BCSC Considers Section 35 Interim Suspension

In Scott v. College of Massage Therapists of B.C. January 7, 2015, the BCSC added to the growing list of important cases considering the standard of evidence required to support  action pursuant to section 35 of the Health Professions Act.  In this case, the inquiry committee imposed  severe restrictions on a massage therapists ability to practice.  In particular he could not treat female patients without a chaperone and had to post notice of his conditions in all the treatment rooms. In this case, a female patient reported that the massage therapist had masturbated while he was massaging her back and that he put his penis on her wrist twice during  treatment.  The patient did not see these events because she was lying face down on the treatment table.  Instead she inferred them based upon sounds she heard and conjecture.  The Court held that the Committee did not apply the correct standard when it imposed the conditions.  It required evidence of a strong prima facie case and that the evidence in this case did not meet that test.  The Court said that reliance upon an unsubstantiated statement based upon what the complainant thought she heard and felt, rather than what she saw, was insufficient to establish that the offence had occurred.  She found that the Inquiry Committee did not assess the plausibility of the complainant's account of what had happened, especially in light of the fact that the massage therapist worked in a clinic with other therapists including his wife, and did not have a history of prior complaints or a criminal record.

BCCA Confirms Test for Reinstatement to a Profession

In Kay v. the Law Society of British Columbia, 2015 BCCA 303, the BCCA has confirmed that the test for reinstatement to a professional college after loss of registration due to misconduct issues is the test in Watt v. Law Society of Upper Canada [2005] OJ No. 2431. In this case a lawyer was disbarred after he left the jurisdiction in 1998 leaving unpaid debts to a client and a bank and without closing his law practice properly. He left B.C. in order to avoid his creditors. He moved to France where he worked in real estate, again wracking up debts and eventually declaring bankruptcy in 2010. He returned to B.C. and in 2012 applied for reinstatement in the LSBC. A hearing panel decided to reinstate him on the basis that had acknowledged his mistakes, was remorseful and was "currently of good repute". The LSBC appealed this decision to the Benchers who decided the panel had not applied the correct test and rejected the application. The applicant appealed to the BCCA. The judgment contains an excellent discussion about the law in this area and confirmed the decision must be based upon whether the applicant for reinstatement is of good character, as opposed to of good repute. Could the LSBC now trust him to act honestly, ethically and in the best interest of his clients? The BCCA held that applying the Watt criteria - was it extremely unlikely that the applicant would misconduct himself again? - it could not be said the applicant was rehabilitated and of good character. The Benchers' decision not to reinstate him was upheld. The case also contains useful analysis about the standard of review in a case of this kind.