TORONTO — One of Canada's major players in the weight-loss industry heads to court Wednesday in an effort to stop regulators from considering a complaint against him.
At issue is a "steering" complaint against Dr. Stanley Bernstein — essentially that he draws people in, then passes them on to doctors in his clinics.
In July 2013, a committee of Ontario's College of Physicians and Surgeons found Bernstein had violated advertising rules by making numerous unsubstantiated claims. The inquiries, complaints and reports committee ruled the breach warranted a formal caution.
However, the committee declined to rule on the steering complaint by Toronto lawyer Peter Rosenthal, saying there was no precedent by which to come to a judgment.
Bernstein protested the advertising finding to the health professions appeal and review board, while Rosenthal appealed the steering complaint decision.
The appeal and review board upheld the advertising ruling — which Bernstein failed to have the courts overturn — but ordered the committee to consider the steering complaint.
Bernstein is now asking Divisional Court to block the steering order review.
"The board's decision to remit the steering issue back to the (committee) was unreasonable," Bernstein says in his factum. "The (committee) was clearly of the view that...it was incapable of resolving the issue."
The appeal board, Bernstein argues, should have deferred to the committee's decision.
For his part, Rosenthal argues the appeal board was right to send the matter back to the committee. He maintains Bernstein's operation is underpinned by steering, a breach even more important than the advertising problems, he says.
The committee, the Toronto lawyer says, was wrong to wash its hands of the steering issue and the appeal board was right to send it back.
"Using the lack of previous interpretations of a regulation as a basis for declining to consider its applicability to a specific complaint has the effect of nullifying the regulation," Rosenthal says. "There must be a first case if there are to be any at all."
Bernstein, who is known for his weight-loss regimen called the "Dr. Bernstein Diet," set up 62 clinics across the country. He has previously argued the board's decision would have a "devastating impact" on his business.
The appeal board, in its materials, argues the committee failed in its duties by refusing to consider the steering complaint.
"A regulator cannot simply decline regulation on the ground that interpretation of the section creating the offence is a matter of first instance," the board says. "This would denude novel enactments of any force."
In its earlier findings, the complaints committee warned Bernstein about using testimonials, comparatives, and superlatives in his advertising.
Among other things, Bernstein claimed to have helped "hundreds of thousands of people lose millions of pounds of excess weight and keep it off for life," something the committee and board said strained credulity and was not supported by objective scientific proof.
