CITATION: Haddad v. Health Professions Appeal and Review Board, 2024 ONSC 6015
DIVISIONAL COURT FILE NO.: 743/23-JR
DATE: 20241101
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Corbett, Lococo and R. Gordon JJ.
BETWEEN:
Albert jason haddad
Applicant
– and –
Health Professions Appeal and Review Board and H.R.
Respondents
Neil M. Abramson and Lexie Cooper, for the Applicant
Steven G. Bosnick, for the Respondent Board
HEARD at Toronto: October 23, 2024
REASONS FOR JUDGMENT
R. A. Lococo J.:
I. Introduction
[1] The applicant Albert Jason Haddad brings an application for judicial review of the decision of the respondent Health Professions Appeal and Review Board (the “Board”) dated December 1, 2023 (the “Board Decision”), reported at 2023 113686 (Ont. HPARB).
[2] The Board Decision confirmed the decision of the Inquiries, Complaints and Reports Committee (the “ICRC”) of the Royal College of Dental Surgeons of Ontario (the “College”) dated October 5, 2022 (the “ICRC Decision”). The ICRC’s investigation arose from a compliant by the respondent H.R. about the erroneous extraction of a tooth from the mouth of H.R.’s minor child. The ICRC Decision required the applicant to complete a Specified Continuing Education Program (“SCERP”) in oral surgery and radiology and to appear before an ICRC panel to be cautioned.
[3] The applicant submits that the Board erred in upholding the ICRC Decision, arguing that the ICRC Decision was unreasonable and not procedurally fair.
[4] For the reasons below, I would dismiss the application.
II. Background
[5] The applicant is an oral and maxillofacial surgeon who treats patients upon referral from dentists in general practice. He regularly treats patients who require the extraction of “supernumerary” or extra teeth beyond the number that would normally be found in the mouth. He treats patients at his private office as well as at the Hospital for Sick Children in Toronto, where he is part of the cleft lip and palate program.
[6] The matter before the ICRC arose from a complaint to the College by H.R., whose minor child was referred to the applicant by the patient’s paediatric dentist. The referring dentist advised the applicant that the patient required extraction of two supernumerary teeth. The patient was seven years old at the time of the extraction. As part of the referral, the applicant received a radiologist’s report, which stated that the patient had two supernumerary teeth. The radiologist’s report included two cone beam computed tomography (“CBCT”) scan images of the patient’s teeth.
[7] On the day of the extraction, H.R. asked the applicant if a second CBCT scan should be taken, the existing images then being about two years old. The applicant advised H.R. that instead of a second CBCT scan, x-rays of the patient’s teeth could be taken and matched with the existing CBCT scan images, which was preferable to exposing the minor patient to greater radiation from a CBCT scan. Upon examination of the patient, the applicant readily identified one tooth as supernumerary and extracted it but found that a second supernumerary tooth was less obvious. After taking periapical (whole tooth) x-rays and comparing them with the prior CBCT scan, the applicant identified a second tooth that he said resembled the shape of a supernumerary tooth. After discussing it with his surgical team, he proceeded to extract that tooth as well.
[8] Several months later, the patient’s referring dentist advised the applicant that one of the patient’s adult teeth was missing. Upon further investigation (including telephone consultations with the referring dentist, the radiologist and the patient’s orthodontist), the applicant determined that the second tooth extracted was a normal adult tooth, not a supernumerary tooth. The applicant promptly called H.R., acknowledged and apologized for the error, and advised her that he would cover the cost of an implant and orthodontic care arising from the patient’s erroneously extracted tooth.
[9] H.R. proceeded with a complaint to the College, which was referred to the ICRC for investigation pursuant to s. 25(1) of the Health Professions Procedural Code ( the “Code”), being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”). The ICRC panel consisted of two dentists in general practice and one lay member.
[10] In its decision dated October 5, 2022, the ICRC expressed serious concern about the applicant’s proceeding with extraction of the second tooth, stating that the applicant “admits” in his response to H.R.’s complaint that he was “unsure” whether he had identified the correct tooth for extraction. The ICRC found that the applicant “should have taken additional steps to verify that he had the correct tooth. For example, he could have performed additional imaging, including panoramic x-ray, that would have helped identify the nature of the tooth he was going to remove.” The ICRC also stated that the applicant could have delayed treatment until there was additional information to confirm the tooth was supernumerary.
[11] The ICRC also found that the applicant should not have relied on the radiologist’s report. He should have performed his own evaluation to confirm his own diagnosis prior to proceeding with the extraction. As well, the ICRC found that in deciding not to order a second CBCT scan to minimize radiation exposure, the applicant should have considered taking “additional x-rays with lower radiation to confirm the diagnosis”, noting the ready availability of “[p]anoramic radiographs”. The ICRC also stated that the “risk of removing the wrong tooth increased when he was unsure which tooth to remove, and he should have re-balanced the risks at that stage” to determine whether “[h]arm from removing the wrong tooth exceeds harm from additional radiation exposure.”
[12] In light of these concerns, the ICRC directed the applicant to complete a SCERP in oral surgery and radiology approved by the Registrar of the College and to appear before an ICRC panel to be cautioned. The ICRC also directed that the applicant’s practice be monitored for 24 months.
[13] The applicant requested that the Board review the ICRC Decision: see Code, ss. 29, 33, 35. In its decision dated December 1, 2023, the Board found that the ICRC conducted an adequate investigation and that its decision was reasonable: Board Decision, at para. 74. Therefore, the Board confirmed the ICRC’s order to require the applicant complete a SCERP in oral surgery and radiology and appear for cautioning: Board Decision, at para. 75.
[14] By Notice of Application to this court, the applicant seeks judicial review of the Board Decision.
III. Jurisdiction and standard of review
[15] There is no appeal from a Board decision under s. 35 of the Code upon the Board’s review of an ICRC decision. The Divisional Court’s jurisdiction is limited to a judicial review application: see Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 2, 6(1).
[16] Upon judicial review of an administrative decision, there is a presumption that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 2 S.C.R. 653, at paras. 23-25. The parties agree that the reasonableness standard of review applies in this case except with respect to questions of procedural fairness:
[17] To determine the reasonableness of a Board review decision, the court may consider the reasonableness of the underlying ICRC decision: Hamilton v. Ontario (Health Professions Appeal and Review Board), 2022 ONSC 3221 (Div. Ct.), at para. 24; Montour v. Health Professions Appeal and Review Board, 2019 ONSC 3451 (Div. Ct.), at para. 28, citing Reyhanian v. Health Professions Appeal and Review Board, 2013 ONSC 297 (Div. Ct.), at para. 11.
[18] Reasonableness review “finds its starting point in the principle of judicial restraint” but remains “a robust form of review” rather than “a ‘rubber-stamping’ process or a means of sheltering administrative decision makers from accountability”: Vavilov, at para. 13. A reasonable decision is one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires a reviewing court to defer to such a decision: Vavilov, at para. 85. The relative expertise of administrative decision makers with respect to the questions before them is a relevant consideration in conducting reasonableness review: Vavilov, at paras. 31, 92-93.
[19] The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on that basis, “the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov, at para. 100.
[20] A tribunal is required to conduct its proceedings fairly. The degree of procedural fairness required is determined by reference to all the circumstances of the case, including those set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28; see also Vavilov, at para. 77.
IV. Issues for determination
[21] The applicant submits that the Board was unreasonable in upholding the following findings in the ICRC Decision:
a. The ICRC unreasonably failed to take into account that the applicant took responsibility for the erroneous tooth extraction by promptly contacting the applicant, apologizing and offering to cover the cost of an implant and any required orthodontal care.
b. The ICRC erroneously found that the applicant admitted that he was “unsure” he had identified the correct second tooth for extraction. That finding provided the basis for the ICRC’s unreasonable conclusion that he “should have taken additional steps to verify that he had the correct tooth”, or delayed treatment.
c. The ICRC unreasonably imposed a SCERP that required the applicant to take a course in oral surgery and radiology, even though his competency in those areas had not been called into question.
d. The ICRC unreasonably faulted the applicant for failing to take panoramic x-rays to confirm he was extracting the correct tooth, without expert evidence to support that conclusion. Since that issue was raised for the first time in the ICRC Decision, the applicant did not have the opportunity to address the issue, thereby breaching the ICRC’s duty of procedural fairness.
[22] As explained below, I have concluded that the Board did not err in concluding that the ICRC Decision was reasonable, nor was there a breach of procedural fairness.
V. Analysis
A. The Board did not unreasonably fail to consider the remedial steps the applicant took after realizing that the second tooth was extracted in error
[23] The applicant submits that in reaching the decision to impose a caution and a SCERP, the ICRC unreasonably failed to take into account that the applicant took responsibility for the erroneous tooth extraction by promptly contacting the applicant, apologizing and offering to cover the cost of an implant and any required orthodontal care.
[24] In support of that submission, the applicant relies the Board’s previous decision in L.K. v C.D.-H., 2014 75171 (Ont. HPARB). In L.K., a dentist in general practice was asked to extract a child’s wisdom teeth, one of which (the dentist was informed) had previously been extracted. During the surgery, the dentist in error cut into the patient’s gum to probe for the already-extracted tooth. The ICRC decided that the dentist should be cautioned, on the basis that the dentist had overlooked several factors that ought to have alerted her to the fact that the tooth was not present. Upon review, the Board found that the ICRC had failed to consider corrective measures taken by L.K. after the incident. For example, she immediately admitted her mistake, apologized, and reimbursed the cost of treatment not covered by insurance. The Board sent the matter back to the ICRC for a fresh consideration.
[25] The applicant unsuccessfully made essentially the same submission before the Board in his review application, relying on the L.K. decision. In the Board Decision, at para. 52, the Board explained:
The Board notes that previous Board decisions are not binding upon this Board panel and are at best persuasive. The Board notes that the circumstances of the LK decision are distinguishable as the dentist in that matter probed for a non-existent wisdom tooth but stopped when the error was recognized and did not remove an adult tooth from a minor child. The Board further notes that while the dentist in the LK decision had an unblemished conduct record with the College, that is not the case in the current matter.
[26] Upon judicial review, the applicant again submits that the ICRC’s imposition of a caution and a SCERP was unreasonable since it offended the principle in L.K. that such an outcome is not warranted where the health professional has taken responsibility for their error and made efforts toward remediation. The applicant argues that the Board unreasonably distinguished L.K. on the erroneous basis that the decision stood for the proposition that a caution is not indicated where the error is minor in nature or the health professional has not appeared before the ICRC before.
[27] I disagree. As the Board correctly noted, at para. 52, previous Board decisions were not binding on the Board panel deciding this matter. The Board nonetheless considered the L.K. decision and distinguished it on its facts. The Board did not act unreasonably in doing so.
[28] Moreover, as noted further below, the Board found that the ICRC “applied its knowledge and expertise related to the expected standards of the profession to assess the Applicant’s conduct” and declined to “second guess” the remedy the ICRC imposed: Board Decision, at para. 56. I see no grounds for interfering with the Board’s determination. The Divisional Court has repeatedly refused invitations from applicants to reweigh facts or evidence and come to different conclusions, especially when the same or similar supporting arguments were made before the Board: see Gill v. Health Professions Appeal and Review Board, 2024 ONSC 2588 (Div. Ct.), at paras. 82-85; Vavilov, at para. 125. That is not the court’s role on judicial review.
[29] In any case, in the Board Decision, at para. 46, the Board noted that as a result of the ICRC’s concerns about the applicant’s conduct, the ICRC considered referring the applicant to the College’s Discipline Committee but did not do so “in light of the Applicant’s taking of ownership of the mistake and commitment to assisting the patient moving forward.” Therefore, contrary to the applicant’s submission, the ICRC considered the applicant’s subsequent remedial conduct and properly took it into account in reaching its decision. In the Board Decision, at paras. 61-62, the Board indicated that it was not prepared to revisit that determination by returning the decision to the ICRC, nor was the Board prepared to “require the Committee to remove the requirement for the SCERP and the caution, as requested by the Applicant’s Counsel.” I see no error in that determination.
B. The Board did not err in upholding the ICRC’s conclusion that the applicant should have taken additional steps to verify that he had identified the correct tooth or delayed treatment
[30] The applicant submits that the ICRC erred in finding that the applicant admitted to being “unsure” that he had identified the correct second tooth for extraction. The applicant says that finding formed the basis for the ICRC’s unreasonable conclusion that the applicant should have taken additional steps to verify that he had identified the correct tooth or delayed treatment.
[31] In support of that position, the applicant cites his response to H.R.’s complaint to the College, which described in detail the steps the applicant took to verify that he was extracting the correct second tooth. The applicant’s response provided that after administering the anaesthesia, the applicant first removed a supernumerary tooth that was “clearly identifiable”. The response then continued:
The second supernumerary tooth was less obvious. I identified what I believed to be the tooth in question. However, out of an abundance of caution, I determined to take a periapical radiograph and to then reconcile the radiograph with [the radiologist’s] report and the CBCT images which had been provided to me. When comparing the periapical radiograph to [the radiologist’s] report, I confirmed which tooth was in the position which, in the report had been identified by [the radiologist] to be a supernumerary tooth. This was consistent with the fact that the morphology of the tooth in question was not clearly that of a lateral incisor - i.e. the type of tooth which one would expect to find in that position. Rather, the tooth had a "peg" shape, which is common for supernumerary teeth in that position. I expressly recall discussing my thought process out loud with my surgical team, including [the anaesthesiologist] and taking extra time to ensure that I was in fact removing the tooth which had been identified by [the radiologist] as a supernumerary tooth. The tooth was then extracted and the procedure was completed. [Emphasis added.]
[32] The applicant says that it is clear from the foregoing that he did not admit to being “unsure” that he had identified the correct second tooth for extraction. I agree that the applicant did not expressly state that he was “unsure”. However, I do not see how that assists the applicant.
[33] It is clear from the applicant’s response to H.R.’s complaint that he had no doubt that the first tooth was supernumerary, which he immediately extracted. The applicant then identified a second tooth that he believed to be supernumerary, and explained the steps he took “out of an abundance of caution” to reach the (incorrect) decision that the second tooth was supernumerary as well.
[34] In those circumstances, it would be reasonable to conclude that at least initially, the applicant was unsure whether the second tooth was supernumerary, even though the applicant did not expressly state it. However, after considering the steps that the applicant took before extracting the second tooth, the ICRC concluded that those steps were not sufficient. As stated in the ICRC Decision:
The Committee has reviewed the Patient’s dental records, including the periapical x-rays taken by Dr. Haddad. The x-ray reflects that there is only one supernumerary tooth present. The Committee is concerned that Dr. Haddad does not appear to have contemplated the possibility that [the radiologist’s] report may have been incorrect even though it was evident on the intraoperative periapical x-rays.
[35] In the Board Decision, at para. 50, the Board decided not to interfere with that determination:
The Applicant has confirmed that there were never two supernumerary teeth and that [the applicant] removed an adult tooth from a 7 year old minor by mistake. The Committee has considered all of the circumstances leading to this mistake and has provided intelligible reasons for determining to require the Applicant to complete a SCERP and to caution the Applicant, as set out below.
[36] Among other things, the applicant submits that it was unreasonable for a generalist ICRC panel, without expert evidence, to reach the conclusion that the periapical x-rays taken the day of the surgery indicated that there was only one supernumerary tooth. In his factum, the applicant argues that where a generalist panel is deciding a matter where specialist care is in question, it may be appropriate for the ICRC to use its discretion to retain an expert with experience in that specialty: see K.O. v. E.G.D., 2011 14749 (Ont. HPARB), at para. 32.
[37] In his oral argument, applicant’s counsel confirmed that he made essentially the same submission to the Board on the applicant’s review application but did not seek to tender expert evidence that the ICRC panel was incorrect when it stated that x-rays reflected only one supernumerary tooth. In the normal course, the record for a Board review application is restricted to what was before the ICRC unless (in limited circumstances) the Board grants leave to provide fresh evidence upon review: see R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, at p. 775. Applicant’s counsel advised the court that if the court allows the application and remits the Board Decision for reconsideration by the Board, the applicant would consider seeking leave to tender such expert evidence.
[38] I see no basis for interfering with the ICRC panel’s conclusion that the applicant should have been aware there was only one supernumerary tooth, including from the panel’s review (without expert evidence) of the intraoperative x-rays. The applicant once again inappropriately invites the court to reweigh the evidence, reframing key issues relating to reliance on the radiologist’s report and whether his intraoperative x-ray comparison was sufficient, in an effort to solicit a different conclusion. The court’s role on judicial review does not include reweighing evidence to arrive at a different result.
[39] The Divisional Court has repeatedly held that the decision as to whether an expert opinion is needed is in the discretion of an Inquiries, Complaints and Reports Committee: see Maini v. College of Physicians and Surgeons, 2022 ONSC 3326 (Div. Ct.), at para. 54; King v. Gannage, 2020 ONSC 7967 (Div. Ct.), at para. 42. The expertise required to screen a complaint does not require expertise in the area of practice: Maini, at para. 54.
[40] The decision whether to obtain expert evidence with respect to interpretation of the intraoperative x-rays was within the discretion of the ICRC, consistent with previous case law. It was not unreasonable for the Board to affirm the ICRC’s findings in the circumstances of this case.
[41] If the applicant wished to provide expert evidence that the ICRC panel was incorrect in its interpretation of the intraoperative x-rays, he had the opportunity to seek to obtain leave from the Board to do so in his review application. Having not sought leave from the Board, it is too late to address the issue on judicial review.
C. The Board did not err in declining to revisit the scope of the ICRC’s remedial order
[42] The applicant submits that the ICRC unreasonably imposed a SCERP that required the applicant to take a course in oral surgery and radiology. The applicant says that it was not reasonable for the Board to uphold that determination, since the applicant’s competency in those areas had not been called into question.
[43] In the ICRC Decision, the ICRC directed that the SCERP in each of oral surgery and radiology be approved by the College’s Registrar and cover specified topics, as follows:
a. Oral surgery: diagnosis and treatment planning; clinical and radiographic assessment; case selection; and recordkeeping and consent’
b. Radiology: prescribing and interpretation; documentation; diagnostic standards and technique; clinical diagnosis as a complement to radiographic diagnosis; review of normal anatomy and pathology; indications and contraindications for CT scans; and recordkeeping.
[44] The applicant submits that his skills in these areas have never been in question. He argues that the complaint against him is fundamentally about whether it was appropriate for him to rely upon the radiologist’s report. There has never been an allegation that his surgical skills were deficient or that there was anything wrong with his ability to diagnose, his case selection, his obtaining of consent, etc. He also submits that it was the radiologist’s interpretation of the CBCT scan that was incorrect, which the applicant relied on. It does not follow that there is anything in the applicant’s knowledge of radiology which requires remediation.
[45] I do not agree with the applicant’s position. I see no basis for concluding that the Board acted unreasonably in declining to interfere with remedial requirements that the ICRC imposed, including the scope of the SCERP.
[46] In previous decisions, the Divisional Court has recognized that due to the special knowledge and expertise of committees governed by the RHPA or the Code, the court “owes substantial deference to the expertise of [a] committee in determining the appropriate scope of education or remediation”: Beitel v. College of Physicians and Surgeons, 2013 ONSC 4658, 311 O.A.C. 35 (Div. Ct.), at para 57; see also M.J.S. v. Health Professions Appeal and Review Board, 2022 ONSC 548 (Div. Ct.), at para. 50. Once again, the applicant is asking this court to “re-weigh the relevant factors considered by the ICRC and come to a different result. This was not the Board's role in determining the reasonableness of the ICRC Decision, and it is not the role of this Court on judicial review of the Board decision”: see MJS, at para. 51.
[47] I also note that in the ICRC remedial order, the College’s Registrar has a role in guiding the content of required courses, providing an opportunity to tailor the topics covered to the particular situation. I see no role for the court in that process.
D. The ICRC’s consideration of panoramic x-rays in the ICRC Decision was not unreasonable or in breach of procedural fairness
[48] The applicant submits that the ICRC unreasonably faulted him for failing to take panoramic x-rays to confirm he was extracting the correct tooth, without expert evidence to support that conclusion. The applicant also submits that by raising the issue of panoramic x-rays for the first time in the ICRC Decision, the ICRC breached its duty of procedural fairness, since the applicant did not have the opportunity to address the issue in his submissions.
[49] As previously noted, it is within the ICRC’s discretion to decide whether an expert opinion is needed; see Maini, at para. 54; King v. Gannage, at para. 42. The expertise required to screen a complaint does not require expertise in the area of practice: Maini, at para. 54.
[50] As explained below, I do not agree that the ICRC acted unreasonably or in breach of its duty of procedural fairness in its consideration of panoramic x-rays. The Board did not err in affirming the ICRC’s findings in the circumstances of this case.
[51] Panoramic x-rays (or radiographs) are referred to in two contexts in the ICRC Decision, but they do not play a central role in the ICRC Decision.
[52] As previously noted, the ICRC found that the applicant should have taken additional steps to verify he had identified the correct second tooth before proceeding with extraction, stating as an “example”, that “he could have performed additional imaging, including panoramic x-ray, that would have helped identify the nature of the tooth he was going to remove” (emphasis added). The ICRC later stated that the applicant should have considered taking “additional x-rays with lower radiation to confirm the diagnosis, noting in that context the ready availability of “[p]anoramic radiographs”. In both cases, the references to panoramic x-rays were cited as steps that could or should have been taken, along with consideration of other alternatives, including delaying the surgery, or even consideration of another CBCT scan after weighing the risk of additional radiation exposure against the risk of extracting the wrong tooth.
[53] In these circumstances, I see no basis for determining that the ICRC’s consideration of panoramic x-rays rendered its decision unreasonable or in breach of its duty of procedural fairness.
VI. Disposition
[54] For the above reasons, I would dismiss the application. I would not make a costs order, as the parties agreed.
___________________________ Lococo J.
I agree: ___________________________ Corbett J.
I agree: ___________________________ R. Gordon J.
Date: November 1, 2024
CITATION: Haddad v. Health Professions Appeal and Review Board, 2024 ONSC 6015
DIVISIONAL COURT FILE NO.: 743/23-JR
DATE: 20241101
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Corbett, Lococo and R. Gordon JJ.
BETWEEN:
Albert jason haddad
Applicant
– and –
Health Professions Appeal and Review Board and H.R.
Respondents
REASONS FOR JUDGMENT
R. A. LOCOCO J.
Date: November 1, 2024