Law Times

Page 4 November 9, 2015 • Law Times www.lawtimesnews.com Dr. Bernstein in court over the use of his name in advertising BY NEIL ETIENNE Law Times ell-known diet doctor Stanley Bernstein says he'll continue to use his name in his advertising after the Divisional Court's consideration of his judicial review application in regards to the medical regulator's finding that his marketing practices were offside. In its ruling on Oct. 28, the Divisional Court found Bernstein must stand for a previously ordered verbal caution from the College of Physicians and Surgeons of Ontario for contravening certain as- pects of its advertising regulations. But according to his lawyer, Neil Abramson of Torkin Manes LLP, Bernstein will still be able to use his name in his marketing activities despite the court's decision not to hear his argument that his rights under the Charter of Rights and Freedoms had been infringed. "At the end of the day, this is a caution and a caution is not technically a step prohibiting any particular conduct, the implication being that Dr. Bernstein is at liberty to continue to do what he's been doing," says Abramson. "He will con- tinue to advertise these clinics with his name being the face of the business and if there should ever be a challenge to his ability to advertise this way, there will be a response based on it being unconstitu- tional, which hasn't been considered." The application for judicial review followed a decision from the Health Pro- fessions Appeal and Review Board in December 2014 that upheld an order of the college's inquiries, complaints, and reports committee requiring him to at- tend in person for a caution over alleged breaches of advertising rules. The inquiries and complaints com- mittee determined the doctor had violat- ed the regulations after the head of a cor- porate competitor wrote to the college to complain about advertisements around Toronto and on the Internet in late 2012. The committee ruled Bernstein had breached advertising rules by using tes- timonials, before-and-after pictures, and what it described as "superlative" claims of success. Bernstein appealed the ruling to the review board, which also stood by the decision. "That part of the decision requir- ing [Dr. Bernstein] to attend the college in person to be cautioned for his use of testimonials, comparatives, and superla- tives in his advertising is confirmed," the board wrote in its decision. A key issue in the case was whether Bernstein, who operates a large network of diet clinics, is offering direct medical services to patients. Abramson argued the board's determination that he was in breach of the regulations by using his name and image was unreasonable because he is in fact advertising medi- cal services as the regulations allow. He argued the committee's finding that he could only be providing medical services if he was in a direct therapeutic relation- ship with the patients who attend the clinics was unreasonable. "In the instant case, the [committee]'s narrow interpretation of 'medical servic- es' unduly restricts Dr. Bernstein's right to associate his name and image with his medical services," Abramson wrote in the appeal. "The board failed to appre- ciate Dr. Bernstein's careful control and supervision over the administration of the Dr. Bernstein Diet at each of the Dr. Bernstein Clinics. This conduct clearly amounts to the provision of 'medical ser- vices' to the public in compliance with section 6(4) of the Advertising Regula- tion." At the Divisional Court, Bernstein sought to quash the board's decision and grant his appeal to dismiss the complaint and the order for a verbal caution. "If left undisturbed, the [committee's] decision would suggest that the Dr. Ber- nstein Clinics must either change their name or cease to operate," Abramson wrote in the appeal. In light of the latest ruling, Abramson says Bernstein will tweak his advertising to remove the testimonials and before- and-after photos but he notes his client is happy the use of his name and image as the face of the clinics will continue. For its part, the college is emphasiz- ing the court's rejection of Bernstein's judicial review application. "The court dismissed Dr. Bernstein's application for judicial review, including his constitu- tional challenge," it said in a statement on the matter. "The court would not deal with the constitutional issues because Dr. Ber- nstein had failed to raise them below. In making its determination, the court emphasized the importance of raising constitutional issues before the decision- making body of first instance, where they can be considered in the whole factual context, and the administrative body or tribunal can consider in particular the reasons for any limits on Charter rights created by a regulatory scheme." While Bernstein raised several consti- tutional issues, intellectual property law- yer Taras Kulish of Steinberg Title Hope & Israel LLP says that when it comes to advertising and trademark law, freedom of expression isn't an absolute right. "You can say it's my freedom of ex- pression, but there are limits to freedom of expression and, of course, community standards are always evolving," says Kul- ish. "Generally, a freedom of expression argument is not an absolute shield or sword. There is a balancing that goes on." That balance, he says, is particularly important in professions such as law, medicine or engineering that have regu- lators to govern their members' conduct. Someone trying to trademark a brand us- ing the word "engineering," for example, would find it almost impossible to do so because Engineers Canada, the national regulator, would systematically oppose the mark, he notes. "If you want to join this [professional] society, whether it be engineers or doc- tors, there are limits on your freedom of expression," says Kulish. Abramson says the finding that the doctor still needs to stand for his verbal caution is acceptable given that he can continue to use his name in his advertis- ing with some tweaking to the existing materials. "The inference to be drawn from that is it's not binding, it's not determinative, and in the circumstances, one can be as- sured he will indeed continue to adver- tise as he has been in terms of calling it the Dr. Bernstein clinics." 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