The Applicants (individual practitioners and their Association) were unsuccessful in challenging the Respondent Council’s registration regulation relating to the practice of Traditional Chinese Medicine.

2014 ONSC 351

[2014] O.J. No. 420

Ontario Superior Court of Justice

W.L. Whalen, S.N. Lederman and F.P. Kiteley JJ.

January 31, 2014

The Applicants (the Federation of Ontario Traditional Chinese Medicine Association and some individual Traditional Chinese Medicine Practitioners) sought a declaration that a registration regulation was ultra vires of the Traditional Chinese Medicine Act and in breach of the Charter.

The Respondent, the Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “Council”) is authorized to enact regulations pursuant to the Traditional Chinese Medicine Act. The Council enacted a regulation relating to registration but it did not address the use of the title, “doctor” by registrants. That title is prohibited by the Act until a regulation is enacted by the Council.

The Applicants argued the failure to create a class of registration for “doctor” was inconsistent with the purpose of the Traditional Chinese Medicine Act.

The Court held that it is a policy decision for the Council to decide if, when, and how to enact a regulation relating to the title, “doctor”.

The Applicants argued that section 7 of the Charter gave them the right to practice Traditional Chinese Medicine and this right was being breached by the failure to authorize the use of the title, “doctor”. The Court referred to Mussani v. College of Physicians and Surgeons of Ontario, [2004] O.J. No. 5176, which held there is “no constitutional right to practice a profession unfettered by the applicable rules and standards which regulate that profession”. The Court further held there was no denial here because the Applicants have not applied for registration under the Traditional Chinese Medicine Act.

The Applicants also argued that patients are being denied access to Traditional Chinese Medicine “doctors” which amounts to a breach of the patients’ section 7 Charter right. The Court assessed the evidence and found there was no evidence of deprivation.

The Applicants also argued that the registration regulation breached section 15 of the Charter because the exams were conducted in English or French. The Court held the examinations were not a test of English or French-speaking and, in any event, there were accommodations in place. The Court also noted that none of the Applicants had attempted the examinations.

The Court dismissed the application.