Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420

CITATION: Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420

DIVISIONAL COURT FILE NO.: 34/12

DATE: 20131016

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HARVISON YOUNG, LEITCH, LEDERER JJ.

B E T W E E N:

DR. BEHNAZ YAZDANFAR

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS of ontario

• and –

ATTORNEY GENERAL OF ONTARIO

Mary Thomson, Wendy Wagner, Josh Hanet and Erin Farrell, for the Appellant

Lisa Brownstone and Carolyn Silver, for the Respondent

Zachary Green, for the Intervener

HEARD: May 9 and 10, 2013

Harvison Young J.

[1] Dr. Yazdanfar appeals from four decisions of the Committee of the College of Physicians and Surgeons of Ontario (the “Committee”): a decision on the merits of Dr. Yazdanfar’s disciplinary hearing, a decision on the admissibility of certain evidence, and a decision on a constitutional question, all dated May 4, 2011, as well as a penalty order of the Committee, dated December 21, 2011. The Committee found that the appellant failed to maintain the standard of practice of the profession; had engaged in disgraceful, dishonourable and unprofessional conduct; and demonstrated a lack of knowledge, skill and judgment in her treatment of a number of patients. It found that she was incompetent based on the nature and extent of her lack of knowledge, skill and judgment, that she had engaged in dangerous practices that jeopardized the health of patients and that she had demonstrated a lack of insight and responsibility. One or more of the above findings was made with respect to over 30 different patients.

[2] By way of penalty, the Committee determined that Dr. Yazdanfar’s failure to appropriately limit her practice led to her failure to maintain the standard of practice, and to a pattern of disregard for basic patient safety as reflected in the finding of incompetence. It concluded that the appropriate penalty to ensure protection of the public was a two-year suspension and restrictive terms thereafter preventing Dr. Yazdanfar from practicing as a cosmetic surgeon. The order restricts her from performing all surgery except as a surgical assistant in a hospital-based setting under the supervision of an approved member of the College who is in attendance and performing the surgery.

Background Facts

[3] Dr. Yazdanfar is a Canadian-trained physician who qualified in family practice. Beginning in 2003, she focused her practice on cosmetic surgery. Her practice was limited to the operative procedures of liposuction and breast augmentation and performed at the Toronto Cosmetic Clinic, which she owned and operated.

[4] The catalyst for these proceedings was the tragic death of KS,[^1] one of the appellant’s patients, following a liposuction procedure in September 2007 (see Reasons for Decision, pp. 4, 231). KS was a 34-year-old mother of a young son and her death later in the day of her surgery attracted widespread attention from the media.

[5] In November 2007, the College commenced an investigation into the appellant’s practice and issued a Notice of Hearing on April 22, 2009. It made allegations of failure to maintain the standard of practice with respect to the care of three liposuction patients and two breast augmentation patients in 2007 and 2008, along with related allegations of professional misconduct and incompetence. The College also made allegations related to a number of other liposuction and breast augmentation patients treated by the appellant between 2005 and 2007. The case against the appellant related to over 30 patients in all. The College also alleged that the appellant contravened the advertising regulation under the Medicine Act, 1991, S.O. 1991, c. 30.

The Decision under Review

[6] The hearing before the Committee was conducted over 68 days from July 13, 2009, to July 22, 2010. Its Reasons for Decision are 349 pages in length.

[7] As the chart that is appended as “Appendix A” to this court’s reasons indicates, the Committee upheld many, but not all, of the allegations. The Committee’s individual findings amounted, in aggregate, to determinations that the appellant had repeatedly and knowingly breached the standard of practice of the profession, was guilty of professional misconduct, and was incompetent.

[8] The factual findings of the Committee are detailed. As will be evident from the discussion below, most are not in issue on appeal.

[9] Different types of allegations were made against the appellant with respect to different patients. A brief description of the nature of these allegations will be helpful.

[10] Professional misconduct arises under s. 51(1) of the Health Professions Procedural Code (“Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Under s. 51(1)(c), certain forms of professional misconduct are defined in regulations. A failure “to maintain the standard of practice of the profession” is a form of professional misconduct that arises under s. 1(1)(2) of O. Reg. 856/93, which is a regulation to the Medicine Act, 1991. A distinct form of professional misconduct under s. 1(1)(33) of O. Reg. 856/93 is “[a]n act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.” An allegation of incompetence arises under s. 52(1) of the Code.

[11] Not all allegations were levied with respect to each patient in the same manner. With respect to the patient KS and others, allegations included multiple failures to maintain the standard of practice of the profession, multiple instances of disgraceful, dishonourable or unprofessional conduct, and generally that the appellant demonstrated incompetence. Some allegations were patient-specific, while others addressed the appellant’s practice more generally.

[12] The allegations were varied. Some concerned informed consent; others concerned the performance of surgical procedures or post-operative care. Some cases dealt with liposuction, some only with breast augmentation and others with both. The Committee found that over 60 allegations in total were made out against the appellant.

[13] It is unnecessary to review the full factual basis for all of these findings, especially in light of the limited scope of this appeal. But recurring themes are evident in the Committee’s findings. These include the appellant’s failure to recognize her limits; her failure to comply with what the Committee found to be the applicable standard of practice governing the volume of liquid to be extracted in a liposuction procedure, or to consistently comply with the standards that she considered as applicable; her lack of adequate attention to patients’ other medical conditions (co-morbidities); unsafe and unacceptable discharge practices; lack of judgment; and lack of insight or responsibility for her actions or the jeopardy in which she placed her patients.

[14] In addition to the allegations respecting the appellant’s treatment and care of her patients, there were allegations that she breached the advertising provisions of O. Reg. 114/94, specifically the requirements of s. 6(2).

Grounds of Appeal

[15] The appellant raises the following grounds of appeal:

(i) The Committee erred in concluding that the appellant knowingly breached the acceptable standard of practice with respect to the performance of liposuction;

(ii) The Committee erred in rejecting evidence contained in contemporaneous medical records, absent reliable evidence to the contrary, in considering whether certain patients gave their informed consent to breast augmentation;

(iii) The Committee erred in its decision to admit certain evidence and its refusal to admit other evidence, thereby breaching the appellant’s right to procedural fairness. In particular, the appellant submits,

a. the Committee erred in allowing the use of a transcript from an interview of the appellant in violation of s. 33(6) of the Public Inquiries Act, 2009, S.O. 2009, c. 33, Schedule 6, and in giving undue weight to the opinion evidence of Dr. Fielding in light of his dual role as investigator and expert; and

b. the Committee erred in not affording the appellant the opportunity to respond to evidence relied on by the prosecution’s expert’s evidence given in reply;

(iv) The Committee erred in finding that the appellant’s website postings contravened O. Reg. 114/94 and constituted disgraceful, dishonourable or unprofessional conduct on the basis that

a. the advertising was not actually or potentially misleading and did not support a finding of disgraceful, dishonourable or unprofessional conduct; and

b. the ban on testimonials and superlatives is unconstitutional and cannot be enforced against the appellant; and

(v) The Committee erred in essentially revoking the appellant’s certificate of registration by limiting her practice to that of a surgical assistant in a hospital-based setting.

[16] As the respondent noted at the outset of its submissions, these grounds of appeal, if successful, would leave a number of significant findings intact:

a. The appellant fell below the applicable standard of practice in a number of areas (such as her breast augmentation practice), was incompetent and failed to consistently follow even the guidelines that she claimed were applicable in the context of the liposuction allegations;

b. The appellant regularly engaged in inappropriate and unsafe practices with respect to the discharge of patients; and

c. The appellant demonstrated a lack of judgment that pervaded all aspects of the appellant’s care and treatment. Examples include a lack of judgment regarding the nature of the treatment (such as the volume of extract or the number of sites), inadequate attention to co-morbidities, issues with post-operative care, and an ignorance of her own limitations.

Standard of Review

[17] The standard of review is reasonableness with respect to the findings of facts and the determination of the standard of practice to be applied, as well as to the penalty imposed: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 53-54; and Sazant v. College of Physicians and Surgeons of Ontario, 2011 ONSC 323, 226 C.R.R. (2d) 284 (Div. Ct.), aff’d 2012 ONCA 727, 113 O.R. (3d) 420, leave to appeal to S.C.C. refused, 35150 (April 25, 2013), at paras. 112, 275.

[18] There is also no dispute that the standard of review applicable to the question of the constitutionality of the ban on testimonials and superlatives in O. Reg. 114/94 is correctness: Dunsmuir, at para. 58; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 30, 43.

[19] To the extent that the appeal raises issues of procedural fairness, there is no standard of review. As the Court of Appeal held in London (City) v. Ayerswood Development Corp. (2002), 2002 3225 (ON CA), 167 O.A.C. 120 (C.A.), at para. 10:

When considering an allegation of a denial of natural justice, a court need not engage in an assessment of the appropriate standard of review. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to. The court does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguards were required in those circumstances in order to comply with the duty to act fairly. [Citation omitted.]

[20] For the reasons that follow, I conclude that the appellant’s grounds of appeal must fail and the appeal must be dismissed. I will address the issues raised by the appellant in the order set out above.

Law and Analysis

I. Did the appellant violate the standard of practice with respect to the performance of liposuction?

[21] The first ground of appeal is that “the Committee erred in concluding that the member knowingly breached the acceptable standard of practice with respect to the performance of liposuction”.

[22] In taking this position, the appellant’s focus is specifically on the standard of practice in respect of “extraction volume”. This refers to the volume of aspirate, meaning fat and other liquids, that is removed during liposuction. The appellant maintains this focus at the expense of other aspects of the standard of practice issues that were also of concern to the Committee, such as the number of sites treated in the appellant’s procedures, and the appellant’s approach to co-morbidities in particular patients.

[23] The core of the appellant’s argument on this issue is that there was no “clearly ascertainable” standard of practice with respect to liposuction that had been clearly communicated to those who were to be governed by it at the time of the breach.

[24] There is one point to clarify at the outset. There was a certain amount of confusion during oral argument before this court as to whether the appellant was taking the position that the College must establish a mental element as a precondition to establishing a breach of a standard of practice. However, it ultimately became clear that the appellant was not taking that position, and all parties agreed that the “knowing” element only needed to be established when it formed part of the allegations when it formed part of the allegations. This element of “knowing” has no bearing, however, on the Committee’s principal findings that the appellant had failed to maintain the standard of practice and was incompetent in her care and treatment of KS, FM, and a number of other patients.

[25] Accordingly, there are really two aspects to this ground of appeal. The first is whether the Committee reasonably determined the applicable standard of practice with respect to liposuction. The second aspect of this ground is whether the Committee reasonably found that the appellant had knowingly breached the standard of practice when this was alleged.

a. Were the Committee’s findings regarding the applicable standard of practice for liposuction reasonable?

[26] The appellant focuses on the Committee’s finding that she breached the standard of practice by routinely exceeding the maximum allowable extraction volume in a liposuction procedure. She submits that the Committee unreasonably accepted the American Society of Plastic Surgeons’ (ASPS) published guidelines as reflecting the applicable standard of practice, and maintained that the applicable guidelines were those published by the American Academy of Cosmetic Surgery (AACS).

[27] The Committee considered extensive expert evidence and published guidelines on this issue. It observed that the expert testimony, when there was specific expertise with respect to the practice of liposuction in Ontario, was unanimous that the Ontario standard was reflected in the published guidelines of the ASPS. It also considered, inter alia, the guidelines published by the AACS (Decision, pp. 204-205). For the purposes of this appeal, the main difference between these guidelines is that the ASPS guidelines permits a maximum extraction volume of 5000 cc’s of total aspirate, meaning a combination of fat and other liquids extracted during liposuction. The AACS guidelines, on the other hand, permit 5000 cc’s of fat to be extracted (meaning that the total aspirate will be over 5000 cc’s) in an out-patient setting. The appellant claimed to have followed the AACS guidelines, a point to which I will return below.

[28] The Committee considered the expert evidence and the considerations to be applied in considerable detail, as summarized at pp. 211-15 of its Reasons for Decision. It framed the debate as follows:

The Committee heard evidence that, for liposuction surgery, 5000cc’s of total aspirate would equate to no more than 4000cc’s of fat in the fluid aspirated, and usually less. On extraction, the fluid is a mixture of fat, infiltrate and other body fluids, which separate when allowed to stand, such that fat is usually measured after thirty minutes. Much time was spent making the case for whether total aspirate or total fat is a better measure of tissue trauma.

Evidence was presented that the following all contribute to trauma: number of body parts treated, the percent of body surface area, the number of passes made with the cannula, the skill of the surgeon, the amount of infiltrate, the volume of aspirate, and the duration of the procedure. The concern is patient safety. The surgical procedure is traumatic and the complications real. (Reasons for Decision, p. 211.)

[29] With respect to the issue of the volume of aspirate, the Committee stated as follows:

The Committee takes no position on the debate whether fat or total aspirate is a better measure of tissue trauma. However, when making the decision when to stop the procedure, measurement of total aspirate is necessary because it is impossible to measure accurately the volume of fat at that time. (Reasons for Decision, p. 211.)

[30] It then set out the position of the parties and noted that “[t]he ASPS guidelines indicate that, for large volume liposuction, attention must be paid to increased risk of complications, and that monitoring overnight or for an extended period of time in an accredited facility is required” (Reasons for Decision, p. 211). It found as follows, at pp. 212-13:

The Committee has concluded that the guidelines produced by the American Society of Plastic Surgery (ASPS) represent the standard of practice for liposuction in Ontario in the out-patient setting.

In reaching this conclusion, the Committee had regard for the factors noted in the foregoing discussion and gave particular weight to the following.

The issue is the magnitude of liposuction permitted and patient safety. The Committee has evidence from numerous experts that the amount of aspirated fat allowed by the AACS guidelines (5000cc’s of fat) permits a significantly larger surgical procedure than that deemed to be safely done under the ASPS guidelines (5000cc’s of total aspirate).

The Committee heard evidence from a number of experts who had different views on how much fluid can be safely removed and how it should be expressed. The opinions of Dr. Fielding, Dr. Mulholland and Dr. Freiberg were given more weight, as they each brought unique and relevant experience related to practice in Ontario. Dr. Fielding and Dr. Mulholland currently practise cosmetic surgery. Dr. Fielding teaches plastic surgery residents at the University of Toronto and the ASPS guidelines are used in that context. The other experts in cosmetic surgery had no Canadian experience or knowledge regarding practice, but they felt that Ontario practice was not materially different than American practice. All of the Canadian experts were in agreement that the ASPS guidelines represented the standard of practice in Ontario.

Large volume liposuction is fraught with complications, as clearly articulated by Dr. Mulholland: “there are massive, potential, large volume shifts into the third space”. “The fluid that is shifting may have the effect of leaving an inadequate amount of intravascular fluid to supply your main organs. That can lead to multiple organ system failure or DIC.”

Dr. Mulholland described the AACS as a group of like-minded individuals interested in sharing information. It is not recognized by the Royal College of Physicians and Surgeons of Canada. Like many such societies, it serves the interests of physicians with particular areas of interest. It brings together different physicians from different specialties, and many members who are not trained in recognized ABMS surgical subspecialties.

[31] The Committee considered and rejected the first limb of the appellant’s submission that the applicable standard of practice in Ontario was that reflected by the AACS, that is, a maximum aspirate of 5000 cc’s of fat, and not that of the ASPS. In reaching its conclusion, it declined to accept the expert evidence of two American cosmetic surgeons.[^2] It noted that all of the Canadian experts[^3] agreed that the ASPS guidelines represented the standard of practice in Ontario, and found that the existence of a respectable body of medical opinion held elsewhere did not, in itself, amount to a standard of practice binding in Ontario. That “[t]he alternate respected body of opinion must be held in Ontario; it is not reasonable to say that an opinion held in the USA, or elsewhere in the world, should be binding in Ontario” (Reasons for Decision, p. 214).

[32] The second limb to the appellant’s submission that the AACS guidelines represented the standard of practice in Ontario was the argument that because no such guidelines had been set out in advance by the College, and that the College knew or should have known that she treated the AACS guidelines as representing the applicable standard of practice, it was unreasonable for the Committee to treat the ASPS guidelines as binding.

[33] On this point, the appellant made three submissions. First, she argued generally that it was unfair to treat the ASPS guidelines as representing the applicable standard of practice because the College had never issued any written statement to that effect. Second, she submitted that the College had, through an order made in relation to another doctor in 2007 (the “Anderson Order”), effectively represented that 5000 cc’s of fat aspirated was the applicable standard of practice and that she had relied on that representation to her detriment.[^4] Third, she submitted that through a Quality Assurance (“QA”) process that she had been required to undergo in 2003, and which had been undertaken by Dr. Eli Judah, the College knew or should have known that she was not complying with the ASPS guidelines. In addition, she submitted that the AACS guidelines have been accepted as applicable in Ontario in the decision of Gallant-Clough v. Anderson, [2007] O.J. No. 1308 (Sup. Ct.).

[34] The appellant’s arguments on this second limb must fail. First, implicit in her submissions on the standard of practice is the premise that standards of practice must be grounded in formal written guidelines articulated and promulgated by the regulator in advance. This reflects a fundamental misconception both of the nature of a standard of practice and of the obligations of medical practitioners.

[35] The ASPS guidelines did not, in and of themselves, constitute the standard of practice in Ontario. Rather, as the Committee found, they reflected the standard of practice as far as the volume of aspirate was concerned. The appellant was not entitled to assume that the Anderson Order applied to her or that it was a general statement applicable to all physicians. Moreover, the suggestion that the College knew or should have known that she was not practicing in accordance with the ASPS guidelines misses the point that it is up to the physician to ascertain and respect the applicable standards at given points in time. Even Dr. Jackson, one of the experts called by the appellant, testified that the standards of practice can vary from state to state and that it is up to the individual doctor to determine what they are.

[36] A standard of practice exists even when it is not explicitly set out in a written code; a reviewing tribunal may ascertain it “by reference to evidence of a common understanding within the profession as to expected behavior of a reasonable professional, or by deducing it from the profession’s fundamental values”: Walsh v. Council for Licensed Practical Nurses, 2010 NLCA 11, 295 Nfld. & P.E.I.R. 222, at para. 48, Green C.J.N.L., concurring. The ASPS guideline was not found to comprise a binding code in the present case; rather, it was found to be reflective, after consideration of extensive evidence, of a common understanding within the profession of which the appellant had a responsibility to be apprised.

[37] Second, the Committee held that the appellant could not rely on the doctrine of detrimental reliance as a result of the Anderson Order because “[i]t was not a representation made to her” (Reasons for Decision, p. 215), and as the College stated,

in the public law/regulatory context, the doctrine cannot be used when the College has a duty to act in the public interest. Circumstances that could create estoppel in private law will not do so in public law where the public policy embodied in relevant legislation would be subverted. (Reasons for Decision, p. 215.)

[38] In short, the Anderson Order was not an articulation of a standard of practice made to the appellant or to the profession in general. This was a reasonable conclusion on the part of the Committee.

[39] Third, the appellant also submitted that the Committee erred in refusing to admit the Quality Assurance evidence, arguing that had the evidence been admitted, she could have shown that she had been following the AACS Guideline in 2004, and that she had notified the College of this during the QA peer assessment process. The main problem with this argument is that the evidence would not have supported the appellant’s position.

[40] It should be clarified at the outset that, contrary to the appellant’s submissions, this is not properly framed as a procedural fairness argument. The Committee, following submissions from the parties, made a legal determination regarding the admissibility of the QA evidence. Indeed, it dedicated a separate decision to this issue. The parties had notice of the relevant issue, made submissions, and received reasons for the decision. To the extent that the appellant is unhappy with this determination, her objections are properly understood as substantive: she disagrees with a determination of law. There is no question of her being denied procedures that were owed to her or otherwise denied the right to a fair hearing.

[41] In this case, it is not necessary to determine whether the Committee’s determination on admissibility was correct or reasonable because the evidence would clearly have been of no assistance to the appellant. Dr. Judah, who conducted the peer assessment further to an investigation by Dr. Richards, did not review the appellant’s practice in a general sense as she suggests.

[42] Dr. Judah reviewed ten charts and specifically confined his examination to concerns raised by Dr. Richards about the facility operated by the appellant. Those concerns involved the use of uncertified staff, the absence of staff at certain times, and deficiencies in the charts dealing with pre-operative discussion and assessment of the risks and benefits of surgery. Extraction volume was not a concern because at the time of the appellant’s review by Dr. Richards, she was conducting only small volume liposuction under local anesthetic.

[43] Dr. Judah’s peer assessment did not address the volume of fluid extracted because that was not what he was looking for. Because the assessment was based on the Richards report, volume was not in issue. The appellant’s practice was quite different from what it was when KS died in 2007 following high volume liposuction from multiple sites under general anesthetic. The QA evidence did not demonstrate that the appellant was following the AACS guidelines. At best, it demonstrated that she was performing significantly different procedures. Thus, the QA evidence would not have assisted the appellant.

[44] Finally, the appellant relies on the case of Gallant-Clough as a “pronouncement” concerning the volume of tissue removal in liposuction. In that case, Echlin J. concluded that a defendant who extracted 5400 cc’s of total aspirate (of which 3000 cc’s were fat) had met the appropriate standard of care for liposuction in a private clinic in Ontario: Gallant-Clough, at paras. 17, 45. This does not assist the appellant. The standard of care in that case was being assessed as of 2002, some five years earlier than the relevant time in the present case. I do not consider Gallant-Clough to establish a general standard of practice in relation to extraction volume that could be determinative in the present matter.

[45] In sum, the Committee carefully canvassed the evidence concerning the applicable standard of practice regarding the volume of extract in outpatient liposuction procedures. It concluded, on the basis of the expert evidence of all the Canadian doctors, that the applicable standard of practice was reflected in the ASPS guidelines: no more than a total volume of 5000 cc’s of fluid should be extracted per procedure. This conclusion was open to it on the evidence and was reasonable.

[46] In any event, the final difficulty with the appellant’s position on the standard of practice is that, as she concedes, she regularly extracted more than even the 5000 cc’s of fat set out in the AACS guidelines that she purported to follow. In all the cases involving liposuction except for KS and CK, she extracted more than 5000 cc’s of fat.

b. Did the appellant “knowingly” exceed the standard of practice for liposuction?

[47] This ground may be dealt with briefly in the light of the discussion above. A finding of “knowingly” breaching the standards of practice is necessary if it is alleged that the breaches were “knowing”. The Committee found that the appellant knowingly breached the standard of practice concerning the volume of fluid extracted. This was clearly established in all the cases in which she exceeded even the AACS guidelines that she claimed to be applicable. This was the case in all the cases except for KS and CK. Obviously, the appellant cannot claim not to have known of the standards to which she testified that she thought articulated the applicable standard of practice.

[48] In the case of KS, the appellant exceeded the ASPS guidelines of 5000 cc’s of total aspirate in the out-patient setting but did not exceed the AACS guidelines of 5000 cc’s of fat because while 6075 cc’s of fluid was extracted, only 2725 cc’s was fat. In the case of CK, the total volume of fluid extracted was 7150 cc’s and 3800 cc’s of this was fat.

[49] The Committee considered the appellant’s evidence that she was attempting to comply with the AACS guidelines and thus was not “knowingly” violating the standard of practice with respect to liposuction. It clearly rejected her evidence, finding that she tried to rely on the AACS guidelines as a way of justifying her “gross violation” (Reasons for Decision, p. 258) of the ASPS guidelines. This finding was clearly open to the Committee on the evidence before it.

[50] In all the other cases in which the standard was alleged to have been “knowingly” breached, the appellant violated even the AACS guidelines with respect to the limits of fluid to be extracted in outpatient procedures. It is also significant to note that the finding of “disgraceful, dishonourable or unprofessional” conduct with respect to liposuction concerned not only the volume extracted but the appellant’s conduct as a whole, including the performance of high volume liposuction on patients with co-morbidities, the number of sites, and the inadequate post-surgical care and discharge practices.

[51] For these reasons, I conclude that the Committee`s finding that the appellant had “knowingly” exceeded the standard of practice for liposuction was reasonable. This ground of appeal must fail.

II. Did the Committee err in rejecting evidence contained in contemporaneous medical records?

[52] The second ground of appeal is that the Committee “erred in rejecting evidence contained in contemporaneous medical records absent reliable evidence to the contrary” in reaching the conclusion that the appellant’s informed consent discussion with patients EC and SH did not meet the applicable standard of practice. The appellant submits that the Committee, by relying on the patient witnesses’ evidence on this issue, effectively rejected the “reliable” contemporaneous medical records to the contrary, namely, the consent forms that the two patients had completed.

[53] EC and SH underwent breast augmentation surgery. The Committee found that the appellant’s use of tumescent technique was “a variation in the operative technique, which is not sufficiently different from the standard operation to be considered a failure to maintain the standard of practice in Ontario” (Reasons for Decision, p. 224). It also accepted that her discussion with patients involved a thorough description of the technique that she used, and that in usual breast augmentation cases in which there were no special risks or difficult problems, her consent process was sufficient. However, in the cases of both EC and SH, special considerations applied, and the Committee was of the view that the appellant did not adjust her consent process to each case as required.

[54] In the case of EC, the email from the clinic to her set out the price of a breast lift. Her evidence (which included a note she testified she had written contemporaneously) was that she had asked about a breast lift and was told that she did not need one. The Committee found that the appellant had failed to obtain informed consent by failing to discuss all reasonable options (such as a breast lift), failing to inform the patient that she did not personally do breast lifts, and failing to discuss the risk of large implants. The Committee noted that all of the experts agreed that these failures amounted to a failure to maintain the standard of practice.

[55] SH went to the appellant’s clinic in August 2007 concerned that her breast implants (done by another surgeon in 2003) had shifted due to her extensive weight training. The Committee found that the appellant failed to obtain informed consent by failing to provide the patient with appropriate options so that she could make an informed choice. The appellant should have recognized the patient’s challenging problem was such that a referral to a more experienced surgeon was in the patient’s best interest. The Committee also found that the appellant failed to adequately advise the patient of increased complications with increased implant size.

[56] The appellant’s submission that the Committee erred in preferring oral evidence over contemporaneous records that were inherently more reliable fails for a number of reasons. First, this submission mischaracterizes the Committee’s reasoning on this point. The consent forms in issue did not, as the Committee found, exhaust the subject of what had taken place. The fact that SH had signed and initialed the forms indicating that she read and understood the risks of her breast augmentation procedure begs the question as to what she was told and whether the information given was adequate in the circumstances. While EC acknowledged that she did not remember all of the risks discussed, the evidence before the Committee also included notes taken by EC that supported her evidence that she had asked about a breast lift and been advised that she did not need one. The appellant’s only contemporaneous notes of the discussion involved a notation that said “risks discussed”. It said nothing about options or precisely what was discussed.

[57] In sum, the Committee’s conclusion on this issue did not pit the “contemporaneous records” against the evidence of the witnesses. The two were not inherently contradictory.

[58] Second, and relatedly, the Committee did consider all the evidence on this issue, including both the contemporaneous records and the witnesses’ evidence, and it concluded that the consent obtained was not adequate in these circumstances. In so concluding, it assessed the evidence before it and made its conclusions as to what was said and what was not said. This is at the heart of the fact-finding function of such a committee. There was ample evidence to ground these findings in the record before it and its conclusions were reasonable. This ground of appeal fails.

III. Did the Committee violate the appellant’s right to procedural fairness with respect to its treatment of Dr. Fielding’s evidence?

[59] Dr. Fielding was appointed by the College of Physicians and Surgeons to investigate the appellant’s practice pursuant to s. 75 of the Code. Dr. Fielding was required to interview the appellant, and the appellant was compelled to attend that interview. At the time, s. 76(1) provided that an investigator had “all the powers of a commission under Part II” of the Public Inquiries Act, R.S.O. 1990, c. P.41.[^5] Dr. Fielding subsequently testified as an expert before the Committee.

[60] The appellant alleges that the Committee erred in two respects in relation to its treatment of Dr. Fielding’s evidence and the transcript of the interview he conducted with the appellant. First, she submits that it erred in permitting the use of the transcript of the interview at the Committee hearing. Second, she submits that the Committee erred in according Dr. Fielding’s opinion “undue weight” in light of his dual role as an investigator and an expert witness.

[61] As I describe below, neither of these submissions can properly be characterized as relating to procedural fairness.

a. Was the use of the transcript from the interview at the hearing before the Committee an error or unreasonable?

[62] The Code provides the following in s. 76(1):

An investigator may inquire into and examine the practice of the member to be investigated and section 33 of the Public Inquiries Act, 2009 applies to that inquiry and examination.

[63] Section 9(1) of the repealed Public Inquiries Act is now embodied in s. 33(6) of the Public Inquiries Act, 2009. Both provisions provide the following:

A witness at an inquiry shall be deemed to have objected to answer any question asked him or her upon the ground that his or her answer may tend to criminate the witness or may tend to establish his or her liability to civil proceedings … and no answer given by a witness at an inquiry shall be used or be receivable in evidence against him or her in any trial or other proceedings against him or her thereafter taking place, other than a prosecution for perjury in giving such evidence.

[64] According to the appellant, although s. 33 of the Public Inquiries Act, 2009 provides broad powers to an investigator to compel a witness to give evidence, it also provides significant protections to the witness who is so compelled. These protections include a prohibition against the use of answers given by a witness at an inquiry in any trial or other proceeding against him or her. As a result, Dr. Yazdanfar was entitled to the protections set out in s. 33(6) of the Public Inquiries Act, 2009, and the use of the transcripts, in her submission, violated her right to those protections.

[65] In my view, this ground of appeal must fail. Interviews, and even “compelled” interviews conducted by regulators, do not constitute separate proceedings from the resulting regulatory proceedings: see Alberta (Securities Commission) v. Brost, 2008 ABCA 326, 440 A.R. 7, at paras. 37-38. The Committee was therefore correct that the protection of s. 33(6) of the Public Inquiries Act, 2009 does not apply for the purposes of the discipline hearing that may result from the investigation.

[66] In Brost, the Alberta Court of Appeal found that s. 6 of the Alberta Evidence Act, R.S.A. 2000, c. A-18, did not apply, in part because Alberta Securities Commission interviews with the appellants “were used in the same regulatory proceedings in which they were obtained”: Brost, at para. 37. The court observed, at para. 38, that “[t]he use made of the content of the investigative interviews conducted in this case was not outside the scope of the very regulatory proceedings for which the authority to investigate was enacted”, and further that individuals operating in the securities market “do not have a reasonable expectation that the content of their investigative interviews will not be used for the purposes of the” Securities Act, R.S.A. 2000, c. S-4.

[67] In this case, treating the Committee hearing as a separate or other proceeding would effectively undermine the purpose of the regulatory framework and the onerous obligation placed on self-regulating bodies to protect the public. As the Supreme Court of Canada held in Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at paras. 33-42, legislation governing self-regulating professions must be interpreted broadly in the context of its statutory duty to protect and serve the public interest.

[68] Taking these considerations into account then, I conclude that the appellant’s interviews with Dr. Fielding form part of the same regulatory proceeding initiated with the same ultimate regulatory purpose, that is, the protection of the public. The proceeding began with the investigation that followed the death of KS, and included the s. 75 investigation carried out by Dr. Fielding. Accordingly, the restriction on the use of answers given in “other” proceedings is not applicable.

[69] I note that the parties did not make express submissions in relation to the standard of review applicable to the interpretation of s. 33(6). It is arguable that the standard of review on this issue is correctness because the question is not one that lies at the core of the Committee’s expertise or that involves the interpretation of its home statute. Nonetheless, it is not necessary for this court to determine this issue because the Committee did not err in permitting the use of the Dr. Fielding’s report as the appellant’s prior answers to his questions had not been given in an “other proceeding”.

[70] Furthermore, historically there is a distinction at common law between admitting prior statements into evidence and using them for the purposes of cross-examination. The appellant takes issue with any and all use of the transcript and does not draw distinctions between its admissibility per se and its use in cross examination for impeachment purposes. Ms. Thomson, on behalf of the appellant, also argues that the transcript was unfairly used to highlight areas in which the appellant had refused to answer questions put to her by Dr. Fielding. In this case, the transcript of Dr. Fielding’s interview with the appellant was not admitted into evidence but was used only to impeach her credibility. There were a number of inconsistencies between the appellant’s evidence at the hearing and her statements to Dr. Fielding transcribed during her interview, particularly in relation to KS in the period following her surgery and what she knew or should have known about KS’s condition.

[71] This distinction between the admission of prior statements into evidence for substantive purposes and their use in cross-examination has been considered in the criminal law context, most recently in R. v. Nedelcu, 2012 SCC 59, [2012] 3 S.C.R. 311. As Nedelcu illustrates, the use of a prior statement statutorily compelled from the accused in another proceeding for the purpose of testing the credibility of an accused who testifies at his criminal trial is permissible even though the right against self-incrimination is so important in the criminal context: Nedelcu, at paras. 1, 23-24. The right against self-incrimination has much more limited application in the regulatory context: see R. v. Fitzpatrick, 1995 44 (SCC), [1995] 4 S.C.R. 154, at para. 54.

[72] Finally, it follows from the foregoing discussion that no unfairness arose from the use of the transcript to highlight questions that the appellant refused to answer during the course of the interview. Members of the profession are required to cooperate with their regulators. Having said this, however, there is no indication in the reasons of the Committee that this played any material role in its conclusions. While its reasons refer to a “lack of correlation” between her description of events in the KS matter given to Dr. Fielding and those given under oath, they do not mention any recalcitrance on her part in the course of answering questions posed by Dr. Fielding beyond noting that she had “found the atmosphere hostile and answered only what was asked … [and] refused to answer some questions on her counsel’s advice” (Reasons for Decision, p. 58).

[73] In short, the use of the transcript of Dr. Fielding’s interview of the appellant before the Committee was not unreasonable and did not violate her right to procedural fairness. As with the issue of the Quality Assurance review discussed above, the appellant takes what is essentially an evidentiary issue and frames it as involving procedural fairness. The appellant was not denied procedural fairness because of the way the Committee permitted the transcripts to be used. It was consistent with s. 33(6) of the Public Inquiries Act, 2009 because the transcript arose from the same regulatory proceeding, and was, in any event, used only to impeach her credibility.

b. Did the Committee err in according Dr. Fielding’s opinion “undue weight” in light of his dual role as an investigator and an expert witness?

[74] At the outset, I note that the appellant casts this submission in terms of the “undue weight”, which she submits the Committee accorded to Dr. Fielding’s evidence. Although she characterizes this as a procedural fairness issue, her submission stopped short of arguing that his expert evidence was inadmissible because he discharged “dual roles” as both investigator and expert witness. Once again, this is not, in essence, a procedural fairness argument. This issue goes to the assessment of the evidence, a function that lies at the heart of the expertise of the Committee and attracts the reasonableness standard of review.

[75] This ground of appeal must fail. First, while the appellant suggests that the “dual roles” are incompatible and unusual, none of the authorities cited support her position in the regulatory context, or dispute the College’s submission that this is, in fact, a usual practice adopted by the College. Both cases cited by the appellant in support of her submission on this issue are criminal cases: see R. v. Kovats, 2000 BCPC 176; R. v. Klassen, 2003 MBQB 253, 179 Man. R. (2d) 115.

[76] Second, it is significant that the appellant raises this issue for the first time in this court. She did not raise the argument before the Committee although she (unsuccessfully) opposed Dr. Fielding’s qualification as an expert on the basis that he lacked sufficient expertise. In the judicial review or administrative appeal context, the reviewing court may decline to consider arguments raised for the first time on review or appeal when the argument could have been, but was not, raised at first instance: see Alberta Teachers, at paras. 22-23; and Seibert v. Juhasz, 2012 ONSC 5447 (Div. Ct.), at para. 4. If the appellant had concerns with the weight that should be accorded to Dr. Fielding’s expert evidence on account of his “dual role”, she should have given the Committee the opportunity to consider this argument.

[77] Finally, and most importantly, I do not agree that the Committee attached undue weight to Dr. Fielding’s evidence. After reviewing his evidence, it stated, at p. 131 of the Reasons for Decision:

The Committee accepted Dr. Fielding’s evidence as reflecting careful thought. He provided the Committee with essential information about liposuction and breast augmentation and the complications of these procedures. While in the areas of informed consent, and booking and payment issues the Committee believed that he was holding Dr. Yazdanfar to an exacting standard, in the areas of clinical care his evidence was consistent, clear and fair. The Committee considered him to be a credible witness.

[78] Viewed in the context of the rest of the expert evidence, there is nothing to suggest that the Committee attached more weight to Dr. Fielding’s evidence than it did to other expert witnesses whose evidence it accepted. It reviewed and considered his evidence carefully, and did not simply accept it uncritically. The Committee’s treatment of Dr. Fielding’s evidence was reasonable and this ground of appeal must fail.

c. Did the Committee err in its treatment of Dr. Lee’s reply evidence and its refusal to permit Dr. Lim to see the study that he was asked about in cross examination?

[79] The appellant also submits that the Committee erred in not affording the appellant the right to respond to evidence relied upon in the respondent’s expert evidence given in reply, thus violating her right to procedural fairness.

[80] In reply, the College was permitted to call an expert anesthesiologist, Dr. Lee, who introduced a study that had been put to the appellant’s expert anesthesiologist, Dr. Lim, on cross-examination. One of the central factual issues in relation to the treatment and subsequent death of KS concerned her condition immediately following the surgery, just after she was taken to the recovery room shortly after 1 p.m. and up until the time that the appellant called 911 at 3:51 p.m. The Committee concluded that, from about 1:15 p.m., the recovery records had in fact shown that KS’s blood pressure was abnormally low (in the range of 60/30), and that the appellant had been aware of that when she saw KS in the recovery room at 1:28 p.m. (Reasons for Decision, pp. 234, 241). The Committee’s conclusion on this issue is as follows:

While Dr. Yazdanfar said she looked at the monitor and saw a reading in the 80’s, the Committee did not accept this. She either did not see the reading or she was misled by the apparent clinical appearance of the patient and gave it no credence. The Committee is of the view that Dr. Yazdanfar was aware or should have been aware that her patient had an abnormally low blood pressure when she saw her at 1:28, and she should have deferred the next surgery until it was clear that the situation had normalized. Even if the BP had been in the mid eighties as Dr. Yazdanfar testified she recalled after seeing the video, she should have been alert to the development of serious problems and deferred the pending case. (Reasons for Decision, p. 241.)

[81] Dr. Lim, in preparing his report, had not taken issue with the accuracy of the vital signs. At the hearing, however, he testified that the physiological response to low blood pressure is an elevated heart rate, and because KS’s vital signs indicated a low blood pressure along with a low heart rate, they might not have been accurately recorded.

[82] In cross examination, Dr. Lim agreed that certain drugs administered to KS at the end of her surgery would have caused her heart rate to slow down. In response to questioning on cross-examination about whether he was aware of a study to this effect, he said he was not. Dr. Lim asked College counsel to show him the study, but College counsel did not do so. The appellant’s counsel did not object.

[83] During the College’s reply, Dr. Lee refuted the assertion that the vital signs on the recovery room record were not “medically supportable”, explaining that they were physiologically possible given the drugs administered, or alternatively, the heart rate could have been inaccurately reflected on the machine. The appellant did not request the opportunity to call Dr. Lim back as sur-reply evidence to Dr. Lee’s testimony, nor did she object to Dr. Lee’s reference to the study or its admission into evidence.

[84] In its decision, the Committee wrote:

The Committee noted the conflicting opinions between Dr. Lim and Dr. Lee with regard to the effect of drugs used to reverse anesthetic agents. The Committee also had in evidence a published article relevant to the subject (exhibit #204), which supported the opinion of Dr. Lee. (Reasons for Decision, p. 186.)

[85] The appellant argues that the College’s refusal to show the study to Dr. Lim in the course of his cross-examination ultimately compromised her ability to respond to the implications of the evidence that stemmed from the study and violated her right to procedural fairness.

[86] There are a number of difficulties with this ground of appeal. To begin with, the appellant did not object to the manner in which the study was dealt with by the College or the experts. She did not seek a ruling on the point and the appellant complains about the use of the study for the first time in this appeal. As already noted, the Supreme Court in Alberta Teachers confirmed that, in the context of a judicial review application, courts should be hesitant to consider issues raised on appeal that could have been raised before the tribunal. In the recent Divisional Court decision of Summitt Energy Management Inc. v. Ontario Energy Board, 2013 ONSC 318 (Div. Ct.), at para. 92, the court held, in an administrative appeal from a decision of the Ontario Energy Board, that an allegation of abuse of process should not be raised for the first time on appeal:

Having raised the issue with Compliance Counsel and having cross-examined the Board’s witness, we conclude that Summitt deliberately did not argue any abuse of process during the proceedings before the Board. It thereby denied the Board any opportunity to lead evidence in response to such allegations. It also denied the Board any opportunity to rectify the alleged abuse before the conclusion of its proceedings. The Board made no ruling on any alleged abuse of process, from which appeal can be taken under s. 33 of the Act. As such, these issues should not now be raised for the first time on appeal.

The appellant cannot now allege that her right to procedural fairness was violated or that the Committee otherwise improperly refused to allow Dr. Lim to review the study when the Committee was not given the opportunity to consider and rule on this issue.

[87] Second, the College handled the evidence appropriately and in accordance with Supreme Court of Canada rulings on examining experts.

[88] The impugned study was put to Dr. Lim. He had not heard of it. While Dr. Lim agreed with the substance of the article, that is, that neostigmine could have caused or contributed to the reduced heart rate seen in KS’s initial recovery room vital signs, he testified that he was not aware of the particular study put to him. Once he said this, it was incumbent on the College to cease cross-examination on the topic. As McLachlin J. (as she then was) stated in R. v. Marquard, 1993 37 (SCC), [1993] 4 S.C.R. 223, at p. 251:

The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is “no”, or if the witness denies the work’s authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it as evidence. If the answer is “yes”, and the witness acknowledges the work’s authority, then the witness has confirmed it by the witness’s own testimony.

[89] In contrast with Dr. Lim, Dr. Lee was aware of the study now complained about and had relied on it in forming his opinion that neostigmine may have contributed to the low heart rate recorded on the recovery room record. Accordingly, it was entirely appropriate (and indeed no objection was raised) for Dr. Lee to refer to the study in his evidence.

[90] Finally, the Committee had an abundance of evidence on which it relied to conclude that the recovery room records were reliable, and the study at issue constituted a small part of it. Moreover, the Committee found that even if KS’s systolic reading had been in the 80’s range when the appellant saw her at 1:28 p.m. as the appellant claimed, she should have recognized that this was abnormal and should not have proceeded with the next surgery as she did.

[91] In sum, there was no failure of procedural fairness resulting from the fact that the College did not provide Dr. Lim with an opportunity to review the study during his cross examination or from Dr. Lee’s comment on the study in reply. This ground of appeal must fail.

IV. Did the Committee err in finding that the appellant’s website postings contravened O. Reg. 114/94 and constituted disgraceful, dishonourable or unprofessional conduct?

[92] The Committee found that portions of the appellant’s extensive internet advertising breached the advertising regulations in that they were false, misleading or deceptive and, in some cases, contained superlatives and testimonials. The appellant concedes that the website did contain testimonials and superlatives, and she indicated in the course of her testimony that she was aware of the ban applying to testimonials. Nonetheless, she submits that the finding that some portions of the internet advertising were false, misleading or deceptive was unreasonable. In addition, she submits that the portion of the regulation that prohibits testimonials and superlatives is unconstitutional.

a. Did the Committee unreasonably find the advertising to be false, misleading and deceptive?

[93] The appellant submits that the evidence does not support the Committee’s finding that the advertising was actually or potentially misleading, nor does it warrant the finding of “disgraceful, dishonourable or unprofessional conduct”. She further argues that this finding is unreasonable given the prevalence in the profession of the use of testimonials and superlatives and the fact that the College had previously reviewed the appellant’s website and raised no concerns.

[94] Section 6 of O. Reg. 114/94 states:

6. (1) A member may communicate any factual, accurate and verifiable information that a reasonable person would consider material in the choice of a physician,

(a) in or through a medium of communication that is equally accessible to all interested members; or

(b) in a printed document that is made available only within the premises where the member practises or to a person who requests a copy, or both.

(2) Information communicated under subsection (1) must not[]

(a) be false, misleading or deceptive by the inclusion or omission of any information;

(b) contain a testimonial or any comparative or superlative statements; or

(c) contain any reference to a specific drug, appliance or equipment.

(3) Information communicated under subsection (1) must be readily comprehensible, dignified and in good taste.

[95] The Committee considered and rejected the appellant’s assertion that the information on the website was neither false nor misleading. At p. 328 of its Reasons for Decision, it cited the following examples of misleading information in the context of testimonials:

Testimonial of [M] (March 27, 2007). Reference is made to labioplasty. The only reference to a physician is Dr. Yazdanfar, which conveys the impression that she was the one who did the surgery. This was not the case as she does not do labioplasties; and,

Testimonial of a patient, [HJ], appearing as a video after October 31, 2008, who had a tummy tuck and liposuction. Dr. Yazdanfar is the only physician cited and [HJ] states she would “not want anyone else to touch her”. Dr. Yazdanfar does not do tummy tucks as implied.

[96] The appellant submitted that the Committee’s finding was unreasonable because the information was, at worst, confusing rather than misleading. She cites the British Columbia decision in Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc., 2011 BCCA 69, 332 D.L.R. (4th) 146, at paras. 33, 39, in support of her submission that “confusing” does not amount to “misleading”. This case does not assist the appellant. In that case, the finding appealed from had been that the advertising in question was not misleading. The Court of Appeal, in upholding that finding, noted that “confusing” is not to be equated with “misleading”. Writing for the court, Chiasson J.A. stated, at para. 33, that “advertising that is misleading also likely is confusing, but simply because advertising is confusing does not mean it is misleading.”

[97] While the appellant is correct to state that something that is “confusing” is not necessarily “misleading”, the Committee found in this case, unlike the Private Career Training case, that the appellant’s advertising was misleading. This finding was amply grounded in the evidence before the Committee and was reasonable.

[98] The Committee accepted the College’s position that it had never made any representation that the use of testimonials or superlatives was acceptable and that it never reviewed the misleading portions of the appellant’s website.

[99] The appellant also argues that even if the ban on testimonials and superlatives is constitutional, and the finding that the website postings were deceptive and misleading was reasonable, the finding that the website advertising constituted “disgraceful, dishonourable or unprofessional conduct” was unreasonable and cannot be upheld. She submits, first, that given the widespread use of testimonials and superlatives by physicians, the mere use of testimonials and superlatives cannot be considered as sufficient to support a finding of unprofessional conduct.

[100] The Committee considered and rejected this argument, stating that

[t]he fact that others doing cosmetic surgery have contravened the regulation is a matter to be dealt with elsewhere. It does not establish that the use of testimonials or superlative statements is acceptable practice. (Reasons for Decision, p. 328.)

[101] In finding that these postings constituted disgraceful, dishonourable and unprofessional conduct, the Committee cited the examples of the testimonials of M and HJ as set out above. It also set out another example relating to the promotion of “Smartlipo” (Reasons for Decision, p. 329-30):

The promotion of Smartlipo in her practice as the least invasive method of liposuction is misleading and/or deceptive. Many of the patients whose records were in evidence had been persuaded to have Smartlipo and paid an additional $1000.00 for this technique. The evidence of [SS] was that she believed Smartlipo was used throughout and on all areas. Dr. Yazdanfar testified that she uses it a little all over in her procedures to soften the fat. Dr. Mulholland testified and described the technique, its applications and use. He explained that this laser assisted liposuction is intended to liquefy fat before removal. It is appropriately used for small areas because it requires a lot of time to get the benefit. Small single zones usually less than 1000cc’s of total aspirate are amenable to Smartlipo. He testified that, if you do not spend the time to do it properly, indicating that you do Smartlipo is just a marketing tool. Dr. Mulholland testified that Smartlipo is not designed for multi-zone body contouring as it would take eight to ten hours to apply enough energy to make a meaningful difference. In light of the manner in which Smartlipo is employed by Dr. Yazdanfar, the Committee finds her website promotion to be misleading and deceptive; and[]

Dr. Yazdanfar indicated that she was aware of the ban applying to testimonials and superlatives in advertising. She had the opportunity to comply with the regulation by removing these from her website and chose not to do so.

[102] In concluding that the appellant’s website advertising had constituted “dishonourable, disgraceful and unprofessional” conduct, the Committee carefully considered the evidence and relevant considerations, including the fact that she had known of the ban and thus had deliberately disobeyed it. In other words, this was not an inadvertent breach of the regulations by someone who was attempting to comply. The Committee’s conclusion on this issue was open to it on the record before it and was reasonable.

b. Is the ban on the use of testimonials and superlatives unconstitutional?

[103] The appellant submits that the Committee erred in upholding the constitutionality of the ban on the use of testimonials and superlatives.

[104] The standard of review on this issue is correctness: Dunsmuir, at para. 58.

[105] The parties agree on this appeal, as they did before the Committee, that the ban on testimonials and superlatives does infringe the appellant’s right to freedom of expression under s. 2(b) of the Charter and must therefore be justified under s. 1 of the Charter.

[106] The parties also agree that the College’s stated objective, that is, the maintenance of a high degree of professionalism and the protection of the public from irresponsible and misleading advertising, meets the first branch of the test from R v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, as it relates to concerns that are pressing and substantial.

[107] The sole issue before the Committee was whether the College had established that the ban was “reasonable and demonstrably justified” pursuant to the proportionality analysis of the Oakes test. This requires

a. a rational connection between the infringing measure and the objective;

b. that the infringing measure minimally impair the Charter right; and

c. that the deleterious effects of the infringing measure be weighed against the salutary effects.

[108] The Committee considered the evidence of the parties, the jurisprudence concerning advertising by health professionals, expert opinion and scholarly publications, as well as its own expertise in the conduct of physicians. It concluded that the high standard of medical professionalism “would be detrimentally affected by misleading and non-verifiable physician advertising,” including testimonials and superlatives (Reasons for Decision of the Constitutional Challenge, pp. 20-21):

Testimonials have been shown to be influential and bias decision making by the individual. This makes their use in the health care setting a potentially dangerous tool, increasing the chance that prospective patients will end up making poor decisions. In the case of decision aids, testimonials may affect choices that may not be optimal, and the Ubel study offers words of caution about their use. What science is available on the topic supports the potential for harm.

Testimonials that are used to advertise cosmetic surgical procedures focus on the body enhancing value and give little if any information about long term consequences or suboptimal results, so by this measure alone they are incomplete. They are primarily designed as a sales promotion tool. Advertisements which offer enthusiastic endorsements and make unverifiable claims can influence members of the public to seek medical services to their physical, psychological [and/or] financial detriment. They focus only on the benefits and are inherently misleading.

Superlatives statements are no different. If anything, they are more compelling in that they are harder to verify objectively.

Having heard considerable evidence in relation to this issue, the Committee made a number of findings in relation to testimonials. As previously noted, the general standard of review with respect to the constitutionality of the ban is correctness “because of the unique role of s. 96 courts as interpreters of the Constitution”: Dunsmuir, at para. 58 (citation omitted). However, the Committee’s findings of fact based on the evidence are entitled to deference and are thus reviewable on a reasonableness standard. This is especially true given that these factual findings concern the role of physicians and the patient-physician relationship, which is well within the particular expertise of the Committee.

[109] The appellant submits that the Committee erred at each stage of the Oakes analysis.

[110] At the outset, it is important to note the significance of context in the application of s. 1.

[111] It is trite law that the test for justification is a contextual one. As the Supreme Court held in Rocket v. Royal College of Dental Surgeons of Ontario, 1990 121 (SCC), [1990] 2 S.C.R. 232, at p. 247, “not all expression is equally worthy of protection. Nor are all infringements of free expression equally serious.” The Oakes test permits “a sensitive, case‑oriented approach” to assessing limits on freedom of expression: Rocket, at p. 246. In the present context, four factors weigh heavily in favour of a deferential approach to the impugned provision.

[112] First, the expression in question is commercial in nature and thus far removed from the core values protected by the Charter. The Supreme Court’s comments in Rocket, at p. 247, concerning restrictions on advertising by dentists are equally applicable here:

The expression limited by this regulation is that of dentists who wish to impart information to patients or potential patients. Their motive for doing so is, in most cases, primarily economic. Conversely, their loss, if prevented from doing so, is merely loss of profit, and not loss of opportunity to participate in the political process or the “marketplace of ideas”, or to realize one’s spiritual or artistic self‑fulfillment[.]

[113] Second, the impugned provision forms part of the self-regulation of a profession. The appellant is not confronted with this restriction as a person subject to a law of general application or as a defendant in a penal prosecution, but rather as a volunteer who has elected to accept the substantial privileges and significant responsibilities of being a member of a self-governing profession. O. Reg. 114/94 was made by the Council of the College of Physicians and Surgeons in the exercise of its mandate to regulate the medical profession in the public interest. As McLachlin J. (as she then was, writing for the Court,) stated in Rocket, at paras. 36, 38,

[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions.

I have no difficulty in concluding that it is essential to accord to professional societies the power to regulate the methods by which their members advertise, even though this may infringe the freedom of expression guaranteed to their members by s. 2(b) of the Charter.

[114] Third, patients and prospective patients are in a vulnerable position in relation to physicians. As the Committee recognized, this is particularly so for consumers of elective cosmetic surgical services. There is a power imbalance between doctors and patients that arises because of the superior knowledge of the former. The Supreme Court’s comments in Rocket, at p. 248, that “[c]onsumers of dental services would be highly vulnerable to unregulated advertising”, apply to advertising by physicians and surgeons as well.

[115] Fourth, in cases concerning advertising restrictions, as in other cases in which the harm sought to be avoided and the effectiveness of the legislative response are not capable of scientific proof, the Supreme Court of Canada is clear that a reasoned apprehension of harm is sufficient to ground a s. 1 justification. Logic and common sense may be relied on in the justification analysis, even in the absence of determinative scientific evidence. The court cannot hold the College to “a higher standard of proof than the subject matter admits of”: R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 89. See also R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527, at paras. 16, 20; Harper v. Canada (A.G.), 2004 SCC 33, [2004] 1 S.C.R. 827, at paras. 77-79; and RJR-MacDonald Inc. v. Canada (A.G.), 1995 64 (SCC), [1995] 3 S.C.R. 199, at para. 137.

(a) The rational connection test

[116] The appellant submits that

A categorical ban on testimonials and superlatives can only be rationally connected to the objective of maintaining professionalism and protecting the public from misleading advertising if testimonials and superlatives are inherently unprofessional and misleading. The ban would otherwise capture advertising that is not unprofessional or misleading, and would be unfair, arbitrary and irrational. (App. Factum, at para. 112.)

[117] The appellant also emphasized during argument that it only makes sense to ban testimonials if they are inherently misleading, and because the regulation already bans misleading advertising in any event, the testimonial ban is unnecessary and not rationally connected to the objective. This argument does not accurately capture the problem with testimonials and superlatives as being potentially misleading or inherently unverifiable.

[118] As the Committee found,

[u]nverifiable information has been defined by the court as a claim that the average consumer cannot verify. The testimonials and superlatives used by Dr. Yazdanfar are personal, subjective opinions which cannot be objectively measured. They have been shown to influence patients and when used in this context have at least the potential of harm. Dangers include that cosmetic surgery advertising is unduly persuasive, encouraging the vulnerable to proceed; that the advertising lacks objectivity; and that there is an overstatement of results. In the case of certain cosmetic procedures, there is an undermining of the dangers. (Reasons for Decision of the Constitutional Challenge, p. 12.)

[119] Subjective statements in testimonials cannot be shown to be wrong in the same manner that, for example, the suggestion that the appellant performed tummy tucks can be shown to be wrong. In that sense, the problem with such testimonials or superlatives is not that they are inherently misleading per se, but that they are not susceptible to verification. It is thus not the case that the ban against testimonials and superlatives addresses no harm that the prohibition against misleading advertising does not already address.

[120] While testimonials may not be inherently misleading in the strict sense, certain observations of the Committee demonstrate how testimonials are problematic in light of the way they are invariably used in the medical profession. The Committee observed, for example, that the public is left with an unbalanced and biased assessment, as only favourable descriptions are included in such testimonials. The public does not know the circumstances or the reliability of this information.

[121] The Committee also stated that

[i]n complex societies where the level of critical thinking varies, it is the accepted responsibility of regulating professional bodies to set the bar. The vulnerability of patients in respect of a knowledge and power differential is logically accepted. (Reasons for Decision of the Constitutional Challenge, p. 13.)

[122] It concluded that

[p]ermitting the use of testimonials on a doctor’s website allows a biased opinion a place in a professional setting, which may be accorded disproportionate value and deflect patients from seeking more direct/correct information. (Reasons for Decision of the Constitutional Challenge, p. 13.)

[123] In my view, the ban on testimonials furthers the pressing and substantial objective of the maintenance of a high degree of professionalism and the protection of the public from irresponsible and misleading advertising. The ban protects against advertising that, while not necessarily misleading in the narrow sense, is nonetheless clearly inappropriate and unprofessional in the context of the relationship between medical professionals and the public.

[124] In any event, an overbroad provision will not necessarily fail on the rational connection analysis. In Rocket, the ban on advertising was struck down as being overly broad. The Supreme Court, however, held that it met the rational connection test, finding that “[t]he objectives of promoting professionalism and avoiding irresponsible and misleading advertising [would] clearly be furthered by” the ban: Rocket, at p. 250. The same analysis applies to this case.

[125] The appellant submits that the factual findings of the Committee in relation to the nature and effect of such advertising could not stand in light of the evidence before it. I disagree. The Committee reviewed and considered the evidence before it. Its factual findings are entitled to deference and were open to it on the record before it. They were reasonable.

[126] The conclusion that the ban meets the rational connection test was, correct.

(b) The minimal impairment test

[127] The appellant submits that a categorical ban on testimonials and superlatives cannot satisfy the minimal impairment test in light of her assertion, as set out above, that such advertising is not inherently misleading or inherently unprofessional. She also argues that, to the extent that the Committee held that such advertising was inherently misleading and unprofessional, it did so without an evidentiary foundation.

[128] This submission cannot succeed. First, as discussed above, the ban is not overbroad in the sense that it captures all testimonials even though only actually misleading testimonials should be caught. As the Committee’s reasons reveal, physician testimonials are categorically problematic. This does not dispose of the issue, but it does mean that the ban will not fail the minimal impairment test on the basis that testimonials are not inherently misleading by nature.

[129] The Committee concluded that the infringement upon the appellant’s rights was minimal. It considered the number of ways that she advertises her services, including radio, TV, internet postings and other interactive communications, and noted that “[i]t was clear to the Committee that Dr. Yazdanfar utilizes modern advertising methods to full advantage” (Reasons for Decision of the Constitutional Challenge, p. 18). It stated that

[t]he Committee is of the opinion that the categorical prohibition of the use of these by Dr. Yazdanfar does not inhibit her in any significant way from making her services known to potential consumers. (Ibid.)

[130] Following Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, at para. 53, the test for minimal impairment is

whether the limit on the right is reasonably tailored to the pressing and substantial goal put forward to justify the limit. Another way of putting this question is to ask whether there are less harmful means of achieving the legislative goal. In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.

Minimal impairment “requires only that the government choose the least drastic means of achieving its objective. Less drastic means which do not actually achieve the government’s objective are not considered at this stage”: ibid. at para. 54 (original emphasis).

[131] The Committee made no error in finding that the minimal impairment test had been met. Given the Committee’s findings that testimonials are “a potentially dangerous tool, increasing the chance that prospective patients will end up making poor decisions”, and that testimonials and superlatives are “not susceptible to verification”, it is clear that only a complete ban on testimonials and superlatives will adequately achieve the pressing and substantial objectives of ensuring professionalism and public protection.

[132] The impugned provision is much less restrictive than the legislation considered in Rocket, which prohibited all advertising apart from some extremely limited exceptions. The restrictions struck down in Rocket prohibited dentists from advertising such innocuous and factual information as their “office hours, the languages they speak, and other objective facts relevant to their practice”: Rocket, at p. 251. The Oakes test was not satisfied in that case because “[u]seful information is restricted without justification”: ibid. Under the impugned provision, by contrast, physicians are free to communicate such useful, non-biased and verifiable information. As the Committee noted, the impugned provision “does not inhibit [the appellant] in any significant way from making her services known to potential consumers.” Her freedom of expression is therefore only minimally impaired.

[133] Contrary to the appellant’s submission, the fact that physicians in Alberta or Illinois are permitted to use testimonials is not evidence that Ontario’s law must fail the minimal impairment test. It is merely evidence that different jurisdictions draw the line of acceptable conduct differently. The Supreme Court has held that legislative action to protect vulnerable groups is not “necessarily restricted to the least common denominator of actions taken elsewhere” and that minimal impairment does not “require legislatures to choose the least ambitious means to protect vulnerable groups”: Irwin Toy Ltd. v. Québec (A.G.), 1989 87 (SCC), [1989] 1 S.C.R. 927, at p. 999. See also Quebec (A.G.) v. A, 2013 SCC 5, 354 D.L.R. (4th) 191, at para. 440, McLachlin C.J.C., concurring.

[134] The appellant contends, at paras. 113 to 118 of her factum, that the Committee erred by acknowledging that “one can conceive that a testimonial may be factual and objective” but nonetheless concluding that the way they are used in physician advertising is inherently misleading. The Committee, in my view, made no error in drawing this distinction between what is conceivable and what is realistic, although it may be that the term “inherently misleading” is a word choice that does not capture the issue that the Committee was describing as accurately as it should have.

[135] While it may be possible to imagine a testimonial that contains only balanced and objective information, the reality is that testimonials selected by physicians to advertise their commercial services will inevitably be subject to positive bias. As the Committee put it, “[o]ne asks if a testimonial would be included on Dr. Yazdanfar’s website if it addressed the negative consequences of cosmetic surgery” (Reasons for Decision of the Constitutional Challenge, pp. 11-12). The essence of the Committee’s discussion on this issue is that there is a certain inequality inherent in the doctor-patient relationship that, when combined with the “positive bias” to which testimonials are subject, is problematic and creates risks of harm to members of the public who may read and attach weight to them.

[136] This is the sort of observation about real-world physician conduct that the Committee is in the best position to make. The College cannot be faulted for legislating to deal with real problems and not imaginary contingencies.

[137] In my view, the Committee correctly determined that the minimal impairment test was met.

(c) The proportionality requirement

[138] The test under the final step of the Oakes analysis is whether “the overall effects of the law on the claimants [are] disproportionate to the government’s objective”: Hutterian Brethren, at para. 73. The Committee correctly held that “the limiting measure imposed on advertising is proportional to its serious objectives and satisfies the proportionality test” (Reasons for Decision of the Constitutional Challenge, p. 21).

[139] Contrary to the submission made by the appellant, the Committee did consider not only the objective of the legislation, but also the salutary effects. It found that the impugned provision protects a vulnerable group from misleading and non-verifiable advertisements, fosters informed decision-making by avoiding the potential for harm inherent in influential and biased advertising techniques, preserves the relationships of trust between doctor and patient and protects the reputation of the medical profession. These are salutary effects of the legislation, not merely, as the appellant suggests, a restatement of the objectives of the legislation. Balanced against these salutary effects, the limitations imposed are minimal and merely economic. The Committee could have framed the matter more clearly. But based on the totality of its findings, it is clear that, taking into account the risk of harm inevitably present in physician testimonials, it cannot be said that the benefits are not worth the cost.

[140] In summary, the Committee was correct in upholding the ban on testimonials and superlatives.

V. Was the penalty imposed reasonable?

[141] The Committee made orders that

a. the appellant’s certificate of registration be suspended for two years commencing on the date of the order (December 21, 2011);

b. the appellant appear before the Committee to be reprimanded; and

c. the following terms be imposed on the appellant’s certificate of registration for an indefinite period:

i. Restricting the appellant “from performing all surgery, except as a surgical assistant in a hospital based setting, provided that a member of the College of Physicians and Surgeons who is approved by the College is in attendance and performing the surgery (‘all surgery’ includes but is not limited to any cosmetic surgical procedures).”

ii. Limiting her practice to that of a surgical assistant, as described under (i).

iii. Requiring her to “co-operate with unannounced inspections of her practice and patient charts, conducted at her own expense, by a College representative(s), for the purpose of monitoring and enforcing her compliance with these terms, conditions and limitations.”

iv. Requiring her to “publish the terms, conditions and limitation imposed on her certificate of registration in any advertisement of her clinic where she is referred to, including on her website, and … post signage of these restrictions in a form acceptable to the College in the Toronto Cosmetic Clinic or any other clinic owned by her.” (Reasons for Decision on Penalty, pp. 21-22.)

[142] The appellant submits that the penalty levied in this case was unduly harsh and unfair, and ultimately unreasonable because, having concluded that revocation would not be appropriate, the Committee then imposed a penalty that amounted to a de facto revocation. Ms. Thomson for the appellant submitted that it is “passing strange” that the only thing that the appellant may do is surgically related, despite the fact that this is the area in which the problems arose. She emphasized that, as a family physician, the appellant did not run into any trouble at all, and there was evidence before the Committee of her abilities in that regard. Moreover, and as the Committee itself acknowledged, it will be difficult for the appellant to procure a position as a surgical assistant in a hospital.

[143] The appellant also submits that the punishment was not rationally connected to the findings in that there was no evidence that the appellant is not fit to practice medicine generally. The complaints were very specific in nature.

[144] I would not give effect to the appeal from the penalty imposed.

[145] First, the standard of review is clearly that of reasonableness. Courts have long recognized that the issue of an appropriate penalty “engages the heart of the expertise” of self-governing bodies: Seidman v. College of Physicians and Surgeons (Ont.) (2003), 2003 29890 (ON SCDC), 179 O.A.C. 391 (Div. Ct.), at para. 11. The Supreme Court of Canada has found that committees have “greater expertise than courts in the choice of sanction for breaches of professional standards”: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 31. Each panel includes members of the medical profession who are uniquely qualified, by virtue of their knowledge, training and skill, to appreciate the severity of professional misconduct and the appropriate sanction for their peer: see Ryan, at paras. 31-34; Devgan v. College of Physicians and Surgeons of Ontario (2005), 2005 2325 (ON SCDC), 193 O.A.C. 357 (Div. Ct.), at paras. 94-96; Mussani v. College of Physicians and Surgeons of Ontario (2004), 2004 48653 (ON CA), 74 O.R. (3d) 1 (C.A.), at para. 113.

[146] The penalty decision in this case demonstrates a clear line of reasoning in support of its decision in its detailed and carefully crafted reasons.

[147] At the outset, it articulated the applicable principles, stating that “the paramount consideration is the protection of the public” (Reasons for Decision on Penalty, p. 7). Its concern was to make an order that would protect the public and maintain public confidence in the system of self-regulation of the medical profession, and to ensure that its order reflected the seriousness of the misconduct (ibid.). It then continued to address the factors to be considered.

[148] The Committee recognized that the determination of an appropriate penalty involves the balancing of many factors, including:

• the appellant’s serious and repeated failures to maintain the standard of practice and the breadth of the findings of professional misconduct and incompetence;

• her lack of insight and her failure to accept responsibility for her actions;

• her pattern of disregard of basic patient safety, including her failure to safely discharge patients, which the Committee found not only breached the standards, but was “inexcusable”;

• her performance of procedures on unsuitable candidates;

• her failure to act in the patient’s interest and respect patient safety;

• her failure to meet the standard in her diagnosis and treatment of her breast augmentation patients;

• her lack of judgment, which spanned her practice and was not limited to isolated events;

• her failure to reflect following the death of her patient; and

• her failure to acknowledge any responsibility.

[149] In considering the nature of the misconduct and incompetence, the Committee referred back to the findings it had made, which are set out in detail with respect to the particular patients and the allegations made. It expressed concern that she did not exhibit an understanding of the limits of her ability or training, and stated that it was “shocked to hear her equating her experience with a six year residency program” (Reasons for Decision on Penalty, p. 9).

[150] A recurrent theme in the reasons is the pattern of conduct that put her patients at risk. With respect to the standard of practice, the Committee stated that

[s]he removed volumes of aspirate in the performance of liposuction far beyond what surgeons acting properly would do in a comparable setting. From the evidence, it was clear that large excessive procedures were frequently done, and in some cases repeatedly on the same patient. The pattern of disregard of basic patient safety is troubling for the Committee, as Dr. Yazdanfar could have restrained herself and she did not. (Reasons for Decision on Penalty, p. 10).

[151] The Committee went on to note that the appellant’s failure was not limited to volume alone, that she failed to safely discharge patients in a number of ways, and that she performed procedures on some patients who were unsuitable candidates. While recognizing that she had acquired technical skill in performing breast augmentation, she failed to maintain the standard of practice in diagnosis and treatment when she failed to recognize the complexity of the case of SH and supported the use of implants that were too large, and when she did not provide EC with sufficient information to make an informed choice. The Committee referred to these as examples of omission and commission in which the appellant had the opportunity to act in the patient’s best interests and failed to do so. As a result of these “serious and repeated” failures to maintain the standard of practice (Reasons for Decision on Penalty, p. 10), the Committee stated that the appellant had breached her paramount obligation to respect patient safety.

[152] In considering the appellant’s incompetence, the Committee stated that its seriousness was “illustrated by her lack of knowledge and judgment” (Reasons for Decision on Penalty, p. 11), stating as follows:

Her limited knowledge and her proposed treatment of complex breast problems in the cases of [EC] and [SH] demonstrate why years of residency learning are required to make appropriate judgments in complex situations. Dr. Yazdanfar’s lack of knowledge and judgment are most obvious in the care she provided to [KS]. In performing too large a procedure, in failing to act when she should have, in doing a token examination and in giving no thought to a differential diagnosis, Dr. Yazdanfar failed this patient in the most fundamental way.

[153] Another continuing theme in the penalty reasons was the appellant’s lack of judgment:

She operated on patients who should have had their procedures done in hospital. She did larger operations than she should have done. She discharged patients inappropriately. These errors in judgment spanned her practice and were not isolated events. (Reasons for Decision on Penalty, p. 11)

[154] These conclusions are amply grounded on the evidentiary findings that the Committee made in its lengthy and detailed reasons on the merits.

[155] The Committee also expressed concern about the appellant’s lack of insight:

Dr. Yazdanfar failed to reflect appropriately on what she was doing following the death of [KS], as demonstrated by her performing excessive liposuction procedures on other patients several days later. Her statement that she believes that it is safe for her to remove 5 litres of fat, and her failure to acknowledge any responsibility, speaks to a lack of insight. This lack of insight and understanding is essential in making a finding of incompetence. In this matter, there was no demonstration that Dr. Yazdanfar had acquired insight to any significant degree. (Reasons for Decision on Penalty, p. 11.)

[156] Having reviewed these factors, the Committee expressed the view that the appellant’s pattern of behaviour and its extent as reflected in the finding of incompetence speaks to the need for a significant sanction. It noted that she had shown a lack of professional responsibility by ignoring the law when advertising her clinic. The Committee cited the fact that “[h]er misleading advertising of Smartlipo and the way she performed it was found by the Committee as having the purpose of achieving commercial advantage or personal gain, without putting the interest of the patient foremost” (Reasons for Decision on Penalty, p. 12). The Committee concluded that, in order to adequately address the findings made, “only a revocation or a lengthy suspension together with strict terms, conditions and limitations would suffice to meet the proportionality test” (Reasons for Decision on Penalty, p. 12).

[157] The Committee also considered the “profound and tragic results” of the conduct it had described (Reasons for Decision on Penalty, p. 12) and considered the serious impact on KS’s family as well as a number of other patients and their family members.

[158] The Committee then considered revocation. It stated that it had looked carefully at the case law cited by the parties and agreed that revocation is appropriate in which conduct is found to be of a most serious nature, usually in certain types of serious sexual abuse and fraud cases, but perhaps also in cases of serious clinical misconduct, in cases of physicians with no redeeming features, or in cases of general incompetence. It also noted that

revocation, though the harshest sanction, is not “a death sentence” in a professional sense. There remains the possibility of application for reinstatement after one year. (Reasons for Decision on Penalty, p. 15)

[159] It is clear from a reading of the Reasons for Decision on Penalty that, as the Committee acknowledges, it seriously considered revocation on the basis of the seriousness of the misconduct and its impact on patients, the profession and the public. However, it determined that a long-term suspension was more appropriate for a number of reasons. These included the fact that this was the first time the appellant had been before the Committee, and the fact that there was no evidence that she was not technically proficient in performing some surgical procedures and had acquired “limited technical skill” (Reasons for Decision on Penalty, at p. 17). It also considered that her qualifications in family medicine should not be dismissed, despite the absence of any evidence that she intends to return to family medicine. The Committee concluded that her desire to change the scope of her breast augmentation practice suggested a degree of compliance with College policy. The fact that she had committed time and resources to furthering her education suggested, in the Committee’s view, a commitment to and interest in learning (see Reasons for Decision on Penalty, at pp. 17-18).

[160] In selecting the conditions it imposed, the Committee carefully considered their implications as well as the submissions made by the appellant. Her submission was that she be permitted to practice as a surgical assistant at a hospital based setting or a free standing cosmetic facility provided that an approved member of the College is performing the surgery and is in attendance. The Committee rejected this suggestion on the basis that it would not provide adequate protection to the public because, in its view, “[r]egardless of the proposed oversight, this could provide opportunity for Dr. Yazdanfar to become emboldened with time and to move into a more dominant role. This would be of particular concern if surgery were contemplated at a facility where she had a financial interest” (Reasons for Decision on Penalty, pp. 18-19). This conclusion was reasonable given the findings and record before the Committee.

[161] For similar reasons, the Committee rejected the appellant’s request that she be permitted to conduct pre-operative assessments and post-operative assessments commencing two weeks post-operatively. Given its findings that the appellant had failed to maintain the standard of practice in her pre-operative assessments of a number of patients, it was of the view that she should not be in a position in which such assessments could or would be relied upon, and that permitting such a condition would expose the public to risk. Given her failure to maintain the standard of care in her post-operative care in a number of cases, including that of KS, and its conclusion that she lacked the knowledge required to recognize, diagnose and treat long-term complications of cosmetic surgery appropriately, the Committee concluded that permitting such conditions would expose the public to unnecessary risk and was not supportable.

[162] The appellant submits that the Committee, in essence, punished her for exercising her right to deny the allegations. I find no basis in the reasons that supports this submission. The Committee specifically recognized her right to deny the allegations and stated that this fact had no bearing on its penalty decision (Reasons for Decision, p. 11). The Committee was troubled by the appellant’s lack of insight into her misconduct, which is an appropriate factor to take into account at the remediation stage, as insight is relevant to the prospect of remediation: see Liberman, at para. 45.

[163] The heart of the appellant’s submissions as to penalty is that, having concluded that revocation was not warranted in this case, it imposed a penalty that was tantamount to revocation because it will be difficult if not impossible for her to obtain a position as a surgical assistant in a hospital.

[164] In my view, this fact does not render the penalty unreasonable. As the foregoing review indicates, the Committee clearly grappled with these issues. While it did see redeeming features on the appellant’s part that led it to conclude that revocation was not warranted, it considered and rejected less strict conditions on the basis that they would not provide adequate protection to the public. In doing so, it was also mindful of the extent and nature of the appellant’s misconduct. The fact that it may be difficult or impossible for the appellant to obtain a position as a surgical assistant in a hospital setting does not change the fact that the Committee concluded that any other environment would not provide adequate protection to the public. This conclusion was entirely reasonable given the myriad of evidence that was before it and upon which it based these conclusions.

[165] In the course of the appellant’s submissions, Ms. Thomson emphasized that the appellant had been a family doctor who had no difficulties with the College. She submitted that it was odd that the only area in which she was to be permitted to practice was surgically related. I do not agree that this was strange or unreasonable in the circumstances of this case.

[166] As the Committee noted, there was no evidence before it that the appellant intends or wishes to return to family medicine. The appellant’s own submissions manifest an intention or wish to return to a surgical context outside of a hospital setting. The Committee considered the penalty accordingly, and assessed whether it could permit this and provide adequate protection to the public. As I have already stated, it was reasonable for the Committee, given the record before it, to conclude that such protection could not be assured outside of a hospital setting. It cannot be faulted for considering only surgical environments when that is clearly the context in which the appellant intends to pursue her professional life.

[167] In sum, the Committee’s decision as to penalty was reasonable.

[168] For the foregoing reasons, the appeal is dismissed. The parties agreed before this court that costs in the amount of $12,500 should be payable to the successful party. Accordingly, costs in the amount of $12,500 inclusive are payable by the appellant to the respondent College.

Harvison Young J.

Leitch J.

Lederer J.

Released: October 16, 2013

APPENDIX “A”

Allegations in Respect of Individual Patients

The following chart sets out many, but not all, allegations that related to individual patients.

The chart captures a substantial number of the allegations regarding the standard of practice and allegations regarding disgraceful, dishonourable or unprofessional conduct. However, in addition to these findings, the Committee also considered more general allegations relating to patients between 2005 and 2007 who formed part of the broader investigation into the appellant’s practice. These general findings referred to examples of individuals but are not summarized in the chart. With respect to allegations of incompetence, the Committee made findings with respect to individual cases, but then proceeded to account for other, more general considerations in satisfaction of the test for incompetence. As such, incompetence is not included among the “proved” findings in the chart.

Following the findings summarized in the chart below, the Committee, in its Reasons for Decision, proceeded to make, regarding patients between 2005 and 2007, findings in respect of failure to maintain the standard of practice in pre-operative evaluations (Proved – pp. 314-15); failure to maintain the standard of practice in failing to obtain informed consent (Proved – pp. 315-16); failure to maintain the standard of practice in the clinic’s booking procedures and payment requirements (Not proved – pp. 316); failure to meet the standard of practice in post-operative care and treatment (Proved – pp. 316-17); disgraceful, dishonourable or unprofessional conduct, by knowingly breaching the acceptable standard of practice in the performance of liposuction (Proved – pp. 321-23); and disgraceful, dishonourable or unprofessional conduct in relation to booking procedures and payment requirements (Not proved – p. 323). As a precondition to a finding of incompetence, the appellant was found to have demonstrated a lack of knowledge, skill or judgment with respect to a number of patients, including patients such as KS and FM (pp. 332-40).

The exact wording of the Committee has been modified as necessary for clarity. In the chart below, the term “professional misconduct” refers to the “disgraceful, dishonourable or unprofessional” allegations. In finding against the appellant in such cases, the Committee typically used the term “unprofessional” rather than “disgraceful” or “dishonourable”.

Patient Name	Procedure	Allegation	Proved/Not Proved?	Decision Pg. #
KS	Liposuction	Failing to maintain the standard of practice regarding obtaining informed consent	Not Proved	244
KS	Liposuction	Failing to maintain the standard of practice in the performance of liposuction	Proved	244
KS	Liposuction	Failing to maintain the standard of practice in post-operative care	Proved	245
KS	Liposuction	Failing to maintain the standard of practice in record keeping	Proved	245-46
KS	Liposuction	Failing to maintain the standard of practice in relation to booking and payment arrangements	Not Proved	246
KS	Liposuction	Professional misconduct in commencing liposuction on another patient and/or failing to abort after learning of KS’s condition	Proved	246-47
KS	Liposuction	Disgraceful, dishonourable or unprofessional conduct by failing to accompany KS to hospital or ensuring that someone with appropriate knowledge accompanied her, and failing to keep the family informed	Not Proved	247
KS	Liposuction	Professional misconduct in knowingly breaching the acceptable standards of practice with respect to the performance of liposuction	Proved	248
KS	Liposuction	Disgraceful, dishonourable or unprofessional conduct in dealing with booking and payment requirements	Not Proved	248-49
FM	Liposuction	Failing to maintain the standard of practice in pre-operative care	Not Proved	251-52
FM	Liposuction	Failing to maintain the standard of practice in obtaining informed consent	Proved	252-54
FM	Liposuction	Failing to maintain the standard of practice in booking procedures and payment requirements	Not Proved	254
FM	Liposuction	Failing to maintain the standard of practice in performance of liposuction	Proved	254-55
FM	Liposuction	Failing to meet the standard of practice in post-operative care and treatment	Proved	255-57
FM	Liposuction	Failing to maintain the standard of practice in communication with the patient and family	Not Proved	257-58
FM	Liposuction	Disgraceful, dishonourable or unprofessional conduct in respect of knowingly breaching the acceptable standards of practice with respect to the performance of liposuction	Proved	258-59
FM	Liposuction	Disgraceful, dishonourable or unprofessional conduct in respect of booking and payment requirements	Not Proved	259
CK	Liposuction	Failing to maintain the standard of practice in obtaining informed consent	Not Proved	260
CK	Liposuction	Failing to maintain the standard of practice in performance of liposuction	Proved	261
CK	Liposuction	Failing to maintain the standard of practice in respect to booking and payment requirements	Not Proved	261
CK	Liposuction	Failing to maintain the standard of practice in post-operative care	Proved	261-62
CK	Liposuction	Professional misconduct in knowingly breaching the acceptable standards of practice with respect to the performance of liposuction	Proved	262-63
CK	Liposuction	Disgraceful, dishonourable or unprofessional conduct in dealing with booking and payment requirements	Not Proved	263
EC	Breast augmentation	Failure to maintain the standard of practice in failing to obtain informed consent	Proved	265-68
EC	Breast augmentation	Professional misconduct in failing to obtain informed consent	Proved	265-68
EC	Breast augmentation	Failure to maintain the standard of practice in failing to provide the patient with a proper choice of procedures	Proved	268-70
EC	Breast augmentation	Professional misconduct in failing to provide the patient with a proper choice of procedures, but focusing on, and inappropriately selecting the procedure that she does	Proved	268-70
EC	Breast augmentation	Failure to maintain the standard of practice in failing to advise the patient that the appellant did not perform one of the requested procedures	Proved	271-72
EC	Breast augmentation	Professional misconduct in failing to advise the patient that the appellant did not perform one of the requested procedures	Proved	271-72
EC	Breast augmentation	Failure to maintain the standard of practice by failure to perform breast augmentation in an appropriate manner	Not Proved	272
EC	Breast augmentation	Disgraceful, dishonourable or unprofessional conduct in failing to perform breast augmentation in an appropriate manner	Not Proved	272
EC	Breast augmentation	Failure to meet the standard of practice in failing to inform the patient of increased complications with increased implant size	Proved	272-73
EC	Breast augmentation	Professional misconduct in failing to inform the patient of increased complications with increased implant size	Proved	272-74
EC	Breast augmentation	Failure to maintain the standard of practice in failing to select, assist the patient in selecting and taking responsibility for appropriate selection of implant size	Proved	274
EC	Breast augmentation	Professional misconduct in failing to select, assist the patient and selecting and taking responsibility for appropriate implant size	Proved	274
EC	Breast augmentation	Failure to maintain the standard of practice regarding booking procedures and payment requirements	Not Proved	275
EC	Breast augmentation	Disgraceful, dishonourable or unprofessional conduct regarding booking procedures and payment requirements	Not Proved	275
EC	Breast augmentation	Failure to meet the standard of practice in lack of knowledge of mastopexy	Not Proved	275-76
EC	Breast augmentation	Disgraceful, dishonourable or unprofessional conduct in lack of knowledge of mastopexy	Not Proved	275-76
EC	Breast augmentation	Failure to meet the standard of practice in offering an inappropriate manner of correcting operation	Proved	276-78
EC	Breast augmentation	Professional misconduct by offering an inappropriate manner of correcting operation	Proved	276-78
EC	Breast augmentation	Failure to meet the standard of practice in relation to dealing with patient and family in an unprofessional way	Not Proved	278-79
EC	Breast augmentation	Disgraceful, dishonourable or unprofessional conduct in relation to dealing with patient and family in an unprofessional way	Not Proved	278-79
SH	Breast augmentation	Failure to maintain the standard of practice in failing to obtain informed consent	Proved	281-84
SH	Breast augmentation	Professional misconduct in failing to obtain informed consent	Proved	281-85
SH	Breast augmentation	Failure to maintain the standard of practice in failing to formulate an appropriate treatment plan	Proved	285-86
SH	Breast augmentation	Professional misconduct in failing to formulate an appropriate treatment plan	Proved	285-86
SH	Breast augmentation	Failure to maintain the standard of practice in failing to adequately advise the patient of increased complications with increased implant size	Proved	286-87
SH	Breast augmentation	Professional misconduct in failing to adequately advise the patient of increased complications with increased implant size	Proved	286-88
SH	Breast augmentation	Failure to maintain the standard of practice in failing to select, assist the patient in selecting, and failing to take responsibility for selection of the appropriate implant size	Proved	288-89
SH	Breast augmentation	Professional misconduct in failing to select, assist the patient in selecting, and failing to take responsibility for selection of the appropriate implant size	Proved	288-89
SH	Breast augmentation	Failure to maintain the standard of practice in failing to perform breast augmentation in an appropriate manner	Not Proved	289
SH	Breast augmentation	Disgraceful, dishonourable or unprofessional conduct in failing to perform breast augmentation in an appropriate manner	Not Proved	289
SH	Breast augmentation	Failure to maintain the standard of practice of the profession in failing to deal appropriately with post-operative concerns and problems experienced by the patient	Not Proved	289-92
SH	Breast augmentation	Disgraceful, dishonourable or unprofessional conduct in failing to deal appropriately with post-operative concerns and problems experienced by the patient	Not Proved	289-92
SH	Breast augmentation	Failure to maintain the standard of practice in failing to make appropriate treatment decisions and recommendations	Proved	292-94
SH	Breast augmentation	Professional misconduct in failing to make appropriate treatment decisions and recommendations	Proved	292-94
SH	Breast augmentation	Failure to maintain the standard of practice in failing to recognize and appropriately manage complications	Proved	294-95
SH	Breast augmentation	Professional misconduct in failing to recognize and appropriately manage complications	Proved	294-95
SH	Breast augmentation	Failure to maintain the standard of practice in engaging in unprofessional communications with the patient	Not Proved	295
SH	Breast augmentation	Disgraceful, dishonourable or unprofessional conduct in engaging in unprofessional communications with the patient	Not Proved	295
SA	Liposuction	Failure to maintain the standard of practice in the performance of liposuction	Proved	296
RB	Liposuction	Failure to maintain the standard of practice in the performance of liposuction	Proved	296-97
VC	Liposuction	Failure to maintain the standard of practice in the performance of liposuction	Proved	297
JC	Combined procedure	Failure to maintain the standard of practice in the performance of a full liposuction and breast augmentation in combination	Proved	298
SG	Liposuction	Failure to maintain the standard of practice in the performance of liposuction	Proved	299
VG	Combined procedure (liposuction and abdominoplasty)	Failure to maintain the standard of practice in the performance of liposuction	Proved	299-300
VG	Combined procedure (liposuction and abdominoplasty)	Failure to maintain the standard of practice in the appellant’s engagement as a co-surgeon in the combination procedure	Proved	312-15
CH	Liposuction	Failure to maintain the standard of practice in the performance of liposuction	Proved	300-301
TM	Liposuction	Failure to maintain the standard of practice in the performance of liposuction	Proved	301
MM	Liposuction	Failure to maintain the standard of practice in the performance of liposuction	Proved	301-02
SM	Liposuction and breast augmentation on different dates	Failure to maintain the standard of practice in the performance of liposuction	Proved	302
SM	Liposuction and breast augmentation on different dates	Failure to maintain the standard of practice in performance of breast augmentation	Not Proved	302-03
KN	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	303
JO	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	303-04
RPM	Combined procedure	Failure to maintain the standard of practice in performance of liposuction	Proved	304-05
SP1	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	305-06
SS1	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	306
SS2	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	306-07
CT	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	307-08
DT	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	308
TV	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	308-09
MW	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	309-10
JW1	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	310
JW2	Liposuction	Failure to maintain the standard of practice in performance of liposuction	Proved	311
MF	Breast augmentation	Failure to maintain the standard of practice by use of the tumescent technique in breast augmentation	Not Proved	311
ZH	Breast augmentation	Failure to maintain the standard of practice by use of the tumescent technique in breast augmentation	Not Proved	311
SP2	Breast augmentation	Failure to maintain the standard of practice by use of the tumescent technique in breast augmentation	Not Proved	311
SP3	Breast augmentation	Failure to maintain the standard of practice by use of the tumescent technique in breast augmentation	Not Proved	311
JT	Breast augmentation	Failure to maintain the standard of practice by use of the tumescent technique in breast augmentation	Not Proved	311
PY	Breast augmentation	Failure to maintain the standard of practice by use of the tumescent technique in breast augmentation	Not Proved	311
TD	Breast augmentation	Disgraceful, dishonourable and unprofessional conduct by permitting, supporting or directing the staff’s communication with patient	Not Proved	317-21

CITATION: Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420

DIVISIONAL COURT FILE NO.: 34/12

DATE: 20131016

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

HARVISON YOUNG, LEITCH, LEDERER JJ.

B E T W E E N:

DR. BEHNAZ YAZDANFAR

• and -

THE COLLEGE OF PHYSICIANS AND SURGEONS

REASONS FOR JUDGMENT

Harvison Young J.

Released: October 16, 2013

[^1]: If it is unnecessary for the purposes of an appeal to identify an individual when there are relevant privacy interests at stake, it can be appropriate to refer to such an individual by initials alone even if it is not strictly required: see Liberman v. College of Physicians and Surgeons of Ontario, 2013 ONSC 4066 (Div. Ct.), at para. 2, n. 1. I choose to do so here.

[^2]: Dr. Robert Jackson, a board certified surgeon specializing in cosmetic surgery in Indiana; and Dr. Patrick McMenamin, an American surgeon holding board certification in cosmetic surgery, facial plastic and reconstructive surgery and otolaryngology, who was practicing in California.

[^3]: Dr. John Fielding, a certified plastic surgeon with a hospital-based practice and a private practice in Toronto; Dr. Robert Mulholland, a certified plastic surgeon with an aesthetic plastic surgery practice; and Dr. Arnis Freiberg, a medical graduate of University of Toronto (1961), with a fellowship in the Royal College of Physicians and Surgeons (plastic surgery) (1967), who had stopped performing surgery in 2002 and had been Professor Emeritus in plastic surgery since 2000.

[^4]: The Anderson Order, dated March 7, 2007, was made by the College Executive Committee pursuant to s. 37 of the Code. In concluding that Dr. Anderson should not be permitted to perform a liposuction procedure in which the amount of fat aspirated exceeded 5000 cc’s, the Executive Committee specified that it had “considered the least restrictive order it could make to ensure public safety”. The Anderson Order imposed terms and conditions on Dr. Anderson’s certificate of registration requiring him to inform “each patient, all operating personnel and the clinic administration” of the College-endorsed restriction that he could not perform a liposuction procedure in which the amount of fat aspirated exceeded 5000 cc’s of fat.

[^5]: On June 1, 2011, the Public Inquiries Act was repealed and replaced with the Public Inquiries Act, 2009: see Good Government Act, 2009, S.O. 2009, c. 33, Schedule 6. On the same day, an amendment to s. 76(1) of the Code took effect that referred to the new Public Inquiries Act, 2009, and otherwise changed the wording of the provision: see ibid., s. 84. In oral argument, the respondent took the position that the old s. 76(1) applied, and argued that the wording of that provision, unlike the new version which explicitly incorporates the protections under s. 33(6) of the Public Inquiries Act, 2009, did not import the protections of the predecessor provision to s. 33(6). Because I find that the appellant’s argument fails in any event, it is unnecessary to address which version of the Code applies.