CITATION: Haydarian v. Royal College of Dental Surgeons of Ontario, 2023 ONSC 6830
DIVISIONAL COURT FILE NO: 119/23
DATE: 20231205
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Doyle and Nishikawa JJ.
B E T W E E N:
AMIR ABBAS HAYDARIAN
Appellant
Arman Chak, for the Appellant
- and -
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
Respondent
Linda R. Rothstein and Glynnis Hawe, for the Respondent
Heard at Toronto: November 20, 2023 (by video conference)
Publication Ban
Pursuant to s. 47(1) of the Health Professions Procedural Code, Schedule 2 of the Regulated Professions Act, 1991, S.O. 1991, c. 18, there is an order directing that no person shall publish the identity of the patients, E.O. and D.F., or any information that could disclose the identity of those witnesses.
REASONS FOR DECISION
The Court:
Overview
[1] Dr. Amir Abbas Haydarian appeals from a decision of the Discipline Committee of the Royal College of Dental Surgeons of Ontario (“the Panel”) dated January 20, 2023 (the “Decision”), the related penalty and costs decision dated May 9, 2023 and the supplementary reasons for the penalty and costs decision dated June 6, 2023.
[2] The Panel found that the appellant had engaged in sexual abuse of a patient, E.O., contrary to s. 51(1)(b.1) of the Health Professions Procedural Code being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the "Code").
[3] The Panel rejected the appellant’s argument that he was sheltered by the exemption under s. 1(5) of the Code as he was married to E.O. when he had sexual relations with her.
[4] The Panel found that the appellant was still married to A.H. and that he was not divorced on October 19, 2018 when he requested a proxy in Iran to conduct a religious ceremony that would grant him a divorce. The Panel found that he was not married to E.O. despite his statement that he attended an un-officiated and non-religious ceremony with her. The Panel did not accept his argument that his marriage to E.O. was legal because it was “voidable or void” and he entered into it in good faith.
[5] The Panel accepted the evidence of E.O. that she had a sexual relationship with the appellant as of September 6, 2018 and that they were never married.
[6] Given the sexual abuse finding, mandatory revocation of the appellant’s certificate of registration was required under s. 51(5) of the Code.
[7] In addition, the Panel found that that the appellant’s decision to become a co-mortgagee with another patient would be regarded by other members of this profession as disgraceful, dishonourable, unethical and unprofessional.
[8] The appellant was ordered to reimburse the College for the cost of E.O.'s therapy and counselling in the amount of $17,370, pursuant to ss. 51(2)(5.1) and (5.2) of the Code.
[9] The appellant was ordered to pay costs in the amount of $218,154.72.
[10] For the reasons set out below, the appeal is dismissed.
Background
[11] E.O. became the appellant’s patient on or about June 2018 and remained his patient into the spring of 2020. There was no dispute that at least as of October 19, 2018 and up until the spring of 2020, the appellant engaged in a sexual relationship with his patient, E.O. The main issue before the Panel was whether E.O. was the appellant’s “spouse” within the statutory meaning when they began a sexual relationship.
[12] The appellant’s evidence at the hearing was that he commenced sexual relations with E.O. on October 19, 2018. He stated that on the same day he had divorced his wife, A.H., in an Islamic divorce proceeding that took place in Iran with his brother’s help.
[13] The appellant testified that he obtained a Talaq divorce with a notary public in Iran as the appellant’s proxy. The appellant was not present for these divorce proceedings. He did not provide a copy of related emails. He did provide a copy of a “Divorce Certificate”, though it was not accompanied by an affidavit or statutory declaration to confirm its authenticity.
[14] The appellant testified that on the same day, he and E.O. were married in a private Islamic ceremony in Toronto at which only he and E.O. were present.
[15] E.O. testified that she considered herself to be engaged to the appellant beginning on September 6, 2018, and that they had sexual intercourse on that date. E.O. denied participating in any marriage ceremony with the appellant. Their child was born on July 9, 2019.
[16] The Panel found it more likely than not that the sexual relationship began on September 6, 2018, as E.O.’s evidence was credible, and was supported by corroborating photographs of a close and intimate relationship between E.O. and the appellant.
[17] While E.O. had called the appellant her “husband” from time to time, the Panel accepted her explanation that the appellant had wanted her to refer to him in that manner and that she understood that she and the appellant were not married, either legally or religiously.
[18] The Panel found that there was no dispute that the appellant was still married to A.H. when he commenced sexual relations with E.O. on September 6, 2018. The Panel went on to consider the issue of the alleged marriage to E.O. on October 19, 2018, given the appellant’s position that the sexual relationship did not commence until October 19, 2018.
[19] The Panel found on a balance of probabilities, based upon the evidence, that as of October 19, 2018, the appellant was still married to his wife, A.H. The Panel noted that even if it had accepted the appellant’s evidence regarding the divorce proceedings, the Panel was not satisfied that the proceeding would be recognized under Canadian law. Neither spouse was habitually resident in Iran for one year preceding the commencement of the divorce proceedings, there is no “real and substantial connection to the place of the divorce”, and there was no notice to A.H. of the alleged foreign divorce proceedings.
[20] The Panel did not accept, based on the evidence, that the appellant was or could have believed himself legally married to E.O. as of October 19, 2018. The Panel found that a party cannot enter into a legally binding marriage with another person while being legally married to a third person, and the appellant knew he was legally married to A.H. at the time of the alleged religious marriage with E.O.
[21] The second allegation dealt with the appellant co-signing a mortgage with a second patient, D.F. The appellant admitted that D.F. was his patient at the material time; the Panel found that the appellant co-signed the mortgage; and appellant stated that he would not do it again.
[22] Having found sexual abuse, the Panel was bound by s. 51(5) of the Code to impose a penalty revoking the appellant’s certificate of registration. The Panel also ordered the appellant to reimburse the College for the cost of E.O.’s therapy and counselling and to pay two-thirds of the legal costs incurred by the College.
Issues
[23] The issues for determination are:
Did the Panel err when it found that E.O. was not a spouse when the appellant had sexual intercourse with her?
Did the Panel err on the issue of the co-signing of the mortgage?
Did the Panel err in making its remedy/costs decision?
Standard of review
[24] In accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, the standard of review is correctness on questions of law, palpable and overriding error on findings of fact, and palpable and overriding error on questions of mixed fact and law (absent an extricable question of law).
[25] With respect to appeals from a sanction imposed by a regulated professions tribunal, the court will interfere with a tribunal’s penalty decision only if the penalty reflects an error in law, an error in principle, or if the penalty is “clearly unfit”: Cabot v. College of Nurses of Ontario, 2023 ONSC 2977 (Div. Ct.), at para. 23, citing Budarick v. the Corporation of the Townships of Brudenell, Lyndoch and Raglan (Integrity Commissioner), 2022 ONSC 640 (Div. Ct.), at para. 40. A penalty will be clearly unfit where the decision does not fall within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 38, citing Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
Discussion
Issue #1: Did the Panel err when it found that E.O. was not a spouse when the appellant had sexual intercourse with her?
[26] The appellant focuses on the definition of “spouse” in connection with admitted sexual relations on October 19, 2018. The overlooks the impact of the findings regarding September 6, 2018.
[27] No error has been shown in the Panel finding that the intimate relationship commenced between the appellant and E.O. in September 2018, before even the appellant submits they were married.
[28] There was extensive evidence that the appellant and E.O. had an intimate relationship commencing in September 2018. Moreover, the Panel accepted the evidence of E.O. in that regard and was entitled to make the credibility findings on the record before it.
[29] The evidence indicates the appellant obtained E.O.’s phone number from her patient form and called her to ask if he could come to visit her. He obtained her address through the patient form as well.
[30] E.O.’s evidence that they had sexual relations in September was accepted as was her evidence that they did not marry. She was consistent in saying that she wanted to be married in a Christian ceremony and would not and did not consider herself married until they were able to perform such a ceremony.
[31] E.O.’s photographs filed in evidence also provided corroboration that she and the appellant were engaged in a close and intimate relationship prior to October 19, 2018.
[32] The appellant did not show any palpable and overriding error regarding the finding that the appellant and E.O. were not spouses at the time they first had sexual intercourse in September 2018. This, alone, supports the finding of sexual abuse and resulting penalty.
[33] There is a spousal exception, which the appellant relies on for the events that commenced on October 19, 2018. Briefly, sexual intercourse or other forms of physical sexual relations between a member and a patient who is the member’s spouse is not, in itself, professional misconduct. Relevant to the case at hand, s. 1(6) of the Code defines “spouse” as the member’s spouse as defined in the Family Law Act. Section 1(1) of the Family Law Act defines “spouse” as follows:
“spouse” means either of two persons who,
a) are married to each other, or
b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
Most of this appeal was focused on alleged errors by the Panel in the interpretation of the above exception, as it was applied to the events of October 19, 2018. However, given the above findings about September 2018, there is no need to address those issues.
Issue #2: Did the Panel err decision on the issue of the co-signing of the mortgage ?
[34] The appellant argues that the Panel erred when it found that he had admitted to committing professional misconduct. Rather, he stated that he felt the need to assist a fellow Iranian but he would not do it again in the future.
[35] The Panel summarized the appellant’s evidence in its reasons for decision. The Panel acknowledged the appellant’s explanation that he wanted to help his patient, a newcomer, find her footing. The Panel indicated that the appellant now understood that these events constituted a boundary-crossing and that he would not do it again and that he now understood that his conduct constitutes a breach of the related practice advisory.
[36] The transcript of the appellant’s evidence shows that he apologized if what he did was crossing a boundary and said he would never do it again. Although the Panel may have misstated his testimony on this fact, nevertheless, the Panel’s finding that he co-signed a mortgage with a patient, and that this constituted professional misconduct was based on the other evidence before it. No palpable and overriding error has been shown.
Issue #3: Did the Panel err in making its costs and penalty award?
[37] As discussed above, because the sexual abuse finding stands, the penalty is mandatory.
[38] The appellant did not identify any specific errors in the costs awards instead generally submitting that they were punitive in nature.
[39] The Panel did not err when it ordered the appellant to pay for E.O.’s therapy and counselling in the amount of $17,370.
[40] The Panel did not err in its costs award, which is consistent with other similar cases, reflects the length of the proceeding, involvement of an expert witness and a constitutional challenge which was eventually abandoned.
[41] Section 53.1 of the Code provides that costs can include the costs of the investigation and hearing. The award of costs is discretionary and the standard of review is reasonableness: see Venneri v. College of Chiropractors of Ontario, 2010 ONSC 473 (Div. Ct.), at para. 6. There was no error of principle and the costs award is not plainly wrong.
[42] The Panel considered the relevant factors, the conduct of the appellant at the hearing, and the length of the hearing resulting in costs in the amount of $218,154.72.
[43] Accordingly, the appeal is dismissed with costs to the respondent in the agreed amount of $5,000 all inclusive.
Matheson J.
Doyle J.
Nishikawa J.
Date: December 5, 2023
CITATION: Haydarian v. Royal College of Dental Surgeons of Ontario, 2023 ONSC 6830
DIVISIONAL COURT FILE NO: 119/23
DATE: 20231205
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Matheson, Doyle and Nishikawa JJ.
BETWEEN:
AMIR ABBAS HAYDARIAN
Appellant
– and –
ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
Released: December 5, 2023