Executive Summary: Key Legal and Evidentiary Issues

• Scope of the Royal College of Dental Surgeons of Ontario’s statutory duty under s. 22.4(2) of the RHPA to review alleged integrity problems in third-party licensing examinations (NDEB).
• Justiciability of Charter claims under ss. 7 and 15 where the pleadings do not disclose deprivation of life, liberty, or security of the person, nor a clear inequality in treatment among similarly situated candidates.
• Propriety of seeking court orders compelling a regulator to conduct an investigation, obtain documents from a separate examination body, and produce a detailed written report to a private individual.
• Whether a new action framed against the College is, in substance, an indirect collateral attack on NDEB examination results already finally adjudicated in prior court proceedings.
• Application of Rule 2.1.01 to dismiss, at an early stage, proceedings that are plainly frivolous (lacking legal merit) and vexatious (attempting to re-litigate previously determined issues).
• Impact of the plaintiff’s history of prior litigation and unpaid costs awards on the court’s assessment of abuse of process and the appropriateness of dismissal under Rule 2.1.01.

Factual background

Dr. Hocine Benbella is a dental school graduate seeking to become licensed to practise dentistry in Ontario. To qualify for registration, he was required, among other things, to successfully complete the National Dental Examining Board of Canada (NDEB) certification process, including written examinations administered in November 2018 and March 2019. He attempted the certification process in 2018 and failed, rewrote the examination in 2019 and failed again, and ultimately exhausted the appeal mechanisms available through the NDEB, without altering the outcome of his examination results. The Royal College of Dental Surgeons of Ontario (the College) is the statutory regulator responsible for protecting the public interest in dental licensure in Ontario, and it relies on NDEB certification as part of its registration requirements. Dr. Benbella contends that the NDEB written examinations were compromised, referencing publicly available question banks and related records that, in his view, raise integrity and fairness concerns about the exams used for licensing purposes.

Prior litigation history

Before commencing this proceeding against the College, Dr. Benbella pursued extensive litigation against the NDEB itself. He brought an action in the Ontario Superior Court of Justice seeking a further opportunity to challenge his unsuccessful examination results; that claim was dismissed on February 28, 2022, with costs ordered against him. He appealed to the Court of Appeal for Ontario. In that appeal, the NDEB obtained an order requiring $18,000 to be paid into court as security for costs, failing which the appeal would be dismissed. Dr. Benbella paid the security, but his appeal was ultimately dismissed, with the Court of Appeal upholding the motion judge’s conclusion that his application disclosed no reasonable cause of action, and directing that costs be paid out of the monies held as security. When he declined to comply fully with the costs consequences, the NDEB had to bring a further motion to obtain payment of costs, which was granted. Dr. Benbella then sought leave to appeal to the Supreme Court of Canada; the leave application was dismissed with costs, bringing the NDEB litigation to a final conclusion. In this new action, Dr. Benbella acknowledges that the evidence he relies upon regarding alleged exam compromise had already been encompassed in the earlier NDEB proceedings that have now been finally dismissed.

Claims and relief sought

In the present proceeding, Dr. Benbella sues the College and seeks a series of declarations and mandatory orders. He asks the court to declare that the College has an ongoing statutory duty under s. 22.4(2) of the Regulated Health Professions Act (RHPA) to ensure that registration practices and decisions are transparent, objective, impartial, and fair, and that this duty includes taking reasonable steps to verify credible evidence that third-party examinations relied upon for registration may have been compromised. He further seeks a declaration that the College’s continuing failure to reasonably review and address his evidence regarding alleged exam compromise constitutes a breach of its statutory duty, and that this breach also violates procedural fairness under s. 7 and equality rights under s. 15 of the Canadian Charter of Rights and Freedoms, particularly where he alleges that similarly situated candidates in comparable integrity breaches were treated differently. In terms of mandatory relief, he asks for orders requiring the College to conduct a reasonable, good-faith review of his evidence, including requesting relevant examination records from the NDEB to verify the integrity of the 2018 and 2019 written examinations; to consider any follow-up action necessary to keep registration practices transparent, objective, impartial, and fair; to provide him with a written report within 90 days summarizing the steps taken, the evidence reviewed, and its findings with reasons; and to take any further steps reasonably flowing from those findings consistent with its statutory mandate. He also seeks an order allowing him to return to court for directions or enforcement in case of non-compliance, a declaration that his action is not a collateral attack on his final NDEB results or any final court decision, and an order for costs.

Court’s analysis on frivolous relief

The motion came before the Ontario Superior Court of Justice under Rule 2.1.01 of the Rules of Civil Procedure, which allows the court, on its own initiative, to stay or dismiss a proceeding that appears on its face to be frivolous, vexatious, or otherwise an abuse of process. The registrar referred the matter to the judge following a written request from the College’s counsel under the Rule, and the court invited submissions from both parties. After considering the materials, the court concluded that the case was not a “close call” and that significant portions of the relief sought were plainly frivolous. A frivolous proceeding is described as one lacking legal basis or merit and brought without reasonable grounds, readily recognizable as devoid of merit and with little prospect of success. The court held that the Charter-based declaration under s. 7 was frivolous because the pleadings did not disclose any deprivation of life, liberty, or security of the person, even if the College had failed to investigate the NDEB examinations; therefore, a prima facie breach of s. 7 could not be established on the face of the claim. The requested order compelling the College to consider “whether any follow-up action is required” to ensure fairness in registration practices was also found to be beyond the proper province of the courts, too vague, and therefore unenforceable. In addition, the court characterized the request for a detailed written report from the College within 90 days–summarizing steps taken, evidence reviewed, and findings with reasons–as, in substance, a request for mandamus against a regulator, without any pleaded legal basis requiring that such a report be issued to a private person who is not directly subject to the College’s regulatory authority.

Court’s analysis on vexatious and abusive process

Although the court noted that the pleadings themselves were professionally drafted and did not show obvious hallmarks of vexatious litigation such as unusual formatting or harassing tone, it held that the proceeding was vexatious when viewed in context. Dr. Benbella argued that his claim raised a distinct legal question about whether the College, as statutory regulator, may decline to investigate credible concerns regarding the integrity of a licensing examination it requires for registration. The court acknowledged that, in some circumstances, a person might legitimately seek a determination of a regulator’s responsibility for oversight of a separate examination body. However, the judge emphasized that, given the plaintiff’s litigation history and his own concession that the evidence at issue had already been canvassed in the NDEB proceedings, the true nature of this claim was to renew his challenge to the same NDEB examination results that had already been conclusively determined against him. The court accepted the College’s submission that the plaintiff was trying to do indirectly what he could not do directly: re-litigate and impugn the 2018 and 2019 exam results by re-framing his complaint against a different institutional actor. Citing authority that Rule 2.1.01 is an appropriate vehicle to strike out claims that essentially seek to have the same matter adjudicated in a different form, the court found this action to be an abuse of process. The existence of outstanding costs orders from the earlier litigation, while not independently determinative, reinforced the court’s view that it was inappropriate for a litigant who had not complied with prior costs awards to continue to seek new court orders on the same underlying dispute.

Ruling and outcome

The court concluded that this proceeding fell squarely within the type of legal mischief targeted by Rule 2.1.01: a claim lacking legal merit that attempts to roll forward grounds and issues from prior proceedings to re-litigate matters already finally decided. Having found that key aspects of the relief sought were frivolous and that, in overall context, the proceeding was vexatious and an abuse of process, the court granted the Rule 2.1.01 motion and ordered that Dr. Hocine Benbella’s claim against the Royal College of Dental Surgeons of Ontario be dismissed. In this decision, the College is the successful party. The endorsement does not specify any quantified award of damages or a particular costs amount in favour of the College, and in light of the text of the decision, the total monetary award or costs ordered in this specific case cannot be determined.