The Ontario Divisional Court dismissed the appeal of the appellant physician from four decisions of the Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) when found that she failed to maintain the standards 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. The Court upheld the Committee’s penalty of a two year suspension and restrictive terms thereafter preventing the appellant from practising as a cosmetic surgeon, and performing any surgery except as a surgical assistant in a hospital under supervision. The Court also upheld the Committee’s finding that the appellant contravened the advertising regulation under the Medicine Act, 1991 S.O. 1991 c.30, finding that the CPSO’s ban on the use of testimonials and superlatives was constitutional.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and surgeons – Professional misconduct or conduct unbecoming – Competence – Advertising – Penalties – Suspensions – Judicial review – Standard of review – Correctness – Reasonableness simpliciter

Yazdanfar v. College of Physicians and Surgeons of Ontario, [2013] O.J. No. 4787, 2013 ONSC 6420, Ontario Superior Court of Justice Divisional Court, October 16, 2013, A.L. Harvison Young, L.C. Leitch and T.R. Lederer JJ.

Dr. Yazdanfar is a Canadian trained physician who qualified in family practice. She later focused her practice on cosmetic surgery, specifically breast augmentation and liposuction procedures. Following the death of one of her patients after a liposuction procedure, the CPSO commenced an investigation into Dr. Yazdanfar’s practice and then issued a Notice of Hearing with allegations related to thirty patients in all, with respect to a number of augmentation and liposuction procedures. The College also alleged that Dr. Yazdanfar contravened the College’s advertising regulations. Following a sixty-eight day hearing, the Committee upheld many of the allegations, determining that Dr. Yazdanfar had repeatedly and knowingly breached the standard of practice of the profession, was guilty of professional misconduct, and was incompetent. In total, over sixty allegations were made against Dr. Yazdanfar, including the allegation that she breached the advertising provisions of Ontario Reg. 114/94. Dr. Yazdanfar appealed both the findings and penalty.

The appeal was dismissed. The standard of review with respect to the findings of fact, the determination of the standard of practice to be applied, and the penalty imposed is reasonableness. The standard of review with respect to the question of the constitutionality of the ban on testimonials and superlatives in Ontario Reg. 114/94 is correctness. There is no standard of review on issues of procedural fairness; rather, the Court must evaluate whether the rules of procedural fairness were adhered to by assessing the specific circumstances giving rise to the allegations and determining what procedures and safeguards were required in the circumstances to comply with the duty to act fairly.

The Court concluded that the Committee’s finding that Dr. Yazdanfar had “knowingly” exceeded the standard of practice was reasonable. There was no failure of procedural fairness resulting from the Committee not affording Dr. Yazdanfar the opportunity to respond to evidence given by the College’s expert in reply. The conclusion that Dr. Yazdanfar’s website advertising had constituted “dishonourable, disgraceful and unprofessional” conduct was reasonable.

The standard of review on the issue of the Committee’s upholding the constitutionality of the College’s ban on the use of testimonials and superlatives in physician’s advertising is correctness. The Court considered the decision in Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232. The issue was whether the Committee had correctly found that the ban on testimonials and superlatives was “reasonably and demonstrably justified” pursuant to the proportionality analysis of the Oakes test. The Court found that the Committee correctly found that the limitations imposed are minimal and merely economic and taking into account the risk of harm inevitably present in physician testimonials, the benefits are not worth the cost. Finally, the penalty was reasonable. The two year suspension followed by severe restrictions on Dr. Yazdanfar’s ability to perform surgery was reasonable. The fact that, as Dr.Yazdanfar argued, it amounted to a defacto revocation did not make the penalty unreasonable.

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