Application to the Ontario Superior Court of Justice by the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario for a permanent injunction prohibiting the respondent from practicing traditional Chinese medicine, or holding herself out as doing so

19. November 2015 0

Administrative law – Decisions of administrative tribunals – College of Traditional Chinese Medicine Practitioners – Professional governance and discipline – Self-governing professions – Licence to practice – Registration – Public interest – Judicial review – Investigations – Compliance with legislation – Remedies – Injunctions

College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario v. Yin, [2015] O.J. No. 4683, 2015 ONSC 5613, Ontario Superior Court of Justice, September 11, 2015, G. Mew J.

The respondent had obtained numerous degrees in traditional Chinese medicine and acupuncture (“TCM”), including a doctoral degree, and had been providing TCM to the public legally in Ontario since 1998. However, in 2013 the practice of TCM was designated a regulated health profession in Ontario under the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Due to this designation, only individuals registered with the applicant College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “College”) may practice, or hold themselves out as practicing, TCM in Ontario.

The respondent refused to register with the College on the basis the College prohibited its registrants from using the title “Doctor” in their professional practice. Having obtained a PhD in TCM, and having previously referred to herself as a Doctor of TCM, the respondent believed she would have to lower her professional title as well as restrict her practice to those procedures she believed could be provided by a “TCM practitioner”, as opposed to Doctor.

The College alleged that since the practice of TCM had been designated as a regulated health profession, the respondent had continued to practice TCM, had held herself out as doing so, and had used the title Doctor in relation to her practice of TCM.

In support of its application, the College relied on the evidence of an undercover investigator it hired to attend on the respondent to seek medical advice. There were significant discrepancies between the versions of events offered by the investigator and the respondent. In resolving those differences, Mew J. relied on the evidence provided by the respondent.

Despite taking the version of events most favourable to the respondent, Mew J. found the respondent’s explanation for a number of issues unconvincing, ultimately finding the respondent had provided the investigator with a TCM diagnosis and advice relating to his health in circumstances in which it was reasonably foreseeable that serious bodily harm may have resulted, had held herself out as a practitioner of TCM, and had continued to use the title of Doctor.

Mew J. noted the establishment of the College was not uncontroversial within the TCM community, with some former practitioners claiming they were prejudiced by the new regulatory regime. However, should individuals wish to change that regime, “they must take a different route than defying what is now the law” in Ontario (at para. 47). The injunction sought was therefore granted.

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