CITATION: Cyriac, Yau v. Bernstein, College of Physicians and Surgeons of Ontario 2015 ONSC 592
DIVISIONAL COURT FILE NO.: 82/14
DATE: 20150126
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, SACHS AND CORBETT JJ.
BETWEEN:
DR. JAMIE CYRIAC and DR. PATRICK YAU Applicants
– and –
DR. STANLEY BERNSTEIN, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents
Keary F. Grace, for the Applicant
Lindsay L. Kantor, for the Respondent, Dr. Stanley Bernstein
Jessica L. Amey, for the Respondent, College of Physicians and Surgeons of Ontario
Steven G. Bosnick, for the Respondent, Health Professions Appeal and Review Board
HEARD at Toronto: January 26, 2015
D. L. CORBETT J. (ORALLY)
[1] The applicants are surgeons who are licensed to practice medicine in Ontario. Both work performing laparoscopic bariatric surgery for Slimband Inc. at its clinic in Toronto.
[2] Both are members of and subject to regulation by the College of Physicians and Surgeons of Ontario.
[3] The impugned decision is the third in a series of proceedings regarding advertising by the applicants’ employer, Slimband. The complainant, Dr. Bernstein is the principal of one of Slimband’s competitors.
[4] Advertising of medical services by members of the College is governed by an Advertising Regulation, s. 6 of which provides:
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.
(4) No member shall,
(a) cause or permit his or her name to appear in any communication offering a product or service to the public; or
(b) otherwise cause or permit himself or herself to be associated with the advertising or promotion of any product or service,
Other than the member’s medical services in accordance with subsections (1), (2) and (3).
[5] In 2009, Dr. Yau was found in breach of the Advertising Regulation because of two testimonials contained on the website for his employer referencing him by name. His employer at that time, Toronto Laparoscopic Band Centre, is the predecessor in business to Slimband Inc., Dr. Yau’s employer at the time of the events at issue in this proceeding.
[6] Dr. Yau was cautioned in writing “to make reasonable efforts to ensure all communications that promote his practice are consistent with the College’s Advertising Regulation ...”
[7] In April 2010, the second complaint was considered this time against both Dr. Cyriac and Dr. Yau. This complaint concerned the Slimband website which contained two testimonials connected to Dr. Yau and introduced Dr. Cyriac as a “bariatric surgery expert”. By the time the complaint was considered, the names of Drs. Yau and Cyriac had been removed from the Slimband website. It was concluded that the doctors “were now in compliance with the Advertising Regulation”. Dr. Yau was formally cautioned in writing again, since he had been previously cautioned in connection with his name being used in conjunction with testimonials. Dr. Cyriac was “counselled” to comply with the Advertising Regulation in future.
[8] The decisions in 2009 and 2010 are not the subject matter of this judicial review.
[9] In October 2010, Dr. Bernstein made a further complaint to the College about Slimband advertising. This complaint was not specifically in respect to the use of the names of Dr. Yau or Dr. Cyriac.
[10] While investigating Dr. Bernstein’s complaint, on November 26, 2010, an investigator for the College ran a web search and discovered an advertisement for Slimband on a website entitled, “Consumer Guide to Bariatric Surgery”. The investigator found an advertisement for Slimband that included testimonials, before and after photographs of patients, as well as names, biographies and photographs of Drs. Yau and Cyriac.
[11] When the matter was considered by the College’s Inquiries, Complaints and Reports Committee, the Committee was concerned that inappropriate advertising was found on the internet a scant few months after Dr. Yau had been cautioned for the second time and Dr. Cyriac had been counselled to comply with the Advertising Regulation.
[12] The Committee considered submissions from the applicants to the effect that the impugned advertisement was unauthorized and not within the control of Drs. Yau and Cyriac and not known to them. The Committee did not accept that submission and found that “although physicians may have no knowledge of their names being used, they nevertheless do bear the ultimate responsibility when this use is connected with a third party. They need to show the College that they have taken reasonable steps to discontinue and/or prevent advertising that contravenes the Advertising Regulation.” (Decision, page 8).
[13] The Committee decided to caution Dr. Cyriac in writing and to caution Dr. Yau in person, given the previous two cautions in writing sent to Dr. Yau.
[14] The Committee’s decision was appealed to the Health Professions Appeal and Review Board. The Board found that its standard of review of the Committee’s decision was reasonableness. It concluded the decision below was reasonable and dismissed the appeal.
[15] The Consumer Guide to Bariatric Surgery is a listing of providers of bariatric surgery. Slimband paid a fee, which the Committee found to be $3,500 per year, to have a listed advertisement on this website. The evidence before the Board in the form of a renewal invoice confirmed that Slimband paid a fee to have a listed advertisement on this website. A simple search of the web by the College’s investigator disclosed this website and Drs. Yau and Cyriac provided no evidence to satisfy the Committee that they took reasonable steps to ensure that improper advertising bearing their names had been removed from the worldwide web.
[16] Our task is not to rehear the appeal before the Board. Rather, it is to decide whether the Board is reasonable in its conclusion that the Committee’s decision was reasonable. (See: Fielden v. College of Physicians and Surgeons of Ontario, [2012] O.J. No. 4374 (Div. Ct.) and Reyhanian v. Health Professions Appeal and Review Board, [2013] O.J. No. 1292 (Div. Ct.)).
[17] On this application, the applicants made four submissions:
(1) That there were material inconsistencies between the Committee’s 2010 decision and its 2012 decision. We disagree. In 2010, on the basis of what it knew at the time, the Committee told the applicants that it appeared that they were in compliance with the Advertising Regulation. After that decision, the Committee received further information that showed that the applicants were not in compliance. It was this fresh information that led to the 2012 decision.
(2) The applicants argue that there are material inconsistencies in the Committee’s 2012 decision that leads to the medical profession being in the position of confusion as to what standards apply when it comes to compliance with the Advertising Regulation. In particular, according to the applicants, the Committee’s decision refers at one point to a principle that physicians should and must take “reasonable steps” to ensure that their names are not associated with impermissible advertising by companies with which they have an association. Later in the decision, the Committee states that the applicants must take “all steps that are necessary” so that they are not associated in future with advertising that contravenes the Regulation, and further, suggests that the applicants’ association with Slimband, even if their names do not appear in Slimband’s advertising, “is sufficient to generate the Committee’s concern.”
At this point, it is important to recall that the decision we are reviewing is not the Committee’s decision, but the decision of the Board. The Board concluded that the broader statements of policy about (i) “taking all necessary steps” and (ii) implicit association, contained in the Committee’s decision were obiter dicta designed to give some warning of the way in which the Committee’s thoughts were developing on the issue of physician responsibility for third party advertising. This is a reasonable reading of the Committee’s decision and we see no basis on which to interfere with it.
(3) The reasoning in the Board’s decision was inconsistent with a previous Board decision in the case of M.A. v. S.P.K., M.D. and N.S.,M.D., HPARB, 12-CRV-0599.
We do not see the Board’s decision as inconsistent with its prior jurisprudence in the M.A. case.
In M.A., there was no prior complaint history respecting the physicians. The physicians in that case described a detailed list of steps they had taken to prevent recurrence, and the Board was satisfied. That is a far cry from a third complaint where the doctors did not provide evidence to show that they took reasonable steps to prevent recurrence.
(4) There is no evidence that the applicants “caused or permitted” themselves to be associated with Slimband’s advertising or promotion and thus there is no evidence that they violated s.6(4) of the Regulation. Given the history of Slimband’s advertising, which was known to the applicants, the Committee found that the applicants “permitted” the impugned advertisement because they failed to show that they had taken reasonable steps to remove improper advertising bearing their names from Slimband’s advertising. This finding is available on the evidence and was reasonable and the Board’s decision to this effect is, itself, reasonable.
[18] Finally, we note that the Committee’s disposition was not disciplinary in nature. Rather, it chose to use cautions to give guidance to the applicants about future conduct. (See: Silverthorne v. Ontario College of Social Workers and Social Services Workers, 2006 10142 (ON SCDC), [2006] O.J. No. 207 (Div. Ct.)). Based on the materials before the Committee, its decision was reasonable, as was the decision of the Board upholding it. Therefore, the application for judicial review is dismissed.
SWINTON J.
COSTS
[19] I have endorsed the Application Record, “This application is dismissed for oral reasons delivered by D. L. Corbett J. today. No party seeks costs and none are awarded.”
___________________________ D. L. CORBETT J.
SWINTON J.
SACHS J.
Date of Reasons for Judgment: January 26, 2015
Date of Release: February 13, 2015
CITATION: Cyriac, Yau v. Bernstein, College of Physicians and Surgeons of Ontario 2015 ONSC 592
DIVISIONAL COURT FILE NO.: 82/14
DATE: 20150126
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, SACHS AND CORBETT JJ.
BETWEEN:
DR. JAMIE CYRIAC and DR. PATRICK YAU Applicants
– and –
DR. STANLEY BERNSTEIN, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents
ORAL REASONS FOR JUDGMENT
D. L. CORBETT J.
Date of Reasons for Judgment: January 26, 2015
Date of Release: February 13, 2015