Wong v. Health Professionals Appeal and Review Board, 2016 ONSC 6413
CITATION: Wong v. Health Professionals Appeal and Review Board, 2016 ONSC 6413
DIVISIONAL COURT FILE NO.: 484/15 DATE: 20161013
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEITCH, SACHS and NORDHEIMER JJ.
BETWEEN:
DR. DAVID T.W. WONG Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondent
Mark J. Freiman, for the Applicant David P. Jacobs, for the Respondent
HEARD at Toronto: October 13, 2016
ORAL REASONS FOR JUDGMENT
NORDHEIMER J. (orally)
[1] Dr. Wong applies for judicial review of a decision of the Health Professions Appeal and Review Board that upheld the decision of the College of Physicians and Surgeons to “advise” the applicant regarding a breach of the Advertising Regulation “as an educational disposition designed to assist the physician in improving future practice”.
[2] I begin with my conclusion that the standard of review applicable to the decision of the Board is reasonableness. The Board is a specialized tribunal whose decisions are entitled to deference. It is also dealing with the interpretation of a regulation that is central to its function. There is no law of general application involved in this case that would attract the higher standard of correctness under the principles set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The applicant accepts that reasonableness is the appropriate standard of review.
[3] In terms of the merits, the applicant and another physician were associated with a clinic. The clinic had a website that was linked to another website run by Groupon.com. On that website, there was a link to the clinic that offered a “deal” from the clinic on units of Botox and credit for dermal fillers. The applicant had no connection to these items. The applicant only provided retinal surgery services at the clinic.
[4] The College found both physicians had breached the Advertising Regulation. The Board upheld the finding with respect to the applicant but overruled the finding with respect to the other doctor. While the applicant submits that the two Board decisions are irreconcilable, and thus the decision regarding the applicant is unreasonable, the fact is that there were two important factual distinctions between the two cases. One is that the other physician, unlike the applicant, did not provide any services to the clinic so his involvement with the clinic was non-existent, other than allowing his name to be used. The other is that the applicant was listed on the clinic website as being the clinic’s “Associate Medical Director” although it is acknowledged that the applicant did not, in fact, have any managerial role with the clinic.
[5] The Advertising Regulation is Reg. 114/94 under the Medicine Act, 1991, S.O. 1991, c.30. Section 6(4) of the Regulation provides:
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).
[6] The Board found that the applicant was unaware of the offending Groupon advertising and could not have discovered it by visiting the Clinic website. However, the Board found that it was reasonable for the College to conclude, given the role that the applicant was represented as having with the clinic, that he had permitted his name to be associated with a product or service that were not the applicant’s services and thus offended the regulation.
[7] The applicant relies on the decision of this court in Cyriac v. Bernstein, [2015] O.J. No. 678 (Div. Ct.) in support of his position that, in order to make a finding of a breach of the Advertising Regulation, there had to be a finding that the applicant had failed to show that he had taken reasonable steps to remove the offending advertising. Since the applicant had not known of the advertising, it follows that he could not have taken any steps to remove it.
[8] With respect, the applicant overstates the holding made in Cyriac. The decision does not hold that the only way a physician can be offside of the Advertising Regulation is to fail to take steps to remove offending advertising. The conclusion in Cyriac turned on the fact that the physician there had known about the advertising and not done anything about it. The situation here is different.
[9] There is no issue that the applicant did not know about the advertising. Nevertheless, the college concluded that he had permitted himself to be associated with the advertising by allowing his name to be portrayed on the Clinic’s website as its Associate Medical Director. That representation carries with it the appearance of the applicant being part of the management and directing mind of the Clinic and thus, presumably, aware of and responsible for all of its activities. It was reasonable for the Board to uphold the finding of the College that in permitting himself to be represented as such, the applicant consequently permitted himself to be associated with the advertising, particularly since there was no evidence before the College that the applicant had made any inquiries of the Clinic, regarding any advertising in which it engaged, prior to taking up his position with the Clinic.
[10] In my view, given the facts that were before the College and the Board, it was open to the College and the Board to reach the conclusion that they did. It is a conclusion that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir at para. 47. While the decision of the Board may have the effect of placing a positive duty on a physician to make inquiries as to the activities of a clinic or other organization before permitting his or her name to be associated in such a fashion with that clinic or organization, I do not see anything unfair or unreasonable in the imposition of such a burden in order to ensure compliance with the regulation.
[11] The application is dismissed.
COSTS – LEITCH J.
[12] I have endorsed the Application Record as follows: “This appeal is dismissed for oral reasons given. No costs ordered.”
___________________________ NORHEIMER J.
LEITCH J.
SACHS J.
Date of Reasons for Judgment: October 13, 2016
Date of Release: October 17, 2016
CITATION: Wong v. Health Professionals Appeal and Review Board, 2016 ONSC 6413
DIVISIONAL COURT FILE NO.: 484/15 DATE: 20161013
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LEITCH, SACHS and NORDHEIMER JJ.
BETWEEN:
DR. DAVID T.W. WONG Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondent
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: October 13, 2016
Date of Release: October 17, 2016