Ontario (College of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario) v Xu, 2020 ONCTCMPAO 12 — College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario | minicounsel

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

Decision Date:

July 23, 2020

Indexed as:

Ontario (College of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario) v Xu, 2020 ONCTCMPAO 12

Panel:

Richard Dong

Chairperson, Professional Member

Deborah Sinnatamby

Public Member

Pixing Xhang

Public Member

BETWEEN:

THE COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO

-and-

HOWARD XU

Reg. No. 1208

Jaan Lilles for the College

Rebecca Young for the Member Howard Xu

Aaron Dantowitz

Independent Legal Counsel

Date of Hearing: July 23, 2020

DECISION AND REASONS FOR DECISION

1This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Traditional Chinese Medicine Practitioners and Acupuncturists (the “College”), on July 23, 2020, via videoconference.

Publication Ban

2In the course of the hearing, the parties jointly requested a ban on the publication of the identities of the individuals listed in Appendix A to the Agreed Statement of Facts described below. The panel was satisfied that the criteria under s. 45(3) of the Health Professions Procedural Code were met, and therefore made an order prohibiting the publication of the identities of the individuals listed in Appendix A to the Agreed Statement of Facts, and of information that could tend to identify those individuals.

The Allegations

3The allegations set out in Statement of Specified Allegations appended to the Notice of Hearing dated February 4, 2019 are as follows:

Signing or Issuing False and Misleading Documents

Howard Xu (the “Member”) is the President and directing mind of the Canadian Academy of RTCMP and RAC (“CARR”). Since 2015 CARR advertised to members of the profession assistance with the College’s Prior Learning Assessment and Recognition (“PLAR”) process for transfer from the grandparent to the general class.
CARR advertised that it offered “Case Study Assessment” classes and an “Academic Review Course”.
Between 2015 and July, 2017 CARR issued over 80 “diplomas” and “transcripts” to members for the purported completion of the Academic Review Course. The transcripts issued stated that the member had completed variously between approximately 700-1200 hours of study. CARR charged members up to $9000.00 for the diploma and transcript.
The diplomas and transcripts issued by CARR were false and misleading. None of the members completed the hours of study indicated in the transcripts.
The diplomas and transcripts were issued in exchange for the payment of funds.
The Member knew and intended that each transcript and diploma issued would be relied on by the College during the registration process.
The Member issued false T2202A Tax Receipts to each member which also claimed the members had completed the specified number of hours of study.
It is alleged that this conduct constitutes professional misconduct pursuant to s. 51(1)(c) of the Health Procedural Code, being schedule 2 to the Regulated Health Professions Act, 1991, c-18 in that, Mr. Xu:

(a) Signed or issued, in his professional capacity, documents that the member knew or ought to have known contained a false or misleading statement contrary to section 1(26) of Ontario Regulation 318/12;

(b) Engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by the profession as disgraceful, dishonourable or unprofessional contrary to section 1(48) of Ontario Regulation 318/12.

(c) Engaged in conduct that would reasonably be regarded by the profession as conduct unbecoming a practitioner of traditional Chinese medicine or acupuncture contrary to section 1(49) of Ontario Regulation 318/12.

Obstructing a College Investigation and Failing to Cooperate

During the course of the College investigation, the Member was required to provide certain information as specified in a letter dated December 20, 2017, including but not limited to:

(a) Notarized copies of CARR’s 2015, 2016 and 2017 income tax statements and financial statements;

(b) CARR’s bank statements and deposit slips from October 2015 to June 2017;

(d) Payroll information related to CARR’s instructors; and

(e) Financial ledgers and tuition invoices and statements provided to CARR’s students.

Despite repeated requests, the Member refused to provide this information.
During the College investigation, several members who submitted transcripts issued by CARR were contacted by the College for information. The Member advised the members how to respond, and drafted responses on their behalf. These responses contained false and misleading information.
Subsequently these members were requested to participate in an interview with the College. Prior to the interview the Member convened meetings to advise the members how to respond to the College investigators. The Member encouraged the members to provide false and misleading information.
It is alleged that this conduct constitutes professional misconduct pursuant to s. 51(1)(c) of the Health Procedural Code, being schedule 2 to the Regulated Health Professions Act, 1991, c-18 in that, Mr. Xu:

(a) Contravened by act or omission, a provision of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts, contrary to section 1(39) of Ontario Regulation 318/12.

Providing False or Misleading Information in an Application to the College

On or about November 19, 2015, the Member submitted documentation to Professional Testing for the purpose of completing the PLAR Academic Document Review to transfer to the general class.
The information submitted contained transcripts from Shandong University of Traditional Chinese Medicine, China.
Some of the transcripts submitted were not from Shandong University of Traditional Chinese Medicine, China, but were created by the Member. The member did not advise the College that he had created the transcripts.
On or about December 15, 2015, the Member was granted a general class certificate of registration.
In addition, Mr. Xu created one or more false transcripts for other PLAR applicants which were submitted to the College.
It is alleged that this conduct constitutes professional misconduct pursuant to s. 51(1)(c) of the Health Procedural Code, being schedule 2 to the Regulated Health Professions Act, 1991, c-18 in that, Mr. Xu:

Member’s Position

4The Member admitted the allegations in the Notice of Hearing. The panel conducted a plea inquiry and was satisfied that the Member’s admissions were voluntary, informed and unequivocal.

The Evidence

5The evidence was tendered by way of an Agreed Statement of Facts. The Agreed Statement of Facts is reproduced below, without the attachments referred to in the Agreed Statement of Facts.

Overview

The Parties hereby agree that the facts stated in the Agreed Statement of Facts are true, accurate and admissible as evidence before the Panel of the Discipline Committee of the College. With respect to the admissibility of the statements made herein as evidence beyond the Panel, the Member reserves his right to claim protection against self-incrimination under the Canada Evidence Act, R.S.C. 1985, c.C-5, the Ontario Evidence Act, R.S.O. 1990, c.E.23, and the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c.11.
The Member’s admission of facts is limited to the allegations stated in this Agreed Statement of Facts and does not extend to the allegations, if any, made in the attachments.
Howard Zhilong Xu (“Mr. Xu” or the “Member”) became a member of the Grandparent class of the College on April 1, 2013. On or about December 15, 2015, Mx. Xu was granted a general class certificate of registration. His registration number is #1208.
On February 4, 2018, the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Traditional Medicine Practitioners and Acupuncturists of Ontario (the “College”) referred Mr. Xu to the Discipline Committee on the basis that he breached the Regulated Health Professions Act S.O. 1991, c.18 (the “RHPA”), the Traditional Chinese Medicine Act, 2006 S.O. 2006, c.27 (the “TCMA”) and the Health Professions Procedural Code (the “Code”). A copy of the Notice of Hearing is attached at Tab A.
Mr. Xu is the President and directing mind of the Canadian Academy of RTCMP and RAC (“CARR”), with a registered address of 245 Fairview Mall Drive, Suite 402, Toronto, ON M2J 4T1. Mr. Xu was previously also a director and teacher at the Canadian Society of Chinese Medicine and Acupuncture (“CSCMA”) and was experienced in teaching TCM.
Since 2015, CARR advertised to members of the profession that it could provide assistance with the College’s Prior Learning Assessment & Recognition Process (“PLAR”) process for transfer from the grandparent class to the general class. CARR advertised that it offered “Case Study Assessment” classes and an “Academic Review Course”.
As part of its advertising, CARR sent an email to members of the profession on June 5, 2017 in which it reminded Grandparent Members to apply for transfer to the general membership by the deadline in July 2017. It advertised that CARR offers:

(a) an “Academic Document Review Class”, consisting of 750 hours for the RAc designation or 1000 hours for the RTCMP designation;

(b) a “Case Study Assessment” course, consisting of 100 hours;

(d) assistance with submission of the PLAR application, either consisting of 100 hours, or a copy of the email is attached at Tab B.

The College was concerned that it was not possible to complete the advertised hours prior to the deadline for applying to PLAR, which was July 2017. In light of its concerns, the College retained an undercover investigator to make inquiries of Mr. Xu with respect to the course being offered by CARR. Based on the results of the undercover investigation, on July 7, 2017 the College commenced a Registrar’s Investigation under section 75(1)(a) of the Code.
Based on the findings of the investigation, on November 19, 2018, the ICRC imposed an interim order suspending Mr. Xu’s certificate of registration. A copy of the Reasons for Decision are attached at Tab C.

Allegation 1: Signing/Issuing Documents Containing False/Misleading Information

Between 2015 and July, 2017 CARR issued over 80 “diplomas” and “transcripts” to members of the profession for the purported completion of the Academic Review Course. The transcripts issued stated that the member had completed variously between approximately 700-1200 hours of study. CARR charged members from $1,000 up to $9,000.00 to for the Academic Review Course and to assist with PLAR application submission.
CARR offered its classes in person at the school and online. CARR did not have a mechanism to keep track of the student members’ attendance of classes, and depends on its students to attend classes and self-report. Furthermore, many of CARR’s Grandparent Member students were previously members of CSCMA, which offered its members lectures, seminars, and short programs as continued education of various diagnosis and treatment skills in TCM.
Mr. Xu admits that a significant number of the diplomas and transcripts issued by CARR to the individuals listed in Appendix A were false and misleading. The members did not complete the courses and hours of study as indicated in the transcripts:

(a) The documents indicated that the individual had attended classes at CARR which the individuals did not attend as described;

(b) The documents indicated that the individuals completed hours of instruction at CARR which were not completed as described;

(c) The documents indicated that the individual received clinical supervision, which was false as no clinical supervision was carried out.

Mr. Xu failed to ensure that the diplomas issued were accurate before issuing them and maintained no records to substantiate the accuracy of the diplomas and transcripts.
The diplomas and transcripts were issued in exchange for the payment of funds.
Mr. Xu knew and intended that each transcript and diploma issued would be relied on by the College during the registration process. In some cases, Mr. Xu himself submitted the documents to Professional Testing, the organization retained by the College to administer the PLAR process, on behalf of the applicants.
Mr. Xu also issued false T2202A Tax Receipts to members which also claimed the members had completed the specified number of hours of study.
The following are examples of Mr. Xu’s impugned conduct:

(a) Shanna Yee

(i) Ms. Shanna Yee, of Barker Hutchinson and Associates, attended at the offices of CARR in June 2017 and spoke with Mr. Xu. Over the course of those attendances Mr. Xu advised Ms. Yee that she was not required to actually attend any courses but that if she completed a set of tests, he would issue her a diploma and transcript. The cost for obtaining the transcript and diploma was $7,000.00 (plus HST), which Ms. Yee paid.

(ii) Ms. Yee completed the tests and returned them to Mr. Xu. On June 23, 2017 Mr. Xu issued a transcript and diploma to Ms. Yee. The transcript indicates that Ms. Yee had attended courses from January, 2016 to May, 2017, for a total of 980 hours of instruction. The transcript and diploma were dated May, 2017. However, Ms. Yee did not attend any lectures or courses through CARR.

(iii) Mr. Xu then submitted the documents to Professional Testing, the organization retained by the College to administer the PLAR process, on behalf of Ms. Yee.

(iv) Mr. Xu also issued Ms. Yee a T2202A which indicated that she had paid $7,910.00 in tuition and received 750 hours of instruction from January 2016 to May 2017.

(b) [Individual A]

(i) [Individual A] was interviewed by the College as part of its investigation. [Individual A] confirmed during her interview that she had simply purchased a diploma and transcript from Mr. Xu, and did not take the classes as stated on the documents. [Individual A] advised that she had extensive training in Traditional Chinese Medicine in China but had been unable to obtain the appropriate paperwork. As a consequence, Mr. Xu advised her he could provide her with the necessary documentation to transfer to the general class. A copy of [Individual A]’s transcript is attached at Tab D.

(i) [Individual B] was interviewed by the College as part of its investigation. [Individual B] admitted during his interview that Mr. Xu assisted him to falsify registration documents. Specifically, he advised the investigator that he attended CARR in 2017 and told Mr. Xu that he had been educated in China and practiced TCM for 50 years. He provided Mr. Xu with a cheque for $8,000. Mr. Xu provided [Individual B] with examinations to complete at home, which he did. After returning the examinations to CARR, Mr. Xu provided [Individual B] with a diploma and transcript from CARR which falsely claims that [Individual B] completed 1140 hours of study at CARR between October 2015 and November 2016. However, [Individual B] never attended any classes at CARR. [Individual B] swore an affidavit which is attached at Tab E.

(d) [Individual C]

(i) [Individual C] contacted Mr. Xu on January 5, 2017, in response to a CARR advertisement and indicated “Could you let me know how much and day and time of the class because i am interested Thank you so much.” Despite that [Individual C] was issued a transcript which indicated that he had attended 1120 hours of instruction from October 2015 to March, 2017.

In addition to the above, on or about November 19, 2015, Mr. Xu submitted documentation to Professional Testing for the purpose of completing the PLAR Academic Document Review to transfer to the general class.
The information submitted continued transcripts from Shandong University of Traditional Chinese Medicine, China (attached at Tab F).
The transcripts submitted did not originate from Shandong University, but were reformatted by Mr. Xu and approved by the Shandong University. The China Higher Education Information and Career Centre (CHESICC) certified Mr. Xu’s credentials and issued a “Verification Report of China Higher Education Student’s Academic Transcript” on December 21, 2019 (attached at Tab G). Mr. Xu’s credentials were later verified on April 1, 2020 by the World Education System of Canada (WES) (attached at Tab H). The diploma was also verified on February 26, 2020 by WES (attached at Tab I). Mr. Xu did not advise the College that he had reformatted the transcripts.
On or about December 15, 2015, Mx. Xu was granted a general class certificate of registration, based in part on the above transcripts.
In addition, Mr. Xu provided the template he created for transcripts to other students who submitted them to the College with their PLAR registration packages.
Finally, Mr. Xu also provided two misleading transcripts to the PLAR Applicants in the name of the Shandong University of Traditional Chinese Medicine, Canada Campus, for courses held from September 1988 to June 2002. These transcripts were misleading in that they may not have accurately reflected the actual hours of course work. Courses were held at Shandong University four times a week, 3-4 hours per class, from September 1998 to June 2002. This equates to approximately 500 hours of course work per year. However, there was no attendance record for each class and Mr. Xu did not verify how many hours were completed for each student 18 years ago. At the time, the PLAR system and the College was also not in place and no requirements for keeping track of course hours. The format of the transcripts that were submitted to PLAR was created for the purpose of the Applicant’s PLAR Submissions. These two transcripts which were submitted to the College, are attached at Tab J.

Allegation 2: Contravened a Provision of the Code

During the College investigation, several members who submitted transcripts issued by CARR were contacted by the College for information. The investigated members inquired of Mr. Xu the purpose of the investigation, many members did not speak English and did not know how to respond. Mr. Xu advised the members how to respond, and drafted a template response on their behalf. These responses contained some false and misleading information. The template purported to confirm the courses studied and the hours of study, when in fact these hours of study had not been completed as indicated. A copy of this template is attached at Tab K.
Subsequently, these members were requested to participate in an interview with the College. Prior to the interview, Mr. Xu convened meetings to advise the members how to respond to the College investigators, and encouraged them to provide false and misleading information. The purpose of these meetings was to instruct the individuals present on how to answer the College’s inquiries. Mr. Xu advised the applicants how to respond to questions about how they attended classes and forwarded a previous “gotomeeting” invitation to each of them and instructed them to show it to the College investigator as proof of their online participation. Mr. Xu also advised them to be vague in their answers and to state that they did not remember details.
In addition, Mr. Xu telephoned Ms. Yee the evening before her interview to indicate that he had learned some of the questions from others and advised her how to respond.
Mr. Xu also provided the members with information to provide to the College, including in some cases the names of fellow students they had never met.
In addition, during the course of the College investigation, the Member was required to provide certain information, including but not limited to:

(a) Notarized copies of CARR’s 2015, 2016 and 2017 income tax statements and financial statements;

(b) CARR’s bank statements and deposit slips from October 2015 to June 2017;

(d) Payroll information related to CARR’s instructors; and

(e) Financial ledgers and tuition invoices and statements provided to CARR’s students.

Mr. Xu’s excuse for not providing the information was indicates that CARR does not have a separate bank account, and he did not feel comfortable sharing his personal banking information.

Allegations 3-4: Engaged in Unbecoming and Disgraceful, Dishonourable or Unprofessional Conduct

The entire circumstances of this matter, as described above, involved the creation of documents by Mr. Xu for the express purpose of undermining the legitimacy of the College’s registration process. This constitutes disgraceful, dishonourable and unprofessional conduct, which is unbecoming of a member of the profession.

Admissions to Allegations

With respect to the allegations set out in the Notice of Hearing dated February 4, 2019, Mr. Xu acknowledges and pleads that based on the facts set out above he has engaged in professional misconduct as follows:

(a) Signing or issuing, in his professional capacity, a document that he knew or ought to have known contained a false or misleading statement, contrary to Section 1(26) of Ontario Regulation 318/12.

(b) Contravening by act or omission, a provision of the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts, contrary to section 1(39) of Ontario Regulation 318/12.

(c) Engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by the profession as disgraceful, dishonourable or unprofessional, contrary to Section 1(48) of Ontario Regulation 318/12.

(d) Engaging in conduct that would reasonably be regarded by the profession as conduct unbecoming a practitioner of traditional Chinese medicine or acupuncture contrary to section 1(49) of Ontario Regulation 318/12.

6Regarding allegation (b), College counsel identified the provisions that the Member contravened as being sections 76(3) and 76(3.1) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991. Section 76(3) provides that no one is to obstruct an investigator, and section 77(3.1) provides that a member shall co-operate fully with an investigator.

7Regarding allegation (c), both counsel agreed that all three of the adjectives “disgraceful”, “dishonourable” and “unprofessional” apply.

Decision of the Panel

8After considering the Agreed Statement of Facts and the submissions of the parties, the Panel made findings of professional misconduct as alleged in the Notice of Hearing and as admitted in paragraphs 31(a)(b)(c) and (d) of the Agreed Statement of Facts. Regarding allegation (c), the Panel found that members would reasonably regard the Member’s conduct as disgraceful, dishonourable and unprofessional.

Reasons for Decision

9Given that this is an uncontested hearing and the Member Mr. Xu and the College have provided an Agreed Statement of Facts, the Panel is in agreement that the facts as admitted fit each of the categories of professional misconduct that Mr. Xu has admitted to.

Penalty and Costs Submissions

10The Member and the College agreed on a joint submission on penalty and costs. The Joint Submission was signed by the Member on and is reproduced below:

Mr. Xu will receive a public and recorded reprimand;
Mr. Xu’s certificate of registration shall be suspended for a total of 24 months, to be calculated from the beginning of his interim suspension imposed on November 19, 2018 (such that the suspension will remain in place until November 2020);
Mr. Xu will be permanently restricted from teaching, operating an academic institution and being involved in accreditation of any kind relating to the practice of traditional Chinese medicine and acupuncture;
Mr. Xu will successfully complete a course in professional ethics to be approved by the College, at his own expense, within six (6) months of this order;
Mr. Xu will agree to submit to regular monitoring by the College in respect of his compliance with the above terms; and
Mr. Xu will pay $120,000 of the College’s costs, to be reduced to $42,500 if Mr. Xu is able to present the College with certified funds for $40,000 in advance of the hearing, and $2,500 with certified funds by no later than 90 days from the date of the hearing; for greater certainty, if Mr. Xu fails to provide the certified funds by the dates specified herein, the $120,000 costs order will apply.

11College counsel submitted that the Panel was obliged to accept the Joint Submission unless to do would bring the administration of justice into disrepute or be contrary to the public interest, and on this point referred to the case of R v Anthony-Cook. College counsel noted that this College has not seen a case in which this kind of misconduct has been addressed or dealt with, but presented cases from other College that involved patterns of fraudulent conduct. College counsel acknowledged that the penalty is often revocation where the fraud is significant, but also referred to a case (Ontario College of Pharmacists v Amany Hanna) where significant OHIP fraud resulted in a suspension of 18 months, and submitted that the present penalty, involving a 24 months suspension, was within the appropriate range.

12College counsel highlighted item 3, the permanent restriction on teaching and operating an academic institution involved in accreditation, as going to the protection of the public, since that is where the real threat to the public of the Member’s conduct lies. College counsel submitted that as a whole, the Joint Submission achieves all the necessary goals in the circumstances.

13Regarding costs, College counsel submitted that this was a very extensive investigation which required the College to dedicate a significant number of resources. College counsel noted that costs are not part of the penalty and the Panel should not consider costs as a punitive element, as they are not there to deter or play any other role in the penalty, but the underlying principles is that the costs of successful prosecution should not be borne by the profession as a whole.

14Member’s counsel added that the fact that the Member entered into an Agreed Statement of Facts and a Joint Submission is a mitigating factor as it avoided a lengthy contested hearing, and this is a distinguishing factor between this case and many of the cases that resulted in revocation. She submitted that the Member is taking responsibility for his conduct, which he recognized was misguided. With respect to costs, she noted that the Member is the provider for his family and he has not been working for a year and 9 months while he has been suspended, and the amount is a significant one.

15The Panel expressed a concern about the implications of the Member’s conduct for the individuals who obtained their transfers to the general class on the basis of diplomas from CARR, and for the public. College counsel noted that there was no evidence before the Panel, but he could advise that the College was still contemplating next steps with regard to these members, and that the College takes very seriously the issue of whether or not its members have the appropriate qualifications. Member’s counsel noted that not all of the individuals who were listed in Appendix A were necessarily unqualified.

Penalty and Costs Decision

16After considering the Joint Submission and the submissions of the parties, the Panel decided to accept the Joint Submission, and therefore made an order in the terms of the Joint Submission.

Reasons for Penalty and Costs Decision

17Given that this is an uncontested hearing and the Member Mr. Xu and the College have provided Joint Submission, the Panel is in agreement that the Joint Submission should be accepted.

18The Panel was mindful that in order to reject a joint submission, it must find that the proposed penalty would bring the administration of justice into disrepute or be otherwise contrary to the public interest. The Panel ultimately concluded that the Joint Submission was not in this category and accepted that the penalty would adequately protect the public from further misconduct of this nature by the Member. However, given the seriousness of the Member’s conduct, the Panel had reservations in accepting the Joint Submission, and we acknowledge members of the public may have the same. We are concerned with the quality of training and education received by the students of Canadian Academy of RTCMP and RAC (“CARR”), however we realize this is outside the scope of this hearing. The Panel expects the College to investigate thoroughly on the qualifications of all CARR students, to verify they have true depth of understanding of Traditional Chinese Medicine and Acupuncture.

19The Panel agrees the costs to Howard Xu are reasonable.