Remediation in Disputed Cases

Complaints’ screening committees frequently direct that the registrant participate in education and remediation. Registrants who dispute the accuracy of the complainant’s recitation of events sometimes perceive such remediation options as amounting to a finding against them. In yet another case the Court has affirmed that remediation can be directed even where the facts are disputed: Kumer v. Royal College of Dental Surgeons of Ontario, 2022 ONSC 3090 (CanLII), https://canlii.ca/t/jpf3b.

In that case the registrant abandoned a wisdom teeth extraction mid-procedure because a sedated client was not tolerating it. The client complained, primarily about the lack of informed consent, asserting that they believed they would be “put under”. The registrant provided detailed information suggesting that they and their staff had had numerous discussions with the client who had given informed consent to a sedation approach.

The Court upheld as reasonable the direction that the registrant participate in remediation with a focus on the principles of informed consent. While different inferences could be made from all of the available information, the Court held it was not unreasonable for the screening and reviewing bodies to infer that there remained some ambiguity in the client’s mind as to the nature of the sedation and anaesthesia: “There was no credibility finding regarding that conversation. At most, the ICRC [screening committee] engaged in a limited weighing of the facts, which the ICRC was entitled to do ….” The Court also noted that the screening committee made the undisputed observation that the registrant could have tested the effectiveness of the sedation before making significant incisions.

Further, the Court found that the screening committee’s reference to the benefit of one-on-one communications with the registrant during the consent process was not inconsistent with the regulator’s guidance that some of the informed consent steps could be delegated to others. The Court also found that the screening committee was able to rely on the presence of a concurrent similar complaint as supporting a remedial direction.

Courts allow regulators to apply broad criteria when assessing whether a remedial direction would help serve the public interest. Those considerations do not require a finding of disputed facts against the registrant so long as there is some basis to conclude that a remedial direction would help protect the public in the future.

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