Case information

Charter of Rights — Freedom of expression — Disciplinary council of professional order finding member guilty of breaches of code of ethics in relation to obligations for advertising and dismissing member’s motion arguing that section in question is unconstitutional and of no force or effect — Professions Tribunal dismissing member’s appeal — Superior Court dismissing application for judicial review and for declaration that section is invalid, inapplicable and of no force or effect — Court of Appeal dismissing application for leave to appeal and motion for correction — Whether message in pages of magazine in question must be regarded as advertising or as information — Factors to be taken into account in distinguishing information from advertising — Approach to justifying limits on infringement of freedom of expression in context of legislation governing professionals and application of Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232 — Whether proposed justifications are as result acceptable within meaning of R. v. Oakes, [1986] 1 S.C.R. 103 — Code of ethics of hearing aid acousticians, CQLR, c. A 33, r. 3, s. 5.08.

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The applicant, Mr. Cousineau, is a hearing aid acoustician. He is also the publisher of a magazine that contains general information about hearing health. Certain issues of the magazine that were distributed in 2012 included articles promoting brands or models of hearing aids offered by five different manufacturers, which had to pay $25,000 each to publish articles in the magazine. The Syndic of the Ordre des audioprothésistes du Québec (“Order”) filed a complaint against Mr. Cousineau, accusing him of breaches of s. 5.08 of the Code of ethics of hearing-aid acousticians, which concerns ethical obligations of members in relation to advertising. The Order’s disciplinary council found Mr. Cousineau guilty as charged and dismissed a motion in which he argued that s. 5.08 was unconstitutional and of no force or effect. The Professions Tribunal dismissed Mr. Cousineau’s appeal with respect both to his guilt and to his constitutional argument. The Superior Court dismissed his application for judicial review. The Court of Appeal dismissed an application for leave to appeal and a motion for correction.