Getting into a fight with the RCDSO can be expensive. Like really expensive.
In Bacchus v. Royal College of Dental Surgeons of Ontario, the Ontario Divisional Court upheld findings of professional misconduct against an Ontario dentist, the revocation of his licence and, perhaps most strikingly, an order requiring him to pay $451,461.61 in costs to the RCDSO.
Then he lost the appeal and was ordered to pay another $15,000. For dentists, the Bacchus case is an important reminder about professional discipline, documentation, litigation strategy and the enormous financial consequences that can accompany an RCDSO prosecution.
Five Notices of Hearing and a 17-Day Trial
This wasn’t a small disciplinary case.
The RCDSO proceeding involved 5 separate Notices of Hearing, multiple witnesses and a hearing extending over 17 days. The allegations covered several very different areas of professional conduct, including sexual relationships with individuals who were found to have been patients, informed consent, opioid prescribing and insurance claims.
The Discipline Committee ultimately made numerous findings of professional misconduct. Among other things, it found that Dr. Bacchus had sexual relationships with two individuals while they were patients. Given those factual findings, revocation of his certificate of registration was mandatory. The Committee also made findings concerning failures to properly obtain and document informed consent, breaches of the RCDSO’s opioid-prescribing guidelines and directions to staff concerning false insurance claims.
Dr. Bacchus appealed, writing that “[t]he Committee’s decisions on both the merits and sanctions… are legally and procedurally flawed, in almost every regard.”
An Appeal Is Not a Second Trial
One of the most useful lessons from Bacchus has nothing specifically to do with dentistry. n appeal is not a do-over. You don’t simply go to Divisional Court, reargue all of the evidence and ask three judges to decide which witnesses they would have believed.
Findings of fact—including credibility findings—receive significant appellate deference. The dentist needed to identify actual reviewable errors, such as a palpable and overriding factual error or an error of law.
The Court rejected the attempt to effectively re-litigate the case. As the Court emphasized, an appellate court does not immerse itself in the entire record and decide what findings it would have made if hearing the case from scratch.
That’s an important consideration when deciding how aggressively to defend an RCDSO discipline matter and, later, whether there is a genuine basis for appeal.
No Record? That Can Become Evidence
There is another practical lesson every dentist should notice. The Court upheld findings concerning informed consent where the absence of documentation supported an inference that informed consent had not been obtained. That’s significant.
Dentists frequently tell us: “But I always explain that to my patients.” Maybe.
But years later, when the patient says otherwise, and the clinical record says nothing, the dentist has a serious evidentiary problem. Bacchus is another reminder that good clinical records aren’t paperwork for paperwork’s sake. They are evidence.
The Court similarly upheld the Discipline Committee’s reliance on the RCDSO’s opioid-prescribing guidelines, supported by expert evidence, in determining the applicable professional standard.
And Then There Was the $451,461 Bill
The most eye-catching part of the decision may be costs. The Discipline Committee ordered Dr. Bacchus to pay $451,461.61, approximately two-thirds of the College’s actual costs and expenses.
The Court refused to interfere. The size of the bill reflected the complexity and length of the case, but the Committee also considered how the proceeding was conducted. The Court noted that numerous objections and the failure to make reasonable concessions contributed to the length of the hearing.
Even an argument that such an enormous award could create an access-to-justice problem did not save him. If a dentist wants inability to pay considered, evidence should be put before the Discipline Committee when costs are being decided—not raised for the first time on appeal.
The message from Bacchus is simple: an RCDSO discipline proceeding can threaten far more than your licence. It can threaten your reputation, your practice and hundreds of thousands of dollars. When the College comes calling, strategy matters from Day One.
