Executive Summary: Key Legal and Evidentiary Issues

• Judicial review focused on whether the Health Professions Appeal and Review Board (HPARB) and the Inquiries, Complaints and Reports Committee (ICRC) reasonably concluded that video cameras in the dental office were operational and recording patient interactions.

• The sufficiency of patient consent and adequacy of signage regarding video surveillance in the dental office was central to the dispute.

• The applicant argued there was no factual basis for ordering a Specified Continuing Education or Remediation Program (SCERP) since the cameras were allegedly not operational.

• The court assessed the reasonableness of the HPARB and ICRC decisions, applying the Vavilov standard for substantive review and the Baker factors for procedural fairness.

• The adequacy of the College’s investigation and the appropriateness of the remedial measures ordered were examined.

• Ultimately, the court upheld the HPARB’s decision and awarded costs to the College, finding no error in the process or outcome.

Facts of the case

Dr. Thomas Glen Drake, a dentist, became the subject of a complaint to the College of Physicians and Surgeons of Ontario after Darrin Mueller, who provided IT support and was also a patient and tenant, reported concerns about video cameras installed in Dr. Drake’s dental offices. Dr. Drake had contracted Mueller in July 2019 to replace older cameras with a new system comprising 14 cameras. Following a dispute over rent arrears and the installation of the cameras, Mueller was threatened with eviction, which the applicant claimed motivated the complaint.

In September or October 2019, Mueller installed four new cameras capable of recording both video and audio in treatment areas, and another in the employee lounge. By January 2020, during an inspection by College investigators, the new cameras were no longer present, and only one old camera remained in the waiting room.

The regulatory proceedings and policy terms

The Inquiries, Complaints and Reports Committee (ICRC) of the College investigated the complaint, focusing on patient privacy and the use of video cameras in the dental office. The ICRC ordered Dr. Drake to complete a Specified Continuing Education or Remediation Program (SCERP) on informed consent, particularly regarding patient privacy and the use of video cameras, and to undergo 24 months of practice monitoring.

Central to the investigation was whether Dr. Drake had obtained adequate patient consent for video surveillance and whether signage in the office met regulatory guidance. Dr. Drake asserted that the cameras were not operational, being only in a testing phase, and that appropriate signage and consent forms were in place. He produced a consent form indicating patients were informed of video surveillance. However, the ICRC found that neither the signage nor the consent forms met the requirements outlined in the College’s guidance document, “Advice on the use of video cameras.” The consent form merely stated, “I know that your office has video and audio recording devices,” without further detail.

Arguments before the court

Dr. Drake sought judicial review of the HPARB’s decision, arguing that both the ICRC and HPARB had erred in finding that the cameras were operational and recording, and that there was no factual basis for imposing the SCERP. He maintained that since the cameras were not operational, there was no issue of patient consent or need to update signage and forms. He also challenged the adequacy of the College’s investigation.

The HPARB and the court, however, found that the decisions did not misapprehend the facts. Both regulatory bodies acknowledged that the cameras were not operational at the time of inspection but reasonably inferred from the evidence that Dr. Drake intended to use similar consent forms and signage once new cameras were installed. The court noted that the ICRC’s concerns about patient privacy and the adequacy of consent were justified, and that remedial education was appropriate.

The court’s ruling and outcome

The Divisional Court applied the reasonableness standard from Vavilov and procedural fairness principles from Baker. It found that the HPARB’s decision to uphold the ICRC’s order for a SCERP and 24 months of monitoring was reasonable and supported by the record. The court deferred to the regulatory bodies’ expertise and remedial choices, emphasizing the importance of protecting patient privacy in healthcare settings.

The application for judicial review was dismissed. No costs were awarded to HPARB, but the College was granted an all-inclusive costs award of $10,000. The successful party in this matter was the Royal College of Dental Surgeons of Ontario, which received the monetary award as determined by the court.