Ontario (College of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario) v Stewart, 2017 ONCTCMPAO 15

DISCIPLINE COMMITTEE OF THE COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO

IN THE MATTER OF the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, and the Traditional Chinese Medicine Act, S.O. 2006, c.27

Decision Date: October 19, 2017

Indexed as: Ontario (College of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario) v Stewart, 2017 ONCTCMPAO 15

Panel: Henry Maeots, Chairperson, Public Member Xianmin Yu, Professional Member Barrie Haywood, Public Member

BETWEEN:

THE COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO

-and-

STEVE STEWART Reg. No. 3549

Kelly Hayden for the College Member not Present Aaron Dantowitz, Independent Legal Counsel

Date of Hearing: October 12, 2017

DECISION AND REASONS FOR DECISION

This matter came on for hearing before a panel of the Discipline Committee (the "Panel") on October 12, 2017 at the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the "College").

Steve Stewart (the "Member") was not present, and not represented by counsel, despite having been advised as to, and provided with notice of, the date of the within hearing.

The Allegations

On July 4, 2016, the College issued a Notice of Hearing against the Member (the "Notice"), alleging that the Member had engaged in professional misconduct under the Traditional Chinese Medicine Act, 2006 (the "Act") in that he:

1. Used the term or designation that implied a specialization in an area of practice not authorized by the College contrary to Section 1(33) of the Ontario Regulation 318/12;
2. Contravened by act or omission, a law which has as its purpose the protection and promotion of public health, namely the Veterinarians Act, R.S.O. 1990 c. V.#, the contravention of which is relevant to your suitability to practice;
3. Engaged in conduct or performed an act relevant to the practice of the profession which having regard to all the circumstances would reasonably regarded by a member as disgraceful, dishonourable or unprofessional, contrary to Section 1(48) of Ontario Regulation 318/12.

The Motion

The Member was not present and did not enter a plea to the allegations at this hearing. Rather, the College brought a motion to stay the proceedings on the basis of an Undertaking and Surrender Agreement signed by the Member on April 30, 2017 (the "Agreement").

In the Agreement, the Member indicated he wished to surrender his Certificate of Registration and to forever withdraw from the practice of traditional Chinese medicine and acupuncture in the province of Ontario, or elsewhere in Canada in order to avoid having the allegations in the Notice of Hearing considered by the Discipline Committee in a full and open hearing.

In consideration of the College's agreement to stay the proceedings at this time, the Member agreed to:

1. To surrender his Certificate of Registration to the College by no later than April 14, 2017;
2. To refrain now, and in the future, from practicing and/or holding himself out as a traditional Chinese medicine practitioner or acupuncturist or any variation thereof, anywhere in the Province of Ontario or elsewhere in Canada;
3. To refrain now, and in the future, from applying for the reinstatement of his Certificate of Registration with the College, or from applying for registration with any other licensing body governing the practice of traditional Chinese medicine or acupuncture on humans in the Province of Ontario or elsewhere in Canada;
4. To refrain now, and in the future, from using the restricted titles "acupuncturist" or "traditional Chinese medicine practitioner", or any variation or abbreviation thereof contrary to s. 8(1) of the Traditional Chinese Medicine Act, 2006, S.O. 2006, c. 27;
5. To refrain from practicing or offering to practice complementary and alternative medicine on animals unless and until he is acting under the direction, supervision and/or delegation of a licensed veterinarian in accordance with all applicable legislation including, the Veterinarians Act, R.S.O. 1990, c. V.3 and all relevant policies and position statements of the College of Veterinarians of Ontario, including the Position Statement of Complementary and Alternative Veterinary Medicine dated November, 2015; and
6. To contribute the amount of $750.00 to partially offset the College's overall costs of investigation and prosecution of this matter within 30 days of executing the Agreement.

In the Agreement, the Member further indicated that he understands and agrees to additional terms and conditions, including the following:

• Should the College receive information that the Member has failed to abide by any of the terms of the Agreement, the College may conduct further investigations into the Member's practice, and/or reactivate these stayed proceedings, and/or refer the Member to another panel of the Inquiries, Complaints and Reports Committee and/or the Discipline Committee in respect of allegations of professional misconduct or incompetence arising out of:
  • the Member's failure to abide by any of the terms of the Agreement and/or
  • the conduct forming the subject of the Inquiries, Complaints and Reports Committee's investigation referred to in the Agreement.
• That in the event that the current proceedings are reactivated by the Inquiries, Complaints and Reports Committee, and/or further proceedings are referred to the Discipline Committee by the Inquiries, Complaints and Reports Committee, in accordance with the immediately preceding paragraph, this signed Undertaking and Surrender Agreement, or a true copy duly certified as such by the Registrar of the College, may be used as evidence and filed as an exhibit before a duly constituted panel of the Discipline Committee.
• The terms of the Agreement along with the Member's name and the particulars of the terms of the Agreement will be published in the College's routine publications, including on the College's website, and that the Agreement will form part of the Member's history with the College and may be referred to in any future investigation or proceeding.

Decision

Having considered the materials filed and the submissions of College counsel, the panel finds that it is in the public interest to grant the relief requested. The panel orders that the allegations of professional misconduct against the Member set out in the Notice of Hearing dated July 4, 2016 are stayed in accordance with the terms set out in the Undertaking and Surrender Agreement signed by the Member on April 30, 2017.

Reasons for Decision

The Panel recognized that its decision should be in the public interest. Although the allegations against the Member will not be adjudicated by the Discipline Committee at this time, the Panel finds that the public is protected by the terms of the stay that the Member has voluntarily agreed to. In light of the agreement of the parties to resolve the matter without a hearing, the Panel agrees that it would not be in the public interest to require a hearing of the allegations. The public is protected by the terms of the Agreement and the transparency of this process.

The Member has cooperated with the College and the Panel is satisfied the scope of undertaking by the Member is appropriate. Granting a stay is consistent with the public interest given the allegations that the member was facing in this particular matter. While the Panel recognizes that it does not have the authority to make an order affecting the Member's certificate of registration in any jurisdiction other than Ontario, nothing prevents the Member from making an agreement with the College regarding his practice in other jurisdictions.