Executive Summary: Key Legal and Evidentiary Issues

• Dr. Kevin Bacchus appealed findings of professional misconduct and the penalties imposed by the Discipline Committee of the Royal College of Dental Surgeons of Ontario.
• Central issues included whether two complainants — MR and JSH — were patients of Dr. Bacchus at the time he engaged in sexual relationships with them.
• Failure to document informed consent on seven occasions in 2016–2017 formed a separate ground of misconduct.
• Repeated breaches of the College's Opioid Guidelines, including prescribing narcotics without documenting justification or considering non-opioid alternatives, were also established.
• Directing staff to submit false insurance claims, including under a colleague's name, constituted an additional finding of professional misconduct.
• Procedural fairness and allegations of reasonable apprehension of bias were raised but rejected by the Divisional Court.

Facts of the case

Dr. Kevin Bacchus, a dentist licensed by the Royal College of Dental Surgeons of Ontario (the "College"), faced multiple allegations of professional misconduct before the College's Discipline Committee. The Committee issued its Merits Decision on June 6, 2024, finding Dr. Bacchus guilty of professional misconduct, and its Penalty Decision on February 12, 2025, revoking his certificate of registration and ordering him to pay costs of $451,461.61, among other orders. Dr. Bacchus, self-represented, appealed both decisions to the Ontario Superior Court of Justice, Divisional Court, arguing that the Committee's decisions were "legally and procedurally flawed, in almost every regard."

The misconduct findings related to five broad areas: (1) engaging in a sexual relationship with MR while she was his patient, (2) engaging in a sexual relationship with JSH while she was his patient, (3) failing to document informed consent from patients on seven occasions in 2016–2017, (4) breaching the College's Opioid Guidelines in respect of six patients, and (5) directing staff to submit false insurance claims, including under a colleague's name. Dr. Bacchus had also been convicted in related criminal proceedings of aggravated assault and assault with a weapon in R. v. Bacchus (2022 ONSC 5432; affirmed 2024 ONCA 43).

Policy terms and regulatory provisions at issue

Several regulatory provisions and professional guidelines were central to the case. Under sections 51(5) and 51(5.2) of the Health Professions Procedural Code (the "Code"), Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c.18, the Committee was required to reprimand Dr. Bacchus and revoke his certificate of registration upon finding that he had engaged in sexual relationships with patients. Section 49 of the Code further provided that nothing inadmissible in a civil court proceeding could be admitted at a hearing, and that findings must be based exclusively on evidence admitted before the panel — a provision that became relevant when Dr. Bacchus sought to tender a statutory declaration from JSH denying any sexual relationship.

The College's Opioid Guidelines, promulgated in 2015 in response to the opioid crisis, required dentists to prescribe only the lowest possible dosage for the shortest possible duration, to document justification for opioid prescriptions, and to document consideration of non-opioid alternatives before prescribing. The College's expert, Dr. Gizzarelli, testified that the prescription limits in the Guidelines operate as an upper limit, not a default quantity. The College's Recordkeeping Guidelines in force during 2016–2017 also required that informed consent be documented, a requirement Dr. Bacchus had previously been cautioned about.

Reasoning and analysis

The Divisional Court, per Corbett J. (with Faieta J. and LeMay J. agreeing), applied an appellate standard of review: correctness for questions of law and palpable and overriding error for questions of fact, in accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, and Housen v. Nikolaisen, 2002 SCC 33.

On the question of whether MR was a patient at the time of the sexual relationship in 2003, the court upheld the Committee's finding. The Committee had preferred MR's evidence over Dr. Bacchus's, noting that Dr. Bacchus provided free dental services to his employees as standard practice, that multiple employees confirmed this, and that the first ABELDENT electronic record entry for MR — dated June 2005 — was described as a "recall examination," implying prior services had been rendered. The court also rejected the argument that the 2018 Patient Criteria Regulation should have been applied to define "patient" status in 2003, finding that even if it applied, the criteria were largely declaratory of the pre-existing common law position and the outcome would have been the same.

Regarding JSH, the court upheld the Committee's refusal to admit JSH's statutory declaration denying any sexual relationship. The court found that the declaration would not have been admissible in a civil proceeding under section 49 of the Code, that Dr. Bacchus himself had not sought to summons JSH as a witness, and that the declaration was inconsistent with the preponderance of evidence before the Committee — including testimony from JSH's former husband, JKH, and another witness, KP, both of whom recounted admissions made by Dr. Bacchus regarding the relationship. The court also found that prior criminal proceedings did not authoritatively resolve the question, as the criminal court had expressly declined to make a finding on whether sexual activity had occurred on November 24, 2017.

The court found no error in the Committee's findings on informed consent, accepting that the Recordkeeping Guidelines in force during 2016–2017 required documented consent and that Dr. Bacchus had prior cautions on this point. On opioid prescribing, the court rejected Dr. Bacchus's argument that the Guidelines were merely suggestions, affirming that professional guidelines are a recognized source of professional standards. The court also upheld the findings on false insurance claims, which were supported by testimony from three former employees. The bias argument was dismissed as entirely without merit, with the court noting that an adverse decision alone cannot establish bias.

Ruling and overall outcome

The Divisional Court dismissed Dr. Bacchus's appeal in its entirety. Revocation of his certificate of registration was found to be mandatory under the Code given the sexual misconduct findings, and the court held that even if revocation had not been mandatory, it was fully warranted on the overall facts. The Royal College of Dental Surgeons of Ontario was the successful party, with a total of $466,461.61 ordered against Dr. Bacchus: $451,461.61 in costs awarded by the Discipline Committee, representing two-thirds of the College's actual costs and expenses, and a further $15,000 in appeal costs ordered by the Divisional Court, payable within 30 days.