February 11, 2013

Advertising restrictions and Charter scrutiny

Administrative Law
Inquiry and Investigations
Professional Regulation

Professional regulatory bodies often regulate registrants’ business practices, at least in how they advertise services and solicit clients. But regulatory bodies need to be cognizant of the Charter when they enact and enforce such restrictions. Advertising limits, for example, will likely infringe freedom of expression, and must be justified if a legal challenge brings the limit under Charter scrutiny.

In a recent webinar we co-presented with Lovett & Westmacott, we addressed how professional regulation interfaces with human rights and the Charter.

  • We discussed Rocket v. Royal College of Dental Surgeons (Ontario), [1990] 2 S.C.R. 232, where a college absolutely restricted dentists from advertising, except as regulations expressly and narrowly permitted. The bans on usual and acceptable forms of advertising, as well as significant restrictions on the content of the advertising, infringed freedom of expression, and the college was unable to justify them.
  • We also addressed Griffin v. College of Dental Surgeons of British Columbia (1989), 64 D.L.R. (4th) 652 (B.C.C.A.), where the BC Court of Appeal upheld advertising restrictions crafted to target misleading advertising, and maintain an appropriate standard of competencies and ethics.

These cases affirm the role of professional bodies in prohibiting misleading advertising and promoting professionalism, but also caution against broad restrictions that go beyond legitimate objectives or are disproportionately burdensome.

In this blog entry, we address two more recent cases that illustrate instances of professional regulators having to justify their advertising limits – successfully in one case but unsuccessfully in another.

An over-broad advertising limit: A regulator was unable to show a banned form of advertising as inherently misleading or unprofessional in Assie v. Institute of Chartered Accountants (Saskatchewan), 2001 SKQB 396, 38 Admin L.R. (3d) 296 (Sask QB). In that case an accountant, Mr. Assie, sent a letter to dentists in the Saskatoon area, proposing that he identify opportunities for growth and ways to improve profit­ability for a fixed fee of $3,000 per study plus travel expenses. One dentist – a client of another accountant – complained the letter violated certain bylaws of the Institute.

Assie successfully challenged the bylaws prohibiting unsolicited fee quotations (214), quotes made without adequate information about an assignment (214) and any solicitation of a professional engagement entrusted to another member (301.2). These bylaws infringed his freedom of expression.

The regulator’s problem in justifying these bylaws was that another bylaw (217.1) already prohibited fee quotations that were false or misleading, as well as solicitations contravening professional good taste or making “unfavourable reflections” on the competence or integrity of another member. [37] Assie’s practices were not shown to be inherently unprofessional, misleading or confusing. [37]

Given the prohibitions already provided for under bylaw 217.1, the other two bylaws (214 and 301.2) went beyond protecting consumers, and seemed based on competition between members being “unseemly”. But the court concluded limitations on marketing could not be justified solely on the basis of preventing competition. Bylaw 217.1 addressed the factors that made competition “unseemly”, making Bylaws 214 and 301.2 broader than was needed to maintain professional standards and prevent potential clients from being misled.

A limit banning patient testimonials justified: A more recent instance of a college having to justify an advertising limit – successfully in that case – is illustrated in a Discipline Committee decision in Yazdanfar (Re) [2011] O.C.P.S.D. No. 9 (College of Physicians and Surgeons of Ontario). In that case, a physician’s website included patient testimonials, and used superlatives within and without testimonials. But a regulation prohibited members from communicating information that “contains a testimonial or any comparative or superlative statements” (under section 6(2)(b) of Ontario Regulation 114/94, under the Medicine Act, 1991, S.O. 1991, c.30).

Dr. Yazdanfar challenged section 6(2)(b) as infringing her freedom of expression, but the Discipline Committee, applying the Oakes test, found the limitation demonstrably justified:

1. The measure was rationally connected to the objective of protecting the public from irresponsible and misleading advertising. The use of testimonials and superlatives put the physician in the position of using the patient for the doctor’s own financial gain; the use of only positive testimonials was misleading; and the testimonials and superlatives were subjective opinions which could not be objectively verified.

2. The categorical ban on testimonials minimally impaired the registrant’s freedom of expression, due to the misleading and unverifiable nature of testimonials. The ban did not prevent the registrant from otherwise advertising her services through such media as radio, TV, and the Internet.

3. The limit was proportional to its serious objectives. Testimonials are incomplete (i.e., they give little information about long term consequences or suboptimal results), and are primarily designed as a sales promotion tool that can “influence members of the public to seek medical services to their physical, psychological and/or financial detriment. They focus only on the benefits and are inherently misleading.” The Committee noted the principle in Irwin Toy Ltd. V. Québec (Attorney- General), 1989 1 S.C.R. 92, that when advertisements are targeted to vulnerable individuals, and legislation has been recognized to protect a vulnerable group, substantial latitude and deference should be given to the compromise made by legislation.

Rocket v. Royal College of Dental Surgeons (Ontario), [1990] 2 S.C.R. 232

Griffin v. College of Dental Surgeons of British Columbia (1989), 64 D.L.R. (4th) 652 (B.C.C.A.)

Assie v. Institute of Chartered Accountants (Saskatchewan), 2001 SKQB 396, 38 Admin L.R. (3d) 296 (Sask.Q.B.)

Yazdanfar (Re) [2011] O.C.P.S.D. No. 9 (College of Physicians and Surgeons of Ontario)

Benjamin Ralston and Michael Ng