Discipline: Restrictions on the use of “doctor” vs. freedom of expression

Some self-regulating professions may prevent their registrants from using the title “Doctor” in a professional capacity, despite a doctorate degree in another field, on the basis that the public may be misled about the extent of their professional training. In Ontario, s. 33(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 goes further, to prevent any use of the title “doctor” in the course of providing “health care”, except as allowed by the Act (e.g., see sections 33(1.1, 1.2, 2 and 2.1)) or by regulations under the Act. The right of an Ontario audiologist to use the title “doctor”, where she had a doctorate degree in audiology, was addressed in Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034.

In that case Ms. Berge, an audiologist with a doctorate degree in audiology, was suspended, reprimanded, subject to other conditions, and ordered to pay costs of $97,595, for her using the title “Doctor” and its abbreviations for several years on her practice website, other website, on her business cards, and on her business sign. [3 and 8] She appealed the decision of the discipline committee of the College of Audiologists and Speech-Language Pathologists of Ontario (the “College”).

On appeal, Ms. Berge argued, among other things, that the prohibition infringed her freedom of expression, guaranteed under s. 2(b) of the Canadian Charter of Rights and Freedoms. (She also advanced various arguments, e.g., based on the absence of a French version of the professional misconduct regulation; that the tribunal lacked jurisdiction without a referral by the College’s inquiry committee (the “ICRC”); and that the tribunal lacked jurisdiction to award costs.)

The court decided that the restriction did not infringe the audiologist’s freedom of expression. [36] The court examined numerous cases involving restrictions on use of the term “Doctor” as an occupational designation, such as College of Physicians and Surgeons of Ontario v. Larsen (1987), 62 O.R. (2d) 545 (Ont.H.C.) (no infringement of s. 2(d) of the Charter); R. v. Baig (1992), 1992 CanLII 2181 (BCCA) (no infringement of s.2(d) of Charter where a psychologist with a Ph.D. in psychology, but not registered in B.C., was restricted from using the title “Doctor”); and a difficult-to-interpret decision of the Supreme Court of Canada in Walker v. Prince Edward Island, [1995] 2 S.C.R. 407 (S.C.C.) [Nfld. & PEIR].

In case it was wrong on the issue of infringement, the court went on to look at whether any infringement of freedom of expression was justifiable. The court recognized that the Health Professions Regulatory Advisory Council recommended, in a 2006 report, that professionals with an earned academic doctoral degree be allowed to use the title “Doctor” provided, among other things, that the doctoral title was in the field in which the person was registered. [54] Indeed, the College itself had made submissions to the Minister in 2009 supporting the recommendation that members with an earned doctorate degree be entitled to use the title “Doctor”. [59] The court concluded, however, that the restriction under s. 33(1) of the Act was justifiable. The restriction did not prevent the appellant from communicating the fact of her having a doctorate degree, e.g., by referring to herself as “Jane Doe, Au.D.”. [72] It further noted that audiologists could use the title “Doctor” in any setting except a clinical setting. [77]

The court rejected the appellant’s other arguments as well. Notably, it found the award of $97,595 in costs was reasonable, as the College’s actual costs were in the range of $260,000. [146].

Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2016 ONSC 7034

Lisa C. Fong and Michael Ng