ONTARIO MASSAGE THERAPISTS DISCIPLINE TRIBUNAL
Tribunal File No.: PC-10246 and PC-10443
BETWEEN:
College of Massage Therapists of Ontario
College
- and -
Gail-Anne Cumberbatch
Registrant
REASONS FOR DECISION
Heard: May 1, 2025, by videoconference
Panel:
Jennifer Scott (panel chair)
Charles Gollob (massage therapist)
Brian Highgate (public)
Jim Marinow (massage therapist)
Howard Shears (public)
Appearances:
Emily Graham, for the College
Gail-Anne Cumberbatch, self-represented
RESTRICTION ON PUBLICATION
Pursuant to Rule 2.2.2 of the HPDT Rules of Procedure and ss. 45-47 of the Health Professions Procedural Code, no one shall publish or broadcast the names of clients or any information that could identify clients or disclose clients’ personal health information or health records referred to at a hearing or in any documents filed with the Tribunal. There may be significant fines for breaching this restriction.
The Ontario Massage Therapists Discipline Tribunal is the Discipline Committee established under the Health Professions Procedural Code.
Introduction
1The registrant, Gail-Anne Cumberbatch (Registrant), admits that she engaged in professional misconduct when she practised massage therapy as a Registered Massage Therapist and issued receipts for massage therapy treatments while suspended. She provided 683 treatments during the periods her certificate of registration was suspended.
2The parties jointly submitted the penalty for this misconduct should be a reprimand and revocation of the Registrant’s certificate of registration. They proposed costs of $5,852.
3A joint submission must be accepted unless it is contrary to the public interest. The parties’ joint submission is not contrary to the public interest, and we made the order requested. These are our reasons.
Findings of Misconduct
4The Registrant’s certificate of registration was suspended three times for a period of approximately 3.5 years in total. The suspensions occurred on the following dates:
a. January 2, 2013 to December 23, 2014;
b. January 1, 2021 to January 12, 2022;
c. January 18, 2022 to June 26, 2022.
5The first two suspensions were because of non-payment of fees. The third suspension was ordered by the Discipline Committee (now the Tribunal) because of the Registrant’s failure to comply with a decision of the College’s Inquiries, Complaints and Reports Committee (ICRC) and complete requirements of the Quality Assurance Program. The College told the Registrant that she could not practise massage therapy while she was suspended.
6The Registrant provided massage therapy treatments and issued receipts as a Registered Massage Therapist while under suspension. During the first suspension, she provided 95 treatments, during the second suspension, she provided 457 treatments and during the third suspension, she provided 131 treatments. The Registrant received payment for each of the 683 treatments she provided while suspended and issued receipts, using her College registration number and the title of “Registered Massage Therapist,” for 465 massage therapy treatments.
7A person whose certificate of registration is suspended is not a registrant of the College. As a result, the Registrant was not permitted to receive any form of benefit from the practice of massage therapy, use the title “Massage Therapist” or “Registered Massage Therapist” or hold herself out as a Massage Therapist during the periods of her suspensions. See College of Massage Therapists of Ontario v. Amiri-Pour, 2023 ONCMTO 25.
8The Registrant committed professional misconduct when she received a benefit from the practice of massage therapy and held herself out as a Registered Massage Therapist, while suspended. In doing so, she also engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. These are acts of misconduct under paragraphs 13, 41 and 44 of section 26 of Ontario Regulation 544/94 made under the Massage Therapy Act, 1991.
Penalty and Costs
9The parties jointly submitted the penalty in this case should be a reprimand and revocation of the Registrant’s certificate of registration.
10Our role is limited when the parties agree on penalty. We should only depart from a joint submission if the proposed penalty is not in the public interest because it would bring the administration of justice into disrepute or is contrary to the public interest in some other way: R. v. Anthony-Cook, 2016 SCC 43 at para. 32.
11A joint submission is not in the public interest when it is so unhinged from the circumstances of the case, that reasonable and informed persons aware of those circumstances believe the proper functioning of the professional discipline system has broken down: Anthony-Cook at para. 34. This is a very high test.
12In determining whether the proposed penalty is contrary to the public interest, we have considered the seriousness of the Registrant’s misconduct, her discipline history and the caselaw on penalties in similar cases, because these are the factors that are relevant to this question.
13The Registrant’s misconduct is serious. Over a total suspension period of 3.5 years, she practised massage therapy knowing it was not permitted. Her conduct was deliberate, repeated and long-standing, and it was done for financial gain. The Registrant received insurance payments to which she was not entitled because she was not registered with the College. The Registrant knew that she could not practise massage therapy while suspended and she did so anyway.
14The Registrant has a prior discipline history. In January 2022, the Discipline Committee found that she had engaged in professional misconduct when she failed to comply with a decision of the ICRC, which required her to complete a Specified Continuing Education or Remediation Program and attend before a panel of the ICRC to be cautioned, and when she failed to respond to the College about these outstanding requirements. The Discipline Committee also found she failed to meet certain requirements of the College’s Quality Assurance Program, namely, the 2019 STRiVE components and a 2020 practice assessment, and did not respond to the College about these failures.
15Over a prolonged period, the Registrant refused to follow the rules of the profession in many ways. She failed to follow the College’s direction that she could not practise massage therapy while under suspension. She failed to comply with an ICRC decision and failed to meet the requirements of the Quality Assurance Program. She failed to comply with the order of the Discipline Committee by disregarding the discipline suspension. The Registrant has shown a flagrant disregard for her obligations as a Registered Massage Therapist. Through these many failures, she has shown that she will not or cannot comply with the obligations of the profession.
16The Registrant has an extensive history of non-compliance. Any further suspension and/or conditions on her certificate of registration will have little effect because it is highly likely that she will not comply with any restrictions imposed upon her. The Registrant is ungovernable and must be revoked for this reason. The caselaw provided by the College supports this finding. See College of Nurses of Ontario v. Vanderzwaag, 2019 CanLII 73942 and Zeng v. Ontario (Alcohol and Gaming Commission of Ontario), 2016 ONSC 3917 (Div Ct.).
17The joint submission protects the public interest. The reprimand and revocation send a strong message to the members of the profession that they must abide by the rules of the profession, the directions of the College and the orders of the ICRC and the Discipline Committee (Tribunal). If they refuse to do so, they are at risk of having their certificates of registration revoked. The penalty protects the public and demonstrates the College’s professional discipline system is working. It is accepted for these reasons.
18Although not part of the penalty, the parties agreed on costs to be paid by the Registrant. The costs proposed are reasonable and in accordance with Tariff A in the Rules of Procedure of the Health Professions Discipline Tribunals.
Order
19We made the following order on penalty and costs on May 1, 2025:
a. The Tribunal requires the Registrant to appear before the panel immediately following the hearing of this matter to be reprimanded, with the fact of the reprimand and the text of the reprimand to appear on the public register of the College.
b. The Tribunal directs the Registrar to revoke the Registrant’s certificate of registration effective immediately.
c. The Tribunal requires the Registrant to pay the College costs in the amount of $5,852 by June 2, 2025.