CITATION: Fisher v. Health Professions Appeal and Review Board, 2023 ONSC 6209
DIVISIONAL COURT FILE NO.: 654/22 DATE: 20231102
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Sutherland, Leiper and Centa JJ.
BETWEEN:
Mark Fisher Applicant
– and –
Health Professions Appeal and Review Board, Harneal Baweja, Ara Cho, and Kevin Baweja Respondents
Self-represented David P. Jacobs and Steven G Bosnick, for the Board Robert Barbiero, for Drs. Baweja, Cho, and Baweja
Heard at Toronto: October 17, 2023
REASONS FOR JUDGMENT
Robert Centa J.:
[1] Mark Fisher applies for judicial review of three decisions of the Health Professions Appeal and Review Board, each dated October 31, 2022. In each decision, the Board confirmed a decision of the Inquiries, Complaints and Reports Committee of the Royal College of Dental Surgeons to take no further action regarding Mr. Fisher’s three complaints to the College about Dr. Harneal Baweja, Dr. Ara Cho, and Dr. Kevin Baweja (in his capacity as the owner of Solar Dental).
[2] Mr. Fisher asks the court to set aside the Board’s decisions and return the matters to the Board for a new hearing because of violations of procedural fairness and because the decisions were unreasonable.
[3] For the reasons that follow, I would dismiss the application for judicial review. The Board accorded Mr. Fisher procedural fairness and the decisions of the Board were reasonable.
Mr. Fisher’s complaint to the College
[4] Mr. Fisher was a patient at Solar Dental from August 6, 2013, until July 26, 2018.
[5] Dr. Cho first met and provided dental services to Mr. Fisher on October 26, 2016. Dr. Cho treated Mr. Fisher again on November 9 and 13, 2017.
[6] On June 22, 2018, Dr. Harneal Baweja provided emergency dental treatment to Mr. Fisher. Dr. Cho then saw Mr. Fisher on July 26, 2018, and determined that Dr. Harneal Baweja’s treatment was clinically satisfactory. Mr. Fisher did not accept Dr. Cho’s opinion, and asked to speak to Dr. Kevin Baweja, the owner of the Solar Dental Clinic. During this meeting, Dr. Kevin Baweja discharged Mr. Fisher as a clinic patient because of his rude and abusive conduct.
[7] On April 9, 2019, Mr. Fisher filed complaints about Drs. Harneal Baweja, Cho, and Kevin Baweja with the College. In support of his complaints, Mr. Fisher provided the College with numerous and lengthy written submissions, including one document that was over 800 pages long. Mr. Fisher’s complaint about Dr. Kevin Baweja (who never treated Mr. Fisher) spanned over 180 pages of single-spaced text.
[8] A panel of the College’s Inquiries Complaints and Reports Committee met and considered each of Mr. Fisher’s three complaints. After investigating a complaint regarding the conduct or actions of a member, the Committee may:
- Refer a specified allegation of the member's professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint.
- Refer the member to a panel of the Committee for incapacity proceedings.
- Require the member to appear before the panel or another panel of the Committee to be cautioned.
- Take action it considers appropriate that is not inconsistent with the health profession Act, the Code, the regulations or by- laws.[^1]
[9] On July 8, 2021, the Committee directed that no further action be taken with respect to any of Mr. Fisher’s complaints.
[10] The Committee expressed its sympathy and concern for Mr. Fisher and his ongoing difficulties and pain. The Committee noted the limits of its jurisdiction, including that it could not file criminal charges against the members, as requested by Mr. Fisher. The Committee also recorded its conclusion that an interim order to prevent the members from practicing was not warranted.
[11] The Committee carefully considered the main issues raised by Mr. Fisher but noted that “there may be issues and questions posed by Mr. Fisher that were not specifically addressed in its reasons.” Ultimately, the Committee concluded that the three members appeared to meet the expected standard of the profession. The Committee concluded that the information before it did not support taking any regulatory action, and that there was no or minimal risk to patient care, safety, or the public interest. For these reasons, the Committee directed that the College take no further action.
The Board’s review of the Committee’s decisions
[12] On July 8, 2021, Mr. Fisher exercised his right to have the Board review the Committee’s decision. The Board has the statutory authority to review the Committee’s decisions under s. 29(2) of the Code and s. 2 of the Ministry of Health and Long-Term Care Appeal and Review Boards Act, 1998.[^2] The Board’s mandate is to consider the adequacy of the Committee’s investigation and the reasonableness of the Committee’s decision.
[13] To carry out its review, the Board received comments from Mr. Fisher and the dentists concerning the adequacy of the Committee’s investigation and the reasonableness of that decision.
[14] On July 22, 2022, the Board held its review by teleconference. At the review, Mr. Fisher made oral and written submissions related to the adequacy and reasonableness of the Committee’s decisions. The Board noted that many of Mr. Fisher’s submissions focused on matters that were not within the Board’s jurisdiction. For example, in its review of the Committee’s decision concerning Dr. Harneal Baweja, the Board noted:
[Mr. Fisher] made written and oral submissions related to the adequacy and reasonableness of the decision. Many of his submissions pertained to matters that fall outside the Committee's and the Board's jurisdiction. For example, [Mr. Fisher] submitted that the matter should have been investigated criminally and that he has been "libelled" by the Respondent and the Committee. [Mr. Fisher] also reiterated his original concerns. For example, he maintained the Respondent's dental records were falsified and that there was no support that his teeth were damaged/required treatment by the Respondent.
[15] On October 31, 2022, the Board released three decisions, each of which addressed one of the Committee’s three decisions. In each case the Board concluded that the investigation was adequate, and the decision was reasonable. Pursuant to s. 35(1) of the Code, the Board confirmed the Committee’s decisions to take no further action. For example, in the decision related to Dr. Harneal Baweja, the Board concluded as follows:
The Board finds that the Committee's decision makes it clear that it considered the Applicant's concerns, addressed his concerns, and provided coherent reasons for its conclusions with reference to supporting information in the Record. While the Board acknowledges that the Applicant disagrees with the Committee's decision, having considered the parties submissions, the information in the Record and the Committee's decision, the Board finds that the Committee's decision demonstrates a coherent and rational connection between the relevant facts, the outcome of the decision and the reasoning process that led it to that outcome, and that its decision as a whole is transparent, intelligible, and justified.
Mr. Fisher’s application for judicial review of the Board’s decisions
[16] On November 29, 2022, Mr. Fisher issued a notice of application for judicial review of the Board’s three decisions. Mr. Fisher filed an enormous amount of material in support of his application for judicial review. Mr. Fisher uploaded to CaseLines an application record that exceeded 25,000 pages, 183 pages of written argument, and 11 single-spaced pages titled “Oral Arguments.”
[17] Reading his notice of application generously, Mr. Fisher submits that he was denied procedural fairness and that the Board’s decisions were unreasonable.
There was no denial of procedural fairness
[18] The court’s task is to determine whether or not the Board and the College provided the appropriate level of procedural fairness to Mr. Fisher.[^3] The Committee and the Board are required to provide a much lower level of procedural fairness to a complainant than, for example, the College’s discipline committee has to provide to a member facing a complaint.[^4]
[19] In his notice of application for judicial review, Mr. Fisher submits that he was denied procedural fairness. However, neither the phrase “procedural fairness” nor “natural justice” appears anywhere in his 183 pages of written submissions. Mr. Fisher did not identify what, specifically, he believed was unfair about the procedures of the Board or the Committee.
[20] In his oral submissions, Mr. Fisher raised three issues that were arguably related to the procedural fairness of the Board’s review.
[21] First, Mr. Fisher stated that the Board did not clarify or summarize his submissions. In my view, this does not breach the requirements of procedural fairness. Under the relevant provisions of the Code, the Board was required to give Mr. Fisher the opportunity to comment on the adequacy of the Committee’s investigation and the reasonableness of its decision to take no further action.[^5] There is no requirement that the Board clarify or summarize Mr. Fisher’s submissions, particularly given their length. Moreover, it is not clear how such a summary would have assisted Mr. Fisher to present his case. There is no doubt that administrative tribunals must treat self-represented litigants fairly, but the Board did not violate the rules of procedural fairness in this case.
[22] Second, Mr. Fisher submitted that the Board would not permit its review process to be recorded. It is important to note that the Board’s review process is, by design, not a hearing within the meaning of the Statutory Powers Procedure Act.[^6] No witnesses can be called to testify, and the parties may not question in each other. In these circumstances, I do not think any statute or regulation, or the common law of procedural fairness required the Board to record or transcribe its review of the Committee’s decisions.
[23] Third, Mr. Fisher asserted that the Board’s Vice-Chair “cut [him] off several times” and claimed that [he] repeated things.” Mr. Fisher submitted that he was not repeating things, he was “pointing out the further implications of the same things in different contexts.” The Board, and in particular the Vice-Chair presiding over a review, has broad powers to control its own process. A review process is meant to be conducted in a fair but expedited way. Given the volume of written information filed by Mr. Fisher, there is nothing inappropriate about the Vice-Chair asking him to move to another area when she understood his submissions on an issue. Mr. Fisher has not demonstrated that the Vice-Chair exercised her discretion in a way that was inconsistent with the principles of procedural fairness.
[24] Section 33 of the Code sets out the process to be followed by the Board when it conducts a review. It provides as follows:
33 (1) In a review, the Board shall consider either or both of,
(a) the adequacy of the investigation conducted; or
(b) the reasonableness of the decision.
(2) In conducting a review, the Board,
(a) shall give the party requesting the review an opportunity to comment on the matters set out in clauses (1) (a) and (b) and the other party an opportunity to respond to those comments;
(b) may require the College to send a representative;
(c) may question the parties and the representative of the College;
(d) may permit the parties to make representations with respect to issues raised by any questions asked under clause (c); and
(e) shall not allow the parties or the representative of the College to question each other.
[25] There is nothing in the record to suggest the Board did not comply with these statutory requirements and I see no other procedural unfairness at the Board. Mr. Fisher was provided with the opportunity to file very long written submissions and to make oral submissions to the Board with respect to the adequacy of the investigation conducted and the reasonableness of the Committee’s decision. I see no evidence that the Board denied procedural fairness to Mr. Fisher.
[26] Similarly, I see no evidence that the Committee denied him procedural fairness. The Committee investigates complaints, it does not hold an adversarial hearing. In this case, the Committee provided Mr. Fisher with copies of the dentists’ responses to his complaints and permitted him to make further lengthy submissions. The Committee provided Mr. Fisher with copies of all the documents it obtained during its investigation, including the documents obtained from his subsequent treating dentist. I see no evidence that the Committee denied procedural fairness to Mr. Fisher.
The Board’s decisions were reasonable
[27] Mr. Fisher submits that the Board’s decisions should be overturned on their merits. He submits that the standard of review should be correctness because the issues raised touched on allegedly criminal conduct by the defendants. I disagree.
[28] The law of Ontario is clear: on an application for judicial review of a decision of the Board, the standard of review is reasonableness, not correctness.[^7] In doing so, I must also consider the Committee’s decision because the Board’s decisions rest on a finding that the Committee’s decisions were reasonable.[^8]
[29] The Supreme Court of Canada has explained how the court is to conduct a reasonableness review. The court is to start from a posture of judicial restraint. The court must focus on the decisions the Board actually made, including the justification offered for it and not on the conclusion that the court would itself have reached if it were the Board. The Board was required to give reasons for its decisions. The court is required to provide a sensitive and respectful, but robust evaluation of the Board’s reasons. The court is to take a “reasons first” approach that evaluates the Board’s justification for its decisions. The Board’s decisions will be reasonable if it is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and the law that constrain the decision maker.[^9]
[30] The Board was not required to address every issue or argument advanced by Mr. Fisher as long as its reasons meaningfully account for the central issues and concerns raised by the parties.[^10] This is particularly true in a case like this one, where Mr. Fisher filed hundreds of pages of material that raised almost innumerable issues, sub-issues, and concerns.
[31] Mr. Fisher’s submissions, even viewed generously, do not engage meaningfully with the Board’s reasons for confirming the decisions of the Committee. Mr. Fisher concluded his written submissions as follows:
After over five years pain, non-progress, etc, from the totally unnecessary "handy work" of monster Neal Baweja, without any hope of the situation thus changing, and, the relentless cover-up by the others, it's hardly about any amount of money. I have come to the conclusion that I will continue to lose in court because of the systemic, and evil, corruption. Not because of me, my teeth, and so on, in terms of my time and effort, and further expense, in preparing the cases. Because it's totally as obvious that the simple facts of what happened, and, etc, in terms of the criminality of every one involved. I hoped for more from at least society at large, but, the politicians, and police, are as corrupt. I have no doubt that the judges in this review will unanimously patronize my efforts, give me very limited time to speak, render the verdict the next day after barely studying the file, let alone in full, and, then, pat themselves, and their government cronies, on the back for yet another hideous job well done. But, again, all of the dental evidence, is still in my mouth, so, it's time to have society pay for an expert forensic investigation of it, by removing it one bit at a time. If no one checks for crimes, especially when specifically and vociferously pointed out all along, then that is exactly what must be concluded, anyway. Not to check, in any way, especially when already know the answer within a reasonable doubt, is the greatest crime of all by society at large, by the courts, the Premier, and, on down.
[32] The overwhelming majority of Mr. Fisher’s written submissions recount the facts of his treatment, from his perspective, and in significant detail. The same was true of his oral submissions, which lasted 75 minutes. In his written submissions, Mr. Fisher posed over 400 questions, most of which were rhetorical. Mr. Fisher does not, however, demonstrate that any areas of the Board’s decisions were not internally coherent, did not demonstrate a rational chain of analysis, or were not justified in relation to the facts and the law that constrained the Board.
[33] I examined the decisions of the Board and the Committee myself to see if they are reasonable. I have no doubt that the decisions are reasonable.
[34] The Committee addressed Mr. Fisher’s allegations related to the treatment provided by Dr. Harneal Baweja and Dr. Cho and the clinic operated by Dr. Baweja. The Committee listed the central issues and concerns that Mr. Fisher raised against each of the members. The Committee summarized each member’s response to the complaints. The Committee also described Mr. Fisher’s reply submissions. The Committee carefully delineated the extent of its jurisdiction and addressed what it could address (the professional conduct of each member) and what it could not address (criminal charges, civil damages, requiring other dentists to provide Mr. Fisher with dental treatment, and the conduct of dental assistants).
[35] The Committee considered the evidence from Mr. Fisher and the members and examined the dental records maintained by the members and another dentist who treated Mr. Fisher before and after the dentists at Solar Dental. The Committee addressed each of Mr. Fisher’s central issues and concerns, with references to the evidence and the documents before it. The Committee concluded that each of the members appeared to meet the expected standards of the profession.
[36] In my view, the Committee’s conclusions were amply justified, rooted in the evidence, and reasonable in all of the circumstances.
[37] For its part, the Board also summarized the broad themes found in Mr. Fisher’s complaints and set out the limits of its statutory jurisdiction and powers. The Board explained why it found Mr. Fisher’s submissions of limited assistance, but explained that it considered all of his submissions, even though its reasons would focus on the themes he raised that were relevant to the adequacy of the Committee’s investigation and the reasonableness of its decision:
The Applicant made written and oral submissions related to the adequacy and reasonableness of the decision. Many of his submissions pertained to matters that fall outside the Committee's and the Board's jurisdiction. For example, the Applicant submitted that the matter should have been investigated criminally and that he has been "libelled" by the Respondent and the Committee. The Applicant also reiterated his original concerns. For example, he maintained the Respondent's dental records were falsified and that there was no support that his teeth were damaged/required treatment by the Respondent.
The Board has considered all of the Applicant's submissions and, for efficiency, will not repeat those submissions in detail in this decision but will focus on the broad themes of those submissions that are relevant to the Board's inquiry into the adequacy of the Committee's investigation and the reasonableness of its decision.
[38] First, the Board determined that the Committee’s investigation was adequate. The Board explained that the Committee obtained essential documents and met the Code’s investigative requirements. The Board explained that it was not necessary for the Committee to interview the dental assistant because the contemporaneous dental records confirmed the patient’s consent. The Board considered Mr. Fisher’s submission that the Committee should have retained an expert to consider his complaint but held that whether or not to do so was within the discretion of the Committee. Having reviewed the record, the Board concluded that there was no evidence to suggest that the Committee required an expert. In my view, the Committee’s reasons adequately explain its reasoning, which is internally coherent and rooted in the evidence. The Board’s conclusion was reasonable.
[39] Second, the Board considered the reasonableness of the Committee’s decisions to take no further action. The Board correctly described the nature of a reasonableness review and then explained its conclusion that the Committee’s decision was reasonable. The Board focused on the reasons given by the Committee and examined how the Committee explained its conclusions based on the evidence and contemporaneous medical records it collected during its investigation. The Board’s ultimate conclusions are unassailable.
[40] In my view, the Board carefully considered the Committee’s decisions and explained why it was reasonable. Mr. Fisher has failed to show that the Board’s decision dismissing his applications for review of the Committee’s decisions was unreasonable based on the record and submissions before the Board.
Conclusion
[41] The application for judicial review is dismissed. As neither the respondent dentists nor the Board sought their costs of the application, no costs are awarded.
___________________________ Robert Centa J.
I agree
Sutherland J.
I agree
Leiper J.
Date: November 2, 2023
[^1]: Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 26(1) (“Code”). [^2]: S.O. 1998, c. 18, Sched. H. [^3]: E v. Health Professions Appeal and Review Board, 2022 ONSC 2179, at para. 13. [^4]: Walker v. Health Professions Appeal and Review Board (2008), 2008 7755 (ON SCDC), 234 O.A.C. 127 (Div. Ct.), at para. 15; and Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 54, at para. 74; see generally, Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817. [^5]: Code, s. 33(2)(a). [^6]: R.S.O. 1990, c. S. 22; RHPA, s. 1(2); Code, s. 1(2). [^7]: Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742; Thibert v. Health Professions Appeal and Review Board, 2022 ONSC 7045, at para. 25; Williams v. Health Professions Appeal and Review Board, 2022 ONSC 2217; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, para. 23. [^8]: Williams, at para. 18; E v. Health Professions Appeal and Review Board, at paras. 24 to 26. [^9]: Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at para. 8; Vavilov, at paras. 12, 15, 24, 84, and 85. [^10]: Vavilov, at paras. 127-128; Williams, at para. 28.