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Medical Professionals (RHPA) - Chinese Traditional Medicine Practitioners - Cases

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. Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

In Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considered a statutory irregularity in a RHPA College's governing council as a challenge to the College's actions:
Did the College’s constitutional status render the HRTO’s decisions unreasonable?

[14] There is no merit to Ms. Yan’s submission that the College’s constitutional status had a bearing on the HRTO’s decisions.

[15] At the time of the preliminary hearing, the College did not have a full complement of publicly appointed members on its governing Council. While the College awaited the appointment of additional public members to its Council, the College's Executive Committee exercised the powers of Council. This is permitted by s.12 of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, which authorizes the Executive Committee to carry out the powers of the Council between Council meetings.

[16] However, the composition of the College’s governing Council is irrelevant to Ms. Yan’s application. The HRTO's decisions were based on Ms. Yan's application being outside the Tribunal’s jurisdiction and untimely. The College adduced no evidence at the preliminary hearing and had not yet provided a response to the application. The composition of the College's Council does not raise any issue that affects the reasonableness of the HRTO's decisions to dismiss the application and deny the request for reconsideration.
. Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

In Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considered issues of 'adjudicative immunity' and statutory (RHPA/HPPC) investigative privilege, when a JR applicant sought to allege HR discrimination against an RHPA adjudicator and investigation under the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario:
[3] On June 4, 2019, Ms. Yan filed an application with the HRTO against the College alleging discrimination on the basis of race, colour, ancestry, place of origin, ethnic origin, and creed. Ms. Yan’s application references the College’s investigation into her practice as well as College conduct following the hearing before the Discipline Committee.

[4] Following the receipt of written submissions and an oral preliminary hearing, the HRTO dismissed Ms. Yan’s application on several bases. .... Second, the HRTO determined that the application was outside of its jurisdiction because it called for a review of another adjudicator's decision. Finally, the HRTO concluded the application should be dismissed because Ms. Yan would not be able to prove the allegations due to the confidentiality provision contained in the Regulated Health Professions Act, 1991. This provision creates a prohibition against the admissibility of evidence pertaining to the College's investigation and discipline process in subsequent civil proceedings.

....

[30] The other two bases on which the HRTO dismissed Ms. Yan’s application were the doctrine of adjudicative immunity and the confidentiality provisions of the Health Professions Procedural Code. With respect to the doctrine of adjudicative immunity, the Tribunal noted that the decisions and actions of an adjudicator while performing adjudicative functions are beyond its jurisdiction. The Tribunal found that Ms. Yan had failed to point to any evidence to suggest that College’s timely actions were unrelated to its adjudicative functions. Ms. Yan has not raised any basis for this Court to interfere with this conclusion.

[31] Finally, s. 36(3) of the Health Professions Procedural Code creates a prohibition against the admissibility of documents pertaining to the College’s investigation and discipline process in subsequent civil proceedings. The Tribunal applied this provision to conclude that those documents would be inadmissible before the Tribunal in this case. Ms. Yan would not be able to rely on any of the investigatory or discipline documents in support of her position that the College’s actions were discriminatory. As a result, Ms. Yan’s allegations would have no reasonable prospect of success. Ms. Yan did not raise any basis to interfere with the Tribunal’s decision on this point.
. Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court set out the standard of review for administrative penalties:
[7] ... 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).
. Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considered the role of administrative investigators, here when assessing whether administrative fairness was met:
[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.
. Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario

In Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (Div Court, 2022) the Divisional Court considered whether a professional disciplinary penalty was excessive:
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.


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Last modified: 21-03-24
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