Interim Order Stayed

Courts tend to be quite deferential to regulators when reviewing interim orders made to protect the public pending discipline. However, such an order was set aside in Rohringer v. Royal College of Dental Surgeons of Ontario, 2017 ONSC 6656. Dr. Rohringer acknowledged performing a sexual act in front of under-aged women while in Florida. He was charged with a crime. The regulator subsequently learned of the charges and conducted an investigation. While it appeared that Dr. Rohringer’s colleagues were quite supportive of him, some employees identified some lesser concerns: (e.g., inappropriate sexual jokes, kissing an employee). There was also an old complaint of an inappropriate sexual relationship with another employee that had been dealt with informally. Dr. Rohringer had practised for 32 years without discipline.

The panel for the regulator suspended Dr. Rohringer’s registration pending investigation and discipline expressing concern that he lacked control and judgment to practise safely.

After the initial decision was made, Dr. Rohringer submitted an expert report expressing the opinion that he did not pose a risk to patients. Dr. Rohringer also offered to be subject to a term, condition and limitation that he have a registered dental hygienist present for all patient interactions. The panel did not vary its order. No reasons were given for this decision.

The Court concluded that the panel had not been fair when it failed to give reasons on the request to vary its earlier decision. The Court was also concerned that some of the language used by the panel in the initial decision suggested that the wrong criteria may have been applied. The panel used some language suggesting that a mere risk or possibility of harm was sufficient, rather than consistently stating that an order should be made only if there was a likelihood of harm to patients. The Court also said that there needed to be evidence (not speculation) to support the making of an interim order. The Court also felt that the old complaint, referred to by the panel, was irrelevant. The Court was concerned that the panel had not indicated that it had considered a less restrictive order (i.e., monitoring by another regulated professional) rather than a suspension.

It is too early to tell whether this decision reflects the particular facts of this case or the start of a trend for courts to offer less deference to interim orders made by regulators.

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