CITATION: Chaban v. Royal College of Dental Surgeons of Ontario, 2024 ONSC 1075

DIVISIONAL COURT FILE NO.: 410/23

DATE: 20240221

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Stewart, Kurz and O’Brien JJ.

BETWEEN:

Peter Noel Chaban

Applicant

– and –

Royal College of Dental Surgeons of Ontario

Respondent

Counsel:

Neil M. Abramson and Anne Lewis, for the Applicant

Ahmad Mozaffari for the Respondent

HEARD at Toronto: January 31, 2024

Kurz J.

[1] The Applicant, Dr. Peter Chaban (“Dr. Chaban”), applies for judicial review and seeks an order to quash the decision of the of the Inquiries, Complaints and Reports Committee (the “Committee”) of the Royal College of Dental Surgeons of Ontario (the “College”), dated June 7, 2023 (the “Decision”). The Committee ordered Dr. Chaban to complete a specified continuing education or remediation program and to be verbally cautioned by a panel of the Committee.

[2] The parties agree that the standard of review of the issues raised in this application is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 10.

[3] For the reasons to follow, I find that the decision is reasonable and would therefore dismiss this application.

Background Facts

[4] At the time of the events in question, Dr. Chaban was a 27-year-old dentist who had been practicing since 2020. Dr. Chaban posted two short TikTok videos, one on December 3 and another on December 19, 2022 (jointly the “Videos”). A member of the public contacted the College with concerns about the December 19 video on the same day it was posted.

The Videos

[5] The December 3, 2022 video (the “First Video”) lasts seven seconds. It shows Dr. Chaban sitting in an office, with what appear to be diplomas framed behind him, dressed in scrubs and wearing a medical mask. He is facing the camera, with his right hand on his chin. The soundtrack is playing a song whose lyric is “I am not trying to seduce you.” While these words are spoken, he is cocking his eyebrows. Then after four seconds, Dr. Chaban pulls down his mask and, smiling, licks his upper teeth while the music lyric states, “Would you like me to seduce you?”

[6] The December 19, 2022 video (the “Second Video”) last six seconds. It shows Dr. Chaban sitting in what appears to be an apartment or condo, in ordinary dress (i.e. absent scrubs). He is not wearing a mask. He is looking directly at the camera. The caption above his head states “when you give your patient an oral exam and see a circle pattern at the back of their throat.” Five seconds into the video, he cocks his eyebrows and smiles.

[7] Both of the Videos appear to be posted by “@doctorchaban.” The TikTok profile, which is available with a click from each of the Videos, identifies the person posting the video as both “Dr. Peter” and “@doctorchaban”. The profile includes a photo of Dr. Chaban. It also identifies him as “27, Dentist (DDS)” and “Toronto ON”. It offers an Instagram address for Dr. Chaban.

Investigation by the College

[8] On December 19, 2022, an individual wrote to the College about the Second Video. In the email to the College, they offered a link to the Second Video and wrote:

Dr. Peter Chaban posting blow job content on Tic Toc is sexist and disgusting.

Unbelievable that someone who calls himself a doctor would post this.

[9] On February 3, 2023, the Committee approved the College Registrar’s appointment of an investigator to examine Dr. Chaban’s conduct and determine whether he had engaged in professional misconduct under subsection 75(1)(a) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18.

Dr. Chaban’s Responses

[10] On February 28, 2023, the College provided Dr. Chaban with notice of the investigation, the email and the two Videos. The College also provided two practice advisories, namely the College’s practice advisories on Prevention of Sexual Abuse and Boundary Violations (the “Prevention Advisory”) and on Professional Use of Social Media (the “Social Media Advisory”). In response, Dr. Chaban emailed the Registrar of the College. In that email, he asserted that his “content is harmless”. He sought the identity of the person who contacted the College in order to determine whether the email was “meant more as an attack on my reputation (defamation)”.

[11] On March 1, 2023, Dr. Chaban submitted a more complete written response to the College’s investigation. He wrote that the accusation in the email arose from a “misunderstanding” about TikTok. His TikTok account is “just for fun”. Further, he stated that he did not violate the Prevention Advisory because that advisory relates only to conduct against a patient. He denied that the Videos were directed to or referred to any of his patients, Further, he asserted that other dentists have made similar TikTok videos “and thus themselves do not feel that these types of videos don’t [sic] violate professionalism or the practice advisory for sexual abuse”.

[12] Dr. Chaban also offered a response to allegations regarding a breach of the Social Media Advisory. He described the content of the Second Video as “neutral content”. His smile in the video “is not suggestive of anything bad or good and there is nothing unprofessional about diagnosing petechiae”. He added that he cannot control how other TikTok viewers interpret the “neutral” content of his video. Regarding the First Video, he wrote that the message about seduction was not directed at his patients from his position as dentist and therefore should not reflect on the profession of dentistry.

[13] Dr. Chaban concluded his response by stating that he has removed the Videos “to prevent any possible misconception of [his] intentions”. He added that he has “used this opportunity to refine [his] outlook on how to create content and use social media moving forward”.

[14] On April 24, 2023, the College informed Dr. Chaban that the Committee had formed the intention to require him to take a remedial course and to attend for a verbal caution. He was offered the opportunity to provide a further written submission, which he accepted.

[15] Dr. Chaban’s written response of May 10, 2023 included the following contentions:

1. He understood why his conduct raised the concerns cited by the Committee;
2. He apologized for his earlier response to the Committee;
3. If he had taken the time to review the College’s two advisories cited above, he never would have created the Videos. He has now done so multiple times;
4. He accepted that the content of the Videos was “inappropriate, unprofessional and in poor judgment”;
5. He has ceased all TikTok content production and involvement with social media in regard to his practice;
6. Nonetheless, he asserted that the Videos contained no direct link to his practice, as its name, location and his biography were not posted with them;
7. He was willing to take the course but asked that the outcome not be set out in the public register because he is worried about its effect on his future career.

The Decision

[16] On June 7, 2023, the Committee released the Decision. The Committee found that:

1. The Videos were “sexualized, offensive and demonstrated a lack of professional judgment”.
2. The Videos “were directly linked to Dr. Chaban’s practice of dentistry”.
3. The First Video “appears to have been filmed in their dental office with [Dr. Chaban] in dental scrubs”.
4. The Videos “appear to contravene the Social Media Advisory by “[compromising] public confidence in the dental profession and the Dentist’s own professionalism.”
5. The Videos violate the Social Media Advisory’s directives that: • “online “privacy” is never absolute; • a dentist’s professionalism should extend to their private accounts; and that • dentists should avoid posting material “that demonstrates, or appears to demonstrate, behaviour that might be considered unprofessional, inappropriate or unethical.” The Videos were unprofessional and inappropriate.
6. The Videos violate the Prevention Advisory, which “obliges dentists to maintain professionalism in their social media communication to avoid harm to their practice and their reputation”. The Prevention Advisory “gives guidance to dentists that they should not tell sexually suggestive jokes”. The Videos “were sexually suggestive”.
7. “Dr. Chaban’s response to the College’s investigation demonstrated a complete lack of insight into their conduct and understanding of their professional obligations”.

[17] Thus, the Committee concluded that the Videos were contrary to both the Social Media Advisory and the Prevention Advisory. The Videos “were clearly linked to the dentist’s practice of dentistry”.

[18] The Committee also had before it a third video that featured Dr. Chaban. It was a “duet” created by an unrelated TikTok user, who joined the First Video to a video of her own. Dr. Chaban explained that he had no control over that video, an explanation that the panel appears to have accepted. While that video is mentioned in the Decision, the Committee does not rely upon it in explaining its rationale for its decision.

[19] Having said all of that, the Committee acknowledged that Dr. Chaban had “demonstrated some insight and professional accountability by responding to the identified concerns.”

[20] The Committee’s conclusion was that Dr. Chaban’s conduct had raised “a concern or area of practice requiring remediation or significant improvement and that poses a moderate risk of directly affecting patient care or safety”. The Committee directed Dr. Chaban to complete, at his expense, a specified continuing education or remediation program. In addition, it required Dr. Chaban to attend for an oral caution.

Issues

[21] The key issue in this case is whether the Committee’s decision, including its concerns regarding Dr. Chaban’s conduct and its requirement for remediation was reasonable.

[22] In Peterson v. College of Psychologists, 2023 ONSC 4685, 167 O.R. (3d) 11, (Div. Ct.) at paras. 35-37, Schabas J. summarized the Vavilov factors that a court must consider when determining the reasonableness of an administrative decision:

[35] A reasonable decision, we are told in Vavilov, at para. 85"is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker". However, reasons "must not be assessed against a standard of perfection", they need not include all arguments, nor should they "always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge". As the court put it"'Administrative justice' will not always look like 'judicial justice' and reviewing courts must remain acutely aware of that fact" (Vavilov, at paras. 91-92).

[36] Reasons must be read "in light of the history and context of the proceedings in which they were rendered", including the evidence and submissions of the parties. As the court continued at para. 94 of Vavilov"[t]his may explain an aspect of the decision maker's reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency".

[37] Further, the degree of justification found in reasons, like reasonableness review itself, must reflect the stakes of the decision. As the court stated at para. 133 of Vavilov:

Where the impact of a decision on an individual's rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature's intention. This includes decisions with consequences that threaten an individual's life, liberty, dignity or livelihood.

[23] Dr. Chaban contends that the Committee acted unreasonably because it erred in four significant ways, which should result in the overturning of its decision, as follows:

1. It mistakenly believed that Dr. Chaban’s professional biography was appended to the Videos so that his practice was easily discernable. Dr. Chaban describes this as a “critical” and “fatal” factual error;
2. It violated Dr. Chaban’s rights to full answer and defence by effectively punishing him for a failure to express remorse in his first responses to the complaint;
3. It erroneously found that Dr. Chaban breached the Prevention Advisory;
4. The Committee’s sanction is disproportionate and overly severe.

The Committee Did not Make a Critical and Fatal Factual Error Regarding the Posting of Dr. Chaban’s Professional Biography with the Videos

[24] There is no dispute that the Committee erred in finding that Dr. Chaban’s practice biography was posted with the Videos. The evidence presented to the Committee by its investigator inadvertently included that biography, which was easily accessible on the internet. But the issue is whether that error was a material one. I find that it was not.

[25] The Videos themselves clearly identified their maker as “@doctorchaban”. Only a click or two away from the Videos, on TikTok itself, was Dr. Chaban’s profile. It sets out his first and last name, his age, his profession as a dentist and refers to Toronto. It was a matter of just a few further steps to obtain all of the details of Dr. Chaban’s dental practice by inputting his full name and profession into Google.

[26] The Committee’s erroneous finding that Dr. Chaban’s actual practice biography was posted with the Videos is of no consequence. That is because of the internet accessibility of Dr. Chaban’s practice information, based on the information he posted about himself on TikTok. The Videos, along with Dr. Chaban’s TikTok profile, included all of the information required to easily find his practice information online.

[27] Further, the theme of each video centred on dentistry. The First Video showed Dr. Chaban masked, in scrubs, in an office, referring to himself as a doctor (“@doctorchaban”). The fact that his scrubs did not show his name is of no moment in light of the finding above. The Second Video, while devoid of dental dress or a dental office, refers to an oral dental exam and the poster as a “@doctorchaban”.

The Committee Did not Violate Dr. Chaban’s Right to Full Answer and Defence

[28] Dr. Chaban acknowledges that the Committee did not impose punitive sanctions upon him. But he analogizes his circumstances to those of a person facing a disciplinary decision who has a right to a full answer and defence. By this he means that he should not be penalized for asserting his innocence and offering his justifications for his behaviour.

[29] Dr. Chaban cites Lauzon v. Ontario (Justices of the Peace Review Council), 2023 ONCA 425, 166 O.R. (3d) 481. In that case, a justice of the peace published a newspaper article criticizing the operation of bail courts and the conduct of some Crown prosecutors in her court. A disciplinary body found that her failure to accept their critique of her article, rather than accepting it with “docility” was an aggravating factor in determining her penalty. That was an error in principle regarding penalty because it obviated her right to make full answer and defence. As Lauwers J.A. wrote for the court, at para. 135:

More fundamentally, the majority made a legal error in its approach. Because JP Lauzon continued to assert her defence, the majority effectively turned her adamant defence into an aggravating factor. This is wrong in principle because it interferes with JP Lauzon’s right to make full answer and defence.

[30] Lauwers J.A. further adopted the comments of this court in Groia v. Law Society of Upper Canada 2015 ONSC 686 (Div. Ct.), 124 O.R. (3d) 1, aff’d 2016 ONCA 471, 131 O.R. (3d) 1, rev’d 2018 SCC 27, [2018] 1 S.C.R. 772 (the ONCA and SCC decisions did not address lack of remorse). In Groia, at para. 112, this court wrote:

The appellant's lack of remorse, in the circumstances of this case, cannot be treated as an aggravating factor. To do so represents a fundamental misapplication of the principles outlined in R. v. Valentini (1999), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.), at para. 82.

[31] Lauzon can be distinguished in two ways. First, unlike J.P. Lauzon, Dr. Chaban was not subjected to formal disciplinary proceedings, nor was he the subject of a penalty. Rather, the Committee chose to rely on remedial measures instead of recommending disciplinary proceedings and the risk of a serious penalty.

[32] Second, the Committee did not attempt to punish Dr. Chaban for a lack of remorse or failure to assume a submissive position in the face of its investigation. In fact, its decision makes no reference at all to the term “remorse”. Rather, the Committee articulated its concern with the lack of insight that Dr. Chaban displayed in his initial responses to the College. That is far different from the circumstances of J.P. Lauzon. That lack of insight as to the breach of the two College Advisories and the harm thereby caused are the reason that the Committee found that remedial measures are necessary. That was a finding that was available to the Committee, a specialized decision-maker with expertise in dental standards, on the facts of this case.

The Committee Did not Err in Finding that Dr. Chaban Breached the Prevention Advisory

[33] The thrust of Dr. Chaban’s argument regarding the Prevention Advisory is two-fold. First, he states that it is aimed at sexual abuse. But there is no allegation, let alone evidence, that he committed any form of sexual abuse. Second, he states that the Prevention Advisory is intended to deal with a dentist’s behaviour towards their actual patients. But the Videos make no reference to any actual patients.

[34] Dr. Chaban’s claim of innocence regarding any sexual abuse is fair and uncontested. However, that is not determinative of the scope of the Prevention Advisory.

[35] The breadth of the Prevention Advisory is not limited to sexual abuse; it is far broader than that. It includes written communication and the maintenance of a professional working environment. It requires dentists to “maintain professionalism in their written communication, including content on websites and social media”.

[36] The Prevention Advisory specifically refers to the applicability of the Social Media Advisory. It states that “[i]napproriate use of social media or websites can harm your practice and your reputation”. In referring to the obligation to maintain a professional working environment, it requires dentists to ensure that their workplace “does not include sexually suggestive jokes, posters, pictures, and/or documents that could be offensive to patients or staff”.

[37] This obligation extends to the virtual realm as well. The Social Media Advisory states that “dentists are bound by ethical and professional obligations that extend beyond their clinics or offices. When you are online, you must follow the same rules of professional conduct that guide you at work” [emphasis added]. The Social Media Advisory adds that dentists must ensure that “content [they] upload to the internet does not hurt public confidence in the dental profession or compromise [their] professionalism.”

[38] Thus it was open to the Committee to find that Dr. Chaban violated both the Prevention Advisory and the Social Media Advisory, without finding that he committed sexual abuse or that his conduct was directed towards a specific patient.

[39] Rather, the Committee stated that it was “moderately concerned about the highly offensive, sexualized, unprofessional nature of the TikTok videos posted by Dr. Chaban which were contrary to the College’s practice advisories on social media and sexual abuse prevention.”

[40] That finding and the conclusion that the Videos raised a risk to the public were available to the Committee because the Videos:

(a) may offer the message that a dentist like Dr. Chaban could infect their professional patient interactions with a prurient interest in those patients’ intimate sexual habits;

(b) include Dr. Chaban’s ostensibly approbative reference to seduction while he is sitting in an office, dressed in his scrubs.

(c) may make a patient reluctant to seek dental care or make a patient uncomfortable with their dentist (whether Dr. Chaban or another dentist) during the course of care.

[41] A further risk to the public can reasonably be seen to arise from Dr. Chaban’s failure, particularly in his initial responses to the College, to recognize his obligations to his profession and the public under the two Guidelines.

[42] Dr. Chaban complains that the Committee conflated risk to the public with concerns about the reputation of the dental profession. He points out that the Committee’s reasons do not cite the reputation of the dental profession as a ground for its decision. But the two are not mutually exclusive. The grounds which the Committee relied upon in the Decision could also ground a finding on the basis of harm to the reputation of the dental profession.

[43] The point is made in the wording of the caution that the Committee ruled should be administered to Dr. Chaban. That caution includes the statement that Dr. Chaban’s “initial response to the College failed to demonstrate any insight into their actions and recognize that their non-clinical conduct could impact the public’s perception of their professionalism and negatively impact public confidence in the profession as a whole.”

[44] The fact that the Committee did not find it necessary to rely on the reputation of the profession, even if it was available, does not make its finding of risk to the public any less reasonable.

[45] Further, as noted by the Supreme Court in Vavilov, at paras. 91-92: “written reasons given by an administrative body must not be assessed against a standard of perfection”. They do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” and they “will not always look like judicial justice”.

[46] Here, the Committee reasonably addressed the primary concerns with Dr. Chaban’s conduct. Its conclusions that his conduct was contrary to the practice advisories and raised a risk to the public were clearly available on the record before it.

The Committee’s Resolution Was Neither Disproportionate nor Overly Severe

[47] Dr. Chaban argues that the Committee’s sanction is disproportionate and overly severe. His counsel writes in his factum:

The Decision, while admittedly not a “penalty” subsequent to a disciplinary prosecution, is akin to the Review Council’s error in Lauzon in that Dr. Chaban’s response is being used against him as a basis to impose a disposition which will be in the public domain and stigmatise him for many years to come.

[48] Dr. Chaban points to his youth and short term in the profession at the time the Videos were posted as mitigating factors regarding resolution of the investigation. He asserts that he should not face a published decision of the Committee that he had violated the Prevention Advisory because of its full title as “Prevention of Sexual Abuse and Boundary Violations”. Such publication, at so early as stage in his career, would imply to members of the public that his behaviour was far more serious than it actually was.

[49] Of course, as Dr. Chaban concedes and as stated above, the Decision did not impose a penalty on him. Rather, it imposed remedial and educational consequence, along with an oral caution. A similar result was upheld by this court in Pitter v. College of Nurses of Ontario, 2022 ONSC 5513 (Div. Ct.), 164 O.R. (3d) 433. There, nurses who identified themselves as such, publicly made misleading statements at gatherings and on the internet regarding Covid and mask mandates during the recent pandemic. They were required to undergo remedial education and receive a caution.

[50] The contents of the public statements of the nurses were different than those contained in the Videos. Nonetheless, the concerns regarding the risk to the public and the impact on the reputation of the profession, as well as the appropriate remedy are analogous here.

[51] Even the publication of notice of the College’s decision is not punitive in nature. As Pattillo J. wrote for this court in Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (Div. Ct.), at paras. 44-45:

44 Cautions and educational directions are remedial in nature and not sanctions or penalties. They are meant to improve the Member's practice and benefit the public they serve by avoiding future concerns. See: Banner v. College of Physicians and Surgeons of Ontario, 2012 ONSC 5547 (Div. Ct.) at para. 11; Fielden v. Health Professions Appeal and Review Board, 2013 ONSC 4261 (Div. Ct.) at para. 10.

45 … The requirement of publication was implemented to provide transparency to the self regulation process. It was not intended to change the remedial purpose of a caution or required education. Nor has it. Given the ICRC's role, both cautions and educational requirements remain remedial and do not amount to a penalty or sanction.

[52] In sum, the resolution imposed on Dr. Chaban was available to the Committee as an expert body in the field of dental regulation. It was neither disproportionate nor overly severe.

Conclusion

[53] In conclusion, for the reasons set out above, I find that the Decision meets the standard of reasonableness and dismiss this application.

[54] The parties have agreed that the successful party would be entitled to costs of $7,500. Dr. Chaban shall pay that amount to the College.

_________________________ Kurz J.

I agree

E. Stewart J.

I agree

O’Brien J.

Date of Release: February 21, 2024

CITATION: Chaban v. Royal College of Dental Surgeons of Ontario, 2024 ONSC 1075

DIVISIONAL COURT FILE NO.: 410/23 DATE: 20240221

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Stewart, Kurz and O’Brien J.J.

BETWEEN:

Peter Noel Chaban

Applicant

– and –

Royal College of Dental Surgeons of Ontario

Respondent

REASONS FOR JUDGMENT

Kurz J

Date of Release: February 21, 2024