Court File and Parties

CITATION: Kilislian v. Peterborough Public Health, 2022 ONSC 2385

DIVISIONAL COURT FILE NO.: 728/21

DATE: 20220422

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, BACKHOUSE & MATHESON JJ.

BETWEEN:

RITA KILISLIAN and KAWARTHA ENDODONTICS Appellants

– and –

PETERBOROUGH PUBLIC HEALTH and HEALTH SERVICES APPEAL AND REVIEW BOARD Respondents

Neil M. Abramson and Robert Barbiero, for the Appellants

Suzanne Hunt, for the Respondent Peterborough Public Health

No one appearing for the Health Services Appeal and Review Board

HEARD at Toronto (by videoconference): April 5, 2022

Reasons for Decision

Matheson J.:

[1] This is an appeal from a decision of the Health Services Appeal and Review Board (“HSARB”) dated July 29, 2021,[^1] affirming an order of Peterborough Public Health (“PPH”). PPH required that the appellants produce contact information for all former and active patients who had received care at the Kawartha Endodontics Clinic for a specific time period. The order was made as a result of an inspection that identified potential infection and control problems at the Clinic.

[2] The appellants allege that the HSARB erred by failing to exclude, disqualify, or remove the appellant Dr. Kilislian’s husband, Andrew Curnew, who was the appellants’ agent at the hearing. The appellants seek an order setting aside the HSARB decision and ask that the matter be remitted to a newly constituted panel of the HSARB for a fresh hearing.

[3] For the reasons set out below, this appeal is dismissed.

Brief Background

[4] Dr. Rita Kilislian is an endodontist practising at Kawartha Endodontics in Peterborough, Ontario. The PPH received a complaint about sterilization practices from a person who had been to Kawartha Endodontics (the “Clinic”).

[5] On July 12, 2019, a public health inspector from PPH and a public health nurse went to the Clinic, gave a summary of the complaint, and indicated that they would return on July 15. The inspector and another public health nurse returned on July 15 and conducted the inspection.

[6] The inspector identified a number of possible infection prevention and control (“IPAC”) concerns, and the clinic was ordered to close. The IPAC concerns included inadequate infection control practices posing the possibility of transmission of blood-borne viruses and bacteria, including Hepatitis B, Hepatitis C and HIV.

[7] Another inspection was conducted about ten days later. All items of concern had been corrected and the closure order was rescinded. The appellants had sought a HSARB hearing about the closure order, but the hearing did not proceed in the circumstances.

[8] The PPH Medical Officer of Health made an order dated August 27, 2019, requiring that Dr. Kilislian produce a list of former and active patients of the Clinic for a specific look-back period. The Medical Officer of Health stated that in her opinion there were reasonable and probable grounds that a health hazard had existed, and the order was required to eliminate the health hazard. The order set out the issues that had required correction, including the inability to verify the sterility of reprocessed medical equipment and devices, putting patients at risk of infection and retransmission.

[9] The appellants sought a hearing of the production order before the HSARB. In the notice of hearing, dated September 17, 2019, the appellants were informed of the right to be represented by counsel or an agent, the right to call and examine witnesses and to cross-examine the witnesses called by PPH, and the right to present arguments and make a final submission, among other procedural matters. As of the notice of hearing, the appellants were represented by a lawyer, Joseph Natale. Dr. Kilislian’s husband, Mr. Curnew, was also involved, speaking as agent on the appellants’ behalf.

[10] The HSARB Rules of Practice permitted representation by a person authorized to represent a party under the Law Society Act, R.S.O. 1990, c. L.8, s. 26.1, and By-Law 4, s. 30. This is sometimes called a “friends and family” exception to the requirement that only licenced legal professionals can provide legal services. A family member could represent a party provided that their profession or occupation did not include the provision of legal services and they did not receive any fee for their representation. A party could therefore have support from a family member even if not a lawyer or paralegal. There is no issue that Mr. Curnew fell within the criteria to represent the appellants before the HSARB.

[11] The appellants did not raise any concerns about Mr. Curnew acting as their agent in the HSARB proceedings, nor is there an affidavit on this application for judicial review expressing any concerns then or now.

[12] Because the appellants had refused to provide the patient information, PPH proceeded with public notification in order to notify people who may have been exposed to communicable disease. In September of 2019, PPH posted the initial report of the investigation on the board of health website and had a press conference. Roughly one thousand patients were tested in response to PPH’s media report as of the time of the hearing. There were a few positive results for Hepatitis C, although it was not known whether they were due to conditions at the Clinic.

[13] On or about October 21, 2019, the appellants’ counsel delivered a lengthy document regarding the requested HSARB hearing, setting out the appellants’ “Grounds for Hearing”. The grounds included allegations that the complaint giving rise to the inspection was not bona fide, that there were no IPAC lapses, that PPH had applied the wrong standard of infection prevention and that the PPH had acted unreasonably, frivolously, vexatiously and/or in bad faith causing economic loss, among other things. The appellants submitted that the production order was an abuse of power. The appellants’ grounds submitted that the PPH was attempting to destroy the appellants’ reputation in an “abusive, retributive, retaliatory, vindictive and punitive manner”.

[14] The PPH delivered its “Grounds of Response” dated November 4, 2019, denying the appellants’ grounds.

[15] The appellants then delivered a lengthy affidavit of Dr. Kilislian, dated November 27, 2019, which was later put forward as her evidence for the HSARB hearing. Again, appellants’ counsel was involved in this step.

[16] In her affidavit, Dr. Kilislian spoke about a number of subjects, including the events surrounding the 2019 inspection. Her affidavit included a lengthy account of an alleged conspiracy arising from what she described as “false allegations” made against her by another Medical Officer of Health in 2016. Dr. Kilislian attested that the 2019 events were a reiteration of the 2016 events, which she believed had been based on bad faith misinformation. She described the 2016 instance as a “malicious complaint made by two medical officers of health” saying that the Clinic was “continually subject to harassment” from their “slander” and that she had been subject to a “witch hunt”.

[17] With respect to the 2019 inspection, Dr. Kilislian attested that the Medical Officer of Health had used “criminal extortion”, was in a conflict of interest, and made other allegations. She attested that the medical officers of health would stop at nothing to continue their “closure campaign” against her. She also said that she did not believe that the PPH IPAC standards were “scientifically acceptable, necessary or required” among other things. She made further serious allegations against the inspector.

[18] In her affidavit, Dr. Kilislian mentioned her husband, Mr. Curnew, who was present for the second inspection in 2019. She said that he was a “trusted consultant” to dentists and companies.

[19] After the events in July 2019, Mr. Curnew was vocal in social media, engaging in what the PPH described as a campaign of vexatious and harassing communications targeting members of PPH staff and PPH counsel.

[20] PPH brought a motion to dismiss the appellants’ request for an HSARB hearing or, alternatively, for other relief. The appellants were represented by Mr. Natale, as counsel, and Mr. Curnew, as agent. The HSARB decided the motion on October 14, 2020.

[21] On the motion, PPH submitted that the appellants had no prospect of success for numerous reasons, including that some of the relief sought was outside the jurisdiction of the HSARB. PPH noted that, contrary to the allegations of the appellants, there was no conspiracy between medical officers of health, giving rise to the inspection. PPH filed emails from Dr. Kilislian’s husband regarding the inspection in support of the PPH’s position that the appeal to HSARB was an abuse of process. On the motion, the HSARB panel agreed that many of Mr. Curnew’s emails were highly inappropriate.

[22] HSARB concluded that it was not obvious that the appeal could not succeed. The panel held that it remained to be decided whether the Medical Officer of Health had reasonable and probable grounds that a health hazard existed and whether the production order was necessary to decrease the effect of or to eliminate the health hazard.

[23] The hearing proceeded in June 2021. Mr. Natale and Dr. Kilislian’s husband continued to be involved. The day before the hearing, her husband emailed, copying Mr. Natale and others, about the proposed evidence for the hearing.

[24] The hearing proceeded before the same three Board members who had heard the PPH motion to dismiss. Mr. Curnew attended as agent for the appellants. Dr. Kilislian did not attend, nor did Mr. Natale. Dr. Kilislian’s affidavit was filed as her evidence.

[25] The evidence does not show any concerns being raised by the appellants about their choice to have Dr. Kilislian’s husband speaking for them at the hearing, then or now. There was no objection made at the time. There is no affidavit on this application for judicial review from Dr. Kilislian, indicating that she was under any sort of pressure or misunderstanding in regard to her representation at the hearing.

[26] In addition to receiving Dr. Kilislian’s evidence, the panel heard from the inspector, the Medical Officer of Health, and two experts (one put forward by PPH and one put forward by the appellants). Mr. Curnew questioned witnesses and advanced points made in the appellants’ prior submissions. On the events of July 15, 2019, the panel noted that Dr. Kilislian was not there and the staff who were present did not testify. On the expert evidence, the PPH expert testified that there was a risk arising from some of the lapses identified on the inspection. The appellants’ expert testified that there was no scientific evidence that bloodborne diseases were transmitted through the practice of dentistry. The panel concluded that the opinion of the expert called by PPH was the prevailing opinion in Ontario, and that, while low, there is a risk of bloodborne diseases being transmitted through the practice of dentistry.

[27] The panel considered the allegations of misconduct made by the appellants, set out in the written submissions, many of which were pursued at the hearing, including the alleged conspiracy and allegations against the inspector. The panel found that the evidence did not support the allegations.

[28] The HSARB therefore confirmed the Order. This appeal was then commenced.

Issues

[29] The sole ground of appeal is whether the HSARB panel erred in not excluding Mr. Curnew. The appellants submit that the HSARB “made a fatal error” by failing to “exclude, disqualify, or remove” Mr. Curnew, “who was incompetent and did not understand or comply with his duties to both the [a]ppellants and the panel.” The appellants submit that they were prejudiced by this error, although no evidence showing prejudice has been put forward on this application.

[30] There is no issue that the panel had the jurisdiction to exclude Mr. Curnew. The issue is whether they ought to have done so, on their own initiative, either at the outset of the hearing or during the hearing.

[31] The appellants submit that the panel should have made inquiries of Dr. Kilislian and excluded Mr. Curnew at the outset of the hearing due to his social media and emails that had been put forward on the prior motion. The appellants submit that Mr. Curnew should have been excluded during the hearing due to the following failures:

(1) failing to address the relevant legal and factual issues (specifically, whether the Medical Officer of Health had reasonable and probable grounds to require the Order);

(2) failing to call relevant witnesses;

(3) failing to properly cross-examine PPH’s witnesses; and,

(4) not giving a proper closing submission.

[32] As a statutory appeal, the standard of review is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Errors of law are reviewed on a correctness standard. For errors of fact, there must be a palpable and overriding error. Errors of mixed fact and law also require a palpable and overriding error unless there is an extricable error of law or principle, which is reviewed on a correctness standard. However, the appellants submit that the issue they raise is one of procedural fairness. For issues of procedural fairness, there is no standard of review. The question is whether the requisite procedural fairness was provided at the hearing.

Analysis

[33] There is no issue that the panel had the jurisdiction to exclude Mr. Curnew under s. 23(3) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which provides as follows:

A tribunal may exclude from a hearing anyone, other than a person licensed under the Law Society Act, appearing on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness, or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.

[34] The appellants suggest that this section should be read as a mandatory obligation, but it is, on its face, discretionary. The appellants must show a breach of procedural fairness in the particular circumstances of this case.

[35] The appellants submit that despite the lack of an objection, the panel ought to have questioned Dr. Kilislian about her decision to have her husband represent her at the hearing. The appellants rely on a series of criminal cases that began when paralegals sought to represent parties before the courts. The appellants rely on R. v. Romanowicz (1999), 45 OR (3d) 506 (C.A.), R. v. Allahyar, 2017 ONCA 345, 138 O.R. (3d) 233 and R. v. Van Ravenswaay, 2021 ONCA 393, 407 C.C.C. (3d) 193.

[36] R. v. Romanowicz arose prior to the licensing of paralegals in Ontario. The court noted that several provincial statutes provided for representation by agents and recognized the tribunal's power to exclude agents, giving, for an example, s. 50 of the Provincial Offences Act, R.S.O 1990, c. P.33.

[37] In R. v. Romanowicz, the court held as follows, at paras. 41 and 42:

We think that a trial judge faced with an accused who has chosen to be represented by an agent should ensure that the choice is an informed one. The trial judge should be satisfied that the accused is aware that the agent is not a lawyer and that the accused will not have recourse to various remedies which might be available to him if the agent were a lawyer and performed inadequately.

Where it appears that the accused is represented by a paid agent, the trial judge would do well to inform the accused that the laws of Ontario do not require that persons receive any training or demonstrate any level of expertise before being allowed to take money in return for representing persons in criminal matters. It is also advisable that the trial judge advise the accused that while the law expects certain minimum standards of competence from lawyers it imposes no such standards on those who are not lawyers.

[38] The appellants note that in R. v. Romanowicz the court also referred to the SPPA section in relation to Codina v. Law Society of Upper Canada (1996), 93 O.A.C. 214 (Div. Ct.), where the appellant, Ms. Codina, wished to be represented before a discipline committee of the Law Society by Harry Kopyto, a recently disbarred lawyer. In that case, counsel to the Law Society objected to Mr. Kopyto filling that role. The appellants also rely on R. v. Allahyar, which provides at para. 17 that R. v. Romanowicz applies when a person seeks to be represented by a friend or family member, and on R. v. Van Ravenswaay, also a criminal matter.

[39] However, even in the criminal context, there is no obligation to inquire into the competence of the representative. As set out in R. v. Romanowicz, at paras. 45 and 48:

…Judges cannot become regulators and restrict the appearance of agents on a case-by-case basis based on their personal assessment of the competence of each agent. …

In our opinion, it would be inconsistent with the right of accused persons to choose their mode of representation if courts were obligated to scrutinize those choices and veto them if it were concluded that the chosen representative was not up to the task. The emphasis must be on the accused’s right to choose and not on the merits of that choice. [Emphasis added.]

[40] In this case, there is no issue that Dr. Kilislian knew that her husband was not a lawyer. Further, she had legal counsel, who had been representing her along with her husband including on the motion and leading up to the hearing. There is no evidence before us that for some reason Dr. Kilislian wanted a lawyer present or was ill-advised at the time about her choice to have her husband represent her at the hearing. In the particular circumstances of this case, the panel did not err in not questioning Dr. Kilislian to see if she was fully informed about her husband at the outset of the hearing. As transpired in R. v. Romanowicz, noted at para. 44, the real complaint is that with the benefit of hindsight the appellants now submit that they made a bad choice.

[41] I next address the appellants’ position that Mr. Curnew should have been excluded because of his social media campaign and emails leading up to the hearing. The appellants submit that the panel should have excluded Mr. Curnew from the outset because he had already engaged in discreditable conduct and had attempted to harass and intimidate both PPH counsel and PPH witnesses. The panel was aware of Mr. Curnew’s conduct from the motion, which they had heard, and had found his actions inappropriate. PPH counsel was also aware of Mr. Curnew’s actions, having appeared as counsel on the motion and having received some of the communications from Mr. Curnew directly. Dr. Kilislian was also aware of her husband’s social media activities, which are referred to in her affidavit, if not also from the motion and other sources.

[42] PPH counsel did not object to Mr. Curnew acting as agent despite his past conduct. Whatever intimidation was attempted, it did not cause PPH counsel to object out of a concern that it might have an impact on her ability to represent her client or her witnesses’ ability to testify. The appellants have not established a basis upon which the panel should have second-guessed PPH counsel on these matters.

[43] The appellants further submit that over the course of the hearing Mr. Curnew was apparently incompetent and should have been excluded on that basis. The appellants submit that Mr. Curnew failed to focus on the key issue, asked about the legal test to be applied at the outset of the hearing, failed to call the witnesses who were directly involved in the inspection, pursued extraneous matters in his cross-examinations such as the allegations against the inspector and the conspiracy claims, and acted in an unprofessional manner by saying he was “very confident” in succeeding. They further submit that Mr. Curnew made a “stream of consciousness” closing, referring to extraneous matters, cited irrelevant legal principles and case law, and in seeking costs of over $400,000 for a two-day hearing.

[44] As discussed above, even in the criminal context, the judge is not obliged to do a fact-specific inquiry about an agent’s competence. Further, the appellants accept that Mr. Curnew was proceeding under the “friends and family” exception to legal representation and obviously was not a trained legal professional.

[45] Even in the criminal context, an accused who chooses to be represented by an agent who is not a lawyer “cannot be heard to contend that the agent’s performance should be tested against the standard reserved to counsel trained in the law”: R. v. Romanowicz, at para. 29; Savic v. The College of Physicians and Surgeons, 2022 ONSC 303 (Div. Ct.), at para. 66.

[46] The selected portions of the hearing that the appellants focus on do not bear out the submission that the panel ought to have excluded Mr. Curnew on their own initiative. Mr Curnew asked questions that were not surprising coming from a non-legally trained family member. He actively pursued allegations made by Dr. Kilislian in her sworn affidavit, including serious allegations about alleged bad faith and conspiracy. He pursued the appellants’ written submissions that the PPH had acted in bad faith causing economic loss and was attempting to destroy the appellants’ reputation in an “abusive, retributive, retaliatory, vindictive and punitive manner”. Evidence has not been put forward to suggest that the appellants no longer wished to pursue those allegations at the time of the hearing.

[47] Mr. Curnew did know of the main issue. In one excerpt relied on by the appellants, the panel was assisting Mr. Curlew by saying that his cross-examination about the police was not assisting his case. Yet he himself noted that the issue was whether the Medical Officer of Health had reasonable and probable grounds to make the Order.

[48] The main failings raised by the appellants regarding the conduct of the hearing are essentially criticisms about the quality of Mr. Curnew’s representation as if he did have legal training. The criticisms of the choice of witnesses (which predated the hearing and involved the lawyer at least to some extent), the cross-examinations, and the closing should not be measured against a lawyer’s standard. Looking at the hearing from the standpoint of having a family member involved as an agent, and considering all the circumstances of this case, the appellants have not shown that the panel erred in failing to exercise their discretion to oust Mr. Curnew.

[49] PPH submits that this case should be analyzed under the criminal law regarding ineffective assistance of counsel. The PPH then submits that prejudice must be, and has not been, shown.

[50] Whether or not those principles could apply to this sort of administrative proceeding, this is not a case of ineffective assistance of counsel. The appellants chose to proceed with an agent without legal training. The By-law contemplates a role for friends and family that should not bring with it obligations of the sort imposed on counsel: Savic, at para. 65. Even if the law regarding ineffective assistance does apply, the appellants have not shown that there was any prejudice arising from the failure to exclude Mr. Curnew. The appellants do not attest that some other course of action would have been followed, with a different result.

[51] The appellants have therefore not shown that the failure to exclude Mr. Curnew resulted in a breach of procedural fairness.

Orders

[52] This appeal is dismissed, with costs to PPH in the agreed-on amount of $16,950, all inclusive.

Justice W. Matheson

I agree _______________________________

Justice H. Sachs

I agree _______________________________

Justice N. Backhouse

Released: April 22, 2022

CITATION: Kilislian v. Peterborough Public Health, 2022 ONSC 2385

DIVISIONAL COURT FILE NO.: 728/21

DATE: 20220422

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

SACHS, BACKHOUSE & MATHESON JJ.

BETWEEN:

RITA KILISLIAN and KAWARTHA ENDODONTICS Appellants

– and –

PETERBOROUGH PUBLIC HEALTH and HEALTH SERVICES APPEAL AND REVIEW BOARD Respondents

REASONS FOR DECISION

Released: April 22, 2022

[^1]: 2021 66441