Expectations of Regulatory Investigations

In MacDonald v College of Dental Hygienists of Ontario, 2022 ONSC 632 (CanLII), https://canlii.ca/t/jm3zz, a practitioner who was found to have engaged in a sexual relationship with a patient based on adverse credibility findings challenged the finding, primarily on the basis that the investigation was inadequate and unfair. The Court disagreed, finding that the investigation was appropriate. The Court noted the following in its reasons:

  1. It was not necessary for the regulator to obtain a sworn or signed statement from the key witness to facilitate the cross-examination of the witness at the resulting discipline hearing. A statement from the investigator outlining what the witness said during an interview with the investigator was sufficient. The practitioner could still cross-examine the witness on any inconsistent statements made by the witness.
  2. On appeal, the practitioner raised a concern that the evidence of the patient was more detailed than what was contained in the investigation interview statement, which in turn made it more difficult to cross-examine the patient. The Court said that it was incumbent on the practitioner to raise the issue at the hearing and to ask for additional time to prepare for the cross-examination, rather than raise the concern for the first time on appeal.
  3. The practitioner also expressed a concern that the investigation report was not filed as an exhibit at the hearing. The Court noted that the practitioner had not requested that it be filed as an exhibit and, in any event, had the full opportunity to cross-examine the investigator on the report.
  4. The regulator did not obtain the 911 tapes of a call made by the patient that may have been relevant to the sequence of events. The Court found that the regulator did not have an obligation to obtain those tapes and was not required to disclose evidence it did not have. If the practitioner believed that this third-party document was necessary for a fair hearing, they should have sought an order from the panel directing their production.

The practitioner proposed to testify on matters not put to the patient when the patient was cross-examined contrary to the rule in Browne v Dunn. The panel permitted the practitioner to engage in this type of questioning, but allowed the regulator to recall the patient to address the new areas. The patient refused to testify a second time and the regulator lost the opportunity to respond to the new evidence. The panel chose not to compel the patient to testify. The Court held that this caused no unfairness to the practitioner as the panel did not discount the practitioner’s evidence because of her failure to comply with the rule in Browne v Dunn. In addition, the practitioner had no right to cross-examine the patient a second time.

The practitioner also expressed concern that the panel had not taken all possible measures to ensure that the patient and their spouse did not observe each other’s evidence during the hearing. The hearing was held electronically. The Court held that reasonable measures were taken (e.g., an order directing the exclusion of witnesses) by the panel and there was no evidence of any breach of the order excluding witnesses from observing the hearing before they testified.

The Court upheld the credibility findings made by the hearing panel.

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