A Useful Decision from the Ontario Supreme Court

Yazdanfar v. College of Physicians & Surgeons of Ontario 2013 ONSC 6420 (CanLii) is a useful decision that considers many issues.  The case was lengthy taking up over 68 days of hearing and considered allegations of professional misconduct and incompetence involving over 30 patients.    There were concerns around the physician's advertising of her professional services by using patients' testimonials in addition to the evidence around incompetent practice.  The College investigator gave expert opinion evidence, after interviewing the physician, who was compelled to attend the interview.  The transcript of that interview, was entered into evidence.  The Discipline Committee imposed very strict and severe conditions on the physician's practice that effectively made it difficult for her to practice.  The physician argued, among other things, that there were no written guidelines involving some of the practice concerns in issue.  The Court confirmed the well known principle that standards of practice do not need to be written down and exist by reference to evidence of a common understanding within the profession as to expected behaviour of a reasonable professional….(para 36).  The Court  held that a compelled statement is admissible in the context of a discipline hearing.  This is important because there has been some question about whether the criminal law concept of the right to silence has a place in this regulatory context (para 73).  The Court approved the use of the in house investigator as an expert and noted this was common practice within the regulatory context (para 75).  It further upheld the College's advertising guidelines around the use of testimonials and superlatives noting the vulnerable position of patients in relation to physicians (para 114).  Finally, the Court concluded that even though the imposition of conditions may have been tantamount to a revocation of licence to practice, the more important value was protection of the public.  The penalty was reasonable. (para 164)