January 31, 2019
by Josh Koziebrocki, LLB, BA (Hons)
Over the past ten years, dentist Dr. Michael Zuk has been involved in legal proceedings with his professional regulator, the Alberta Dental Association and College (ADA&C). Rather than taking issue with the quality of his work and his conduct within the dental office, the ADA&C focused on Dr. Zuk’s public statements and advertisements. Maintaining professional standards beyond the dental office has implications for dentists across Canada.
Between late 2007 and late 2014, Dr. Zuk made a number of public statements and authorized advertisements that related to his practice, the profession of dentistry as a whole, and the ADA&C. He also published a book in 2010, Confessions of a Former Cosmetic Dentist, which included statements about dentistry. Dr. Zuk’s statements included the following:
As the ADA&C gradually became aware of these statements, a concern was raised that Dr. Zuk’s comments had the potential to harm the integrity of the dental profession. The ADA&C contacted Dr. Zuk in November 2007. He signed an undertaking the following month in which he agreed to “make the necessary changes to the content of [his] radio and internet advertisement in future years to ensure that the advertisements comply with the Code of Ethics.”
Following the discovery of more statements in April 2008, the ADA&C launched a formal investigation in July 2008. Between 2010 and 2015, members of the dental profession and the Alberta Dental Society made four more complaints against Dr. Zuk, all in regards to his advertising and public statements. The ADA&C referred all five complaints against Dr. Zuk to a discipline hearing, which took place in August 2015.
The Hearing Tribunal found Dr. Zuk guilty of 21 allegations related to (1) making advertisements that breached rules of the Alberta Dental Association Code of Ethics, and (2) Dr. Zuk’s conduct during the investigation. The Hearing Tribunal imposed a one-year suspension of Dr. Zuk’s certificate of registration and ordered him to pay costs for the proceedings. Dr. Zuk appealed the decision and appeared before the Appeal Panel of the Council of the ADA&C in November 2016. The Appeal Panel dismissed the appeal and ordered Dr. Zuk to pay further costs, for a total of $226,761.31.
Dr. Zuk appealed to the Alberta Court of Appeal, which in August 2018 found that the Hearing Tribunal had been justified in finding guilt on 19 counts. The Court of Appeal overturned two findings of guilt that did not directly relate to Dr. Zuk’s statements, and sent the case back to the Hearing Tribunal to reconsider the penalty and costs. The Hearing Tribunal has yet to release a decision. In September 2018, Dr. Zuk announced that he was considering an appeal to the Supreme Court of Canada.
Throughout the regulatory process, Dr. Zuk argued that his comments were opinions and political statements rather than advertisements, which he believed should not be subject to College oversight. The Hearing Tribunal and Court of Appeal disagreed with Dr. Zuk, finding that publications are considered advertisements or promotional materials when they intend to (a) impart information to patients, or (b) promote a dentist. The Hearing Tribunal found that Dr. Zuk’s statements were meant to criticize and expose the dental profession, and promote his own dental skills and practice. The Court found this to be a reasonable conclusion.
Dr. Zuk argued that his comments were protected by his right to free expression. The Court rejected this, noting that there are some limits on dentists’ freedom of speech and expression:
While ADA+C is expected to put up with some criticism by its regulated members, as noted in Doré, Dr. Zuk’s statements are outside the realm of those expectations. Dr. Zuk did not engage in reasoned criticism or express opinions, but rather made factual allegations in paid advertisements impugning his peers and ADA+C. These allegations contravened provisions of the Code that Dr. Zuk was bound by, and were systematic in nature.
According to the Court of Appeal, Dr. Zuk’s tone and language, specifically his repeated use of the phrase “Veneer Nazis”, went far beyond the type of criticism that a Dental College should be expected to tolerate. Further, the Court found that Dr. Zuk clearly and repeatedly identified himself as a dentist while making his comments. He also identified himself as a former ADA&C Council member. Based on the way Dr. Zuk presented himself and his previous involvement with the ADA&C, the Court found that the public would likely consider his statements to be facts and insider knowledge rather than opinions.
In determining how to address Dr. Zuk’s conduct, the Court balanced (1) his right to criticize the dental profession and its members against (2) the overall reputation and integrity of the profession. The Court found that Dr. Zuk had made serious allegations without providing factual evidence, and his comments presented more harm than good to the public interest.
While there was no specific evidence that Dr. Zuk’s comments caused members of the public to think less of the dental profession, the Court found that such evidence is not required for a finding of professional misconduct related to advertising. The Court also found that the potential harm was sufficiently serious, and concluded that sanctioning Dr. Zuk was necessary to maintain the reputation of the dental profession.
Although Dr. Zuk’s case is governed by the laws of Alberta, Dental Colleges across Canada each have their own professional standards regarding advertising. In 1990, the Supreme Court of Canada set an important precedent with the case of Rocket v. Royal College of Dental Surgeons of Ontario. The Supreme Court found that dentists must maintain a high standard of professionalism, not commercialism, in their advertising. It also found that dentists cannot use the public’s lack of knowledge about the dental profession to gain an unfair business advantage.
The Dr. Zuk case reinforces that dentists should carefully consider how their advertisements and public statements may be interpreted by members of the public. Dentists who intend to advertise, use social media, or make any public statements should consult their province’s laws and policies, and should seek legal counsel if there are any concerns.
About the Author
Josh Koziebrocki, LLB, BA (Hons), is the principal lawyer and founder of Koziebrocki Law. He represents numerous dentists and has extensive experience dealing with regulatory issues. He can be reached at 416-925-5445 firstname.lastname@example.org | www.koziebrockilaw.com
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