Divisional Court issues guidance to health-care sector

By Lonny Rosen and Elyse Sunshine

In Ren v. College of Massage Therapists of Ontario, a brief decision reviewing a caution issued by the Inquiries, Complaints and Reports Committee (the “ICRC”) of the College of Massage Therapists of Ontario, the Divisional Court provided important guidance on three issues of professional regulation in the health-care sector: the scope of procedural fairness to which a member is entitled during a college investigation; what can be included by way of content and language in a caution issued by the ICRC; and the jurisdiction of the Divisional Court to review a decision of the ICRC.

The issues in Ren arose because a panel of the ICRC had previously investigated a complaint that the member was purporting to treat medical conditions outside the scope of massage therapy.

The disposition included a requirement that the member prepare a presentation on this issue as means of remediation.

Elyse SunshineSubsequently, a brochure was sent anonymously to the college. This brochure potentially called into question the efficacy of the remediation completed by the member. The first panel forwarded the brochure to the registrar and, shortly thereafter, concluded its review of the complaint and declared this proceeding closed. The registrar instituted a new proceeding on the basis of the brochure, which resulted in an investigation by a second panel of the ICRC.

Following its investigation of the concern raised by the brochure, the second panel issued a caution to the member.

The member sought judicial review of the caution issued by the second panel on the basis that she was denied procedural fairness and natural justice due to the fact that the first panel had jurisdiction to deal with the brochure by, for instance, requiring the member to complete specified continuing education or remediation, as it was permitted to do under s. 26(3) of the Health Professions Procedural Code.

Instead, the college registrar instituted proceedings before the second panel.

The Divisional Court found that the approach taken by the registrar was permissible, since the first panel had concluded its investigation without regard to the brochure and it was therefore appropriate for the registrar to initiate a new proceeding.

Accordingly, the court found no denial of natural justice in this approach.

The member also argued that the second panel, in issuing a strongly worded caution which was not remedial in nature, actually issued a disciplinary reprimand. The Divisional Court accepted that the panel was not authorized to issue a reprimand in the nature of discipline and could only issue remedial guidance.

However, it found that the caution issued by the ICRC in this case did not cross over that line.

The Divisional Court also wrestled with whether it had jurisdiction to review the ICRC’s decision in this case, since the Ontario Court of Appeal held in Volochay v. College of Massage Therapists of Ontario that: the Divisional Court should not interfere in an administrative proceeding until it has concluded or where adequate alternative remedies are available; and ICRC decisions regarding complaints against health professionals are to be reviewed by the Health Professions Appeal and Review Board (“HPARB”), not the court.

However, the Divisional Court found that it had jurisdiction to review the ICRC decision at issue, as it was not a disposition of a complaint but was made in respect of a proceeding initiated by a report of the registrar, which HPARB does not have jurisdiction to review. (The court noted, however, that there was no principled reason as to why the legislature did not provide for recourse to HPARB in these circumstances).

The Divisional Court’s decision in this case will provide useful guidance to the ICRC of all health colleges regarding cautions, as well as to counsel and college staff regarding proceedings before the ICRC and reviews of the same.

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