Scott v. College of Massage Therapists of BC, 2016 BCCA 180, allowing an appeal of
the lower Court's decision to quash an interim condition on
practice.
A massage therapist was the subject of a complaint that he had
sexually assaulted a client by masturbating during a massage and
placing his penis on her wrist. However, the client had kept her
eyes closed and had only sensed rather than seen what had occurred.
The massage therapist denied the allegation in its entirety.
Following an investigation, the Inquiry Committee of the College
placed an interim restriction on the massage therapist's
practice prohibiting him from treating female patients without a
chaperone. The massage therapist challenged the interim restriction
to the B.C. Supreme Court (BCSC) and the BCSC quashed the interim
restriction. It held that by relying "completely on the
complainant's unsubstantiated statement" to determine that
there was a risk to the public, it had not applied the correct
standard of proof. The College appealed.
The B.C. Court of Appeal considered and rejected a number of
approaches in Canadian jurisprudence to the test for imposing an
interim condition or suspension on a professional's practice.
Ultimately, the Court accepted the test set out in English Court of
Appeal decision in Perry v. Nursing and Midwifery
Council, [2013] EWCA Civ 145. This test did not require a
"strong" prima facie case, but only a prima
facie case. Moreover, there was no need to establish a
prima facie case of an immediate risk to the public.
Rather, the proper test required 1) a prima facie case in
support of the allegation, which, based on the information
received, 2) gave rise to a need to protect the public through an
interim order.
The Court of Appeal explained that a prima facie case is
one "which covers the allegations made and which, if they are
believed, is complete and sufficient to justify a verdict in the
complainant's favour in the absence of an answer." At the
stage of interim order, however, only a "limited
weighing" of evidence should be engaged in to discount
evidence that is "manifestly unreliable or manifestly
exaggerated." However, the administrative decision-maker
should not be holding a "mini-trial."
Comment:
This case is important because it helps to clarify the test that
should be used by a regulator in considering if an interim order
such as a condition or restriction on practice should be
imposed.
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