) ) DAVID ROSS EDMISON, MD Applicant – v. –, 2017 ONSC 3664

CITATION : Edmison v. Health Professions Appeal and Review Board, 2017 ONSC 3664 DIVISIONAL COURT FILE NO.: 15-2156 DATE: 2017/06/14 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Aston, Swinton and Mitrow JJ. BETWEEN: ) ) DAVID ROSS EDMISON, MD Applicant – and – HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, AND DARREN YAPHE Respondents ) ) ) ) ) ) ) ) )))))) Sally Gomery and Benedict Wray for the Applicant David P.

Jacobs for the Respondent, Health Professions Appeal and Review Board Emily Graham , for the Respondent, College of Physicians and Surgeons of Ontario ) HEARD at Ottawa: June 12, 2017 Swinton J. (Orally) [ 1 ] The Health Professions Appeal and Review Board (“the Board”) upheld a decision of the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College of Physicians and Surgeons that issued a written caution to the Applicant physician because Focus Eye Centre, which he co-owned, used patient and staff testimonials in advertising contrary to s. 6(2) (

b) of O. Reg. 114/94 under the Medicine Act , 1991 , S.O. 1991, c. 30. [ 2 ] Section 6(1) of the regulation provides: 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. However, s. 6(2) states, Information communicated under subsection (1) must not, … (

b) contain a testimonial ….. [ 3 ] The standard of review of the Board’s decision is reasonableness. [ 4 ] Pursuant to s. 33(1) of the Health Professions Procedural Code , in the review of a decision of the ICRC respecting a

complaint, the Board’s mandate is to determine the adequacy of the investigation and the reasonableness of the ICRC’s decision. [ 5 ] The Board’s decision was reasonable, both with respect to the adequacy of the investigation and the reasonableness of the ICRC’s decision. [ 6 ] In conducting its investigation, the ICRC inquired into Focus’ use of advertising and had the essential information necessary to determine whether Focus’ advertising contravened the regulation. It was not required to consider how others in the profession interpreted the regulation, nor the complainant’s motivation in bringing the complaint. [ 7 ] With respect to the merits of the decision, the Applicant seeks a narrow

interpretation of “testimonial”, arguing that it means a positive statement about a person. However, he has not demonstrated that the Board’s and the ICRC’s

interpretation was unreasonable, especially given past decisions applying the regulation and the facts of this case. The testimonials in Focus’ advertising were not rendered in a vacuum. They were inextricably linked to Focus and its services.

Viewed through the eyes of the public, a common sense inference would link the testimonials to Focus, and not merely laser eye surgery procedure in general. [ 8 ] The Supreme Court of Canada has held that self-regulated professional bodies have particular expertise in deciding the policies and procedures that govern the practice of their members, and they should be afforded considerable latitude in applying their home statute ( Green v. Law Society of Manitoba , 2017 SCC 20 at para. 25 ). [ 9 ] We find that the ICRC’s investigation was adequate and the

interpretation of s. 6(2)(

b) of the regulation was reasonable. Accordingly, the application for judicial review of the Board’s decision is dismissed. Counsel agree that there shall be no costs. _______________________________ Swinton J. I agree _______________________________ Aston J. I agree _______________________________ Mitrow J. Date of Reasons for Judgment: June 12, 2017 Date of Release: June 14, 2017 CITATION : Edmison v. Health Professions Appeal and Review Board, 2017 ONSC 3664 DIVISIONAL COURT FILE NO.: 15-2156 DATE: 2017/06/14 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Aston, Swinton and Mitrow JJ. BETWEEN:

DAVID ROSS EDMISON, MD Applicant – and – HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, AND DARREN YAPHE Respondents ORAL REASONS FOR JUDGMENT Swinton J. Date of Reasons for Judgment: June 12, 2017 Date of Release: June 14, 2017