McGuire v. Royal College of Dental Surgeons (Ont.), (1991) 44 O.A.C. 11 (DC)

• Judge: Gray, Weiler and Davidson, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 13, 1991
• Jurisdiction: Ontario
• Citations: (1991), 44 O.A.C. 11 (DC)

McGuire v. College of Dental Surgeons (1991), 44 O.A.C. 11 (DC)

MLB headnote and full text

Dr. Joseph McGuire (appellant) v. Royal College of Dental Surgeons of Ontario (respondent)

(No. 594/90)

Indexed As: McGuire v. Royal College of Dental Surgeons (Ont.)

Ontario Divisional Court

Gray, Weiler and Davidson, JJ.

February 13, 1991.

Summary:

A Discipline Committee of the Royal College of Dental Surgeons found a dentist guilty of several charges of professional misconduct respecting his sub-periosteal implant procedure on a patient with severe periosteal problems. He appealed on the grounds that the Committee's conclusions were unsupported by the evidence and that there was a reasonable apprehension of bias on the part of the Chairman.

The Ontario Divisional Court allowed the appeal, quashed the convictions and refused to order a rehearing on the ground that too much time had passed since the original events. The court found various of the charges unsupported by the evidence and that there was a reasonable apprehension of bias on the part of the Chairman.

Administrative Law - Topic 547

Hearing and decision - Decisions of the tribunal - Reasons for decision - When required - The Ontario Divisional Court stated that "when a decision-maker makes a finding of credibility, he ought to state the reasons for that conclusion" - See paragraphs 75 to 76.

Administrative Law - Topic 549

Hearing and decision - Decisions of the tribunal - Reasons for decision - Sufficiency of - The Ontario Divisional Court stated "a Board's decision deserves deference where it has furnished adequate reasons to a court from which the court can satisfactorily determine the basis on which the Board arrived at its decision and the extent to which it brought its own expertise to bear. A recital that the evidence of the parties and their arguments has been considered, without any statement as to specifically what evidence the Board accepted or rejected, is but a rote assertion, deserving of little weight." - See paragraph 53.

Administrative Law - Topic 608

Hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in deciding - The chairman of a disciplinary committee hearing charges of professional misconduct against a dentist respecting his sub-peritoneal implant procedure was privy to a prior investigation and adverse report respecting the procedure - The dentist's counsel waived objection, but the report was not produced until after appeal - The Committee's guilty verdict was returned in only 17 minutes - The Ontario Divisional Court quashed the convictions and held that there was a reasonable apprehension of the chairman's bias from his prior involvement and quick decision, there was not informed waiver of the bias and the report should have been produced at the hearing - See paragraphs 80 to 107.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - [See Administrative Law - Topic 608].

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal - Bias - Waiver - [See Administrative Law - Topic 608].

Administrative Law - Topic 3214

Judicial review - General - Remedies - In 1991 the Ontario Divisional Court found that disciplinary proceedings against a dentist for events occurring in 1982-84 were faulty - The court acquitted the dentist and refused to order a new hearing because of the lapse of time - See paragraphs 105 to 106.

Courts - Topic 583

Judges - Duties - Reasons for decisions - Credibility of witnesses - [See Administrative Law - Topic 547].

Evidence - Topic 4611

Witnesses - Evidence - General principles - Leading questions - [See Medicine - Topic 2101].

Medicine - Topic 2101

Discipline for professional misconduct - Evidence - General - The Ontario Divisional Court noted that under s. 12(6) of the Health Disciplines Act, R.S.O. 1980, c. 196, only evidence admissible in civil court was admissible on a disciplinary hearing - The court held that putting leading questions by counsel to his own witness was improper, notwithstanding the failure of opposing counsel to object - See paragraphs 66 to 76.

Medicine - Topic 2106

Discipline for professional misconduct - Evidence - Expert knowledge of tribunal - The Ontario Divisional Court stated that "as a general rule, the members of a particular profession are, by reason of their special knowledge, training and skill, in the best position to judge the conduct of their peers." - However, "a board cannot take account of its own expertise to reach a conclusion about which there is no evidence before it." - Lastly, "courts should not be overly critical of the language employed by such bodies and seize on a few words as being destructive of the entire disciplinary process." - See paragraphs 9 to 18 - The court held that a chairman erred in relying on his own expertise, where there was no expert evidence - See paragraph 47.

Medicine - Topic 2112

Discipline for professional misconduct - Evidence - Witnesses - Credibility - [See Administrative Law - Topic 547].

Medicine - Topic 2124

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting disciplinary findings - [See Administrative Law - Topic 549].

Medicine - Topic 2124

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting disciplinary findings - The Ontario Divisional Court stated that in a review of disciplinary findings under s. 13 of the Health Disciplines Act the appeal court has all the powers of the committee to assess and weigh the evidence, but it has no general warrant to retry and the review is not a trial de novo - See paragraphs 4 to 8.

Medicine - Topic 2124

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting disciplinary findings - The Ontario Divisional Court stated that "as a general rule, the members of a particular profession are, by reason of their special knowledge, training and skill, in the best position to judge the conduct of their peers." - However, "a board cannot take account of its own expertise to reach a conclusion about which there is no evidence before it." - Lastly, "courts should not be overly critical of the language employed by such bodies and seize on a few words as being destructive of the entire disciplinary process." - See paragraphs 9 to 18.

Medicine - Topic 7245

Dentists - Discipline - Professional misconduct - What constitutes - Sub-peritoneal implants - The Ontario Divisional Court quashed convictions on several charges respecting a dentist's sub-peritoneal implant procedure, where the disciplinary committee erred in assessing the evidence and there was a reasonable apprehension of bias on the part of the Chairman.

Practice - Topic 8803

Appeals - General principles - Whether trial judge must give reasons for rejecting evidence or for findings of credibility of witnesses - [See Administrative Law - Topic 547].

Professional Occupations - Topic 54

General - Discipline - Review - General - [See Administrative Law - Topic 549].

Professional Occupations - Topic 54

General - Discipline - Review - General - [See third Medicine - Topic 2124].

Cases Noticed:

Re Feingold and The Discipline Committee of the College of Optometrists of Ontario (1981), 33 O.R.(2d) 169, appld. [para. 6].

Reddall v. College of Nurses of Ontario (1983), 1 Admin. L.R. 278, appld. [para. 7].

Re Singh and College of Nurses of Ontario (1981), 33 O.R.(2d) 92, appld. [paras. 8, 13].

Re Milstein and Ontario College of Pharmacy et al. (1976), 13 O.R.(2d) 700, appld. [para. 10].

Del Core v. Ontario College of Pharmacists (1985), 10 O.A.C. 57; 51 O.R.(2d) 1, consd. [para. 14].

Central Broadcasting Co. Ltd. v. Canada Labour Relations Board et al., [1977] 2 S.C.R. 112; 9 N.R. 345; 67 D.L.R.(3d) 538, appld. [para. 18].

Whitehouse and Whitehouse v. Sun Oil Co. Ltd., [1982] 6 W.W.R. 289; 40 A.R. 380, appld. [para. 53].

Calgary Grain Co. v. Nordness (1917), 35 D.L.R. 794, appld. [para. 73].

Moor v. Moor, [1954] 1 W.L.R. 927 (C.A.), appld. [para. 73].

R. v. Chapman (1958), 121 C.C.C. 353, appld. [para. 73].

Barath and Bacsek (1975), 11 O.R.(2d) 531, appld. [para. 76].

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, appld. [para. 94].

Barry and Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301; 93 N.R. 1; 96 A.R. 241, appld. [para. 95].

Tomko v. N.S. Labour Relations Board et al. (1974), 9 N.S.R.(2d) 277 (N.S.C.A.), affd. [1977] 1 S.C.R. 112; 7 N.R. 317 (Fr.); 10 N.R. 35 (Eng.); 14 N.S.R.(2d) 191; 11 A.P.R. 191; 69 D.L.R.(3d) 250, dist. [para. 98].

Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R.(2d) 447; 76 D.L.R.(3d) 38, appld. [para. 105].

Re Coates and Registrar of Motor Vehicle Dealers and Salesmen (Ont.) (1988), 28 O.A.C. 307; 65 O.R.(2d) 526, appld. [para. 108].

Re Sawyer and Ontario Racing Commission (1979), 24 O.R.(2d) 673, appld. [para. 109].

Statutes Noticed:

Health Disciplines Act, R.S.O. 1980, c. 196, sect. 12(1), sect. 12(2), sect. 12(3) [para. 91]; sect. 12(6) [paras. 11, 71]; sect. 13 [para. 4].

Health Disciplines Act Regulations (Ont.), sect. 38 [para. 60].

Authors and Works Noticed:

Phipson on Evidence (12th Ed.), art. 1566 [para. 72].

Counsel:

Allan M. Rock, Q.C., and Janice Younker, for the appellant;

Irwin W. Fefergrad and L. Leslie Dizgun, for the respondent.

This case was heard on January 17, 18 and 21, 1991, at Toronto, Ontario, before Gray, Weiler and Davidson, JJ., of the Ontario Divisional Court.

On February 13, 1991, Gray, J., delivered the following judgment for the Divisional Court: