DISCIPLINE COMMITTEE OF THE ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO

Date: 2024-12-13

File Nos.: H190012, H200006, 21-0187, 21-0188, 21-0432

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”)

AND IN THE MATTER OF: the Statutory Powers Procedure Act, Revised Statutes of Ontario, 1990, Chapter S.22, as amended; 1993, Chapter 27; 1994, Chapter 27

BETWEEN:

Royal College of Dental Surgeons of Ontario

-and-

Kevin Bacchus

REASONS FOR DECISION ON PENALTY AND COSTS

RESTRICTION ON PUBLICATION

In the matter of the Royal College of Dental Surgeons of Ontario and Kevin Bacchus 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.

PANEL MEMBERS:

Ms. Judy Welikovitch, Public Member (Chair)

Dr. Carol Janik, Professional Member

Dr. Nancy Di Santo, Professional Member

Dr. Ian Brockhouse, Professional Member

Mr. Brian Smith, Public Member

APPEARANCES:

Ms. Linda Rothstein and Ms. Glynnis Hawe, for the College

Ms. Jasmine Ghosn, for the Registrant

Ms. Luisa Ritacca, Independent Legal Counsel

Heard: December 13, 2024, by way of videoconference

Decision Date: February 12, 2025

Release of Written Reasons: February 12, 2025

REASONS FOR DECISION

INTRODUCTION

On June 6, 2024, this Panel released its Reasons for Decision, wherein it found that Dr. Bacchus sexually abused two patients, by engaging in multiple acts of sexual intercourse. In addition, this Panel found that Dr. Bacchus engaged in several acts of professional misconduct in relation to his clinical practice, the submission of misleading insurance claims, informed consent, and the over-prescription of opioids.

As set out in this Panel’s Reasons for Decision, the allegations and subsequent findings made against Dr. Bacchus were contained in five separate Notices of Hearing and involved conduct from sexual abuse, to submitting false or misleading statements to an insurer, to issues relating to record keeping, to informed consent, and to the over-prescription of opioids. The Panel made findings against Dr. Bacchus as alleged in all but one of the Notices of Hearing. With respect to the allegations contained in Notice of Hearing 21-0432 (Exhibit 5), the Panel made no findings of misconduct.

Following the release of this Panel’s Reasons for Decision, the parties appeared before this Panel on December 13, 2024, to make submissions on penalty and costs. The Panel received extensive written submissions from the parties, as well as an Affidavit from Dr. Bacchus, in advance of the oral hearing date on December 13,2024.

The Panel considered the oral submissions of the parties and the advice of its independent legal counsel, as well as the written submissions and the documentary evidence [Affidavit of Dr. Kevin Bacchus, Exhibit 86].

This Panel’s decision on both penalty and costs is set out below.

The Panel’s Jurisdiction

Section 50(2) of the Health Professions Procedural Code (the “Code”) provides, in part, that where a panel of the Discipline Committee finds that a member has committed an act of professional misconduct, it may direct the Registrar to, among other things:

(i) Revoke the member’s certificate of registration

(ii) Suspend the member’s certificate of registration for a specified period of time

(iii) Require the member to appear before the panel to be reprimanded.

In addition, where the act of professional misconduct was the sexual abuse of a patient, a panel can require the member to reimburse the College for funding for therapy and counselling provided for that patient under the program required under section 85.7 of the Code, or require the member to post security acceptable to the College to guarantee the payment of any amounts the member may be required to reimburse under any such program.

Section 53.1 of the Code provides, in part, that in an appropriate case, a panel may make an order requiring a member whom the panel finds has committed an act or acts of professional misconduct, to pay all or part of the College’s legal costs and expenses, including costs and expenses incurred in investigating the matter, and/or costs and expenses incurred in conducting the hearing.

The College’s Position on Penalty and Costs

The College submits that having found that Dr. Bacchus sexually abused two patients and that the abuse involved sexual intercourse, this Panel has no discretion regarding penalty. Section 51(5)3 of the Code provides that where a panel finds a member has committed an act of professional misconduct by sexually abusing a patient and where that sexual abuse consists of, among other things, sexual intercourse, the panel shall reprimand the member and revoke the member’s certificate of registration.

With respect to Person A, the Panel accepted her evidence and found that she and Dr. Bacchus had sexual intercourse on multiple occasions while she was Dr. Bacchus’ patient.

The Panel found Person A to be a credible and reliable witness and believed her over Dr. Bacchus where his evidence differed from hers. This included conflicting evidence regarding the timing of the relationship between Dr. Bacchus and Person A. More specifically, Dr. Bacchus denied that he engaged in a sexual relationship with Person A while she was his patient and his employee. This evidence was not adjudged credible by the Panel.

Similarly, the Panel accepted the evidence establishing that Dr. Bacchus had sexual intercourse with Person B between May 2017 and November 2017, while she was both an employee and patient.

The Panel’s findings with respect to sexual abuse of his patients Person A and Person B are set forth in its Reasons for Decision, as follows:

1. With respect to Person A, the Panel found, on a balance of probabilities, that Dr. Bacchus sexually abused his patient and employee, Person A, contrary to section 51(1)(b.1) of the Code¹;

2. With respect to Person B, the Panel found that there was sufficient credible and reliable evidence that Dr. Bacchus engaged in sexual abuse of Person B, who was his employee and his patient.²

Having found that Dr. Bacchus engaged in sexual abuse of his patients that included sexual intercourse, the College submitted that the Panel is required to both impose a reprimand and to revoke Dr. Bacchus’ certificate of registration.

The College further submitted that even if the Panel found that revocation is not mandatory, that this is still an appropriate case in which to make a revocation order. The College argued that Dr. Bacchus engaged in conduct vis-à-vis both Person A and Person B that fell well below the standards of professionalism expected and required of registrants of this College; that he crossed the patient-dentist boundaries with both Person A and Person B on multiple occasions and over a prolonged period of time; and that he put the reputation of the profession at risk and he jeopardized the public’s confidence in the College’s ability to regulate its registrants.

Regarding costs, the College is seeking an order under section 51(2)(5.1) and (5.2) of the Code in the amount of $34,740.00 for funding and therapy and counselling for each of Person A and Person B and an order requiring Dr. Bacchus to post security in that amount.

It further seeks an order under section 53.1 of the Code in the amount of $451,461.61, which is 67% of the College’s actual legal costs and expenses, as well as the costs and expenses incurred in investigating the matters which resulted in findings against the Registrant. The College is not seeking the costs and expenses incurred in investigating the matter that did not result in a finding.³

In support of its position regarding costs, the College submitted that this Panel has broad statutory discretion to order that the College be indemnified for its costs and expenses, and this is “very much a discretionary manner.”⁴ It submitted this is an “appropriate case” for an award of costs, for the following reasons:

1. The College was successful in proving sixteen (16) of seventeen (17) allegations set out in four (4) of the five (5) Notices of Hearing before this Panel;

2. Dr. Bacchus was found to have engaged in sexual abuse of two (2) patients;

3. Dr. Bacchus was also found to have engaged in a series of other, serious acts of professional misconduct relating to his clinical practices;

4. Throughout the conduct of Dr. Bacchus’ defence, he failed to make reasonable admissions and repeatedly raised arguments lacking in merit;

5. This unduly lengthened the proceedings and warrants a significant cost award.

The College further submitted that the quantum of costs sought is consistent with prior costs awards from this and other health colleges involving similar hearings. The College argued that the result of the Registrant’s conduct was an extraordinarily lengthy and expensive hearing in which he was found to have committed nearly all the acts of professional misconduct alleged; that the profession should not have to bear the entire cost of investigating and prosecuting Dr. Bacchus. Similarly, the College submitted that this is an appropriate case in which to order that Dr. Bacchus reimburse the College for the costs of therapy and counselling for Person A and Person B; that the general membership of the College should not bear these costs.

The Registrant’s Position on Penalty and Costs

In his written submissions, Dr. Bacchus argued that the Panel made a number of errors in its factual findings, including with respect to its summary of the evidence of Dr. Goldberg and Dr. Gizzarelli. He further argued that the Panel’s Reasons for Decision revealed a bias “in favour of the regulator” and that the Panel failed to note that there was no evidence of patient harm resulting from any of the misconduct found to have occurred.

With respect to the findings of sexual abuse, Dr. Bacchus argued that the Panel did not make any finding with respect to the specific sexual acts that constituted the sexual abuse. He said that having failed to specify that the sexual abuse included sexual intercourse or other acts of frank sexual abuse (as found in s. 51(5)3 of the Code), that the Panel is not required under the legislation to revoke his certificate of registration. He did not argue that the Panel lacked jurisdiction to make that order under the Health Professions Procedural Code.

With respect to Person B, Dr. Bacchus argued the Panel cannot make any order on penalty without first hearing from her directly. In support of this argument, he relied on section 51(6) of the Code, which provides that before making an order under section 51(5), the Panel shall consider any written statement that has been filed, and any oral statement that has been made to the Panel, describing the impact of the sexual abuse on the patient.

Further, Dr. Bacchus submitted that the dental care received by Person A and Person B was “incidental” to their employment and so this Panel should not impose a penalty for sexual abuse of a patient. Dr. Bacchus relies on the Ontario Court of Appeal’s decision in Leering v. College of Chiropractors of Ontario⁵. In that case, the Court considered circumstances where the medical care a spouse received was “incidental” to the sexual/spousal relationship. Dr. Bacchus urges the Panel to consider the Court’s analysis in deciding the appropriate penalty here.

In addition to Leering, Dr. Bacchus relies on a number of other cases from various health colleges, where the decision makers addressed the questions of where and whether a patient relationship existed, or whether the medical care was incidental to the sexual relationship.

In response to a question from the Panel, Dr. Bacchus’ counsel acknowledged that Dr. Bacchus would expect that the Panel would impose a lengthy suspension given its findings, but that revocation is not appropriate. Counsel declined to explain or define “lengthy suspension.”

Counsel further acknowledged that costs were appropriate in the circumstances, but that the quantum sought by the College was unreasonably high and that the Panel should consider a more modest amount.

The Panel’s Decision on Penalty and Costs

The Panel makes the following order as to penalty and costs:

(i) Dr. Bacchus shall appear before the Panel to be reprimanded.

(ii) The Registrar is directed to revoke Dr. Bacchus’ certificate of registration forthwith.

(iii) Dr. Bacchus shall post security in the amount of $69,480.00 for funding for therapy and counselling for Person A and Person B, pursuant to sections 51(2)(5.1) and (5.2) of the Code.

(iv) Dr. Bacchus shall pay costs to the College in the amount of $451,461.61, payable within 30-days of the date that this Decision becomes final.

Reasons for Decision

In reaching its decision with respect to an appropriate penalty, the Panel considered the written submissions of the parties, the parties’ oral submissions, as well as the Reasons for Decision for the hearing on the merits.

The Panel also considered the basic principles relating to the imposition of penalties. They include that: (a) the goal of a penalty is to protect the public from dentists who have committed professional misconduct and to maintain public confidence in the profession and in its ability to self-regulate; (b) a penalty must serve as a measure of general deterrence, in that it sends a message to all registrants of the dental profession that this type of conduct will not and cannot be tolerated; (c) it must also serve as a measure of specific deterrence with respect to the dentist concerned; (d) an appropriate penalty should also provide for remediation or rehabilitation of the dentist concerned, where possible and appropriate; and lastly, (e) the Panel must consider both mitigating and aggravating factors when assessing the appropriateness of the penalty in the circumstances.

Allegations of Bias and Errors

In their written and oral submissions, counsel for Dr. Bacchus brought to the attention of the Panel a concern about an apprehension of bias against Dr. Bacchus arising from aspects of the Panel’s Reasons in this case. Counsel for Dr. Bacchus also alleged that the Panel had made errors in its findings.

The law on bias is well-settled. The test for a reasonable apprehension of bias is whether a reasonable person, properly informed and viewing the matter realistically and practically, would conclude that the decision-maker could decide the case fairly, There is, as well, a strong presumption of impartiality and the burden rests on the party making the allegations to establish a reasonable apprehension of bias on a balance of probabilities standard.⁶

An allegation of bias must be supported by concrete evidence and cannot be raised lightly⁷. The apprehension of bias must be raised at the earliest opportunity in order to allow the decision -maker to recuse themselves.⁸

The Panel is sensitive to the Registrant’s claim of bias by the Panel as a whole. We recognize that this is a different case from one where bias is perceived at the hearing on the merits but not raised at that time. The Registrant here is alleging bias that he perceives as flowing from the Reasons themselves. It is arguable that this is the Registrant’s earliest opportunity to raise his apprehension of bias. The Panel, however, does not accept the bona fides of the claim for the following reasons:

1. Even if the Panel were to decide that it did have jurisdiction to entertain this allegation, there is insufficient concrete evidence before us to support the claim;

2. That being said, the Panel finds that Dr. Bacchus’ arguments regarding bias and “errors” in the Panel’s Reasons for Decision are not properly before it. It is open to Dr. Bacchus to seek review of the Panel’s decision, however the Panel cannot, at this stage of the proceedings, revisit its own findings. The Panel is now functus officio with respect to its Decision and Reasons on the merits of the allegations. Functus Officio is a Latin expression that translates to “having performed his or her office.”⁹ It is commonly described as a “rule about finality.”¹⁰ The doctrine is applied in the administrative law context, partly in recognition of the public interest in the finality of authoritative decisions.¹¹The Panel, as a decision-maker acting in an adjudicative role, falls within the scope of the doctrine and unless the legislature has provided otherwise, the Panel is barred from reconsidering its own decision.¹²

Allegation that patient-dentist relationship was incidental to sexual relationship

Dr. Bacchus’ counsel argued that revocation was not mandatory in this case since the dental care received by both Person A and Person B was ‘incidental” to their employment relationship with him and thus to their respective sexual relationships with him. In support of this proposition, counsel for Dr. Bacchus provided the panel with several cases.

The Panel has reviewed these cases and, with respect, does not find them helpful to Dr. Bacchus. In our view, Dr. Bacchus’ submission that this Panel ought to find that the dentist-patient relationship was incidental to their respective employment relationships is ill-conceived. The Panel has already found that both Person A and Person B were patients of Dr. Bacchus at the time that they each engaged in a sexual relationship with him. It is not open to the Panel, for the purposes of deciding penalty, to reconsider its finding.

Even if the Panel was persuaded that it could reconsider its finding, it received no evidence of the “incidental” nature of the dentist-patient relationship. The uncontested evidence from virtually all the witnesses called during the course of the hearing was that it was Dr. Bacchus’ practice to provide dental care to his employees. The dental care was characterized by most as a benefit of the employment relationship and not incidental to it. Most of the witnesses who had worked for Dr. Bacchus were also his patients or, at the very least, patients of the practice. During the hearing on the merits of this case, there was no suggestion that the care was somehow “incidental” to the employment. This is an issue that is being raised for the first time at the penalty phase of these matters.

Further, the Ontario Court of Appeal in Leering¹³, cited by the Registrant in written and oral argument, concluded that the Code requires no inquiry into whether the sexual relationship of the parties arose out of their spousal relationship or their doctor-patient relationship in order to determine whether there was sexual abuse. In the view of the Panel, the Registrant’s argument that the OCA decision in Leering is applicable here is misplaced.¹⁴. Leering relates to the question of whether a person is a patient where the medical care provided is “incidental” to the spousal/sexual relationship. Having already found that Person A and Person B were patients at the time of their respective sexual relationships with Dr. Bacchus, the Panel has effectively found that the care was not “incidental” although it was under no obligation to do so.

The Panel did not hear from Person B before making a penalty finding

Dr. Bacchus argued that pursuant to section 51(6) of the Code, this Panel cannot make a penalty finding without first hearing from Person B directly.

With respect, Dr. Bacchus’ argument is without merit. Section 51(6) of the Code provides a patient who endured sexual abuse with the opportunity to make a statement (in writing or orally) to the Panel in advance of the Panel making a penalty decision. It does not require a patient to make a statement, and it does not require the Panel to seek out any such statement.

In this case, Person B was not called by either party to provide her evidence. The Panel received a statutory declaration from Person B in the course of the hearing on the merits and received information that Person B declined to cooperate with the College’s investigation. Person B denied ever having had a sexual relationship with Dr. Bacchus. The Panel did not accept the statutory declaration of Person B¹⁵ for the truth of its contents although it was entered as a lettered exhibit. A review of the Statutory Declaration, however, revealed that it is not, on its face, the type of statement contemplated by section 51(6) of the Code. That is, it cannot fairly be characterized as a victim impact statement as set out in section 51(6).

Section 51(6) of the Code speaks to the obligation of a Panel to consider any written statement that has been filed and any oral statement that has been made to the panel, describing the impact of the sexual abuse on the patient¹⁶. It does not place an obligation on the Panel to seek out victim impact statements.

Based on the statutory declaration, Person B does not view herself as a patient who endured sexual abuse. Nevertheless, and on the basis of the totality of the evidence before it during the hearing on the merits, it was open to the Panel to make a finding of sexual abuse with respect to Person B on a balance of probabilities standard, and it did so. If Person B or Person A had elected to make a statement to the Panel regarding the impact upon them of the sexual abuse, then the Panel would have been under an obligation, pursuant to section 51(6) of the Code, to hear and consider such statements. No such statements were presented to the Panel, nor is there anything in the legislation that establishes the receipt of victim impact statements as a condition precedent to imposing a penalty.

Penalties imposed

The Panel found as a matter of fact, and on a balance of probabilities, that Dr. Bacchus engaged in sexual relationships with both Person A and Person B while each was employed by him or the practice at which he worked. The sexual relationships in which Dr. Bacchus engaged included sexual intercourse (evidence this Panel accepted from Person A and other witnesses)

The Panel has found that Dr. Bacchus is guilty of professional misconduct under section 51(1)(b) of the Code, and that the misconduct included sexual intercourse with Person A and Person B. This conduct is proscribed by section 51(5)(3). It is on the basis of these findings, made at the hearing of these matters on the merits, that the Panel is required, pursuant to Sections 51(5) and 51(5.2), to reprimand the Registrant and to revoke his certificate of registration, and it does so.

Revocation in all the circumstances of this case

Further and in any event, the Panel is satisfied that even if revocation was not mandatory in the circumstances, that Dr. Bacchus’ overall conduct here warrants revocation in any event, more specifically, the Panel considered that Dr. Bacchus:

(a) engaged in prolonged sexual relationships with two employees who were also his patients;

(b) repeatedly and systematically misled an insurer (GSC) by submitting claims using the name and provider numbers of other dentists in the practice in order to submit patient claims on a “pay provider” basis and thereby by-pass the restriction by GSC on his own ability to submit claims for dental services directly to the insurer;

(c) failed to abide by the College’s standards on record keeping and informed consent; and

(d) prescribed opioids in excess of the Opioid Guideline amounts, too frequently, and without documenting why, on numerous occasions for many patients. Of particular concern was the Panel’s finding that with respect to one patient who had a history of chronic opioid dependence, Dr. Bacchus provided five consecutive prescriptions that were inappropriate and unjustified, and that doing so posed a potential risk to that patient’s on-going health and safety.

Further, as discussed in the Panel’s Reasons for Decision, Dr. Bacchus has a substantial complaints and discipline history that pre-dates the five sets of complaints dealt with by this Panel.¹⁷ They include six matters that were handled by the College’s Inquiries, Complaints and Reports Committee (“ICRC”) and a prior matter that was heard by a panel of the Discipline Committee.

Put in context, Dr. Bacchus began his career as a dentist in 1995; his discipline history dates back to 2005, as follows:

(a) In File No. C050212S¹⁸, Dr. Bacchus’ billing practices were a matter of concern to the ICRC Panel. In its decision dated December 6, 2006, the ICRC panel stated that “Dr. Bacchus has stated that a billing error occurred; however, the panel has serious concerns regarding Dr. Bacchus’s explanation of the error.” In the result, the ICRC issued a caution regarding his billing practices to Dr. Bacchus;

(b) In File No. C050293S¹⁹, the ICRC panel again cautioned Dr. Bacchus with respect to his billing practices. He also entered into an undertaking to take a recordkeeping course and to have his practice monitored for twenty-four (24) months;

(c) In File No. C100047E²⁰, Dr. Bacchus’ recordkeeping practices were again at issue. In this case, the panel warned that “the lack of recordkeeping cannot be used as an alibi for suggesting that the service has indeed been rendered.” The Panel considered referring the matter to the Discipline Committee but ultimately declined to do so, although it signalled that it might do so in future if further complaints regarding the adequacy of Dr. Bacchus’ recordkeeping were raised. In the result, Dr. Bacchus was again ordered to complete a course in recordkeeping and a course in periodontics. He was also made subject to a further thirty-six (36) months of practice monitoring and received a stern caution;

(d) In Discipline File Nos. H120008 and H120009, in a decision dated November 1, 2013²¹, the Panel found that Dr. Bacchus admitted that he had submitted claims to an insurer for services that were recorded in patient charts as having been performed on a different date than what was submitted in the claim, and that he submitted claims for services that were not recorded in the patient’s chart at all.

The Discipline Committee suspended Dr. Bacchus for a period of six (6) months. He undertook to take another course in ethics, and one in restorative dentistry. He was made subject to a further twenty-four (24) months of practice monitoring; and lastly,

(e) In ICRC File No. G130056E²², the panel noted that the matter identified the same issues as had been present in the Discipline Hearing referred to in (d) above. However, in this matter, the ICRC highlighted that Dr. Bacchus denied the misconduct to which he had admitted in his Discipline Committee hearing. The panel expressed concerns that these denials indicated a “lack of insight into his previous conduct.” It went on to say that:

“The response provided by the member causes the panel to be of the view that the member has not taken any ownership for his wrongdoing, does not have insight about what occurred in the past and has not changed his ways. The panel is very concerned about the member’s lack of insight and it has concerns that any changes made as a result of the courses and practice monitoring will not be maintained long-term due to the lack of insight.”²³

The ICRC panel issued Dr. Bacchus a strong caution regarding his conduct, ethics and recordkeeping practices. In this regard, it cautioned that the “member’s continued denial of his actions and repeated efforts to simply dismiss his actions as recordkeeping errors demonstrates a significant lack of insight into his previous conduct. The issues identified in this matter were not simply recordkeeping errors but rather were acts of professional misconduct for which he had previously pled guilty and been found guilty.”²⁴

In reaching its determination that this is an appropriate case for revocation in any event, the Panel considered the totality of Dr. Bacchus’ prior history in the context of this proceeding. The Panel notes the following findings:

(a) Prior to these matters coming on before the Discipline Committee, Dr. Bacchus was suspended for a period of six months pursuant to an order of a different Discipline Committee panel in 2013²⁵;

(b) Dr. Bacchus has been required to receive practice monitoring for a total period of approximately seven years since 2007, as follows:

i. Pursuant to ICRC order dated January 12, 2007²⁶, practice monitoring from January 2007 to January 2009 (2 years);

ii. Pursuant to ICRC order dated January 8, 2011²⁷, practice monitoring from January 2011 to January 2014 (3 years); and

iii. Pursuant to Discipline Committee order dated December 20, 2013²⁸, practice monitoring from December 2013 to December 2015 (2 years).

(c) Dr. Bacchus has been required or has undertaken to take courses in recordkeeping and ethics on multiple occasions.

Notwithstanding all the supports, remediation and cautions that have been given to Dr. Bacchus, and leaving aside the issue of sexual misconduct and abuse as discussed above, the Panel has found that he continues to practice at a level below standard professional expectations, particularly with respect to recordkeeping and ethical billing practices. We have found that he continues to practice in disregard of the Opioid Guidelines and that he has demonstrated no insight into his misconduct or his professional obligation to follow those Guidelines.

Dr. Bacchus has, in the view of this Panel, continued to demonstrate below-standard conduct over the course of years. This poses a risk to the College in terms of both its ability to regulate Dr. Bacchus’ conduct and to protect the public. The Panel agrees with College Counsel that “Dr. Bacchus’ serious and intentional repeated misconduct, which has taken place over an extended period of time, shows a disregard for patients, the public, the profession and the regulator.”²⁹ In this regard, the Panel is reminded of the opinion of the Supreme Court of Canada in Rocket v Royal College of Dental Surgeons of Ontario³⁰ in which the Court stated that “it is difficult to overstate the importance in our society of the proper regulation of our learned professions.”

Dr. Bacchus has a years-long history of infractions and disregard of his obligations with respect to the Code and his professional obligations as set out in the regulatory practice Guidelines. He has demonstrated a seeming lack of ability to change his behaviour, a lack of insight into his conduct and a refusal to admit wrongdoing. It is in this context that the Panel considered the overall seriousness and on-going nature of those same and similar issues present in the four Notices of Hearing³¹ in this case. The Panel thus concluded that revocation is the only order that will send a clear message to Dr. Bacchus, to other members of this College, and to the public, that this flagrant disregard for professionalism, regulation, and patient safety will not be tolerated.

The Panel finds that Dr. Bacchus’ conduct herein, separate and apart from the sexual abuse findings, as well as his prior history and lack of any mitigating factors, warrants revocation in any event. Dr. Bacchus has demonstrated an unwillingness to abide by even the most basic professional requirements. He continues – even in his submission on penalty – to deflect any responsibility for his wrongdoing onto others and to minimize his own misconduct.

Costs

With respect to costs, the Panel has considered the bill of costs filed by the College. Contrary to the Registrant’s argument that the costs were excessive, the Panel has no concerns as to the reasonableness of the costs incurred by the College in order to investigate and prosecute this matter given that: this matter involved five separate Notices of Hearing and multiple allegations; and that the hearing proceeded over seventeen (17) days and involved multiple witnesses and exhibits. While it was certainly Dr. Bacchus’ right to defend himself against the allegations, Dr. Bacchus did not make reasonable concessions that could have shortened the hearing and instead he raised numerous objections that only lengthened the time required to complete the hearing.

This is not a circumstance that requires a further discount in the costs sought by the College. The Panel was not persuaded by the content of Dr. Bacchus’ Affidavit that there are any significant mitigating factors to be considered.

In ordering Dr. Bacchus to pay two-thirds of the College’s actual fees incurred for the investigation and hearing, the Panel has considered other, similar cases including:

(a) RCDSO v Haydarian³², where the Discipline Committee found that the registrant had engaged in sexual abuse and awarded costs in the amount of $218,154.72, being 66% of the College’s costs and expenses for the investigation and seven-day hearing;

(b) RCDSO v Somasundaram³³, where having found that the registrant had engaged in sexual abuse, the Discipline Committee ordered that the dentist pay 2/3 of the costs of the prosecution costs in the amount of $192,937.04 following a nine-day hearing; and

(c) RCDSO v Clokie, where the panel of the Discipline Committee found that Dr. Clokie had sexually abused his patient and that he had been dishonest with the College about his sexual relationship with the patient. It also found that Dr. Clokie had fabricated evidence about a former employee whom he said had sent him emails with sexual references to the patient when in fact it was Dr. Clokie who had done so. In the result, the Committee ordered costs to the College in the amount of $318,297.87, being 2/3 of the costs incurred by the College for the hearing. Dr. Clokie’s appeal was dismissed at the Divisional Court of Ontario³⁴

It is important to be mindful that costs awards are not intended to be punitive. Rather, they are intended to indemnify the College for costs it has incurred as a result of a registrant’s misconduct.³⁵

The Panel finds that the College has reasonably sought approximately two-thirds of its actual costs. As the aforementioned caselaw makes clear, this is well in keeping with what other panels have ordered in similar cases, and with what the courts have found to be an appropriate measure. This is particularly so given the length of the hearing and the manner in which Dr. Bacchus conducted his defence.

In the result, Dr. Bacchus is ordered to pay the College the sum of $451,461.61, being 67% of the College’s actual legal costs and expenses of the hearing, and its costs and expenses of investigating four of the five matters involved in this hearing. Dr. Bacchus is also ordered to pay $34,740 for funding for therapy and counselling for each of Person A and Person B, totalling $69,480, and to post security in that amount forthwith, pursuant to s. 51(2)(5.1) and (5.2) of the Code.

To summarize:

(a) This Panel of the Discipline Committee found, on a balance of probabilities, that Dr. Bacchus sexually abused two employees who were also his patients. The panel directs the College’s Registrar to revoke Dr. Bacchus’ certificate of registration immediately;

(b) Dr. Bacchus is also ordered to attend before the Panel to receive a reprimand, as required by the Code;

(c) This Panel of the Discipline Committee also determined that its findings of misconduct with respect to all the other allegations (save and except those contained in Notice of Hearing 21-0432 [Exhibit 5]), taken together, would have led it to revoke Dr. Bacchus’ certificate of registration in any event;

(d) Dr. Bacchus is ordered to pay two-thirds of the College’s costs in accordance with the Bill of Costs presented, in the amount of $451,461.61. These costs relate to the investigation and prosecution of four of the five Notices of Hearing, as noted above; and

(e) Dr. Bacchus is to post security acceptable to the College forthwith in the amount of $69,489 for funding for therapy and counselling for both Person A and Person B, as above.

I, Judy Welikovitch, sign these Penalty and Costs Decision and Reasons as Chairperson of this Discipline Panel.

Dated this 12th day of February 2025.

Discipline Panel members:

Dr. Nancy Di Santo

Dr. Ian Brockhouse

Dr. Carol Janik

Mr. Brian Smith

Footnotes

1. 1RCDSO v Bacchus, Reasons at page 38
2. 2Ibid, pages 40 - 41
3. 3Notice of Hearing 21-0432 [Exhibit 5]
4. 4Freedman v Royal College of Dental Surgeons [2001] OJ No. 1726 (Div Court) at para.3, Code 53.1
5. 5Leering v College of Chiropractors, 2010 ONCA 87
6. 6See Wewaykum Indian Band v Canada, 2003 SCC 45 at para 58-60, 76-77; R v S (RD) [1997] 3 SCR 369 at p 394
7. 7Panov v Canada (MCI), 2015 FC 716 at para 20; Arthur v Canada (AG) 2001 FCA 223, [2001] FCJ 1091 at para 8
8. 8Andrade v Canada (MPSEP), 2015 FC 1007 at para 25
9. 9Wong, Anna SP, Doctrine of Functus Officio: The Changing Face of Finality’s Old Guard, 2020 CanLIIDocs, 3309; The Canadian Bar Review, Vol. 98 at page 546
10. 10Capital District Health Authority v Nova Scotia Government and Employees Union, 2006 NSCA 85 at para. 36
11. 11Reekie v Messervey, 1989 CanLII 5200 (BC CA), [1990] 1 SCR 219 at 222-23, 66 DLR (4th) 765
12. 12Supra Note 8, at page 567
13. 13Leering v College of Chiropractors of Ontario, 2010 ONCA 87
14. 14Ibid at para 50
15. 15Exhibit Q
16. 16Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, S.O. 1991 Chapter 18
17. 17It is noted that the conduct alleged in the Notices of Hearing in this case dates back to 2002-2003, 2013, 2015/2016/2017. However, all of the complaint and disciplinary matters referred to pre-date the hearing herein.
18. 18Decision of the ICRC File No. C050212S, December 6, 2006, Exhibit 64
19. 19Decision of the ICRC File No. C050293S, January 12, 2007, Exhibit 65
20. 20Decision of the ICRC, File No. C100047E, January 18, 2011, Exhibit 67
21. 21Decision of Discipline Committee, File Nos, H12008/09, December 20, 2013, Exhibit 69
22. 22Decision of the ICRC, File No. G130056E, July 21, 2015 Exhibit 72
23. 23Ibid, at page 12
24. 24Ibid at p. 13
25. 25Exhibit 69, See Note 19 above
26. 26Exhibit 65
27. 27Exhibit 67
28. 28Exhibit 69
29. 29College Costs Submissions, page 7
30. 30Rocket v Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC) at p. 249
31. 31The allegations set out in the fifth Notice of Hearing, being No. 21-0432, Exhibit 5, were dismissed by the Panel
32. 32Royal College of Dental Surgeons of Ontario v Haydarian, 2023 ONRCDSO 4 at para 13. Upheld on appeal at Haydarian v Royal College of Dental Surgeons of Ontario, 2023 ONSC 6830 at paras 37-43
33. 33Royal College of Dental Surgeons of Ontario v Somasundaram, 2019 CanLII 151893 (ON RCDSO)
34. 34Clokie v RCDSO, 2017 ONSC 2773
35. 35Reid v College of Chiropractors of Ontario, 2016 ONSC 1041, affd 2016 ONCA 779