Court File and Parties

COURT FILE NO.: CV-22-00682992-000

DATE: 20240129

ONTARIO SUPERIOR COURT OF JUSTICE

RE: College of Dental Technologists of Ontario, Applicant

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Kemal Ahmed aka Kamal Ahmed operating as Dandy Dental Laboratory Services, Dandee Laboratory, Dandy Chrome, Xcel Dental Laboratory, Xcel Dental Arts Studio, Respondents

BEFORE: Justice J. S. Shin Doi

COUNSEL: Jordan Glick, for the Applicant

Self-Represented, Respondent

HEARD: December 1, 2023

ENDORSEMENT

[1] The Applicant seeks an order directing the Respondent to cease engaging in the practice of dental technology and holding himself out as qualified to do so when he is not a member of the College of Dental Technologists of Ontario.

[2] The Application is granted. The Respondent is ordered to comply with the provisions of the Dental Technology Act, 1991 and Regulated Health Professions Act, 1991 and not engage in the practice of dental technology or hold himself out as qualified to do so.

I. Background Facts

[3] The Applicant regulates dental technologists in Ontario. The Applicant was established pursuant to the Dental Technology Act, 1991 and Regulated Health Professions Act, 1991.

[4] The Respondent has worked in dental technology laboratories for more than 32 years. He completed a technician certificate at George Brown College. He was employed by a registered dental technologist (“RDT”) from 2014 to 2020 including six years for RDT Elia Ferreira.

[5] In October 2021, the Applicant was informed that an illegal dental technology lab was being operated at 202-1622 Eglinton Avenue West in Toronto. The informant was a RDT at a competing lab in the same building.

[6] The Applicant searched its records and noted that a dental technology practice was operating at that address from May 1995 to August 2020 under the supervision of a RDT Ferreira. Ms. Ferreira resigned as a RDT as of September 1, 2020 and no other RDT was registered as practising at that location.

[7] The Applicant contacted the Respondent who confirmed that no RDT worked at the lab or supervised his work. The Respondent explained that he did not require supervision as he was only completing partial work on dental prosthetics and devices for other dental laboratories. The Respondent subsequently advised that RDT Ferreira was on sick leave and did not have an anticipated return date.

[8] The Applicant sent a cease and desist letter to the Respondent but the Respondent did not reply. The Applicant obtained a search warrant and retained a private investigative firm to conduct an investigation on April 22, 2022. The investigators seized items including machinery used for fabrication of dental prosthetics, restorative and orthodontic devices, dental devises and invoices. The investigators also seized moulds, dental devices and various prescriptions, letters and receipts including work orders.

[9] The Applicant retained an expert report to review the evidence from the investigation. The expert concluded that there was a functioning dental laboratory engaged in the practice of dental technology. Accordingly, the Applicant seeks an order that the Respondent cease engaging in the practice of dental technology and holding himself out as qualified to do so.

II. Dental Technology and Jurisdiction

[10] The Dental Technology Act, 1991, ss. 3 and 7 provide,

Scope of practice

3 The practice of dental technology is the design, construction, repair or alteration of dental prosthetic, restorative and orthodontic devices. 1991, c. 23, s. 3.

Restricted titles

7 (1) No person other than a member shall use the title “dental technologist”, a variation or abbreviation or an equivalent in another language. 1991, c. 23, s. 7 (1).

Idem

(2) No person shall use the title “dental technician” or a variation or abbreviation of it. 1991, c. 23, s. 7 (2).

Representations of qualification, etc.

(3) No person other than a member shall hold himself or herself out as a person who is qualified to practise in Ontario as a dental technologist or in a specialty of dental technology. 1991, c. 23, s. 7 (3).

[11] The Superior Court of Justice has jurisdiction to grant an order directing a person to comply with the Dental Technology Act, 1991. Section 87 of the Health Professions Procedural Code, Schedule 2 provides as follows,

Court orders

87 The College may apply to the Superior Court of Justice for an order directing a person to comply with a provision of the health profession Act, this Code, the Regulated Health Professions Act, 1991, the regulations under those Acts or the by-laws made under clause 94(1) (1.2), (1.3) (s), (t), (t.1), (t.2), (v), (w) or (y).

[12] Accordingly, the Applicant may apply for an order to this court directing the Respondent to comply with the Dental Technology Act, 1991 and I have jurisdiction to grant such an order.

III. Should a Compliance Order be Granted?

[13] The Applicant has established that there has been a continued breach of the statute by the Respondent since 2019.

[14] The Respondent admitted that he did metal work and framework for clients. RDT Ferreira told the Respondent that she would find someone licensed to supervise the laboratory so that the Respondent could continue working there, but this never occurred. The Respondent argues that the framework is only one part of the construction of dental prosthetic devices and once he finished that work, he sent it out for approval by dental technologists/surgeons. Licensed professional would design the devices and the Respondent would trim the metal and cast the trim. Day-to-day oversight was not necessary because the Respondent had considerable expertise gained over many years and largely worked independently. There has never been a complaint about the Respondent’s work.

[15] The Respondent argues that the work can be sourced from overseas and there are no restrictions on that work or those devices. The Respondent also submits that the lab boxes with the name Dandy Dental were old materials that he had used in the past and that he did not hold himself out as a dental technologist. The Respondent complains that the investigators were disrespectful in the conduct of the investigation and the handling of the materials.

[16] The Respondent submits that the laboratory is no longer functioning, he has ceased all work in the laboratory, and he is not engaged in the practice of dental technology or holding himself out as qualified to do so. The Respondent wishes to comply with the law.

[17] The Applicant’s expert opines that the metal framework performed by the Respondent falls under the practice of dental technology defined as the “design, construction, repair or alteration of dental prosthetic, restorative and orthodontic devices” as set out in the Dental Technology Act, 1991. The Applicant submits that the Regulated Health Professions Act, 1991, s. 32 stipulates that no person shall design, construct, repair or alter a dental prosthetic, restorative or orthodontic device unless the technical aspects are supervised by a member of the College of Dental Technologists of Ontario or the Royal College of Dental Surgeons of Ontario. The Applicant further submits its Laboratory Supervision Standards, s. 4.2 which provides that “to ensure that each laboratory is supervised regularly and consistently, an RDT has to be present during its operating hours.” Hence, any review or supervision of the Respondent’s work outside of the laboratory does not meet the requirements under the legislation. It is clear that the Respondent has breached the Dental Technology Act, 1991 and should be ordered to comply.

[18] The Applicant argues that it is not required to prove that there was harm caused by the Respondent engaging in the unlawful activity or that the Respondent is not competently able to perform the activity. The Applicant relies on the College of Opticians of Ontario v. City Optical Inc.[2009] OJ No 2200, in which the court held at para 55 that it is not necessary that the College of Opticians of Ontario show proof of actual harm to the public, as it is no defence that “a person who is not lawfully authorized to perform a controlled act is as equally competent or as capable as a member of a college who is lawfully authorized to do so.” I accept the Applicant’s argument that actual harm is not a necessary consideration as to whether to grant an order for compliance.

[19] The final consideration is whether there are exceptional circumstances to refuse the order sought by the Applicant (College of Physicians and Surgeons, 2018 ONSC 481 at para 42). The evidence does not indicate exceptional circumstances. The Respondent did make compelling arguments about his unique circumstances, but the crux of his argument was that the framing work that he did should not fall under the practice of dental technology and that the work did not require on-site supervision. I am satisfied that the Applicant effectively refuted that argument with the expert report and has clearly articulated the supervision standards.

III. Conclusion

[20] In conclusion, I grant the Application. I order the Respondent to comply with the provisions of the Dental Technology Act, 1991 and Regulated Health Professions Act, 1991 and not engage in the practice of dental technology or hold himself out as qualified to do so.

[21] I do not award costs of this Application to the Applicant because the Respondent has explained his unique circumstances, and this is a novel and important case for the Applicant. The Respondent has ceased performing any work that may be considered the practice of dental technology, the laboratory is no longer operating, and the Respondent has committed not to perform the work. The Respondent was earnest, forthright, and co-operative, and should not be penalized.

JUSTICE J. S. SHIN DOI

Released: January 29, 2024