Court File and Parties
DIVISIONAL COURT FILE NO.: 10-1697
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
OLEG VOLOCHAY
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
COUNSEL:
Robert Morrow for the Applicant
Peter J. Osborn, for the Defendant
HEARD: March 29, 2011
DECISION ON APPLICATION FOR JUDICIAL REVIEW
JUSTICE L. RATUSHNY
1On this application for judicial review the applicant seeks an order in the nature of certiorari to quash the decisions (the “Decisions”) of the respondent’s committee dated April 16, 2009 (the “First Decision”) and November 15, 2010 (the “Second Decision”).
2The parties agree this application can proceed under s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, C. J.1 as an application made to this Court with leave on the basis of urgency, where the delay required for an application to the Divisional Court is likely to involve a failure of justice. That leave has been granted.
The Facts
3The applicant is a member of the respondent organization and earns his living as a massage therapist in Ottawa.
4The respondent regulates the practice of massage therapy in the Province of Ontario and is governed by the Massage Therapy Act, 1991, S.O. 1991, c. 27 and the Health Professions Procedural Code (the “Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.
5On July 17, 2008, a former patient of the applicant (the “complainant”) sent the respondent a formal notice of complaint of professional misconduct by the applicant. She alleged that while he was her massage therapist they had engaged in a sexual relationship and consensual sexual intercourse for a period of almost one year (the “complaint”).
6Under the Code, health care professionals are prohibited from having sexual intercourse with a patient. If they do, that is professional misconduct, defined as sexual abuse, and is punishable by mandatory revocation of the professional’s certificate of registration for a minimum of five years: Leering v. College of Chiropractors of Ontario 2010 ONCA 87, at para.1, referring to the Code, ss. 1(3), 51(5), 72(3).
7On September 8, 2008, the respondent’s Complaints Committee appointed an investigator.
8By letter dated September 9, 2008, the respondent notified the applicant of the complaint, however, and contrary to the respondent’s assertions that this notice was given to the applicant (affidavit of Pauline Walters sworn March 9, 2011, para. 26) but as conceded by the respondent’s counsel at the application hearing, that letter providing notice of the complaint was not sent to the applicant at that time.
9On September 21, 2008, the complainant withdrew her complaint. She informed the respondent that she had been pressured and threatened by the applicant into withdrawing the complaint.
10It is not disputed, as I understand the applicant’s submissions at the hearing, that notwithstanding the withdrawal of the complaint the respondent had jurisdiction to continue to investigate the complaint and to conduct an investigation into the applicant’s professional practice. I agree that under the Code the respondent had jurisdiction to investigate the applicant’s practice even after the complaint was withdrawn.
11By letter dated September 23, 2008, the respondent notified the applicant that a complaint had been received. In that letter, the respondent acknowledged it was required under the Code to serve the applicant with notice of the complaint. It explained, however, that just prior to that intended service the complaint had been withdrawn and as a result, the notice of complaint was not served on him. The respondent advised the applicant that a panel of its Complaints Committee “will need to review this information to confirm the withdrawal of the complaint. We will contact you once a panel of the Complaints Committee reviews this matter.”
12By a memorandum to the respondent’s file from Ms. Walters on that same date of September 23, 2008, she documented her conversation with the applicant that day over the telephone to advise him that the complaint had been withdrawn. She said she told him she would take this information to the Complaints Committee and they would then make a final decision. She said the applicant replied that he was not aware of the nature of the complaint in any event. Ms. Walters said she advised him they would be writing to him shortly.
13In an investigation report dated October 3, 2008 by Michelle Brown, the investigator appointed by the respondent on September 10, 2008, Ms. Brown indicated the respondent had instructed her to serve the applicant with the notice of complaint and to collect his business records. She had been ready to do this on September 22, 2008, however, because of the complaint having been withdrawn the previous day and on instructions from Ms. Walters including that the complainant was worried about service on the applicant, none of this happened as had been planned.
14The Complaints Committee proceeded to consider the matter in the absence of notice of the substance of the complaint to the applicant. It continued to receive communications from the complainant.
15On November 14, 2008 a memorandum to file from Ms. Walters documented her advice to the complainant during a telephone conversation with her that day, informing her that the panel of the Complaints Committee had determined that the nature of the allegations raised by her were serious and they were contemplating continuing with the complaint despite her withdrawal. Ms. Walters stated in the memorandum, “I advised her that the panel would complete their decision and issue a decision.”
16On April 22, 2009 the applicant was sent a copy of the decision of the Complaints Committee dated April 16, 2009. This First Decision noted panel dates of September 5, November 5 and November 11, 2008 and April 7, 2009. The First Decision stated that pursuant to s. 26(2)4 of the Code, “the decision of the panel of the Complaints Committee, after investigation and due consideration”, was to refer the matter to the “Executive Committee for their consideration in terms of a full investigation inquiring into the practice of the member given the seriousness of the allegations involved and the public interest concerns.”
17On May 20, 2009, counsel for the applicant requested a review of the First Decision by the Health Professions Appeal and Review Board (the “HPARB”), as permitted under the Code, and also requested a copy of the Complaints Committee’s Record of Investigation. The applicant’s counsel received the Record of Investigation almost one year later, on April 16, 2010. On August 9, 2010, the applicant’s request for the HPARB review was withdrawn, without prejudice to the applicant’s “right to contest/dispute the complaint.”
18In September 2010 the applicant’s counsel requested that the respondent dismiss the complaint.
19On November 15, 2010, the successor body to the Complaints Committee, the Inquiries, Complaints and Report Committee (the “ICRC”) with the same legislative mandate as its predecessor, met and decided to reject the applicant’s request for dismissal and appointed an investigator to “inquire into and examine the practice” of the applicant. This Second Decision was communicated to the applicant on November 30, 2010. It referred to the applicant’s alleged “egregious” misconduct and its zero tolerance regarding sexual abuse allegations.
20The applicant denies the complainant’s allegations and says the complaint is false and defamatory.
21The applicant has not been subject to any sanctions imposed by the respondent as a result of the complaint but states that the allegations have caused him and his spouse great stress and expense.
The Positions of the Parties
22The applicant says that because he never received notice of the complaint as required under the Code and by the principles of natural justice and his common law right to fairness, the respondent violated all of those requirements and acted without jurisdiction in coming to each of the First Decision and the Second Decision.
23The respondent prepared for this application on the understanding that the applicant had been served with notice of the complaint approximately five weeks after it had been received by way of the letter dated September 9, 2008. The respondent has conceded at the hearing that while it now understands this to be incorrect and the letter was not served on the applicant, the applicant did have actual notice of the complaint because according to the complainant, it was he who influenced her to withdraw it in September 2008.
24The respondent submits it is premature to intervene at this stage of the administrative process under the Code, that it is the applicant who has caused much of the delay in requesting a review by the HPARB and then subsequently withdrawing from that review, and the applicant has now been apprised fully of the complaint and has full opportunity to make answer and defence to the investigator appointed for the next stage of the process pursuant to the Second Decision.
Analysis
25Under the Code provisions in effect at the time the complaint was made, a complaint “shall” be investigated by a panel made up of members of the Complaints Committee (Code, s. 25(1)).
26Notice of the complaint and of the member’s right to make written submissions to the panel within thirty days of receipt of the notice, “shall” be given to the member (Code, ss. 25(5), 26(1)). (Effective June 4, 2009 the Code was amended to require that members be given notice of a complaint within fourteen days of it being filed with the respondent: amended Code, s. 25(6).)
27Section 26(2) of the Code is entitled “Powers of panel” and says, “A panel, after investigating a complaint regarding the conduct or actions of a member, considering the submissions of the member and considering or making reasonable efforts to consider all records and documents it considers relevant to the complaint, may do any one or more of the following…” and goes on to list four possible actions.
28The First Decision was made under s. 26(2)4 of the Code. The Second Decision effectively ratifies the First Decision.
29It is the issues of notice and the powers of the Complaints Committee that are of concern.
30The applicant did not receive notice of the complaint from the respondent until well after the First Decision was made and not until twenty-three months after the respondent had received the complaint and the investigation had proceeded. It was only after his counsel requested the Record of Investigation of the Complaints Committee on May 20, 2009 that the applicant first received notice of the substance of the complaint and even then, it took the respondent thirteen months to forward the requested documentation.
31While the applicant did receive notice in September 2008 that there was a complaint and then later that it had been withdrawn, the evidence is that he never did receive notice of its subject matter or its specific allegations. In the respondent’s concern for the complainant and her interests and safety, the applicant’s interests including his right to notice of the complaint and to make written submissions on it appear to have been passed over and forgotten.
32It is clear under ss. 25 and 26 of the Code that the respondent is and was statutorily required to give notice of the complaint to the applicant and to provide him with the opportunity to make written submissions which are then to be considered as part of its investigation and before coming to any decision.
33This did not occur. In addition to violating its statutorily mandated procedures, the respondent did not comply with the most basic of principles of natural justice and procedural fairness during its investigation and before coming to a decision. It gave the applicant no notice of the allegations and no opportunity to answer and defend them during the investigation process and before the First Decision was made.
34The Second Decision is simply a ratification of the First Decision, relying again on an investigation and process that violated the applicant’s right to procedural fairness.
35It is no answer to say that the applicant had actual notice of the complaint because he had caused the complainant to withdraw it in September 2008. The matter of the withdrawal is part of the complainant’s side of the story that the applicant should have had the opportunity to answer as part of the respondent’s investigation. To attribute notice to him of a fact he denies but has not been given the opportunity to deny cannot be deemed to amount to any notice whatsoever.
36The respondent states that the investigative process under the Code should be allowed to proceed because in the new investigation pursuant to the Decisions, the applicant will have a right to be heard, tell his story and make submissions. While this is the next step under the Code where the applicant’s submissions will be able to be considered, this next step cannot cure the defective and fundamentally unfair process that has already occurred, that has contributed to the respondent’s Decisions and that has brought the matter to its current stage. The respondent’s initial investigation process resulting in the Decisions has violated basic principles of procedural fairness. Most importantly, the applicant has been denied the possibility of having the respondent consider, on all of the evidence including the applicant’s submissions, whether or not a next step is required.
37I acknowledge that judicial review is a discretionary remedy and absent exceptional circumstances, administrative proceedings before administrative tribunals should not be fragmented until there is a full record and the administrative proceeding has come to an end: Gore v. College of Physicians and Surgeons of Ontario, 2008 48643 (ON SCDC), [2008] O.J. No. 3757 (Div. Ct.), at paras. 65-67.
38However, this is a situation of the respondent acting without jurisdiction so that its proceedings to date in respect of the complaint are a nullity.
39In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of Canada cautioned against characterizing issues as jurisdictional in nature unless they actually relate to the “narrow sense of whether or not the tribunal had the authority to make the inquiry.” True questions of jurisdiction exist “where the tribunal must explicitly determine whether its statutory grant of power gives it authority to decide a particular matter” (Dunsmuir, at para. 59.)
40I conclude this is a “true question of jurisdiction.” As stated previously, the respondent did not have the statutory authority to investigate without according the applicant the right to respond. It did not accord the applicant the right to respond. This process was not only in violation of the respondent’s statutory authority to proceed; it was also in violation of the respondent’s duty to proceed fairly and in violation of the applicant’s right to procedural fairness.
41In other words, the respondent was required both under its governing statute and according to the common law to proceed fairly before going to the next stage. It did not and as a consequence, the Decisions are a nullity.
42It is also fundamental to a consideration of the fairness of the process that the applicant’s right to continue his profession and employment are at stake: Kane v. University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105 (S.C.C.), at p. 1113. As stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 25, the more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated.
43While I have not been provided with authority with respect to the standard of review applicable to this issue of jurisdiction for the Decisions, I have presumed it is a question of law to which the stricter standard of correctness applies.
44I have concluded, although again I have not been provided with any authority on this point, that where a tribunal is authorized to proceed in a certain way and does not proceed in that way and thereby violates a person’s right to procedural fairness in a situation where his profession is at stake, the decision resulting from that flawed process should not be allowed to stand.
45I find, therefore, that the First Decision and the Second Decision were not correct in law, made as they were in violation of the respondent’s statutory authority and the applicant’s right to procedural fairness.
46I allow the application and quash the respondent’s First Decision and Second Decision.
47Costs are awarded to the applicant. Unless the parties are able to agree on their quantum, written submissions (a maximum of three pages from each party exclusive of attachments) can be forwarded to me before April 29, 2011.
The Hon. Madam Justice L. Ratushny
Released: April 8, 2011
CITATION: Volochay v. College of Massage Therapists of Ontario, 2011 ONSC 2225
DIVISIONAL COURT FILE NO.: 10-1697
DATE: 20110408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
OLEG VOLOCHAY
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
DECISION ON APPLICATION FOR JUDICIAL REVIEW
Ratushny J.
Released: April 8, 2011
