Testimonial Trespasses

Many regulators prohibit the use of testimonials because they may be inherently unverifiable and, thus, misleading. In addition, the process of gathering testimonials tests the propriety of the practitioner-client relationship. In Edmison v Health Professions Appeal and Review Board, 2017 ONSC 3664, a physician challenged a caution imposed for his clinic’s advertising that contained testimonials. He argued that the postings were not really testimonials because they did not say positive things about him personally, just about the procedure that the clinic performed. He argued that the provision had to be the interpreted as it was understood by the profession. He also argued that the complainant’s motivation in making the complaint should be taken into account. The Divisional Court rejected both arguments and upheld the reasonableness of the Committee’s conclusion. The Court said:

The testimonials in Focus’ advertising were not rendered in a vacuum. They were inextricably linked to Focus [the clinic co-owned by the physician] and its services. Viewed through the eyes of the public, a common sense inference would link the testimonials to Focus, and not merely laser eye surgery procedure in general.

The Court reinforced the point made recently in Green v. Law Society of Manitoba, 2017 SCC 20 that deference will be given to regulators when interpreting their own legislation.

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