Volochay v. College of Massage Therapists,

• Jurisdiction: Ontario
• Judge: O'Connor, A.C.J.O., Laskin and Cronk, JJ.A.
• Neutral Citation: 2012 ONCA 541
• Citation: 2012 ONCA 541,(2012), 295 O.A.C. 164 (CA),111 OR (3d) 561,295 OAC 164,(2012), 295 OAC 164 (CA),295 O.A.C. 164,111 O.R. (3d) 561
• Date: 16 December 2011
• Court: Court of Appeal (Ontario)

Volochay v. College of Massage Therapists (2012), 295 O.A.C. 164 (CA)

MLB headnote and full text

Temp. Cite: [2012] O.A.C. TBEd. AU.019

Oleg Volochay (applicant/respondent) v. College of Massage Therapists of Ontario (respondent/appellant)

(C54339; 2012 ONCA 541)

Indexed As: Volochay v. College of Massage Therapists (Ont.)

Ontario Court of Appeal

O'Connor, A.C.J.O., Laskin and Cronk, JJ.A.

August 20, 2012.

Summary:

A complaint of sexual abuse was made against a massage therapist. The College of Massage Therapists appointed an investigator. A letter to the therapist providing notice of the complaint was never sent. The complainant withdrew her complaint. The College notified the therapist that a complaint had been received, but that the notice of complaint had not been served on him because it had been withdrawn. The College advised the therapist that its Complaints Committee would have to review the information to confirm the withdrawal and that he would then be contacted. The Complaints Committee concluded that the matter should be referred to the Executive Committee for their consideration in terms of a full investigation (the first decision). The therapist's request to have the complaint dismissed was rejected (the second decision). The therapist applied for judicial review of the two decisions. With the agreement of the parties, leave was granted for the application to proceed before a single judge of the Divisional Court under s. 6(2) of the Judicial Review Procedure Act on the basis of urgency.

The Ontario Divisional Court, per Ratushny, J., in a decision reported at 280 O.A.C. 112, allowed the application holding that the decisions were made in violation of the College's statutory authority and the therapist's right to procedural fairness. The College appealed.

The Ontario Court of Appeal allowed the appeal, set aside the Divisional Court's order and dismissed the judicial review application.

Administrative Law - Topic 2124

Natural justice - Administrative decisions or findings - Conditions precedent - Requirement of investigation - Investigative fairness - A sexual abuse complaint was made against a massage therapist - The College of Massage Therapists appointed an investigator - The College notified the therapist that a complaint had been received (the nature of the complaint was not disclosed), but that the notice of complaint had not been served on him because the complainant had withdrawn the complaint - The College advised that its Complaints Committee would have to review the information to confirm the withdrawal and that he would then be contacted - The Complaints Committee concluded that the matter should be referred to the Executive Committee for their consideration in terms of a full investigation (the first decision) - The therapist's request to have the complaint dismissed was rejected (the second decision) - A Divisional Court judge quashed the decisions, holding that the College breached the rules of natural justice and its obligation under s. 25(5) of the Health Professions Code by failing to give notice to the therapist and providing him with the opportunity to make written submissions - The College acted without jurisdiction and the proceedings to date were a nullity - The Ontario Court of Appeal allowed the College's appeal - The court agreed that the College breached the rules of natural justice and its obligation under s. 25(5) - The College could not avoid its statutory duties by suggesting that the therapist knew what the complaint was about - However, a question of procedural fairness was not a true question of jurisdiction and judicial intervention was not justified on that basis - Even if the characterization was correct, it did not follow that early judicial review was justified - A jurisdictional ground of review did not, standing alone, deprive a reviewing court of its discretion to refuse relief - Unless exceptional circumstances existed, a court should not interfere in administrative proceedings until they had run their course - That principle had particular force where adequate alternative remedies were available under the administrative scheme - Here, such a remedy was available to the therapist (a review before the Health Professions Appeal and Review Board) which he had declined to exercise - There were no exceptional circumstances that justified early judicial review.

Administrative Law - Topic 3207

Judicial review - General - Discretionary nature of judicial review - [See Administrative Law - Topic 2124 ].

Administrative Law - Topic 3210

Judicial review - General - Jurisdictional issues - [See Administrative Law - Topic 2124 ].

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - [See Administrative Law - Topic 2124 ].

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - [See Administrative Law - Topic 2124 ].

Administrative Law - Topic 7006

Judicial review - Discretionary bars - Existence of convenient or adequate alternative remedy - [See Administrative Law - Topic 2124 ].

Administrative Law - Topic 9025

Boards and tribunals - Jurisdiction - Loss of - Breach of natural justice - [See Administrative Law - Topic 2124 ].

Professional Occupations - Topic 5447

Physiotherapists and physical or massage therapists - Discipline - Powers of board - To investigate - [See Administrative Law - Topic 2124 ].

Professional Occupations - Topic 5447

Physiotherapists and physical or massage therapists - Discipline - Powers of board - To investigate - The Ontario Court of Appeal affirmed that the College of Massage Therapists was entitled to continue to investigate a complaint against a member even though the complainant had withdrawn the complaint - It had a statutory mandate to serve and protect the public interest - It did not have to stop an investigation because the complainant no longer wished to proceed, especially where it believed that a member might have influenced the complaint's withdrawal - See paragraph 46.

Professional Occupations - Topic 5462

Physiotherapists and physical or massage therapists - Disciplinary proceedings - Jurisdiction - [See Administrative Law - Topic 2124 ].

Professional Occupations - Topic 5467

Physiotherapists and physical or massage therapists - Disciplinary proceedings - Judicial review - [See Administrative Law - Topic 2124 ].

Cases Noticed:

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 52].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd. [para. 56].

Alliance Pipeline Ltd. v. Smith, [2011] 1 S.C.R. 160; 412 N.R. 66; 2011 SCC 7, refd to. [para. 56].

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 56].

Harelkin v. University of Regina, [1979] 2 S.C.R. 561; 26 N.R. 364, refd to. [para. 57].

Toronto Hydro-Electric System Ltd. v. Ontario Energy Board (2010), 261 O.A.C. 360; 99 O.R.(3d) 481; 2010 ONCA 284, refd to. [para. 58].

Service Employees' International Union, Local 333 v. Nipawin District Staff Nurses' Association et al., [1975] 1 S.C.R. 382, refd to. [para. 59].

Howe v. Institute of Chartered Accountants (Ont.) (1994), 74 O.A.C. 26; 19 O.R. 483 (C.A.), not folld. [para. 62].

Powell (C.B.) Ltd. v. Canada Border Services Agency (President) et al., [2011] 2 F.C.R. 332; 400 N.R. 367; 2010 FCA 61, refd to. [para. 67].

Ackerman v. Ontario Provincial Police Service et al. (2010), 259 O.A.C. 163; 2010 ONSC 910 (Div. Ct.), refd to. [para. 69].

D.L.M. v. S.E.-S., 2010 CanLII 70389 (Ont. H.P.A.R.B.), refd to. [para. 74].

Authors and Works Noticed:

Mullan, David J., Administrative law (2001), pp. 485 to 494 [para. 69].

Counsel:

Peter J. Osborne and Ian MacLeod, for the appellant;

Robert C. Morrow, for the respondent.

This appeal was heard on December 16, 2011, by O'Connor, A.C.J.O., Laskin and Cronk, J.A., of the Ontario Court of Appeal. Laskin, J.A., released the following judgment for the court on August 20, 2012.