Court File and Parties

COURT FILE NO.: CV-18-00600238-0000 DATE: 20240611 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: ROYAL COLLEGE OF DENTAL SURGEONS OF ONTARIO Applicant – and – LATIF ALSOMA (also known as ABDUL LATIF ALSOMA) Respondent

Counsel: Douglas Montgomery, for the Applicant Latif Alsoma, Respondent, Acting in Person

HEARD: March 5, 2024

Reasons for Decision (Sentencing Phase of Contempt Proceeding) A.P. Ramsay J.

I. Overview

[1] This is the penalty phase of a bifurcated contempt hearing.

[2] The respondent, Latif Alsoma, also known as Abdul Latif Alsoma, also known as Abdullatif Alsoma, also known as Abdul Latif, is a dental assistant. He owns and manages a dental practice, the Alforat Dental Center.

[3] In Ontario, the practice of dentistry is highly regulated. The applicant, the Royal College of Dental Surgeons of Ontario (the “College”), is a self-governing professional regulatory body under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. The College regulates the practice of dentistry in Ontario pursuant to a regulatory scheme comprised of the Dentistry Act, 1991, S.O. 1991, c. 24, which governs the scope of practice for dentists, and the Regulated Health Professions Act. Under the Dentistry Act, the Health Professions Procedural Code, O. Reg. 262/18 (the “Code”) authorizes the College to make regulations regarding obligations and requirements for dentists in the province.

[4] The Regulated Health Professions Act allows the College to establish standards and ensures members comply with the statutory and regulatory regime. Members of the public, including patients, may file a complaint with the College, which is then investigated, and may result in disciplinary measures being meted out by the College against the member.

[5] An individual who does not have a Certificate of Registration with the College cannot perform any of the acts that make up the practice of dentistry. In addition, they cannot hold themselves out as someone permitted to perform those acts. If they do, then under s. 87 of the Code, the College may apply to the court for an order directing a person to comply with the Regulated Health Professions Act.

[6] In 2018, the College did so and obtained an order from Dietrich J., dated August 13, 2018, on the consent of the parties (the “Consent Order”), which prohibited the respondent “from holding himself out as a person who is qualified to practice in Ontario as a dentist or in a speciality of dentistry.” The Consent Order also prohibited the respondent from using the title “doctor” or variations or abbreviations, except in conformity with the requisite statute and its regulations.

[7] On June 19, 2023, I found the respondent in breach of the Consent Order and the Regulated Health Professions Act. In support of the contempt proceedings were several affidavits, including affidavits from one of the respondent’s patients Jamila Karimova, Dr. Jennifer Lipiec, Team Lead and Dental Consultant in Investigations, Professional Conduct, and two investigators, Zbigniew Bardel, an investigator with Benard + Associates Inc., and Yasser Abou-Agena, with Xpera Risk Mitigation and Investigation, all on behalf of the College.

[8] I also received a responding affidavit by the respondent. The College filed a factum; the respondent did not. There was no new evidence or materials filed by either party in advance of the penalty phase of the hearing, aside from an updated Costs Outline by the College, and a Notice of Intention to Act in Person.

II. Position of the Parties

A. The College

[9] The College seeks an order incarcerating the respondent for 45 days, the imposition of a fine in the amount of $15,000, a permanent injunction in the form of the Consent Order or alternatively, a continuation of the current interim injunction prohibiting the respondent from performing acts of dentistry or holding himself out as qualified to practice dentistry unless duly registered with the College, costs on a substantial indemnity basis and other costs.

[10] The College submits that as the respondent’s commission of the prohibited acts, which contravenes the statutes, crystallizes his contempt. The College argues that the respondent willfully and deliberately breached the Consent Order. His contempt cannot be undone, and he cannot purge the contempt that he has already committed.

[11] The College submits that a 45-day sentence will coerce the respondent into compliance with both the Consent Order and the Regulated Health Professions Act. The College says that the respondent willfully and deliberately breached the Consent Order. There may be opportunity or temptation for the respondent to continue providing dentistry or holding himself out as qualified to practice dentistry given that the respondent owns and manages his own dental centre. The College submits that to the extent a licensed dentist delivers patient care at a clinic that is not owned by a dentist, that dentist has committed an act of professional misconduct: Professional Misconduct Regulation, O. Reg. 853/93, ss. 2(38), 5(2), 5(3) and 5(4)(g), (h) and (i).

B. The respondent

[12] The respondent has not responded to the merits of the College’s argument but rather, sought to re-argue to some extent matters already dealt with at the liability hearing and significantly, has made submissions on matters not in evidence or relevant to the penalty hearing. In contempt proceedings, liability and penalty are discrete issues: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at para. 18; College of Optometrists of Ontario v. SHS Optical Ltd., 2008 ONCA 685, 93 O.R. (3d) 139, at para. 75. In the result, as noted by Watt J.A. in SHS Optical Ltd., evidence that is relevant, material, and admissible on one issue may not be relevant, material, or admissible on the other.

[13] In this case, the respondent’s arguments focus on the liability phase. He says that when he opened his practice in 2014, he contacted the College and the “Health Canada Ministry”, which helped him to establish his practice. He says his business was successful and he chose “good doctors,” whom he allowed to deal with the patients in his office. He blamed his current situation on “the competition,” saying his neighbours thought his business affected their business and they brought the complaints against him. He suggested that the patient who lodged a complaint against him may be conspiring with the competition.

[14] Revisiting the Consent Order, the respondent says the College came to his office in 2017 with the police and a search warrant. He says that the lawyer from the College called him to make a deal to sign the Consent Order that he does not practice until he obtains his license in Canada. He claims he signed because he had never practiced. He complained about the impact of the College placing his name on their website on his ability to do banking and its effect on his children, among other things, all of which was not relevant to the penalty hearing. He also attempted to re-argue the issue of his dealings with the patient who provided evidence in support of the contempt proceedings.

III. Preliminary Matters

A. Representation of respondent

[15] The respondent has chosen to represent himself both at the liability hearing, which I bifurcated from the penalty hearing, and the penalty phase.

[16] The respondent had a lawyer on the record, Mbong Eliva Akinyemi, who appeared briefly at the liability hearing but advised the court that the respondent wanted to represent himself, and as the respondent confirmed this was the case, he represented himself at that hearing. At the penalty hearing on January 25, 2024, Ms. Akinyemi remained on the record.

[17] I adjourned the hearing to permit Ms. Akinyemi to get off the record. The respondent subsequently delivered a Notice of Intent to Act in Person, choosing to continue to represent himself.

B. Amendment to pleadings

[18] In its original factum, the College requested an order amending the title of proceedings to reflect another alias, the name “Abdullatif Alsoma,” used by the respondent in government records. The proposed amendment was dealt with at the penalty phase of the proceedings.

[19] The respondent acknowledged during oral submissions that he also went by this alias. He did not oppose the amendment. Under r. 26.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, an amendment to pleadings is mandatory unless there is prejudice to the adverse party which cannot be compensated for by costs or an adjournment.

[20] The College submits that the proposed amendment is in the interests of justice to allow the College to enforce the order. Given the number of aliases that the respondent uses, I agree. The respondent does not assert that there is prejudice, and I am satisfied that there is none.

[21] The title of proceeding is therefore amended as follows:

“LATIF ALSOMA, also known as ABDUL LATIF ALSOMA and as ABDUL LATIF and as ABDULLATIF ALSOMA.”

IV. Background

[22] The respondent has never been licensed to practice dentistry in Ontario.

[23] The respondent owns and manages a dental clinic at 2395 Cawthra Road in Mississauga named Alforat Dental Centre (the “Centre”).

[24] Section 3 of the Dentistry Act provides that dentistry is “the assessment of the physical condition of the oral-facial complex and the diagnosis, treatment and prevention of any disease, disorder or dysfunction of the oral-facial complex.”

[25] At the time the College filed its factum for the contempt hearing (based on the evidence of Dr. Lipiec), there were no dentists registered with the College to practice at Alforat Dental Centre. The College indicated that the Centre displays signage advertising that dentistry is provided at that place, as well as Facebook and Google advertisements which stated that the Centre provided dentistry. While the court took issue with the admissibility of the online Google information, I note that despite delivering a responding affidavit, the respondent did not challenge the assertion that there were no dentists registered with the College, nor did the respondent address the advertising.

[26] Section 27 of the Regulated Health Professions Act provides that only a “member” of a College may carry out statutorily defined controlled acts.

[27] Specific “controlled acts” in s. 27 of the Regulated Health Professions Act are reserved for members of the College. Only a person who is registered by the College is a “member.” In the result, a person who does not have a Certificate of Registration does not meet the definition of a “member” within the meaning of the Regulated Health Professions Act.

[28] Section 4 of the Dentistry Act defines those controlled acts which a member of the College is authorized to perform in the course of engaging in the practice of dentistry. The authorized acts include:

i. Communicating a diagnosis identifying a disease or disorder of the oral-facial complex as the cause of a person’s symptoms.

ii. Performing a procedure on tissue of the oral-facial complex below the dermis, below the surface of a mucous membrane or in or below the surfaces of the teeth, including the scaling of teeth.

iii. Fitting or dispensing a dental prosthesis, or an orthodontic or periodontal appliance or a device used inside the mouth to protect teeth from abnormal functioning.

[29] In June 2018, the College brought an application to enjoin the respondent from performing any controlled act within the meaning of the Regulated Health Professions Act, from using the title “doctor”, and from holding himself out as a person who is qualified to practice as a dentist.

[30] The respondent entered the Consent Order to resolve the application. In its factum, the College says the respondent had the benefit of counsel, which has never been challenged by the respondent.

[31] Justice Dietrich ordered the respondent to comply with s. 9 of the Dentistry Act and ss. 27 and 33 of the Regulated Health Professions Act. In the result, the respondent was prohibited from holding himself out as a person who is qualified to practice as a dentist, and from performing any controlled acts in relation to dentistry including:

a) performing procedures on tissues below the dermis, or below the surface of a mucus membrane, or in or below the surfaces of teeth, including the scaling of teeth;

b) administering substances by injection or inhalation;

c) communicating to individuals or their personal representatives a diagnosis identifying any disease or disorder as a cause of symptoms of the individual and circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis; and

d) dispensing any medication or drugs of any nature or kind.

[32] The College subsequently received a complaint from a patient, Jamila Karimova, regarding treatment she had received from the respondent. The College initiated an investigation, which included hiring private investigators who filed affidavits for the contempt proceedings.

[33] In my liability decision dated June 19, 2023, I found that the respondent was in contempt of the Consent Order, and had breached the Order by holding himself out as a person qualified to practice in Ontario as a dentist or in a specialty of dentistry, by using the title “doctor” or a variation or abbreviation in the course of providing or offering to provide healthcare to individuals in Ontario, and by performing “controlled acts” which make up the practice of dentistry.

[34] At paragraphs 24 to 28, I found that the respondent had never been licensed to practice dentistry in Ontario and had performed dental treatment on Ms. Karimova. Elsewhere in my endorsement, I referred to the unlicensed acts which included tightening screws, removal of dental crowns, and replacement of dental crowns, among other treatment provided by the respondent, all in breach of the Consent Order and the statutes.

V. The Issues

[35] The issues raised in this proceeding are:

i. What is the appropriate penalty for breach of the Consent Order and the statutes?

ii. Is the College entitled to substantial indemnity costs?

iii. Is the College entitled to reimbursement for investigation costs?

VI. Disposition

[36] Having found the respondent in contempt of the Consent Order and the statutes, for the reasons below, I make the following order:

I. That the respondent comply with s. 9 of the Dentistry Act and ss. 28 and 33 of the Regulated Health Professions Act, and, in particular, that the respondent be and is hereby permanently prohibited, unless or until such time as the respondent is permitted to practice dentistry in the province of Ontario or otherwise as legally permitted:

a. from using the title “dentist” or “dental surgeon” or a variation, abbreviation or equivalent in English or any other language, in Ontario;

b. from holding himself out as a person who is qualified to practice in Ontario as a dentist or in a speciality of dentistry;

c. from performing any controlled acts in Ontario in relation to dentistry, including but not limited to:

i. performing procedures on tissues below the dermis, below the surface of a mucus membrane, or in or below the surfaces of teeth, including the scaling of teeth;

ii. communicating a diagnosis identifying a disease or disorder of the oral-facial complex as the cause of a person’s symptoms; and

iii. fitting or dispensing a dental prosthesis, an orthodontic or periodontal appliance or a device used inside the mouth to protect teeth from abnormal functioning.

II. That the College shall be at liberty to contact the respondent and he shall co-operate with the College, its counsel and representatives to satisfy them that the terms of this Order are being complied with and fulfilled by him.

III. That the respondent shall be sentenced to a period of forty-five (45) days to be served by him starting on August 1, 2024, on the following conditions:

a. The respondent shall be confined to his home address, such address to be provided to counsel for the respondent within seven (7) days of this endorsement. The respondent’s home address is to be reflected in the order. The respondent shall be permitted to leave the premises only for the following reasons:

i. to work at an occupation that does not violate the Consent Order or any court orders and as approved by the court and counsel for the College;

ii. for necessary medical and dental treatment for himself or his family;

iii. for household shopping for no more than four hours per week; or

iv. for the purpose of fulfilling any other conditions of this sentence;

b. The respondent shall remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court;

c. The respondent shall appear before the court when required to do so;

d. The respondent shall notify the court and counsel for the College in advance of any proposed change of address, and shall promptly notify the court and counsel for the College of any change of employment;

e. The respondent shall complete 100 hours of community service, at a place and in a capacity as approved by the College, within six months of the end of the period of his house arrest;

f. A copy of the contempt order and sentencing order, or the decisions, shall be provided to the police facility closest to the respondent.

IV. The College shall be at liberty to contact the respondent during his sentence, which includes completion of his community service, and he shall co-operate with the College, its counsel, and representatives to satisfy them that these conditions are being complied with and fulfilled by him and that the terms of the Consent Order of Dietrich J. are being complied with. The respondent shall furnish, to the College and/or its lawyer or representative, the necessary contact information in the same timeframe as paragraph III(a), above.

V. If the respondent fails to comply with the terms of paragraph III above, a warrant may be issued for his arrest, and he will serve out the balance of his term, including any period of time for failure to complete his hours of community service (converted to days) in prison.

VI. The respondent shall pay a fine of $10,000 payable to the Provincial Treasurer, within six months of the date of this endorsement.

VII. The respondent shall comply with the Consent Order of Dietrich J., and the operative terms of that order may be incorporated in any final order in the nature of a permanent injunction and shall co-operate with the College to ensure the terms are complied with.

VIII. The respondent shall pay costs on substantial indemnity basis, fixed in the amount of $31,807.19, payable to the College within ninety (90) days of the date of this endorsement.

IX. The amendments to the title of proceedings are granted in accordance with paragraph 21 above.

VI. Analysis

A. The court’s jurisdiction to determine penalty for contempt

[37] Rule 60.11 of the Rules of Civil Procedure governs civil contempt proceedings. Under this rule, the court has broad remedial powers against a person found to be in contempt to uphold the authority of the court and to bring the administration of justice back into repute: Mendlowitz & Associates Inc. v. Chiang (2007), 31 C.B.R. (5th) 19 (Ont. S.C.), at para. 25. Pursuant to r. 60.11(5), the court may order that the contemnor:

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary.

[38] The College is seeking a term of incarceration, a monetary penalty, substantial indemnity costs, and additional terms, all addressed below. While the court has broad discretion to fashion a penalty, the jurisprudence has established that the purpose and guiding principles of civil contempt is primarily about coercion, designed to protect and enforce the rights of a private party: Business Development Bank of Canada v. Cavalon Inc., 2017 ONCA 663, 416 D.L.R. (4th) 269, at para. 77; Chiang (Re.), 2009 ONCA 3, 93 O.R. (3d) 483, at para. 11. Epstein J.A. noted in Boily v. Carleton Condominium Corp. 145, 2014 ONCA 574, 121 O.R. (3d) 670, at para. 79:

The purpose of a penalty for civil contempt is to enforce compliance with a court order and to ensure societal respect for the courts: Vidéotron ltée c. Industries Microlec produits électroniques inc., [1992] 2 S.C.R. 1065, at 1075. The remedy for civil contempt is designed not only to enforce the rights of a private party (See: Poje v. Attorney General (B.C.) at 517; Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534, 91 O.R. (3d) 1, at para. 37), but also to enforce the efficacy of the process of the court itself.

[39] The Supreme Court of Canada has noted that even a penalty for contempt of court used to enforce a private order still involves an element of public law, as the rule of law is dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To do so, courts have exercised the power to punish for contempt of court: see Vidéotron Ltée. at p. 1075; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, at p. 931.

[40] The Ontario Court of Appeal has consistently articulated in Castillo v. Xela Enterprises Ltd., 2024 ONCA 141, Boily, and Cavalon, the six factors that ought to be considered in determining the appropriate sentence in the context of a civil contempt, as follows:

(a) Proportionality of the sentence to the wrongdoing – a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: see also Chiang (Re.), at para. 86; Mercedes-Benz Financial v. Kovacevic (2009), 308 D.L.R. (4th) 562 (Ont. S.C.), at para. 12.

(b) Presence of aggravating and mitigating factors: Chiang (Re.), at paras. 50-51, 87-89; Sussex Group Ltd. v. Fangeat (2003), 42 C.P.C. (5th) 274 (Ont. S.C.), at para. 67.

(c) Deterrence and denunciation – the sentence should denounce unlawful conduct, promote a sense of responsibility in the contemnor, and deter the contemnor and others from defying court orders: see also Chiang (Re.), at para. 91; Fangeat, at para. 67.

(d) Similarity of sentence in like circumstances.

(e) Reasonableness of a fine or incarceration: see generally Chiang (Re.).

B. Factors relevant to sentencing

[41] The College argued strenuously for a term of imprisonment. The sentencing principles set out in the Criminal Code are applicable: Chiang (Re.), at para. 51; Duncan v. Buckles, 2021 ONSC 5567, at para. 44.

[42] The courts should consider alternatives to imprisonment: Criminal Code, ss. 718, 718.1 and 718.2; 180 University Management Inc. v. Khan, 2023 ONSC 1621, at para. 17.

[43] Where the court declares a person to be in contempt, the individual is given a chance to purge their contempt before the penalty phase of proceedings. As the purging of contempt is a mitigating factor, the onus to prove it is, like other mitigating factors, on the respondent on the balance of probabilities: see Chiang (Re.), at paras. 50-51. The case law establishes that where it is not possible for the contemnor to purge the contempt due to a situation of their own making, it is not a mitigating factor: Cavalon, at para. 86; Echostar Communications Corp. v. Rodgers, 2010 ONSC 2164, 97 C.P.C. (6th) 177, at para. 45. That is the case here. The Consent Order which he agreed to with the benefit of counsel was not a suggestion.

[44] In this case, the respondent’s commission of the prohibited acts crystalized the contempt, both the statute and the Consent Order were contravened, and the contempt cannot be purged.

[45] The respondent has not indicated any mitigating factors. He has shown no remorse. He has not admitted his breach. On the evidence before the court, the respondent treated Ms. Karimova for almost three years. As noted at paragraph 14 of my liability decision, Ms. Karimova deposed:

[T]he respondent provided dental treatment to her between January 2021 and March 2021 - on approximately ten occasions - the respondent tightened the screws that affixed the dental crown to her dental implants; the respondent removed the dental crown placed and placed a new dental crown; he took impressions of her teeth twice in order to obtain a new dental crown. Since these acts would be “controlled acts” under s. 27 of the Regulated Health Professions Act.

[46] In addition, with respect to the online information obtained by the investigator, I noted:

[T]he Google reviews are hearsay. However, I note that the respondent has responded to them, but said nothing about the truth of the content. He merely state that he recognizes the names as patients he booked appointments for to see a licenced dentist at the clinic. He fails to address the content directly, which he could not done to deny having provided any dental treatment to these individuals. His failure to do so is problematic, especially as it is not hearsay if the court accepts, which I am inclined to do, merely that the posts were made.

[47] The respondent filed no new information to clarify the record or provide an explanation. There were therefore repeated breaches of the Consent Order, and consequently, the Regulated Health Professions Act, even if the treatment was only with respect to one patient. The main purpose of the Regulated Health Professions Act is to regulate healthcare professions, and to ensure protection of the public: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, at para. 94; College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia v. Fischer, 2017 BCSC 1045, at para. 70.

[48] The complaint by Ms. Karimova to the College related to treatments she received while under the care and management of the respondent at the Centre between 2018 to 2020 for dental implants. The College argues that the respondent’s actions were deliberate and wilful, and notes that committing the act of dentistry is a positive act. The College submits that the respondent has breached the Consent Order and statutes, whose goals are aimed at preserving and maintaining public health.

[49] There were other serious breaches raised by the College involving recordkeeping. Dental treatments must be recorded contemporaneously by the dentist or practitioner performing them. I had concluded that Ms. Karimova’s dental charts were deficient. The College had pointed to the lack of records beyond 2019, though she was a patient until 2021, and the lack of any record related to her dental implant treatment in 2020 and 2021. The College says that a lack of charting or recordkeeping creates significant health concerns and risks with respect to dentistry treatment.

[50] In my view, the above are all aggravating factors, especially in the face of the respondent’s refusal to accept any responsibility or acknowledge fault. Despite never being licensed as a dentist and agreeing to a Consent Order, which is a contract, he blatantly continued to engage in the prohibited acts. The respondent provided specialized dental services to Ms. Karimova, namely, dental implant treatment. Implant dentistry “requires a specific base of knowledge and clinical skills for both the surgical and prosthetic phases of treatment.” In this case, there was evidence before the court that the respondent placed and removed a Crown and tightened screws.

[51] The range of sentences for civil contempt is unlimited and the same type of sentence available for a criminal offence are available, including imprisonment, fine or community service: Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612; Chiang (Re.), at para. 11.

[52] Serious violations of court orders – even if only one instance – can warrant a jail sentence: Cavalon, at para. 89. Although custodial sentences are rare, the court has ordered jail sentences ranging from five days to one year in cases of civil contempt: Ceridian Canada Ltd. v. Azeezodeen, 2014 ONSC 4162, 69 C.P.C. (7th) 29, at para. 24, aff’d 2014 ONCA 656, 69 C.P.C. (7th) 40. However, as the court has repeatedly stated, custodial sentences for civil contempt are rare and lengthy custodial sentences even rarer. Ordinarily incarceration is a sanction of last resort: Chiang (Re.), at para. 90; Cavalon, at para. 82. As noted by Marrocco J. (as he then was) in Royal College of Dental Surgeons of Ontario v. Ivanovski, at para. 13, a jail sentence is reasonable only where no other less restrictive sanction is appropriate. Ontario’s highest court has repeatedly remarked that implicit in the proper exercise of the contempt power is the principle of least intrusive means: Boily, at para. 180; St. Elizabeth Home Society v. Hamilton (City), 2008 ONCA 182, 89 O.R. (3d) 81, at para. 41.

[53] In determining whether incarceration is warranted to adequately vindicate the due administration of justice, the context in which the contempt occurs is an important consideration: Cavalon, at para. 89; Langston v. Landen, 2011 ONCA 242, at para. 1. One purpose of the Regulated Health Professions Act is to limit the healthcare activities that unlicensed persons are prohibited from performing to those specific activities associated with a controlled act in contravention of s. 27 of the Regulated Health Professions Act: King Optical Group Inc. v. College of Opticians (Ontario) (2001), 207 D.L.R. (4th) 72 (Ont. C.A.), at para. 32; College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265, 145 O.R. (3d) 561.

[54] The Consent Order was designed to further the purpose of the Regulated Health Professions Act – in other words, to protect the public from the risks of the unauthorized practice of dentistry. In this case the respondent consented to the Order. The respondent was fully aware of the terms of the Consent Order. His actions were deliberate and intentional. He takes no responsibility and shows no remorse.

[55] The College says the fact that the respondent was practicing in a more complex area of dentistry, which generally requires specialization, increased the risk to the public. The College submits that this gives rise to enhanced educational requirements for dentists to practice in this area and points to the “Educational Requirements & Professional Responsibilities for Implant Dentistry.” The Court of Appeal has noted as follows: “Section 27(2) does not delegate identification of the level of risk to be protected to the court. Rather, the Legislature signalled its intent as to the level of risk to be protected by listing the prohibited activities that constitute controlled acts”: King Optical Group, at para. 32.

[56] The evidence before the court that the respondent has identified himself as “Dr. Latif” to the public is uncontradicted and unchallenged. There were also serious concerns raised with respect to recordkeeping of patient information.

[57] The College relies on the following cases involving civil contempt arising from the unlicensed practice of a health profession in breach of an earlier injunction, which include some restriction of the contemnor’s liberty. In College of Dental Surgeons of British Columbia v. Wu, 2013 BCSC 1986, at para. 45, the court ordered three months’ incarceration for civil contempt. In College of Dental Surgeons of British Columbia v. Shapoval, 2014 BCSC 505, the court ordered 45 days’ incarceration for civil contempt: at para. 69. In College of Chiropractors of Ontario v. Dies, 2015 ONSC 2828, the court ordered the contemnor be subject to a conditional six-month sentence of house arrest for civil contempt: at para. 17, varied on other grounds, 2016 ONCA 2. In Azeezodeen, at para. 24, Belobaba J. discussed the common features of cases involving incarceration. He stated:

Each of the custodial cases have two things in common: one, the defendant’s breach, like here, was knowing and deliberate; and two, the length of the jail term was a function of the continuing nature of the contempt discounted by the degree of remorse or apology on the part of the defendant…. In my view, where the breach of a court order is knowing and deliberate, continues over several days, and the only response from the defendant is defiance without remorse, a jail sentence is appropriate.

[58] I agree that Ms. Karimova’s experience amply demonstrates the need for a forceful denunciation of the wilful breach of the Consent Order and the statutes. A severe penalty is required given the serious harm to the public and actual harm done to Ms. Karimova. Specific and general deterrence are the most important sentencing objectives in civil contempt cases: Cavalon, at para. 91.

[59] While a jail sentence may be supported by the case law, a conditional sentence of 45 days to be served by house arrest, 100 hours of community service and a $10,000 fine is a proportionate and measured sentence given the gravity of the respondent’s conduct as evidenced by actual (Ms. Karimova) and not merely presumed harm to the public.

[60] Any penalty/sentence should address the need to avoid repeated conduct by the respondent. The respondent continues to own and manage the dental practice. At the time these proceedings commenced, the Centre was advertising as providing dentistry although there were no dentists working there registered with the College. There is a real risk that others working at the respondent’s dental practice are also engaged in the unlicensed practice of dentistry. Ms. Karimova for example received treatment from a “Dr. Naim,” however the College indicates that the only “Naim” registered with the regulator was a dental lab technician.

[61] The facts in SHS Optical Ltd. are similar to the underlying facts in this case. In SHS Optical Ltd., an optician dispensed corrective lenses even though he was neither a physician nor an optometrist, in breach of the statutory requirements of the Regulated Health Professions Act. Unlike the matter before me, the liability and the penalty phases of the hearing were not bifurcated. Nonetheless, the Court of Appeal noted the finding of professional misconduct made by the Discipline Committee of the College of Opticians. In the case before me, the College identified the breaches, obtained a Consent Order, and obtained a declaration in their favour that the respondent is in contempt of the Consent Order. As noted by Watt J.A. in SHS Optical Ltd., at para. 106, “the underlying purpose of contempt orders is to compel obedience and punish disobedience”.

[62] In my view, the house arrest and attendant conditions serve to act as a deterrent and denunciatory message to the respondent and achieves the objectives of sentencing in a civil contempt motion, that is, to coerce compliance and restore the authority of the court. Indeed, there is also precedent for it in the context of an unlicensed health care practitioner: see Dies, at para. 17. I note that in Dies, Stewart J. imposed six months of house arrest and 150 hours of community service, a breach of which would result in the contemnor serving the balance of the sentence in custody. In this case, if the respondent fails to comply with the conditions of his house arrest, the warrant will issue. Under r. 60.11(5)(b) of the Rules of Civil Procedure, a contemnor may “be imprisoned if the person fails to comply with a term of the order”.

C. Imposition of a fine

[63] The rules contemplate that sanctions may include incarceration, fines, costs, and any order that appears to the court to be just.

[64] The College also seeks an order imposing a fine of $15,000 on the respondent comprising two elements: $5,000 to be paid to the College, and $10,000 to be paid to the College to be remitted to Ms. Karimova. The College submits that a fine in addition to a term of incarceration will serve both general and specific deterrence. That is to say, the $10,000 is to provide for specific deterrence in relation to the respondent’s conduct vis-à-vis Ms. Karimova and represents out-of-pocket costs for her dental treatment at the Centre. The College says the $5,000 fine will provide general deterrence as the respondent’s actions have put the public at risk. The College says that payment to the College, as the statutory body responsible for protecting the public from the unlicensed practice of dentistry, is appropriate.

[65] In SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, 94 O.R. (3d) 236, at para. 15, Laskin J.A. noted:

A person found in civil contempt may face any sanction available for the commission of a criminal offence. A fine is one of those sanctions: see s. 734.1 of the Criminal Code; Pro Swing Inc. v. Elta Golf Inc., 2006 SCC 52, [2006] 2 S.C.R. 612; and Chiang (Re.), 2009 ONCA 3.

[66] Clause (c) of r. 60.11(5) permits the court to impose a fine on a contemnor. The court has also required the disgorgement of profit by an unlicensed healthcare professional by imposing a fine: see SHS Optical Ltd., at paras. 100-108, where the court ordered a fine of $1,000,000. A monetary penalty must be set at a level so that the fine will “not be or appear to be a licence fee for further disobedience of a public health care statute”: SHS Optical Ltd., at para. 106.

[67] In this case, when asked about the fine, the respondent focused on whether he would be making a deal and expressed concerns about being viewed as a criminal.

[68] In my view, a monetary fine of $10,000, 45 days of house arrest, and community service meet the goals of both general and specific deterrence. The respondent himself noted that his business had been successful. There is no dispute that the respondent and the clinic he owns received money from Ms. Karimova. While I rejected the investigators’ evidence of the Google reviews of supposedly other patients, from the evidence before me it would stretch credulity for the court to accept that Ms. Karimova was the sole “patient” of the respondent. She was under his care for almost three years, coincidentally during and after the period that he agreed to the Consent Order. She is however the only patient of whom the court is aware who lodged a complaint. From the evidence, the respondent profited from his unlicensed practice to the tune of approximately $10,000, as he was not licensed to diagnose, place, or remove crowns, screws or any other of the controlled acts he performed contrary to the Consent Order and the statutes. The respondent should not be able to profit from his breach. I note that there are more cogent reasons for imposing a fine in that amount; it signals the court’s denunciation of the respondent’s flagrant and unrepentant actions.

[69] The College relies on a case from British Columbia, College of Physicians and Surgeons of British Columbia v. Khakh, 2019 BCSC 501, at para. 27 (e), in support of their position that a portion of the fine should be paid to the patient, Ms. Karimova. In Khakh, the British Columbia Supreme Court imposed a fine of $300 to be remitted to Ms. Khakh’s patient. The court noted that “Ms. Khakh should not profit from her wrongful conduct and [the patient] should be made whole, at least financially.”

[70] I do not agree that a portion of the fine should be paid to either the College or to Ms. Karimova. The Ontario Court of Appeal has consistently held that a fine imposed for civil contempt of court ought not to be payable to a party in the action but, rather, to the Provincial Treasurer: Susin v. Susin, 2014 ONCA 733, 2 E.T.R. (4th) 175, at para. 39; Sankar, at paras. 14-15. Contempt of court is an offence against the authority of the court and administration of justice, and it must not appear to have the function of a civil action in tort or breach of contract: Sankar, at para. 14; Susin, at para. 39; Dankiewicz v. Sullivan, 2022 ONSC 4324, at para. 22 (h)(vi).

[71] The decision of the Court of Appeal in Boily may be an outlier. In that case, the court reduced a fine of $100,000 imposed by the motion judge against individual directors of a condominium corporation to $7,500 each, to be paid to the respondent condominium corporation: at para. 136. In Susin, the Court of Appeal commented on the apparent contradiction with Boily, noting that the issue of to whom the fine would be paid was not raised in Boily. Rather, the issues concerned quantum, liability, and deterrence; the court order the directors were found in contempt for breaching had concerned the restoration of certain parts of the condominium’s property, and the penalty the Court of Appeal replaced had required the directors to personally bear the costs of this restoration. The court in Susin also noted that Epstein J.A., who spoke for the court in Boily, nonetheless reinforced the principles outlined in Sankar that civil contempt proceedings are not to have the appearance of a civil action for the recovery of damages: at para. 45. I see no basis to depart from the general principles set out in Susin and Sankar.

D. Other Terms Sought by the College

[72] The College also seeks a permanent injunction in the form of the Consent Order, or in the alternative, a continuation of the current interim injunction, prohibiting the respondent from performing acts of dentistry or holding himself out as qualified to practice dentistry unless he is duly registered with the College. In addition, the College seeks an order to ensure the respondent co-operates with the regulatory body to ensure the terms of the order are being complied with and fulfilled by him.

[73] As the Consent Order of Dietrich J. remains in place, the respondent is still bound by it. However, I am inclined to grant the order sought for a permanent in injunction in the form of the Consent Order and requiring the respondent’s cooperation.

VII. Costs

[74] Under r. 60.11(5) of the Rules of Civil Procedure, the court may impose “any other order that the judge considers necessary” and “such costs as are just”.

[75] The College seeks its costs in enforcing the Consent Order on a substantial indemnity basis as well as its investigatory costs of $14,283.73. I heard submissions from counsel for the College and the respondent at the conclusion of the penalty hearing on the matter of costs.

[76] For the reasons below, I am awarding the College their costs on a substantial indemnity basis fixed in the amount of $31,807.19, all inclusive, and payable by the respondent within 90 days of the date of this endorsement.

[77] The College filed an updated Costs Outline which shows legal fees, on a substantial indemnity scale, in the amount of $26,847.25 plus HST of $3,490.14 (a total of $30,337.39), plus disbursements in the amount of $1,469.80, for a total of $31,807.19. The College sought this amount for costs payable by the respondent within 30 days of the court’s order.

[78] The respondent indicated that he thought the costs were very fair and he did not challenge them. Having reviewed the costs, and after hearing submissions, this is an appropriate case to award substantial indemnity costs as a means of sanctioning the behaviour of the respondent. Counsel for the College submits that some of the work was delegated to an articling student and a law clerk. I see no duplication and the hours and rates appear fair, reasonable and proportionate for the bifurcated hearings and three attendances before me, one aborted to address the respondent’s representation by counsel.

[79] As for the scale of costs, this is an appropriate case to award elevated costs as a means of addressing the respondent’s contempt: Canadian National Railway Company v. Plain, 2013 ONSC 4806, at para. 27. In contempt proceedings, elevated costs may be an appropriate sanction. The case law in Ontario establishes that costs on a substantial indemnity basis are the ordinary course on a successful motion for a finding of civil contempt: Dies, at para. 21; Comeau v. 1140398 Ontario Ltd. et al., 2023 ONSC 5493, at para. 15. As noted by Goldstein J. in Astley v. Verdun, 2013 ONSC 6734, 118 O.R. (3d) 43, at paras. 52-57, aff’d 2014 ONCA 668, the case law in Ontario “lean to the view that costs should generally be awarded on a substantial indemnity basis in contempt matters” and “there is a rebuttable presumption that substantial indemnity costs are appropriate”. The court may also award costs on a substantial indemnity basis to the successful party where there have been flagrant and intentional breaches of court orders: Sankar, at para. 19.

[80] In this case, the respondent has flagrantly and intentionally breached the Consent Order, designed to protect the public. He himself underlined that his dental practice was successful. Yet, he failed to remedy the concerns raised in Dietrich J.’s Consent Order by obtaining a license. His contempt was wilful and intentional. He has put the public at risk. He takes no responsibility for his actions, instead blaming his competitors and the patient who lodged a complaint against him. He shows no sign of remorse, focusing instead on the reputational harm to him and his family after he was listed on the College’s website after the Consent Order was obtained.

[81] The amount sought by the College is fair, reasonable, and proportionate given the importance of the issues involved, and is in line with the costs awards for these types of proceedings. The College had several affidavits and a factum. There were three attendances before me, one aborted. Given the steps taken, as evidenced by the Costs Outline, the costs may be on the lower range of the scale. Even the respondent acknowledged that the costs were “low” and indicated they were “very fair.”

[82] I would therefore allow the amount being sought for the legal fees and the disbursements, which are also fair and reasonable.

A. Cost of investigation

[83] In their factum, the College set out its investigatory costs of $14,283.73. The College relies on two decisions from the Supreme Court of British Columbia, namely Wu and Khakh, where, in both instances, the court awarded “special costs” arising from investigation of a contemnor’s contempt.

[84] I would decline to order investigatory costs for two reasons. First, the matter was raised in the counsel’s introduction to his oral submissions but not actually addressed in oral submissions, and, in the result, the court did not hear from the respondent on his position. Second, the decisions are from British Columbia, and the excerpt that the court was directed to in both cases speak to “special costs.”

[85] In the Wu case, the court indicated that the special costs were inclusive of the investigative costs. In the Khakh case, the judge indicated that the contemnor had agreed to “an order of special costs, including the costs the College incurred in investigating the contemptuous conduct.” The nature of “special costs” has not been explained and the British Columbia Court of Appeal has indicated that there is a well-established practice in the province of awarding what is known as “special costs” to the successful party in a civil contempt proceeding: see North Vancouver (District) v. Sorrenti, 2004 BCCA 316, 242 D.L.R. (4th) 152, at para. 20.

[86] However, the cases suggest that “special costs” is akin to solicitor-client costs, that is, “substantial indemnity costs” using the nomenclature now employed in the Ontario Rules of Civil Procedure. It is not clear to the court the interrelationship between the elevated costs and the investigation costs or even the claim for disbursements, which are governed by the Tariffs in the Ontario Rules.

[87] If I am wrong, I am satisfied that the overall monetary penalties, costs, and other sanctions is proportionate in the circumstances.

VIII. Conclusion

[88] If there is any aspect of the final order which requires settling, counsel for the College and the respondent may ask to convene a virtual Chambers appointment. I am not inclined to dispense with the requirement that the respondent approve the draft order. The draft order filed by the College does not include the evidence that was before the court. In the recent decision of Drennan v. Drennan, 2024 ONSC 141, Myers J. explained in detail the process of approving orders. In doing so, he highlighted the requirement for reciting the evidence, that is, the affidavits, that was before the court in the draft order: first, noting that it is required by Form 59C; second, that it helps to promote the open court principle; and third, explaining that it permits appellate review of what evidence was or was not before the court.

A.P. Ramsay J. Released: June 11, 2024