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College of Dental Surgeons of British Columbia tried to sweep sexually inappropriate comments ‘under the rug’, report finds

The College of Dental Surgeons of British Columbia "poorly" handled allegations of sexually inappropriate comments made by its chief executive, "intended to mislead" and attempted to "sweep this serious matter under the rug," an internal investigation has found.

The report, written by Vancouver lawyer Peter Gall and seen by The Globe and Mail, said the college needs to apologize to Dr. Rachel Staples and require its registrar, Jerome Marburg, to apologize and take counselling and sexual-harassment training. The review also concluded the board made a "serious error in judgment" when it accepted Mr. Marburg's denial that he made the controversial remarks to Dr. Staples, a Victoria dentist, rather than accept the findings of the independent investigator hired by the college who concluded that he did make the remarks.

"Based on my investigation, I have concluded that [the college] has handled the matter very poorly," Mr. Gall wrote in the opening sentence of his report.

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He added later: "In my opinion, Dr. Staples is right in saying that the board attempted to sweep this serious matter under the rug." The B.C. government announced late Thursday that it had ordered an outside review into the college's board, citing "a series of unrelated complaints made against the college."

The B.C. Health Ministry declined to confirm the nature of those complaints.

The government also announced five new appointees to the college's board, who will be added to the 17 already on it.

The college is the oversight body that regulates more than 3,600 dentists, seven dental therapists and more than 6,500 certified dental assistants in B.C.

It has a mandate to "serve and protect the public by ensuring the ongoing competence and good conduct of its registrants." In an e-mail, college president Dr. Don Anderson said the college would not be commenting.

"Mr. Gall's report is confidential," he wrote. "You should not have it and should not comment on it. This is an internal matter." Mr. Marburg has been the main spokesperson for the college since being hired as registrar in 2012. He has consistently denied making the statements. His lawyer did not respond to a request for comment about Mr. Gall's report.

In his report, Mr. Gall found the college mishandled the matter by commissioning an independent investigator and then rejecting her conclusions, which were that Mr. Marburg did make the offensive comments. The initial inquiry did not make a recommendation for specific action, but Mr. Gall concluded the board had an obligation to act.

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"The public interest mandate of the college is at the heart of its responsibilities," Mr. Gall wrote in the report dated Feb. 14, 2018. "Attempting to suppress or ignore the matter, as the board has done to date, is not only inconsistent with the college's public interest mandate and ethical obligations, but it is also futile in the era of social media and greater public consciousness towards sexual harassment."

Mr. Gall's report commented on the college's response to the events that allegedly took place at a March, 2016, dental conference. The college had earlier received an investigative report written by Vancouver lawyer Elizabeth Lyall, who was retained by the college in April, 2016, to investigate the allegations.

According to her report, Mr. Marburg was with a male companion, Dr. David Tobias, who was at the time president of the college. The pair stopped to chat with Dr. Staples and two other female dentists at the bar of the Fairmont Pacific Rim Hotel.

In a letter of complaint cited in the Lyall report, Dr. Staples alleged Mr. Marburg addressed her and her friend by saying: "Don't look at me like that."

"Like what?" Dr. Staples says she responded. "Like you two want to have sex with me." Ms. Lyall's report, submitted June 3, 2016, is confidential, but The Globe obtained a copy. She concluded that although Mr. Marburg denied making the statements, "the weight of evidence" supports the view of the complainant.

"The investigator finds that Mr. Marburg said to [Dr. Staples] … what he is alleged to have said," the report says. "It may well be that he made the statements in a joking manner, but the investigator draws no conclusion on that point."

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The report was submitted to the board, but the board accepted Mr. Marburg's denial after Mr. Marburg submitted a polygraph test, Mr. Gall said in his review.

Mr. Gall viewed that as a mistake.

"It is my strong opinion that the board had no basis for rejecting its own independent investigator's finding," he said, adding that it was "incumbent on the board to accept [Ms. Lyall's] finding unless there was compelling reason not to do so."

Mr. Marburg's polygraph "is not a compelling reason," he said, adding: "Polygraphs are not admissible in legal proceedings for a very good reason. There is a serious question about their reliability." The lawyer declined to comment on his report when asked for an interview by The Globe.

Mr. Gall found that after Ms. Lyall's report was issued, Dr. Staples received an e-mail from the board noting that the matter had been resolved.

On June 8, 2016, Dr. Staples' lawyer sent a letter to the board objecting to the result and noting that Mr. Marburg did not acknowledge the incident. It also said that Dr. Staples wanted a letter of apology and that Mr. Marburg should be required to take a course on appropriate professional behaviour.

Some time the same month, Mr. Gall's report notes, Mr. Marburg sent Dr. Staples a handwritten letter in which he wished her well and said, "You … have reported that I made remarks that were upsetting and offended you. Although I do not recall making such remarks, I want you to know that if I said anything upsetting to you … I am truly sorry. Please accept my unreserved apology."

Dr. Staples said in an interview with The Globe last week that she let the matter of Mr. Marburg's comments drop for a time because she was undergoing treatment for breast cancer. But she said she remained unsatisfied with the college's handling of her case and with Mr. Marburg's refusal to acknowledge that he made the remarks.

She said that as the #MeToo movement gathered steam in late 2017, she contacted her lawyer once again. On Dec. 22, 2017, her lawyer sent a letter to the board again expressing Dr. Staples' dissatisfaction that Mr. Marburg had not apologized.

"We stress this conduct indicates that Mr. Marburg does not accept responsibility for his actions, does not understand the importance of establishing and maintaining appropriate professional conduct and as registrar does not ensure the maintenance of an independent and unbiased complaints process," wrote Michael Scherr, who represents Dr. Staples. The text of the letter is included in Mr. Gall's report.

Late last year, Dr. Staples posted an online Google review that summarized her allegations and the college's response. Dr. Staples told the Globe the review was briefly taken down. Dr. Staples reposted it last month.

The review prompted Mr. Marburg to warn the board of the post and to note that a team of "media experts" had prepared a response should there be questions.

"The college's response to Dr. Staples' Google post is clearly inaccurate and intended to mislead," Mr. Gall wrote, in part because it said Mr. Marburg "further" cleared his name by taking a polygraph – implying that the investigator had already cleared his name, which she had not.

In his report, Mr. Gall highlighted the public interest at play, noting that Mr. Marburg, as registrar and chief executive officer of the college, has "power over members of the college" and that the college is a statutory body with a mandate to govern in the public interest. "The board must understand that this matter will not go away until it appropriately deals with the situation," he said. That includes an apology.

"The bigger picture is that [Mr. Marburg] is not being held to the same standard as the registrants of the college," Dr. Staples said. "If I went out and I said that to a patient I would be strung up and sent off to an ethics course, I could lose my licence; there would be repercussions for me.

"So they are not holding their CEO to the same accountability and standards. To me that is a huge problem of trust."

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