CULTURE OF ‘CRONYISM’
Ontario’s dentist watchdog faces allegations of mishandling public complaints and undermining employees who felt there was a ‘toxic’ work environment
A former senior director with Ontario’s dentist watchdog has filed a $1-million wrongful dismissal suit against her former employer and its registrar alleging a “systemic culture of harassment and workplace bullying” that involves conflict of interest and sexual harassment toward staff.
Rene Brewer, a lawyer who oversaw the internal insurance arm of the Royal College of Dental Surgeons of Ontario between 2011 and January 2017, alleges in a statement of claim that college registrar Irwin Fefergrad created a “toxic culture” including “oppressive or problematic internal policies and ethical breaches by senior (college) staff.”
The allegations have not been proven in court.
Fefergrad declined interview requests. A written statement from college lawyer Thomas Gorsky, who also declined to be interviewed, said the college takes its ob- ligations to its employees, members and the public “extremely seriously.”
“We and our client are satisfied that the allegations in the claim are wholly without merit, and the college will be vigorously defending the claim,” the statement said.
Last year, the college ruled on 415 formal complaints against dentists, according to its 2016 annual report. Of those, 10 were referred to the disciplinary committee for action. The overwhelming majority resulted in “no action,” “advice and recommendations,” a caution or continuing education training.
The college has two branches intended to serve different constituencies, according to Brewer’s claim. The insurance program, known as the Professional Liability Program (PLP), provides members “with protection and support when facing malpractice and negligence claims.” It was designed, in the 1970s, “principally to serve and protect” dentists. The rest of the college, Brewer’s claim states, “performs a regulatory role to protect the public.”
In her claim, Brewer alleges conflict of interest within the college because staff investigating patient complaints of misconduct by dentists routinely shared information with staff in the college’s professional insurance arm, which operates a $24.4-million reserve for defending dentists facing malpractice suits.
Typically, medical professionals have liability insurance through an organization that is separate from their regulatory body’s public interest investigations arm. Physicians in Canada, for example, are insured for malpractice through an independent organization called the Canadian Medical Protective Association.
The dentists college acknowledges on its website that “some dentists are still skeptical that their communications with PLP (the Professional Liability Program) are not somehow transmitted” to college staff who review public complaints and perform disciplinary action.
“We and our client are satisfied that the allegations in the claim are wholly without merit, and the college will be vigorously defending the claim.” THOMAS GORSKY DENTAL COLLEGE LAWYER
“PLP staff have a legal, professional and ethical duty to keep information received from members in the strictest confidence,” the college’s website reads.
Internal college documents, obtained by the Star, show the wall between the college’s investigative and insurance arms has been porous for more than a decade.
Meeting minutes from 2006 show that staff from the complaints, investigations and reports committee (which investigates allegations of misconduct) met weekly with PLP staff.
At a meeting on Jan. 2, 2006, Fefergrad told staff the meetings were to “share case-specific problems or approach problems and to take advantage of the wealth of staff talent we had to mutually problem solve.”
Individual cases are discussed in the minutes, including details of a patient who died four hours after a surgical extraction of several teeth.
In interviews with the Star, five current and former college staff members, who spoke on condition of anonymity, echoed the concerns raised in Brewer’s statement of claim.
One former college investigator confirmed what he called a “clear conflict” in the discussion of case files among both arms of the college.
“We tell any dentists that call in that their information will be kept confidential. But there were definitely meetings when the big boss, Irwin (Fefergrad), sat around discussing case files.”
Another former investigator said: “The impression out there today among dentists is that there is a wall between the two organizations.
“But the PLP is closely supported by Irwin and Irwin is telling (the director) what to do every step of the way.”
Toronto dentist Natalie Archer worked at the college for six years, including as vice-president of the board, before she resigned in 2012, saying a “lack of transparency and openness” prevented her from fulfilling her duties.
She said Fefergrad gave advice to both the college’s disciplinary and insurance arms.
“It’s terrible. There’s no Chinese wall in there. In my opinion, we need someone to get in there with an internal audit.”
In her claim, Brewer states that she became aware of a confidentiality breach shortly after her arrival in 2011.
“(Brewer) learned of serious ethical breaches at the (college) when a PLP staff member disclosed that Fefergrad had forced PLP staff to attend meetings with him in the past to discuss PLP files,” it reads.
“In fact, Fefergrad required PLP staff to send unredacted expert reports from PLP cases to his office.”
In her claim, Brewer says she stopped sharing expert reports and proposed a code of conduct that stated breaches of confidentiality within the college would be a firing offence — a proposal that, the claim says, was rejected by Fefergrad.
In February, Brewer’s lawyer, Tanya Pagliaroli, wrote to the college council informing them that it is “common knowledge” within the college that Fefergrad discusses PLP files with staff.
“If members learned that the former director and especially the current interim manager of PLP attend- ed meetings with the registrar to discuss files, there would likely be an immediate campaign to dismantle the program,” reads the letter, obtained by the Star.
“The presence of staff involved in regulatory processes at the meetings in violation of the (college’s) representations to members . . . could call into question . . . Fefergrad’s moral authority to govern the profession.”
Ultimately, the letter concludes, the perceived conflict between the college and PLP is “irresolvable.”
In an interview, Pagliaroli said the case raises questions about the role of whistleblowers in the private sector.
“Canadian courts have yet to expressly consider whether and how reprisals or threats of reprisals against a whistle-blowing employee in the private sector impacts on both the employer’s duty of good faith and honesty, the employee’s duty of loyalty to his or her employer, and on the damages available to an employee who successfully proves he or she was terminated for whistleblowing.”
Brewer also alleges her tenure at the college, where she earned $215,000 a year plus benefits at the time she was fired, was doomed by a culture of “cronyism.”
“Employees who were unquestionably loyal to Fefergrad were rewarded, whereas employees who disagreed with him or expressed dissent were publicly castigated, undermined and humiliated,” the statement reads.
She claims she was informed of three separate allegations of harassment, including sexual harassment, by a part-time employee. Brewer reported the allegations to Fefergrad, who allowed the employee to retire after the third allegation, the statement claims.
“The allegations were not formally investigated or dealt with transparently,” the statement reads.
“Shockingly, despite a history of sexual harassment . . . no sexual harassment policy existed at the (college) until (Brewer), through persistent efforts, convinced Fefergrad to implement one in 2014.”
In an August 2003 email to staff, obtained by the Star, a former senior director of the college advised colleagues they could wear shorts and T-shirts to help reduce air conditioning costs in the summer.
“Unfortunately, bathing suits will have to be approved on a case-bycase basis following a private screening by the directors,” the email reads. “Please let me know if you wish to make such a request and note also that this option is not available to male staff.”
“In my opinion, there is inappropriate abuse of power. It’s like something from the ’70s. It’s Mad Men,” said Archer, former vice-president.
“In my opinion, dentists and staff live and work in fear because of this kind of culture.” Brewer was fired on Jan. 23. “(Fefergrad) terminated (Brewer) to silence her and send a warning to other potential critics of him or the (college),” the statement reads.
“His actions represent a wanton and outrageous disregard for (Brewer’s) rights.”