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Non-Solicitation Provisions: Professional and Legal Obligations

By October 25, 2011July 2nd, 2021Employment Law

You know, I’ve written a lot about non-solicitation clauses in the context of associate agreements.  The basic idea is that dentists may want to protect their business by preventing other dentists from soliciting their patients, employees, and referral sources.  So they enter into these agreements called non-solicitation agreements.  Alternatively, they enter into agreements with non-solicitation provisions within them.

Now, the thing to keep in mind is that these NON-SOLICIT obligations are arising within the context of a private contract.  If that contract is broken, then the injured dentist may sue for breach of contract.  And the courts have said a lot of things about enforcing non-solicit provisions in the employment and non-employment context.

But, beyond a breach of contract, there are also PROFESSIONAL obligations imposed on dentists when it comes to non-solicitation of patients.  Specifically, section 2, paragraph 47 of the Professional Misconduct, O. Reg. 853/93 says that the following act constitutes professional misconduct:

“Contacting or communicating with, or causing or permitting any person to contact or communicate with, potential patients, either in person or by telephone, for the purpose of soliciting patients.”

Furthermore, section 6(c) of the Professional Misconduct regulations says that, when an associate and a principal cease to engage in practice with each other, EXCEPT as otherwise agreed in writing, the associate  “shall not solicit or cause or permit the solicitation of the principal member’s patients”.  Now, this does not include sending a letter announcing the commencement or change in location of the associate’s practice to patients treated by the associate, provided that the announcement contains only information that is reasonably necessary to enable a patient to determine the location and nature of the practice of the associate.

Now, the key thing to remember is that the prohibitions found under the Professional Misconduct Regulations can lead to an administrative hearing and discipline under the Health Professions Procedural Code.  This means that there must generally be a compliant, investigation, hearing, and decision by the Royal College of Dental Surgeons concerning allegations of misconduct.   The Royal College may, if misconduct is found, revoke/suspend the dentist’s certificate of registration, reprimand the dentist, or impose a fine

Now, after speaking briefly with the Royal College of Dental Surgeons, it turns out that there have been few (if any) cases of dentists being found guilty of professional misconduct for breaching the non-solicitation provisions under the Professional Misconduct Regulations.  I’m sure the College points out to complaining dentists that a breach of a non-solicitation clause is probably the better avenue to pursue to protect a complainant’s legal rights (as the College is primarily charged with protecting the public, not complaining dentists).

So there you have it: there are two different contexts in which non-solicitation provisions rear their head – (1) breach of contract and (2) professional misconduct.

DMC