Royal College of Dental Surgeons of Ontario v. Dr. Kevin F. M. Bacchus, 2025 ONRCDSO 4

DISCIPLINE COMMITTEE OF THE ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO

Date: 2025-07-16

File Nos.: 24-0502 and 24-0503

BETWEEN:

Royal College of Dental Surgeons of Ontario

-and-

Dr. Kevin F. M. Bacchus

PANEL MEMBERS:

Judy Welikovitch, Chair, Discipline Committee & Public Member

Andrea Gonsalves, Subject Matter Expert

Dr. Eilyad Honarparvar, Professional Member

Dr. Vanessa Theriault, Professional Member

Mr. Brian Smith, Public Member

APPEARANCES:

Ms. Glynnis Hawe on behalf of the Royal College of Dental Surgeons of Ontario

Ms. Jasmine Ghosn on behalf of Dr. Bacchus

Hearing: May 30, 2025

Decision Date: July 16, 2025

Release of Written Endorsement: July 16, 2025

ENDORSEMENT

OVERVIEW:

This matter involves two Notices of Hearing (RCDSO File Nos. 24-0502 and 24-0503) (together, the “NOH”) regarding Dr. Kevin Bacchus. The matter was set down for a one-day hearing on the merits and is expected to proceed based on an agreed statement of facts.

The Panel of the Discipline Committee assigned to hear this matter (the “Panel”) consists of two public members, two professional members, and a subject matter expert, all named above. The Chair of the Discipline Committee convened a panel of five (5) Committee members since she was advised by the Hearings Administrator that while it was expected that Dr. Bacchus would plead guilty and admit the allegations against him, the penalty and costs phase will likely be contested. Typically, where a matter is expected to proceed wholly on consent, the Chair convenes a panel of three members of the Discipline Committee.

The Panel received an Agreed Statement of Facts (“ASF”) prior to the commencement of the hearing. The Panel was also informed by both counsel that the penalty phase of the matter is being deferred because the decision and reasons in an earlier matter involving Dr. Bacchus (the “2023/24 matter” or “2023/24 hearing”) are the subject of a pending appeal before the Divisional Court.

BASIS OF THE OBJECTION AND MOTION TO RECUSE:

Before the hearing could proceed further, counsel for Dr. Bacchus raised an objection to the participation of Ms. Judy Welikovitch and Mr. Brian Smith on the Panel. As noted, Ms. Welikovitch and Mr. Smith are the two publicly appointed members on the Panel for this proceeding.

The basis of Dr. Bacchus’s objection is that a reasonable apprehension of bias arises from the participation of Ms. Welikovitch and Mr. Smith because both were members of the panel that found Dr. Bacchus guilty of professional misconduct in an earlier contested hearing (the 2023/24 hearing). Dr. Bacchus disputes the findings made in that hearing and has appealed the panel’s decision.

By way of background, the 2023/24 hearing proceeded on the basis of five Notices of Hearing (File Nos. H190012, H200006, 21-0187, 21-188, and 21-432). The Panel in that matter was composed of two publicly appointed members (Ms. Welikovitch and Mr. Smith), one professional member who was then a member of Council, and two professional members who were not members of Council. The 2023/24 hearing proceeded over the course of approximately seventeen (17) days, following which the panel made findings of professional misconduct. The Panel was advised that Dr. Bacchus has appealed that decision and that one of the grounds of that appeal is an allegation that the Panel in that case demonstrated bias towards Dr. Bacchus in its Reasons.

Submissions of counsel for Registrant:

Ms. Jasmine Ghosn, counsel for the Registrant, was also his counsel at the hearing of the 2023/24 matter and is his counsel in his appeal from that decision to the Divisional Court. Appealing that decision is Dr. Bacchus’ right. Counsel noted at the outset that she was unaware of this Panel’s composition until the hearing commenced and she was “going on the fly”. The Panel offered her additional time to prepare her submissions, but she declined.

Counsel for the Registrant pointed to s. 38 of the Health Professions Procedural Code, which confers upon the Chair of the Discipline Committee the authority to appoint a panel to hold a hearing into allegations of misconduct.¹ In arguing in favour of the recusal, she pointed to section 38(2) of the Code allows the Chair to appoint a panel of no less than three and no more than five persons to a hearing before the Discipline Committee. Three Discipline Committee members, at least one of whom has been appointed to council by the Lieutenant Governor in Council, constitutes a quorum.² In this regard, the Panel notes that were Ms. Welikovitch and Mr. Smith to recuse themselves from the Panel in this matter, the remaining three members of the Panel could not proceed since there would then be no publicly-appointed member and thus, no quorum.³ This fact was not determinative of the issue before us since, if it were necessary for Ms. Welikovitch and Mr. Smith to recuse themselves, a new properly constituted panel would be selected. However, it would entail some delay.

As noted above, the Registrant has appealed the decision in the 2023/24 matter to the Ontario Divisional Court. According to his counsel’s submissions, the Registrant bases his motion that Ms. Welikovitch and Mr. Smith should recuse themselves from hearing this matter on the following grounds:

(a) Having Ms. Welikovitch and Mr. Smith sit on this panel will prejudice the Registrant’s appeal, particularly his bias ground, if he were to consent to their remaining as members of this panel; and

(b) In order to ensure the impartiality of the tribunal, natural justice and procedural fairness would dictate that the Registrant is entitled to have “fresh eyes” in this current matter.

Counsel for the Registrant reiterated that the penalty and costs phase of the within matters will not proceed until the Divisional Court has rendered judgment on his appeal. She argued that if Dr. Bacchus receives a judgment in the appeal that finds the panel in the 2023/24 hearing was biased, then it then calls into question the ability of Ms. Welikovitch, and Mr. Smith to be impartial and fair in this hearing.

In other words, counsel for the Registrant argued that if the Divisional Court finds a reasonable apprehension of bias on the part of the panel who decided the 2023/2024 matter, which included Ms. Welikovitch and Mr. Smith, then a reasonable apprehension of bias arises from their participation in the penalty and costs phase of this matter, too.

Relying on the Supreme Court of Canada’s decision in Baker v Canada (Minister of Citizenship and Immigration), at para 25, ⁴ counsel for the Registrant argued that a heightened duty of procedural fairness applies where the decision is important to the individual. She argued that the stakes are high in this context: Dr. Bacchus could have his certificate of registration revoked, which is a significant consequence to the individual. A high degree of procedural fairness is owed to professionals in proceedings under the Regulated Health Professions Act, 1991.

Counsel for the Registrant stressed that when this matter proceeds to the penalty and costs phase of the hearing, there will be an appearance that Ms. Welikovitch and Mr. Smith will not be able to decide the matter fairly and impartially since they both have knowledge of the criminal and discipline issues raised in the 2023/24 matter.

Submissions of counsel for the College

Ms. Glynnis Hawe, who is counsel for the College in this matter, was also counsel for the College in the 2023/24 matter. She began her submissions by advising the Panel in this matter that the Registrant had not raised any issue of bias during the 2023/24 hearing on the merits; that the allegation was raised for the first time in the Registrant’s submissions on penalty and costs. She went on to say that the 2023/24 panel addressed this allegation in its Reasons for Decision at the penalty and costs phase; and that panel rejected the allegations of bias flowing from its Reasons for Decision on the 2023/24 hearing on the merits. Further, College counsel noted that the 2023/24 panel found that it was functus officio with respect to its Decision and Reasons on the merits. She noted that the Registrant has appealed the findings of the 2023/24 panel, both with respect to liability and penalty, to the Divisional Court.

College counsel provided this panel with a brief summary of the caselaw regarding bias. submitted under Canadian common law, that:

(a) the test for reasonable apprehension of bias is whether a reasonable person, properly informed, and viewing the matter realistically, would conclude that the decision-maker would not decide the case fairly;

(b) there is a strong presumption of impartiality on the part of the decision-maker;

(c) the inquiry into an alleged reasonable apprehension of bias must be based on fact; and

(d) mere suspicion is not enough to found an allegation of reasonable apprehension of bias.

College counsel argued that the allegations of bias Dr. Bacchus has raised in his appeal are still pending before the Divisional Court and they are, therefore “unsubstantiated and unadjudicated”. The Registrant’s position would mean that the fact that members of this panel made a prior decision that was not favourable to Dr. Bacchus is enough to found a claim of reasonable apprehension of bias.

In response to the Registrant’s counsel’s argument that if Dr. Bacchus succeeds in his appeal against the 2023/24 decision, that alone is sufficient to support a reasonable apprehension, College counsel argued that panel members do make errors which are reversed on appeal. Neither a successful appeal nor the fact that a decision-maker has previously ruled against a party is enough to displace the strong presumption of impartiality: Dr Ali v College of Physician and Surgeons of Saskatchewan.⁵ The law is clear that even a prior finding of a reasonable apprehension of bias does not automatically lead to a finding of bias in the future in respect of the same decision-maker.

Counsel for the College noted that when allegations of bias or perceived bias are made, there is a risk that decision-makers may want to then recuse themselves so that the process, moving forward, is unassailable. However, she cautioned the Panel that if decision-makers are too quick to recuse themselves, it would encourage litigants to raise bias arguments in order to, in effect, choose their panel members.

DECISION

The motion that Ms. Welikovitch and Mr. Smith recuse themselves from hearing the matters at issue in this hearing is dismissed. The Hearings Administrator for the College is directed to re-schedule the hearing on the merits at the earliest possible date with the same Panel.

REASONS FOR DECISION

The Panel carefully deliberated and considered the submissions of both parties, the cases cited, and the legal principles that apply when allegations of reasonable apprehension of bias are made.

The Law on Recusal

The law on bias and recusal is well-settled. The right to an impartial decision-maker is foundational. Public confidence in the justice system is rooted in the fundamental belief that those who adjudicate must always do so without bias and must be perceived to do so.⁶ These principles apply equally to tribunal adjudicators.

This motion requires the Panel to apply the following test: whether an informed person, viewing the matter realistically and practically, and having thought the matter through, would think it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide the matter fairly and impartially.⁷ The onus of establishing bias, or the reasonable apprehension of bias, rests with the party making the allegation.

In Rogerson v Havergal,⁸ Justice Kimmel of the Ontario Superior Court provided a thorough analysis of the law on recusal. She stated as follows:

31The “informed” person considering the bias must be an objectively reasonable person, and the apprehension of bias must be objectively reasonable. A reasonable person is one who has knowledge of all the relevant circumstances, including knowledge of the judicial process and the nature of judging. See Duca Financial Services Credit Union Ltd. v. Smith, 2016 ONSC 6289, at para. 18.

32The inquiry is fact specific. A judge may be recused where there is actual bias or a reasonable apprehension of bias. See Wewaykum Indian Band v. Canada., 2003 SCC 45, [2003] 2 S.C.R. 259, at paras. 60 and 77. Bias connotes a predisposition to decide a matter in a certain way that does not leave the judicial mind open and impartial (Wewaykum, at para. 58). The moving party must establish that the judge suffers from “a condition or state of mind which sways judgement and renders the judicial officer unable to exercise his or her functions impartially in a particular case.” See R. v. S (R.D.), 1997 CanLII 324 (SCC), [1997] 3 S.C.R. 484 at para. 106.

33There is a strong presumption that judges will carry out their oath of office by conducting themselves impartially. The apprehension of bias must rest on strong grounds and compelling and cogent evidence. The burden is high on the moving party to show a real likelihood or probability of bias (see Duca, at para. 18). They must show that the judge has conducted him or herself in such a way as to raise a real or perceived apprehension of bias (see Stephenson v. Corporation of the Town of Gravenhurst, 2012 ONSC 5368, at para. 11). [Emphasis added]

Here, the onus is on the Registrant to lead compelling evidence to support the conclusion that an informed person, viewing the matter realistically and practically, would conclude that Ms. Welikovitch and Mr. Smith are unable to adjudicate this case in a fair and impartial manner.⁹ The evidentiary burden is high.¹⁰

More particularly, the Registrant would have to lead compelling evidence to support his argument that, in reality or appearance, the ability of Ms. Welikovitch and Mr. Smith to conduct themselves in an unbiased and impartial manner has been compromised by their familiarity with his disciplinary record and the matters that were put before the 2023/24 panel, or otherwise as a result of their participation in the 2023/24 matter. The thrust of his argument is that the decision of the five-member panel in the 2023/24 matter establishes an apprehension of bias such that none of the members of that panel could ever again adjudicate upon a matter involving Dr. Bacchus.

Counsel for the Registrant led no evidence of bias. She did not point to any specific instances of bias in the 2023/24 panel’s reasons or any other specific facts that could found a claim of reasonable apprehension of bias. She alleged that Ms. Welikovitch’s and Mr. Smith’s participation in the 2023/24 matter was grounds enough to establish a reasonable apprehension of bias on the Registrant’s part; that Dr. Bacchus is entitled to “fresh eyes” in the current hearing. By extension, this would mean that none of the panel members who participated in the 2023/24 matter could adjudicate another matter involving Dr. Bacchus, either.

The Panel agrees with the College that suspicion alone is not enough to meet the test for a reasonable apprehension of bias. We agree that, at this point at least, the Registrant’s allegations of bias made in his appeal to the Divisional Court are unsubstantiated and unadjudicated. Even if those allegations are ultimately substantiated, they would be immaterial to the current matter.

The mere fact that two members of this Panel participated in a prior Discipline Committee hearing and decision respecting Dr. Bacchus is not sufficient, in and of itself, to raise a reasonable apprehension that they cannot approach the present case with an open mind and participate in decision-making fairly and impartially.¹¹ A strong presumption applies that the members of this Panel will approach the decision impartiality,¹² and that presumption has not been rebutted.

The Registrant argued that there is a reasonable apprehension that when this matter proceeds to the penalty and costs phase, Ms. Welikovitch and Mr. Smith will not be able to decide the matter in a fair and impartial way since they both have knowledge of the criminal and discipline issues raised in the 2023/24 matter. We find this position to be unsustainable. Any panel of the Discipline Committee – howsoever comprised – will be provided with Dr. Bacchus’ disciplinary history with the College and with any other information the parties consider relevant to inform its assessment of the penalty and costs appropriate in this case. This practice of providing discipline histories and other relevant records and information applies to all discipline hearings and to all matters that go before the College’s Inquiries, Complaints and Reports Committee.

Although Dr. Bacchus may be unhappy to see two Discipline Committee members participate in both panels, his subjective feelings are not the focus. The test requires us to approach the matter objectively, from the perspective of a reasonably informed reasonable observer. We are not persuaded that an informed person, viewing the matter realistically and practically, and having thought the matter through, would think it more likely than not that the decision makers – i.e. Ms. Welikovitch and Mr. Smith - whether consciously or unconsciously, would not decide the matter fairly and impartially. The Registrant has, therefore, not discharged his onus.

In the result, the motion is dismissed, and the Hearings Administrator is directed to re-schedule this hearing for the earliest possible dates available.

There is no costs award that attaches to this decision. Costs, if applicable, will be left to the penalty and costs phase of this matter.

I, Judy Welikovitch , sign this Endorsement as Chair of the Discipline Committee.

Footnotes

1. 1Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18
2. 2Ibid, s. 38(5)
3. 3Ibid.
4. 41999 CanLII 699 (SCC), [1999] 2 SCR 817.
5. 52013 SKQB 37
6. 6Wewaykum Indian Band v Canada, [2003] 2 SCC 45, para 57
7. 7Rogerson v Havergal, 2020 ONSC 2164, para. 30; Yukon Francophone Board of Ed. v Yukon Territory, 2015 SCC 25, paras 20 - 21
8. 8Ibid, paras 30 - 33
9. 9Ibid, para 35
10. 10Duca Financial Services v Smith, 2016 ONSC 6289, para 18
11. 11Ali v College of Physicians and Surgeons of Saskatchewan, 2013 SKQB 37, para 34
12. 12Supra, note 10, para 18; supra, note 7, para 33