DIVISIONAL COURT FILE NO.: 100/15 DATE: 20151029
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
MOLLOY, LINHARES DE SOUSA AND WILTON-SIEGEL JJ.
BETWEEN:
DR. STANLEY K. BERNSTEIN
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND LISA M. BORG
Respondents
Neil M. Abramson and Lindsay Kantor, for the Applicant
David P. Jacobs and Allison J. Shamas, for the Respondent, Health Professions Appeal and Review Board
Morgana Kellythorne, for the Respondent, The College of Physicians and Surgeons of Ontario
HEARD at Toronto: October 29, 2015
MOLLOY J. (ORALLY)
1Dr. Stanley K. Bernstein seeks judicial review of the decision of the Health Professions Appeal and Review Board (“HPARB”) upholding the decision of the Complaints and Reports Committee of the College of Physicians and Surgeons of Ontario (“ICRC”) that required him to attend at the College to be cautioned in person regarding breaches of s.6(4) of the Medicine Act, 1991, Part II Advertising, O. Reg. 114/94 (“the Regulation”).
2The applicant is also challenging the validity of s.6(4) under s.2(b) of the Charter.
3The applicant requests that the Divisional Court make an order quashing the HPARB decision and granting the dismissal of the complaint before the ICRC. In the alternative, he requests an order quashing the parts of the HPARB decision in which he is to be cautioned for allowing his name and image to be used and associated with the advertisement of his medical services. In the further alternative, he seeks a declaration that s.6(4) of the Regulation violates his right to free expression under s.2(b) of the Charter and is of no force and effect.
4It is accepted by all parties that in reviewing the decision of HPARB, this Court should apply a reasonableness standard of review. HPARB, in turn, correctly applied a reasonable standard of review to the ICRC decision requiring Dr. Bernstein to appear before the College to be cautioned.
5Although the ICRC found a number of problems with Dr. Bernstein’s advertisements and although all of those were challenged before HPARB, only one issue is raised before us. That issue is the determination that Dr. Bernstein should be cautioned with respect to the use of his name and image in advertising the weight loss clinics he has established across the province.
6Counsel for Dr. Bernstein raises four issues with respect to the reasonableness of the decisions below as follows:
(1) the decision is unreasonable in light of the fact that the CPSO and ICRC have been well aware for many years of Dr. Bernstein’s association with dozens of clinics bearing his name across Ontario;
(2) there is insufficient analysis and/or factual framework to say that the decision is reasonable;
(3) the decision of the ICRC went too far by making actual findings of breach of the Regulations, which amounts to a finding of professional misconduct, a jurisdiction which is reserved to the Discipline Committee; and
(4) the ICRC decision cannot be said to be reasonable because it breaches Dr. Bernstein’s Charter right to freedom of speech.
7In the alternative, counsel for Dr. Bernstein submits that this Court should strike the Regulation in question as being unconstitutional.
8Dr. Bernstein did not raise the constitutional issue before the ICRC nor did he raise it before HPARB. It is important to consider constitutional issues in a full factual context. This is particularly important where, as here, there is an allegation that professional practice regulations unduly limited the right to freedom of speech. Assessing the merit of that argument would require consideration of the reasons for any limitations on speech and why they are justified in the regulatory scheme. This is an issue upon which the Tribunal itself would be better placed to make a determination, particularly in the absence of a full record. Because Dr. Bernstein did not raise this before HPARB, this Court does not have the benefit of the Tribunal’s analysis on the point. When this is added to the lack of an evidentiary record, it becomes even more problematic. Accordingly, we decline to deal with the constitutional issue – either on its own or as a component of reasonableness.
9It is clear that the CPSO and the ICRC, based on prior dealings with Dr. Bernstein, were well aware that he was associated with multiple clinics bearing his name across Ontario. We do not see this as having any bearing on the reasonableness of the decision of this particular ICRC with respect to this particular complaint. There is no suggestion that the ICRC or the College was estopped in some way from acting as it did, nor that they were bound by any prior decision or assurances. The ICRC was required to consider this complaint in light of the meaning of a particular regulation in the circumstances as they existed at that time. We see no merit to this argument.
10We find no error in the ICRC making findings that certain things done by Dr. Bernstein were not in compliance with the Regulations. The ICRC did not issue any declarations or orders in that regard, nor did it make any findings of professional misconduct. A finding of a breach of a regulation is not necessarily the same thing as a finding of professional misconduct. In finding contraventions of Regulations, the ICRC was merely stating its reasons for requiring Dr. Bernstein to appear before the College to be cautioned. We agree with the finding of HPARB that there was no finding of professional misconduct by the ICRC. Rather, the ICRC took the remedial approach of cautioning Dr. Bernstein in person rather than seeking to impose sanctions against him at the Discipline Committee. The Board determined that this was a reasonable approach to take. We agree that the reasonableness standard is met in that regard. Further, we find that the ICRC was acting within its jurisdiction in making these findings.
11HPARB also found that the financial consequences to Dr. Bernstein were not a relevant consideration in determining whether he was providing his own medical services in all of the clinics bearing his name. This also is a reasonable determination.
12In any event, there was no evidence before the Tribunal or before us as to any actual financial consequences, beyond speculation and bald allegations.
13I come then to the central issue in this case, which is the reasonableness of the ICRC finding that Dr. Bernstein’s advertisements were not within the meaning of “the member’s medical services” as provided for in Reg. 6(4).
14HPARB did not refer specifically to the ICRC analysis on this point but did refer to the decision of the Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, 2011 S.C.C. 62 [2011] 3 S.C.R. 708 (“Newfoundland Nurses”) with respect to its overall assessment of the reasonableness of the ICRC’s decision. It is relevant therefore to consider the decision of the ICRC itself.
15The ICRC set out all of the relevant facts before it, which included information about the advertisements themselves as well as the submissions made by Dr. Bernstein as to why these clinics constituted his own medical services. It must be said that the evidence and submissions put forward by Dr. Bernstein on this point were sparse, but it is clear that the ICRC did take them into account. The ICRC then held at page 5 of its Decision:
The Committee rejects this argument. By his own admission, Dr. Bernstein has no therapeutic relationship with the patients who attend the clinics. It is stretching the meaning of the phrase “the member’s medical services” to argue that this includes services such as providing consulting advice to various franchises. While the individual doctors at the Bernstein clinics are providing their medical services, in our view, Dr. Bernstein is not.
16In Newfoundland Nurses, at para. 12, the Supreme Court of Canada endorsed the following observation from an article by Professor David Dyzenhaus as follows:
“Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them. For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc., then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective.
17And further, at paras. 14-15:
Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses – one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at s. 12:5330 and 12:5510). It is a more organic exercise – the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47).
In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48). This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome.
18In this case, the ICRC was called upon to interpret the College’s own Regulations about permissible advertising by doctors, and in particular the meaning of the words “the member’s medical services.” This is a matter that is squarely within the very specialized expertise of the Tribunal and one to which considerable deference is owed.
19The ICRC’s Reasons are not lengthy and perhaps could have been more robust. However, what the decision says is that upon Dr. Bernstein conceding he has no therapeutic relationship with the patients seen at these clinics, it cannot be said that the advertisements featuring his name and image are directed towards his own medical services. That is a reasonable construction of the words used in the Regulation when viewed in light of the facts before the Tribunal and the underlying scheme and purpose of the Regulations, viewed in context.
20In our view these reasons are sufficient to permit appellate review and to enable us to see the path by which the Tribunal came to the conclusion it did. The Decision falls within a range of reasonable possible outcomes. That is sufficient to meet the standard of reasonableness as established by the Supreme Court of Canada in Dunsmuir and Newfoundland Nurses.
21Accordingly, this application is dismissed.
COSTS
22I have endorsed the Application Record, “This appeal is dismissed. Costs payable to the College of Physicians and Surgeons by Dr. Bernstein fixed at $2,500.00. Costs are not sought by HPARB and none are ordered.”
___________________________ MOLLOY J.
LINHARES DE SOUSA J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: October 29, 2015
Date of Release: November 6, 2015
CITATION: Bernstein v. Health Professions Appeal and Review Board, College of Physicians and Surgeons of Ontario and Borg, 2015 ONSC 6724
DIVISIONAL COURT FILE NO.: 100/15 DATE: 20151029
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MOLLOY, LINHARES DE SOUSA AND WILTON-SIEGEL JJ.
BETWEEN:
DR. STANLEY K. BERNSTEIN
Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO AND LISA M. BORG
Respondents
ORAL REASONS FOR JUDGMENT
MOLLOY J.
Date of Reasons for Judgment: October 29, 2015
Date of Release: November 6, 2015