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CITATION: Spurrell v. College of Massage Therapists of Ontario, 2013 ONSC 4117

DIVISIONAL COURT FILE NO.: 190/12

DATE: 20130619

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Leitch, Sachs and Lederer J.J.

BETWEEN:

Scott Spurrell

Appellant

– and –

College of Massage Therapists of Ontario

Respondent

Amanda Smallwood, for the Appellant

Richard H. Shekter, for the Respondent

HEARD at Toronto: May 8th, 2013

H. Sachs J.

Nature of the Proceeding

1On March 12, 2012, the Discipline Committee of the College of Massage Therapists of Ontario (“the Tribunal”) found that the Appellant, who is a registered massage therapist, committed professional misconduct in administering acupuncture to a patient. On November 23, 2012, the Tribunal released its decision on the appropriate penalty to impose on the Appellant for his misconduct. The Tribunal’s penalty decision had several components, one of which was that the Appellant was suspended for a period of 12 months, subject to a reduction of 5 months if he complied with the other aspects of the decision.

2The Appellant appeals both the Tribunal’s misconduct findings and its penalty decision.

3For the reasons that follow, I would dismiss both aspects of the appeal.

Factual Background

4The Appellant is qualified to perform acupuncture as a part of his massage therapy practice, having completed the Contemporary Medical Acupuncture for Health Professionals programme at McMaster University, which is recognized and accredited by the Respondent.

5In May of 2006, K.O., a former Olympic athlete, began to see the Appellant for treatment to help alleviate pain she was experiencing as a consequence of injuries she suffered in a motor vehicle accident. On her sixth visit to the Appellant, which occurred on June 21, 2006, K.O complained of back and neck pain and pounding unbearable headaches. For the first time the Appellant suggested acupuncture in addition to massage.

6This treatment involved placing a 2 inch acupuncture needle into K.O.’s subclavius muscle (which lies underneath the clavicle bone and above the ribs.) K.O. was apprehensive about the acupuncture as she previously had had a bad experience with such treatment and asked the Appellant questions about it. The Appellant told K.O. there were minimal risks, but because a needle was being placed over her ribcage and lungs it was possible her lung could be punctured. K.O asked what happens with a punctured lung and the Appellant told her that he knew of someone (his wife) who had had a punctured lung as a result of acupuncture and it had resolved without treatment.

7With this information K.O. consented to the acupuncture. As part of the treatment the Appellant inserted a 50 mm (2 inch) needle into K.Os subclavius muscle. K.O. immediately felt discomfort and pain in her chest at the point of insertion.

8After she left the clinic, K.O. began to feel a “weird sensation in the insertion site on her chest” and began to experience symptoms including difficulty breathing, chest pain and a grinding sensation in her ribs. She mentioned these symptoms to her husband when she got home.

9After her return home, K.O. took a nap, but when she woke up her symptoms were worse. Before going to the movie theatre with her daughter, she decided to return to the Appellant’s clinic in order to discuss with the Appellant the symptoms she was experiencing.

10When K.O. arrived at the Appellant’s clinic she told the Appellant that she was experiencing “chest pain” with unusual “grinding” in her chest when she bent forward. According to the Appellant, K.O. asked him if she had a punctured lung and the Appellant replied that, given her pain and the treatment she had received, it was more likely that she was suffering from muscle spasm. He went on to tell her that he did not think it was a pneumothorax, but that was possible and if she felt that was the case, she should go to the hospital right away. The Appellant also told K.O. that if her symptoms got worse she should go to the hospital immediately.

11The following morning, when her symptoms had not improved, K.O. went to the hospital where she was x-rayed and told that she had sustained a punctured lung and a pneumothorax (a partial collapse of the lung due to the presence of air in the chest cavity). K.O. was discharged, but returned later that day when she was admitted and diagnosed with a 10% “left pneumothorax secondary to acupuncture requiring a chest tube” in the upper apex of the left lung, the approximate location of the acupuncture needle. Her lung continued to collapse and more chest tubes were inserted. K.O. was released from hospital on July 2, 2006. She now has only 55% function in her left lung. Daily breathing is difficult and she has to take puffers. She is no longer in the prime physical shape she was. She has a massive scar on her chest and some of her muscles were affected by the insertion of tubes into her chest.

12K.O.’s husband launched a complaint against the Appellant with the Respondent College. The complaint was investigated and four allegations of professional misconduct were forwarded to the Tribunal for a hearing. These allegations were that:

(1) The Appellant had treated or attempted to treat a condition beyond his competence, contrary to paragraph 45 of s. 26 of O. Reg. 544/94 to the Massage Therapy Act, 1991, S.O. 1991 c. 27 (the “Massage Therapy Regulation.”)

(2) The Appellant was incompetent within the meaning of section 52(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991 c. 18 (the “Code.”)

(3) The Appellant contravened or failed to maintain a standard of the profession, contrary to paragraph 6 of s. 26 of the Massage Therapy Regulation.

(4) The Appellant engaged in conduct in the course of practicing that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, contrary to paragraph 44 of s. 26 of the Massage Therapy Regulation.

The Tribunal’s Decisions

13By decision dated March 14, 2012, the Tribunal upheld Counts 1, 3, and 4. It dismissed the allegation of incompetence set out in Count 2.

14With respect to Count 1 (attempting to treat or treating beyond his competency), the Tribunal found that in advising K.O., after she returned to his clinic, he communicated a “diagnosis identifying a disease or disorder as the cause of symptoms…in circumstances in which it is reasonably foreseeable that the individual… will rely on the diagnosis.” This was beyond his competency.

15In relation to Count 3, the Tribunal found that the Appellant failed to maintain the standards of his profession in three ways:

(a) He inserted an acupuncture needle into a dangerous area of K.O.’s chest (the subclavius muscle) in the absence of any clinical reason for doing so, causing K.O.’s punctured lung.

(b) If the needle had been inserted correctly, in accordance with McMaster’s teachings, there would have been no possibility of an accidental puncture of the lung. Thus the procedure was performed incorrectly.

(c) The Tribunal also found that the Appellant advised K.O. contrary to the standards of his profession when she returned to his clinic and told him about the symptoms she was experiencing.

16Based on these findings the Tribunal concluded that the Appellant’s conduct had been disgraceful, dishonourable and unprofessional (Count 4.)

17In terms of penalty, the Tribunal suspended the Appellant for 12 months (with a potential reduction of 5 months if certain terms and conditions were met) and imposed a number of educational terms that were agreed upon by the parties. It also restricted him indefinitely from performing acupuncture in the area of the subclavius muscle.

Issues on the Appeal

18The Appellant argued that the Tribunal made the following errors:

(a) It erred in finding that the Appellant had communicated a “diagnosis identifying a disease or disorder.” According to the Appellant, all the Appellant did was tell K.O. that he thought she was experiencing a muscle spasm, which is not a “disease or disorder.”

(b) It erred in finding that the Appellant did not properly perform the procedure of needling K.O.’s subclavius. According to the Appellant, the Tribunal came to this conclusion because K.O. experienced a pneumothorax. This reasoning improperly ruled out alternative explanations for the pneumothorax that were not dependent on a failure to maintain standards.

(c) It misapprehended the evidence about whether there was any clinical indication for the needling of K.O.’s subclavius muscle. There was evidence that needling this muscle was consistent with the Appellant’s training at McMaster if a patient has a “shoulder girdle” problem or is suffering from an “impingement syndrome.” The Appellant testified that when he needled K.O.’s subclavius muscle he was attempting to treat her shoulder girdle, not her headaches.

(d) It erred in concluding that the Appellant should have directed K.O. to go to the hospital when she first complained to him about her symptoms. There is no standard of practice that requires a registered massage therapist to direct a client to attend a hospital every time that they present with symptoms that may indicate a condition that a registered massage therapist is not qualified to diagnose. Further, it would be unreasonable to impose such a standard. Apart from anything else, the hospitals would be overloaded with patients.

(e) The Tribunal’s findings with respect to Count 4 were dependent on their conclusions regarding Counts 1 and 3. Therefore, if these findings get set aside, so should the finding that the Appellant was guilty of conduct that would reasonably be regarded as disgraceful, dishonourable or unprofessional.

(f) The length of the suspension imposed on the Appellant was unreasonable and outside the range, especially given the fact that this was the Appellant’s first offence and the conduct was isolated, unintentional and not motivated by personal gain. Further, the imposition of an indefinite suspension of the Appellant’s right to needle the subclavius muscle was inconsistent with the other terms of the penalty, which required the Appellant to undergo extensive remediation to ensure that he performed acupuncture correctly.

Jurisdiction and Standard of Review

19Section 70 of the Code permits an appeal to the Divisional Court on questions of law or fact or both. Pursuant to s. 70(3) of the Code, this Court “has all the powers of the panel that dealt with the matter.”

20The parties agree that the standard of review that is applicable to this appeal is reasonableness.

Analysis

Did the Tribunal Unreasonably Conclude that the Appellant Treated a Condition Beyond His Competency?

21Under paragraph 45 of s. 26 of the Massage Therapy Regulation, a registered massage therapist is guilty of professional misconduct if he or she “treat[s] or attempt[s] to treat a condition beyond the member’s competence.” The Appellant acknowledged that treating a pneumothorax is beyond his competence and outside the scope of his practice. Further, under subsection 27(2)(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c.18 a registered massage therapist is expressly not competent to:

Communicate to the individual or his or her personal representative a diagnosis identifying a disease or disorder as the cause of the symptoms of the individual in the circumstances in which it is reasonably foreseeable that the individual or his or her personal representative will rely on the diagnosis.

22Infringing this section requires establishing both that the member communicated a diagnosis identifying a disease or disorder as the cause of symptoms and that this communication occurred in circumstances where it was reasonably foreseeable that the individual to whom the communication was made would rely on the diagnosis. The Appellant admits that the second element of the test was satisfied, but disputes that he communicated a “diagnosis identifying a disease or disorder.”

23At page 29 of its Decision and Reasons, the Tribunal concluded as follows on this point:

The defence submits that Mr. Spurrell did not communicate a diagnosis communicating a disease or disorder but communicated to KO that it was his opinion that it was a muscle spasm, which is not a disease or disorder. However the panel notes the definition of a controlled act also deals with the issue that the individual will rely on the diagnosis. KO made a point of driving back to the clinic to consult with Mr. Spurrell about her symptoms. KO testified that she asked Mr. Spurrell if she should go to the hospital and was told no, but to go if symptoms worsened. Mr. Spurrell had also agreed in his testimony that he told KO it was not a pneumothorax, but it was possible and left the decision to KO as to whether she should go to the hospital. Mr. Spurrell testified that he did tell her to go to the hospital if the symptoms worsened. Mr. Spurrell had also reluctantly agreed that KO would have gone to the hospital if he advised her to go and agreed that KO had limited anatomy knowledge and that she did not have the skills to self-diagnose her own condition. Given this, the panel finds that it is reasonable that KO relied on Mr. Spurrell’s diagnosis and held off from going to the hospital. For these reasons, the panel finds Mr. Spurrell guilty on Count #1.

24According to the Appellant, this excerpt from the Tribunal’s reasons demonstrates that it did not draw a conclusion regarding the first element of the test. Having articulated the Appellant’s argument with respect to this element, it went on to deal with the second element and once it found that that element was satisfied it concluded that the allegation contained at Count 1 had been made out.

25Under a reasonableness analysis, a decision does not need to deal with every issue and every argument raised by the parties, nor is perfection the standard. A decision-maker is not required to make an explicit finding on each constituent element leading to its final conclusion. The reasons must adequately explain the bases of the decision. However, the reasons must be read in light of the evidence, the submissions of the parties and the nature of the decision maker’s statutory task (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).

26It is clear from the Tribunal’s reasons that the Tribunal understood the Appellant’s argument that he did not make a “diagnosis” and implicitly rejected it. This is evident because the Tribunal set out the Appellant’s argument on the first part of the test before moving on to the second part. As Newfoundland Nurses establishes, the Tribunal was not required to set out its reasons for rejecting this one particular argument of the Appellant, if the reasons, read as a whole and in light of the evidence and the submissions, allows a reviewing court to determine that the Tribunal’s decision is within the range of reasonable outcomes.

27From the evidence that the Tribunal had before it and that it articulated in its reasons, K.O. presented at the Appellant’s clinic and described to him a number of symptoms. After she did so, the Appellant expressed his opinion that she was suffering from a muscle spasm, not a pneumothorax. While a muscle spasm may not be a “disease or disorder,” a pneumothorax is a disease or disorder.

28According to the Appellant, the only diagnosis that he made was of a muscle spasm. He did not diagnose a pneumothorax. In fact he said the opposite; in his opinion it was not a pneumothorax. Thus, according to the Appellant, he did not violate the section in question. On this reasoning, when a client presents with symptoms that a registered massage therapist has been trained to recognize may be caused by a disease or condition beyond his competence to diagnose, he is not acting beyond his competence by telling the client that he or she is not suffering from the condition in question, as long as he also tells her she is suffering from a muscle spasm.

29This reasoning ignores the reality of what it means to “diagnose” a disease or disorder. Diagnosing often involves both giving someone an explanation for his or her symptoms and ruling out other explanations that may also be consistent with those symptoms. In this case, the explanation that Mr. Spurrell ruled out was one that he was not competent to rule out – namely, a pneumothorax. He offered an opinion and gave a clinical impression he was not competent to give. Thus, the Tribunal reasonably concluded that Mr. Spurrell was guilty of Count 1.

Did the Tribunal Unreasonably Conclude that the Appellant did not Needle the Subclavius Properly?

30The Tribunal’s conclusion on this point is encapsulated at p. 32 of its Reasons:

The panel next considered whether Mr. Spurrell performed the procedure of needling the subclavius properly. The expert testimony establishes that KO did not have a pneumothorax prior to treatment and within an hour of the procedure, KO had symptoms consistent with pneumothorax. An x-ray later confirmed the presence of a pneumothorax. Testimony from Mr. Spurrell, Dr. Claraco, and Mr. O’Connor was that if the procedure is done properly, there is no accidental puncture of the pleura. The defence suggested that a needle in the thoracic spine region caused the pneumothorax, but there was no evidence given to support that. KO’s testimony was that she experienced a “weird sensation” in the area of the insertion site on her chest shortly after the procedure involving her receiving acupuncture to her subclavius. Drs. Keshavjee, Hui and Rapson all agreed that KO did not have a pneumothorax prior to her acupuncture treatment and symptoms developed shortly after. From this, they concluded the acupuncture to the subclavius had caused the pneumothorax. They also agreed the needling of the subclavius is a risky area given that the subclavius lies over the apex of the lung and you cannot tell if the needle has gone through the subclavius into the lung. Given this, the panel concluded that the procedure was not performed properly and therefore the standard of practice was breached.

31The Appellant did not dispute that the Tribunal had before it evidence from himself and from two witnesses whom he called who teach at the McMaster programme (Dr. Claraco and Mr. O’Connor) that if the procedure of needling the subclavius is done properly, the lung will not be punctured. He also did not dispute that the Tribunal correctly summarized the evidence about K.O.’s condition before, during and after he needled her subclavius. He did not dispute that the only expert evidence that the Tribunal had before it about what caused the pneumothorax was the opinion of three witnesses called by the Respondent, all of whom agreed that the pneumothorax was caused by the Appellant’s actions in needling K.O.’s subclavius muscle. What he argued was that the Tribunal unreasonably ignored his position that the pneumothorax could have been caused by other needling that he did during K.O.’s treatment session.

32As the excerpt above indicates, the Tribunal considered the Appellant’s position but did not accept it. In doing so, it weighed the evidence it had before it and concluded that there was no evidence to support the Appellant’s position. Given the symptoms that K.O. experienced during the needling of her subclavius, the location of the pneumothorax and the unanimous opinion of the only experts who testified on this issue, this was a reasonable conclusion for it to draw. It is not the task of this Court to parse and reweigh evidence.

Did the Tribunal Unreasonably Conclude That There Was No Compelling Evidence to Support Needling the Subclavius?

33On this question the conclusion of the Tribunal is found at pages 32 -33 of its Reasons where it states:

The panel also considered whether the decision to needle the subclavius was appropriate. Doctors Hui, Rapson and Keshavjee all testified that in the absence of compelling clinical indications there was no reason to needle the subclavius. Dr. Hui and Dr. Rapson who are both trained in classical and anatomical acupuncture stated that in neither case were there any clinical indications for needling the subclavius muscle to alleviate headaches. Dr. Rapson noted that Dr. Spurrell’s treatment notes for KO did not refer to trigger points or referral pain pattern in the subclavius, which Dr. Rapson testified ought to be present to justify needling this area. Mr. Spurrell testified that the needling of the subclavius was in part to treat an anterior forward shoulder position; however his notes do not support this with any clinical findings. The panel was satisfied that there was no compelling evidence to support needling the subclavius and therefore a standard of practice was breached.

34K.O. testified that when she saw the Appellant on June 21, 2006, she told him that she was suffering from very bad headaches. He told her that he could fix or cure her headaches through acupuncture and that he knew of a spot for acupuncture that not many people knew about. The spot was the subclavius muscle.

35The evidence before the Tribunal was that needling the subclavius would not alleviate headaches. However, two witnesses called by the Appellant (who were not qualified to give expert opinions) did give evidence about what students at McMaster are taught about needling the subclavius. Mr. O’Connor, a registered massage therapist who teaches at the McMaster programme, testified that if K.O. had issues with her shoulder girdle this would have justified needling the subclavius. Alejandro Claraco, who runs the post-graduate course in acupuncture at McMaster, testified that needling the subclavius is appropriate “when the clavicle is involved as in an impingement syndrome” (Tribunal’s Reasons, p. 24.)

36The Appellant testified that his goal in treating K.O. with acupuncture on June 21, 2006 was not to treat her headaches, but to treat everything that was going on with her, including the issues that she had with her shoulder girdle. Essentially, the Tribunal believed K.O. about why the Appellant told her he was needling the subclavius and did not believe the Appellant.

37In doing so, the Tribunal looked to the Appellant’s notes from the day in question which state: “back and neck pain is increasing, H/A [headaches] are ‘pounding’…anterior shoulder pos[position].” When Mr. O’Connor (the Appellant’s witness) was questioned about these notes he agreed that they failed to show a treatment rationale justifying the procedure of needling the subclavius. He testified that, based on the Appellant’s notes for that day, there was no presenting complaint that showed that K.O. had any issues with her shoulder girdle. On the other hand, the notes support K.O.’s testimony that she did complain to the Appellant about “pounding” headaches.

38The Appellant submits that the Tribunal unreasonably disregarded the oral testimony that he gave about what happened on June 21, 2006, testimony that supplemented his notes. The Tribunal had this to say about this issue at page 30 of its Reasons:

The panel also found that there was no clinical indication for the acupuncture treatment to the subclavius, found within Mr. Spurrell’s notes. Mr. Spurrell did agree that his notes were lacking but in his evidence he described the clinical indication on which he had proceeded, that being postural related issues due to the anterior position of her left shoulder. There is one note in KO’s treatment file about anterior shoulder position but there are no notes showing that Mr. Spurrell palpated the muscles in that area to see if they were tight, or had trigger points. Mr. Spurrell agreed that “There’s things that should have been in the notes that were not put in there, whether it be because I couldn’t remember, but they are not as complete as they should be.” The panel noticed that Mr. Spurrell’s memory appeared to be selective; Mr. Spurrell also testified that he did not remember a lot of what happened in his treatments with KO. Dr. Claraco testified that the subclavius is treated when the clavicle is involved as in impingement syndrome, but there was nothing in the treatment notes suggesting this. The panel rejected Mr. Spurrell’s evidence that there was clinical indication to proceed with the needling of the subclavius as there was nothing in his notes to support this and that his memory of the treatments was inconsistent. The panel found that his credibility was lacking for this reason and that he was giving clinical reasons in his evidence for why he treated KO, although these reasons were not supported by notes or memory. (Emphasis added.)

39Simply put, the Tribunal did not believe the Appellant’s evidence on this point and it explained why. As Dambrot J. articulated in Johnson v. College of Nurses of Ontario, 208 O.A.C. 374 (Div. Ct.) at para. 16 the credibility findings of a specialized tribunal who held an oral hearing will only be disturbed in “the rarest of cases.” This is not one of those cases. The Tribunal’s Reasons articulate a reasonable basis for why they disbelieved the Appellant.

Did the Tribunal Unreasonably Conclude that the Appellant’s Advice Upon K.O.’s Return to His Clinic was a Breach of the Standard of Practice?

40The Tribunal’s conclusion on this issue is found at page 33 of its Reasons:

Finally, the panel looked at the advice that Mr. Spurrell gave KO when she returned to the clinic. Prior to doing acupuncture on KO, Mr. Spurrell told her that there was a risk of puncturing the lung. Given this risk, and the symptoms that KO presented with when she returned, Mr. Spurrell’s advice was lacking; we find that he suggested it was a muscle spasm and downplayed the possibility of a pneumothorax nor could he rule it out. Given KO’s symptoms, he should have told her to go to the hospital immediately. The panel was satisfied that his failure to do so was a breach of the professional standards of practice.

41The Appellant submits that there is no standard of practice that requires a registered massage therapist to direct a client to attend at the hospital every time he or she presents with symptoms that may indicate a condition that a registered massage therapist cannot diagnose or treat. He also argues that the advice that he did give was consistent with the training he had received at McMaster about the very low likelihood of pneumothorax occurring and his own experience that clients will commonly report tightness, grinding or painful sensations following the treatment he had performed on K.O. Finally, K.O.’s outcome would have been no different had she in fact attended the hospital immediately. This is because when she did attend the hospital and they identified the pneumothorax they sent her home and advised her to return if she felt worse – the same advice given by the Appellant.

42The fact that there is no written standard of practice did not deprive the Tribunal of the right to find that there was an unwritten standard that the Appellant had fallen below. As the Ontario Court of Appeal explained in Re Matthews and Board of Directors of Physiotherapy (1987), 1987 4372 (ON CA), 61 O.R. (2d) 475 at p.2:

The absence of such a definition requires the board to judge the appellant by the objective standards of his own profession. Although these standards are unwritten, they are none the less real and it is within the jurisdiction of the appellant’s professional brethren who constitute the board to determine in the particular case if he has fallen below that standard.

43In this case the Tribunal had expert evidence about the fact that K.O.’s symptoms when she returned to the Appellant’s clinic that night were consistent with a pneumothorax, a very serious condition that can result in death and that can only be diagnosed through an x-ray. Those symptoms included chest pain and a grinding sensation. The Appellant testified that he was unaware that a grinding sensation was one of the symptoms of a pneumothorax. Dr. Claraco, who was called by the Appellant, testified that McMaster students are taught to recognize all of the symptoms of a pneumothorax, including a grinding sensation.

44The Tribunal also heard expert evidence from Dr. Keshavjee, a thoracic surgeon, who is now the Surgeon in Chief at the University Health Network in Toronto, who testified that if a patient presents with symptoms of a pneumothorax they must be referred to a hospital. The other experts, both of whom perform acupuncture as part of their medical practice, agreed. Dr. Salanki, who was called by the Appellant and who teaches at McMaster, testified that he instructs students at McMaster to refer patients to hospital if symptoms of a pneumothorax are presented.

45Given this evidence, the Tribunal’s conclusion that the Appellant fell below the standard of practice of his profession when he failed to send the Appellant to hospital immediately (instead leaving the decision up to her) was reasonable. The fact that the hospital’s advice to K.O. was the same as the Appellant’s does not detract from the fact that the Appellant failed to recognize the symptoms of a serious condition and failed to ensure that his client was immediately sent to a facility where that condition could be properly diagnosed. The Appellant’s argument that he was being held to a higher standard than that of a registered massage therapist is undermined by the evidence from his witnesses about what the McMaster programme teaches its students.

Did the Tribunal Unreasonably Conclude that the Appellant’s Conduct was Disgraceful, Dishonourable and Unprofessional?

46Given the Tribunal’s findings with respect to Counts 1 and 3, which I would uphold, it was also reasonable for them to find the Appellant guilty of Count 4. Both the transgressions and the consequences to the patient as a result of those transgressions were serious.

Was the Penalty Imposed Unreasonable?

47The Appellant challenges two aspects of the penalty decision - the length of suspension and the indefinite suspension of the Appellant’s right to needle the subclavius.

48While the standard of review applicable to the Tribunal’s penalty decision is reasonableness, it is a decision that a court must accord a high degree of deference. As put by Feldman J.A. in Stetler v. Ontario Flu-Cured Tobacco Growers’ Marketing Board (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321 (C.A.) at para. 108:

The issue of the appropriate penalty for infractions within a profession or industry is one that is uniquely within the experience, expertise and discretion of the relevant disciplinary tribunal and is therefore subject to high degree of deference. The penalty imposed by the Tribunal, nevertheless, is subject to a reasonableness standard on review.

49In its Reasons on penalty the Tribunal noted that the Respondent asked for a 12 month suspension (with three months remission) and that the Appellant submitted that a penalty of 6 months suspension (with three months remission) would be appropriate. The Tribunal suspended the Appellant for 12 months with 5 months to be remitted upon satisfaction of certain agreed upon conditions, terms and limitations. With respect to the length of the suspension the Tribunal had this to say at p.13:

Mr. Spurrell’s client KO developed a pneumothorax as a result of Mr. Spurrell’s acupuncture to the subclavius and the Member compounded this by not recognizing the symptoms of a pneumothorax and referring the client to the hospital. The Member knew that KO was relying on his advice and left it to KO to decide. Further to this, Mr. Spurrell’s notes did not support the needling of the subclavius. This has been the College’s first case where a client has been harmed by a RMT and a pneumothorax is a serious and potentially life threatening injury. When the panel considered the above-mentioned facts, a 12-month suspension was seen to be reasonable. If Mr. Spurrell had recognized the symptoms and had referred KO out, the Panel would have considered a lighter suspension, but in this case the advice given to KO was inappropriate and this resulted in the longer suspension. A remittance of 5 months was given provided Mr. Spurrell meets the terms and conditions of the order as the Panel recognized that Mr. Spurrell has taken responsibility for his mistakes. This was seen in Mr. Spurrell’s prepared statement. The Panel also noted that Mr. Spurrell has paid a high price with stress to both him and his family and is now seeing a counsellor to address this. The suspension sends a strong message to the profession that the College takes client safety very seriously. The public is also protected while the Member is suspended and re-educated.

50The Appellant submits that the Tribunal erred in determining the suspension length without turning its mind to relevant mitigating factors and that it disregarded the range of penalties suggested by the case law.

51With respect to the alleged failure to consider mitigating factors, it is clear that the Tribunal did consider and address the relevant the mitigating factors, including that the Appellant had taken responsibility for his mistakes and the high cost of the proceedings on the Appellant. Reading their decisions as a whole, it is also apparent that the Tribunal was aware, and considered, that this was the Appellant’s first appearance before the discipline committee, that there had been no findings of misconduct beyond the incident in question and that his conduct was not intentional or motivated by personal gain.

52This was the first case that the Respondent had dealt with where a registered massage therapist’s treatment had resulted in serious harm to a patient. The Tribunal was referred to one case involving a doctor whose patient died as a result of plastic surgery and the College suspended the doctor involved for 24 months. It was also referred to cases involving registered massage therapists guilty of misconduct that did not involve injury to a patient who were given suspensions of 6 months. In the end the Tribunal appreciated that its task was to impose a fair, just and reasonable penalty, consistent with the Respondent’s central mandate, which is to protect the public. The court was provided with no authority to suggest that the penalty imposed was outside the reasonable range such that it would be appropriate for us to interfere.

53With respect to the indefinite restriction on needling the subclavius, the expert evidence before the Tribunal was that the procedure was a dangerous one and that there were other less risky methods to treat any conditions that involved the subclavius. Given this and given the evidence it had heard from the Appellant about his attitude towards needling the subclavius generally and in K.O.’s case, it was reasonable for the Tribunal to conclude that the safety of the public demanded the restriction in question.

54It is also important to note that the restriction only applied to needling the subclavius and, further, that the Appellant is in a position in the future to bring an application to lift the restriction.

Conclusion

55For these reasons the appeal is dismissed. The parties agreed that the successful party on the appeal should be awarded costs of $7500.00 for fees, plus disbursements and H.S.T. On this basis the Appellant shall pay the Respondent its costs of $7800.00 (the Respondent advised that its disbursements were $300.00) plus applicable H.S.T.

H. SACHS J.

LEITCH J.

LEDERER J

Released: June 19, 2013

Nature of the Proceeding

Factual Background