Hills v. Nova Scotia (Provincial Dental Board)

Hills v. Nova Scotia (Provincial Dental Board) Court Court of Appeal Date 2009-02-05 Citation 2009 NSCA 13 Docket CA 296588 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Murphy, John D. (Honourable Justice); Saunders, Jamie W. S. (Honourable Justice) (CA) Document Type Decision Relations Library Sheet - Hills v. Nova Scotia (Provincial Dental Board) - 2009 NSCA 13 - 2009-02-05 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Hills v. Nova Scotia (Provincial Dental Board), 2009 NSCA 13 Date: 20090205 Docket: CA 296588 Registry: Halifax Between: Dr. Wayne Hills Appellant v. Provincial Dental Board of Nova Scotia Respondent Judges: Roscoe and Saunders JJ.A., and Murphy J. (ex officio) Appeal Heard: December 16, 2008, in Halifax, Nova Scotia Held: Appeal dismissed with costs per reasons for judgment of Murphy J.; Roscoe and Saunders JJ.A. concurring. Counsel: W. Dale Dunlop, for the appellant Michael J. Wood, Q.C., for the respondent Reasons for judgment: INTRODUCTION [1] Dr. Wayne Hills appeals a Dental Board Discipline Committee’s decision that he engaged in unprofessional conduct by providing treatment which did not meet a reasonable standard of skill, knowledge and judgement. The appellant also asks this court to set aside the direction that he pay costs arising from the Discipline Committee’s hearing. FACTS [2] Dr. Hills has been a dentist for approximately 30 years, and during 2003 he owned and practiced at the Main Street Dental Clinic in Wolfville. Between March and May of that year, he performed extensive procedures, including replacement of fillings, placement of a bridge, root canal treatment and crown installation for a new patient, Ms. Kim Campbell. [3] Approximately a year after receiving treatment, Ms. Campbell lodged a written complaint about Dr. Hills’ work with the Registrar of the Provincial Dental Board of Nova Scotia (the “Board”), which regulates the practice of dentistry in this province pursuant to the Dental Act, S.N.S. 1992 (the “Act”). Ms. Campbell had visited two other dentists between the time she received treatment from Dr. Hills and the filing of her complaint. She had a tooth extracted by Dr. Ross soon after receiving services from the Appellant, and was examined by Dr. Nette, another dentist practicing in Wolfville. Dr. Nette, who was a member of the Board at that time, advised Ms. Campbell that she had received substandard treatment and could follow the Board’s complaint process. [4] In accordance with the procedure prescribed by the Discipline Regulations (N.S. Reg. 3/2002, as amended) made under the Act, the Registrar of the Board investigated the complaint and referred the matter to the Board’s Complaints Committee, which instructed him to issue a Notice of Charge against Dr. Hills. That notice, dated June 25, 2005, brought the complaint to the Board’s Discipline Committee for consideration of allegations that Dr. Hills engaged in unprofessional conduct, as defined in s. 4(1)(c) and (d) of the Regulations, by failing to diagnose and treat his patient with the requisite skill, knowledge or judgement, and engaged in conduct detrimental to her best interest, with respect to the following treatment: (i) replacement of amalgam restorations (fillings) with composite resin; (ii) placement of a three‑unit bridge; (iii) installation of a crown; and (iv) completion of a root canal. [5] The Discipline Committee conducted a five‑day hearing during October‑November 2007, receiving evidence from Ms. Campbell, Dr. Hills, Dr. Ross and Dr. Nette, as well as expert evidence called by the Registrar from Doctors Yliheikkila and Hannigan, and on Dr. Hills’ behalf from Dr. Bannerman and Dr. Jensen. [6] The hearing addressed the first three aspects of the complaint; the Registrar did not provide evidence with respect to the allegation concerning root canal treatment. [7] At the hearing the appellant maintained that the services he provided to Ms. Campbell were a less expensive alternative to a recommended treatment which she could not afford, and he testified that because the alternate plan was followed, the patient was expected to obtain a bite plane, which she did not do. Dr. Hills’ chart notes did not address that issue, and his evidence was not confirmed by Ms. Campbell, whose testimony indicated limited recollection of discussions concerning alternate treatment, follow‑up visits or obtaining a bite plane. [8] During December 2007, the Discipline Committee issued a written decision (the “Conduct Decision”) which ruled that Dr. Hills’ conduct had been unprofessional with respect to allegations (i) replacement of the amalgam restoration with composite resin and (ii) the placement of the three‑unit bridge; the Committee determined that the Board did not establish substandard dentistry with respect to the installation of the crown, and dismissed the charges with respect to that allegation and the root canal. [9] On the morning of the second last day of the hearing the appellant gave evidence, and testimony was also provided by Dr. Ross, the oral surgeon who extracted one of Ms. Campbell’s teeth and made a cursory examination of her mouth a short time after she received treatment from Dr. Hills. When the record of the Discipline Committee proceedings was being prepared for this appeal, it was discovered that all of Dr. Ross’ testimony and part of the direct examination of Dr. Hills could not be transcribed; as a result, the chair of that Committee was unable to provide a complete certified transcript for this appeal. [10] After a penalty hearing the Discipline Committee, in a second written decision dated April 30, 2008 (the “Sanctions Decision”), imposed practice restrictions requiring participation in an education program and monitoring, to which Dr. Hills agreed, and also directed him to pay costs in the amount of $60,000.00. [11] Pursuant to s.38 of the Act, Dr. Hills appeals the Discipline Committee’s decision that his conduct was unprofessional, and he asks this court to overturn the costs award. ISSUES [12] The parties have identified the following five issues, which were addressed in their facta and oral submissions: I. Does the failure of the Chair of the Committee to provide a complete certified copy of the transcript deprive this Honourable Court of the ability to properly determine this matter? II. Did the investigative process violate the duty of procedural fairness? III. Do the two written decisions meet the sufficiency of reasons test? IV. Does the decision contain misstatements of facts or mischaracterization of the evidence such that it amounts to an error of law? V. Was the cost award excessive? [13] Determination of Issues III, IV and V requires application of the appropriate standard of review during examination of the Discipline Committee’s decisions. Issues I and II, which I will address first, do not arise from decisions made by that Committee; they are therefore not subject to a standard of review analysis, which will be postponed until Issues III, IV and V are addressed. Issue I - Consequence of An Incomplete Transcript [14] The certification of the record for this appeal contains an acknowledgement that the transcript of proceedings before the Discipline Committee is incomplete because, due to a technical malfunction, evidence recorded during the morning of November 29th could not be deciphered. [15] Dr. Hills maintains that the absence of a complete transcript is fatal to this court’s ability to fairly determine the appeal so that, if the Conduct Decision is not reversed based on another ground of appeal, a new hearing should be ordered because the appellant has been deprived of the ability to demonstrate that the decision did not accord with the evidence adduced. [16] The appellant’s position is that ss.20 and 38 of the Act require the respondent to provide a transcript of the entire proceeding before the Discipline Committee. Those provisions state: Duties of Registrar 20 The Registrar shall (g) maintain records of the Board’s proceedings; Appeal to Court of Appeal 38... (3) The record on appeal from the findings of the Discipline Committee shall consist of a copy of the transcript of the proceedings, the decision of the Committee and the evidence before the Committee certified by the Chair of the Committee. [17] The respondent refers to several authorities which suggest that missing all or part of a transcript does not automatically result in a new hearing. In R. v. Hayes, [1989] 1 S.C.R. 44, the Supreme Court of Canada ruled that a new criminal trial need not be ordered unless there is a serious possibility the missing portion of the transcript would disclose an error, or that the omission deprived the appellant of a ground of appeal. That principle has been applied in the administrative law context in Desjardins v. Canada (National Parole Board) (1989), 29 F.T.R. 38 (Fed. T.D.), and Cameron v. National Parole Board, 1993CarswellBC 2556 (S.C.); [1993] B.C.W.L.D. 2291. In both cases, despite a mandatory requirement that the Parole Board keep a voice recording of the hearing, the courts concluded that the Board’s proceedings were not automatically nullified or invalidated when complete transcripts were not available. The Supreme Court of Canada, in Canadian Union of Public Employees, Local 301 v. Montreal, [1997] 1 S.C.R. 793 (C.U.P.E.), endorsed, in the administrative law context, the test set out in Hayes (supra) that a transcript gap need only result in a new trial if there is a serious possibility of error in the missing portion, or that the omission deprived the appellant of a ground of appeal. In C.U.P.E., the Supreme Court rejected an argument that the absence of a transcript violated the fundamental principle of natural justice that “no man be condemned unheard,” and approved the Federal Court of Appeal’s conclusion in Kandiah v. Minister of Employment and Immigration, [1992] F.C.J. No. 321, that the principles of natural justice would not be infringed and the reviewing court should not quash an administrative order if, despite the absence of a transcript, the decision facing the reviewing court could be made on the basis of evidence established through other means. [18] The Supreme Court stated in C.U.P.E.: 77. Even in cases where the statute creates a right to a recording of the hearing, courts have found that the applicant must show a “serious possibility” of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review: Cameron v. Canada (National Parole Board), [1993] B.C.J. No. 1630 (S.C.) which follows Desjardins v. Canada (National Parole Bd.) (1989), 29 F.T.R. 38 (Fed. T.D.). These decisions are compatible with the test developed by this Court in the criminal context in R. v. Hayes, [1989] 1 S.C.R. 44. As I stated for the majority, at p. 48: A new trial need not be ordered for every gap in a transcript. As a general rule, there must be a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal. After endorsing the test that had been set out in earlier cases such as Hayes and Cameron, Justice L’Heureux‑Dube further explains the rationale of the test at ¶80 and 81 of C.U.P.E.: 80. ...In cases where the record is incomplete, the denial of justice allegedly arises from the inadequacy of the information upon which a reviewing court bases its decision. As a consequence, an appellant may be denied his or her grounds of appeal or review. The rules enunciated in these decisions prevent this unfortunate result. They also avoid the unnecessary encumbrance of administrative proceedings and needless repetition of a fact‑finding inquiry long after the events in question have passed. 81. In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice. Where the statute does mandate a recording, however, natural justice may require a transcript. As such a recording need not be perfect to ensure the fairness of the proceedings, defects or gaps in the transcript must be shown to raise a “serious possibility” of the denial of a ground of appeal or review before a new hearing will be ordered. These principles ensure the fairness of the administrative decision‑making process while recognizing the need for flexibility in applying these concepts in the administrative context. [underlining added] [19] When there is no requirement to produce a certified copy of the transcript, the foregoing authorities establish that, even when there is an obligation to record the proceedings, a remedy will be available only if an appellant demonstrates a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprives the appellant of a ground of appeal. [20] Dr. Hills contends that s.38(3) of the Dental Act distinguishes this case from those authorities, and the court should impose a lesser burden on him because there is a mandatory requirement for a certified transcript. I do not agree. Natural justice is not compromised by the absence of a certified transcript unless the information available on appeal or review is deficient. If the record is adequate to allow resolution of the matter despite gaps that may exist, or if there are other means to make a record sufficiently complete to permit the appeal court to fairly and properly render a decision, the principles of natural justice will not be violated. [21] In Kenney v. Jodrey, [1988] N.S.J. No. 245 (C.A.), this court determined that where much of the evidence relating to the crucial issue had been transcribed, the appellant did not establish prejudice by not having available a transcript of every word spoken by each witness. Although the transcript omits part of the evidence in this case, the record contains some information concerning the nature and effect of Dr. Ross’ missing testimony. His evidence was summarized in the appellant’s counsel’s closing submission, which forms part of the record, and the Discipline Committee’s decision references and briefly describes the testimony. [22] The appellant has not demonstrated that alternate means to communicate the missing testimony to this court have been pursued. No request has been made to file affidavits by the appellant or Dr. Ross to provide information concerning what is absent from the record, and no application has been made to present notes from anyone in attendance, although the factum filed on Dr. Hills’ behalf acknowledges that the Board’s counsel (not the same named solicitor who examined witnesses and made submissions) kept “fairly detailed notes.” The appellant’s obligation to inform the court concerning the nature of missing evidence was recognized in Roy v. Assumption Mutual Life Insurance Company, 2003 NBCA 21, where the New Brunswick Court of Appeal stated in ¶ 20 and 21: 20. ...the appellants must satisfy this court, by means at their disposal, of the merit of their grounds of appeal against the trial judge’s findings of fact by showing that these findings are clearly wrong, given the evidence before him. Since the transcript of the evidence does not exist, the appellants must find ways to inform this court of all of the evidence adduced at trial in order to satisfy the court of the merits of their grounds of appeal. After all, the appellants were present at their trial and know what evidence was put before the court. 21. Nothing filed before this court in this matter would allow this court to determine if there is any merit to the grounds of appeal or if a new trial is required to ensure that justice is done between the parties. [23] Dr. Hills has not established that the available record contains insufficient information for this court to dispose of the issues raised by his appeal, nor has he shown that the substance of the missing evidence cannot be captured by means other than with a transcript. He has not shown that there is a “serious possibility” of error in the missing portion of the transcript or that he has been deprived of a basis for appeal. The first ground of appeal does not succeed because the Appellant has not demonstrated that the absence of a complete certified copy of the transcript renders this court unable to properly determine the matter. Issue II - Duty of Investigative Fairness [24] Dr. Hills claims that his right to procedural fairness was violated while his complaint was in the Board’s investigative process, and that he has been prejudiced by the failure of the Board’s Registrar to conduct an impartial investigation. He claims that if the complaint had been handled fairly at the investigative stage, it would not have progressed to the Discipline Committee. [25] The appellant acknowledges that the duty of procedural fairness will only be violated during the investigative stage of a discipline proceeding if the professional under investigation is prejudiced by the flawed investigation. The submissions in support of the investigative prejudice claim may be summarized as follows: (1) the complaint was generated by Dr. Nette, who, without being fully aware of Ms. Campbell’s treatment background, reached a peremptory conclusion that the appellant had performed substandard work and encouraged Ms. Campbell to complain to the Board; (2) the investigation was not impartial because it was influenced by Dr. Nette, a member of the Dental Board and Dr. Hills’ direct competitor who expected to perform remedial work for Ms. Campbell; (3) the Registrar and Dr. Nette proceeded with the investigation in violation of the Canadian Dental Association Code of Ethics protocol, which encourages consultation before making disparaging comments on the procedures or qualifications of a colleague; and (4) the Registrar’s disregard for proper investigative procedures arising from a complaint on a matter of competency led to invocation of a discipline hearing process which is more suitable to address matters of integrity or pernicious conduct. [26] Procedural fairness during the investigation of a complaint must be considered in the context of the Discipline Regulations, which prescribe an investigative procedure including the following comprehensive process: 1. Upon receipt of a complaint, the Registrar shall conduct an investigation (Section 5(2)). 2. Following the investigation, the Registrar shall refer the matter to the Complaints Committee (section 5(3)). 3. Upon receipt of a complaint, the Chair of the Complaints Committee shall appoint a panel to consider the matter consisting of the Chair, two dentists and one member of the public (Section 6(7)). 4. A dentist may be represented by legal counsel in all proceedings before the Complaints Committee (Section 7). 5. The Complaints Committee shall provide a copy of the complaint to a dentist prior to making any decision (Section 8). 6. A dentist against whom a complaint is made is entitled to meet with the Complaints Committee prior to any decision being made (Section 9(1)). 7. The Complaints Committee has the authority to make a number of dispositions with respect to a complaint including referral, in whole or in part, to the Discipline Committee (Section 11(1)). 8. The Complaints Committee is required to issue a written decision, a copy of which must be provided to the dentist (Section 12). 9. If the Complaints Committee refers a matter to the Discipline Committee, it will instruct the Registrar to draft a Notice of Charge (Section 13(1)). 10. A decision of the Complaints Committee may be appealed to the Discipline Committee (Section 14). [27] Very little information was provided at the discipline hearing concerning what had transpired during the investigation stage. The record does not disclose any failure by the Registrar or the Complaints Committee to adhere to the prescribed investigation process. This allegation of bias was squarely before the Complaints Committee. Dr. Nette was subjected to a vigorous and far‑ranging cross‑examination by Dr. Hills’ counsel. The testimony at the discipline hearing does not establish the appellant’s contention that Dr. Nette played an aggressive role initiating and pursuing the complaint, or that the investigation was biased or incomplete. [28] The record does not suggest that particulars of allegations were withheld from Dr. Hills at any stage of the proceeding, nor does it indicate that he elected to make a submission to the Complaints Committee to express concern about the conduct of the investigation prior to referral of the complaint to the Discipline Committee, as he was entitled to do under Regulation 9(1). [29] The appellant has not established that the Conduct Decision, which is the subject of this appeal, was premised upon any violation of procedural fairness at the investigation stage. [30] The extent to which a duty to act fairly when conduct is being investigated and referred to a formal hearing is not well defined by authority. The case law spectrum ranges from suggesting there may be no such obligation (Jackman v. Newfoundland Dental Board, [1989] N.J. No. 104 (S.C.T.D.); Hawrish v. Cundall, [1989] S.J. No. 339, to imposing a duty not to prejudice a professional under investigation (McRudden v. College of Dental Surgeons, 2007 BCSC 381). [31] Even if a duty to act fairly arose during the investigation of Dr. Hills’ conduct by the Registrar or the Complaints Committee, there is no basis to conclude that he suffered prejudice. Nothing in the record suggests that he was not informed of the allegations against him or that he was denied an opportunity to make submissions. Dr. Hills did not seek a judicial review of the Complaints Committee’s decision. The Discipline Committee, whose decision is being appealed to this court, did not have an evidentiary basis or mandate to examine the investigative process. It is not this court’s role in Dr. Hills’ appeal of the Conduct Decision to scrutinize the investigative process followed by the Registrar and the Complaints Committee. Issues III, IV and V - Standard of Review [32] During the hearing of this appeal the parties agreed that this court should apply a reasonableness standard when reviewing the Discipline Committee’s conclusions. That standard is prescribed by recent authority. The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, (Dunsmuir) outlines the framework for statutory review analysis, which has been summarized by Fichaud, J.A. in Pelley v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 46. (Fichaud, J. A. dissented in the result, but his summary of the statutory review analysis was accepted by the majority.) Justice Fichaud begins at ¶ 58 in Pelley: The first step is to determine whether the existing jurisprudence has satisfactorily determined the degree of deference on the issue (Dunsmuir, ¶ 62, 54, 57). In this case it is not necessary to move past the first step in the Dunsmuir analysis, as this court has determined in Nova Scotia (Provincial Dental Board) v. Creager, 2005 NSCA 9 (Creager) that Discipline Committee decisions addressing issues such as III, IV and V, which relate to matters within the scope of the Board’s expertise as a professional tribunal, warrant deference and should be reviewed based on a standard of reasonableness. (¶ 17) [33] This court concluded at ¶ 20 in Creager: 20. ... the standard of review should be as follows: (a) For matters related to the selection, articulation and application of the standard of care for unprofessional conduct, the standard of review should be reasonableness... (b) For matters related to the quantum of costs, I would apply the reasonableness standard of review. [34] Since the Supreme Court’s decision in Dunsmuir, this court has reaffirmed that deference is owed to a professional tribunal which exercises its discretion, interprets its enabling statute, and makes findings of mixed law and fact based on evidence presented. In Lienaux v. Nova Scotia Barristers’ Society, 2009 NSCA 11, such determinations, made when assessing professional conduct under the Legal Profession Act S.N.S. 2004, c.28, were found to attract a reasonableness standard. The Dental Act and Regulations and the Legal Profession Act both provide a comprehensive set of rules with the force of law which govern professional activity, require self regulation, and include a comprehensive internal disciplinary mechanism. The constitution and authority of the hearing panel under the Legal Profession Act and the Discipline Committee pursuant to the Dental Act are similar, and the two statutes provide similar scope for review on appeal. The matters to be determined in Lienaux involved considerations similar to those raised by Issues III, IV and V in this case. Nothing suggests this court should apply a different standard of review and degree of deference in the context of Dr. Hills’ appeal than was followed in Lienaux. Issue III - Sufficiency of Reasons Issue IV - Misstatements of Fact, Mischaracterization of Evidence in the Reasons Constitute an Error of Law [35] When addressing the Conduct Decision, the parties combined their submissions respecting these two issues, and as they overlap, they will be considered together in this section of these reasons. Dr. Hills’ Position [36] The appellant contends that the reasons issued by the Discipline Committee do not provide adequate explanation for the Conduct Decision, and fall short of the standard required to fulfil the tribunal’s duty of fairness. He claims that decision is deficient in several respects including: (a) failing to discuss at any length the evidence of any party; (b) failure to make findings of fact; (c) failure to make any reference to important testimony and/or exhibits; (d) failure to identify why one person’s testimony was favoured over another’s; (e) incorporating into the decision the Committee’s own views based on their experience; (f) failure to provide a reason for at least one charge that makes any practical sense. [37] The appellant also maintains that the Sanctions Decision did not provide an adequate explanation for the costs award. The sufficiency of reasons provided for that decision will be considered when the quantum of the award is addressed as part of Issue #V. Applicable Principles and Authorities [38] Regulation 28(1) under the Dental Act prescribes what must be included in the Committee’s written decision: 28(1) Within 30 days of a hearing, the Discipline Committee shall file its written decision with the Registrar, including (a) its findings of fact; (b) its conclusions respecting the disposition of the charge or charges; and (c) any sanctions imposed. In Creager (supra), this court determined that the Discipline Committee’s failure to state reasons for making a significant cost award against a dentist constitutes an error in law. The requirement to provide reasons can be no less stringent when the Committee makes a determination respecting professional conduct, which in this case also led to a substantial costs award. As noted at ¶ 104 in Creager, referencing Baker v. Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 (S.C.C.), at ¶ 37, and R.D.R. Construction Ltd. v. Nova Scotia (Rent Review Commission) (1982), 55 N.S.R. (2d) 71 (N.S.T.D.), where there is a statutory right of appeal, the duty of fairness implies a responsibility to provide written reasons. Otherwise, the right of appeal is pointless. [39] Reasons provided by the Discipline Committee must be sufficient to enable this court to effectively execute the reasonableness standard of review. The Supreme Court described this standard in Law Society of New Brunswick v. Ryan, 2003 SCC 20 at ¶ 55 and 56: 55. A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, supra at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation, even if this explanation is not one that the reviewing court finds compelling (see Southam, supra at para. 79). 56. This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole. [40] In Dunsmuir, although the Supreme Court combined the former categories of reasonableness, it did not substantially change the test, which it described as follows: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [41] Courts recognize that when members of discipline tribunals are not lawyers, their decisions should not be subject to excessive scrutiny. The Ontario Court of Appeal expressed this view in Del Core v. College of Pharmacists (Ontario) (1985), 51 O.R. (2d) 1 (C.A.) at ¶ 15: 15 ...It was never intended that the decisions of bodies such as this should be subject to such painstaking scrutiny as the Divisional Court has recorded here. The court must be cognizant of the fact that not only are the members of [the] disciplinary body such as the College of Pharmacists experts in the field of their profession and thus knowledgeable of the problems of the profession, they are lay persons so far as the law is concerned. The courts have consistently held that the reasons given by discipline committees of self‑governing bodies must be the reasons of the committees and cannot be written by counsel or professional staff.... This being the case, it follows that courts should not be overly critical of the language employed by such bodies and seize on a few words as being destructive of the entire disciplinary process. [42] In Trotter v. College of Nurses (Ontario), [1991] O.J. No. 348, the Ontario Divisional Court indicated that tribunals do not have to give reasons which refer to all evidence: 16. It has been held that the reasons of a tribunal which is made up of persons who were not legally trained, ought not to be the subject of “painstaking scrutiny”. It is not fatal to a decision that specific mention is not made of certain evidence; nor is it fatal if specific reasons are not given before its rejection.... 17 It is apparent from the reasons of the Committee, taken as a whole, that it did give consideration to the credibility of witnesses for and against the appellant. It has not been shown that they misapprehended the testimony of witnesses on important issues or that they failed to consider material parts of the evidence. [43] The Divisional Court considered how a discipline tribunal addressed evidence and submissions in College of Physicians & Surgeons (Ontario) v. Mohan (1993), 16 O.R. (3d) 62 (Div. Ct.), and made the following comments: 32. It was the appellant’s contention that the Committee had failed to appreciate the theory of the defence, ... 33. While it is true that in its reasons, the Committee did not specifically spell out the defence theory, there is no principle of law which would require this. Leaving that aside, having read the final submissions of counsel to the Committee, I am not at all satisfied that any such theory was advanced. As I perceived the submissions, they were simply designed to cast doubt on the credit of each of the complainants. A global theory, of the kind suggested to us, was not advanced. 34. In any event, a fair reading of the reasons of the Committee demonstrates that the members were very much alive to the emotional problems attendant to each of the complainants, as well as any reasons each might have to testify falsely against Dr. Mohan. Having considered these matters, the Committee nevertheless chose to accept their evidence over that of Dr. Mohan. That was their prerogative and I see no reason to interfere with it. 35. As for the errors allegedly made by the Committee in its approach to and assessment of matters of credibility, the appellant pointed to a number of contradictions and/or implausibilities in the evidence of the respective complainants, urging that the Committee had misapprehended or failed to take into account their significance. 36. Again, I am satisfied that the Committee was perfectly aware of all of the alleged contradictions and implausibilities associated with the evidence of each of the complainants. Counsel for the appellant had provided the Committee with an exhaustive list, detailing these matters. 37. There was no obligation on the part of the Committee to spell out and resolve each and every one of these alleged anomalies. The Committee rejected many of them as inconsequential. At the same time, the members dealt with and resolved those matters which they considered to be of significance. No more was required. Whether or not the members of this court would have arrived at similar findings is of no moment. It is not our function to retry the case. (Authority cited.) [44] In Hammami v. College of Physicians & Surgeons (British Columbia) (1997), 36 B.C.L.R. (3d) 17 (S.C.), the court reviewed a discipline decision of the College of Physicians & Surgeons which had considered a report of the Investigating Committee. The physician who was the subject of inquiry had given the College a report from another physician which was critical of the Investigating Committee’s recommendations. The College provided reasons which made no reference to that other report. Although critical of the failure to mention this opinion, the court was not satisfied that this was a reviewable error. The analysis is found in the following passages from the decision: 31. ...I must say that I find it somewhat disturbing that the College would not have at least made some reference to it when it, in articulate fashion, challenges the findings of the investigating committee. However, the College chose to say nothing about it and the appellant has asked me to set aside the council’s decision on the basis that no reference has been made to it and therefore it may have been ignored or that no proper consideration was given to it. 32. Even when judges fail to refer to a case or a particular fact of importance to the appellant, that in itself does not amount to grounds for setting aside the decision. Nor does it lead to the necessary conclusion that they ignored or failed to consider the report. The council is not obligated so far as I can see, to give detailed reasons for judgment nor is it obligated to make reference to everything it did consider. In Trotter v. College of Nurses (Ontario) (1991), 44 O.A.C. 302 (Ont. Div. Ct.) at page 304, Mr. Justice Craig said: It has been held that the reasons of a tribunal which is made up of persons who were not legally trained, ought not to be the subject of “painstaking scrutiny”. It is not fatal to a decision that specific mention is not made of certain evidence; nor is it fatal if specific reasons are not given before its rejection. [45] The principles outlined in the foregoing authorities will be applied when considering the appellant’s submission that the Conduct Decision does not withstand review based on a reasonableness standard. Review of the Conduct Decision [46] The appellant’s factum includes a critical review of the Conduct Decision and detailed examination of the evidence at the Discipline Committee hearing. Dr. Hills maintains that the Discipline Committee did not adequately address theories advanced by expert witnesses who testified on his behalf, that it ignored substantial portions of the evidence, and reached conclusions based on theories which he did not have an opportunity to refute. He argues that the Committee should have reached different conclusions based on assessment of other evidence which it did not address. The appellant complains that after hearings which lasted almost five days touching upon three distinct charges, the Conduct Committee delivered only a six‑page written decision. [47] In assessing the sufficiency of reasons issued by the Discipline Committee, this court must look at the decision as a whole to determine whether it contains sufficient information to permit review by an appellate court. To determine if the Committee has committed an error of law, the court must examine the entire record of the tribunal’s proceedings. [48] In Lake v. Canada (Minister of Justice), 2008 SCC 23, (Lake) a post‑Dunsmuir decision in a judicial review context, the Supreme Court considered Mr. Lake’s claim that the Minister had failed to provided sufficient reasons for a decision to extradite him to face charges in the United States. LeBel J. for the Court stated: [46] As for the adequacy of the Minister’s reasons, while I agree that the Minister has a duty to provide reasons for his decision, those reasons need not be comprehensive. The purpose of providing reasons is twofold: to allow the individual to understand why the decision was made; and to allow the reviewing court to assess the validity of the decision. The Minister’s reasons must make it clear that he considered the individual’s submissions against extradition and must provide some basis for understanding why those submissions were rejected. Though the Minister’s Cotroni analysis was brief in the instant case, it was in my view sufficient. The Minister is not required to provide a detailed analysis for every factor. An explanation based on what the Minister considers the most persuasive factors will be sufficient for a reviewing court to determine whether his conclusion was reasonable. While failure to give reasons or giving insufficient reasons constitutes an error of law, Lake directs that review of reasons should focus upon whether they provide an understanding why the decision was made and whether they allow for assessment of its validity. A court should only interfere if the reasons are so deficient they do not serve those purposes. [49] The appellant says the Discipline Committee erred by overlooking inadequacies in evidence upon which it relied in making the Conduct Decision, and by not referring to contradictory opinions expressed by experts who testified on his behalf. Dr. Hills’ submission invites this court to re‑examine the evidence on the two allegations which were upheld, and substitute our assessment and conclusion. [50] It is not necessary, nor is it our role, to undertake the detailed dissection of evidence which would be inherent in addressing all of the submissions made by the appellant. Review of the Conduct Decision in the context of the record of testimony and exhibits which were before the tribunal shows that the result “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, ¶ 47). Therefore, it was reasonable. [51] In the Conduct Decision, the Discipline Committee referred to evidence given by all expert witnesses including those who testified on the appellant’s behalf and stated: Decisions by the Discipline Committee concerning each of the charges were unanimous. The Discipline Committee gave consideration to the oral testimony of the witnesses, written experts’ reports, Dr. Hills’ chart notes, other documentary evidence and examination of x-rays, photographs and models in dealing with these allegations. The reasons then contain specific sections dealing with each of the charges against Dr. Hills. Allegation (i) Replacement of Fillings [52] In addressing the first charge, replacement of amalgam restorations with composite resin, the Committee referred specifically to the testimony of experts called on Dr. Hills’ behalf, Dr. Bannerman and Dr. Jensen, as well as expert evidence given on the Board’s behalf by Dr. Yliheikkila. In its written reasons the Committee contrasted the differing expert opinions, and recognized that Dr. Bannerman indicated substandard dentistry was only one potential explanation for the failure of the restoration. The reasons indicate that the Committee considered but did not accept potential causes for premature failure identified by Dr. Jensen. They also show that the Committee did not base its decision on isolated testimony. With respect to the allegation concerning failure to remove old amalgam, the Committee stated at p.4: The Discipline Committee was not overly concerned with the presence of some retained amalgam and evidence as to a single issue like that would not in itself necessarily lead to a conclusion of lack of an appropriate standard of care having been met. [53] The Discipline Committee did not, as the appellant suggests, unfairly rely on Dr. Hills’ use of Dycal when he replaced fillings without giving him a chance to make a counter submission. Improper bonding resulting from Dr. Hills’ use of Dycal was only one factor which called into question his judgement and ability. The following conclusion with respect to amalgam restoration indicates that the Committee weighed all the evidence, and that Dycal use was only one consideration: However, it was the view of the Committee that the evidence as a whole including marginal staining within one year of all restorations carried out by Dr. Hills, a filling coming out within a year and the placement of Dycal under each of the restorations with the potential for improper bonding were indicators of insufficient care and attention to detail for a procedure that the evidence established was technique‑sensitive. Dr Hills exercised questionable judgement in proceeding at all with treatment of teeth 3.5, 4.5 and 4.6. Composite material was placed in teeth that were previously heavily restored and consequently composite restoration in those instances was contra‑indicated. [54] The finding that insufficient care and attention were devoted to a technique‑sensitive restoration procedure was a sufficient basis for the Committee’s conclusion that Dr. Hills did not meet the requisite standards; the record includes evidence which supports that result as a reasonable and defensible outcome. The Committee is not required to explain in more detail the technical reasons why the procedure performed by Dr. Hills was not successful. Allegation (ii) Bridge Placement [55] The Conduct Decision includes a separate section addressing the placement of the three‑unit bridge, the subject of the other allegation which was upheld. The appellant maintains this section is also deficient, stating in written argument: ..virtually none of the evidence is discussed, and some of the evidence was ignored...due to the paucity of reasons it is not really possible to determine what findings of fact were made by the Committee on this charge. [56] In his factum, Dr. Hills cites evidence which the Committee did not mention in its decision, and asks this court to conclude that the Committee found that the allegation was established not on the basis of evidence, but rather after inventing its own theory, to which Dr. Hills was not invited to respond. [57] This court will not parse technical evidence respecting facts and expert opinion to determine whether we would reach a result different from the Committee’s conclusion. The Conduct Decision referred to photographic evidence showing a uniform open margin around the teeth in question approximately a year after Dr. Hills placed a bridge, and referenced expert testimony from Dr. Yliheikkila that the openings were unacceptably large. There was evidence that the unacceptable gap could be due to poor technique or materials employed by Dr. Hills. In its decision, the Committee also noted Dr. Ross’ testimony that he did not note an open margin, and canvassed other theories advanced on Dr. Hills’ behalf, including the possible contribution of poor oral hygiene and bruxing, or grinding of teeth. The Committee rejected those alternate theories, noting with respect to bruxing that a comparison of models did not provide evidence of significant wear on the back teeth and that decalcification identified by Dr. Jensen as making the teeth vulnerable was not a “reasonable explanation for the problems that developed within the time frame involved in this issue.” [58] The Committee’s decision indicates that it reviewed the evidence of all witnesses who testified about the bridge placement before concluding that: The bridge was at worst ill-fitting and at best not properly seated and poorly cemented at the time of its placement. The finding of the Discipline Committee is that Dr. Hills performed substandard dentistry in the fitting and placement of the three‑unit bridge. [59] The record indicates there was sufficient evidence for the Discipline Committee to reach that conclusion. The statement in the Committee’s reasons that it ..gave consideration to the oral testimony of the witnesses, written experts’ reports, Dr. Hills’ chart notes, other documentary evidence and examination of x‑rays, photographs and models in dealing with these allegations.. is supported by references to particular testimony in the section of the decision specifically addressing the placement of the three‑unit bridge. Conclusion - Conduct Decision [60] Decisions by professional discipline tribunals made up of lay representatives and experts in their field should not be scrutinized with scientific precision or held to a standard of perfection. The record does not disclose any serious and dispositive misstatements of fact or mischaracterization of the evidence that amount to an error of law. The reasons provided by the Complaints Committee meet the requirements identified by the Supreme Court in Lake: they allow the appellant to understand why the decision was made, and they allow the reviewing court to assess its validity by executing a reasonableness standard of review. There is nothing here which would warrant our intervention. Issue V - The Costs Award [61] Dr. Hills claims that the $60,000.00 cost award which forms part of the Sanctions Decision is excessive and unreasonable. Before determining whether the amount should stand, I will address the following contention stated in the appellant’s factum: 110. Like the decision on the merits, the decision on why the Committee chose the $60,000.00 figure is woefully deficient and really consists of one line: In having regard to the nature of the charges, the conduct of the proceeding and the potential effects of the sanctions ordered, it is the decision of the Discipline Committee that Dr. Hills should be responsible for payment of costs in amount of $60,000.00. The costs award is not restricted to the passage cited by the appellant. That statement appears at the conclusion of written reasons after the Committee referred to the Regulation prescribing the sanctions which it could impose, summarized the expenses associated with Dr. Hills’ discipline, and identified and addressed the following factors: a. The balance between the effect of a cost award on the Appellant and the need for the Provincial Dental Board to be able to effectively administer the disciplinary process; b. The respective degrees of success of the parties; c. Costs awards ought not to be punitive; d. The other sanctions imposed and the expenses associated therewith; e. The relative time and expense of the investigation and hearing associated with each of the charges and in particular those on which guilt were entered and those where the Appellant was found not guilty. Prior to making the conclusion which the appellant quoted, the Sanctions Decision also referenced the positions taken by the parties. [62] The reasons in the Sanctions Decision meet the requirements which I identified when the Conduct Decision was addressed; they allow Dr. Hills to understand why the costs award was made and they allow this court to execute a reasonableness standard of review. Was the Costs Award Excessive? [63] Regulation 29(1)(i) authorizes the Discipline Committee to require: (i) payment by the licensee of all or part of the costs of the disciplinary proceeding, including a. per day fees for members of the Discipline Committee, b. counsel fees, c. reporter fees, d. facilities charges, and other charges associated with the hearing. [64] In Creager this court held that the regulation was intra vires (¶ 87), and that matters related to quantum of costs awarded by the Discipline Committee should be reviewed according to a reasonableness standard (¶ 93). The test to be applied when the quantum of costs is an issue was succinctly stated in Creager: 95. I agree with the comments of the Saskatchewan Court of Appeal. The reasonableness standard of review permits consideration of whether the quantum of costs would be so excessive as to deny the accused person a fair opportunity to dispute the allegations of professional misconduct. 96. The reasonableness standard might also involve consideration of whether the costs award is so exorbitant that it would effectively bar the complainant from practice, contrary to the Committee’s express dispositive sanction. Such a result, depending on the Committee’s reasons, may or may not constitute an error of law. Nothing in the record suggests that the amount of costs Dr. Hills was directed to pay would be “so exorbitant that it would effectively bar” him from practice. [65] The total expenses incurred by the respondent with respect to the discipline proceeding were $110,641.09. After reviewing the factors referenced in paragraph 61, the Committee determined that the appellant should pay slightly more than 50 per cent of that amount. The allegations in two of the four counts against Dr. Hills were upheld, one charge was dismissed because the Board did not meet the burden of proof, and the fourth charge was dismissed when no evidence was offered. [66] The other sanctions imposed upon Dr. Hills would not have the effect, in combination with the costs award, of barring him from practice ­ no suspension, which would interfere with the appellant’s livelihood, was directed, and the cost of the education program prescribed was estimated to be approximately $7,250.00 plus expenses. The costs award is payable over a two‑year period. Dr. Hills did not offer any evidence to suggest that these sanctions would put him out of business. In its reasons for the Sanctions Decision, the Discipline Committee noted that more time and expense related to dealing with the two charges that were proven than to the others. The authorities support requiring a disciplined member of a professional society to pay costs in proportion to the allocation of expenses between the charges which resulted in convictions and those involving acquittals (Hasan v. College of Physicians & Surgeons (N.B.) (1994),152 N.B.R. (2d) 230 (C.A.). Review based on a reasonableness standard does not indicate the costs award to be excessive; the payment required is within the parameters prescribed by the Regulations, the Committee has provided adequate reasons for its determination, and no intervention is required. CONCLUSION [67] I would dismiss Dr. Hills’ appeal, with costs of the appeal payable by Dr. Hills to the Board in the amount of $2,000.00, together with reasonable disbursements to be agreed upon or otherwise taxed. Murphy, J. Concurred in: Roscoe, J.A. Saunders, J.A.