DISCIPLINE COMMITTEE OF THE ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO
IN THE MATTER OF: A Hearing held pursuant to the provisions of the Health Professions Procedural Code which is Schedule 2 to the Regulated Health Professions Act, 1991, Statutes of Ontario, 1991, Chapter 18 (“Code”)
AND IN THE MATTER OF: the Dentistry Act and Ontario Regulation 853, Regulations of Ontario, 1993, as amended (“Dentistry Act Regulation”)
BETWEEN:
Royal College of Dental Surgeons of Ontario
-and-
Dr. Amir Abbas Haydarian
PENALTY REASONS
RESTRICTION ON PUBLICATION
In the matter of the Royal College of Dental Surgeons of Ontario and Dr. Amir Haydarian the Discipline Panel ordered, under ss 45(3) of the Health Professions Procedural Code, that no person shall publish or broadcast the identity of any patients of the Registrant, or any information that could disclose the identity of any patients who are named in the Notice of Hearing and/or the Agreed Statement of Facts in this matter.
PANEL MEMBERS:
Dr. Richard Hunter (Chair)
Ms. Judy Welikovitch, Public Member
Dr. Nancy Di Santo, Professional Member
Dr. Nalin Bhargava, Professional Member
Mr. Rod Stableforth, Public Member
APPEARANCES:
Ms. Linda Rothstein and Ms. Glynnis Hawe, for the College
Mr. Symon Zucker, for Dr. Amir Haydarian
Ms. Luisa Ritacca, Independent Legal Counsel
Heard: March 20, 2023, by videoconference
Penalty Decision Date: March 20, 2023
Costs Decision Date: May 9, 2023
Release of Written Reasons: May 9, 2023
REASONS FOR DECISION ON PENALTY AND COSTS
OVERVIEW
(1) On January 23, 2023, this Panel released its Reasons for Decision, wherein it found Dr. Haydarian had a sexual relationship with a patient, which ultimately resulted in the patient becoming pregnant with his child. Having engaged in sexual intercourse with his patient, the Panel held that Dr. Haydarian had sexually abused a patient, contrary to section 51(1)(b.1) of the Code.
(2) On February 16, 2023, this Panel released supplementary decision and reasons where it ordered the immediate, interim suspension of Dr. Haydarian’s certificate of registration pending a determination regarding a final penalty.
(3) The parties appeared before this Panel on March 20, 2023, to make submissions regarding a final penalty and costs.
DECISION AND DISCUSSION ON PENALTY
(4) With respect to penalty, the College submitted that in light of the Panel’s finding that Dr. Haydarian committed “sexual abuse”, contrary to section 51(1)(1.b) of the Code in that he engaged in sexual intercourse with Person A, the mandatory penalty provisions of section 51(5) of the Code applied. The Member did not oppose the College’s submission.
(5) As such, the Panel confirmed that it was bound by section 51(5) of the Code to impose a penalty revoking the Member’s certificate of registration and an order that the Member appear before the Panel to be reprimanded.
DECISION AND DISCUSSION ON AN ORDER UNDER S. 51(2)(5.1) and (5.2) AND COSTS
(6) On the question of costs and an order under sections 51(2)(5.1) and (5.2), at Dr. Haydarian’s request, the Panel gave the parties an opportunity to deliver written submissions.
(7) The Panel received submissions from the College, however, Dr. Haydarian did not provide written submissions by the agreed upon date and did not provide any explanation for his failure to do so.
Position of the College
(8) The College seeks an order pursuant to s. 51(2)(5.1) and (5.2) of the Code that Dr. Haydarian reimburse the College for the costs of Person A’s therapy and counselling in the amount of $17,370.00. Person A has already accessed funding from the College in the amount of $4,141.56.
(9) In addition, the College seeks an order requiring Dr. Haydarian to pay costs to the College in the amount of $234,569.60, which the College says is 70% of the College’s legal costs and expenses, and costs and expenses of the discipline and penalty hearings1.
(10) In support of its position for an order reimbursing the costs of therapy and counselling, the College noted that Person A has already accessed funding from the College in the amount of $4,141.56. Further, in her Victim Impact Statement, Person A explained that because of her relationship with Dr. Haydarian she has developed serious anxiety around men. While she has already obtained some therapy for herself and her children, she said that it is “very important” for her to continue to attend.
(11) With respect to the issue of costs, the College argued that this was an appropriate case for costs. In support of its position, the College submitted the following:
a. Dr. Haydarian prolonged the hearing unreasonably and unnecessarily. He raised meritless legal arguments, refused consent where appropriate, repeatedly appeared unprepared resulting in adjournments, costs thrown away and multiple and unnecessary written submissions. Dr. Haydarian tendered one document in support of his central response to the allegations – that is his alleged divorce certificate – which was erroneous on its face, requiring extensive cross-examination, the retention of an expert by the College and multiple costly translations.
b. The quantum and proportion of costs sought by the College is in line with prior costs awards, including in the case of Clokie v. RCDSCO, 2017 ONSC 2773 (Div Crt) (“Clokie”).
c. Dr. Haydarian was represented by senior, experienced counsel capable of advising him of the cost consequences of the conduct of his defence, and he was warned by the College that it would seek full costs (which it has not done) if the hearing proceeded.
d. Dr. Haydarian resiled from/refused settlement. In doing so, Dr. Haydarian failed to recognize his misconduct, caused the College to incur significant costs for an unnecessary seven-day hearing, and secured a worse outcome for himself.
Position of Dr. Haydarian
(12) Dr. Haydarian asked for and was provided the opportunity to deliver written submissions to the Panel on the question of costs. Counsel suggested that Dr. Haydarian would provide evidence of impecuniosity. No evidence was provided.
Panel’s Decision and Reasons
(13) In addition to the mandatory penalty orders set out above, the Panel orders as follows:
a. Dr. Haydarian is ordered to reimburse the College for the costs of Person A’s therapy and counselling in the amount of $17,370.00, pursuant to s. 51(2)(5.1) and (5.2) of the Code; and
b. Dr. Haydarian is ordered to pay two-thirds (or 66%) of the Actual costs incurred by the College, as set out in the Bill of Costs filed.
(14) With respect to the order made pursuant to s. 51(2)(5.1) and (5.2), the Panel is satisfied that it is appropriate to require the Member to reimburse the College for the therapy and counselling funds which have been accessed by Person A. The membership of the College should not bear the costs of providing funding for therapy for patients who have been sexually abused. Person A made clear in her Victim Impact Statement that she has benefitted from being able to access therapy following her relationship with Dr. Haydarian, which has left her anxious.
(15) With respect to the costs order, the Panel recognizes that the power to award costs is discretionary and that costs are not intended to be punitive. Costs are intended to recognize that the full cost of an investigation and discipline proceeding should not be borne exclusively by the membership. It is fair and appropriate for the Member who is the subject of an investigation and discipline process, and who is found to have engaged in professional misconduct, to share in the costs incurred by the College.
(16) The Panel is satisfied in all the circumstances that this is an “appropriate case” to order costs. As set out by the College in its submissions, Dr. Haydarian took steps in his defence of the allegations which resulted in lengthening the hearing by several days; requiring the College to call expert evidence and to spend money on translations; and to prepare for a late-breaking constitutional challenge which was ultimately abandoned. In addition, Dr. Haydarian chose to initially contest the motion brought by his wife to access exhibits, which required the preparation of written submissions by the College.
(17) With regard to the quantum sought, the Panel notes that the College seeks 70% of its actual legal costs and expenses, and costs and expenses of the discipline and penalty hearings.
(18) The Panel has considered the case law provided, including Clokie, and finds that the Member should be required to pay costs equivalent to two-thirds (or 66%) of the College’s actual legal costs and expenses and the costs and expenses of the discipline and penalty hearings. The Clokie case proceeded over a similar number of days as this matter, involved serious issues and had similar delays. The Panel does not take issue with the reasonableness of the actual costs incurred by the College in prosecuting this matter, however it is not prepared to require Dr. Haydarian to pay 70% of the College’s actual costs as set out in the Bill of Costs provided.
(19) An order requiring the Member to pay two-thirds of the actual costs ($218,154.72) is consistent with what this Discipline Committee has done in the past and consistent with the approach accepted by the Divisional Court in both Clokie and Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041.
I, Dr. Richard Hunter, sign these Reasons for Decision as Chairperson of this Discipline Panel.