Reviewing CMTO Decisions at the Health Professions Appeal and Review Board (HPARB)

The Inquiries, Complaints, and Reports Committee (“ICRC”) of the College of Massage Therapists of Ontario (“CMTO”) is responsible for dealing with formal complaints against Registered Massage Therapists. While the process may end with the ICRC’s decision, massage therapists and complainants may both request a review before the Health Professions Appeal and Review Board (“HPARB”). Based on our experience representing massage therapists at HPARB proceedings, here is a brief guide to the review process. 

The HPARB is an independent adjudicative agency that is responsible for reviewing the decisions of all regulatory health colleges, including the CMTO. The Minister of Health and Long-Term Care appoints HPARB members. While panels of the ICRC must include massage therapists, massage therapists and CMTO members cannot be HPARB members. HPARB members are often, though not necessarily, lawyers. 

After receiving an ICRC decision and reasons, massage therapists and complainants will typically have 30 days to make a written request for a review. The HPARB will review final dispositions, and will not address interim orders, referrals for discipline, or referrals for health inquiries. HPARB may not proceed with requests it deems frivolous, vexatious, made in bad faith, or otherwise an abuse of process. A review before HPARB will not proceed if a massage therapist or complainant withdraws their request and the other party consents to the withdrawal. 

The HPARB will notify massage therapists and complainants upon commencing the review process, and will provide instructions on next steps. The review may require massage therapists or complainants to supply additional information to the HPARB. 

As part of its review, the HPARB will receive all the material gathered by the CMTO at the complaint investigation stage. Massage therapists and complainants will also receive this material, though certain information may be redacted for privacy reasons. This lengthy package of disclosure is known as the Record of Investigation. It is prudent for massage therapists to carefully review the Record of Investigation. Massage therapists may consider contacting a lawyer who is familiar with the HPARB to assist them with their review. Once retained, legal counsel will help navigate the process and will typically become the primary point of contact with the HPARB. 

After it discloses the Record of Investigation to massage therapists and complainants, the HPARB may facilitate a Case Conference. Massage therapists and complainants will receive a written notice confirming the date and time of the Case Conference, which is a teleconference meeting informing the parties about the HPARB processes, mandates, and powers, as well as the date and time of the review. The Case Conference will also provide massage therapists and complainants with an opportunity to clarify or settle any issues before the HPARB review. A lawyer will typically appear on behalf of a massage therapist at the Case Conference. 

Reviews will typically take place at the HPARB offices in Toronto, though they may proceed elsewhere in the province if requested by the massage therapists and complainants. Massage therapists and complainants are entitled to legal representation at HPARB reviews, which are generally open to the public. While not a party to the process, the CMTO will likely have a representative attend the review to answer questions from the HPARB panel. 

An HPARB panel, typically comprised of three members, will conduct a limited scope review of a massage therapist’s matter. Generally, witnesses will not be called, transcripts and recordings will not be permitted, and it is unlikely that new evidence will be admitted. Under section 33(1) of the Health Professions Procedural Code, the HPARB panel must only review two grounds: (1) whether the CMTO’s investigation was adequate, and (2) whether the decision made by the ICRC was reasonable. The HPARB will not assess technical aspects of a massage therapist’s care. 

Generally, the applicant party will provide their submissions on adequacy and reasonableness first, and will be followed by the respondent’s submissions. Massage therapists and complainants may then comment on issues that arise during the course of the review, but cannot question each other. The HPARB panel will likely have questions for massage therapists and complainants, or their representatives, and for the member appearing on behalf of the CMTO. 

Once the HPARB panel has considered the parties’ submissions, it will issue a written decision with reasons to massage therapists and complainants. Each decision made by the HPARB panel is a public document that will be posted online. 

The HPARB panel may do any of the following: 

  • Confirm the ICRC’s decision; 
  • Refer the matter back to the ICRC;
  • Make recommendations to the ICRC; or
  • Require the ICRC to undertake any action of which it is legally capable, other than requesting the Registrar to conduct an investigation.

The HPARB panel cannot do the following: 

  • Provide massage therapists with legal advice; 
  • Make any professional determination;
  • Award money or damages; or
  • Investigate issues that were not raised in the initial complaint.

Rather than appealing an HPARB decision, massage therapists or complainants who are dissatisfied with the outcome of a review are able to apply for judicial review to the Divisional Court of the Superior Court of Justice. 

Taking part in an HPARB review can be a time consuming and challenging experience for any massage therapist. Retaining legal counsel can assist massage therapists through the process. As an HPARB review has the potential to impact a massage therapist’s career, they should proceed accordingly. 

 

Josh Koziebrocki, is the principal lawyer and founder of Koziebrocki Law. He represents numerous massage therapists and has extensive experience dealing with regulatory issues. He can be reached at 416-925-5445. 

josh@koziebrockilaw.com | www.koziebrockilaw.com 

*Originally posted by the Registered Massage Therapists’ Association of Ontario – https://secure.rmtao.com/default.asp?id=1334&rid=NDI2NjIwOSAg

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