Yazdanfar v. College of Physicians and Surgeons (Ont.), (2013) 317 O.A.C. 53 (DC)

• Judge: Harvison Young, Leitch and Lederer, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: October 16, 2013
• Jurisdiction: Ontario
• Citations: (2013), 317 O.A.C. 53 (DC);2013 ONSC 6420

Yazdanfar v. College of Physicians (2013), 317 O.A.C. 53 (DC)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MR.017

Dr. Behnaz Yazdanfar v. The College of Physicians and Surgeons of Ontario and Attorney General of Ontario

(34/12; 2013 ONSC 6420)

Indexed As: Yazdanfar v. College of Physicians and Surgeons (Ont.)

Court of Ontario

Superior Court of Justice

Divisional Court

Harvison Young, Leitch and Lederer, JJ.

October 16, 2013.

Summary:

A doctor, who qualified in family practice, focussed her practice on liposuction and breast augmentation at her out-patient clinic. The death of a patient following a liposuction procedure was the catalyst for an investigation involving a number of patients and ultimately discipline proceedings. The Committee of the College of Physicians and Surgeons of Ontario found that the doctor had repeatedly and knowingly breached the standard of practice of the profession, was guilty of professional misconduct and was incompetent. The Committee suspended the doctor's registration for two years and indefinitely prevented her from practicing other than as a surgical assistant. The doctor appealed.

The Ontario Divisional Court dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Medicine - Topic 2124 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Medicine - Topic 2124 ].

Civil Rights - Topic 1847

Freedom of speech or expression - Limitations on - Regulation of advertising - [See second Medicine - Topic 2029 ].

Civil Rights - Topic 1855

Freedom of speech or expression - Limitations on - Regulation of professionals - [See second Medicine - Topic 2029 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See second Medicine - Topic 2029 ].

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - [See Medicine - Topic 2124 ].

Medicine - Topic 2023

Discipline for professional misconduct - Professional misconduct or conduct unbecoming a member - Standards of practice - The Ontario Divisional Court held that a standard of practice could exist even when it was not explicitly set out in a written code - A reviewing tribunal could ascertain it by reference to evidence of a common understanding within the profession as to expected behaviour of a reasonable professional, or by deducing it from the profession's fundamental values - See paragraph 36.

Medicine - Topic 2023

Discipline for professional misconduct - Professional misconduct or conduct unbecoming a member - Standards of practice - The Committee of the College of Physicians and Surgeons (Ont.) found that a doctor knowingly breached the acceptable standard of practice by routinely exceeding the maximum allowable extraction volume in an out-patient liposuction procedure as established by the American Society of Plastic Surgery (ASPS) guidelines - The doctor appealed, arguing that the American Academy of Cosmetic Surgery (AACS guidelines), which provided for a larger extraction volume, applied - The Ontario Divisional Court rejected the doctor's argument - The court held that the conclusion that the standard of practice was reflected in the ASPS guidelines was open to the Committee on the evidence and was reasonable - In any event, the doctor regularly exceeded the limits set out in the AACS guidelines that she purported to follow - The Committee's finding that the doctor had "knowingly" exceeded the standard of practice for liposuction was reasonable - See paragraphs 21 to 51.

Medicine - Topic 2024

Discipline for professional misconduct - Professional misconduct or conduct unbecoming a member - What constitutes - [See first Medicine - Topic 2029 ].

Medicine - Topic 2029

Discipline for professional misconduct - Professional misconduct or conduct unbecoming a member - Advertising - The Committee of the College of Physicians and Surgeons (Ont.) found that a doctor's website postings (i.e., the use of testimonials or superlative statements) contravened the advertising provisions in s. 6(2) of the General Regulation under the Medicine Act and constituted disgraceful, dishonourable or unprofessional conduct - The doctor appealed - The Ontario Divisional Court stated that in concluding that the doctor's website advertising had constituted "dishonourable, disgraceful and unprofessional" conduct, the Committee carefully considered the evidence and relevant considerations, including the fact that the doctor had known of the ban and had deliberately disobeyed it - This was not an inadvertent breach of the regulations by someone who was attempting to comply - The Committee's conclusion on this issue was open to it on the record before it and was reasonable - See paragraphs 92 to 102.

Medicine - Topic 2029

Discipline for professional misconduct - Professional misconduct or conduct unbecoming a member - Advertising - Section 6(2) of the General Regulation under the Medicine Act prohibited the use of advertising by doctors which contained testimonials or superlative statements - The Committee of the College of Physicians and Surgeons (Ont.) held that the s. 6(2) limit on a doctor's right to freedom of expression (Charter, s. 2(b)) was justified under s. 1 of the Charter, and in particular the ban was reasonable and demonstrably justified pursuant to the proportionality analysis of the R. v. Oakes test (SCC 1986) - The doctor appealed, arguing that the Committee erred at each stage of the Oakes analysis - The Ontario Divisional Court dismissed the appeal, holding that the Committee was correct in upholding the ban on testimonials and superlatives - See paragraphs 103 to 140.

Medicine - Topic 2105

Discipline for professional misconduct - Evidence - Expert opinion - The Committee of the College of Physicians and Surgeons (Ont.) found that a doctor (Dr. Yazdanfar) knowingly breached the acceptable standard of practice in out-patient liposuction procedures - Dr. Fielding had been the doctor appointed by the College to investigate Dr. Yazdanfar's practice - Dr. Fielding subsequently testified as an expert before the Committee - Dr. Yazdanfar appealed the Committee's decision, arguing that the Committee erred in permitting the use of the transcript of Dr. Fielding's interview with Dr. Yazdanfar at the Committee hearing and 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 - The Ontario Divisional Court rejected these arguments - See paragraphs 62 to 78.

Medicine - Topic 2107

Discipline for professional misconduct - Evidence - Documentary evidence - The Committee of the College of Physicians and Surgeons (Ont.) found that a doctor knowingly breached the acceptable standard of practice in out-patient liposuction procedures - The doctor appealed, arguing that the Committee erred in preferring oral evidence of patients over contemporaneous records (i.e., consent forms) that were inherently more reliable - The Ontario Divisional Court rejected the doctor's argument - 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 - Further, the Committee did actually consider all the evidence on this issue and 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 was 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 - See paragraphs 52 to 58.

Medicine - Topic 2124

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting disciplinary findings - The Committee of the College of Physicians and Surgeons of Ontario found that a doctor had repeatedly and knowingly breached the standard of practice of the profession, was guilty of professional misconduct and was incompetent - The doctor appealed - The Ontario Divisional Court discussed the standard of review - The court stated that the standard of reasonableness applied with respect to the findings of facts, the determination of the standard of practice to be applied and the penalty - The standard of correctness applied to the constitutional issue - The court stated that to the extent the appeal raised issues of procedural fairness, there was no standard of review - See paragraphs 17 to 20.

Medicine - Topic 2125

Discipline for professional misconduct - Judicial review (appeals) - Scope of review respecting punishment - [See Medicine - Topic 2124 ].

Medicine - Topic 2185

Discipline for professional misconduct - Punishments - Suspension of licence - A doctor, who qualified in family practice, focussed her practice on outpatient liposuction and breast augmentation cosmetic surgery at her private clinic - The Committee of the College of Physicians and Surgeons of Ontario found that the doctor had repeatedly and knowingly breached the standard of practice of the profession, was guilty of professional misconduct and was incompetent - She also breached the advertising regulations - The Committee, inter alia, suspended her certificate of registration for two years and thereafter indefinitely restricted her practice to that of surgical assistant in a hospital setting - The doctor appealed the penalty - The Ontario Divisional Court dismissed the appeal, holding that the Committee's decision as to penalty was reasonable - See paragraphs 141 to 168.

Cases Noticed:

Liberman v. College of Physicians and Surgeons (Ont.) (2013), 309 O.A.C. 171; 2013 ONSC 4066 (Div. Ct.), refd to. [para. 4, footnote 1].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 17].

Sazant v. College of Physicians and Surgeons (Ont.) (2011), 226 C.R.R.(2d) 284; 2011 ONSC 323 (Div. Ct.), affd. (2012), 297 O.A.C. 338; 113 O.R.(3d) 420; 2012 ONCA 727, leave to appeal refused (2013), 455 N.R. 393 (S.C.C.), refd to. [para. 17].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 18].

London (City) v. Ayerswood Development Corp. et al. (2002), 167 O.A.C. 120 (C.A.), refd to. [para. 19].

Gallant-Glough v. Anderson, [2007] O.J. No. 1308 (Sup. Ct.), refd to. [para. 33].

Walsh v. Council for Licensed Practical Nurses (2010), 295 Nfld. & P.E.I.R. 222; 911 A.P.R. 222; 317 D.L.R.(4th) 142; 2010 NLCA 11, refd to. [para. 36].

Alberta Securities Commission v. Brost et al. (2008), 440 A.R. 7; 438 W.A.C. 7; 2008 ABCA 326, refd to. [para. 65].

Binet v. Pharmascience et al., [2006] 2 S.C.R. 513; 353 N.R. 343; 2006 SCC 48, refd to. [para. 67].

R. v. Nedelcu (M.), [2012] 3 S.C.R. 311; 436 N.R. 1; 297 O.A.C. 93; 2012 SCC 59, refd to. [para. 71].

R. v. Fitzpatrick (B.), [1995] 4 S.C.R. 154; 188 N.R. 248; 65 B.C.A.C. 1; 106 W.A.C. 1, refd to. [para. 71].

R. v. Kovats, 2000 BCPC 176, refd to. [para. 75].

R. v. Klassen (R.E.) (2003), 179 Man.R.(2d) 115; 2003 MBQB 253, refd to. [para. 75].

Seibert v. Juhasz, [2012] O.A.C. Uned. 667; 2012 ONSC 5447 (Div. Ct.), refd to. [para. 76].

Summitt Energy Management Inc. v. Ontario Energy Board (2013), 309 O.A.C. 85; 2013 ONSC 318 (Div. Ct.), refd to. [para. 86].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 88].

Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc. et al., [2011] B.C.A.C. Uned. 9; 332 D.L.R.(4th) 146; 2011 BCCA 69, refd to. [para. 96].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 106].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 111].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 115].

R. v. Bryan (P.C.) et al., [2007] 1 S.C.R. 527; 359 N.R. 1; 237 B.C.A.C. 33; 392 W.A.C. 33; 2007 SCC 12, refd to. [para. 115].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 115].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 115].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 130].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167, refd to. [para. 133].

A. v. B. (2013), 439 N.R. 1; 354 D.L.R.(4th) 191; 2013 SCC 5, refd to. [para. 133].

Quebec (Attorney General) v. A. - see A. v. B.

Seidman v. College of Physicians and Surgeons (Ont.) (2003), 179 O.A.C. 391 (Div. Ct.), refd to. [para. 145].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 145].

Devgan v. College of Physicians and Surgeons (Ont.) (2005), 193 O.A.C. 357 (Div. Ct.), refd to. [para. 145].

Mussani v. College of Physicians and Surgeons (Ont.) (2004), 193 O.A.C. 23; 74 O.R.(3d) 1 (C.A.), refd to. [para. 145].

Statutes Noticed:

Medicine Act Regulations (Ont.), General Regulation, O. Reg. 114/94, sect. 6(2) [para. 94].

Counsel:

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.

This appeal was heard on May 9 and 10, 2013, before Harvison Young, Leitch and Lederer, JJ., of the Ontario Divisional Court. The following decision was delivered for the court by Harvison Young, J., on October 16, 2013.