly, the Discipline Committee considered Dr. Park’s mitigation evidence but found that it was not sufficient to mitigate against the seriousness of the misconduct.
[42] Dr. Park’s complaint is really that the Discipline Committee did not accept his evidence and submissions. This is not a problem with the sufficiency of reasons.
Issue 3 – Did the Discipline Committee take account of an irrelevant consideration?
[43] Dr. Park takes issue with the following highlighted statement at the end of the Discipline Committee’s decision:
For these reasons, the Panel concluded that the Member is ungovernable and that revocation is the only appropriate penalty in all of the circumstances. At this stage, the Panel is simply not confident that the Member can practice safely and in compliance with his obligations to the College. Should that change in future, the Member should have to satisfy a panel of the Discipline Committee that he can return to practice safely and that he can be governed. [Emphasis added.]
[44] Dr. Park argues that the Discipline Committee improperly placed the onus on him to prove that he can be governed by the College. He takes the position that this is an irrelevant consideration.
[45] This statement cannot be read in isolation. It comes at the end of the Discipline Committee’s comprehensive review of its reasons for finding that revocation was appropriate in this case. Read as a whole, the Discipline Committee’s decision makes clear that it did not decide to revoke Dr. Park’s certificate of registration because he should have to prove that he can be governed. Rather, the Discipline Committee revoked his certificate because of his persistent failure to abide by his undertakings. In this context, the reference to what Dr. Park will have to do to return to practice is simply a statement of fact. Given that his certificate of registration was revoked on the basis of his failure to comply with his undertaking and putting at least one patient at risk, he will only be able to return to practice if he can demonstrate that he no longer presents these risks.
Conclusion
[46] For the reasons above, the appeal is dismissed.
[47] As agreed between the parties, as the successful party, the College is entitled to costs of $20,000 plus its disbursements, for a total of $25,575.98. This amount is to be paid within 30 days, unless the parties agree otherwise.
Favreau J.
I agree _______________________________
Matheson J.
I agree _______________________________
O’Bonsawin J.
Released: December 13, 2021
CITATION: Park v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 8088
DIVISIONAL COURT FILE NO.: 286/21
DATE: 20211213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Favreau and O’Bonsawin JJ.
BETWEEN:
Dr. Stan Park
Appellant
– and –
Discipline Committee of the Royal College of Dental Surgeons of Ontario
Respondent
REASONS FOR decision
Favreau J.
Released: December 13, 2021