r 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 orunprofessional 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 asurgical 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 ofsignificant findings intact: a. The appellant fell below the applicable standard of practice in a number of areas (such as her breast augmentation practice), wasincompetent and failed to consistently follow even the guidelines that she claimed were applicable in the context of the liposuctionallegations; 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 alack 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 practiceto 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; andSazant v. College of Physicians and Surgeons of Ontario, 2011 ONSC 323, 226 C.R.R. (2d) 284 (Div.

Ct.), aff’d 2012 ONCA 727, 113O.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 ontestimonials 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 heldin London (City) v.

Ayerswood Development Corp. (2002), (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 ofreview. Rather, the court is required to evaluate whether the rules of procedural fairness or the duty of fairness have been adhered to.

Thecourt does this by assessing the specific circumstances giving rise to the allegation and by determining what procedures and safeguardswere 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. Iwill 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 theperformance of liposuction? [21] The first ground of appeal is that “the Committee erred in concluding that the member knowingly breached the acceptablestandard 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”. Thisrefers to the volume of aspirate, meaning fat and other liquids, that is removed during liposuction.

The appellant maintains this focus atthe expense of other aspects of the standard of practice issues that were also of concern to the Committee, such as the number of sitestreated 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 respectto 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 asto whether the appellant was taking the position that the College must establish a mental element as a precondition to establishing abreach of a standard of practice. However, it ultimately became clear that the appellant was not taking that position, and all partiesagreed that the “knowing” element only needed to be established when it formed part of the allegations when it formed part of theallegations.

This element of “knowing” has no bearing, however, on the Committee’s principal findings that the appellant had failed tomaintain 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 determinedthe 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 ofs. 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 theCommittee’s expertise or that involves the

interpretation of its home statute. Nonetheless, it is not necessary for this court to determinethis issue because the Committee did not err in permitting the use of the Dr. Fielding’s report as the appellant’s prior answers to hisquestions 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 usingthem for the purposes of cross-examination.

The appellant takes issue with any and all use of the transcript and does not drawdistinctions between its admissibility per se and its use in cross examination for impeachment purposes. Ms. Thomson, on behalf of theappellant, also argues that the transcript was unfairly used to highlight areas in which the appellant had refused to answer questions put toher by Dr. Fielding. In this case, the transcript of Dr. Fielding’s interview with the appellant was not admitted into evidence but wasused only to impeach her credibility.

There were a number of inconsistencies between the appellant’s evidence at the hearing and herstatements to Dr. Fielding transcribed during her interview, particularly in relation to KS in the period following her surgery and what sheknew 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.

AsNedelcu illustrates, the use of a prior statement statutorily compelled from the accused in another proceeding for the purpose of testingthe credibility of an accused who testifies at his criminal trial is permissible even though the right against self-incrimination is soimportant in the criminal context: Nedelcu, at paras. 1, 23-24. The right against self-incrimination has much more limited application inthe regulatory context: see R. v.

Fitzpatrick, (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 questionsthat the appellant refused to answer during the course of the interview. Members of the profession are required to cooperate with theirregulators. Having said this, however, there is no indication in the reasons of the Committee that this played any material role in itsconclusions. While its reasons refer to a “lack of correlation” between her description of events in the KS matter given to Dr.

Fieldingand those given under oath, they do not mention any recalcitrance on her

part in the course of answering questions posed by Dr. Fieldingbeyond noting that she had “found the atmosphere hostile and answered only what was asked … [and] refused to answer some questionson 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 anddid not violate her right to procedural fairness. As with the issue of the Quality Assurance review discussed above, the appellant takeswhat is essentially an evidentiary issue and frames it as involving procedural fairness.

The appellant was not denied procedural fairnessbecause of the way the Committee permitted the transcripts to be used. It was consistent with s. 33(6) of the Public Inquiries Act, 2009because 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 asan 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 Committeeaccorded to Dr.

Fielding’s evidence. Although she characterizes this as a procedural fairness issue, her submission stopped short ofarguing that his expert evidence was inadmissible because he discharged “dual roles” as both investigator and expert witness. Onceagain, this is not, in essence, a procedural fairness argument. This issue goes to the assessment of the evidence, a function that lies at theheart 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, noneof the authorities cited support her position in the regulatory context, or dispute the College’s submission that this is, in fact, a usualpractice 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 beforethe Committee although she (unsuccessfully) opposed Dr. Fielding’s qualification as an expert on the basis that he lacked sufficientexpertise. In the judicial review or administrative appeal context, the reviewing court may decline to consider arguments raised for thefirst 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 shouldbe accorded to Dr.

Fielding’s expert evidence on account of his “dual role”, she should have given the Committee the opportunity toconsider this argument. [77] Finally, and most importantly, I do not agree that the Committee attached undue weight to Dr. Fielding’s evidence. Afterreviewing 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 informationabout liposuction and breast augmentation and the complications of these procedures.

While in the areas of informed consent, andbooking and payment issues the Committee believed that he was holding Dr. Yazdanfar to an exacting standard, in the areas of clinicalcare 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 weightto Dr. Fielding’s evidence than it did to other expert witnesses whose evidence it accepted. It reviewed and considered his evidencecarefully, and did not simply accept it uncritically.

The Committee’s treatment of Dr. Fielding’s evidence was reasonable and thisground 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 uponin 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 theappellant’s expert anesthesiologist, Dr. Lim, on cross-examination.

One of the central factual issues in relation to the treatment andsubsequent death of KS concerned her condition immediately following the surgery, just after she was taken to the recovery room shortlyafter 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., therecovery records had in fact shown that KS’s blood pressure was abnormally low (in the range of 60/30), and that the appellant had beenaware 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 onthis 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 notsee the reading or she was misled by the apparent clinical appearance of the patient and gave it no credence. The Committee is of theview that Dr. Yazdanfar was aware or should have been aware that her patient had an abnormally low blood pressure when she saw herat 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 themid eighties as Dr.

Yazdanfar testified she recalled after seeing the video, she should have been alert to the development of seriousproblems 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 testifiedthat the physiological response to low blood pressure is an elevated heart rate, and because KS’s vital signs indicated a low bloodpressure 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 herheart rate to slow down. In response to questioning on cross-examination about whether he was aware of a study to this effect, he said hewas not. Dr. Lim asked College counsel to show him the study, but College counsel did not do so. The appellant’s counsel did notobject. [83] During the College’s reply, Dr.

Lee refuted the assertion that the vital signs on the recovery room record were not “medicallysupportable”, explaining that they were physiologically possible given the drugs administered, or alternatively, the heart rate could havebeen inaccurately reflected on the machine. The appellant did not request the opportunity to call Dr. Lim back as sur-reply evidence toDr. 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 anestheticagents. 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 ultimatelycompromised her ability to respond to the implications of the evidence that stemmed from the study and violated her right to proceduralfairness. [86] There are a number of difficulties with this ground of appeal. To begin with, the appellant did not object to the manner inwhich the study was dealt with by the College or the experts.

She did not seek a ruling on the point and the appellant complains aboutthe use of the study for the first time in this appeal. As already noted, the Supreme Court in Alberta Teachers confirmed that, in thecontext of a judicial review application, courts should be hesitant to consider issues raised on appeal that could have been raised beforethe 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 anallegation 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 Summittdeliberately did not argue any abuse of process during the proceedings before the Board. It thereby denied the Board any opportunity tolead evidence in response to such allegations. It also denied the Board any opportunity to rectify the alleged abuse before the conclusionof 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. Assuch, 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 toallow 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 onexamining 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, thatis, that neostigmine could have caused or contributed to the reduced heart rate seen in KS’s initial recovery room vital signs, he testifiedthat he was not aware of the particular study put to him. Once he said this, it was incumbent on the College to cease cross-examinationon the topic. As McLachlin J. (as she then was) stated in R. v.

Marquard, (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 thewitness 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. Counselcannot read from the work, since that would be to introduce it as evidence. If the answer is “yes”, and the witness acknowledges thework’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 groundedin 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 orsuperlatives 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 thewebsite 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 oftestimonials and superlatives by physicians, the mere use of testimonials and superlatives cannot be considered as sufficient to support afinding 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 establishthat 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 theexamples 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 thepatients whose records were in evidence had been persuaded to have Smartlipo and paid an additional $1000.00 for this technique. Theevidence of [SS] was that she believed Smartlipo was used throughout and on all areas. Dr. Yazdanfar testified that she uses it a little allover in her procedures to soften the fat. Dr. Mulholland testified and described the technique, its applications and use. He explained thatthis laser assisted liposuction is intended to liquefy fat before removal. It is appropriately used for small areas because it requires a lot oftime to get the benefit.

Small single zones usually less than 1000cc’s of total aspirate are amenable to Smartlipo. He testified that, if youdo not spend the time to do it properly, indicating that you do Smartlipo is just a marketing tool. Dr. Mulholland testified that Smartlipois not designed for multi-zone body contouring as it would take eight to ten hours to apply enough energy to make a meaningfuldifference. In light of the manner in which Smartlipo is employed by Dr. Yazdanfar, the Committee finds her website promotion to bemisleading and deceptive; and[] Dr.

Yazdanfar indicated that she was aware of the ban applying to testimonials and superlatives in advertising. She had the opportunity tocomply 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 thushad deliberately disobeyed it.

In other words, this was not an inadvertent breach of the regulations by someone who was attempting tocomply. 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 andsuperlatives. [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 infringethe 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 theprotection of the public from irresponsible and misleading advertising, meets the first branch of the test from R v.

Oakes, (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 demonstrablyjustified” 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, expertopinion and scholarly publications, as well as its own expertise in the conduct of physicians.

It concluded that the high standard ofmedical professionalism “would be detrimentally affected by misleading and non-verifiable physician advertising,” includingtestimonials 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 caresetting a potentially dangerous tool, increasing the chance that prospective patients will end up making poor decisions.

In the case ofdecision aids, testimonials may affect choices that may not be optimal, and the Ubel study offers words of caution about their use. Whatscience 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 salespromotion tool. Advertisements which offer enthusiastic endorsements and make unverifiable claims can influence members of thepublic to seek medical services to their physical, psychological [and/or] financial detriment. They focus only on the benefits and areinherently 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. Aspreviously noted, the general standard of review with respect to the constitutionality of the ban is correctness “because of the unique roleof s. 96 courts as interpreters of the Constitution”: Dunsmuir, at para. 58 (citation omitted). However, the Committee’s findings of factbased on the evidence are entitled to deference and are thus reviewable on a reasonableness standard.

This is especially true given thatthese factual findings concern the role of physicians and the patient-physician relationship, which is well within the particular expertiseof 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 DentalSurgeons of Ontario, (SCC), [1990] 2 S.C.R. 232, at p. 247, “not all expression is equally worthy of protection. Norare all infringements of free expression equally serious.” The Oakes test permits “a sensitive, case-oriented approach” to assessing limitson freedom of expression: Rocket, at p. 246. In the present context, four factors weigh heavily in favour of a deferential approach to theimpugned 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 motivefor doing so is, in most cases, primarily economic.

Conversely, their loss, if prevented from doing so, is merely loss of profit, and notloss of opportunity to participate in the political process or the “marketplace of ideas”, or to realize one’s spiritual or artisticself-fulfillment[.] [113] Second, the impugned provision forms part of the self-regulation of a profession.

The appellant is not confronted with thisrestriction as a person subject to a law of general application or as a defendant in a penal prosecution, but rather as a volunteer who haselected 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 medicalprofession 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 theirmembers 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, thisis particularly so for consumers of elective cosmetic surgical services. There is a power imbalance between doctors and patients thatarises because of the superior knowledge of the former.

The Supreme Court’s comments in Rocket, at p. 248, that “[c]onsumers of dentalservices 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 theeffectiveness of the legislative response are not capable of scientific proof, the Supreme Court of Canada is clear that a reasonedapprehension 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 thesubject 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] 1S.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.), (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 andprotecting the public from misleading advertising if testimonials and superlatives are inherently unprofessional and misleading. The banwould 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 rationallyconnected to the objective. This argument does not accurately capture the problem with testimonials and superlatives as being potentiallymisleading 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 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 meanswhich 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 thattestimonials are “a potentially dangerous tool, increasing the chance that prospective patients will end up making poor decisions”, andthat testimonials and superlatives are “not susceptible to verification”, it is clear that only a complete ban on testimonials and superlativeswill 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 apartfrom some extremely limited exceptions.

The restrictions struck down in Rocket prohibited dentists from advertising such innocuous andfactual 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 theimpugned provision, by contrast, physicians are free to communicate such useful, non-biased and verifiable information.

As theCommittee noted, the impugned provision “does not inhibit [the appellant] in any significant way from making her services known topotential consumers.”

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