Maroc - NEWSDAY.CO.TT - A la Une - 26/Nov 18:18

Appeal Court overturns ruling quashing dentist’s suspension

THE Court of Appeal has overturned a High Court ruling that had quashed disciplinary findings and lifted the suspension of a dentist for allegedly breaching the Dental Council’s regulations and advisories against advertising, ordering the case back to a newly constituted appeal tribunal for a full rehearing. Justices of Appeal Charmaine Pemberton, Mira Dean-Armorer and Carla Brown-Antoine found that Justice Carol Gobin, as the appeal tribunal, failed to conduct the matter as a true rehearing, as required under Section 37 of the Dental Profession Act and Part 60.8 of the Civil Proceedings Rules (CPR). Pemberton, who wrote the unanimous judgment, said this failure prevented the proper testing of evidence, including through cross-examination, and rendered the earlier decision “plainly wrong.” “The appeal judge clearly strayed from the mandate to treat with the appeal by way of a rehearing, by failing to take further evidence so as to ensure a proper carriage of justice. This, to my mind, served to taint the findings and conclusions arrived at in the appeal rehearing processes in the matter.” Pemberton said the procedure for appeals to the High Court is set out in the CPR and requires the judge sitting as an appeal tribunal to deal with the appeal “by way of a rehearing.” “This means that the appeal judge is mandated to actively ensure that all of the evidence required for a fair and just determination is placed before the court at the rehearing.” The Dental Council had appealed after the High Court set aside its findings that Dr Dion Koonoolal breached multiple provisions of the Dental Profession Act, its regulations and council policy documents relating to advertising. In its decision, the Court of Appeal held that the appeal judge did not ensure that all relevant evidence was placed before the court at the rehearing and instead relied significantly on statements from counsel and her own opinions, rather than admissible evidence. Pemberton said this approach resulted in factual misdeterminations and an incorrect rejection of the council’s statutory role as the primary regulator of the profession. The panel stressed that appellate courts reviewing professional disciplinary bodies must show “the appropriate level of respect” for the expertise and mandate of such tribunals, particularly in fields where judges have no specialised training. It concluded that the High Court minimised the role Parliament intended the Dental Council to play in maintaining professional standards. Although Koonoolal had challenged the fairness of the disciplinary process, the Court of Appeal said it could not rule on those issues because they were never properly examined by the appeal judge. The panel found no basis to conclude that Koonoolal was treated unfairly, stating that the allegations stemmed from actions he acknowledged as his own. The court also held that the appeal judge erred in interpreting key advertising regulations, stating that when read as a whole, the regulatory framework clearly prohibits unauthorised advertising by dentists, subject to stated exceptions. “When that is done, there is no ambiguity in the law and regulations with respect to the prohibition against advertising by dentists comprising the Board in Trinidad and Tobago, subject to the stated exceptions. “The provisions are clear and admit of no ambiguity. Any finding to the contrary is plainly wrong. Further, there is nothing contained in the policy papers which contradicts the legislative provisions. Instead, the policy papers serve to assist in the practical implementation of the legislative provisions. The answer, therefore, to the question is yes.” While noting that professional codes must evolve with modern technology, the Court of Appeal said that any such debates must not interfere with a judge’s obligation to decide appeals based on the evidence and legal framework. “It will be for the differently constituted appellate tribunal, applying these principles, to determine whether the disciplinary tribunal’s findings and sanction were substantially wrong or amounted to a miscarriage. The threshold that an appellant must meet is high. The court allowed the council’s appeal, set aside the High Court decision and ordered the matter returned for a rehearing before a different Appeal Tribunal. It also ordered Koonoolal to pay the Council’s costs before the Appeal Judge and in the Court of Appeal, with costs to be assessed. Ian Benjamin, SC, Anil Maraj and Nicole de Verteuil-Milne represented the Dental Council. Anand Ramlogal, SC, and Jared Jagroo represented Dr Koonoolal at the appeal. The post Appeal Court overturns ruling quashing dentist’s suspension appeared first on Trinidad and Tobago Newsday.