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Administrative - Orders. Um v. College of Naturopaths of Ontario [the criminal law 'Kienapple' multiple-offence principle and administrative matters]
In Um v. College of Naturopaths of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a combined RHPA appeal, this from professional misconduct rulings by the Discipline Committee of the College of Naturopaths of Ontario that alternatively suspended, and revoked, Certificates of Registration.
Here the court considers the application of the criminal law 'Kienapple' multiple-offence principle to administrative matters:h. Multiple Finding of Professional Misconduct based on same Facts contrary to Kienapple
[80] As noted, both appellants were found to have engaged in thirteen acts of professional misconduct as defined by the Professional Misconduct Regulation. With respect to Kienapple, both appellants argued that, as the Panels found that both appellants had offered treatment for cancer, which was outside the scope of practice, they should not also be punished for the following acts of professional misconduct as set out in the Professional Misconduct Regulation:7. Recommending or providing treatment that the member knows or ought to know is unnecessary or ineffective.
8. Providing or attempting to provide services or treatment that the member knows or ought to know to be beyond the member’s knowledge, skill or judgment.
9. Failing to advise a patient or the patient’s authorized representative to consult another member of a health profession within the meaning of the Regulated Health Professions Act, 1991, when the member knows or ought to know that the patient requires a service that the member does not have the knowledge, skill or judgment to offer or is beyond his or her scope of practice. [81] The appellants based their argument on this passage from the summary of findings by both the Prytula and Um Panels:Further, the Registrant offered or provided treatment that he knew or ought to have known was unnecessary or ineffective. The Registrant offered treatment for cancer, which is outside of the scope of practice and therefore unnecessary and/or ineffective. While the Registrant may be trained to offer certain treatments for cancer in other jurisdictions, he is not allowed to do so in Ontario and therefore is not qualified here with the necessary skill or judgment. For this reason, the Panel finds that the Registrant provided or attempted to provide treatment beyond his knowledge, skill or judgment. The Registrant ought to have referred his patients elsewhere, when the Registrant believed that the patient required services beyond his scope of practice. [82] The passages are identical except that the Prytula decision does not contain the words “For this reason” found at the fourth sentence quoted above.
[83] In Carruthers v. College of Nurses of Ontario,[30] the Court held that the rule against multiple convictions for the same matter or cause can be applied to similar allegations of professional misconduct heard by a Panel. However, the Court determined the same conduct may give rise to different incidences of professional misconduct. The College argued that the offering treatment outside the scope of practice, recommending or providing treatment that is ineffective, providing treatment beyond knowledge, skill or judgement, and failing to consult another health profession are all separate causes or matters of misconduct even if these allegations arise out of the same acts.
[84] Both appellants submit that neither Panel addressed the Kienapple arguments raised at the Penalty Hearings.
[85] In the Prytula Penalty Hearing on January 27, 2025, Mr. Kogan, the paralegal representing Dr. Prytula submitted that multiple convictions based on the exact same facts are not lawful. However, counsel for the College submitted that where an act of misconduct has distinct aspects to it, then multiple findings of misconduct may be made. While the Panel did not refer to this submission, the result is correct and in accordance with Carruthers.
[86] In the Um Penalty Hearing on March 25, 2025, Mr. Kogan did not directly make the Kienapple[31] argument, other than to state that there is a rule against multiple convictions arsing from the same events and that there were three convictions against Dr. Um for practising out of scope. Counsel for the College did not address this argument.
[87] Neither Discipline Panel addressed the Kienapple submissions. Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments and explain why the decision was made in a manner that permits meaningful appellate review.[32] While the appellants made Kienapple submissions at the Penalty Hearings, the submissions were not central to their arguments and made superficially in the Um Hearing, such that the College did not respond. The principles as expressed in Carruthers are sufficiently well settled, and uncontroversial, such that it was not necessary for the Panels to address this submission. . Gloczi et al v. Dupont/Lansdowne Holdings Inc.
In Gloczi et al v. Dupont/Lansdowne Holdings Inc. (Div Court, 2024) the Divisional Court considered an issue of order compliance and administrative fine procedure, here where a tribunal proceeded to dismiss an appeal against the tenant without addressing a breach of LTB order by the LL:Did the Board err by failing to address the landlord’s breach of the interim order before denying the request to review?
[21] The tenants submit the Board erred by failing to address the landlord’s breach of the interim order, which they raised as a preliminary issue. They submit the decision failed to account for a matter of central concern to the tenants. They also submit it was an error for the Board to fail to take the facts surrounding the re-rental into account when weighing the landlord’s credibility.
[22] The Board’s decision does not address landlord’s alleged breach of the interim order and the court was advised that the Board recording from the review hearing was not available. Counsel for the tenants also advised there was no dispute the landlord re-rented the unit. The landlord did not appear at the appeal. In all these circumstances, I accept the information from counsel that there was no dispute the interim order was breached.
[23] This conduct on the landlord’s part was deplorable and should not be condoned. I understand why the tenants wanted the Board to address it in some fashion. That said, I do not see a basis for this court to intervene at this stage. As set out above, the Board has control of its own process and is required to proceed in an expeditious manner. It was not unreasonable for the Board to decide to hear the request for review before determining the alleged breach of the interim order. If the request for review was dismissed, the breach of the interim order would arguably be moot since the landlord was entitled to evict the tenants before the re-rental of the unit.
[24] To the extent the tenants submit the LTB should have ordered an administrative fine to deter the landlord’s bad behaviour, this was a discretionary remedy. There was also a dispute about whether it was requested at the hearing. The failure to order a fine does not amount to an error of law.
[25] Contrary to the tenants’ submission, it also was not a legal error for the Board to fail to address the breach of the order in assessing the landlord’s credibility. The Board is not required, in its reasons, to address every argument raised by the parties. Here, the breach of the interim order took place months after the eviction order. It was open to the tenants to argue the breach reflected bad faith on the landlord’s part, but the tenants did not dispute they owed arrears at the time of the eviction. Although the breach was important to the tenants, it was not sufficiently probative to the facts surrounding the initial eviction that the Board erred in deciding not to address it. . Rowe v. College of Nurses of Ontario and al.
In Rowe v. College of Nurses of Ontario and al. (Div Court, 2023) the Divisional Court stated that administrative interlocutory procedures are not subject to JR under the doctrine of prematurity, and here extends it to decisions by a Registrar of a professional regulatory body:[5] This court has long taken the position that it should not fragment proceedings before administrative tribunals. Fragmentation causes both delay and distracting interruptions in administrative proceedings. It is preferable, therefore, to allow such matters to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 1993 CanLII 3430 (ON SCDC), 11 O.R. (3d) 798 (Div. Ct.), at paragraph 17. The same principle should apply to a decision-maker such as the Registrar. A court has the discretion to hear an application for judicial review while administrative proceedings are still ongoing. For example, judicial intervention may be warranted in situations where the tribunal clearly lacks jurisdiction to proceed, where the decision, although interlocutory in most respects, determines a particular issue, in which a subpoena would be dispositive of the witnesses' privacy rights; or, where proceeding with the hearing would result in an unfair hearing or a breach of natural justice. Even in those extreme situations, the remedy is discretionary and will be exercised sparingly: Ontario College of Art, paragraph 18. No such circumstance obtains here, except perhaps the determination of an issue, but the record is insufficient for us to decide this question. The Applicant should submit documentation to the Registrar to support his request under subsection 23(6) or (7) of the Code. In the event of a refusal, a full record will exist.
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