It is trite law that the burden of proof in discipline matters is on the regulator. However, this concept can be pushed too far. In Park v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 8088 (CanLII), https://canlii.ca/t/jl911 the practitioner’s registration was revoked on the basis of ungovernability because the practitioner repeatedly breached two undertakings given to the regulator restricting the performance of implant procedures. The Court had little difficulty in finding that this conduct supported revocation.
In arguing the appeal, the practitioner raised a number of circumstances in which the hearing panel had in some way reversed the burden of proof. In each case the Court disagreed.
a) The hearing panel did not have to locate similar cases to support the finding that revocation was “within the range”. The Court said:
On its face, revocation is a fit sentence because it addresses the concern that Dr. Park cannot be counted on to abide by further conditions or limitations imposed on his ability to practice dentistry. In the absence of a clear line of cases showing that the Discipline Committee has not imposed revocation in similar cases, I do not find that the Discipline Committee made an error in principle by failing to refer to specific similar cases in its decision.
c) The hearing panel did not fail to address the practitioner’s evidence in making its findings of fact. Rather, it did not accept the practitioner’s evidence. It was open to the hearing panel to conclude that there was no evidence that the practitioner misunderstood the obligations in the undertaking when it was signed. Actual understanding of the terms of the undertaking by the practitioner did not need to be proved by the regulator.
d) The statement by the hearing panel that the practitioner would have to demonstrate an ability to return to practice safely upon re-instatement was a reference to the re-instatement process, where the onus was actually reversed, and was not a reference to the burden of proof applied at the current hearing.
While the concept that the burden of proving allegations at discipline is on the regulator is a firm and strong one, it is not to be applied inappropriately.