Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2022 ONSC 5464
CITATION: Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2022 ONSC 5464
DIVISIONAL COURT FILE NO.: 087/19
DATE: 20221005
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
The Honourable McWatt A.C.J.S.C.J., Molloy and Morgan JJ.
BETWEEN:
NATHALIE XIAN YI YAN
Appellant
– and –
COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO
Respondent
Nathalie Yan for Herself, the Appellant
Erica Richler, for the Respondent
HEARD at: Toronto on August 17, 2022 by Videoconference
MCWATT A.C.J.S.C.J.
OVERVIEW
[1] Nathalie Xian Yi Yan is appealing findings of professional misconduct and the order regarding penalty and costs made by the Discipline Committee of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (“the Committee or the College”).
[2] On October 1, 2018, the Committee found that Ms. Yan committed professional misconduct by (1) charging a misleading patient fee; (2) failing to provide information about medications; (3) charging a fee based on a patient’s racial descent; (4) improperly using the title of “doctor”; (5) treating a patient in a non-private area; (6) failing to keep records; and (7) failing to cooperate with the College’s investigator.
[3] On January 17, 2019, it ordered a reprimand, a 10-month suspension, various terms, conditions, limitations on her certificate of registration, and a $300 fine. The Committee also ordered Ms. Yan to pay the College’s costs of $65,000.
ISSUES ON THIS APPEAL
Were the investigation and hearing conducted in a fair manner?
Were the Panel’s factual and credibility findings reasonable?
Was there a reasonable apprehension of bias on the part of the Panel chairperson?
Was the Panel’s decision on penalty and costs unfit?
STATUTORY CONTEXT
[4] The College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario governs the practice of Traditional Chinese Medicine in Ontario. The profession is regulated in accordance with the Regulated Health Professions Act, 1991 (the “RHPA”); the Health Professions Procedural Code (the “Code”), being Schedule 2 to the RHPA; and the Traditional Chinese Medicine Act, 2006, S.O. 2006, c.27.
[5] The Code sets out a discipline process. The Inquiries, Complaints and Reports Committee (“ICRC”) may refer allegations of a member’s professional misconduct or incompetence to be heard by a panel of the Discipline Committee pursuant to Code, ss. 36(1), 38(1). If the member has committed an act of professional misconduct, as defined in the regulations, the panel shall find that a member has committed an act of professional misconduct, pursuant to subsection 51(1)(c).
THE COURT’S JURISDICTION
[6] The court's jurisdiction to hear the appeal is found in s. 70 of the Health Professions Procedural Code, (Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.)
STANDARD OF REVIEW
[7] The case is a statutory appeal that includes issues targeting procedural fairness and the penalty imposed. Appellate standards of review from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 apply. However, there is no applicable standard of review on issues of procedural fairness. The question is instead whether the appropriate level of procedural fairness was afforded, having regard to the Baker factors (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 77). To review a penalty, the Appellant must show that the Committee made an error in principle or that the penalty was clearly unfit. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances (Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49, at para. 82).
FACTUAL BACKGROUND
[8] The College disagrees with the facts as set out in Ms. Yan’s factum.
[9] The Appellant’s facts also differ from those outlined by the Panel in its findings. The Appellant claims the following:
• A male investigator was waiting at the Appellant’s office when she arrived at 9:20 a.m. on August 3, 2016. He toured the rooms, took pictures, and interviewed the Appellant for hours.
• The Appellant passed out and fell on the floor afterwards. She reported the incident to the Hamilton Police Station.
• The investigator came back on August 30, 2016, and interviewed the Appellant for hours
• The College changed the Appellant’s public registered address of practice, causing her home to be vandalized.
• The Appellant faced harassing phone calls and social media posts.
• The Appellant also makes claims regarding events that occurred after the hearing. These include the fact that she was arrested while trying to observe the council’s annual election, that she received a threatening letter by an expert witness, and that she could not access the College’s website.
[10] In her oral submissions before this panel, the Appellant made no cogent arguments, based on evidence, to displace the facts found by the College at the hearing and I accept them to be as follows.
[11] In May 2016, the College received information that Ms. Yan was charging a registration fee to patients that she told them was required by the government. The College also received information that Ms. Yan was labelling herbs given to her patients in Mandarin only. Based on that information, the Registrar of the College initiated an investigation and on May 11, 2016, the ICRC approved the Registrar’s request for it.
[12] On July 20, 2016, the undercover investigator for the College, Shanna Yee, attended at Ms. Yan’s clinic posing as a patient. Ms. Yee told Ms. Yan that she had a stomachache. Ms. Yan examined Ms. Yee in the entranceway of her clinic, which was accessible to other people. Ms. Yan gave Ms. Yee yellow pills that were not labelled. Ms. Yan told Ms. Yee that she would not charge Ms. Yee because Ms. Yee was Chinese. Ms. Yan also told Ms. Yee that if the pills did not work, Ms. Yan would have to charge her $240 – a fee charged by the government.
[13] On July 21, 2016, the College received a complaint about Ms. Yan from her client, Ms. HA, whose infant daughter had been treated by Ms. Yan in February 2016. Ms. HA complained that Ms. Yan initially told her that there would be no consultation fee for her child’s visit. However, Ms. Yan then charged her $10 for some herbs but told her that she could not provide her with the herbs unless Ms. HA paid a $240 fee to become a patient which was “required by the law”.
[14] On July 28, 2016, based on concerns that arose during Ms. Yee’s visit to Ms. Yan’s clinic and Ms. HA’s complaint, two further investigations into Ms. Yan’s conduct were authorized by the ICRC.
[15] On August 3, 2016, a College investigator, Greg Hutchinson, made an unannounced visit to Ms. Yan’s clinic, but Ms. Yan would not speak to him or cooperate with him without representation by a lawyer. As a result, Mr. Hutchinson only collected records and took photographs of the clinic, agreeing to conduct an interview with Ms. Yan on a later date. Mr. Hutchinson ultimately interviewed Ms. Yan on August 30, 2016.
ALLEGATIONS OF PROFESSIONAL MISCONDUCT
[16] Following the investigation, the ICRC directed that specified allegations of professional misconduct against Ms. Yan be referred to the Discipline Committee.
[17] A Notice of Hearing was issued on July 24, 2017. It alleged that Ms. Yan had engaged in professional misconduct and had contravened a standard of practice of the profession; failed to reply appropriately to a reasonable request by a patient for information respecting a service or product provided by her; failed to itemize an account for professional products or services while practicing the profession; failed to keep records in accordance with the standards of the profession; contravened a provision of the Traditional Chinese Medicine Act, 2006, the Regulated Health Professions Act, 1991, or the Regulations under either of those Acts; and/or engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by the profession as disgraceful, dishonorable or unprofessional.
[18] Ms. Yan denied each of the allegations set out in the Notice of Hearing.
[19] The College called Ms. HA, Mr. Hutchinson, and Ms. Yee as witnesses, as well as an expert qualified to provide opinion evidence on the standards of practice of Traditional Chinese Medicine and acupuncture. Ms. Yan testified in her own defence and called two of her patients, AI and LS, as witnesses.
Charging a Misleading Patient Fee
[20] Ms. HA took her infant daughter to Ms. Yan’s clinic on February 6, 2016, because of a severe diaper rash that resulted in blistering and pain during bowel movements. Ms. HA testified that she contacted Ms. Yan prior to going to her clinic and was told that there would not be a consultation fee because the patient was a child. However, after Ms. Yan assessed the child and recommended a traditional Chinese medicine product, Ms. Yan refused to provide the medication unless Ms. HA paid a registration fee of $240, which she claimed was required by law. Ms. HA’s mother paid the $240 fee as well as an additional $10 for the medication.
[21] Ms. Yan denied she told Ms. HA that the fee was required by law.
[22] Ms. Yee also testified that Ms. Yan told her there was a $240 government mandated fee and said that the government does not “make it easy” for her “to practice anymore.”. Ms. Yan then waived the fee saying that it was because Ms. Yee was Chinese.
[23] Mr. Hutchinson testified that Ms. Yan advised him that every patient paid a $240 registration fee to become a patient and that she refused to treat a patient until the fee was paid, except for some elderly or disabled patients for whom the fee is waived. Ms. Yan also told Mr. Hutchinson that she did not always charge Chinese patients the registration fee because they lead harder lives and she felt sorry for them. The fee was to enable her to “perform a controlled act” that is “based on the government’s code of conduct” and the money went towards her “internal governance system.”
[24] Ms. Yan testified and did not deny charging the fee but asserted that she had never seen the term “government mandated fee” prior to receiving the College’s disclosure. She claimed that the concept of a government mandated fee was being confused by the witnesses with her internal “governance fee”.
[25] Ms. Yan’s two witnesses, AI and LS, both testified that they were patients of Ms. Yan and that they were not aware of a registration fee.
Failing to Provide Information to a Patient and Charging a Fee Based on Racial Descent
[26] It was alleged that Ms. Yan failed to provide information regarding prescribed medication and that she charged fees based on racial descent (particularly whether the patient was Chinese or not).
[27] Ms. Yee was provided pills by Ms. Yan in a bottle that did not identify the name or ingredients of the medication. When Ms. Yee requested the ingredients, Ms. Yan refused and stated that she would only provide the ingredients if Ms. Yee paid the $240 government mandated fee. Ms. Yee testified that Ms. Yan represented to her that she was willing to waive the $240 fee because Ms. Yee was Chinese, but if Ms. Yee insisted on receiving the ingredients the fee would have to be paid. Ms. Yee further testified that Ms. Yan also said that she always charges her “white patients” the $240 fee.
[28] Ms. Yan denied waiving her registration fee because of Ms. Yee’s race or background. She testified that she waived the fee because Ms. Yee had told her that her mother was one of her patients.
Breach of Patient Confidentiality
[29] It was alleged that Ms. Yan breached the confidentiality of a patient by treating Ms. Yee in the entryway of her clinic.
[30] Ms. Yee was assessed by Ms. Yan, including taking her pulse, examining her tongue, and prescribing her medication, just inside the front door of the clinic. Ms. Yee testified that this was a public area and would have been accessible by any patients who were inside the clinic.
[31] Ms. Yan confirmed that all her interactions with Ms. Yee occurred in the entrance area of the clinic.
[32] The College’s expert confirmed that it is a standard of practice of the profession to ensure that patient confidentiality is maintained, including providing physical measures to maintain the privacy of both written and verbal information given to patients. She opined that, by treating Ms. Yee in the entranceway of her clinic, Ms. Yan failed to observe the necessary confidentiality measures to meet the standard of practice.
Use of Doctor Title
[33] It was also alleged that Ms. Yan improperly used the “Dr.” title.
[34] Documentary evidence introduced at the hearing identified Ms. Yan as “Dr. Yan,” including the vial of pills that Ms. Yee received from Ms. Yan, various intake and consent forms that were obtained from Ms. Yan’s clinic, media publications that were available in Ms. Yan’s clinic, and Ms. Yan’s email address (doctoryan@doctoryantcm.com) which was visible on certain items in the clinic.
[35] Further, Ms. Yee, Mr. Hutchinson, and Ms. HA all testified that Ms. Yan, at various times in their presence, referred to herself as “Dr. Yan.”
[36] On cross-examination, Ms. Yan acknowledged that she had previously received a complaint regarding the use of the doctor title in 2013 and had undertaken to the College that she would remove all “doctor” references from her practice. When asked why items in her practice still contained the doctor title, Ms. Yan testified that it was because of the failure of employees in her office that they had not been removed.
Records Issues
[37] It was alleged that Ms. Yan failed to maintain proper patient records and financial records in accordance with the standards of the profession. Ms. Yan had previously been investigated by the College with respect to her records in 2013 and was ordered to review the College’s record-keeping policies and attend an information session on record-keeping.
[38] Ms. Yan agreed that her treatment records could be improved; however, she also testified that the College’s standard for bookkeeping is unclear and that financial receipts would be the responsibility of her accountant.
[39] Ms. Yan conceded on cross-examination that she had failed to do the following with respect to some of her records: maintain treatment notes in English or French; provide a receipt to Ms. HA as well as to other patients; and record the name or ingredients of medication provided to Ms. Yee. Ms. Yan also admitted that she does not have the resources to issue receipts after every patient visit and that it is her practice to issue receipts only at the end of the year.
Failure to Cooperate During the Investigation
[40] It was alleged that Ms. Yan failed to cooperate with and obstructed Mr. Hutchinson in the conduct of his investigation on August 3, 2016.
[41] Mr. Hutchinson testified that Ms. Yan repeatedly insisted that he was not permitted to enter her clinic within 30 days of her receiving the complaint from the College. He testified that he explained to Ms. Yan that this was not the case and that he reviewed section 76 of the Health Professions Procedural Code with Ms. Yan, including specifically the requirement that she cooperate with the College’s investigation.
[42] Mr. Hutchinson also testified that Ms. Yan refused to allow him into the room where she stored her herbal medications despite repeated warnings regarding her duty to cooperate. He described Ms. Yan’s overall demeanor as argumentative and hostile.
[43] Ms. Yan admitted that she initially thought an investigator was required to provide 30- days’ notice before entering her clinic. She also testified that Mr. Hutchinson was inappropriate in his conduct during the investigation, claiming that Mr. Hutchinson was forceful in gaining access to her clinic. Despite this, Ms. Yan also testified that Mr. Hutchinson was “very profession [sic]. I like his style. He’s very profession [sic].”
[44] Ms. Yan’s evidence regarding whether she permitted Mr. Hutchinson to access the storage room was unclear. She denied that she refused to permit Mr. Hutchinson entry to her storage room, but she also testified that the storage room is very small, and the space does not allow for more than one person to stand in it. Ms. Yan also testified that Mr. Hutchinson spent some time in the storage room area and took several photographs.
[45] Ms. Yan testified that when she spoke to Mr. Hutchinson after his first visit, she apologized to him for being un-cooperative. Ms. Yan denied, however, that the apology related to preventing Mr. Hutchinson from entering the storage room.
FINDINGS OF THE DISCIPLINE COMMITTEE
[46] On October 1, 2018, after considering all the evidence, the Discipline Committee found that Ms. Yan engaged in professional misconduct in respect of most of the allegations contained in the Notice of Hearing. It found that Ms. Yan charged a misleading patient fee, failed to provide information regarding medication, charged fees based on racial descent, improperly used the doctor title, breached patient confidentiality by treating a patient in the clinic’s entry way, failed to keep records as required, and failed to cooperate with the College’s investigation.
[47] On January 17, 2019, upon reviewing the evidence and hearing submissions from both parties, the Committee made the following order regarding penalty and costs.
a. Ms. Yan is required to appear before a panel of the Discipline Committee to be reprimanded, with the fact of the reprimand and a summary of the reprimand to appear on the public register of the College;
b. The Registrar is directed to suspend Ms. Yan’s Certificate of Registration for a period of ten (10) months;
c. The Registrar is directed to impose the following specified terms, conditions and limitations on Ms. Yan’s Certificate of Registration:
i. Requiring that Ms. Yan provide proof, acceptable to the Registrar, of successful completion of the PROBE ethics and boundaries course, which is to be taken at her own expense, within six (6) months of the date of this Order;
ii. Requiring that Ms. Yan provide proof, acceptable to the Registrar, of successful completion of the College’s Record-Keeping E-Workshop, which is to be taken at her own expense, within six (6) months of the date of this Order;
iii. Requiring that the Member participate in a College Assessment focusing on ethical and record-keeping issues, at her own expense, within six (6) months of resuming her practice following the suspension set out in paragraph 2 above. The cost of the assessment shall not exceed $500.00;
iv. Requiring Ms. Yan to complete, to the satisfaction of the Registrar, a 1500 word essay, on the importance of ethics and professionalism in the practice of Traditional Chinese Medicine, within six (6) months of the date of this order;
d. Ms. Yan is required to pay a fine of $300.00 payable to the Minister of Finance, within six (6) months of the date of this Order; and
e. Ms. Yan is required to pay to the College costs in the amount of $65,000.00, within four (4) years from the date of this Order on a payment schedule to be agreed upon between the College and the Member.43
ANALYSIS
[48] I find that there is no basis to interfere with the Discipline Committee’s decisions with respect to its findings of professional misconduct, penalty, and costs. The factual and credibility findings that the Committee made following the seven-day hearing were reasonable. The penalty and costs imposed by the Discipline Committee were reasonable and fall squarely within the range of orders made in similar cases. The Committee’s decisions are entitled to deference by this Court. Here are the reasons why.
1) The investigation and hearing were conducted in a fair manner.
[49] Ms. Yan raises several issues suggesting that she was denied procedural fairness throughout these proceedings.
[50] First, Ms. Yan suggests that the way Ms. Yee and Mr. Hutchinson conducted their investigations was improper. She noted the following in support of her argument:
a) Ms. Yee visited her clinic unannounced on July 20, 2016;
b) Mr. Hutchinson visited her clinic unannounced on August 3, 2016; and
c) Mr. Hutchinson’s interview with her on August 30, 2016, lasted for over three hours.
[51] The Supreme Court of Canada and the Court of Appeal for Ontario have set out that investigators in the professional regulation context must have “sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged.” (Gore v College of Physicians and Surgeons of Ontario, 2009 ONCA 546 at para 17, citing Pharmascience Inc v Binet, 2006 SCC 48 at para 37). Both Ms. Yee, operating in an undercover capacity, and Mr. Hutchinson acted appropriately in their respective roles in the investigation of this matter.
[52] Second, Ms. Yan states that she was unaware of any investigations into her conduct until August 3, 2016, when Mr. Hutchinson visited her clinic. The Code does not require the College to provide notice of the appointment of an investigator to the member. However, when the Registrar reports back to the ICRC on an investigation, the College is required, pursuant to s.25(6), to provide the member with notice of the report within 14 days. In any event, Mr. Hutchinson provided Ms. Yan with the investigation appointments on his first visit on August 3, 2016. The College subsequently provided Ms. Yan with copies of the investigation reports in accordance with the Code, and Ms. Yan was given an opportunity to make written submissions in response.
[53] Ms. Yan also claims that she did not receive notice of Ms. HA’s complaint of May 15, 2016, within the statutorily prescribed timeline. The College is required, pursuant to s. 25(6) of the Code, to provide members with notice of a complaint within 14 days of receipt of the complaint so as to ensure, among other things, that the member has an opportunity to make written submissions to the screening committee regarding the allegations. Although the complaint from Ms. HA was dated May 15, 2016, the College did not receive the complaint until July 21, 2016. The complaint was provided to Ms. Yan by Mr. Hutchinson on August 3, 2016, after which she had 30 days to respond. And Ms. Yan did provide a written response to the complaint on September 3, 2016. There was no denial of procedural fairness with respect to the complaint.
[54] In her complaints of unfairness, Ms. Yan refers to a letter dated September 29, 2016, which she received from the College on October 6, 2016. The letter requested a response to the investigation report regarding Ms. HA’s complaint by “no later than October 5, 2016.” When Ms. Yan did not respond, the College provided Ms. Yan with two extensions to submit her responses to the investigation report - first until November 28, 2016, and then until December 19, 2016. On December 21, 2016, after still not having received any response, the College indicated to Ms. Yan that, although the deadline had passed, the College was still willing to present any of her responses to the ICRC if received prior to its meeting. Ms. Yan did not provide any responses to the investigation reports. Instead, she wrote to the ICRC panel demanding to know the allegations against her, which the College noted had already been itemized in the investigation appointments; and she requested the names of the individuals who approved the investigations into her conduct. Ms. Yan was given a meaningful opportunity to participate in the investigation process, including sufficient time to provide written submissions on the investigation reports.
[55] The Appellant complains about unfairness at the hands of the Panel Chairperson. To the contrary, however, the Chairperson made attempts to make sure that Ms. Yan was treated fairly throughout the proceeding. For example, during the cross-examination of the College’s expert witness, Ms. Kucan Hahn, on her amended report, the Panel Chair asked Ms. Yan’s representative to explain the relevance of his objections to Ms. Yan so that the Appellant might understand the relevance and importance of them. At another point during the proceeding, the Panel Chair assisted Ms. Yan’s representative during Ms. Yan’s examination-in-chief by clarifying a piece of documentary evidence to which they were referring in Ms. Yan’s evidence. The Chair said, “Can you please tell us what -- Mr. Tao, I need you to let us know what you are referring to. The Panel wants to make sure we see all your evidence and give you that opportunity.”
[56] For the first time, Ms. Yan has raised conflict of interest concerns because the same law firm prosecutes members on behalf of the College before the Committee and provides general counsel services to the College Council. This issue was not raised before the Committee. In fact, it is not improper or unusual for counsel to act as both prosecutor for and general counsel to regulators (Bailey v Saskatchewan Registered Nurses Association (1998), 1998 13381 (SK QB), 167 Sask R 232 (QB) at para 173; DeMaria v Law Society of Saskatchewan, 2015 SKCA 106 at para 31).
[57] Finally, Ms. Yan claims that the way in which the hearing room was set up for the discipline hearings and the interactions between the Panel Chair, independent legal counsel, and the College’s counsel raises “concerns of unfairness, dishonesty and unprofessional[ism].” There is no evidence to suggest that the way Ms. Yan’s discipline hearing was conducted was in any way unfair. To the contrary, it is apparent from the record that the Panel Chair attempted to give Ms. Yan every opportunity to present her evidence and defend herself.
[58] In fact, Ms. Yan relied on documents that were not in evidence before the Discipline Committee at times and did not follow the proper procedure for introducing fresh evidence.
2) The Panel’s factual and credibility findings were reasonable.
[59] Ms. Yan has questioned factual and credibility-related related findings by the College as part of her grounds for the appeal. I find, however, that the College assessed the credibility of each witness and came to reasonable conclusions. And it is well established that considerable deference is owed on appeal to a tribunal’s findings of fact and assessment of credibility.
[60] Ms. Yan claims that Ms. Yee did not “address the issues properly” during cross-examination and that she was “coached by the TCM College lawyer” during the examination-in-chief with “leading questions.”. There is no evidence to support that Ms. Yee’s testimony was improperly coached. The Panel found Ms. Yee to be “credible and consistent in her testimony” and her evidence to be “clear and cogent.” Their finding deserves deference by this Court.
[61] Ms. Yan’s claim that Ms. Yee did not author the investigation report for her undercover investigation because it was signed by Mr. Hutchinson is irrelevant. Although Mr. Hutchinson ultimately authored and signed the report, the investigation report was based on Ms. Yee’s investigative notes and her confirmation of the accuracy of the report in her testimony.
[62] Ms. Yan also questions the fact that Ms. Yee “never had her own original” investigation notes as an aid during her testimony. Ms. Yee was, in fact, not required to have any document with her to provide her oral testimony at the hearing. She was permitted to refer to the investigation report, if necessary, to refresh her memory. The Supreme Court of Canada has held that witnesses are permitted to refresh their memories using any document if their actual testimony is from present memory (R v Fliss, 2002 SCC 16 at para 8).
[63] Ms. Yan claims that Mr. Hutchinson fabricated his evidence regarding his unannounced clinic visit on August 3, 2016, specifically with “how the patients’ files were picked up and how he checked the inventory room for the TCM products.” The Panel accepted Mr. Hutchinson’s testimony that he was never permitted access to the storage room and found his overall evidence regarding the clinic visit to be forthright and consistent with the information in the investigation report.
[64] Overall, it was reasonable for the Panel to prefer the evidence of Mr. Hutchinson to the evidence of Ms. Yan. The Panel found that Ms. Yan’s evidence was wavering and inconsistent, but that Mr. Hutchinson’s evidence, based on contemporaneous notes, was credible and consistent. The Panel also used Ms. Yan’s admission that she guarded her family’s recipes as evidence consistent with her not allowing Mr. Hutchinson access to the storage room and further support for his version of what happened at the Ms. Yan’s clinic.
3) There was no reasonable apprehension that the Panel Chair was biased.
[65] Ms. Yan asserts several instances of alleged bias on the part of the Chair of the Panel. There is, however, no reasonable apprehension that the Panel Chair was biased in this matter.
[66] It is a fundamental principle of law that any decision-maker must be impartial and unbiased. There is a presumption that tribunals such as the Discipline Committee of the College will act without bias. In Ritchot v The Law Society of Manitoba, 2010 MBCA 13 at paras 37–38, the Manitoba Court of Appeal wrote:
Judges are presumed to be impartial and “[t]he burden of proof is on the party alleging a real or apprehended breach of the duty of impartiality … [to] establish actual bias or a reasonable apprehension of bias” …
A similar presumption of impartiality applies to an administrative tribunal. See Zündel v. Toronto Mayor’s Committee on Community and Race Relations (2000), 2000 17137 (FCA), 189 D.L.R. (4th) 131 (Fed. C.A.), application for leave to appeal dismissed, [2000] S.C.C.A No. 322 (QL), in which Sexton J.A. wrote of the “principle that a member of a Tribunal will act fairly and impartially, in the absence of evidence to the contrary” (at para 36). More recently, in Imperial Oil Ltd. v. Quebec (Minister of the Environment), 2003 SCC 58, [2003] 2 S.C.R. 624, LeBel J. wrote that “[t]he duty of impartiality, which originated with the judiciary, has now become part of the principles of administrative justice” (at para. 28).
[67] First, Ms. Yan argues that the Panel Chair was biased because she never asked some of the College’s witnesses, Mr. Hutchinson, Ms. Yee, or HA, to make an affirmation prior to testifying. In fact, the Panel Chair did ensure that all three of the witnesses were affirmed.
[68] Second, Ms. Yan suggests that the Panel Chair inappropriately took a more active role in the proceedings. Ms. Yan argues, for example, that the Panel Chair allowed independent legal counsel and College’s counsel to take “lots of time” during cross-examination and to “constantly interrupt the Appellant’s legal representative” during cross-examination.
[69] The Court of Appeal in Chippewas of Mnjikaning First Nation v Chiefs of Ontario, 2010 ONCA 47 at paras 230-231, 233, 24 set out for trial judges the following regarding interventions during a trial:
A determination of whether a trial judge’s interventions give rise to a reasonable apprehension of unfairness is a fact-specific inquiry and must be assessed in relation to the facts and circumstances of a particular trial. The test is an objective one. Thus, the trial record must be assessed in its totality and the interventions complained of must be evaluated cumulatively rather than as isolated occurrences, from the perspective of a reasonable observer throughout the trial …
An examination of whether a trial judge has unduly intervened in a trial must begin with the recognition that there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court’s process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings. …
The reasons a trial judge may properly intervene include the need to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial. …
[70] Pursuant to the Statutory Powers Procedure Act, RSO 1990, c S.22, s 25.0.1, Discipline Committees have the power to control their processes during a proceeding. And there is no evidence before this Court to suggest that the Panel Chair acted inappropriately in her role during the proceedings. The Panel Chair’s interventions were reasonable in the context of the hearing. For example, during the hearing on the merits, the College’s expert, Ms. Kucan Hahn, gave evidence that she prepared a report for the College on April 25, 2017. The College subsequently provided her with additional information, including the original letter of complaint from Ms. HA, and Ms. Kucan Hahn provided an amended report to the College dated May 30, 2017. She testified that she tracked her changes in her amended report to show what she had deleted or modified from her original April 25, 2017 report. At the hearing, Ms. Yan’s representative challenged Ms. Kucan Hahn about this repeatedly and suggested that the report was unprofessional and/or should be rejected entirely because it had been amended. After asking the same question multiple times, the Panel Chair appropriately interjected to direct Ms. Yan’s representative to move to a different area of questioning. The Panel Chair also made sure that Ms. Yan had an opportunity to present her case and she asked Ms. Yan’s representative to explain the relevance of his objections so that the Appellant could understand the proceedings. There was nothing improper about this conduct. To the contrary, it was appropriate for the Chair to control the process to ensure a fair hearing for all participants, including the witness.
[71] In addition, during Mr. Hutchinson’s evidence, Ms. Yan’s representative repeatedly asked him to “confirm” the contents of documents that were provided to him by the College. Mr. Hutchinson testified that he did not understand the questions. College counsel objected to several of the questions on the basis that they were unclear and that the witness did not understand them. In this context, the Panel Chair interjected to ensure Ms. Yan’s representative’s questions were relevant and clear. In addition, Ms. Yan’s representative requested a break during the cross-examination of Mr. Hutchinson to make copies of certain documents. The representative was late to return to the hearing and the Chair noted that he had been late before. In that context, it was reasonable for the Panel Chair to request Ms. Yan’s representative to respect the hearing process and attend on time in future. The Panel Chair’s conduct was appropriate and does not give rise to a reasonable apprehension of bias.
4) The Panel’s decision on penalty and costs was fit.
[72] Ms. Yan maintains that the penalty imposed in this matter was excessive.
[73] The issue of the appropriate penalty engages the heart of the expertise of self-governing bodies and the Supreme Court of Canada has found that committees have “greater expertise than courts in the choice of sanction for breaches of professional standards” (Yazdanfar v College of Physicians and Surgeons of Ontario, 2013 ONSC 6420 at para 145; Law Society of New Brunswick v Ryan, 2003 SCC 20 at para 31).
[74] The Discipline Committee’s decision on penalty is reasonable and directly relates to the findings of professional misconduct. In its reasons for decision on penalty, the Panel considered the submissions of both parties and determined that a 10-month suspension was an appropriate penalty because of its multiple findings of professional misconduct against Ms. Yan - some of which were very serious. The Discipline Committee weighed both mitigating and aggravating factors in coming to its findings against the Appellant.
[75] The penalty imposed by the Discipline Committee is appropriate and falls squarely within the range of similar cases. There were ample authorities before the Committee to support a suspension of considerable significance, as well as terms, conditions and limitations on Ms. Yan’s certificate of registration given the number of serious findings that were made. A substantial penalty was required to both protect the public and reflect the relative severity of Ms. Yan’s conduct.
[76] Further, the Discipline Committee provided a clear line of reasoning in support of its decision and carefully considered whether the penalty reflected the general principles of penalty orders, including public protection, specific deterrence, and general deterrence.
[77] Ms. Yan also claims that the costs award ordered by the Discipline Committee was excessive.
[78] The hearing in this matter took place over seven days. The College’s costs in this case totaled approximately $122,580, which were comprised of the investigation costs, the prosecution’s legal costs, independent legal counsel’s costs, and the various hearing costs, including Panel member expenses and the costs of the court reporter.
[79] The Committee has broad and discretionary jurisdiction to award costs under the Code. It is appropriate for it to make costs orders against members who have engaged in misconduct so that the profession does not have to bear the weight of the expense of discipline proceedings through membership fees (Reid v College of Chiropractors of Ontario, 2016 ONCA 779 at para 24, aff’g 2016 ONSC 1041 [Reid (ONSC)).
[80] The Panel ordered Ms. Yan to pay a costs award of $65,000, being just over half of the College’s actual costs. The Panel considered relevant factors, including the relative success of the College, Ms. Yan’s conduct during the hearing process, the principle that costs are not punitive, and the impact of the costs order on Ms. Yan.
[81] The costs awarded in this case fall either within the range of or well below similar cases. In Walia v College of Veterinarians of Ontario, 2018 ONSC 6189 at paras 28, 31, leave to appeal to CA refused, (28 January 2019), leave to appeal to SCC refused, (27 June 2019), $142,000 was awarded to the College for an 11-day hearing. In Reid v College of Chiropractors of Ontario, 2016 ONSC 1041, at paras 216–218, 225–226, 234–236, $166,194 was awarded to the College for a 5-day hearing. In Clokie v The Royal College of Dental Surgeons of Ontario, 2017 ONSC 2773 at paras 58–59, 61, 74–75, $318,207 was awarded to the College for a 6-day hearing.
[82] For these reasons, I find the Panel’s decisions on penalty and costs were reasonable and that this ground of appeal should also be dismissed.
OTHER ISSUES
[83] Ms. Yan states in her factum that the "legislature of Ontario and Hea[l]th Ministry of Long-Term Care [should] re-visit the TCM Act, 2006 to fulfill the respect of the Origin of TCM and the Language of TCM." This suggestion is outside the scope of this appeal.
DISPOSITION AND COSTS
[84] The Appeal is dismissed. The Appellant was asked to submit a bill of costs by the end of day August 17 but did not. She shall pay costs of this hearing to the Respondent in the amount of $10,000, all inclusive, within 120 days of the release of this decision.
McWatt A.C.J.S.C.J.
I agree _______________________________
Molloy J.
I agree _______________________________
Morgan J.
Released: October 5, 2022
CITATION: Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2022 ONSC 5464
DIVISIONAL COURT FILE NO.: 087/19
DATE: 20221005
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MCWATT A.C.J.S.C.J., MOLLOY AND MORGAN JJ.
BETWEEN:
NATHALIE XIAN YI YAN
– and –
COLLEGE OF TRADITIONAL CHINESE MEDICINE PRACTITIONERS AND ACUPUNCTURISTS OF ONTARIO
REASONS FOR JUDGMENT
Released: October 5, 2022