SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-14-501514
DATE: 20140602
RE: College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, Applicant
AND:
The Federation of Ontario Traditional Chinese Medicine Association a.k.a. The Committee of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, The Ontario Acupuncture Examination Committee, The College of Traditional Chinese Medicine and Pharmacology Canada, Canadian Association of Acupuncture and Traditional Chinese Medicine, Committee for Certified Acupuncturists of Ontario, Chinese Medicine & Acupuncture Clinic of Toronto, James X.N. Yuan, Jia Li and Zhi Hong Zhao, Respondents
BEFORE: Mr. Justice Mew
COUNSEL:
J.T. Curry and J.E. Lilles, for the Applicant
Sean Hu (acting in person, with leave granted under rule 15.01(2)) for the corporate defendants
Xiao Ning Yuan, in person
Jia Li, in person
HEARD: 26 May 2014
ENDORSEMENT
[1] The applicant is the statutory regulator in Ontario of traditional Chinese medicine (pursuant to the Traditional Chinese Medicine Act, 2006, S.O. 2006, Chap. 27 (“TCMA”).
[2] The corporate respondents are entities associated in various ways with traditional Chinese medicine in Ontario.
[3] The respondents James X.N. Yuan and Jia Li (a third individual respondent, Zhi Hong Zhao not yet having been served) are individuals who are alleged to have engaged in the unauthorised practice in Ontario of traditional Chinese medicine and acupuncture.
[4] The applicant seeks interim and interlocutory injunctions against the respondents for breaches or the TCMA, the Regulated Health Professions Act, 1991 S.O. 1991, Chap. 18 (the “RHPA”) and the Health Professions Procedural Code (being Schedule 2 to the RHPA) (the “Code”) until further order of the court. These injunctions are sought pursuant to section 87 of the Code, which permits the College of a health profession (including the applicant) to apply to this court for an order directing a person to comply with a provision of a health profession Act, the Code, the RHPA or the regulations made thereunder.
[5] Against the corporate respondents it is alleged that they have breached section 34(1) of the RHPA by falsely holding themselves out as bodies that regulate, under statutory authority, individuals who practice traditional Chinese medicine and acupuncture in Ontario. They are further alleged to have started a registration process that purports to authorise individuals to practice traditional Chinese medicine and acupuncture in Ontario. Furthermore these respondents have allegedly announced plans to certify individuals to practice as "Doctors of Traditional Chinese Medicine", which is a title that only the College can confer under the applicable legislation.
[6] The individual respondents James X.N. Yuan and Jia Li, who describe themselves as traditional Chinese medicine practitioners of long standing, are alleged to have breached section 34(2) of the RHPA by serving as directors of the corporate respondents. It is also alleged that they, along with the Chinese Medicine and Acupuncture Clinic of Toronto (the "Clinic") and the College of Traditional Chinese Medicine and Pharmacology Canada, have breached sections 3 and 4 of the TCMA and sections 27 and 30(1) of the RHPA by engaging in the unauthorised practice of traditional Chinese medicine and acupuncture. Mr. Yuan and Mr. Li are also said to have also breached section 8(1) and 8(2) of the TCMA and section 33 of the RHPA by using prohibited titles and designations, namely the title “Doctor”.
[7] At the outset of the hearing, with the consent of the applicant, I granted leave, pursuant to Rule 15.01(2), permitting the corporate respondents to proceed with this application without a lawyer.
[8] The corporate respondents’ representative, Sean Hu, presented a factum on behalf of the corporate respondents. He and the two individual respondents, who represented themselves, through their factum and oral submissions, comprehensively addressed the issues raised on the motion and argued against the relief sought by the applicant.
[9] The College came into existence in 2013. On that date the regulation in Ontario of traditional Chinese medicine and acupuncture took effect. Pursuant to the TCMA the performing of certain controlled acts is illegal unless the person performing such acts is registered with the College. The controlled acts authorised by the TCMA are described in section 4 of the Act in these terms:
In the course of engaging in the practice of traditional Chinese medicine, a member is authorized, subject to the terms, conditions and limitations imposed on his or her certificate of registration, to perform the following:
Performing a procedure on tissue below the dermis and below the surface of a mucous membrane for the purpose of performing acupuncture.
Communicating a traditional Chinese medicine diagnosis identifying a body system disorder as the cause of a person’s symptoms using traditional Chinese medicine techniques.
[10] The individual respondents have not registered with the College. The uncontradicted evidence is that they have continued to practice tradition Chinese medicine at the Clinic and that they have used the title “Doctor” (it should be noted that only James X.N. Yuan and Jia Li have been served with the notice of motion and, hence, further reference to the individual defendants includes only Mr. Yuan and Mr. Li).
[11] The Federation of Ontario Traditional Chinese Medicine Association (the " Federation") is an Ontario corporation. It also carries on business as The Committee of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario (the "Committee"), also known as the CTCMPAO (i.e. identical to the College's acronym).
[12] The College alleges that the Federation and Committee have established a registration process that falsely purports to authorise individuals to practice traditional Chinese medicine and acupuncture in Ontario.
[13] The Ontario Acupuncture Examination Committee (the "OAEC") is an Ontario corporation. The OAEC also goes by the name "Ontario Acupuncture and Traditional Chinese Medicine Examination Committee" and previously went by the name "Ontario Acupuncture Board". The College alleges that the OAEC offers examinations that purport to certify individuals to practice traditional Chinese medicine and acupuncture in Ontario.
[14] The College of Traditional Chinese Medicine & Pharmacology Canada is a training school that offers classes in traditional Chinese medicine and acupuncture. According to the College, it plays an integral role in the registration process established by the Committee and Federation. It also operates the Clinic on its premises. The College alleges that practitioners at the Clinic engage in the unauthorised practice of traditional Chinese medicine and acupuncture.
[15] The Canadian Association of Acupuncture & Traditional Chinese Medicine (the "Association") and the Committee for Certified Acupuncturists of Ontario (the "CCAO") are Ontario corporations. It is alleged that both of these organisations play an integral role in the registration scheme established by the Committee and Federation.
[16] The Federation, Committee, OAEC, College of Traditional Chinese Medicine & Pharmacology Canada, the Association and the CCAO (the "Corporate Respondents") are said by the College to be related entities. All of them except the CCAO have the same registered address. They have many directors and officers in common.
[17] The position of the College is quite clear. They assert that the corporate respondents have been holding themselves out as regulatory colleges by:
a. Establishing a registration process that purports to authorise individuals to practice traditional Chinese medicine and acupuncture in Ontario;
b. Intentionally adopting business and corporate names and corporate structures that are confusingly similar to that of the College;
c. Issuing press releases and making public statements that denigrate the College and claim that the Federation and Committee are statutory regulators of traditional Chinese medicine and acupuncture in Ontario; and
d. Establishing a "certification" process for "Doctors of Traditional Chinese Medicine".
[18] By way of an example of the actions of some of the respondents, the applicant cites a press release written in Chinese dated 21 November 2012, available which claimed that the Committee is the "self-regulatory body for TCM & acupuncture in Ontario" and continued:
FOTCMA held a press conference yesterday morning to solemnly announce to the general public of Ontario that the process of TCM & acupuncture self-regulation is officially commenced. Committee of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario (CTCMPA) will be founded on December 6 in Toronto with three subordinate committees respectively responsible for jurisprudence, credentials evaluation, and discipline/appeal as well as a secretariat. Pursuant to Article 13 of TCM Ontario Act 2006, this Committee is the self-regulatory body for TCM & acupuncture in Ontario, which is responsible for determining industry standard and formulating regulations such as the Registration Regulations, and will certify the qualification level of Ontario TCM practitioners & acupuncturists already in practice by means of examination of assessment in accordance with industry standard, and issue pre-registration certificates.
[19] Numerous other examples of alleged breaches by all of the corporate respondents were presented by the applicant through the affidavit of Allan Mak, the Director, Administration and Professional Practices of the College dated 3 April 2014. No contrary evidence was presented by the respondents. Mr. Mak’s affidavit provides ample support for the allegations made against the respondents.
[20] Section 34 of the RHPA prohibits a corporation from holding itself out as a body that regulates, under statutory authority, individuals who provide health care:
Holding out as a College
- (1) No corporation shall falsely hold itself out as a body that regulates, under statutory authority, individuals who provide health care.
[21] There are three elements of a breach of section 34:
a. The body must be a corporation;
b. The holding out must be false;
c. The holding out must contain the assertion that the corporation regulates, under statutory authority, individuals who provide health care.
Richard Steinecke, A Complete Guide to the Regulated Health Professions Act (Toronto: Canada Law Book, 2014) at 11-15
[22] The respondents argue that the evidence does not disclose that the corporate respondents have held themselves out as, or claimed to be, regulatory bodies authorised, designated or created by statute.
[23] The respondents do, however, acknowledge that they have a long history of “fighting against” the College, but they say their objective is to distinguish themselves from the College.
[24] The respondents deny attempting to mislead or confuse the public. All of the corporate respondents were established before the College became operational: some of the respondents have been in existence for as long as twenty years.
[25] The respondents have many criticisms of the College. They challenge the authority of the College to require long established practitioners of traditional Chinese medicine to register with the College. They question whether the competencies required by registrants with the College are sufficient. They assert their freedom to establish alternative organisations, recognising that such organisations are not statutory regulators as such. They reject the authority of the College to prevent individual practitioners from using the title “Doctor” – a title which many of them have used for decades.
[26] Evidence was led by the College of examples of individuals who had been misled or confused about whether, when dealing with one or more of the respondents, they were dealing with a regulator.
[27] The Federation (among others) unsuccessfully challenged the constitutionality of the Registration Regulation made under the TCMA: Yuan v Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, 2014 ONSC 351, [2014] O.J. No. 420 (Div. Ct).
[28] It is beyond doubt, and I so find, that the corporate respondents are in breach of section 34.
[29] Most, if not all, of the respondents’ arguments belong in the political arena. The College derives its authority from Ontario law. The respondents are, of course, free to challenge and criticise the College and the laws that enable it to regulate the profession. But they are bound by the legislation and it is abundantly clear that their actions – some of which the respondents themselves describe as “civil disobedience” – go beyond mere protest. The language of the 21 November 2012 press release speaks for itself. All of the criteria for a breach of section 34 by the Federation are seemingly triggered by that statement. And it is but one of many examples of breaches by one or more of each of the statutory respondents which form part of the record provided to the court.
[30] The individual respondents claim that they are being singled out and that there is a vindictive element to the applicant’s pursuit of them. They spoke with passion and conviction about their work and their patients. They are practitioners of long-standing and have doubtless done much good for their clients and their community.
[31] The fact nevertheless remains that the respondents James X.N. Yuan and Jia Li continue to engage in the unauthorised practice of traditional Chinese medicine. It is a breach of section 27(1) of the RHPA for them - and the Clinic and the College of Traditional Chinese Medicine and Pharmacology Canada - to communicate a traditional Chinese medicine diagnosis or to perform acupuncture in the course of engaging in the practice of traditional Chinese medicine. Furthermore, Mr. Yuan and Mr. Li have also engaged in the unauthorised use of “Doctor”, a protected title under section 33 of the RHPA (the College does not yet issue the “Doctor” title) and have held themselves out as “Doctors of traditional Chinese medicine” and as qualified to practice traditional Chinese medicine and acupuncture in Ontario.
[32] The main issue for me to resolve on this motion is whether the respondents should be restrained from continuing to break the law until a full hearing of the issues between the parties can take place.
[33] In College of Physicians and Surgeons of Ontario v. Stewart (unreported endorsement, 6 March 2014), Chiappetta J. articulated the test to be considered when interim and interlocutory relief is sought under section 87 of the Code:
… an order directing a person to comply with the Code, pursuant to s. 87, is in effect a statutory injunction. When such an order is sought, the Court must ask whether there has been a continued breach of the statute by the person against whom the injunction is sought and whether the statute permits the Court to make an order against that person. The College is not required to prove irreparable harm if the order is not made out.
[34] When evidence of a breach of the relevant legislation is before the court, the public interest mandates an interim and interlocutory injunction until the issues raised by the section 87 application can be finally determined. In Stewart, Madam Justice Chiappetta granted an interim injunction against an individual alleged to have engaged in the unauthorised practice of medicine:
Until this issue is resolved, in my view, Ms. Stewart should be enjoined from continuing to provide all controlled acts, including injections ... Until it is determined whether Ms. Stewart may properly continue to perform controlled acts as an unlicensed physician, the importance of the public interest and the importance of the regulator's role in protecting the public from the activities of unlicensed and unregulated persons mandate that she be enjoined from doing so.
The application of these principles to the present facts clearly warrants injunctive relief.
[35] To similar effect was the approach taken by Spies J. in College of Opticians of Ontario v. John Doe 1 (c.o.b. Great Glasses), 2006 42599 (ON SC), [2006] O.J. No. 5113 where a modified version of the three part test for injunctive relief set out in RJR – MacDonald Canada Inc. v. Canada (Attorney General) (1994), 1994 117 (SCC), 111 D.L.R. (4th) 385 (S.C.C.) was applied. Of note it was held that there is a strong presumption of harm in the case of legislation regulating health care professions and restricting the practice of such a profession to persons authorised to do so by law (Great Glasses at para. 52).
[36] For the foregoing reasons, an order shall go granting the applicant’s motion, including the terms set out in paragraph 1 of the draft order contained in Schedule C of the Moving Party’s Factum.
[37] I was advised that the hearing of the application is listed for 30 June 2014. In that regard, after discussion with the representatives of all parties present at the hearing of the motion, the following schedule was set for steps to be taken leading up to the hearing of the application:
a. Delivery of notices of appearance by the respondents who have been served (all except Zhi Hong Zhao) – forthwith;
b. Respondents’ evidence (if any) – by 9 June 2014 (all deadlines are at 4:00pm)
c. Applicant’s evidence in response (if any) – by 13 June 2014
d. Cross-examination on affidavit(s) (if required) – on one or more of 16, 17 or 18 June 2014
e. Applicant’s factum for application – by 23 June 2014;
f. Respondents’ factum(s) – by 25 June 2104
[38] The costs of this motion shall be reserved to the judge hearing the application.
[39] The need for the respondents’ approval of a draft order is dispensed with. The applicant shall take out the order and the registrar shall issue and enter the formal order arising from this motion on an expedited basis.
[40] If there are any issues arising from the implementation of my order, I may be spoken to. I am not otherwise seized of this matter.
Mew J.
Date: 2 June 2014