QUEEN’S BENCH FOR SASKATCHEWAN  
Citation: 2022 SKQB 13  
Date:  
2022 01 12  
Docket:  
Judicial Centre:  
QBG 2030 of 2018  
Saskatoon  
BETWEEN:  
HODA HOSSEINI  
APPELLANT  
- and -  
THE COLLEGE OF DENTAL SURGEONS OF  
SASKATCHEWAN  
RESPONDENT  
Counsel:  
Crystal L. Norbeck and Andrea C. Johnson  
Sean M. Sinclair  
for the appellant  
for the respondent  
___________________________________________________________________________  
JUDGMENT  
GERECKE J.  
January 12, 2022  
___________________________________________________________________________  
A.  
INTRODUCTION  
[1]  
This is an appeal by Dr. Hoda Hosseini from a decision of the Discipline  
Committee [Discipline Committee] of the College of Dental Surgeons of Saskatchewan  
[College]. The appeal is brought under s. 38(1) of The Dental Disciplines Act, SS 1997,  
c D-4.1 [Act].  
[2]  
Dr. Hosseini was charged with professional incompetence under s. 26 of  
the Act arising from her care and treatment of Armand Joseph Raiwet [Patient]. The  
- 2 -  
charges may be summarized briefly as follows:  
a. Dr. Hosseini removed an existing dental implant in the #36 area and  
placed a second implant [Second Implant] in the same area. The Second  
Implant transected the inferior alveolar nerve canal [IA canal], resulting  
in nerve injury to the Patient. It was alleged that:  
i. The intrusion of the second implant into the IA canal was  
avoidable with proper planning; and  
ii. A competent specialist dentist would have recognized the  
intrusion when the second implant was placed, and the second  
implant should have been removed then;  
And that thereby Dr. Hosseini displayed a lack of knowledge, skill or  
judgment and/or a disregard for the welfare of the Patient.  
[3]  
The Discipline Committee found Dr. Hosseini to be incompetent in her  
care of the Patient, with respect to both allegations summarized above. That decision  
on substantive matters was rendered November 26, 2018 [DC Decision].  
[4]  
The Discipline Committee then held two subsequent hearings. The first  
arose from complaints by Dr. Hosseini that the Discipline Committee had lost  
jurisdiction resulting from a reasonable apprehension of bias. The grounds for the bias  
argument were:  
a. Bruce Gibson, a lawyer, served as Chair of the Discipline Committee and  
his charges for fees suggested an outsized role in decision-making and a  
lack of independence between the lawyer’s legal advice and the task of  
adjudication; and  
- 3 -  
b. certain findings and questioning by the Discipline Committee which  
Dr. Hosseini alleged indicated that the Discipline Committee was not  
impartial.  
[5]  
The Discipline Committee denied the bias application in a decision dated  
April 25, 2019 [Bias Decision].  
[6]  
The Discipline Committee then held a penalty hearing. In a decision dated  
May 2, 2019 [Penalty Decision], it ordered a formal reprimand, publication of the  
charges and penalties in a College newsletter, reimbursement of the Patient for $8,213,  
payment of the College’s costs to the extent of $50,000, and that the College deliver a  
copy of the DC Decision and the Penalty Decision to the governing body of dentists for  
Manitoba, where Dr. Hosseini now practices.  
[7]  
The grounds of appeal will for the most part be reproduced in full in the  
body of this decision. For the purpose of this introduction, those grounds may be  
distilled to the following matters:  
a. Interpretation of s. 26 of the Act, and whether a single incident can  
amount to professional incompetence as described in s. 26;  
b. Assessment by the Discipline Committee of the expert evidence heard by  
it;  
c. The Discipline Committee’s refusal to allow questions concerning s. 26  
to be put to Dr. Wagner, the expert witness for the Professional Conduct  
Committee [PCC] that acted as prosecutor;  
d. The Discipline Committee’s rejection of evidence from Dr. Toporowski  
on the basis that she was not an impartial witness;  
- 4 -  
e. Whether the Chair, Bruce Gibson, was eligible to serve on the Discipline  
Committee;  
f. Whether the role played by Bruce Gibson raised a reasonable  
apprehension of bias, given that he charged fees substantially higher than  
any other member of the Discipline Committee;  
g. Whether the imposition of costs of $50,000 was excessive; and  
h. Whether the Discipline Committee erred by treating certain discussions  
around costs as covered by “without prejudice” settlement privilege.  
[8]  
For the reasons that follow, I conclude that Dr. Hosseini’s appeal must be  
dismissed in its entirety.  
B.  
BACKGROUND FACTS  
Dr. Hosseini is a periodontist, which is a type of specialist dentist. A  
[9]  
periodontist’s training pertains to the gums and soft tissue surrounding the teeth.  
Dr. Hosseini’s practice includes dental surgery to place dental implants. From late 2012  
to early 2016 she practiced in Saskatchewan and was a member of the College. From  
October 2012 to July 2015 she worked in the Cityview clinic in Regina [Cityview]. She  
now practices in Winnipeg.  
[10]  
In July 2014 Dr. Hosseini placed a dental implant for the Patient [First  
Implant]. This was her initial treatment of him.  
[11]  
The IA canal is located in the lower part of the mandibular bone. The IA  
canal, which is surrounded by bone, houses the trigeminal nerve. Dr. Hosseini and all  
of the expert witnesses agreed that when placing an implant, to avoid entering the IA  
canal, a minimum 2 mm buffer should always be maintained. It is important to ensure  
- 5 -  
that an implant does not enter or transect the IA canal. Damage to the nerves contained  
in the IA canal may result in permanent loss of feeling in a patient’s jaw and face.  
[12]  
The First Implant was 10 mm in length. In placing the First Implant,  
Dr. Hosseini performed appropriate measurements to ensure that the 2 mm safety gap  
was maintained.  
[13]  
In follow-up examinations, Dr. Hosseini determined that the First Implant  
had not appropriately incorporated with the surrounding bone, which meant that it  
might not be able to properly support a crown when placed. She informed the Patient  
that the First Implant would need to be replaced. The Patient, who lives a distance from  
Regina, preferred to minimize his attendances and opted for a replacement implant that  
would be inserted in the same space.  
[14]  
On January 9, 2015, Dr. Hosseini replaced the First Implant with a 13  
mm implant [Second Implant]. Although it was 13 mm in length, the Second Implant  
was designed to have a top polished portion of 1.5 mm that would not be screwed into  
the bone. As a result, 11.5 mm of the Second Implant was placed into the bone.  
[15]  
During the January 9, 2015 procedure [Procedure], Dr. Hosseini noticed  
more bleeding than expected. She obtained two dimensional x-rays available at  
Cityview but the image was not clear. She then obtained two-dimensional panoramic  
x-rays [Panorex] from a clinic in the same building. From that she still could not  
determine whether the implant had entered the IA canal, or whether it was merely  
overlapping the IA canal in bone adjacent to the IA canal.  
[16]  
Dr. Hosseini gave the patient two options immediate removal of the  
Second Implant followed by a bone graft and then a further attempt to place an implant,  
or to wait and see, monitoring to determine whether the implant was merely overlapping  
to the side and not intruding in the IA canal. The Patient chose the latter option.  
- 6 -  
[17]  
Dr. Hosseini followed up numerous times with the Patient, including  
phoning him on the evening of January 9, 2015. The Patient reported numbness, though  
reduction of it over time.  
[18]  
It later became apparent that the Procedure had not been successful and  
that the Second Implant had entered the IA canal.  
[19]  
An oral and maxillofacial radiologist completed a diagnostic imaging  
report in August 2017, concluding that approximately 3.7 mm of the Second Implant  
was located within the IA canal. Dr. Hosseini accepts that finding.  
[20]  
Dr. Hosseini testified that in retrospect she believed that when she  
measured the available bone space she relied in part on her prior measurements taken  
when she placed the First Implant, and forgot to account for bone loss that occurred  
after the First Implant was placed.  
[21]  
The Patient suffered permanent nerve damage. He testified that it feels  
like his lip is frozen all the time, the bottom gums are very sensitive, and salt makes it  
burn like it’s on fire. The Patient filed a complaint with the College, leading to the  
charges being laid against Dr. Hosseini.  
[22]  
In September 2017, the Patient saw Dr. Robert Wagner who, at that time,  
practiced in Regina. He later removed the Second Implant at the request of the Patient  
and ultimately became the PCC’s expert witness.  
C.  
DISCIPLINE COMMITTEE PROCEEDINGS  
(a)  
Discipline Committee Hearing  
[23]  
The Discipline Committee heard testimony from the Patient, Dr. Hosseini  
and three expert witnesses: Dr. Wagner, Dr. Elizabeth Toporowski, and Dr. Keyvan  
- 7 -  
Abbaszadeh. Dr. Toporowski and Dr. Abbaszadeh were called as experts on behalf of  
Dr. Hosseini.  
[24]  
The DC Decision thoroughly captures the sequence of events and the  
expert testimony, and no complaint is raised by the appellant in that respect. No  
objection was taken to the expertise of any of the three expert witnesses, and each was  
accepted as appropriately qualified.  
[25]  
[26]  
At the hearing, Dr. Hosseini acknowledged that she had made a mistake.  
Dr. Wagner testified that for implant procedures, there is a single standard  
of care, irrespective of the dentist’s expertise. Non-specialist dentists, periodontists and  
oral surgeons each are subject to the same standard of care.  
[27]  
Dr. Wagner testified that Dr. Hosseini made three errors that breached the  
standard of care, all of which were in connection with the Procedure:  
a. She failed to perform a CBCT (cone beam 3D scan - a 3D x-ray) at the  
outset of the Procedure, which would have better shown the available  
bone.  
b. She failed to accurately measure the bone present (which is possible to  
do if a 3D x-ray is not available) and used an implant that was too long.  
c. It was a breach of the standard of care for Dr. Hosseini to not recognize  
that the Second Implant was placed into the nerve and to not remove it  
immediately. Appropriate postoperative radiographs combined with  
clinical findings could have indicated intrusion into the IA canal, and the  
Second Implant could have been removed or backed out to the  
appropriate level. Given how long the Second Implant remained in place,  
there is no opportunity for the Patient’s condition to improve.  
- 8 -  
[28]  
When asked whether this was a small or trivial error, or a very serious  
error, Dr. Wagner opined that it was a very serious error and was avoidable. What was  
shown on the Panorex imaging combined with increased bleeding should have been a  
flag if out of the ordinary from prior procedures with the Patient. Given that flag, Dr.  
Wagner testified that the Second Implant should have been removed immediately, and  
that it would not be appropriate to leave it in place to see how things developed. Nor  
was it appropriate to leave it to the Patient to decide.  
[29]  
Dr. Wagner also testified that he was a practitioner in Regina in 2014 and  
that it was possible to get a “same day” emergency 3D x-ray, which would confirm  
whether the Second Implant was in the IA canal. There would be a greater chance of  
healing if an intruding implant were removed immediately.  
[30]  
Dr. Toporowski stated that Dr. Hosseini carried out careful planning for  
the Procedure. Though she did not dispute that the Second Implant entered the IA canal  
by 3.7 mm, she still held the view that Dr. Hosseini correctly determined measurements  
indicating that adequate space was available for the selected implant. Dr. Toporowski  
did not carry out her own measurements; she concluded based on the clinical notes that  
Dr. Hosseini had measured correctly. The DC Decision found that Dr. Hosseini’s  
clinical notes put into evidence did not record any specific measurements taken by her.  
Dr. Toporowski opined that Dr. Hosseini did not breach the standard of care by failing  
to recognize the intrusion of the Second Implant in the IA canal when it was placed. Dr.  
Toporowski stated that the use of 3D CBCT radiographs was not standard protocol for  
periodontists placing implants in Saskatchewan in 2014-2015.  
[31]  
I will not delve deeper here into Dr. Toporowski’s testimony as the  
Committee’s treatment of it is among the grounds for appeal.  
[32]  
Dr. Abbaszadeh characterized the poor outcome from the Procedure as a  
- 9 -  
“one off-complication”. He did not acknowledge that Dr. Hosseini had breached the  
standard of care. Rather, he concluded that regardless of the “surgical misadventure”  
Dr. Hosseini’s actions were consistent with that of a competent practitioner.  
[33]  
On cross-examination, Dr. Abbaszadeh acknowledged that he was aware  
of very few instances where an implant entered a nerve canal, and that he had never  
seen it happen. He agreed that the standard is to maintain the 2 mm buffer. He testified  
that 3D imaging is not the standard and that it was not necessary for Dr. Hosseini to  
have done more planning than she did. The Patient asked to minimize the visits, so Dr.  
Abbaszadeh was unwilling to fault Dr. Hosseini for how she continued caring for the  
Patient following the Procedure.  
[34]  
Dr. Abbaszadeh’s testimony may fairly be characterized as equivocal. At  
times, he defended the steps taken by Dr. Hosseini and disagreed with Dr. Wagner’s  
opinions. He did not accept Dr. Wagner’s opinion that based on two-dimensional  
imaging it was immediately apparent that the Second Implant was placed into the IA  
canal. However, he agreed that it was apparent from the CBCT 3D imaging that was  
done later that the nerve was likely either partially or fully transected. He acknowledged  
that one could fault Dr. Hosseini for the implant fixture selection his report stated that  
she should have chosen a shorter implant along with not immediately addressing the  
suspect implant and not obtaining 3D imaging before the Procedure.  
[35]  
Dr. Abbaszadeh testified that a prudent practitioner would treat every  
implant placement as a new one, such that measurements should be made each time.  
This would include taking into account bone loss.  
(b) Discipline Committee Decision  
[36]  
The Discipline Committee made the following findings of particular  
import:  
- 10 -  
a. Dr. Hosseini was candid in her testimony. At the hearing she readily  
acknowledged that in performing her calculations, she failed to account  
for the crestal bone loss that occurred after placement of the First Implant.  
She took her measurements from the top of the crestal bone but missed  
that the bone at the top was no longer present. This was despite the fact  
that the very reason for placing the Second Implant was the loss of crestal  
bone following the First Implant.  
b. The evidence clearly established the Second Implant’s intrusion into the  
IA canal by more than 3.5 mm. Such an intrusion demonstrated a lack of  
knowledge and judgment in treatment planning and skill in implant  
placement. Dr. Abbaszadeh had testified that a prudent practitioner would  
measure the bone available, taking into account bone loss since the First  
Implant. That was not done by Dr. Hosseini, which she essentially  
admitted.  
c. The failure to obtain CBCT imaging before placing the Second Implant  
did not breach the standard of care. However, the Discipline Committee  
accepted the evidence of Dr. Wagner that this was not a “narrow miss”.  
The 13 mm implant chosen by Dr. Hosseini for the Procedure was too  
long, further demonstrating a lack of knowledge and judgment in her  
treatment planning. Correct measurement of the available bone and  
selection of the appropriate implant size is crucial. Intrusion into the IA  
canal is one of the most egregious errors a practitioner placing implants  
can make.  
d. The Discipline Committee chose not to give any weight to the testimony  
of Dr. Toporowski concerning the planning, placement and decision on  
removal of the Second Implant. They found that she appeared to be  
- 11 -  
advocating for Dr. Hosseini throughout her testimony. Because this  
represents a ground of appeal, I will address the Discipline Committee’s  
findings below in a separate section.  
e. With respect to the failure to recognize the intrusion into the IA canal,  
Dr. Hosseini had noted increased bleeding following placement of the  
Second Implant. Dr. Hosseini sent the Patient for a panoramic x-ray to  
obtain a more accurate image of the implant placement. Although there  
could have been several reasons to explain the increased bleeding, the  
Discipline Committee found that Dr. Hosseini held concerns. When that  
imaging appeared distorted, Dr. Hosseini concluded that she was still in  
a safe zone concerning the nerve. The Discipline Committee found that  
Dr. Hosseini failed to exercise good judgment when she did not give  
adequate weight to the panoramic x-ray. Further, given her concerns  
about its quality, it would have been prudent to seek better confirmation  
of the Second Implant’s location. The Committee stated: “Better respect  
of and correlation between radiographic images and clinical assessment  
at this stage was crucial. Identifying the intrusion into the alveolar canal  
and immediate removal of the second implant provided the best potential  
for healing and minimizing nerve damage.  
f. Immediate removal of the Second Implant, where the placement had  
over-extended the safety zone, was the most prudent course of action. The  
ramifications of not following that course were serious. That lack of  
clinical judgment impeded the healing potential of the nerve and  
consequently created a higher chance of irreversible damage.  
g. Leaving the decision on whether to remove the Second Implant to the  
Patient was an error: “Where there is increased bleeding and at least the  
- 12 -  
potential of implant intrusion into the nerve canal, the decision on the  
need for a definitive diagnosis and the safest course of action is one for  
the specialist.”  
h. A competent practitioner, when faced with distortion in the panoramic  
image, should have undertaken further testing, whether that be a second  
panoramic image or a CBCT, which Dr. Wagner testified was available  
in Regina on the same date.  
i. Although the Discipline Committee had concerns with Dr. Hosseini’s  
approach following placement of the Second Implant, it accepted that the  
Patient likely under-reported his symptoms. Once the decision was made  
to leave the Second Implant in place, Dr. Hosseini’s follow-up with the  
Patient was appropriate.  
[37]  
The Discipline Committee then laid out its conclusions on the allegations  
against Dr. Hosseini:  
a. It did not find professional incompetence had been established  
demonstrating that Dr. Hosseini was unfit to continue in the practice of  
her profession or provide one or more services ordinarily provided as part  
of the practice of her profession.  
b. Nonetheless, it held that professional incompetence had been established  
in relation to her treatment of the Patient. The PCC conceded that it was  
not arguing that she is an incompetent practitioner but rather that she  
acted incompetently in her care of the Patient.  
c. Dr. Hosseini testified that she had upgraded her skills and training since  
the incident involving the Second Implant. She now performs a CBCT at  
- 13 -  
the outset of planning an implant. The Discipline Committee concluded  
that she therefore had taken the necessary measures to avoid a recurrence  
of the incident and the public’s welfare is not at risk.  
d. Based on the same evidence, the Discipline Committee found that Dr.  
Hosseini practiced her profession in a way that she was unable to give  
full force and effect to her training, experience and judgment as acquired  
during her education, contrary to s. 9.2(2)(x) of the Bylaws.  
e. The intrusion of the Second Implant into the IA canal was avoidable with  
proper planning. Dr. Hosseini’s failure to account for bone loss and  
choosing a 13 mm implant where there was insufficient space, displayed  
a lack of knowledge, skill or judgment and was professional  
incompetence within the meaning of the Act and contrary to s. 9.2(2)(x)  
of the Bylaws.  
f. Dr. Hosseini’s failure to undertake further exploration where increased  
bleeding was noted and the panoramic image showed at least a possibility  
of intrusion into the nerve canal displayed a lack of knowledge, skill or  
judgment and was professional incompetence within the meaning of the  
Act and contrary to s. 9.2(2)(x) of the Bylaws.  
g. Failure to remove the Second Implant also displayed a lack of knowledge,  
skill or judgment and was professional incompetence within the meaning  
of the Act and contrary to s. 9.2(2)(x) of the Bylaws.  
(c)  
Dr. Hosseini’s Bias Application  
[38]  
After the DC Decision was issued, on March 14, 2019, Dr. Hosseini  
initiated an application to the Discipline Committee claiming a reasonable  
- 14 -  
apprehension of bias and unfairness to her. I will merely summarize the grounds, as I  
will discuss them below in greater detail. In brief, Dr. Hosseini alleged that the decision  
appeared to have been made by a non-member of the profession (Bruce Gibson, the  
chair who also is a lawyer) who fulfilled conflicting roles of providing legal opinions  
to the Discipline Committee while also sitting as a decision-maker as a member of that  
same committee. That caused a lack of structural independence and deprived the  
Discipline Committee of the freedom to decide the case without improper external  
influence. The allegations stemmed from the costs incurred to have Bruce Gibson  
involved, which greatly exceeded the amounts billed by the dentist members of the  
Discipline Committee. Dr. Hosseini also alleged that the Discipline Committee’s  
findings, questioning and limitations on questioning gave rise to a reasonable  
apprehension of bias and concerns that it was not impartial.  
[39]  
The Discipline Committee determined that a reasonable apprehension of  
bias had not been established and dismissed the application.  
(d) Penalty Hearing and Decision  
[40]  
At the penalty hearing, the PCC argued that Dr. Hosseini’s conduct  
represented a significant failure to adhere to her professional obligations. The penalties  
requested by it were identical to what the Discipline Committee ordered with a single  
exception: the PCC asked for costs to reimburse the College, including legal expenses,  
in the amount of $90,038.96, being 75% of the College’s actual costs. The Discipline  
Committee instead ordered costs of $50,000.  
[41]  
During the penalty phase Dr. Hosseini alleged that the PCC had acted in  
bad faith leading up to that hearing. She alleged that the PCC sought increased costs  
arising from her refusal to abandon her arguments concerning a fair hearing. She  
advised the Discipline Committee that there were exchanges of offers concerning costs.  
- 15 -  
She argued that efforts to settle the penalty dispute prior to the sentencing hearing were  
not privileged and that such efforts should be considered when addressing penalty.  
[42]  
In particular, Dr. Hosseini took issue with the PCC’s position that she did  
not admit to a mistake in treating the Patient until her testimony before the Discipline  
Committee. In a letter to PCC counsel dated March 27, 2018, Dr. Hosseini’s counsel  
acknowledged that Placing the implant in the nerve canal was a mistake”. In the same  
letter, Dr. Hosseini’s counsel denied that Dr. Hosseini had been negligent, and asked  
for a mediated solution rather than have the discipline hearing proceed. That proposal  
was not accepted by the PCC. That letter, and various emails and correspondence  
exchanged between counsel concerning the negotiations over the quantum of costs,  
were marked for identification by the Discipline Committee. The Discipline Committee  
held that the PCC had not waived settlement privilege and determined the  
correspondence to be inadmissible.  
[43]  
As noted above, the penalty imposed by the Discipline Committee  
comprised the following: a formal reprimand, publication of the charges and penalties  
in a College newsletter, reimbursement of the Patient for $8,213, payment of the  
College’s costs to the extent of $50,000, and that the College deliver a copy of the DC  
Decision and the Penalty Decision to the governing body of dentists for Manitoba.  
D.  
STANDARD OF REVIEW  
(a)  
Introduction  
[44]  
As I will discuss below, more than one standard of review applies to this  
appeal. Many of the grounds raised by Dr. Hosseini fall into the category of  
discretionary decisions. Courts have framed the applicable standard of review for such  
decisions in various ways. Below I attempt to provide a single formulation.  
- 16 -  
[45]  
To the extent that any pure questions of law arise, the standard of review  
will be correctness. As well, the correctness standard applies to questions of procedural  
fairness.  
(b) What is the main standard of review to be applied?  
[46]  
The leading authority in Saskatchewan on standard of review in statutory  
professional discipline appeals is Strom v Saskatchewan Registered Nurses  
Association, 2020 SKCA 112, 453 DLR (4th) 472 [Strom]. Strom arose from charges  
against a registered nurse who had posted comments on social media about care her  
grandfather had received in the health care facility where he had died a month before  
the posts were made. Ms. Strom appealed her conviction to this Court. At the time  
Strom was argued to this Court, Canada (Minister of Citizenship and Immigration) v  
Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov], had not been decided. Indeed, it had  
not yet been decided when the appeal to Court of Appeal was initially argued in Strom.  
[47]  
Before turning to Strom, it is appropriate to consider s. 26 of the Act,  
under which Dr. Hosseini was charged. Section 26 represents important context when  
considering the standard of review. It reads as follows:  
Professional incompetence  
26 Professional incompetence is a question of fact, but the display  
by a member of a lack of knowledge, skill or judgment, or a  
disregard for the welfare of a member of the public served by the  
profession of a nature or to an extent that demonstrates that the  
member is unfit to:  
(a) continue in the practice of that member’s profession; or  
(b) provide one or more services ordinarily provided as a part of  
the practice of that member’s profession;  
is professional incompetence within the meaning of this Act.  
[48]  
Following is s. 27, which sets out what constitutes professional  
misconduct:  
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Professional misconduct  
27 Professional misconduct is a question of fact, but any matter,  
conduct or thing, whether or not disgraceful or dishonourable, is  
professional misconduct within the meaning of this Act if:  
(a) it is harmful to the best interests of the public or the  
members of the association;  
(b) it tends to harm the standing of the member’s profession;  
(c) it is a breach of this Act or the bylaws of that member’s  
association; or  
(d) it is a failure to comply with an order of the professional  
conduct committee, discipline committee or council of that  
member’s association.  
[49]  
The broad formulations of professional incompetence and professional  
misconduct are not unique to the Act. At paragraphs 66 and 67 of Strom, Barrington  
Foote J.A. observed that similar formulations exist for agrologists, registered  
psychiatric nurses, and accountants. At the end of oral argument, I invited counsel to  
provide written submissions as to what similar legislative provisions exist for other  
professions and received back extensive lists from each party. Similar provisions exist  
in at least 15 pieces of Saskatchewan legislation concerning self-governing professions.  
Sections 26 and 27 therefore do not exist in isolation. They represent part of a broader  
framework that has been established by the Legislature. Below I will discuss whether  
that has any implications for the standard of review.  
[50]  
Jurisprudence concerning standard of review has evolved with respect to  
professional discipline appeals. As noted in Strom at para 57, before Vavilov it was  
settled law that the standard of review on statutory appeals was the same as on judicial  
reviews. Vavilov held at para. 37 that “where the legislature has provided for an appeal  
from an administrative decision to a court, a court hearing such an appeal is to apply  
appellate standards of review to the decision”.  
[51]  
As noted in Strom, the appellate standards of review articulated in Housen  
- 18 -  
v Nikolaisen, 2002 SCC 33 at para 37, [2002] 2 SCR 235, do not include  
reasonableness. Rather, Barrington-Foote J.A. described the standards of review as  
follows:  
[59]  
Alleged errors of law including as to the scope of the  
decision-maker’s authority are reviewed on the correctness standard.  
Alleged errors of fact are reviewed on the palpable and overriding  
error standard. Absent an extricable question of law, the palpable and  
overriding standard also applies to alleged errors in the answer to a  
mixed question of fact and law.  
[60]  
If an alleged error relates to a discretionary decision, the  
standard of review as it is generally expressed in Saskatchewan is that  
an appellate court will intervene only if the decision-maker erred in  
principle, misapprehended or failed to consider material evidence,  
failed to act judicially, or reached a decision so clearly wrong that it  
would result in an injustice: Rimmer v Adshead, 2002 SKCA 12 at  
para 58, [2002] 4 WWR 119 [Rimmer]; Saskatchewan Crop Insurance  
Corporation v McVeigh, 2018 SKCA 76 at para 26, 428 DLR (4th)  
122 [McVeigh]; Abrametz v Law Society of Saskatchewan, 2020  
SKCA 81 at para 74. Other courts have used different language to  
describe the standard relating to discretionary decisions. In Penner v  
Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2  
SCR 125 [Penner], for example, Cromwell and Karakatsanis JJ. said  
this:  
[27] A discretionary decision of a lower court will be  
reversible where that court misdirected itself or came to a  
decision that is so clearly wrong that it amounts to an  
injustice: Elsom v. Elsom, [1989] 1 S.C.R. 1367, at p. 1375.  
Reversing a lower court’s discretionary decision is also  
appropriate where the lower court gives no or insufficient  
weight to relevant considerations: Friends of the Oldman  
River Society v. Canada (Minister of Transport), [1992] 1  
S.C.R. 3, at pp. 7677.  
[61] The Penner formulation of this standard has been adopted by  
courts of appeal in several provinces: see, for example, 1944949  
Ontario Inc. (OMG ON THE PARK) v 2513000 Ontario Ltd., 2019  
ONCA 628 at para 13; Kish v Sobchak Estate, 2016 BCCA 65 at para  
34, 394 DLR (4th) 385; Lamb v Canada (Attorney General), 2018  
BCCA 266 at paras 4647, [2018] 9 WWR 1; Twinn v Twinn, 2017  
ABCA 419 at para 14. See also, to the same effect, Canada (Attorney  
General) v Fontaine, 2017 SCC 47 at para 31, [2017] 2 SCR 205.  
[62] I read the test described in Penner as the same in substance as  
that described in McVeigh. McVeigh is helpful in explicitly making  
- 19 -  
the point that a misapprehension of or failure to consider material  
evidence which constitutes an error of law or principle may justify  
appellate intervention. Penner is helpful in explicitly stating that a  
failure to give any or sufficient weight to a relevant consideration may  
also do so, although it must be kept in mind that the allocation of  
weight is, within the limits of the discretion granted, for the initial  
decision-maker. An appellate court is not entitled to substitute its own  
discretion for that of the trial court or chambers judge merely because  
it would have exercised the original discretion differently: Friends of  
the Oldman River Society v Canada (Minister of Transport), [1992] 1  
SCR 3 at 7677.  
[Emphasis added]  
[52]  
The analysis does not end there, however, as s. 26 and its many  
counterparts state that professional incompetence “is a question of fact, but …”. That  
compels a court to consider whether and how the “question of fact” formulation impacts  
the standard of review. Barrington-Foote J.A. discussed this extensively in Strom. In  
the following passage, he reviewed the history behind the “question of fact” language  
used in ss. 26 and 27 of the Act and their counterpart provisions, and determined that  
the statement in section 26(1) that professional misconduct is a question of fact does  
not preclude review or conclusively settle what the standard of review will be:  
[66]  
Does the statement in s. 26(1) that professional misconduct  
is a question of fact conclusively settle the standard of review  
question? The effect of using that phrase in s. 26(1) was not considered  
by the Chambers judge and has not otherwise been judicially  
considered. However, the use of this curious language to describe  
decisions as to professional misconduct is not unique to the Act. It  
appears to have first been used in Alberta in 1928: An Act to amend  
The Medical Profession Act, SA 1928, c 33, s 9. It no longer appears  
in this context in that province. In Saskatchewan, it appeared in s. 17  
of An Act respecting The Institute of Chartered Accountants of  
Saskatchewan, SS 1934, c 41. See also, for example, s. 18 of the  
British Columbia Legal Professions Act Amendment Act, 1948, SBC  
1948, c 36.  
[67] It presently appears in this context in many Saskatchewan  
professional regulatory statutes: see, for example, The Agrologists Act,  
1994, SS 1994, c A-16.1, s 28; The Registered Psychiatric Nurses Act,  
SS 1993, c R-13.1, s 28; The Accounting Profession Act, SS 2014, c  
A-3.1, s 26. The standard of review has been considered in relation to  
some of these statutes. In Davies v Council of The Institute of  
- 20 -  
Chartered Accountants of Saskatchewan (1985), 19 DLR (4th) 447  
() (Sask QB), the Institute argued that a provision that stated  
the issue of professional misconduct was “a question of fact for the  
sole and final determination of the council or the disciplinary  
committee” (The Chartered Accountants Act, RSS 1978, c C-7, s 8(2))  
meant that it had an “unfettered right to determine the existence of  
what unprofessional conduct amounts to” (at para 49). Justice  
MacLeod rejected that argument, commenting as follows:  
[50] Taken at face value, the provision would defeat any  
appeal. This could not have been intended. Rather, I hold that s.  
18(1) is a declaration of the responsibilities of the Institute or  
Discipline Committee, but it is not intended to frustrate the right  
of appeal.  
[69] There are also several decisions touching this issue that were  
made after Dunsmuir, but prior to Vavilov, and thus at a time when it  
was settled law that the standard of review on statutory appeals was  
the same as that on judicial review: Edmonton East at paras 2930. As  
such, the choice was between reasonableness and correctness. In each  
of those cases, the Court adopted the reasonableness standard. In  
Cameron v The Saskatchewan Institute of Agrologists, 2018 SKCA 91  
[Cameron], for example, this Court applied a reasonableness standard  
to a finding that Mr. Cameron had been guilty of professional  
misconduct. The standard of review was not at issue, as the parties had  
agreed to that standard. However, the Court did refer to Meier v  
Saskatchewan Institute of Agrologists, 2014 SKQB 389 at para 27,  
[2015] 3 WWR 608 [Meier], where Layh J., having referred to the use  
of the phrase “question of fact” in the statute, commented that  
“[f]indings of fact are the purview of the discipline committee and  
command a high degree of deference when subjected to judicial  
review thence the appropriateness of the ‘reasonableness’ standard”.  
Justice Layh’s reasoning on this point was not disturbed on appeal  
(Meier v Saskatchewan Institute of Agrologists, 2016 SKCA 116, 405  
DLR (4th) 506).  
[70] The reasonableness standard was also applied in Sydiaha v  
Saskatchewan College of Psychologists, 2014 SKQB 112 at paras 10–  
13, 443 Sask R 139, and Pomarenski v Saskatchewan Veterinary  
Medical Association Professional Conduct Committee, 2019 SKQB  
264 at paras 1113. In both cases, Currie J. referred to the use of the  
phrase “question of fact” in the statutes as one of several factors which  
supported that conclusion. He also referred to the fact that the  
regulators had been granted broad powers to decide whether a member  
was guilty of professional misconduct, that misconduct and  
incompetence are most familiar to those in the profession (the  
“expertise” factor which, post-Vavilov, is no longer relevant in  
- 21 -  
determining the standard of review), and that these administrative  
bodies were interpreting their home statutes.  
[71] Given that the appellate standard now applies, the bottom-line  
conclusion in these cases that the reasonableness standard applies is  
not authoritative. However, they are of interest in that these courts did  
not treat the phrase “question of fact” as having conclusively  
determined the standard of review, although both Meier and Cameron  
suggest that language might leave the court with “little choice” but to  
select the deferential reasonableness standard. Rather, the courts also  
considered other factors which confirmed that the Legislature had  
granted broad authority to the professional regulators that made the  
decisions being appealed.  
[72] In my view, that is the correct approach. Indeed, it is self-evident  
that the exercise undertaken by the Discipline Committee cannot be  
characterized as deciding a question of fact simpliciter for standard of  
review purposes. Issues will arise on an appeal of a finding of  
professional misconduct that are not questions of fact. That is so in  
this case, where Ms. Strom and the SRNA have raised questions as to  
the interpretation of s. 26(1) of the Act. Questions of statutory  
interpretation are questions of law. Indeed, the statutory framework is  
always in play, regardless of whether there is an extricable question of  
law. This fundamental “rule of law” principle, which is central to this  
case, was reiterated in Vavilov:  
[108] Because administrative decision makers receive their  
powers by statute, the governing statutory scheme is likely to be  
the most salient aspect of the legal context relevant to a particular  
decision. That administrative decision makers play a role, along  
with courts, in elaborating the precise content of the  
administrative schemes they administer should not be taken to  
mean that administrative decision makers are permitted to  
disregard or rewrite the law as enacted by Parliament and the  
provincial legislatures. Thus, for example, while an administrative  
body may have considerable discretion in making a particular  
decision, that decision must ultimately comply “with the rationale  
and purview of the statutory scheme under which it is adopted”:  
Catalyst, at paras. 15 and 25-28; see also Green, at para. 44. As  
Rand J. noted in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p.  
140, “there is no such thing as absolute and untrammelled  
‘discretion’”, and any exercise of discretion must accord with the  
purposes for which it was given: see also Congrégation des  
témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 7; Montréal  
(City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R.  
427, at paras. 32-33; Nor-Man Regional Health Authority, at para.  
6. Likewise, a decision must comport with any more specific  
constraints imposed by the governing legislative scheme, such as  
the statutory definitions, principles or formulas that prescribe the  
- 22 -  
exercise of a discretion: see Montréal (City), at paras. 33 and 40-  
41; Canada (Attorney General) v. Almon Equipment Limited,  
2010 FCA 193, [2011] 4 F.C.R. 203, at paras. 38-40. The statutory  
scheme also informs the acceptable approaches to decision  
making: for example, where a decision maker is given wide  
discretion, it would be unreasonable for it to fetter that discretion:  
see Delta Air Lines [2018 SCC 2], at para. 18.  
[73] In the result, a discipline committee deciding whether a registered  
nurse is guilty of professional misconduct is not deciding a question  
of fact for standard of review purposes. It is either deciding a question  
of mixed fact and law or making a discretionary decision. As to which,  
there is no bright line which neatly divides these two categories. Both  
call for the decision-maker to find the facts and apply legal principles  
to those facts. …  
[Emphasis added]  
[53]  
Next, Barrington-Foote J.A. found that the “question of fact” phrase was  
intended by the Legislature to limit appellate review. It represents a direction to courts  
to give a discipline committee broad discretion to determine what constitutes  
professional misconduct or, in this case, professional incompetence:  
[76] Notwithstanding the absence of a bright line between questions  
of fact and law and discretionary decisions, there are considerations  
that bear on the proper characterization of the professional misconduct  
issues in this appeal. I would begin with the obvious; that is, that the  
Act explicitly states that professional misconduct is a question of fact.  
In my view, the Legislature’s choice of that phrase was intended to  
limit appellate review. Put differently, it confirms that the Legislature  
intended the Discipline Committee to have broad discretion to  
determine what constitutes professional misconduct.  
[77] This conclusion accords with the language of s. 26(1), read in  
accordance with the modern principle of interpretation; that is, in its  
grammatical and ordinary sense and in light of the purpose of the Act  
and the intention of the Legislature: Rizzo & Rizzo Shoes Ltd. (Re),  
[1998] 1 SCR 27; The Legislation Act, SS 2019, c L-10.2, s 2-10. In  
broad terms, that purpose is to provide for an independent professional  
regulatory body to license and regulate registered nurses, with an  
overriding objective or primary purpose of safeguarding the public  
interest …  
[81] Further, and in particular, interpreting the use of the phrase  
“question of fact” in s. 26(1) as having been intended to grant broad  
- 23 -  
discretion to the Discipline Committee accords with the nature of the  
“facts” at issue when misconduct is alleged. Section 26(1) confirms  
that those facts include not only the particular conduct of the registered  
nurse which includes but is not limited to the specific misconduct  
identified in s. 26(2) but findings as to the impact of misconduct on  
the best interests of the public, nurses or the standing of the profession.  
These are inherently broad, policy-laden concepts. The notion of  
“palpable and overriding error” seems illsuited to the appellate review  
of questions of this kind, as compared to the more encompassing  
standard of review for discretionary decisions.  
[84] I also note that decisions by professional regulators as to whether  
there has been professional misconduct have often been explicitly  
described in the case law as discretionary decisions.  
[86] Taking all of these factors into account, I conclude that the  
decision as to whether Ms. Strom’s conduct amounted to professional  
misconduct within the meaning of s. 26(1) was a discretionary  
decision. As such, the standard of review is that described in Rimmer,  
McVeigh, Okanagan and Penner. That standard accommodates the  
review of the errors that have been alleged by Ms. Strom and SUN.  
[Emphasis added]  
[54]  
From the analysis in Strom (not all of which has been reproduced here),  
the following principles may be drawn:  
a. Questions as to what is professional incompetence, to the extent that  
they involve purely statutory interpretation, are questions of law.  
While a tribunal may have considerable discretion, its decision must  
ultimately comply with the rationale and purview of the relevant  
statutory scheme. However, there are limited contexts in which pure  
questions of law will arise.  
b. A discipline committee deciding whether a professional is guilty of  
professional incompetence is not deciding a question of fact, for the  
purpose of determining the standard of review. It is either deciding a  
question of mixed fact and law, or making a discretionary decision. In  
- 24 -  
either case, the tribunal must find the facts and apply legal principles  
to those facts.  
c. The statement that professional incompetence is a question of fact was  
intended by the Legislature to limit appellate review. It confirms that  
the Legislature intended that any discipline committee would have  
broad discretion to determine what constitutes professional  
incompetence.  
d. The public interest and effective professional regulation are not  
separate. Although the primary purpose of legislation that regulates  
professions is protection of the public, the public interest is also  
served by having self-governing professions that function properly.  
See Strom at para 27. Because protection of the public and the  
standing of the profession may entail broad, policy-laden concepts,  
“palpable and overriding error” is not an appropriate standard of  
review.  
[55]  
Therefore, for the most part it is appropriate to use the standard of review  
applicable to discretionary decisions. That standard has been expressed in multiple  
ways that I will explore below.  
(c)  
What is the content of the standard of review applicable to  
discretionary decisions?  
[56]  
As noted above, Strom directs that the primary standard of review to be  
applied in a statutory appeal of this nature is that applicable to discretionary decisions.  
However, Barrington-Foote J.A. did not set out a single formulation of that standard of  
review, instead referring to numerous decisions that contained at least slightly differing  
formulations. I will not attempt to provide an exhaustive review, but examples include  
- 25 -  
the following:  
a. In Penner v Niagara (Regional Police Services Board), 2013 SCC 19,  
[2013] 2 SCR 125, the standard of review was described as follows:  
[27] A discretionary decision of a lower court will be  
reversible where that court misdirected itself or came to a  
decision that is so clearly wrong that it amounts to an injustice.  
Reversing a lower court’s discretionary decision is also  
appropriate where the lower court gives no or insufficient  
weight to relevant considerations ….  
In Strom, Barrington-Foote J.A. praised that phrasing for explicitly  
stating that failure to give sufficient weight to a relevant consideration  
may be a reversible error, while cautioning that the allocation of  
weight belongs with the decision-maker of first instance.  
b. In Rimmer v Adshead, 2002 SKCA 12, [2002] 4 WWR 119, the Court  
of Appeal framed the standard of review applicable to its review of  
discretionary decisions by Queen’s Bench judges:  
[58]  
the powers in issue are discretionary and therefore  
fall to be exercised as the judge vested with them thinks fit,  
having regard for such criteria as bear upon their proper  
exercise. The discretion is that of the judge of first instance,  
not ours. Hence, our function, at least at the outset, is one of  
review only: review to determine if, in light of such criteria,  
the judge abused his or her discretion. Did the judge err in  
principle, disregard a material matter of fact, or fail to act  
judicially? Only if some such failing is present are we free to  
override the decision of the judge and do as we think fit. Either  
that, or the result must be so plainly wrong as to amount to an  
injustice and invite intervention on that basis.  
c. The Court of Appeal slightly reframed the standard of review in  
Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA  
76, [2019] 1 WWR 290 [McVeigh]. In Strom, Barrington-Foote J.A.  
described this formulation as helpful in expressing that  
misapprehension of or failure to consider material evidence may  
- 26 -  
justify appellate intervention. As Schwann J.A. stated in McVeigh:  
[27]  
an appellate court should only interfere if a  
chambers judge erred in principle, misapprehended or  
overlooked material evidence, took irrelevant factors into  
consideration, failed to act judicially or reached a decision that  
was so clearly wrong that the decision will result in an  
injustice …  
c. Finally, Barrington-Foote J.A. referenced British Columbia (Minister  
of Forests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR  
371, which stated:  
43 As I observed in R. v. Regan, [2002] 1 S.C.R. 297, 2002  
SCC 12, however, discretionary decisions are not completely  
insulated from review (para. 118). An appellate court may and  
should intervene where it finds that the trial judge has  
misdirected himself as to the applicable law or made a  
palpable error in his assessment of the facts. As this Court held  
in Pelech v. Pelech, [1987] 1 S.C.R. 801, at p. 814-5, the  
criteria for the exercise of a judicial discretion are legal  
criteria, and their definition as well as a failure to apply them  
or a misapplication of them raise questions of law which are  
subject to appellate review.  
[57]  
In light of the guidance from Strom and the decisions discussed above, a  
discretionary decision of a tribunal will be reversible where it:  
a. misdirected itself as to the applicable law;  
b. made a palpable error in assessment of the facts;  
c. misapprehended or overlooked material evidence;  
d. gave no or insufficient weight to relevant considerations; or  
e. failed to act “judicially” or came to a decision that is so clearly wrong  
that it amounts to an injustice.  
- 27 -  
[58]  
That is the standard of review that I will apply to discretionary decisions  
of the Discipline Committee.  
(d) Does a separate standard of review apply to interpretation of s. 26 of  
the Act?  
[59]  
One ground for appeal advanced by Dr. Hosseini has at least the potential  
to bring even further considerations to bear. That ground reads as follows:  
3. THAT the appeal is taken upon the following grounds:  
a. That the Discipline Committee erred in law and deprived the  
Appellant of a fair hearing by incorrectly interpreting and  
applying The Dental Disciplines Act and bylaws of the College of  
Dental Surgeons of Saskatchewan and specifically misinterpreted  
and misapplied s. 26 of the Act:  
i) by concluding a single incident involving an ordinary  
error amounted to Professional Incompetence;  
[60]  
Dr. Hosseini says that s. 26 of the Act requires a finding of general  
incompetence for the Discipline Committee to have convicted. She argues that no  
conviction is possible under s. 26 for a single incident, and that she cannot be convicted  
for professional incompetence where she was not found to be generally incompetent.  
She argues that only if she had been charged under s. 27 (Professional Misconduct)  
would it have been possible to convict her for the errors she made concerning the  
Procedure.  
[61]  
I raise that here because of the very similar definitions for professional  
incompetence and professional misconduct that appear in legislation for self-governing  
professions. As noted above, there are at least 15 such instances in Saskatchewan  
legislation. From a factual point of view, dentists, doctors, accountants, lawyers,  
agrologists, etc., are in the best position to determine what is incompetence or  
- 28 -  
misconduct in their respective professions. Nonetheless, with the Legislature having  
used the same formulation concerning so many self-governing professions, is it  
desirable that we could end up with a patchwork of decisions saying that for one  
profession a single act can amount to professional incompetence, but for others a single  
act would not suffice (that a general level of incompetence would be needed to be  
proven to convict)? If that is not desirable from a public policy perspective, is there a  
distinct standard of review that should be applied in determining whether a discipline  
committee interpreted its own legislation correctly? Should a discipline committee be  
expected to also consider the broader framework created by the Legislature generally  
for self-governing professions and, if so, what standard of review should be applied to  
that?  
[62]  
At least a potential answer lies within Vavilov itself. It contemplated that  
a correctness standard may apply in certain situations. The majority stated as follows:  
[53]  
In our view, respect for the rule of law requires courts to apply  
the standard of correctness for certain types of legal questions:  
constitutional questions, general questions of law of central  
importance to the legal system as a whole and questions regarding the  
jurisdictional boundaries between two or more administrative bodies.  
The application of the correctness standard for such questions respects  
the unique role of the judiciary in interpreting the Constitution and  
ensures that courts are able to provide the last word on questions for  
which the rule of law requires consistency and for which a final and  
determinate answer is necessary: Dunsmuir, at para. 58.  
[63]  
The concept of general questions of law of central importance to the legal  
system springs from prior Supreme Court jurisprudence, including Dunsmuir v New  
Brunswick, 2008 SCC 9, [2008] 1 SCR 190. In Vavilov, the majority said the following:  
[58] In Dunsmuir, a majority of the Court held that, in addition to  
constitutional questions, general questions of law which are “both of  
central importance to the legal system as a whole and outside the  
adjudicator’s specialized area of expertise” will require the application  
of the correctness standard: para. 60, citing Toronto (City) v. C.U.P.E.,  
Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62, per LeBel J.,  
- 29 -  
concurring. We remain of the view that the rule of law requires courts  
to have the final word with regard to general questions of law that are  
“of central importance to the legal system as a whole”. However, a  
return to first principles reveals that it is not necessary to evaluate the  
decision maker’s specialized expertise in order to determine whether  
the correctness standard must be applied in cases involving such  
questions. As indicated above (at para. 31) of the reasons, the  
consideration of expertise is folded into the new starting point adopted  
in these reasons, namely the presumption of reasonableness review.  
[59] As the majority of the Court recognized in Dunsmuir, the key  
underlying rationale for this category of questions is the reality that  
certain general questions of law “require uniform and consistent  
answers” as a result of “their impact on the administration of justice  
as a whole”: Dunsmuir, para. 60. In these cases, correctness review is  
necessary to resolve general questions of law that are of “fundamental  
importance and broad applicability”, with significant legal  
consequences for the justice system as a whole or for other institutions  
of government: see Toronto (City), at para. 70; Alberta (Information  
and Privacy Commissioner) v. University of Calgary, 2016 SCC 53,  
[2016] 2 S.C.R. 555, at para. 20; Canadian National Railway [2014  
SCC 40], at para. 60; Chagnon v. Syndicat de la fonction publique et  
parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at para.  
17; Saguenay [2015 SCC 16], at para. 51; Canada (Canadian Human  
Rights Commission) v. Canada (Attorney General), 2011 SCC 53,  
[2011] 3 S.C.R. 471 (“Mowat”), at para. 22; Commission scolaire de  
Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC  
8, [2016] 1 S.C.R. 29, at para. 38. For example, the question in  
University of Calgary [2016 SCC 53] could not be resolved by  
applying the reasonableness standard, because the decision would  
have had legal implications for a wide variety of other statutes and  
because the uniform protection of solicitor-client privilege at issue  
in that case is necessary for the proper functioning of the justice  
system: University of Calgary, at paras. 19-26. As this shows, the  
resolution of general questions of law “of central importance to the  
legal system as a whole” has implications beyond the decision at hand,  
hence the need for “uniform and consistent answers”.  
[60] This Court’s jurisprudence continues to provide important  
guidance regarding what constitutes a general question of law of  
central importance to the legal system as a whole. For example, the  
following general questions of law have been held to be of central  
importance to the legal system as a whole: when an administrative  
proceeding will be barred by the doctrines of res judicata and abuse  
of process (Toronto (City), at para. 15); the scope of the state’s duty  
of religious neutrality (Saguenay, at para. 49); the appropriateness of  
limits on solicitor-client privilege (University of Calgary, at para. 20);  
and the scope of parliamentary privilege (Chagnon, at para. 17). We  
- 30 -  
caution, however, that this jurisprudence must be read carefully, given  
that expertise is no longer a consideration in identifying such  
questions: see, e.g., CHRC [2018 SCC 31], at para. 43.  
[61] We would stress that the mere fact that a dispute is “of wider  
public concern” is not sufficient for a question to fall into this category  
nor is the fact that the question, when framed in a general or abstract  
sense, touches on an important issue: see, e.g., Communications,  
Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp  
& Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 66; McLean  
[2013 SCC 67], at para. 28; Barreau du Québec v. Quebec (Attorney  
General), 2017 SCC 56, [2017] 2 S.C.R. 488, at para. 18. The case  
law reveals many examples of questions this Court has concluded are  
not general questions of law of central importance to the legal system  
as a whole. These include whether a certain tribunal can grant a  
particular type of compensation (Mowat, at para. 25); when estoppel  
may be applied as an arbitral remedy (Nor-Man Regional Health  
Authority Inc. v. Manitoba Association of Health Care Professionals,  
2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 37-38); the interpretation  
of a statutory provision prescribing timelines for an investigation  
(Alberta Teachers [2011 SCC 61], at para. 32); the scope of a  
management rights clause in a collective agreement (Irving Pulp &  
Paper, at paras. 7, 15-16 and 66, per Rothstein and Moldaver JJ.,  
dissenting but not on this point); whether a limitation period had been  
triggered under securities legislation (McLean, at paras. 28-31);  
whether a party to a confidential contract could bring a complaint  
under a particular regulatory regime (Canadian National Railway, at  
para. 60); and the scope of an exception allowing non-advocates to  
represent a minister in certain proceedings (Barreau du Québec, at  
paras. 17-18). As these comments and examples indicate, this does not  
mean that simply because expertise no longer plays a role in the  
selection of the standard of review, questions of central importance  
are now transformed into a broad catch-all category for correctness  
review.  
[62] In short, general questions of law of central importance to the  
legal system as a whole require a single determinate answer. In cases  
involving such questions, the rule of law requires courts to provide a  
greater degree of legal certainty than reasonableness review allows.  
[Emphasis added]  
[64]  
At paras. 71 to 72, the Vavilov majority addressed a potential  
circumstance similar to the patchwork issue that I raise above. Amici curiea had argued  
that the Supreme Court should recognize an additional category of legal questions that  
would be reviewed on correctness, being legal questions where there is persistent  
- 31 -  
discord or internal disagreement within an administrative body leading to legal  
incoherence. The concept was that the rule of law breaks down where legal  
inconsistency becomes the norm. The concern I raise is anticipatory. The amici curiea  
were concerned about actual situations that could be identified. The majority were  
unwilling to have a correctness test apply even in those actual situations:  
[72] We are not persuaded that the Court should recognize a distinct  
correctness category for legal questions on which there is persistent  
discord within an administrative body. In Domtar Inc. v. Quebec  
(Commission d’appel en matière de lésions professionnelles), [1993]  
2 S.C.R. 756, this Court held that “a lack of unanimity [within a  
tribunal] is the price to pay for the decision-making freedom and  
independence given to the members of these tribunals”: p. 800; see  
also Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC  
4, [2001] 1 S.C.R. 221, at para. 28. That said, we agree that the  
hypothetical scenario suggested by the amici curiae in which the  
law’s meaning depends on the identity of the individual decision  
maker, thereby leading to legal incoherence is antithetical to the  
rule of law. In our view, however, the more robust form of  
reasonableness review set out below, which accounts for the value of  
consistency and the threat of arbitrariness, is capable, in tandem with  
internal administrative processes to promote consistency and with  
legislative oversight (see Domtar, at p. 801), of guarding against  
threats to the rule of law. Moreover, the precise point at which internal  
discord on a point of law would be so serious, persistent and  
unresolvable that the resulting situation would amount to “legal  
incoherence” and require a court to step in is not obvious. Given these  
practical difficulties, this Court’s binding jurisprudence and the  
hypothetical nature of the problem, we decline to recognize such a  
category in this appeal.  
[65]  
Having determined in Vavilov that significant variation between  
decisions was not an appropriate circumstance for the creation of a separate category  
where a correctness standard will apply, the Supreme Court would seem unlikely to  
approve the creation of a category to avoid a patchwork of decisions across discipline  
tribunals governing Saskatchewan’s self-regulated professions. Moreover, there seems  
to be little basis to hold that the similar formulations in definitions of professional  
incompetence and professional misconduct would represent general questions of law of  
central importance to the legal system as a whole.  
- 32 -  
[66]  
In Premier Horticulture Ltd. v United Steel, Paper and Forestry, Rubber,  
Manufacturing, Energy, Allied Industrial and Service Workers International Union,  
Local 1‐184, 2020 SKQB 77, Scherman J. held that a tribunal’s treatment of settlement  
privilege would not fall in the category of general questions of law of central  
importance. Although the context was different, as it pertained to the applicability of  
statutory limitation periods, I am persuaded that the settlement privilege issue raised by  
Dr. Hosseini is no more of central importance to the legal system as a whole than was  
the issue before Justice Scherman, such that the correctness test should not be applied  
to that ground of appeal.  
[67]  
Therefore, except as discussed next regarding issues of procedural  
fairness, I will use the standard applicable to discretionary decisions that I have outlined  
above.  
(e)  
What is the standard of review for questions of procedural fairness  
and natural justice?  
[68]  
The standard of review for such questions was not discussed in Strom,  
but was canvassed in Abrametz v Law Society of Saskatchewan, 2020 SKCA 81  
[Abrametz]. Abrametz is under appeal to the Supreme Court. Pending determination of  
that appeal, it governs here. Barrington-Foote J.A. found that matters of procedural  
fairness, which include a reasonable apprehension of bias, result in loss of jurisdiction  
and this raises a question of law. See paras. 86 to 88 (the overall discussion from paras.  
86 to 105 is also instructive).  
[69]  
The applicable standard of review on such issues is correctness: Abrametz  
at paras 98 to 99. See also: Saskatoon (City) v Amalgamated Transit Union, Local 615,  
2017 SKCA 96 at paras 24 to 32, [2018] 4 WWR 822, Feng v Saskatchewan (Economy),  
2020 SKCA 6 at para 43, 70 Admin LR (6th) 237 and South East Cornerstone School  
Division No. 209 v Oberg, 2021 SKCA 28 at para 33.  
- 33 -  
E.  
ANALYSIS  
[70]  
I will deal with the grounds of appeal individually. Except where noted,  
the standard of review to be applied is that applicable to discretionary decisions.  
Ground (a)(i) The Discipline Committee erred by concluding a single  
incident involving an ordinary error amounted to  
professional incompetence  
(a)  
Standard of review  
[71]  
I will apply the “discretionary decision” standard of review to this ground  
of appeal. The alternative would be correctness, on the basis that this ground could be  
viewed as raising a pure question of law. In my view, it does not raise a pure question  
of law.  
[72]  
In Strom, Barrington-Foote J.A. analyzed a similar but not identical  
provision s. 26(1) of The Registered Nurses Act, 1988, SS 1988-89, c R-12.2. His  
most germane comments may be summarized and paraphrased as follows:  
a. At para. 76: The Registered Nurses Act, 1988 states that professional  
misconduct is a question of fact. The Legislature used that phrase to  
limit appellate review. Put another way: the Legislature intended the  
Discipline Committee to have broad discretion to determine what  
constitutes professional misconduct”.  
b. At paras. 77 to 80, Barrington-Foote J.A. discusses the overriding  
purpose of protection of the public interest as being the objective of  
such professional regulation. The grant of authority to discipline  
needs to be interpreted in that light. The Legislature must be seen as  
having given broad discretion to a discipline committee to deal with  
the myriad circumstances in which the conduct of a registered nurse  
- 34 -  
could negatively impact the public interest …”. (para. 80)  
[73]  
Accordingly, the Discipline Committee, in interpreting s. 26 of the Act,  
was not undertaking an exercise of pure legal construction of a statute. Rather, it was  
exercising discretion as to what constitutes professional incompetence. The Legislature  
has shown its intention that discretion is to be accorded to the Discipline Committee,  
and the correctness test does not apply. The appropriate standard of review is the  
discretionary decision standard.  
(b) Analysis  
[74]  
It is common ground that Dr. Hosseini made an error. She makes several  
arguments as to why it was an error by the Discipline Committee to have found her  
guilty of professional incompetence. They are as follows. I will deal with each, though  
not in the same order as they appear below.  
a. Unfitness is central to the definition of professional incompetence. To  
find a member guilty of a charge under s. 26, a discipline committee  
must either hold that the member is unfit to practice generally or unfit  
to provide one or more services ordinarily provided by her.  
b. Section 26 set out an exhaustive list of the circumstances in which a  
member can be found professionally incompetent.  
c. A finding of unfitness cannot be based on one simple mistake a  
mistake or course of deficient conduct must amount to gross  
negligence.  
d. The Discipline Committee found at paragraph 111 of the DC Decision  
that professional incompetence had not been established  
demonstrating that Dr. Hosseini was unfit to continue in the practice  
- 35 -  
of her profession or provide one or more services ordinarily provided  
as part of the practice of her profession.”  
e. The Discipline Committee “put the cart before the horse” by looking  
to the sentencing powers, which included lesser penalties such as  
reprimands, to justify its decision to ignore the requirement of  
unfitness.  
f. The Discipline Committee erred by finding that a contravention of the  
Bylaws amounts to professional incompetence.  
[75]  
I find that the Discipline Committee did not commit an error in respect of  
this ground. I will elaborate below.  
(i) Does s. 26 of the Act set out an exhaustive list of circumstances in which  
a member can be found professionally incompetent?  
[76]  
In respect of this issue, the College and Dr. Hosseini hold diametrically  
different views on how to interpret s. 26. Again, s. 26 reads as follows:  
Professional incompetence  
26 Professional incompetence is a question of fact, but the display  
by a member of a lack of knowledge, skill or judgment, or a  
disregard for the welfare of a member of the public served by the  
profession of a nature or to an extent that demonstrates that the  
member is unfit to:  
(a) continue in the practice of that member’s profession; or  
(b) provide one or more services ordinarily provided as a part of  
the practice of that member’s profession;  
is professional incompetence within the meaning of this Act.  
[77]  
Although the Discipline Committee convicted Dr. Hosseini of  
professional incompetence under s. 26, it did not find that she was so unfit as to be  
required to discontinue practice or the provision of any services. Paragraph 111 of the  
- 36 -  
DC Decision states:  
The Committee does not find professional incompetence has been  
established demonstrating Dr. H is unfit to continue in the practice of  
her profession or provide one or more services ordinarily provided as  
a part of the practice of her profession. …  
[78]  
The essence of Dr. Hosseini’s argument is that it is impossible to convict  
under s. 26 without finding that the member is unfit to practice generally or unfit to  
provide one or more services ordinarily provided by her, i.e., that s. 26 sets out an  
exclusive list of circumstances in which a member may be convicted of professional  
incompetence. She argues that unfitness is central to the legal definition of professional  
incompetence, and that the Discipline Committee was precluded from convicting her  
once it made that finding quoted above from paragraph 111.  
[79]  
That argument was made to the Discipline Committee, which analyzed  
the point as follows:  
74. The Committee does not agree. This logic ignores the role the  
Committee must perform in protecting the public by being able to  
review the specific conduct of dental practitioners licensed under  
the Act, where a member of the public has been harmed through  
specific steps taken during a procedure. Simply put, occasions will  
arise where a lack of knowledge, skill or judgment is  
demonstrated, and a procedure is performed in an incompetent  
manner. The Committee finds it is not limited to a finding of  
incompetence only where subsections (a) and (b) of section 26 are  
met; section 26 is a non-exhaustive definition (Sullivan on the  
Constructions of Statutes) which allows the Committee to  
determine if specific conduct fits within a general category of  
professional incompetence. Nevertheless, it may still be  
demonstrated the particular practitioner has continued to practice  
and has performed similar procedures without incident. It may  
also be shown they have upgraded their skills and education.  
Consequently, they may have shown they are fit to practice and  
provide such services but can still be found to have acted in an  
incompetent manner.  
[Emphasis added]  
[80]  
The College says the Legislature cannot have intended to hamstring the  
- 37 -  
Discipline Committee, thereby depriving the Patient of any professional complaint  
against Dr. Hosseini, simply because the Procedure constituted a single incident and  
not a pattern. Further, the College argues that it defies logic for the Discipline  
Committee to be precluded from sanctioning an incident of sufficiently poor judgment  
or performance until others are harmed so as to establish a pattern.  
[81]  
Certain considerations bear on my evaluation of this issue. First, there is  
the standard of review, which requires me to pay substantial deference to a discretionary  
decision.  
[82]  
Second, long before Strom, courts considered it necessary to interpret  
such provisions broadly and inclusively. In Nanson v Saskatchewan College of  
Psychologists, 2013 SKQB 191, 421 Sask R 58 [Nanson], Danyliuk J. stated the  
following in respect of s. 26 of The Psychologists Act, 1997, SS 1997, c P-36.01:  
[24]  
Professional regulators frequently have a wide or inclusive  
definition of prohibited conduct. This is to ensure that a regulator is  
not restricted from dealing with conduct that requires attention from  
the perspective of protection of the public.  
[83]  
The argument that s. 26 creates an exhaustive list is largely answered in  
Strom, though there are some differences from the provision in issue there. At para. 99,  
Barrington Foote J.A. stated:  
[99]  
[S]. 26(1) of the Act must be interpreted in accordance with  
the modern principle of statutory interpretation. With that in mind, I  
would first note that the ordinary and grammatical meaning of the  
provision, read in context and in light of the purpose of the Act as a  
whole, does not suggest the words after “question of fact” are intended  
to be an exclusive definition. Section 26(1) says first that professional  
misconduct is a question of fact and then says and conduct of the kind  
specified is professional misconduct. This language is inclusive, not  
exclusive. In effect, it deems conduct with the impacts listed in s. 26(1)  
to be professional misconduct. …  
[Emphasis added]  
- 38 -  
[84]  
Barrington-Foote J.A. also cited s. 2-10(2) of The Legislation Act, SS  
2019, c L-10.2, which states:  
2-10 …  
(2) Every Act and regulation is to be construed as being remedial and  
is to be given the fair, large and liberal interpretation that best ensures  
the attainment of its objects.  
He observed that: “the inclusive interpretation is consistent with this principle, while  
the interpretation proposed by SUN is not. SUN’s interpretation would unduly limit the  
ability of the Discipline Committee to fulfill its role.” (para. 104).  
[85]  
There are differences between s. 26 of the Act and the provisions in The  
Registered Nurses Act, 1988 that were considered in Strom. Section 26(2) of The  
Registered Nurses Act, 1988, opens with “Without restricting the generality of  
subsection (1) …”. Barrington-Foote J.A. relied on that phrase to interpret s. 26(1) of  
that Act, and in particular that the listed conduct in s. 26(1) is to be interpreted as  
inclusive rather than exclusive.  
[86]  
Those differences create a sufficient distinction such that Barrington-  
Foote J.A.’s analysis is not binding on me. Nonetheless, I find it to be persuasive. The  
Registered Nurses Act, 1988 contains substantially more detail on what constitutes  
professional misconduct than most of the corresponding self-governance legislation,  
and even there Barrington-Foote J.A. found the language to be inclusive rather than  
exclusive.  
[87]  
The objects of the Act would be defeated by applying an exclusive  
interpretation to s. 26. Protection of the public interest, which is the paramount purpose  
of the Act, is not advanced by preventing a discipline committee from acting until it  
sees a pattern of conduct that warrants an order revoking the member’s license or the  
curtailment of carrying out certain procedures.  
- 39 -  
[88]  
One factor considered by the Discipline Committee in its decision was  
that Dr. Hosseini had changed aspects of her practice, presumably as a result of the  
incident with the Patient. At paragraph 111, the DC Decision states:  
111. where the radiograph and clinical assessment are different the  
Committee finds further exploration should be undertaken so that a  
more definitive assessment can be reached. Nevertheless, when asked  
what she would do now, if the radiograph and clinical assessment are  
different, she advised she would take a more cautious approach and  
request a CBCT. The Committee finds such a diagnostic test should  
be at the pre-planning or planning stage of implant placement, not  
post-operatively after the relatively irreversible step of having placed  
the implant has occurred. Nevertheless, in her testimony, upon further  
questioning from the Committee, she indicated prior to placing an  
implant on the mandible, she currently performs a CBCT at the outset  
of her planning so that implant placement is more precise. The  
Committee finds Dr. H was incompetent in her care of Mr. R,  
however, she has recognized this grave error. Although the Committee  
still has some concerns, as referenced above, Dr. H has demonstrated  
she has taken the necessary measures to avoid such a "misadventure"  
in the future and the public's welfare is not at risk.  
[Emphasis added]  
[89]  
That discussion, combined with Dr. Hosseini’s argument that no  
conviction is possible under s. 26 absent a finding of general incompetence, leads to a  
problematic situation exemplified by the following hypothetical. A member who has  
been charged for incompetent conduct takes steps before the hearing to raise her level  
of competence. As a result, the member is clearly competent by the time the hearing  
occurs. Accordingly, it would no longer be appropriate to find that the member “is”  
unfit and/or to impose a sanction of revoking her license or restricting her practice. On  
Dr. Hosseini’s theory of how s. 26 is to be interpreted, the member could thereby  
unilaterally nullify the prosecution and avoid any penalty at all. A practitioner could  
avoid jeopardy under s. 26 if they were to take sufficient steps to upgrade their  
competence in advance of their hearing.  
[90]  
That would be an absurd result, which would compound the absurdity  
- 40 -  
noted by the Discipline Committee of a pattern of conduct needing to be established if  
Dr. Hosseini’s interpretation were to prevail.  
[91]  
The Discipline Committee’s interpretation has the benefit of preserving  
flexibility. A member who has made a serious error may be prosecuted and convicted  
as may be appropriate to protect the public interest, while allowing the sanction to  
reflect the steps taken by the member to address the deficiencies that led to the error. It  
maintains the regulator’s ability to govern its members while encouraging improvement  
on the part of the member in advance of a hearing. It also allows the regulator to act  
without having to establish an artificially high threshold of problematic conduct.  
[92]  
Thus, not only is the Discipline Committee’s interpretation of s. 26  
consistent with Strom, it falls easily within the interpretive approach urged by Danyliuk  
J. in Nanson. Even on a correctness standard, I would uphold the Discipline  
Committee’s approach. The discretionary standard requires considerable deference  
such that this is not a close call. No reviewable error exists in respect of this issue raised  
by Dr. Hosseini.  
[93]  
Now I will turn to the remaining questions raised by this ground of appeal.  
I have somewhat modified the questions raised by Dr. Hosseini’s arguments.  
(ii) Is unfitness central to the definition of professional incompetence, such  
that to find a member guilty of a charge under s. 26 a discipline committee  
must either hold that the member is unfit to practice generally or unfit to  
provide one or more services ordinarily provided by her?  
(iii) May a finding of unfitness be based on one mistake?  
(iv) Must a discipline committee make a finding of unfitness before it can  
convict under s. 26?  
(v)  
Must gross negligence be found in order to convict under s. 26?  
- 41 -  
[94]  
To questions (ii) and (v), the answer is “no”. To questions (iii) and (iv),  
the answer is “yes”. Many of the reasons for those answers appear in the preceding  
section. I will minimize my repetition of them here.  
[95]  
These questions arise in part because of Dr. Hosseini’s reliance on Swart  
v College of Physicians and Surgeons of P.E.I., 2014 PECA 20, 361 Nfld & PEIR 5  
[Swart], where the court stated:  
[104] It is not every failure of a physician that amounts to a finding  
of unfitness. Were it so, virtually every physician would, at some time  
or another over the course of his or her career, be found to be quite  
unfit as all human beings sooner or later make mistakes. The case law  
is consistent that mere negligence is not a sufficient basis for a finding  
of unfitness (Huerto v. College of Physicians and Surgeons  
(Saskatchewan), 1999 CarswellSask 40 (SKQB), Huerto v. College  
of Physicians and Surgeons (Saskatchewan), 2004 CarswellSask 587  
(SKQB), Re Adamo, [2005] OCPSD 22 (Ontario College of  
Physicians and Surgeons Discipline Committee). There must be a  
failure amounting to gross negligence (Complaints and Authorization  
Committee, College of Physicians and Surgeons of Newfoundland  
Re Carter, February 13, 2006) or some quality of blatant disregard  
for the patient or the patient’s well-being (Reddoch v. Yukon Medical  
Council, [2001] 161 BCAC 131).  
[105] Indeed the very definition of unfit memberin the Medical  
Act makes it abundantly clear that the physician’s transgression must  
be of such a nature and extent to make it desirable to either restrict or  
terminate the physician’s ability to practise (Act, s.1(y)). Physicians  
are not held to a standard of perfection. In order to make a finding that  
a member is unfit to practise his or her profession, something beyond  
mere negligence or carelessness is necessary.  
[Underlining emphasis added]  
[96]  
Swart has not been relied upon outside of Prince Edward Island for its  
substantive findings. Though Swart is a decision of the PEI Court of Appeal, that was  
the appeal of first instance. It was a statutory appeal, and the court stated that the  
reasonableness standard applied. The court found numerous procedural fairness errors  
that were significant in magnitude, so the discipline decision would have been quashed  
on those grounds alone.  
- 42 -  
[97]  
[98]  
In my view, Swart does not assist Dr. Hosseini. I will explain.  
The appeal was brought from a decision by the Fitness to Practise  
Committee [PEI Committee] of the College of Physicians and Surgeons of Prince  
Edward Island. In addition to the numerous and serious procedural errors that it made,  
the PEI Committee found that Dr. Swart’s “repeated errors in judgment amount to  
wanton and cavalier disregard” for his patient’s health. The court found no evidence to  
support the various conclusions in that statement. The court summarized the  
circumstances as follows:  
[124] Dr. Swart discussed the options with the Patient prior to the  
surgery and provided her with literature on the surgery, the procedure  
and the possible complications. When she returned three hours post-  
operation, he did not send her away. He put her in the hospital and  
provided medications for her pain and nausea. She remained in  
hospital overnight. He did not discharge her without an examination.  
He directed his mind to the possibility of a bowel perforation. He  
concluded there were good bowel sounds and that no signs of a  
perforated bowel were present. He was in error and he ought to have  
done more but there is nothing malicious or disdainful in the doctor’s  
actions.  
[99]  
In the preceding paragraphs, the court determined that the PEI  
Committee’s findings that Dr. Swart was guilty of repeated errors and that he was guilty  
of a “wanton and cavalier disregard” for the patient’s health were entirely unsupported  
by the evidence. Rather, the court found that other than making a single error  
concerning “one patient only who was discharged from hospital when she ought not to  
have been”, the evidence did not indicate that Dr. Swart fell below the standard of care  
in his treatment of the patient. See paras. 108 to 123. The single error was in not  
realizing that the patient did not show discomfort because the medications given to her  
could mask the symptoms that might alert him to the fact that her bowel had been  
perforated.  
[100]  
Thus, Swart involved a single minor error amounting to mere negligence.  
- 43 -  
The court held that the hyperbolic language used by the PEI Committee was  
unwarranted and unsupported by the evidence. To the extent that Dr. Swart was  
negligent, it was only concerning the decision to discharge the patient without first  
obtaining additional imaging. He was not negligent in his conduct of the procedure  
itself.  
[101]  
In my view, it was not necessary for the court in Swart to determine  
whether gross negligence need be established, or whether discipline could be imposed  
for a single act, having found that only a minor error had occurred.  
[102]  
The disciplinary proceedings in Swart were conducted pursuant to the  
Medical Act, RSPEI 1988 c M-5. While its findings on procedural fairness and the  
evidence appear unassailable, I find the court’s analysis of that legislation difficult to  
follow. For example, at paras. 97-98, the court appears primarily concerned about  
preventing confusion between the concepts of professional misconduct, incapacity and  
unfitness to practice (the last seeming to involve competence), but the focus then turns  
largely to incapacity and illness of the physician, which were irrelevant to those  
proceedings. In my view, a close reading of Swart makes it difficult to draw from it  
principles that would be relevant to Dr. Hosseini’s appeal.  
[103]  
When evaluating jurisprudence, particularly from other jurisdictions  
decided under different legislation, one must be cautious about taking broad statements  
and turning them into legal propositions. I can find no instance of a Canadian court  
applying the broad propositions that Dr. Hosseini attempts to rely on from Swart.  
[104]  
Swart is also distinguishable on the evidence. Dr. Hosseini did not merely  
commit a single error amounting to mere negligence.  
[105]  
Accordingly, I am not persuaded that I should follow Swart as  
Dr. Hosseini asks, and I decline to do so.  
- 44 -  
[106]  
Swart relied in part on Huerto v College of Physicians and Surgeons of  
Saskatchewan (1999), 178 Sask R 52 (QB) [Huerto], so it is appropriate that I review  
that decision as well. At para. 104, Swart cites Huerto for the proposition that The case  
law is consistent that mere negligence is not a sufficient basis for a finding of unfitness.  
What G.A. Smith J. (as she then was) actually stated in Huerto was that a finding of  
guilt on a charge of unbecoming, improper, unprofessional or discreditable conduct  
requires more than finding that a doctor has made an error of judgment, even one that  
was negligent”: para. 90. Smith J. then quoted from Saskatchewan College of  
Physicians and Surgeons v Camgoz (1982), 20 Sask R 400 (QB) at 405 [Camgoz], as  
follows:  
90 …  
The principal ground of appeal advanced with respect to clause (a)  
of the charge is that the decision to conduct a vaginal or pelvic  
examination in this case does not amount to professional  
misconduct within the meaning of s. 43(m) of the Act. Having  
regard to the evidence of the medical witnesses, can it be said that  
the decision to conduct a pelvic or vaginal examination was within  
the range of possible courses of action that in the circumstances  
of this case reasonably competent and conscientious members of  
the medical profession might have chosen to take? We can only  
answer that question in the affirmative. Assuming, but without  
deciding, that the impugned decision to conduct a vaginal  
examination could form the basis of a charge under s. 43(m) of the  
Act and even if the decision so taken could be characterized as an  
error of judgment or a mistaken exercise thereof, it was not so  
blatant an error as to amount to professional misconduct. An  
exercise of judgment by a medical practitioner engaged in general  
practise even though it turns out to be mistaken (which we do not  
so find in this case) is not necessarily outside the range of possible  
courses of action that a reasonably competent general practitioner  
might choose to take.  
[Emphasis added]  
[107]  
It is difficult to take from either Huerto or Camgoz any guidance as to  
what is required to convict of professional incompetence under the Act. Errors and  
negligence can fall within a continuum of severity.  
- 45 -  
[108]  
Swart also relied on Reddoch v The Yukon Medical Council, 2001 YKCA  
13, 161 BCAC 131 [Reddoch], where the court stated as follows:  
[56]  
As the argument before us developed, the critical issue on this  
appeal became apparent. It is whether the words "unprofessional  
conduct" in this statute encompass the appellant's acts of omission  
which, on the findings of the Committee, can be summed up as a  
failure to exercise reasonable care and skill in the management of one  
patient whom neither he nor three other physicians believed to be  
gravely ill. In my opinion, the answer to that question is "no". The  
route which should have been gone down is not the route of s. 24 but  
the route of s. 22, an investigation into the standard of practice of the  
appellant.  
[58]  
It is open to the Legislature of the Yukon to define  
"unprofessional conduct" as including a single failure to exercise  
reasonable care and skill in the management of one patient. If it  
chooses to do so, it is not improbable that every physician in the  
Yukon will be guilty at some time or another of an offence. As I  
remarked in de la Giroday v. Brough (1997), 33 B.C.L.R. (3d) 171 at  
175:  
I doubt that there is a professional man or woman, no matter how  
generally competent and experienced, who has never had occasion  
to say to himself or herself, "How could I have been so blind?"  
Such might well have been the reflection of the defendant in  
Lankenau v. Dutton, [1999] 5 W.W.R. 71, 79 D.L.R. (4th) 705, 55  
B.C.L.R. (2d) 218 (B.C.C.A.), who was, on the evidence, a most  
competent surgeon.  
[59]  
In coming to this conclusion, I am not in any way differing  
from the Inquiry Committee's conclusion as to what proper practice  
was in the circumstances or their conclusions as to what had in fact  
happened.  
[60]  
What I do say is that when the issue is one of a failure of  
reasonable care, the conduct of the physician in order to constitute  
"unprofessional conduct" must have about it some quality of blatancy  
- some cavalier disregard for the patient and the patient's well being.  
[109]  
Section 24 of the Yukon Medical Profession Act, RSY 2002, c 149, which  
was interpreted by the court in Reddoch, dealt with “infamous or professional  
misconduct”, such as having a mental ailment, emotional disturbance or addiction that  
- 46 -  
would cause a physician to be unfit. Section 22 related to adequacy of skill and  
knowledge. Dr. Reddoch had been convicted of “unprofessional conduct”.  
[110]  
Thus, the basis for overturning Dr. Reddoch’s conviction was that his  
conduct did not fall within the concept of unprofessional conduct, which concept did  
not encompass competence. The remaining comments of the court in Reddoch were  
obiter.  
[111]  
Though some of its observations were made in obiter, Reddoch makes a  
valid point that discipline committees and courts should be cautious about convicting  
for isolated and unfortunate errors that do not rise much beyond failure to meet the  
standard of care. With that, I do not quarrel. There is a continuum of quality of care that  
ranges from optimal care, through mere negligence, more severe negligence that falls  
short of gross negligence, gross negligence, and intention to harm or maliciousness.  
[112]  
That leads to the question of “what severity of conduct can lead to a  
conviction of professional incompetence under the Act?”. In my view, it is reasonable  
to say that a single act of mere negligence should not lead to a finding of professional  
incompetence. That does not equate to a finding that only gross negligence or more  
severe conduct could support a conviction. Barely failing to satisfy the standard of care  
is not the same as more severe negligence that still would fall short of gross negligence.  
For that proposition, I find support in Harsch v Saskatchewan Government Insurance,  
2021 SKCA 159 [Harsch], in which the Court of Appeal reviewed the Supreme Court  
of Canada decision in Finney v Barreau du Québec, 2004 SCC 36, [2004] 2 SCR 17  
[Finney]. Harsch involved a car accident, but its analysis dealt with the spectrum of  
culpable conduct. The Court of Appeal stated:  
[42] While the Chambers judge observed that “[b]ad faith certainly  
includes malice or conduct intended to harm”, she also recognized  
that, in some cases, “recklessness or serious carelessness” will suffice,  
and that “there are degrees of culpability with inadvertence at one end  
- 47 -  
of the spectrum and gross negligence on the other”, not all of which  
will be culpable (Decision at paras 11 and 13, citing Finney). This is,  
in my view, an accurate statement of the law.  
[113]  
In Finney, the Supreme Court stated that Gross or serious carelessness  
is incompatible with good faith.” (para. 40) and that “The virtually complete absence  
of the diligence called for in the situation amounted to a fault consisting of gross  
carelessness and serious negligence.” (para. 45)  
[114]  
Though the contexts in Harsch and Finney were different, they shed light  
on the spectrum or continuum of culpability. Gross negligence appears to involve a  
“virtually complete absence of diligence”. Further, a course of repeated merely  
negligent conduct could give rise to a finding that the conduct in aggregate constituted  
wilful and wanton misconduct: Marchyshyn v Cole, [1971] 1 WWR 730 (QL) (Sask  
CA) at paras 19-20.  
[115]  
It is appropriate to now return to the four questions set out above, to which  
I will provide brief answers in light of the analysis in this and the preceding section:  
(ii) Is unfitness central to the definition of professional incompetence, such  
that to find a member guilty of a charge under s. 26 a discipline committee  
must either hold that the member is unfit to practice generally or unfit to  
provide one or more services ordinarily provided by her?  
[116]  
The answer is no. A discipline committee is not bound to hold that the  
member is unfit to practice generally or unfit to provide one or more services ordinarily  
provided by her in order to convict under s. 26. That flows from my finding above that  
s. 26 does not set out an exhaustive list of circumstances in which a member can be  
found professionally incompetent.  
(iii) May a finding of unfitness be based on one mistake?  
[117]  
The answer is yes, though it will depend on the severity of the mistake.  
- 48 -  
One minor error, though it may represent negligence that could support a civil claim,  
should not lead to a finding of unfitness. A more serious error, even if it falls short of  
gross negligence, could potentially lead to a finding of unfitness. That said, the  
“question of fact” formulation will always require a court sitting in appeal to accord  
considerable deference to the findings of a discipline committee.  
(iv) Must a discipline committee make a finding of unfitness before it can  
convict under s. 26?  
[118]  
If by “finding of unfitness”, Dr. Hosseini means a finding that the member  
is unfit to practice generally or unfit to provide one or more services ordinarily provided  
by her, the answer is no. A discipline committee need not find that in order to convict  
under s. 26. A discipline committee need find only that the practitioner is guilty of  
professional incompetence, which may be satisfied by degrees of culpability not  
expressly enumerated by s. 26.  
(v)  
Must gross negligence be found in order to convict under s. 26?  
[119]  
The answer is no. Within the spectrum of culpability, it is possible to  
convict absent a finding of gross negligence.  
[120]  
In light of those answers, I find that the Discipline Committee did not err  
in its interpretation of s. 26 of the Act.  
(c)  
Conclusion on Ground (a)(i)  
[121]  
Questions (i) through (v), as I have reframed them to align with the form  
of arguments advanced by Dr. Hosseini, combine to address ground (a)(i) of  
Dr. Hosseini’s notice of appeal. I find that the Discipline Committee did not commit a  
reversible error on that ground.  
- 49 -  
Ground (a)(ii) The Discipline Committee erred by concluding the purpose  
of the Act and s. 26 was to ensure this individual  
complainant would not be deprived of a remedy for this  
single incident.  
[122]  
DC Decision:  
This ground stems from the following statement at paragraph 83 of the  
83. It cannot have been the legislature’s intent to deny a member  
of the public a remedy because they have only been harmed  
through a single incident and not a pattern of conduct. It defies  
logic that this Committee could be precluded from determining a  
sanction for an act of professional incompetence until others are  
harmed and a pattern of poor professional knowledge, skill or  
judgment has been made out. This Committee must be able to  
review such conduct and, where necessary, make an appropriate  
order.  
[Emphasis added]  
[123]  
Dr. Hosseini focused on the underlined portion of paragraph 83 and  
indeed reproduced only that passage in her written submissions. She argued that the  
passage suggests that the only venue through which an individual might receive a  
remedy is through the discipline process, which would be incorrect because: (a) it  
ignores the primary objectives of the professional regulatory system, being protection  
of the public and protection of confidence in the profession; and (b) it disregards that  
the Patient could have brought a civil claim for recovery.  
[124]  
Dr. Hosseini submits that the Discipline Committee incorrectly presumed  
that a remedy could flow only through the discipline process.  
[125]  
This ground is unfounded. The Discipline Committee was not making the  
point alleged by Dr. Hosseini. When one reviews the remainder of paragraph 83  
reproduced above, along with the preceding paragraphs, it is clear that the Discipline  
Committee was in no way suggesting that its role was to provide the only possible  
remedy available to the Patient. Rather, paragraph 83 represents a continuation of the  
- 50 -  
point being discussed by the Discipline Committee as to whether a single incident could  
support charges under s. 26 of the Act.  
[126]  
Nothing in the DC Decision, the Bias Decision nor the Penalty Decision  
suggests that the Discipline Committee’s principal or even secondary objective was to  
give the Patient a remedy. The reference to denial of a remedy to a member of the public  
to which Dr. Hosseini points may not have been as articulate as ideal, but the  
surrounding context makes the Discipline Committee’s point clear that if a  
sufficiently serious issue should come to its attention arising from a single incident of  
patient care, it should not have to wait until the conduct is repeated such that a pattern  
has formed.  
[127]  
Thus, the argument is nothing more than a straw man. No reversible error  
was made by the Discipline Committee in this respect.  
Ground (a)(iii) The Discipline Committee erred by concluding the failure  
by the appellant to identify the misplacement of the implant  
from the available two-dimensional imaging constituted  
professional incompetence when the evidence disclosed  
none of the other two periodontists, two general dentists  
nor the oral surgeon who dealt with this complainant  
identified the misplacement from the two-dimensional  
imaging.  
[128]  
The ground is framed in a manner that suggests the answer if so many  
other dentists and specialists did not realize that the Second Implant intruded in the IA  
canal, how could Dr. Hosseini be expected to have known?  
[129]  
The ground is founded on a misapprehension of the evidence and of what  
the Discipline Committee actually decided.  
[130]  
Dr. Hosseini argues that Dr. Wagner stated that she erred in failing to  
immediately identify the Second Implant as being in the IA canal. That is not an  
- 51 -  
accurate reflection of Dr. Wagner’s testimony or what the Discipline Committee found.  
[131]  
The two dimensional x-rays showed that the Second Implant overlapped  
with the IA canal, at least from the angle(s) from which the x-rays were taken. That  
does not necessarily equate to the Second Implant intruding into the IA canal. The IA  
canal was contained within bone that Dr. Hosseini drilled into. To paraphrase  
Dr. Wagner’s testimony, if the jaw bone were wide enough, it was at least possible that  
where a 2D x-ray showed the Second Implant overlapping with the IA canal, the Second  
Implant was beside the IA canal without intruding into it.  
[132]  
Dr. Wagner testified that if the Patient “had a really wide jaw, and he had  
a really long implant, and you knew where the nerve was, then you could easily explain,  
no problem.” However, he also testified that the Patient did not have a really wide jaw.  
[133]  
Dr. Wagner testified that the combination of increased bleeding and what  
was shown on the Panorex (a panoramic two dimensional image that is found on page  
61 of Exhibit J-1 and also the last page of Exhibit P-7) would flag him to immediately  
remove the Second Implant. He further testified that a 3D x-ray would have shown (“It  
would be fairly accurate”) whether the Second Implant was in the IA canal, and that it  
was possible then to obtain a same-day 3D x-ray in Regina.  
[134]  
What the Discipline Committee actually decided on this point was as  
follows:  
114. Dr. H’s failure to undertake further exploration to determine  
whether there had been implant intrusion into the nerve canal,  
where increased bleeding was noted and the panoramic image,  
at the very least, showed a possibility of intrusion into the nerve  
canal displayed a lack of knowledge, skill or judgment and is  
professional incompetence within the meaning The Dental  
Disciplines Act and contrary to 9.2(2)(x) of the Bylaws. The  
Committee finds a competent specialist dentist would have  
recognized the intrusion when Mr. R’s implant was replaced,  
and failure to remove the implant also displayed a lack of  
knowledge, skill or judgment and is professional incompetence  
- 52 -  
within the meaning of The Dental Disciplines Act and contrary  
to 9.2(2)(x) of the Bylaws.  
[Emphasis added]  
[135]  
Perhaps this ground is aimed at the second part of paragraph 114 that  
begins with the Committee finds …” but the second part is predicated on the finding  
made in the first part, which is that the combination of increased bleeding with what  
was shown by the two-dimensional images should have led a competent practitioner to  
obtain better imaging, which Dr. Hosseini did not do.  
[136]  
The Discipline Committee did not hold that Dr. Hosseini’s failure to  
identify the misplacement of the Second Implant from the available two-dimensional  
imaging constituted professional incompetence. It did not make the error, nor the  
finding, that Dr. Hosseini says it made.  
[137]  
Accordingly, the appeal on Ground (a)(iii) is dismissed.  
Ground (b)  
The Discipline Committee erred in law and deprived the  
appellant of a fair hearing in finding the appellant guilty of  
professional incompetence upon evidence which could not  
reasonably sustain that finding.  
[138]  
This ground is closely related to Grounds (a)(i) and (iii) and was not  
argued as a separate ground. It is answered by my analysis in respect of Grounds (a)(i)  
and (iii). On the standard of review applicable to discretionary decisions, the Discipline  
Committee did not commit the error alleged and the appeal on this ground is dismissed.  
Ground (c)  
The Discipline Committee erred in law and deprived the  
appellant of a fair hearing by misunderstanding the  
evidentiary purpose of opinion evidence and  
misinterpreting, improperly assessing and misapplying the  
opinion evidence received from Dr. Toporowski,  
Dr. Abbaszadeh and Dr. Wagner.  
- 53 -  
Ground (d)  
The Discipline Committee erred in law and deprived the  
appellant of a fair hearing in limiting cross-examination of  
Dr. Wagner. Further, the Discipline Committee erred in  
law and deprived the appellant of a fair hearing in applying  
its ruling on the objection to the cross-examination of  
Dr. Wagner to the admissibility and/or assessment of the  
opinion evidence of Dr. Abbaszadeh and Dr. Toporowski  
without further objection being made to the admissibility  
of that evidence and without providing the appellant with  
an opportunity to provide argument on this issue.  
[139]  
Dr. Hosseini blended her arguments on Grounds (c) and (d) in her written  
and oral submissions, so I will deal with them together. The arguments in support of  
these grounds amounted to the following:  
a. The fact that expert evidence was allowed by the Discipline  
Committee means that it can be presumed that opinion evidence was  
necessary and relevant, notwithstanding the specialized knowledge  
held by three of the Discipline Committee members.  
b. To be necessary, Dr. Wagner’s evidence must have pertained to  
standard of care, breach of the standard of care and how far Dr.  
Hosseini was from meeting the standard of care.  
c. Dr. Wagner’s evidence was merely that Dr. Hosseini breached the  
standard of care, and thus cannot support a finding of professional  
incompetence under s. 26.  
d. The Discipline Committee erroneously restricted cross-examination  
of Dr. Wagner on the basis that the “ultimate issue” rule applied. The  
“ultimate issue” rule is no longer good law, except that opinion  
evidence on domestic law remains inadmissible.  
- 54 -  
e. Paragraph 38 of the DC Decision states that while expert reports were  
filed by consent, the Discipline Committee “has accorded no weight  
to any conclusions or comments” from the experts in their reports on  
the specific question of incompetence. Dr. Hosseini says that is an  
error of law and a misapplication and misunderstanding of the  
evidence such that the conclusion of professional incompetence was  
an error.  
f. The Discipline Committee failed to analyze the evidence of  
Dr. Abbaszadeh and provide a reasonable explanation as to why it  
disagreed with or would disregard his opinion.  
[140]  
Those arguments raise four questions, all of which must be viewed  
through the lens of the standard of review for discretionary decisions. For certain of the  
questions, that means that even if I would have done something differently from what  
the Discipline Committee did, that does not necessarily result in a finding of reversible  
error. The exception is where procedural fairness is in issue, in which case the standard  
of review is correctness.  
a. Did the Discipline Committee have expert evidence before it on which  
it could find that Dr. Hosseini committed an error serious enough on  
which it could base a finding of professional incompetence? Was  
there evidence of errors by her that went beyond a modest breach of  
the standard of care that should not attract professional discipline?  
b. Did the Discipline Committee err in restricting cross-examination of  
Dr. Wagner?  
c. Did the Discipline Committee err in stating that it would place no  
weight on the expert evidence on the specific question of  
incompetence?  
d. Did the Discipline Committee fail to analyze the evidence of  
Dr. Abbaszadeh and provide a reasonable explanation as to why it  
disagreed with or would disregard his opinion?  
- 55 -  
[141]  
With respect to how the Court should evaluate the Discipline  
Committee’s treatment of expert evidence, the College relies on Frondall v Frondall,  
2020 SKCA 135. There, Schwann J.A. stated:  
[52]  
As this Court noted in Clemens v McGruther, 2019 SKCA  
46 at para 34 [Clemens], the privileged position of the trier of fact and  
the deferential standard of review do not leave much room for  
appellate intervention on the broad question of weight. Simply put, “It  
is not the function of an appellate court to reconsider the expert  
evidence and come to a different conclusion” (Clemens at para 34):  
also see Kolibab v Tenneco Canada Inc., [2000] 1 WWR 590 (Sask  
CA).  
[53]  
The trial judge provided cogent reasons in each instance as to  
why he preferred Mr. Thomson’s opinion and rejected Mr. Weber’s –  
or, conversely, accepted Mr. Weber’s opinion but rejected Mr.  
Thomson’s. Given the deferential standard of review, I see no  
overarching error in how the trial judge dealt with the issue of weight.  
The real question raised by Mr. Frondall’s appeal is whether the  
evidence could not reasonably justify the conclusions reached by the  
trial judge: see Joseph Brant Memorial Hospital v Koziol, [1978] 1  
SCR 491 at 504.  
[142]  
Although Schwann J.A. applied the palpable and overriding error  
standard of review, her comments remain apt, and I adopt them. Now I will deal with  
the four questions set out above.  
a. Did the Discipline Committee have expert evidence before it on which  
it could find that Dr. Hosseini committed an error serious enough on  
which it could base a finding of professional incompetence? Was  
there evidence of errors by her that went beyond a modest breach of  
the standard of care that should not attract professional discipline?  
[143]  
The College argues that Dr. Wagner testified as to the seriousness of the  
breach by Dr. Hosseini (page references are to the hearing transcript from October 3,  
2018):  
a. Page 90 The placement of the implant was not a narrow miss.  
b. Page 99 It was a breach of the standard of care to use a 13 mm  
implant given the amount of bone in which it was placed.  
- 56 -  
c. Page 102 As opposed to a small or trivial error, it was “a very serious  
error”.  
d. Page 103 The degree to which this implant went into the canal  
makes this different than an average case.  
e. Pages 108-109 It was inappropriate to leave the implant in and see  
how things developed. “I think when it’s that far past the canal or into  
the canal, that’s not really an option. It’s not an opinion at that point.  
It’s anatomical.”  
f. Page 108 Given the bleeding observed by Dr. Hosseini. and what  
was shown on the Panorex, the implant should have been removed  
immediately.  
g. Page 109 It was not appropriate to leave it to the patient to decide  
whether to leave in the implant if there might be a transection of the  
canal because the patient is not the expert.  
[144]  
On page 116-117 of the transcript for October 3, 2018, Dr. Wagner was  
asked by PCC counsel whether this was a minor or substantial miss vis-à-vis the  
standard of care. Dr. Wagner responded:  
A You know, it’s just -- just really, in anatomy, I don’t know if there  
is a -- I didn’t know there -- within the standard of care or outside  
of it, I didn’t know there was a range, and I think that in this  
particular case the implant was just too long for the bone that was  
receiving it when you include the final structure that you’re  
coming near to.  
[145]  
The Discipline Committee restricted Dr. Hosseini’s counsel from asking  
questions concerning s. 26 of the Act, based on the “ultimate issue” concept. That is the  
next question I will address and is somewhat of a complicating factor. However, this  
- 57 -  
particular issue was argued by Dr. Hosseini as a distinct issue, so I will address it as  
such. In my opinion, there was ample evidence before the Discipline Committee that  
Dr. Hosseini committed a very serious error, one that went well beyond a minor breach  
of the standard of care.  
[146]  
Accordingly, I find that the Discipline Committee did not commit an error  
on this question.  
b. Did the Discipline Committee err in restricting cross-examination of  
Dr. Wagner?  
[147]  
The question concerning restriction of cross-examination has been  
appropriately framed by Dr. Hosseini as a procedural fairness issue. The standard of  
review is correctness.  
[148]  
In cross-examination of Dr. Wagner, Dr. Hosseini’s counsel, Scott  
Hopley, began to ask Dr. Wagner about s. 26. Before even hearing the question, PCC  
counsel objected on the basis that Dr. Wagner should not be asked to opine on legal  
matters concerning s. 26, as opposed to the areas in which he had been qualified to give  
expert evidence. Mr. Hopley wanted to ask whether Dr. Wagner had given thought to  
the question of professional incompetence. The exchange is located at pages 126-135  
of the October 3, 2018 transcript.  
[149]  
The Discipline Committee upheld the objection on the basis that on the  
question of professional incompetence itself, that would be for it to decide. It discussed  
its reasoning both during the hearing and in the DC Decision, where the issue was  
addressed at paragraph 38. The Discipline Committee denied Mr. Hopley the ability to  
ask about professional incompetence under s. 26, but I do not view it as having  
prevented any other questions from being asked.  
[150]  
The Discipline Committee permitted Mr. Hopley the opportunity to ask  
- 58 -  
questions concerning the standard of care, which he did. Mr. Hopley also was permitted  
to ask about factors that form part of s. 26, i.e., whether Dr. Wagner had turned his mind  
to whether Dr. Hosseini had a lack of knowledge, whether she had a lack of skill and  
whether she generally had a lack of judgment. No further objections to Mr. Hopley’s  
questions were raised. He did not attempt to ask about the severity of Dr. Hosseini’s  
breach of the standard of care.  
[151]  
As an aside, Mr. Hopley was permitted to ask Dr. Abbaszadeh about his  
views of Dr. Hosseini’s competence. There was a brief interjection by the PCC but my  
view is that Mr. Hopley was not restricted in his examination of Dr. Abbaszadeh  
[152]  
The College points to s. 33(4) of the Act, which states that a discipline  
committee may accept any evidence it considers appropriate and is not bound by rules  
of law concerning evidence. Neither party directed my attention to s. 33(7), which  
provides that at a hearing there is to be a full right to examine, cross-examine and re-  
examine all witnesses”. That provision is clearly relevant.  
[153]  
Provisions similar to ss. 33(4) and (7) were considered by the Court of  
Appeal in Council of the Saskatchewan Veterinary Medical Association v Murray, 2011  
SKCA 1, [2011] 2 WWR 503 [Murray] and Sautner v Saskatchewan Teachers’  
Federation, 2017 SKCA 65 [Sautner]. In Murray, the issue was that the tribunal  
received into evidence a videotaped statement from a person who failed to comply with  
a subpoena and did not attend the hearing. Thus, it was a situation of no cross-  
examination being permitted. Lane J.A. analyzed s. 33(7) as follows:  
[28] The right to cross-examination, as provided by s. 22(7), cannot  
be absolute because any such reading of the provision would, in at  
least some cases, wholly frustrate the disciplinary regime set out in the  
Act. For example, there will be situations where a witness’s evidence  
is available and necessary but the witness cannot be located, or has  
died, or is incapacitated, or refuses to attend or refuses to testify. …  
Lane J.A. found that he could not conclude that the tribunal would have made the same  
- 59 -  
decisions without the witness’s evidence, such that the right of cross-examination had  
been breached and it was appropriate that the matter be remitted to be reheard by a  
differently constituted panel.  
[154]  
Sautner was concerned with the inability to cross-examine the source of  
hearsay evidence. Herauf J.A. considered Murray but held as follows:  
29 While s. 28(2) of the Act [1995, SS 1995, c E-0.2] grants the  
Committee considerable discretion to accept any evidence it considers  
appropriate, including hearsay evidence, without being bound by the  
rules of evidence, this discretionary power is limited by the inclusion  
of s. 28(4). Section 28(4) states that at a hearing, the parties have full  
right to cross-examine all witnesses. This Court has explained that the  
discretion to admit hearsay evidence pursuant to a provision such as s.  
28(2) of the Act must be interpreted alongside the statutory right to  
cross-examine under provisions like s. 28(4) (see Council of the  
Saskatchewan Veterinary Medical Association v Murray, 2011 SKCA  
1, 329 DLR (4th) 501 [Murray]).  
[30] There is a simple answer to this ground of appeal. First, the  
Committee opted to deal with this matter by stating it was not using or  
relying on this evidence in its report. The Committee explained how  
the evidence of Ms. Godlien’s statements related to the second charge,  
which it found was not proved and, therefore, this evidence was  
irrelevant to its analysis and ultimate finding of guilt on count one.  
[31]  
Second, the Committee stated it was attributing no weight to  
this evidence, whether hearsay or not, in coming to its decision on the  
ultimate issue. By assigning no weight to this evidence, the Committee  
effectively cured any failure to consider the necessity of admitting the  
hearsay evidence because that evidence played no role in its decision-  
making.  
[155]  
The final sentence of paragraph 38 of the DC Decision states:  
38. Although expert opinion reports were filed by consent (Exs.  
P5, D4 and D8), based upon the ruling by the Committee on the  
ultimate question of professional incompetence, the Committee  
has accorded no weight to any conclusions or comments provided  
by the experts in their reports on the specific question of  
incompetence.  
[Emphasis added]  
[156]  
Other than asking about s. 26 in and of itself, Mr. Hopley does not appear  
- 60 -  
to me to have actually been restricted in his cross-examination. He was permitted to ask  
Dr. Wagner about anything other than whether Dr. Hosseini was professionally  
incompetent overall.  
[157]  
As to how courts now deal with expressions of opinions on the ultimate  
issue, Danyliuk J. summarized the current state of the law in 1348623 Alberta Ltd. v  
Choubal, 2016 SKQB 129, 66 RPR (5th) 232 [Choubal], as follows:  
[56]  
First, some of the nine questions posed to Dr. Figley are  
questions that are not properly within the realm of an expert opinion.  
For example, Question 7 asked Dr. Figley to state whether there were  
any misrepresentations in the listing agreement. That is not calling for  
a scientific opinion; it calls for a determination of law and in fact calls  
for the expression of an opinion on the ultimate issue the court must  
decide. While at law there is no longer a general and absolute  
prohibition against commentary on the ultimate issue (this concern has  
been folded into the standard analysis set out in R v Mohan, 1994  
80 (SCC), [1994] 2 SCR 9), there remains a concern that the  
closer an expert’s evidence gets to giving an opinion on the ultimate  
issue, the more rigorous is the application of the criteria of reliability  
and necessity prior to the admission of the opinion. Here, Dr. Figley’s  
opinion on such points is not required by the court; it is not necessary.  
The issue of whether misrepresentations were made is not an area for  
this expert. It is a determination of fact and law. Simply put, this is not  
an area with which the court needs expert assistance. See  
Saskatchewan (Seizure of Criminal Property Act, 2009, Director) v  
Kotyk, 2013 SKCA 140, 427 Sask R 193. Also see Sidney N.  
Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of  
Evidence in Canada, 4th ed (Markham, Ont: LexisNexis, 2014) at  
§12.152 and §12.153.  
[Emphasis added]  
[158]  
Dr. Hosseini’s contention that the ultimate issue rule is “dead” overstates  
the change that has occurred with respect to the appropriate legal approach. A finder of  
fact is entitled to restrict the evidence it receives on the ultimate issue, and to determine  
what weight to accord to the evidence it does receive. Similar to what Danyliuk J. held  
in Choubal, the Discipline Committee determined that it was responsible to determine  
the ultimate issue of whether Dr. Hosseini’s conduct constituted professional  
incompetence. Other than that narrow point, the Discipline Committee did not restrict  
- 61 -  
cross-examination.  
[159] I find no error arising from the Discipline Committee having upheld the  
objection during Dr. Wagner’s cross-examination. Beyond that objection, there was no  
restriction of cross-examination.  
c. Did the Discipline Committee err in stating that it would place no  
weight on the expert evidence on the specific question of  
incompetence?  
[160]  
This is not a question of procedural fairness. Rather, it goes to whether  
the Discipline Committee failed to give sufficient weight to relevant evidence. The  
standard of review is that for discretionary decisions.  
[161]  
I will paraphrase Dr. Hosseini’s written submissions on this point. She  
asserts that the Discipline Committee erred in applying the ultimate issue rule and  
giving no weight to the evidence from the three expert witnesses as to the significance  
or extent of a breach of the standard of care, to the extent that factual considerations  
need to be considered in determining whether incidents factually support gross  
negligence or the incompetence necessary to arrive at a finding of professional  
incompetence.  
[162]  
In my view, the Discipline Committee did not err as alleged.  
[163]  
As Danyliuk J. explained in Choubal, while the absolute prohibition  
against expert evidence concerning the ultimate issue no longer exists, as the evidence  
gets closer to the ultimate issue, it is appropriate for the fact-finder to be more rigorous  
in establishing the necessity and reliability of the evidence. Danyliuk J. found in  
Choubal that he did not need expert evidence on the ultimate issue. Nor would the  
Discipline Committee need expert evidence on how to interpret s. 26 of the Act.