r v. National Dental Examining Board of Canada, 2017 ONSC 3947

CITATION: Alizadeh v. National Dental Examining Board of Canada, 2017 ONSC 3947 DIVISIONAL COURT FILE NO.: 462/16 DATE: 20170627 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: DR. KAMYAR Alizadeh, Applicant - AND - the national dental examining bOard of Canada, Respondent BEFORE: Swinton, Nordheimer and Sproat JJ.

COUNSEL: Gary Srebrolow and Laina Smith, for the Applicant Monica Song, for the Respondent HEARD at Toronto: June 26, 2017 ENDORSEMENT Swinton J.: [1] The applicant applied for judicial review of a decision of the Appeals Committee of the respondent National DentalExamining Board of Canada dated April 5, 2016 that dismissed his appeal from his third and unsuccessful attempt to pass theAssessment of Clinical Skills Examination on December 5-6, 2015. At the end of the hearing, the application was dismissed with reasonsto follow.

These are the reasons for the decision. [2] Essentially, the applicant argues that the Appeals Committee denied him procedural fairness because it provided him withinadequate reasons for dismissing his appeal, and it failed to accord him a second oral hearing where he could make submissions inperson. He also argues that he was denied an opportunity to adequately examine the teeth used in his clinical assessment, and theAppeals Committee failed to treat him fairly and equitably.

He takes issue with one of the criteria for assessment – roughness of thetooth surface – as it is subjective and ambiguous. [3] In my view, there was no denial of procedural fairness. The Appeals Committee provided the applicant with adequatereasons. The Appeals Committee, made up of three dentists, had before it the written submissions of the applicant that raised hisparticular concerns about his evaluation on two elements of the clinical assessment.

While the reasons are brief, the Committeeexplained that it considered his specific concerns and confirmed the earlier assessment except with respect to the finding of a sharp cusp. [4] As the Divisional Court said in Danshevar v. National Dental Examining Board of Canada, [2002] O.J. No. 2487, reasonsneed to provide an explanation, and “[a] brief answer to the major complaints made by the applicant may be appropriate” (at para. 18). The Appeals Committee was asked to check the measurements relating to two crown preparations. It did so and confirmed the results.

Most of the Appeals Committee’s findings dealt with measurement, about which little more can be said. Its reasons provide an adequateexplanation in the present context. [5] While the Appeals Committee did not address some of the issues raised in this application for judicial review, that is notsurprising, because those issues were not raised in the applicant’s written submissions to the Appeals Committee - for example, therestrictions on his ability to view and measure his graded work.

These concerns may have been raised in correspondence subsequent tothe Appeals Committee’s decision in April 2016, but there was no denial of procedural fairness by the Appeals Committee. It addressedthe issues raised before it in its decision, and that decision is final, in accordance with the respondent’s by-laws.

The suggestion that theensuing correspondence kept the appeals process “open” is untenable. [6] While the applicant argues that he should have been granted a further oral hearing, the respondent’s appeal processcontemplates an oral hearing only if the Appeals Committee concludes that there have been procedural problems that may have affectedthe initial assessment.

The applicant did not raise any issue with respect to the procedure of the assessment in his initial writtensubmissions, and accordingly, the Appeals Committee did not address this issue. [7] The applicant had no legitimate expectation of an oral hearing, given the appeal process adopted by the respondent and setout in its by-laws. Moreover, there was no denial of procedural fairness because the Appeals Committee held a written hearing. This isnot a case like Khan v.

University of Ottawa (1997), (ON CA), 34 O.R. (3d) 535 (C.A.), where an oral hearing wasrequired because issues of credibility had to be determined (see para. 21). There are no issues here that warranted an oral hearing.

[ 8 ] The applicant’s clinical skills have been evaluated by an expert group of examiners and then further evaluated by the experts on the Appeals Committee. While the applicant takes issue with the forms of measurement and the constraints on his examination of the teeth he worked on, there is no basis for this Court to interfere with the clinical evaluation. The decision of the respondent is entitled to deference, both in the development of the standards to be met in the clinical assessment and the evaluation process.

Similarly, the decision of the Appeals Committee is entitled to deference in the assessment of clinical skills in accordance with those standards and the process. [ 9 ] The applicant has not demonstrated any denial of procedural fairness. He had an adequate opportunity to inspect his own work and to make written submissions to the Appeals Committee. I am satisfied from their reasons that they considered his submissions before they confirmed the earlier assessment. [ 10 ] Accordingly, there is no basis for judicial intervention, and the application for judicial review is dismissed.

Costs to the respondent are fixed at $4,000.00 all inclusive, an amount agreed upon by the parties. ___________________________ Swinton J. I agree ____________________________ Nordheimer J. I agree ____________________________ Sproat J. Date: June 27, 2017