BETWEEN: The Complainant COMPLAINANT. AND: A Dentist REGISTRANT. BEFORE: William R. Cottick, Panel Chair REVIEW BOARD

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1 Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. College of Dental Surgeons of BC DECISION NO HPA-047(a) August 15, 2018 In the matter of an application (the Application ) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, (the Act ) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee BETWEEN: The Complainant COMPLAINANT AND: The College of Dental Surgeons of British Columbia COLLEGE AND: A Dentist REGISTRANT BEFORE: William R. Cottick, Panel Chair REVIEW BOARD DATE: Conducted by way of written submissions closing on May 10, 2018 APPEARING: For the Complainant: Self-represented For the College: For the Registrant: Joyce Johner, Counsel Unrepresented DECISION REGARDING AN APPLICATION FOR AN EXTENSION OF TIME TO FILE AN APPLICATION FOR REVIEW I INTRODUCTION [1] This is a preliminary application by the Complainant seeking an extension of the statutory time allowed to file an application for review of an Inquiry Committee disposition, pursuant to Rule 5(2) of the Review Board Rules of Practice and Procedure (the "Rules") and s.50.61(4) of the Act. II BACKGROUND [2] The Complainant made a complaint to the College regarding dental work performed on the Complainant by the Registrant beginning in October The College investigated the circumstances of the complaint, and after considering the complaint and receiving a summary of the investigation of the complaint, an Inquiry Committee of the College directed that a disposition letter dated December 6, 2017 (the 'Disposition Letter") be prepared and forwarded to the Complainant.

2 [3] By letter dated April 17, 2018, from the College to the Review Board, the College stated that, according to its records, the December 6, 2017, Disposition Letter had been sent on that day (implicitly by regular mail) to the Complainant, to the same address as the College had on file for him, which was the same address noted on the Complainant's application for review to the Review Board. The letter from the College further stated that as the Disposition Letter was not returned to the College's offices by Canada Post, the College considered it delivered. [4] The Disposition Letter contained the following paragraph regarding procedures and timelines for applying for review of the disposition set out in the Disposition Letter: If you are not satisfied with the Inquiry Committee's disposition (decision), you may make an application for review to the Health Professions Review Board (HPRB). The HPRB may review whether the College's investigation was adequate and whether the disposition was reasonable. If you choose to apply to the HPRB, your application must be (i) filed with the HPRB; (ii) delivered to the College; and (iii) delivered to the dentist all within 30 days of receiving this letter. For further information please visit the HPRB website at, [5] The College states that it received a telephone call from the Complainant on February 6, 2018, indicating he had not received the original Disposition Letter. The College states that it sent another copy of the Disposition Letter to the Complainant (again, implicitly by regular mail) the same day as it received that call, that is, on February 6, [6] On April 4, 2018, the Review Board received the Complainant's Form 3 Application for Review dated March 29, 2017, (the "Application for Review"), which included a copy of the Disposition Letter. Based on the chronological sequence of events in this case, and the fact that the Disposition Letter was not issued until December 6, 2017, I find the date of March 29, 2017, on the Application for Review to be an error - a lapsus calami or "slip of the pen" on the part of the Complainant - and that the date the Complainant intended to write was March 29, I have therefore referred throughout this decision to the date of the Complainant's Application for Review being March 29, Also on April 4, 2018, the Review Board received from the Complainant a Form 13 application (the "Extension Application") to extend the time to file an application for review of the disposition set out in the Disposition Letter. [7] By letter dated April 10, 2018, the Review Board advised the College, the Registrant, and the Complainant of the receipt of the Complainant's Application for Review and Extension Application on April 4, 2018, and invited written submissions from all parties with respect to whether an extension of time should be granted. An information sheet describing the factors that the Review Board will consider in determining whether to grant an extension of time was enclosed. Submissions were requested by April 24, [8] On April 16, 2018, an was received by the Review Board at its address "HPRBINFO@gov.bc.ca", as follows: Subject: Re: HPRB address for your records.

3 My name ["Complainant's Name"] (y)our file No HPA-047, College file NO Because my wife get a STROKE I have to go with her to my country so she can receive the necessary treatment and I have to take care of it. It could take 6 months or 1 year to miss Canada. So please interrupt my case until my return to Canada. Please confirm that you have received this information and that you have accepted my interruption of my case until my return. When I will arrive I will announce you. PLEASE ANSWER. Sincerely, [Complainant's name] April, [9] The address for the Review Board used by the Complainant as described in paragraph [8] above is the address for electronic delivery to the Review Board set out in Rules 24(1) and 24(3). Rule 22(3) of the Rules states that, in addition to an address for delivery, participants may provide an address if they wish to receive documents electronically. [10] The Review Board responded to the Complainant's the same day, to the address from which it was received, as follows: "Mr. [Complainant's name], This message has been received by our HPRB info box, and I have copied your case manager, [Case manager's name]." [11] In its April 17, 2018, letter to the Review Board, the College took no position on the Complainant's request for a time extension, except to note that the Complainant did not submit his Application for Review to the Review Board until 29 March, 2018, ((the date of the Application for Review (see paragraph [6]), which was not received by the Review Board until April 4, 2018)), which the College submitted was well outside the 30 day time period for filing an Application for Review. [12] In light of the message from the Complainant received by the Review Board on April 16, 2018, referred to in paragraph [8], on April 26, 2018, the Review Board sent a letter to all parties advising of the receipt of that from the Complainant, enclosing a copy. The Review Board advised that a request for extension of time for filing an application for review had already been initiated by the Complainant, and a delay of such length as part of a preliminary decision would unduly prejudice the other parties involved. The Review Board therefore authorized an extension to deliver submissions until May 10, The Review Board indicated that as the Complainant's request for abeyance of 6 to 12 months could potentially affect the timeline of his Application for Review, and since the context of the application had changed, all parties were invited to make further submissions with respect to whether an extension of time should be granted.

4 [13] By letter dated May 1, 2018, received by the Review Board on May 3, 2018, the College acknowledged the seriousness of the health issues reportedly suffered by the Complainant, but questioned why that would prevent the Complainant from proceeding with his time extension request for such a prolonged period of time, especially given the relief the Complainant is seeking through the review process. The College took no further position with respect to the matter, except to refer to the comments included in its letter to the Review Board of April 17, [14] No submissions were received from the Registrant in connection with the Complainant's extension application or Complainant's of April 16, [15] No other submissions were received from the Complainant. [16] It is the complaint disposition set out in the December 6, 2017, Disposition Letter that the Complainant seeks to have reviewed by the Review Board. [17] I must determine if the Application for Review was filed within 30 days of receipt of notification of the disposition by the Complainant, and if not, if there are special circumstances that justify extension of the period for filing an Application for Review. III LEGISLATIVE FRAMEWORK [18] The Review Board is authorized under s.50.6 of the Act to review dispositions of an Inquiry Committee of the College. Subsection 50.6(2) of the Act provides that: 50.6(2) An application under subsection (1) must be made within 30 days of the date on which written notice of the disposition is delivered to the complainant. [19] The Act further provides in s.50.61(4) that the Review Board may extend the time for filing an application for review in "special circumstances" (4) On application, the Review Board may extend the time for filing an application under this part, even if the time for filing an application has expired, if the Review Board is satisfied that special circumstances exist. [20] Rule 5 of the Review Board's Rules sets out the procedure for applying for extensions of time to make an application for review. [21] In the case of Clock Holdings Ltd. v. Braich Estate, [2009] B.J.C. 269, the British Columbia Court of Appeal set out five key principles that a decision-maker ought to consider in deciding whether special circumstances exist that warrant granting an applicant an extension of time in which to file an appeal: (a) was there a bona fide intention to file within the required time; (b) were all parties informed of an intention to request an appeal/review; (c) would any party be unduly prejudiced by granting the request; (d) is there merit in the request; and (e) is it in the interests of justice that an extension of time to file be granted?

5 [22] In several cases the Review Board has adopted the principles set out by the Court of Appeal in the Clock Holdings decision and has applied them to applications to extend the time to file an application for review (e.g. Review Board Decisions HPA-121(a); 2017-HPA-118(a); 2017-HPA-135(a)). I also adopt those principles. IV DISCUSSION AND ANALYSIS [23] As described in paragraph [3] of this decision, on December 6, 2017, the College mailed the Disposition Letter to the Complainant. [24] As described in paragraph [5] of this decision, the Complainant called the College offices on February 6, 2018, and indicated that he had not received the Disposition Letter, and a copy of the Disposition Letter was mailed to him by the College the same day. [25] On April 4, 2018, the Review Board received the Complainant's Application for Review. Concurrently on April 4, 2018, the Review Board received the Complainant's Form 13 Extension Application. As of that date, almost four months had gone by since the mailing to the Complainant of the initial Disposition Letter, and 57 days had gone by since the mailing to him by the College of another copy of the Disposition Letter. As indicated in paragraph [18], s.50.6(2) of the Act provides that an application for review must be made within 30 days of the date on which written notice of the disposition is delivered to the complainant. [26] In the Complainant's Application for Review he answered the question "Date you Received the Disposition" with the words "I DID NOT RECEIVED." However, on the Application for Review form the Complainant also selected the box for the statement: "Because my application is filed outside the 30 day time limit, I need to apply for an extension of time to file any application for review." [27] In his Extension Application the Complainant stated "I DID NOT RECEIVED THE COLLEGE LETTER I WAS RECOQUEST A COPY." Additionally, in his Extension Application, in the section where the applicant is requested to explain the reason why the application was not made within the required time and what special circumstances exist that justify the Review Board granting an extension of the time to file an Application for Review, the Complainant stated: "PLEASE GIVE TO ME AN EXTENSION TIME BECAUSE I DID NOT RECEIVED THE LETTER OF COLLEGE OF DENTAL SURGEONS OF BC." He also stated: "WHY: I APOLOGIZE IF IS LATE I ANSWERED BUT MY RELATIV GET A STROKE I WAS IN HOSPITAL LONG DAYS." [28] The first determination I must make is, in the words of s.50.6(2) of the Act, "the date on which written notice of the disposition is delivered to the complainant." Determination of this date is complicated by the practice of many of the health Colleges of using regular mail to forward their dispositions, and not delivering their dispositions pursuant to a method that allows independent confirmation of delivery (for example by Xpress Post or registered mail). Regular mail appears to be the method of delivery used by the College in this case, both of the original Disposition Letter sent to the Complainant on December 6, 2017, and subsequently, of the copy sent on February 6, 2018.

6 [29] Neither the Complainant's Extension Application, nor his Application for Review, sets out the date that the Complainant received the Disposition Letter, other than to state that he did not receive it. [30] However, the Complainant filed with the Review Board on April 4, 2018, an Application for Review, which includes a copy of the Disposition Letter, and an Extension Application. I therefore find that the Complainant did receive a copy of the Disposition Letter, and understand his submission to be that he did not receive the original mailing of the Disposition Letter sent on December 6, 2017, not that he did not receive a copy of the Disposition Letter at all. There is no explanation given by the Complainant as to why he would not have received the Disposition Letter mailed on December 6, However, I do not need to determine whether or not he received such letter, as I find that, at the least, he did receive the copy of the Disposition Letter re-sent by the College on February 6, [31] As neither the Application for Review nor the Extension Application of the Complainant, sets forth the date the Complainant received the Disposition Letter, although required to be disclosed in those forms, and as the College has chosen to send the Disposition Letter to the Complainant by regular mail, with no confirmation by Canada Post of the date of delivery, I am left to determine when the copy of the Disposition Letter mailed by the College on February 6, 2018, was received by the Complainant as a matter of factual inference. [32] In the past, the issue of the date of delivery of a disposition decision sent by a health College by regular mail has in many cases been determined by the Review Board by application of Rule 27(3) of the Review Board's Rules. This approach has been re-evaluated in recent decisions of the Review Board (see e.g., 2016-HPA-008(b); 2016-HPA-214(a)). [33] In Review Board Decision No HPA-008(b), Panel Chair McDowell stated: [28] I would like to make two further observations about Rule 27(3). First, it is arguable that the Rule has no application to a mailing between the College and the complainant before the matter has even come before the Review Board. The Rules facilitate the procedures of matters before the Review Board. I question whether they apply to the delivery of a disposition that occurred before an application for review has ever commenced. At most, Rule 27(3) is a guideline that is always subject to the actual facts of a particular case. [34] In Review Board Decision No HPA-214(a), Panel Chair Unruh offered some suggestions as to how the Review Board might approach the determination of the delivery time for the purposes of section 50.6(2) of the Act, where a health College has chosen to deliver a disposition decision by regular mail. She stated: [8].. (c) The date the letter was mailed is only the first step. This does not answer the question as to when it was physically delivered to the complainant's address.

7 Since it does not appear that the College sends its disposition letters by any means requiring proof of delivery, the Review Board is still left uncertain as to when the package was actually "delivered" to the complainant's mailing address, particularly in a case like this where the complainant was away. (d) In the past, the Review Board appears to have relied on Review Board Rule of Practice and Procedure 27(3) which states "(3) a document or communication that is sent by mail is deemed delivered on the fifth day after it is mailed, excluding a Saturday, Sunday or public holiday." The problem is that Rule 27(3), which applies to communications mailed once the matter is at the Review Board, is of questionable application when the issue is about College communications to the complainant before the matter ever came to the Review Board. What "deliver" means in s.50.6 (2) of the HPA must be considered on its own terms. (e) one practical approach to addressing this is for the Review Board to adopt an operating presumption that can be rebutted by the parties. Since the College uses mail, one helpful approach would be to presume that mailed packages are delivered in accordance with the Canada Post Delivery Standards, subject to a complainant or the College providing evidence that displaces the presumption. The Canada Post Delivery Standard for packages delivered locally within the lower mainland is four business days. This delivery standard obviously varies depending on where the complainant lives. [35] In the absence of independent evidence, determination of the delivery date of a disposition is a question of factual inference for the Review Board. In making this determination I have chosen to apply Rule 27(3) of the Review Board's Rules: 27(3) A document or communication that is sent by mail is deemed delivered on the fifth day after it is mailed, excluding a Saturday, Sunday or public holiday. Although I find merit in Panel Chair Unruh's suggestion of applying the Canada Post Delivery Standards, I have chosen to apply Rule 27(3) in this case because of its consistency with the existing processes of the Review Board. [36] In this case it is clear that by February 6, 2018, the date of his telephone call to the College offices, the Complainant was aware that by December 6, 2017, a disposition had been concluded by the Inquiry Committee, and that a copy of the Disposition Letter had been mailed to the Complainant on December 6, On that date, namely February 6, 2018, the College has indicated that another copy of the Disposition Letter was mailed to the Complainant. Applying Review Board Rule 27(3), I find that the Disposition Letter was delivered to the Complainant on the fifth day after it was mailed, excluding Saturdays, Sundays and public holidays, namely February 13, [37] The Complainant's Application for Review and Extension Application were not received by the Review Board until April 4, 2018, outside the 30 day period within which an application for review must be made, which ended on March 15, 2018.

8 [38] I will therefore turn to an analysis of whether the Complainant's Extension Application should be granted, applying the principles discussed in the Clock Holdings case. Was there a bona fide intention to file within the required time? Were all parties informed of an intention to request an appeal/review? [39] I have determined that a copy of the Disposition Letter was received by the Complainant by February 13, [40] The Application for Review and the Extension Application were received by the Review Board on April 4, This is the first notice that the Review Board had of the Complainant's intention to file an application for review, and there is no evidence that any of the other parties were aware of the Complainant's intention to apply for a review before that date. There is no evidence before me that the Complainant expressed an intention to file an application for review at the time of his telephone call to the College on February 6, If the Complainant is to be believed, he had not received a copy of the Disposition Letter by that date. [41] I note, however, that the date of the Application for Review was March 29, 2018, (see paragraph [6]). I therefore find that the Complainant had formed an intention to file for a review by that date. However, March 29, 2018 is more than 30 days after February 13, 2018, the date I have determined the Disposition Letter was received by the Complainant, and is outside the required time for filing a review application. [42] I therefore find that the Complainant had not formed a bona fide intention to file an application for review within the 30 day period for filing such an application, nor had any of the parties been informed of such intention prior to the receipt of the Application for Review by the Review Board on April 4, Whether the other parties would be unduly prejudiced by an extension of the time to file the application [43] Although the College has commented on the delay by the Complainant in filing the application for review and his extension application, the College has taken no position on the extension application, nor has the Registrant. However, in general, the parties to a proceeding should be entitled to expect the finality and certainty that comes with expiry of a statutory limitation time for filing an application for review, so that they can get on with their lives. Whether there is merit in the request for review [44] The reasons given by the Complainant for his Application for Review are that the "College of Dental Surgeons of BC they are not ta(l)king about what [happened] to me they are talking about my [behavior] and protecting [the Registrant] who destroyed my tooth and gums," and that "this act is a(n) intentionally criminal act." No further information is provided by the Complainant to support these assertions or to demonstrate that the investigation conducted by the Inquiry Committee was inadequate or that the disposition was unreasonable.

9 [45] The Disposition Letter summarizes the investigation conducted on behalf of the Inquiry Committee, which included obtaining and reviewing reports and various dental records from the Registrant and another dentist who attended on the Complainant, and conducting telephone interviews with the Complainant and the Registrant. The Disposition Letter also described several findings of the Inquiry Committee regarding shortcomings in the conduct of the Registrant, and various remedial steps that the Registrant had been requested and had agreed to take. [46] In this case, although I have limited information before me, I find that it is likely that the review, if conducted, will result in an order confirming the decision of the Inquiry Committee. Whether it is in the interests of justice for the extension to be granted [47] The Complainant has submitted there are two special circumstances that support his application for an extension of the time for filing an application for review: (a) he states he did not receive the Disposition Letter; (b) he states his wife suffered a stroke and he spent long hours at the hospital. [48] The Complainant offers no explanation and makes no submission as to why he did not receive the Disposition Letter, even though it was addressed to him at the address he gave as his address in his Application for Review. [49] I have determined that the Complainant did receive a copy of the Disposition Letter by at least February 13, However, he did not file his Application for Review until April 4, 2018, outside the statutory filing time. [50] Even though it is apparent that the Complainant did receive a copy of the Disposition Letter prior to preparing his Application for Review, he did not set out in that document or in the Extension Application the date of receipt, although required to do so. [51] I am sympathetic that his wife experiencing a stroke could be a matter of significant worry and concern to the Complainant. However, the Complainant gives no particulars of this event, such as when it happened, the severity of the stroke, the proximity of where his wife was hospitalized to his place of residence, for how long, how many days he spent at the hospital and during what hours, how this interfered with the Complainant filing an application for review or taking the relatively simple step of requesting an extension of time for filing, or any other particular which would substantiate why this prevented or delayed him from filing the Application for Review within the statutory period, or at least giving the other parties or the Review Board some indication of his intention to do so. [52] It is the responsibility of the party applying for an extension to adequately explain the special circumstances that justify an exception to the statutory time limitation, which is an unusual remedy and not granted as a matter of course. [53] It is apparent from the Disposition Letter that the investigation by the Inquiry Committee was extensive, and that, contrary to the Complainant's allegation in his

10 Application for Review, the Inquiry Committee did identify a number of concerns about the conduct of the Registrant and did set out a number of remedial steps that had been identified and that the Registrant had agreed to take. [54] The mandate of the Review Board is limited to determining whether the investigation of a complaint is adequate, and determining if the disposition is reasonable. It is not the mandate of the Review Board to re-hear the evidence, or to step into the shoes of the Inquiry Committee and substitute its own opinion. In assessing the reasonableness of the disposition, the test the Review Board has traditionally applied to determine reasonableness is whether the Inquiry Committee's disposition falls within the range of acceptable and rational solutions. On the face of it, the disposition set out in the Disposition Letter falls within this range. [55] In exercising my discretion in determining whether to grant the Extension Application, I must determine whether the interests of justice would be thwarted by enforcing the statutory period set out for filing an application for review, which is meant to give some certainty and finality to the process. In this case I find that they would not. V DECISION [56] The Complainant has submitted his application outside the statutory time for bringing it, and has failed to establish that he was unable, acting reasonably, to bring the application within the applicable time period after he became aware of the disposition, or to make the relevant parties aware of his intention to do so, or that special circumstances justify the granting of the unusual remedy of extending the filing period. Extensions of time are not given routinely or as a matter of course, but are dependent on the facts and circumstances in each case. [57] The application for extension of time to file an Application for Review is denied. William R. Cottick William R. Cottick, Panel Chair Health Professions Review Board