Practitioners are entitled to criticize their regulators and colleagues, to a point. However, when the tone and content of the criticism undermines the integrity of the regulatory process or brings the profession into disrepute, it crosses the line. That is what the Alberta Court of Appeal concluded in Zuk v Alberta Dental Association and College, 2018 ABCA 270, http://canlii.ca/t/htl8m.
Dr. Zuk, a general dentist, made numerous statements online, to traditional media and in a book alleging that orthodontic specialists and the regulator were, in effect, conspiring to prevent him and other general dentists from providing certain beneficial services to the public. The tone and language of some of the statements were disrespectful (e.g., “veneer Nazis”). The Court of Appeal upheld the discipline finding was reasonable. The Court found that the statements could be viewed as advertisements in the broad sense of the term and that Dr. Zuk’s freedom of expression was not infringed by the decision (applying the Doré analysis). It was not necessary for the regulator to establish harm to the public in order to make this finding of misconduct.
The Court also upheld a finding that Dr. Zuk had threatened the regulator by demanding it withdraw the complaints within seven days or face counter-complaints and a messy process.
However, the Court set aside as unreasonable the findings that Dr. Zuk had breached a historic undertaking that did not clearly and unambiguously cover the conduct in issue. Despite the fact that the disciplinary tribunal had otherwise handled the issue of sanction well (including considering mitigating factors), the one year suspension and $175,000 costs award was set aside because the reversed breach of undertaking finding was significant to those conclusions.
On the matter of crossing the line, the regulator was assisted somewhat by its attempts to communicate with Dr. Zuk on the issue before commencing disciplinary action.