CITATION: College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2023 ONSC 864
DIVISIONAL COURT FILE NO.: DC-21-010-00
DATE: 20230208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Newton, O’Brien JJ.
B E T W E E N:
Michael Venneri
Appellant
Self-represented
- and -
College of Traditional Chinese Medicine Practitioners AND Acupuncturists of Ontario
Respondent
Natasha Danson, for the Respondent
Heard: by videoconference in Toronto on February 1, 2023
Backhouse J.
REASONS FOR DECISION
Overview
[1] Mr. Venneri (the “Appellant”) has brought a statutory appeal against a decision by the Health Professions Appeal and Review Board (the “Board”), dated August 22, 2018. The Board confirmed an earlier decision of the Registration Committee of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “Respondent” or “College”), dated August 22, 2018, which concluded that the Appellant did not meet the requirements for registration as a Traditional Chinese Medicine (“TCM”) Practitioner and Acupuncturist. The Appellant asks the court to set aside the Board’s decision. The Respondent asks the court to dismiss the appeal.
Background
The Grandparented Class of Registration and the Transfer Route to the General Class
[2] The College regulates the practice of TCM and acupuncture in the province of Ontario. Its duty is to serve and protect the public interest under the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991 (the “Code”) and the Traditional Chinese Medicine Act, 2006 (the “Act”).[^1]
[3] When the College was established on April 1, 2013, it set up several categories of registration under O.Reg. 27/13 (“TCMA Regulation”).[^2] The Grandparented class allowed established TCM practitioners and acupuncturists to transition gradually into the newly regulated profession. Effectively, those who applied to the Grandparented class between April 1, 2013 and April 1, 2014 could defer a competency assessment for up to five years.[^3]
[4] Once admitted, Grandparented members had until April 1, 2018 to transfer to the general class by satisfying a number of requirements. Most relevant to this appeal was the requirement to complete a prior learning assessment process (“PLAR”). One path to completing the PLAR was through the completion of a case study assessment which was the path chosen by the Appellant.[^4] The Registration Committee could exempt Grandparented members from the PLAR requirement, but only in the clearest of cases given that these members had not otherwise had their competencies assessed.[^5] All Grandparented members were required to complete their PLAR case study assessments by July 1, 2017, with additional attempts permitted on an as needed basis until November 1, 2017.
[5] Only members of the College can call themselves acupuncturists and provide TCM diagnoses. However, registered members of the College of Chiropractors of Ontario of which the Appellant is one, can provide acupuncture.[^6]
Events Giving Rise to the Registration Committee’s Decision
[6] The Registration Committee initially refused the Appellant’s application to become a member of the Grandparented class. The Appellant applied for a Board hearing to review that decision. Prior to the Board’s review, the College retained an expert, Mr. Richard Kwan, a TCM practitioner. He reviewed three patient records of the Appellant and opined in a Report dated March 12, 2016 that the Appellant had conducted “traditional Chinese medicine patient visits.” A copy of Mr. Kwan’s report was sent to the Appellant’s counsel on April 14, 2016 who responded back to the College. The Appellant denies receiving Mr. Kwan’s report at this time. The Registration Committee was satisfied on the basis of Mr. Kwan’s report, that the Appellant had completed the requisite number of TCM patient visits and the Appellant became a member of the Grandparented class on July 4, 2016 .
[7] The Appellant attempted the PLAR case study assessment on June 8, 2017 and again on October 23, 2017, both times unsuccessfully. The College provided a summary of its findings on both occasions. He was also informed that his membership in the Grandparented class would expire on April 1, 2018, after which his only path to registration in the general class would be the same as those not transferring from the Grandparented class. The Appellant requested a more detailed review of the results from the second attempt. The College advised that the findings previously communicated to him were the product of deliberations by a team of professional TCM practitioners trained in and retained to independently evaluate his case study assessment. The Appellant was advised that further details could not be disclosed without compromising the integrity of the PLAR process.
The Registration Committee Directs the Registrar to Refuse the Appellant’s Application
[8] The Appellant applied to transfer to the general class once again on March 29, 2018. The Registrar referred the application to the Registration Committee based on the concern that the Appellant had not completed the requisite number of TCM patient visits, nor had he successfully completed the PLAR case study assessment.
[9] The Registration Committee rendered its decision on August 22, 2018, concluding it was in the public interest to refuse to grant the Appellant a certificate of registration. In reaching this decision, the Committee had the benefit of written submissions from the Appellant. These submissions set out, among other things, that his father’s recent passing had affected his performance in the PLAR case study assessments. He also referenced Mr. Kwan’s report and Mr. Kwan’s determination that the Appellant’s patient visits constituted TCM patient visits.[^7]
[10] The Registration Committee was not satisfied that the Appellant met the required TCM competencies. Neither was it convinced that the “significant deficiencies” in his knowledge of TCM could be remedied by imposing terms, conditions or limitations on his certificate of registration, noting it was “very concerned” with the findings in his PLAR case study assessments. The committee expressed a particular concern that his treatment plans could compromise his patients’ health. While sympathetic about the passing of his father, the Committee wrote that in the absence of evidence that he stopped his chiropractic or TCM practice this could not explain why the Appellant could not satisfy the PLAR requirement, which tests for already-acquired skills. Lastly, the Registration Committee explained that while it may have exempted the Appellant from the required number of patient visits, the issue was moot as he had not satisfied the PLAR requirement. The Registration Committee found that there was no evidence to justify exempting him from the PLAR requirement.[^8]
The Board Denies the Appellant’s Requests to Adjourn
[11] On September 21, 2018, the Appellant requested that the Board review the decision on his application for registration. The parties set a timetable for the exchange of materials in May 2019 (the “May 2019 Timetable”), pursuant to which the Appellant was required to provide 15 days’ notice of any witnesses he intended to call. He was also required to provide any expert reports he intended to rely on 45 days in advance of the hearing.
[12] On December 10, 2019, the College provided the Board with two documents: 1) Mr. Kwan’s report from 2016, and 2) the College’s letter dated June 10, 2016 informing the Appellant of its decision to register him in the Grandparented class. The College forwarded these documents to the Appellant on January 3, 2020. Both had been disclosed to him in 2016 during his application to register as a Grandparented member.
[13] On January 7, 2020, the Appellant requested an adjournment of the Board hearing scheduled for January 14, 2020. He said he needed more time to prepare his case and review the documents sent on January 3. He also stated he required full disclosure. The College responded that it had met its disclosure obligations. The Board denied the request, noting the documents were not new to him.
[14] The Appellant renewed his request for an adjournment at the hearing on January 14, 2020, submitting that he wished to have his PLAR case study assessments reviewed by an independent expert. In connection with this, he asked the College to disclose information about the PLAR evaluation process. Despite the May 2019 Timetable, he indicated for the first time that he intended to adduce an expert report. The Board denied the request. It was not satisfied that the Appellant had taken concrete steps to line up an expert. Further, he did not meet the requirement to provide the expert report 45 days before the hearing. Finally, the information requested about the PLAR evaluation process would compromise the integrity of the assessment and the College was not prepared to disclose it.
The Board Confirms the Registration Committee’s Decision
[15] The Board determined the issue on the application was whether the Appellant had satisfied the PLAR requirement. It answered this question in the negative, largely on the basis of the evaluation reports from his two attempts in 2017. The Board had previously found the PLAR process was “relevant, comprehensive and fair”, consistent with the College’s public interest mandate.[^9] The Board found the evidence the Appellant put forward to challenge this process was not compelling. The Appellant’s reliance on a textbook prepared by Howard Xu, an acupuncturist whose certificate of registration was revealed to be suspended at the time, was not persuasive as it was not a resource endorsed by the College. The Board concluded that the Appellant had not met the PLAR requirement and that an exemption would be inconsistent with the College’s mandate to protect public safety by ensuring members have demonstrated competency according to professional standards.
Issues
[16] This appeal raises the following issues:
Issue 1: Did the Board err by denying the Appellant’s request for an adjournment?
Issue 2: Did the Board err by determining that the Appellant did not meet the requirements to be registered in the General Class?
Court’s Jurisdiction
[17] This court has jurisdiction to hear the appeal pursuant to s. 70 of the Code. The appeal may be made on questions of law or fact or both. The court has all the powers the Board had when it dealt with the matter, specifically:
Confirming the order made by the panel.
Requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the applicant if the applicant successfully completes any examinations or training the Registration Committee may specify.
Requiring the Registration Committee to make an order directing the Registrar to issue a certificate of registration to the applicant and to impose any terms, conditions and limitations the Board considers appropriate.
Referring the matter back to the Registration Committee for further consideration by a panel, together with any reasons and recommendations the Board considers appropriate.
Any orders under subparagraph 3. may be made only if the applicant substantially qualifies for registration and where the panel of the Registration Committee exercised its powers improperly.[^10]
Standard of Review
[18] Appellate standards of review apply: Correctness on a question of law, palpable and overriding error on questions of fact and mixed fact and law, unless there is an extricable question of law.[^11]
[19] The Respondent submits that both issues raised on the appeal are questions of mixed fact and law. Further, it submits that the question of whether to grant an adjournment is discretionary and contextual as the decision-maker must balance the interests of the parties along side timely dispositions and the administration of justice.
Positions of the Parties
Issue #1: Did the Board err by denying the Appellant’s request for an adjournment?
Appellant’s Position
[20] The Appellant submits the Board erred by:
• Denying his request for an adjournment despite the Respondent’s violation of its obligation to provide complete disclosure pursuant to s. 16.1 of the Code and Rules 15.5 and 15.6 of the Board’s Consolidated Rules of Practice and Procedure.[^12]
• Underappreciating the importance of registration for the Appellant’s livelihood.
• Making a factual finding that Mr. Kwan’s report had been disclosed to the Appellant.
Issue #2: Did the Board err by determining that the Appellant did not meet the requirements to be registered in the General Class?
[21] The Appellant submits that the Board erred by:
• concluding there was no information before the Board that could challenge the PLAR assessment.
• The Board ignored the Howard Xu textbook. It did not refute the Appellant’s arguments that the textbook is authoritative and that the answers he provided using that textbook were correct.
• The Board mischaracterized the nature of the Appellant’s appeal as a challenge against the PLAR requirement rather than the process by which his answers were evaluated.
• Failing to address issues in the College’s registration process exposed by the suspension of Howard Xu.
Respondent’s Position
[22] The Respondent submits that the Appellant has not demonstrated a palpable and overriding error in the Board’s decision. It was reasonable for the Board to determine that sending a copy of Mr. Kwan’s report to the Appellant in January 2000 when it was a document already in his possession from the 2016 proceedings was not a sufficient reason to grant an adjournment. Further, the PLAR is an established basis on which the Committee may refuse to issue a certificate of registration. The evidence here is that the Appellant did not meet the PLAR competency assessment. It was reasonable for the Board to determine that the Xu textbook was not a reliable basis upon which to challenge the results of the two PLAR competency assessments.
Analysis
Issue #1: Did the Board err by denying the Appellant’s request for an adjournment?
[23] In the administrative law context, this court has held that decisions of a hearing panel are discretionary as an inherent aspect of a tribunal’s power to control its own processes. These decisions are usually accorded deference unless they amount to a breach of natural justice or procedural fairness. The court should examine whether the decision maker exercised its discretion in an unreasonable or non-judicious fashion in light of all the competing interests it had to balance and the interests of justice.[^13]
[24] On January 7, 2020, the Appellant requested an adjournment of the hearing scheduled for January 14, 2020. The Board’s reasons for denying that request are set out below:
Requests for Adjournment of the Board Hearing
42 On January 7, 2020, the Applicant wrote to the Board requesting an adjournment of the hearing of his application for registration. The Applicant told the Board that he needed more time to properly present his case and review the documents that he had received from the College and obtain “full disclosure”. The Applicant stated that his repeated requests for disclosure from the College remained unanswered.
Counsel for the College acknowledged that it would not suffer prejudice should the request for adjournment be granted, as it did not plan to call any witnesses at the hearing. However, Counsel indicated that disclosure had been provided to the Applicant and the College was anxious to “bring the matter to a close.”
The Board noted that the documents provided by the College in December 2019 were documents that had originated at the time of the Applicant’s application for registration in the Grandparented class. The Applicant had referred to the expert report of Richard Kwan, R.CTMP in his submissions to the College in May 2018. There was no suggestion that the Applicant had not received the letter addressed to him from the College in June 2016 informing him of the Committee’s decision to issue him with a certificate of registration as a member of the Grandparented class.
The Board therefore determined that the documents sent to the Applicant on January 3, 2020 were not new documents and they did not provide grounds for granting an adjournment of the hearing.
In respect of the Applicant’s requests for disclosure from the College, it appeared to the Board that the disclosure provided by the College pursuant to its duties under section 21(3) of the Code, had been provided to the Applicant in electronic form and in bound hard copy. There was no information before the Board regarding other requests for disclosure.
Accordingly, the Board refused the Applicant’s written request for an adjournment.
[25] In support of his argument that he had not received Mr. Kwan’s report prior to January 3, 2020, regrettably, the Appellant misquotes the email Ms. Durcan of the College wrote to the Board on December 19, 2019. In paragraph 28 of his factum the Appellant states:
28.Rebecca Durcan confirms for the CTCMPAO in her email of January 3, 2020 that the Appellant has never received Dr. Richard Kwan’s expert opinion prior to this email.
Rebecca Durcan’s email of January 3, 2020 states:
Mr. Venneri made reference to the expert opinion in his submissions, however a copy of the expert opinion was not provided to him. (Emphasis added).
[26] The email was December 19, 2019, not January 3, 2020. The Appellant added the words “to him”, which changes the meaning. The correct meaning appears to be that the College was providing to the Board a copy of the expert report to which the Appellant had referred in his submissions to the College without his having provided a copy of the report to the Board. None of this disproves the April 14, 2016 letter showing that the Appellant’s counsel was sent Mr. Kwan’s report and responded to it years before the hearing before the Board took place. Having made reference to Mr. Kwan’s report in his submissions, it is apparent that the Appellant was aware of the report. If he no longer had a copy and required it, he could have requested it from the College which he did not.
[27] Moreover, the Board’s procedural rules apply to disclosure of expert reports the party intends to rely on at the hearing.[^14] Mr. Kwan’s report is irrelevant to the issues before the College and the Board. Mr. Kwan reviewed three patient records of the Appellant and opined in April, 2016 that the Appellant had conducted “traditional Chinese medicine patient visits.” He did not conduct a competency review which is what is relevant to the decision from which the Appellant appeals.
[28] The Board made a finding of fact that the documents sent to the Appellant on January 4, 2020 were not new documents to the Appellant and that he had received disclosure from the College pursuant to its duties. The record supports this finding. There is no palpable and overriding error in the Board’s exercise of its discretion that there were not grounds for granting an adjournment of the hearing.
[29] The Board’s refusal to adjourn the proceedings at the outset of the hearing so that the Appellant could retain an independent expert to have his PLAR case study assessment reviewed was also not an error. Again, this is a discretionary decision which requires the Board to balance the interests of the party seeking the adjournment with the administration of justice including the timely resolution of proceedings. The Board gave appropriate reasons for refusing the further request to adjourn the proceedings-that there was no indication that the Appellant had lined up experts who would provide an opinion regarding PLAR, that he had an obligation to provide any report he intended to rely on at least 45 days before the hearing and the College’s position which had been conveyed to him in December 2017 that disclosing further information on competency assessments could compromise the integrity of the assessment process.
[30] The Board exercised its discretion in a reasonable, judicious fashion in light of all the competing interests it had to balance and the interests of justice. There was no breach of natural justice or procedural fairness in either of the Board’s decisions not to adjourn and deference is owed to these decisions.
[31] There is no merit to the Appellant’s submission that the Respondent was in violation of its obligation to provide complete disclosure. Nor is there any merit to the Appellant’s submission that the Board erred by underappreciating the importance of registration for the Appellant’s livelihood. The Board’s role was to determine whether the Appellant did not meet the requirements as a TCM practitioner and acupuncturist, not whether the registration was important for his livelihood.
[32] There was no onus on the Board to refute the Appellant’s submission that the Howard Xu textbook was authoritative. The suspension of Howard Xu was not before the Board.
Issue #2: Did the Board err by determining that the Appellant did not meet the requirements to be registered in the General Class?
[33] The Appellant failed the PLAR case study assessment on two occasions with a finding of “significant deficiencies” in his knowledge of TCM “which could potentially compromise a patient’s health.” Apart from defending his own answers, the Appellant relied upon the Howard Xu textbook which was not endorsed by the College. Mr. Xu was suspended from the College and facing professional misconduct proceedings where it was alleged that he issued false or misleading documents that facilitated false or misleading applications to the College. There was no error in the Board’s determination that the Xu textbook was not a reliable basis upon which to challenge the results of the Appellant’s two PLAR competency assessments. In these circumstances, the Board did not err in concluding that there was no information before the Board that challenged the PLAR assessments.
Conclusion
[34] In the result, the appeal is dismissed.
Costs
[35] The Respondent is entitled to the costs of the appeal in the amount of $14,000.
Backhouse J.
I agree Newton J.
I agree _______________________________
O’Brien J.
Released: February 8, 2023
CITATION: College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2023 ONSC 864
DIVISIONAL COURT FILE NO.: DC-21-010-00
DATE: 20230208
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Newton, O’Brien JJ.
B E T W E E N:
MICHAEL VENNERI
Appellant
- and -
COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND
ACUPUNCTURISTS OF ONTARIO
Respondent
REASONS FOR DECISION
Backhouse J.
Released: February 8, 2023
[^1]: Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, SO 1991, c 18 at s. 3(1)1; Traditional Chinese Medicine Act, 2006, SO 2006, c 27 at s. 5 [Act].
[^2]: (historical version for the period December 31, 2013 to March 31, 2019), at s. 2.
[^3]: TCMA Regulation, at ss. 6, 7 and 9.
[^4]: The other way to join the general class registration was under s.9(3) (b) (i) of O.Reg.27/13 which entailed a portfolio review of a person’s educational qualifications.
[^5]: TCMA Regulation, at ss. 9(3) and (4).
[^6]: Traditional Chinese Medicine Act, 2006, S.O. 2006, c. 27, at ss. 4 and 8 [TCMA]; O.Reg. 107/96, at s. 8(2).
[^7]: S.9(3)(a) of O.Reg.27/13 requires a Grandparented applicant to have at least three years of clinical experience in the profession consisting of at least 1,200 traditional Chinese medicine patient visits.
[^8]: Registration Committee Decision [B132-B135].
[^9]: Decision, at para. 82, citing C.L.C. v College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2019 24916, at para. 58.
[^10]: Code, ss. 22(6)-(7), 70(3).
[^11]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 17; Housen v. Nikolaisen, 2002 SCC 33, at paras. 8-18; 26-37.
[^12]: Consolidated Rules of Practice od Health Professions Appeal and Review Board and the Health Services Appeal and Review Board, May 1st, 2013.
[^13]: Evgueni Todorov and Sophia Nikolov v. Ontario Securities Commission, 2018 ONSC 4503 (Div. Ct.), at para. 34; Senjule v. Law Society of Upper Canada, 2013 ONSC 2817 (Div. Ct.), at paras. 21-22.
[^14]: S.16.1 of the Code and Rule 15.5 and 15.6 of the Board’s Consolidated Rules of Practice and Procedure.