CITATION: Bernstein v. Health Professions Appeal and Review Board, 2016 ONSC 4396
DIVISIONAL COURT FILE NO.: 242/15 DATE: 20160629
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
THEN, SACHS and LOCOCO JJ.
BETWEEN:
Dr. Stanley K. Bernstein
Applicant
– and –
Health Professions Appeal and Review Board, College of Physicians and Surgeons of Ontario and Peter Rosenthal
Respondents
Neil M. Abramson, for the Applicant
Steven G. Bosnick, for Health Professions Appeal and Review Board
Morgana Kellythorne, for College of Physicians and Surgeons of Ontario
Peter Rosenthal and Vibhu Sharma for Peter Rosenthal
HEARD at Toronto: June 29, 2016
SACHS, J. (ORALLY)
[1] The Applicant, Dr. Bernstein, applies for judicial review of a decision of the Health Professions Appeal and Review Board (“the “Board”) dated February 24, 2015. The Applicant takes issue with one aspect of that decision, namely the Board’s direction to the Inquiry, Complaints and Reports Committee (“ICRC”) that it reconsider whether the Applicant breached s.7 of the Regulation, which prohibits steering.
[2] In its reasons, the ICRC made the following statement regarding whether the Applicant violated s. 7 of the Regulation:
The Committee is unaware of any previous interpretation of section 7 of the Advertising Regulation. For that reason, and because we are of the view that the disposition in this case is fully justified by all the other identified breaches, we defer comment on section 7 at this time.
[3] All parties agree that the standard of review that the Board was required to apply to its consideration of the ICRC’s decision was that of reasonableness. On the issue, the Board found as follows:
Lastly, the Board finds that it was unreasonable for the Committee not have dealt with the steering issue. It does not appear to the Board to be a reasonable basis to defer consideration of a component of a complaint because it was a matter of first impression. This would certainly seem to be an appropriate case where the Committee could decide such a matter.
[4] All parties also agree that the Board’s decision is to be reviewed by this Court on a standard of reasonableness.
[5] In dealing with this application, it is important to keep in mind the following principles:
(1) In fulfilling its mandate, the Board was to consider the reasonableness of ICRC’s decision, which was to dispose of the one complaint before it by way of a caution.
(2) The reasonableness standard requires a reviewing body to read the reasons together with the outcome so as to determine whether the result reached (in this case a caution) falls within the range of possible outcomes.
(3) The reasons of a tribunal are not to be parsed with a view to subverting them. They are to be read as a whole, in light of the record and submissions of the parties. (See Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) 2011 SCC 62, [2011] 3 SCR 708.).
[6] In this case, it is clear that the ICRC was dealing with one complaint about the nature of the Applicant’s advertising. That complaint raised several concerns, including the fact that he is the face of the business provided at the diet clinics when he is not personally delivering his medical services at those clinics, other physicians are. This, in turn, can be considered a violation of both ss. 6(4) and s. 7 of the Advertising Regulation.
[7] The ICRC considered the conduct of the Applicant that was the subject of the complaint and, in doing so, decided that the appropriate way to dispose of the complaint was by a way of a caution. In reaching this conclusion, it decided, among other things, that there was a justifiable concern that s. 6(4) of the Regulation was being violated when the Applicant allowed his name and/or image to be used in advertising the medical services at the clinics since he was not actually delivering those services. The ICRC then decided that it did not need to consider whether the Applicant’s conduct also violated s. 7 of the Regulation.
[8] The Board, in its decision, unreasonably only considered one basis for the ICRC’s conclusion in this regard. In fact, the ICRC articulated two separate and distinct reasons for coming to this conclusion:
(1) Section 7 of the Regulation had not been dealt with before (the reason adverted to by the Board); and
(2) It was unnecessary to deal with it in this case as its decision that the appropriate disposition in relation to the complaint was a caution could be justified on other grounds.
[9] In other words, read as a whole, and in light of the record, the ICRC decided that the caution with respect to the other breaches was sufficient to deal with the allegation of steering (if there was steering) in the circumstances of this case. There is nothing unreasonable about this approach, nor does it constitute an abdication of the ICRC’s responsibility, which was to consider the complaint about the Applicant’s advertising and decide how it should be disposed of.
[10] Again, the disposition chosen was a caution and the Board made no finding that this disposition was an unreasonable one.
[11] For these reasons, the application is allowed and para. 48(iii) the Board’s decision is set aside.
THEN J
costs
[12] I have endorsed the Application Record of the Application as follows: “This application is allowed for oral reasons delivered by Sachs J. on behalf of the Court. Paragraph 48(iii) of the Board’s decision is set aside and given the narrow and discrete issue before the Court and having
regard to the factors outlined in Rule 57, we are of the view that it is fair and reasonable to award costs the Applicant of $2,500 all inclusive to be paid jointly and severally by the respondent Board and by the respondent Rosenthal.”
___________________________ Sachs J.
Then J.
Lococo J.
Date of Reasons for Judgment: June 29, 2016
Date of Release: July 8, 2016
CITATION: Bernstein v. Health Professions Appeal and Review Board, 2016 ONSC 4396
DIVISIONAL COURT FILE NO.: 242/15
DATE: 20160629
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, SACHS and LOCOCO JJ.
BETWEEN:
Dr. Stanley K. Bernstein
Applicant
– and –
Health Professions Appeal and Review Board, College of Physicians and Surgeons of Ontario and Peter Rosenthal
Respondents
REASONS FOR JUDGMENT
SACHS, J
Date of Reasons for Judgment: June 29, 2016
Date of Release: July 8, 2016