• Case Summary: Test for Interim Conditions
  • March 23, 2017 | Author: Lily Nguyen
  • Law Firm: Field Law - Edmonton Office
  • 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.