A massage therapist (“Ren”) was unsuccessful on judicial review of a caution issued against her by a panel of the Inquiries, Complaints and Reports Committee of the College (“ICRC”)

Administrative law – Decisions of administrative tribunals – College of Massage Therapists – Investigations – Advertising – Massage Therapists – Disciplinary proceedings – Judicial review – Jurisdiction of court – Natural justice – Procedural requirements and fairness

Ren v. College of Massage Therapists of Ontario, [2014] O.J. No. 2244, 2014 ONSC 2758, Ontario Superior Court of Justice Divisional Court , May 1, 2014, EF Then, MR Dambrot and J Mackinnon JJ

Ren was subject to a practice investigation, following which the College directed her to make changes in terms of her advertising communication to clients and the public. She was directed to articulate that she was providing treatment to alleviate symptoms through massage therapy and was not treating underlying medical conditions outside of the scope of the practice of massage therapy.

Because the proceeding against Ren was initiated by a Registrar’s report rather than a complaint, the Court held that it had jurisdiction to deal with the judicial review application because the Health Professions Appeal and Review Board (“HPARB”) did not have jurisdiction to review decisions of the ICRC where the proceeding had been initiated through a report of the Registrar. However, the Court indicated that there was no principled reason why the HPARB should not be available to review decisions of the ICRC; the legislature could consider the issue.

Ren argued that she had been denied natural justice and procedural fairness because the College initiated a new Registrar’s report against her by reporting one of her advertising brochures, which was anonymously sent to the College in November 2010, and started a new proceeding on the basis of that report, where she was already subject to a proceeding which closed on January 17, 2011. The Court held that it was not inappropriate for the panel to forward the brochure to the Registrar because the material had not been before it in the deliberations of the initial complaint where the remedial process had been completed. The Registrar then had an option to determine whether to issue a report and initiate a fresh proceeding. There was no denial of natural justice in the Registrar’s doing so.

Ren’s counsel argued that the caution was not remedial in nature but “constituted a disciplinary reprimand”. While the Court agreed that the caution was delivered in “firm language”, there were no findings of misconduct and, given the seriousness of any deliberate claim by Ren to be able to cure serious medical conditions, the language of the caution was appropriate. Although the panel was not authorized to issue a reprimand in the nature of discipline, a strongly worded caution still constituted remedial guidance.

The application for judicial review was dismissed without costs to any party.

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