Court File and Parties

Citation: Yuan, Li v. Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2014 ONSC 351

Divisional Court File No.: 343/13

Date: 2014-01-31

Superior Court of Justice – Ontario Divisional Court

Re: Dr. James X. N. Yuan, Dr. Jia Li, Andre Rekai, Rui Fen Yao, Tong Liu and Federation of Ontario Traditional Chinese Medicine Association, Applicants

And: Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario and Minister of Health and Longterm Care of Ontario, Respondents

Before: Whalen, Lederman and Kiteley JJ.

Counsel: Rocco Galati, for the Applicants Rebecca C. Durcan and Marc H. Spector, for the Respondent, Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario S. Zachary Green and Padraic Ryan, for the Respondent, Minister of Health and Longterm Care of Ontario

Heard: January 7, 2014

Endorsement

[1] This is an application for a declaration that Ontario Regulation 27/13 (“The Registration Regulation”) passed under the Traditional Chinese Medicine Act, 2006, S.O. 2006, c. 27 (the “TCMA”) is ultra vires and that it breached sections 7 and 15 of the Canadian Charter of Rights and Freedoms (“the Charter”).[^1]

Ultra Vires Issue

[2] The Applicants submit that the Registration Regulation is inconsistent with and fails to meet the objectives of the TCMA as evidenced by extensive consultation with the public and profession, the report of a public consultation group (Traditional Chinese Medicine and Acupuncture in Ontario, Report to the Minister of Health and Long Term Care, summer 2005), the proceedings of a legislative committee and the legislative debates. They argue that the focal point of the TCMA was the regulation of the use of the title “doctor” in the practice of Traditional Chinese Medicine (“TCM”) and the creation of a licence class for practitioners of TCM using the title “doctor”. They submit that the doctors of TCM are highly trained and deal with the full spectrum of TCM. While the TCMA enables the passing of such regulations, they have not yet been enacted. Instead of creating a “doctor” class, the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (“the College”), has enacted a Registration Regulation certifying lower levels of the practice of TCM, namely “General”, “Grandparent”, “Student”, “Temporary” and “Active”, for which the TCMA permits the use of the titles of “traditional Chinese medicine practitioner” or “acupuncturist”. Because of this omission, the Applicants argue that the College has effectively eviscerated the essence of TCM practice as envisioned by the TCMA.

[3] In the case of Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64 (paras. 24-28), the Supreme Court of Canada recently confirmed that the following principles are to be applied by courts in considering whether regulations are consistent with the objective of their enabling statute and the scope of their statutory mandate:

(i) Regulations benefit from a presumption of validity, which: (a) places the burden on the challengers to demonstrate invalidity, and (b) favours an interpretive approach that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires:

(ii) Both the challenged regulation and the enabling statute should be interpreted using a broad and purposive approach;

(iii) The court’s enquiry does not involve assessing the policy merits of the regulation or the underlying motive of enactment;

(iv) The court should not inquire into the underlying political, economic, social or partisan considerations for the regulations, and;

(v) To be found ultra vires on the basis of inconsistency with statutory purpose, regulations must be “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose.

[4] The Registration Regulation is authorized by and consistent with the scope of regulations permitted under sections 95(1) (a), (b), (c), (d), (f) and (p) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“RHPA”). By operation of s.2(1) of the TCMA, the RHPA is deemed to be a part of the TCMA. The same regulatory scheme applies to 23 other groups of health care professionals that are also regulated by statute in Ontario and have similar professional Colleges.

[5] Section 12 of the TCMA provides that the College “may make regulations” in respect of the use of the “doctor” title, prescribe a class of certificates of registration for members using that title, prescribe standards and qualifications, setting examinations and other such related matters. At paragraph 55 of her affidavit, former College Registrar Emily Cheung gave evidence that:

The College anticipates that it will soon begin developing the competencies for “Doctors of TCM” and working with the Ministry to create regulations establishing a new class of members who can use the title “doctor”.

[6] The College has elected to commence with regulations dealing with the classes and titles already described, which the Applicants argued dealt with a lesser part of the overall discipline of TCM, albeit part of it, and not the core purpose of the TCMA. In response, the Respondents pointed out that the section of the TCMA creating the College had only been proclaimed on April 1, 2013. By fashioning the Registration Regulation first, “practitioners” and “acupuncturists” were able to practise. Nearly 2,000 members had been registered since that time.

[7] Until a regulation prescribing the use of the title “doctor” is enacted, s.33 of the RHPA prohibits the use of the title “doctor”, which was the case before the enactment of the TCMA. When the College is ready to enact a regulation under s.12 of the TCMA, s.33(2.1) of the RHPA will be proclaimed and the prohibition against the use of the title “doctor” under that Act will be exempted. The fact that there is no doctor class yet under the TCMA does not affect the scope of practice set out in s.3 of the TCMA and the acts authorized under s.4 of that Act. We conclude that if, when and how the College enacts one or more regulations under s.12 of the TCMA is a matter of policy that cannot be part of the court’s consideration.

[8] For these reasons, the presumption of validity has not been overcome. We are not persuaded that the Registration Regulation is ultra vires.

Application of Section 7 of the Charter

[9] The practitioner Applicants[^2] submitted that the Registration Regulation breaches their right to practise TCM, contrary to s. 7 of the Charter. However, we find the Ontario Court of Appeal’s decision in Mussani v. College of Physicians and Surgeons of Ontario, 2004 48653 (ON CA), [2004] O.J. No. 5176 at paras. 39 to 43 answers this argument. At para. 42, the court stated that “the weight of authority is that there is no constitutional right to practise a profession unfettered by the applicable rules and standards which regulate that profession.” Even if there was such a right, there was no denial here, because by their own choice and for their own reasons, the practitioner Applicants have not applied for registration under the TCMA. Nor was there any evidence about how their own TCM practices have been affected by the coming into force of the TCMA and the Registration Regulation. There is no evidence of deprivation.

[10] The Applicants also argued that the patients are being deprived of access to full-fledged TCM doctors, which affects their physical and psychological integrity and amounts to a breach under s.7 of the Charter. Four patients gave evidence.[^3] Ms. Liu thought that her practitioner was registered with the College, while Ms. Yao did not know if her practitioner was registered. Mr. Rekai did not know whether the best practitioners were members of the College and Mr. Merrin believed that his practitioner was in the process of registering with the College. None said that they had been deprived of competent treatment or care by a qualified practitioner. In the absence of deprivation there can be no breach of s.7 of the Charter.

Application of Section 15 of the Charter

[11] Section 4(1) of the Registration Regulation requires that applicants for membership in the TCM College be able to speak, read and write either English or French with reasonable fluency. Section 4(2) exempts members of the Grand-parented class from this requirement, and s.7(1) requires such a member to practise in accordance with a written plan submitted by the member and that has been approved by a panel of the Registration Committee as being one that effectively deals with inter-professional and continuity of care issues arising from the member’s lack of fluency in English or French. The practitioner Applicants pointed out that TCM is culturally, racially and linguistically Chinese-based and therefore there should be no language restrictions. They submitted that the language fluency requirements in the Registration Regulation were discriminatory and contravened s.15 of the Charter.

[12] However, in Lalonde v. Ontario (Commission de restructuration des service de santé), 2001 21164 (ON CA), [2001] O.J. No. 4767 (C.A.) at paras. 96 to 101, the Ontario Court of Appeal ruled that language alone is not a protected ground under s.15 of the Charter, and that the Charter cannot be used directly or indirectly to expand language rights beyond the English and French languages protected under s.16.

[13] It is clear that the TCMA and its Regulations do not prohibit the practice of TCM in Chinese or in any other language. Language fluency requirements are also common to all other health professions in Ontario, the public interest being the ability of health care providers to respond to inquiries about patients from other health professionals, to comprehend patient records from other health professionals, to provide speedy and accurate information about a patient during emergency and to communicate and work collaboratively with other parts of the health care community. These are not discriminatory requirements.

[14] Applicants for membership in the TCM College must also pass an exam in jurisprudence (dealing with the structure of the TCMA and its Regulations, privacy, ethics and other legal issues generally relevant to health care) and another exam in safety. Associated with registration in the College, s.12 of the TCMA permits the enactment of regulations requiring successful completion of examinations set by the College. The exams are a test of their knowledge of the prescribed legal and safety information and are in accord with the College’s duty to serve and protect the public interest.

[15] The College accommodates registrant candidates who have language difficulties by permitting the use of a dictionary, a translator, unlimited opportunity to rewrite and even permission to take the exam home where translation assistance might be available. Also, the Grand-parented members are exempted from the language fluency requirement if they practise according to an approved plan as already discussed.

[16] The practitioner Applicants submitted that they did not have sufficient English or French to pass the exams, although they could communicate sufficiently in their practices. Also, they did not regard the accommodations as sufficient to overcome the discrimination they alleged and which they suggested might bar them and other qualified practitioners from practice, or might discourage qualified practitioners from even trying to register.

[17] We conclude that the exams are not a test of English or French language fluency, and that in any event there is reasonable accommodation to assist those with language difficulties. Also, none of the practitioner Applicants have attempted to take the exams, even with the accommodations offered and consequently there is no evidence of any discriminatory impact. In the absence of such evidence, there can be no breach of s.15.

Conclusion

[18] For these reasons, the application is dismissed.

Costs

[19] Counsel may make written submissions not to exceed three pages on the following schedule:

(a) for Respondents, 15 days from the release of this Endorsement;

(b) for the Applicants, 15 days from the date of service of the last of the Respondents’ submissions on costs; and

(c) for the Respondents, 10 days for reply from the date of service of the Applicants’ submissions on costs.

WHALEN J.

LEDERMAN J.

KITELEY J.

Released: January 31, 2014

[^1]: During the course of argument, the Applicants’ counsel withdrew the relief claimed in subparagraphs (i), (ii), (iii)(C), and (v) of paragraph 1(a) of the Notice of Application, and also as claimed in paragraph 1(b) of the Notice of Application.

[^2]: Yuan and Li

[^3]: Three are Applicants: Rekai, Yao and Liu