Ren v. College of Massage Therapists of Ontario, 2014 ONSC 2758
CITATION: Ren v. College of Massage Therapists of Ontario, 2014 ONSC 2758
DIVISIONAL COURT FILE NO.: 456/13
DATE: 20140501
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, DAMBROT AND MACKINNON JJ.
BETWEEN:
GRACE REN
Applicant
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
Respondent
Damien R. Frost and Daniel R. Libman, for the Applicant
Ren Bucholz, for the Respondent
HEARD at Toronto: May 1, 2014
THEN J. (orally)
[1] The applicant, a member of the College of Massage Therapists, seeks judicial review of a caution issued by a panel of the Inquiries, Complaints and Reports Committee of the College (“ICRC”). Following an investigation into her practice, the College directed the applicant to ensure that when she communicates with clients and the public during treatment or through advertising, she clearly articulates that she is providing treatment to alleviate symptoms through massage therapy, and that she is not treating underlying medical conditions outside the scope of the practice of massage therapy.
[2] Initially, the Court sought submissions from counsel on the issue of whether the application to this Court was premature. Subsection 29(1) and (2) of the Code provide that the Health Professions Appeal and Review Board (“HPARB”) shall review a decision of the ICRC panel on request by “the complainant or the member who is the subject of the complaint.”
[3] In the recent decision of Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 2012, 111 O.R. (3d) 561, the Ontario Court of Appeal held that unless exceptional circumstances exist, a Court should not interfere in an administrative proceeding until it runs its course, especially where adequate alternative remedies are available. In Volochay, where the proceeding was initiated by a complaint, the Court found that a review by HPARB of the decision of the ICRC was an adequate alternative remedy to judicial review.
[4] In the case before us, the proceeding was initiated by a report of the Registrar and not a complaint. Accordingly, we agree with counsel for both parties that this Court has jurisdiction to deal with the judicial review application since the HPARB does not have jurisdiction to review the decision of ICRC in a proceeding initiated by a report of the Registar.
[5] No principled reason has been suggested to us why a review by the HPARB should not be available from a decision of the ICRC initiated by a report of the Registrar as opposed to a complaint. Indeed, the benefits of such an approach have been articulated by the Ontario Court of Appeal in Volochay at para. 69, quoting from the decision of Stratas J.A. in C.B. Powell. However, it will be for the legislature to determine whether to deal with what may have been a legislative oversight.
[6] As to the merits of this judicial review, the applicant submits in oral argument that there was:
(i) A denial of natural justice and procedural fairness in the manner in which the respondent dealt with this matter; and
(ii) The decision to issue a caution was unreasonable in that the caution was not remedial in nature, but rather, constituted a disciplinary reprimand.
[7] With respect to the first issue, Mr. Frost submits that the College was in possession of a brochure sent anonymously November 1, 2010 which, if attributable to the appellant, appeared to conflate the treatment of symptoms with the treatment of conditions two weeks before the applicant presented her SCERD report to the panel. This report had been ordered by the ICRC as a result of a previous complaint (also made anonymously) that the applicant was purporting to treat medical conditions outside of the scope of massage therapy.
[8] Mr. Frost submits that the panel should have brought this brochure to the attention of the applicant in the exercise of their powers under s. 26(3) and (4) of the Code to be dealt with as part of the SCERD remediation during the course of the applicant’s SCERD presentation in November 2010.
[9] The only evidence on this record is that the panel received the brochure on January 11, 2011 and in turn forwarded the brochure to the Registrar. The panel declared the initial proceeding before them closed on January 17, 2011.
[10] Mr. Frost submits that by instituting a new proceeding by means of a report based on the contents of the brochure, the Registrar caused the applicant to be subjected to procedural unfairness and to be deprived of the protections which she was entitled to under the first proceeding.
[11] Even if the panel, in the first proceeding could have revisited the SCERD remediation process at this late juncture, in our view, it was not inappropriate for the panel to forward the brochure to the Registrar as this material had not formed any part of their deliberations with respect to the initial complaint in circumstances where the remedial process had been completed. It was then incumbent upon the Registrar to determine whether to issue a report and thereby to initiate a fresh proceeding.
[12] In the circumstances, we are not persuaded that the applicant was denied natural justice.
[13] As to the second issue, we agree with Mr. Frost that the caution was delivered in firm language. However, the panel made no findings of misconduct but rather was prepared once again to accept that the unfortunate articulation by the applicant of the nature of her services, both in the brochure and subsequently orally was not deliberate but rather inadvertent.
[14] On the other hand, given the seriousness of any deliberate claim by her to be able to cure serious medical conditions, it was not inappropriate to caution her in strong language not only for the protection of the public but also for her own protection to be very careful in explaining her services to the public.
[15] We agree with Mr. Frost that the panel was not authorized to issue a reprimand in the nature of discipline, but only to issue remedial guidance. We are not, however, persuaded that the panel crossed over the line in the circumstances of this case.
[16] In his factum, Mr. Frost pursued other grounds which were not pressed in oral argument in support of the application for judicial review. While we have considered those submissions, we see no reason to interfere on the basis of those grounds.
[17] The application therefore for judicial review is accordingly dismissed.
COSTS
[18] I have endorsed the Application Record as follows, “The application is dismissed for oral reasons delivered this day. In our view, this is not an appropriate case for costs.”
[19] I do appreciate the submissions of counsel. I think you have been very succinct and you have been helpful. The Court is appreciative of your efforts in that regard. Thank you.
THEN J.
DAMBROT J.
MACKINNON J.
Date of Reasons for Judgment: May 1, 2014
Date of Release: May 12, 2014
CITATION: Ren v. College of Massage Therapists of Ontario, 2014 ONSC 2758
DIVISIONAL COURT FILE NO.: 456/13
DATE: 20140501
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, DAMBROT AND MACKINNON JJ.
BETWEEN:
GRACE REN
Applicant
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
THEN J.
Date of Reasons for Judgment: May 1, 2014
Date of Release: May 12, 2014