The Court of Appeal held that the College’s failure to provide sufficient notice to a registrant regarding a complaint against him did not constitute a breach of procedural fairness as the College’s duty is only invoked once an inquiry lawfully begins. Further, there were no exceptional circumstances which justified a judicial review while the registrant had an alternate, statutory remedy which he declined to exercise.

Administrative law – Decisions of administrative tribunals – College of Massage Therapists – Massage Therapists – Disciplinary proceedings – Professional misconduct / conduct unbecoming – Investigations – Judicial review – Availability – Jurisdiction – Compliance with legislation – Natural justice – Procedural requirements and fairness – Notice requirements – Appeals – Remedies – Alternative remedies

Volochay v. College of Massage Therapists of Ontario, [2012] O.J. No. 3871, 2012 ONCA 541, Ontario Court of Appeal, August 20, 2012, D.R. O’Connor A.C.J.O., J.I. Laskin and E.A. Cronk JJ.A.

The respondent, Oleg Volochay, a massage therapist and member of the College of Massage Therapists of Ontario (the “College”), was the subject of a complaint in July 2008 from a female patient that they had engaged in sexual intercourse while she was a patient. Such conduct is prohibited by the Health Professions Procedural Code and attracts a penalty of loss of certificate to practice for a minimum of five years.

The College’s complaints committee investigated the matter and advised the respondent that it had received a complaint but did not disclose the complaint or nature of the allegations to him, or allow him an opportunity to make written submissions. The complainant later withdrew her complaint, but the complaints committee determined that it still had jurisdiction to investigate the complaint and eventually referred the matter to the College’s executive committee for a full investigation of the respondent’s practice. The respondent applied to the Health Professions Appeal and Review Board (HPARB), but later withdrew his application. The respondent then brought an application for judicial review to quash the College’s decisions.

The judge granted the judicial review application and quashed the initial decision of the complaints committee on grounds of breaches of natural justice and procedural fairness, which were held to be “true questions of jurisdiction”. The judge also quashed the later decision to appoint an investigator on grounds that it simply ratified the initial decision, and that the College’s proceeding on the complaint was rendered a nullity.

The College appealed the judge’s decision on the grounds that the court ought not to have intervened before the administrative proceedings under the Code had run their course.

The Court of Appeal allowed the appeal. The Court held that the issue before the application judge was not a true question of jurisdiction as a duty of fairness is only owed once an inquiry lawfully begins. The requirement to provide notice to the respondent under the Code was not a provision that went to the College’s jurisdiction. Further, there were no exceptional circumstances which justified a judicial review when the respondent had an alternate remedy which he declined to exercise.

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