CITATION: MacDonald v. College of Dental Hygienists of Ontario, 2022 ONSC 632

DIVISIONAL COURT FILE NO.: DC185/21

DATE: 2022/01/31

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Backhouse and Lederer JJ.

BETWEEN:

Sherry Lynn MacDonald

Appellant

– and –

College of Dental Hygienists of Ontario

Respondent

Jasmine M. Ghosn, for the Appellant

Bernard LeBlanc and Anastasia-Maria Hountalas, for the Respondent

HEARD at Toronto by videoconference: January 5, 2022

PUBLICATION BAN NOTIFICATION

This is notice that the Divisional Court has ordered that no person shall publish, broadcast or otherwise disclose the name of the Client in respect of this matter, or any information that would disclose the identity of the Client, including the name of his spouse under ss. 45(3) and 47 of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended.

H. Sachs J.

Overview

[1] On December 30, 2020 the Discipline Committee (the “Committee”) of the College of Dental Hygienists of Ontario (the “College”) found that the Appellant had engaged in a sexual relationship with someone who was a client at the time the relationship occurred. On April 15, 2021, the Committee accepted a joint submission from both parties with respect to penalty. As a result, among other things, the Appellant’s certificate of registration as a dental hygienist was revoked. This is an appeal from the Committee’s decision on the merits. There is no appeal from the penalty decision as both parties agree that, under the governing legislation, revocation is mandatory if a registrant is found to have engaged in a concurrent sexual relationship with a client.

[2] The Appellant’s submissions were cast primarily in terms of procedural unfairness. First, the Appellant argued that the manner in which the investigation of the complaint that led to revocation was conducted put her in a position where she was unable to adequately confront her accuser. In particular, the client she is alleged to have abused did not make the complaint and when he was interviewed by the College the investigator, did not take a statement under oath from him, did not ask him to set out his own version in writing and did not ask him to initial or confirm the accuracy of the oral statement he gave to the investigator As a result, the Appellant’s rights to fully cross-examine the client were compromised. Furthermore, when the Appellant’s counsel sought to question the adequacy of the investigation, she was not allowed to file the investigator’s report as an exhibit. The Appellant also asserts that she was not given a full opportunity to “tell her story” because of objections made by counsel to her testimony on the basis of the rule in Browne v. Dunn. When the College chose to recall the client to deal with its Browne v. Dunn concerns, the client did not attend. Thus, the Appellant was deprived of a second right to cross-examine the client. The Appellant also questioned the Committee’s findings of credibility and, in particular, asserted that the Committee subjected the evidence she called to a different level of scrutiny than the evidence called by the College. This created a basic unfairness and put her in the position of having to disprove the allegations as opposed to requiring the College to prove its case on clear and convincing evidence. Finally, the Appellant argued that the Committee took inadequate steps to ensure that its order excluding witnesses was complied with, something that was crucial given the Appellant’s position that it was the client’s wife who was pressuring the client to give the testimony he did.

[3] There is no merit to any of the Appellant’s arguments and the appeal is dismissed.

Non-publication Order

[4] The College requested and the panel granted an order prohibiting the publication of any information that would identify the client whom the Appellant is alleged to have had sexual relations with. The order was made after notice was given to the press of the request and on the consent of all parties. In the view of the panel, society’s interest in a fully open hearing was outweighed by the interest in protecting the identity of the client who was alleged to have experienced sexual abuse.

Factual Background

[5] The Appellant was a dental hygienist for over two decades. She worked at two clinics and treated the client, A.M., at one of those clinics. In addition to treating A.M. she was friends with A.M.’s wife, V.M., and the two families had travelled together. The Appellant is married and has five children.

[6] A.M. is also married with children. He was a client of the Appellant’s from 2017 to 2019. According to him, he and the Appellant became sexually intimate on August 8, 2018 and this continued two or three times a month until May 16, 2019. During the course of this time A.M. and the Appellant were in regular contact, through telephone, text and a number of other platforms. Their affair ended after the Appellant and V.M. returned from a trip together and V.M. became upset about the way A.M. kissed the Appellant when he came to pick V.M. up from the airport. V.M. confronted A.M. about their relationship; A.M. denied that it was sexual; V.M. asked to see his phone; A.M. retreated to the bathroom to delete messages from his phone and V.M. attempted to break down the door. V.M. told A.M. that she was going to drive to the Appellant’s home and confront her. A.M. became concerned about what the Appellant’s husband would do and called 911. V.M. returned to her home without confronting the Appellant and A.M. confessed the affair to her. V.M. then went to the Appellant’s house to confront her, where she spoke to both the Appellant and her husband.

[7] The Appellant did not deny that she had a close relationship with A.M. during the time periods in question or that he was her client at the time. However, she denied that the relationship was sexual.

[8] V.M. filed a complaint in writing with the College. The College appointed an investigator who conducted oral interviews with A.M. and V.M. The Appellant was provided with a summary of the investigator’s findings and given the opportunity to respond. The results of the investigation were reviewed by a College committee and the complaint was referred to a hearing.

The Committee’s Decision

[9] Since this was a case that turned on credibility, the Committee assessed the credibility of all the witnesses. It found that A.M. was a credible witness whose testimony was “calm and heartfelt”, consistent, straightforward and not defensive. He admitted when he could not remember details. There were also two encounters that he was able to describe in great detail – the first sexual encounter and an encounter on the Appellant’s birthday. These details included things that the Appellant did not contradict (such as where the condominium where the birthday encounter occurred was located) and that A.M would be unlikely to know unless he had been there (the Appellant chose the location). It found that the records that did exist of phone and text message contact was “compelling circumstantial evidence” that the relationship between the Appellant and A.M. went beyond that of a hygienist and a client. The Committee also found it “unlikely that [A.M.] would make up the information about an affair with the [Appellant] as there is no apparent motive or gains that could be made by him disclosing such personal details.”

[10] The Committee did not find that the other main witness, the Appellant, was a credible witness. First, it “considered the sheer number of texts, phone calls and the potential for more messages through iMessage and snapchats that were not in the phone records. Upon analysis of the frequency and duration of communication the panel determined the probability of the [Appellant] having a relationship that went beyond friendship was high.” Second, it found that the Appellant’s evidence about where she was on the day of her last encounter with A.M. (which A.M. testified occurred at a condominium) did not preclude her meeting A.M. in the way that he said she did. Third, it found it concerning that when the Appellant was confronted by V.M., she never denied the affair and, in fact, she called A.M. to tell him to advise his wife that the relationship was over. The Committee did not accept the Appellant’s explanation for this behaviour. Fourth, the Committee found that the Appellant’s deletion of all the messages between her and A.M. was behaviour that was consistent with her having an affair as opposed to just an innocent friendship. Finally, the Committee found the Appellant’s demeanour, including her defensiveness under cross-examination, to be troubling.

[11] The Committee also made findings of credibility with respect to the other witnesses who testified, all of whom gave evidence that was more peripheral to the real issues. The Committee accepted the evidence of V.M. and the College investigator and had concerns with the witnesses who were called on behalf of the Appellant – her best friend and her husband.

Issues and Standard of Review

[12] The Appellant framed her issues as procedural fairness issues. If indeed the Committee conducted an unfair hearing, the appeal should be allowed. The Appellant alleged that the hearing was unfair for the following reasons:

(1) The College conducted an inadequate investigation, which in turn compromised counsel for the Appellant’s ability to cross-examine the client, A.M. As part of this argument the Appellant took issue with the Committee’s failure to allow her to file the investigator’s report as a separate exhibit.

(2) Counsel for the College made objections based on Browne v. Dunn that inhibited the Appellant’s ability to tell her story. The Appellant was also unfairly prejudiced by the fact that A.M refused to return to testify in reply.

(3) The Committee used a higher degree of scrutiny when it assessed the Appellant’s evidence and that of the witnesses called on her behalf than it did when assessing the evidence of the witnesses called by the College, including A.M.

(4) The Committee failed to take appropriate measures to ensure that its order with respect to exclusion of witnesses was complied with.

(5) The Committee erred in failing to draw an adverse inference from the fact that the College did not enter the contents of the 911 call that A.M. made into evidence.

[13] In addition to asserting uneven scrutiny the Appellant alleged that the Committee erred in its assessments of credibility. On appeals courts give great deference to first instance tribunals’ assessments of credibility. Absent a palpable and overriding error these assessments must be given deference. Appellate courts have also noted that to get around the deference that they must give to credibility assessments counsel often attempt to recast these arguments as a procedural fairness argument based on uneven scrutiny. Resisting these attempts involves ensuring that the threshold for establishing uneven scrutiny is a high one: R. v. Chanmany, 2016 ONCA 576, 352 O.A.C. 121, at para. 26, leave to appeal refused, [2017] S.C.C.A. No. 88.

Analysis

Was the investigation inadequate and did it affect the fairness of the hearing?

[14] The Appellant’s argument about the adequacy of the investigation is centred on the fact that the investigator’s report was hearsay. Thus, it only provided her with the investigator’s record of her conversations with the relevant witnesses. The investigator never obtained a sworn or signed statement from the client making the complaint, A.M. This was particularly egregious because A.M. was not the one who made the complaint, his wife did. According to the Appellant, this inadequacy in the investigation record put her at an acute procedural disadvantage when it came to cross-examining A.M.

[15] The Appellant could provide no authority for the proposition that fairness required the College to provide her with a sworn or signed statement from A.M. As the Committee noted, it is not its practice to provide such statements. The Appellant was given a summary of what A.M. said to the investigator. If A.M. said something while testifying that differed from what he was alleged to have said to the investigator the Appellant was free to cross-examine A.M. with respect to his prior inconsistent statement. There would have been no problem proving the prior inconsistent statement since the College called the investigator as a witness. Thus, there is no merit to the submission that the College’s failure to provide the Appellant with a sworn or signed statement from A.M. caused her procedural unfairness.

[16] During argument Appellant’s counsel stated that she was taken by surprise by much of what A.M said during his testimony and that she did not have the opportunity to consult with her client to find out her version of events, so she could put that version to A.M. during her cross-examination of A.M. At no point during the hearing before the Committee did Appellant’s counsel request further time to prepare her cross-examination because she had not received full disclosure beforehand as to what A.M. was going to say. If a registrant perceives that the College’s actions in conducting its case is causing them procedural unfairness, it is incumbent on them to raise the matter before the discipline committee that is hearing the case, not to wait to appeal to do so. It is the committee that has the power to remedy the unfairness. Finally, in this case, apart from a broad assertion, there is no evidence that the manner in which the College conducted its investigation caused the Appellant to suffer procedural unfairness.

[17] The Appellant’s submissions before us and before the Committee highlighted the fact that it was not A.M. who made the complaint. First, misconduct complaints can and have been made by a third party. Second, there was clear evidence from A.M. that he and his wife prepared the complaint together.

[18] The Appellant also made an assertion that the investigator delegated her function to V.M., A.M.’s wife. This assertion was based on the fact that V.M. provided the investigator with A.M.’s phone and text message records. The Appellant was free to cross-examine V.M. as to how she prepared these records and free to cross-examine A.M. as to the accuracy of these records. She was also free to produce her own records with respect to these contacts if they differed in any significant way. Thus, there was no unfairness caused by the fact that V.M. prepared and provided the record.

[19] The allegation that the investigation was inadequate because it was based on hearsay evidence loses its force when it is clear that all of the people who provided relevant evidence to the investigator were called as witnesses. Thus, the College did not seek to base its case on hearsay evidence, thereby depriving the Appellant of the right to cross-examine the sources of that evidence.

[20] The fact that the investigator’s report was not filed as an exhibit also had no effect on the procedural fairness of the hearing. First, it is not clear that Appellant’s counsel ever asked the Committee to rule on the question of whether the report should be filed as an exhibit. Second, the investigator was called as a witness and thus, the Appellant was given a full opportunity to cross-examine her about how she conducted her investigation. There was no need to file the report as an exhibit. If there were parts of the report that somehow undermined the investigator’s evidence, they could have been put to her by the Appellant during cross-examination.

[21] For these reasons I find that there is no merit to the argument that the manner in which the College conducted its investigation undermined the fairness of the hearing.

Was the Appellant denied procedural fairness because of College counsel’s Browne v. Dunn objections?

[22] Prior to calling the Appellant and after A.M. had testified, Appellant’s counsel provided College counsel a summary of what the Appellant was going to say. College counsel objected, saying that a number of details in this summary had not been put to A.M. while he was being cross-examined and thus, he had not had an opportunity to deal with them. The matter was resolved by an agreement that College counsel would be given leave to recall A.M. in reply. When College counsel sought to recall A.M. in reply, he refused to appear. At one point during the hearing the Committee indicated that it could choose to give less weight to those aspects of the Appellant’s evidence that A.M. had not had a chance to answer. However, in its reasons the Committee said the following with respect to the Browne v. Dunn issue:

The College objected to the use of lines of questioning that may contravene to the case law of Brown & Dunn. (sic)The panel however did not feel the need to re-examine certain witnesses in order to reach its decision despite these potential concerns.

[23] In other words, the Committee was able to reach its decision without relying on those aspects of the Appellant’s evidence that may have raised Browne v. Dunn concerns. This finding is consistent with the Committee’s reasons as a whole. In the end, what was significant for the Committee was the amount and extent of the contact between A.M and the Appellant, the fact that the Appellant deleted the messages that could have proved her innocence and the fact that the Appellant admitted that when confronted by V.M. she did not deny that the relationship V.M. was upset about had occurred. The Appellant also admitted that she called A.M. to instruct him to tell his wife that the relationship was over.

[24] The Appellant argues that because of College counsel’s position on Browne v. Dunn she was not allowed to tell her story. This is clearly not true. The Committee allowed her to testify and gave the College the right to recall A.M.

[25] In the end when A.M. refused to reattend the College did not ask the Committee to compel him to do so. This was a choice it was entitled to make. However, it did ask the Committee to put less weight on certain aspects of the Appellant’s testimony and the Committee stated that it might do so. However, if this could have caused the Appellant prejudice, the Committee was clear that it did not. It was able to resolve the case without having to deal with the potential Browne v. Dunn concerns. Furthermore, if there were Browne v. Dunn concerns, this was the fault of the Appellant who failed to put certain aspects of the Appellant’s testimony to A.M.

[26] Finally, the Appellant asserts that she was prejudiced by A.M.’s failure to testify on reply. According to the Appellant, if he had reappeared, she would have had a second opportunity to cross-examine him. Procedural fairness does not demand that a registrant be given two opportunities to cross-examine the College’s key witness.

[27] In summary, there was no procedural unfairness caused by the College’s Browne v. Dunn objections.

The 911 Call Records

[28] A.M. testified that on the night his wife confronted him with her suspicions about his affair and he refused to show her his phone she threatened to go to the Appellant’s house and confront her. When V.M. left the house at around midnight A.M. called 911 as he was afraid of how the Appellant’s husband would react to the accusations. No record was filed with respect to this 911 call.

[29] The Appellant argued that the failure of the College to file any record regarding the 911 call caused her unfairness as this was the only prior statement of A.M.’s concerning the events of the night when his wife accused him of having an affair.. This argument cannot be sustained. First the College did not have a record of the 911 call in its possession. Second, if the Appellant thought that the 911 call was relevant, she could have sought to have the record produced.

Exclusion of Witnesses

[30] At the beginning of the hearing counsel for the College requested an order excluding witnesses. When he did so, counsel for the Appellant expressed concern about how the order could be enforced as against A.M and V.M., who were both participating by zoom from their home. In order to ensure that both parties abided by the witness exclusion order counsel for the Appellant requested that the Committee make an order that A.M. and V.M. testify from a location other than their home where they could be supervised by a security guard. The Committee made an order excluding witnesses and to ensure its enforcement ordered witnesses from time to time to swivel their laptops or monitors to see if anyone else was in the room they were testifying in.

[31] There were dental hygienist students who were given a private YouTube link to watch the hearing. Counsel for the Appellant raised the concern that either A.M. or V.M. could access the link while the other was testifying. Other than making an order that any witness who was testifying turn off their cellphone the Committee gave no further direction to control possible access to the link.

[32] The Appellant submits that the fairness of the hearing was compromised because of possible breaches of the witness exclusion order by either A.M. or V.M. According to the Appellant, A.M. testified the way he did because he was forced to do so by V.M.

[33] First, and most importantly, there is no evidence of any breach of the order excluding witnesses by either A.M. or V.M. There is no evidence that either A.M. or V.M. logged on to the private YouTube account used by the students to watch the hearing. When they were asked to randomly scan the room, they were testifying in they were alone with the door shut.

[34] Second, almost all orders excluding witnesses rely on trust for their efficacy. Courts cannot supervise the behaviour of witnesses outside of the courtroom and, thus, there is always the possibility that a witness who testified (or someone else) will contact a witness who was excluded to tell them what was said while they were excluded.

[35] Third, as the Committee found, the fact that V.M. may have pressured A.M. to testify against the Appellant did not mean that he was lying when he testified that he had an affair with the Appellant. The Committee found that A.M. had no motivation to lie about the affair and found that he “presented as a credible witness who, quite understandably, would have much preferred not to testify…The alleged pressure from [V.M.] to make a complaint against the [Appellant] has no bearing on whether the events actually occurred.” Thus, it is clear that the Committee did not accept the Appellant’s argument that if V.M. pressured A.M. to make the complaint this undermined his credibility with respect to the central issue it had to determine.

[36] Given the above, there is no merit to the argument that the Committee compromised the fairness of the hearing by not taking further steps to enforce its order excluding witnesses.

The Committee’s Credibility Assessments and Uneven Scrutiny

[37] The Appellant alleged that the Committee subjected her and her witnesses to a different level of scrutiny than it applied to the College’s witnesses. Examples cited to support this proposition included:

(a) The Committee found the Appellant’s husband and her best friend to be less credible because in its view the two witnesses took steps to “match” their testimony to that of the Appellant and each other. On the other hand, it was not concerned with taking the steps necessary to ensure that V.M and A.M. did not match their stories by making a forceful enough exclusion order.

(b) The Committee found that A.M. had no interest in the outcome of the case. In doing so it ignored the evidence that the police told V.M. that she would go to jail if she did not leave the Appellant and her husband alone when she attended at their house to confront the Appellant. This was a clear motive for A.M. to support his wife’s complaint.

(c) The Committee was very favourable in its assessment of A.M.’s demeanour, describing it as “calm and heartfelt”. This stood in stark contrast to its assessment of the Appellant’s demeanour, which it described as “defensive”. According to the Appellant, A.M. was not calm when he discovered that the proceedings were being streamed on YouTube. He insisted that steps be taken to protect his identity.

(d) The Committee made an adverse finding of credibility against the Appellant because she deleted the text messages between her and A.M. A.M. deleted the same text messages and yet the Committee did not criticize him for failing to produce the text messages.

[38] None of these examples or any of the Appellant’s other submissions rise to the high threshold necessary to make out a case of procedural unfairness based on uneven scrutiny. Specifically, the Committee did not find that V.M. and A.M. took steps to match their stories in the way that the Appellant’s witnesses did, nor did it find that they breached the order excluding witnesses. The fact that the police may have threatened V.M. with jail does not constitute a motive for A.M. to support V.M.’s complaint to the College about the Appellant’s concurrent sexual relationship with him. There is no evidence that the police’s actions would have been affected in any way by A.M. making a complaint to the College. While A.M. may have been concerned about protecting his privacy when he found out about the YouTube streaming, this was an understandable reaction and did not undermine the Committee’s description of his demeanour. A.M. deleted the text messages because he was trying to hide the fact of his affair from his wife – something that accords with ordinary expectations of human behaviour. The Appellant deleted the messages when those messages could have supported her version of events – that her relationship with A. M. was not a sexual one.

[39] The Appellant also alleged that the Committee unfairly dismissed or misconstrued her evidence and her explanations for her behaviour. In order to succeed on this ground the Appellant must establish a palpable and overriding error, which she failed to do. The Committee heard the Appellant’s evidence about why the first sexual encounter with A.M. did not occur (because she was at Costco) and found that there was still time for the Appellant to have been with A.M. in the way A.M. said she was. Given the fact that the Appellant’s confirmatory evidence put her at Costco near 5pm and A.M. described spending an hour with the Appellant at midday or early afternoon, this finding was available to the Committee. The Appellant testified that she did not deny the affair when she was confronted by V.M. because she was in “shock”. She also gave an explanation for why she deleted the texts – her husband asked her to; and an explanation for why she asked A.M. to call his wife and tell her the relationship was over (she thought this was what V.M. needed to hear). The Committee heard and considered her explanations and rejected them. This was part of the Committee’s function and there is no basis on which to set aside its conclusions on appeal. The same is true of the Committee’s assessment that V.M.’s testimony about the facts giving rise to her filing a complaint against the Appellant was not rendered incredible by the fact that she had once improperly complained about a previous employer who reported her for certifying instruments as having been sterilized when they were not. The Committee considered the Appellant’s argument on this point and rejected it. This was a decision it was entitled to make and there is no reason for this court to set it aside. Finally, the Appellant submitted that the Committee “misconstrued” her husband’s evidence when he said that the Appellant “immediately” denied the affair when V.M. confronted her. The Appellant is correct that her husband did not use the word “immediately”, but the Committee’s use of this word, taken in context, did not constitute either an overriding or a palpable error.

Conclusion

[40] For these reasons, the appeal is dismissed. As agreed, the Appellant is to pay the College its costs of the appeal, fixed in the amount of $6000.00, all inclusive.

Sachs J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Lederer J.

Released: January 31, 2022