IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Klop v. College of Naturopathic Physicians of British Columbia, |
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2022 BCSC 2086 |
Date: 20221130
Docket: S240451
Registry: New Westminster
Between:
Jason Klop
Petitioner
And
College of Naturopathic Physicians of British Columbia
Respondent
- and -
Docket: S241376
Registry: New Westminster
Between:
Jason Klop
Petitioner
And
College of Naturopathic Physicians of British Columbia
Respondent
Before: The Honourable Madam Justice J. Hughes
On judicial review from: Decisions and Interim Order of the Inquiry Committee of College of Naturopathic Physicians of British Columbia, dated July 29, 2019 (Inquiry File 372), and dated June 28, 2021 and August 19, 2021 (Inquiry File 507).
Reasons for Judgment
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Counsel for the Petitioner: |
J.B. Gratl T. Rauch-Davis |
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Counsel for the Respondent: |
A.R. Westmacott, K.C. A.K. Harlingten |
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Counsel for the Attorney General of British Columbia: |
T. Bant |
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Place and Dates of Hearing: |
New Westminster, B.C. June 28-30, 2022 |
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Supplemental Submissions of the Petitioner: |
October 17, 2022 |
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Supplemental Response Submissions of the Respondent: |
October 21, 2022 |
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Place and Date of Judgment: |
New Westminster, B.C. November 30, 2022 |
Table of Contents
Regulatory of Naturopathic Medicine
Health Professions Act & Naturopathic Physicians Regulation
College’s Bylaws & Code of Conduct
The College’s Inquiry and Disciplinary Process
Interim Orders to Protect the Public
Petitioner’s Natural Health Products Businesses
Inquiry Committee Investigation 372
Inquiry Committee Investigation 507
Health Canada’s Investigations of the Petitioner
Interim Order Under Section 35 of the Act
Expansion of Investigation 372 & Current Status of Investigations
Analysis – Statutory Appeal of the Section 35 Interim Order
Did the Panel Err in its Interpretation of “Professional Misconduct” and “Unprofessional Conduct”?
Did the Panel Err in Finding A Real Risk to the Public Warranting an Interim Order?
Applicability of FMT Guidance in Mexico
Risk of Harm From Petitioner’s FMT Materials
Petitioner’s Alleged Compliance with FDA
Manufacturing for Export As Unprofessional Conduct
Analysis – Judicial Review of Investigation Decisions
Prematurity – General Legal Principles
Is Judicial Review of the Investigations Otherwise Premature?
[1] These proceedings comprise two petitions brought by Dr. Jason Klop, ND, against the College of Naturopathic Physicians of British Columbia (“College”). The petitioner is a registrant member of the College and has practiced as a naturopathic doctor since 2016.
[2] The petitioner focuses his practice on digestive health issues. In addition to his practice as a naturopathic doctor (“ND”), the petitioner also owns certain businesses that manufacture and export digestive health products, including fecal microbiota transplant (“FMT”) materials. FMT involves the transfer of bacteria and natural antibacterials obtained from the feces of a healthy individual into the gut of a patient through enema, colonoscopy or other means, with the aim of re-establishing a healthy microbial community in the recipient.
[3] The two petitions before the court arise from the petitioner’s involvement with FMT, specifically his manufacturing and exporting of FMT materials to Mexico for use in treating children with autism. After becoming aware of the petitioner’s involvement with FMT, the College initiated an investigation on its own motion under s. 33 of the Health Professions Act, R.S.B.C. 1996, c. 183 [Act]. Correspondence between the petitioner and the College ensued, and the petitioner eventually advised the College that he was taking steps to separate his involvement with FMT from his practice as an ND. Subsequent investigations suggested that the petitioner had not in fact done so and continued to promote FMT on his various websites in connection with his status as an ND.
[4] Before the College’s first investigation concluded, it received a complaint from one of the petitioner’s former laboratory employees. The complaint made allegations about the quality of the petitioner’s FMT manufacturing processes. In accordance with s. 32 the Act, the College initiated a second investigation in response to this complaint.
[5] Contemporaneously with the second investigation, the College gave notice to the petitioner that it would be taking interim extraordinary action against him under s. 35 of the Act. A hearing was held on August 9, 2021, and on August 19, 2021, the College made an interim order prohibiting the petitioner from producing and manufacturing FMT materials, and from advertising, promoting, selling or shipping those materials to the public (the “Interim Order”).
[6] The College’s two investigations of the petitioner and the Interim Order are the subject of the petitions presently before the Court. In S240451, the petitioner proceeds by way of statutory appeal seeking an order quashing the Interim Order. In S241376, the petitioner seeks judicial review of the College’s decisions to investigate his involvement with FMT, along with orders in the nature of prohibition enjoining the College from continuing with its investigations.
[7] For the reasons that follow, I find that the Panel did not err in making the Interim Order and that judicial review of the College’s investigations is premature. As such, both petitions are dismissed.
[8] The Act provides a comprehensive framework for the regulation of designated health professions. Health professions designated under s. 12(1) of the Act are regulated by self-governing colleges.
[9] Naturopathic medicine is a designated health profession under the Act. As a result of this designation, the College was established to regulate individuals engaged in the practice of naturopathic medicine under s. 15.1 of the Act and s. 2 of the Naturopathic Physicians Regulation, B.C. Reg. 282/2008 [Regulation]. Section 1 of the Regulation defines naturopathic medicine as:
… the health profession in which a person provides the services of prevention, assessment and treatment of an individual’s diseases, disorders and conditions using education and naturopathic techniques, therapies or therapeutics to stimulate or support healing processes and promote, maintain or restore the overall health of the individual; …
[10] Section 19 of the Act empowers the College to make bylaws in furtherance of its duties and objectives. The overarching duties of the College are to serve and protect the public, and to exercise its powers and discharge its responsibilities in the public interest: Act, s. 16(1). The objectives of the College, as set out in s. 16(2) of the Act, include:
a) superintending the practice of naturopathic medicine;
b) establishing, monitoring and enforcing standards of practice to enhance the quality of practice and reduce incompetent, impaired or unethical practice amongst registrants;
c) establishing and employing registration, inquiry and discipline procedures that are transparent, objective, impartial and fair; and
d) administering the College’s affairs and performing its duties and exercising its powers under the Act or other enactments.
[11] The activities in which a registrant may engage in the course of practicing naturopathic medicine are prescribed in s. 5 of the Regulation. These activities are broad and include, among other things, administering substances and prescribing, compounding, dispensing or administering a drug[1]: Regulation, ss. 5(d), 5(d)(i).
[12] The scope of practice for registrants is, however, circumscribed by s. 6(2) of the Regulation. For the purpose of s. 5(i), the scope of practice is limited to prescribing drugs for which standards, limits and conditions have been established by the College. The registrant must also have successfully completed a certification program under the College’s bylaws ensuring they are competent to prescribe, compound, dispense or administer the drug: Regulation, s. 6(2)(c).
[13] The College’s Scope of Practice for Naturopathic Physicians: Standards, Limits and Conditions for Prescribing, Dispensing and Compounding Drugs (“Standards”) prescribes the standards of practice for registrants. Part 1 of the Standards includes the following:
STANDARD 2
Naturopathic physicians prescribe from provincial Drug Schedules I, II and III in accordance with the BC Pharmacy Operations and Drug Scheduling Act and the federal Controlled and Drug Substances Act and Regulation and the College of Naturopathic Physicians of British Columbia (CNPBC) Prescribing Standards, Limits and Conditions.
STANDARD 3
Naturopathic physicians prescribe medications in accordance with ethical, legal and professional standards of drug therapy.
STANDARD 4
Naturopathic physicians engage in evidence-based prescribing and consider best practice guidelines and other relevant guidelines when prescribing for clients, including when recommending other therapies.
[14] It is common ground between the parties that FMT is not referenced in the Standards and as such, is neither expressly permitted or prohibited by the College.
[15] A registrant of the College must not practice naturopathic medicine except in accordance with the bylaws of the College: Act, s. 19(8). Pursuant to s. 19(1) of the Act, the College has passed bylaws that govern the College’s affairs (“Bylaws”). Section 101(2) of the Bylaws requires registrants to, at all times, conduct their practice in compliance with the Standards, the Code of Ethics, and any other practice or ethical standards applicable to the profession.
[16] The College has also approved a Code of Conduct (“Code”), which sets out the College’s general expectations for registrants’ conduct. The Code provides that registrants are expected to adhere to standards of practice in carrying out their professional responsibilities to ensure responsible, safe and adequate care to patients. Failure to maintain the standard of practice of the profession constitutes professional misconduct: Code, s. 1(b).
[17] The Code also includes ethical standards to which registrants are expected to adhere. In particular, registrants are expected to recognize their responsibility to give the generally held opinions of the profession when interpreting knowledge of a scientific nature to the public, and communicate with their colleagues about medical or scientific research to help determine its merits: Code, ss. 46, 48.
[18] In addition, the Bylaws prohibit registrants from marketing their professional services in a manner that is, among other things, unverifiable, reasonably capable of misleading the public or contrary to the public interest in the practice of naturopathic medicine: Bylaws, s. 100(2). “Marketing” is broadly defined to include any publication or communication with actual or prospective patients or the public generally by which professional services are promoted: Bylaw, s. 100(1)(b). A registrant’s marketing will contravene the Bylaws if it is likely to create an unjustified expectation of results or compares the quality of services provided by the registrant with those provided by other registrants or other heath professions: Bylaws, s. 100(3).
[19] Part 3 of the Act governs the College’s inquiry and disciplinary procedures in relation to professional misconduct, unprofessional conduct, incompetence and fitness to practice.
[20] Section 26 of the Act defines “professional misconduct” as including “sexual misconduct, unethical conduct, infamous conduct and conduct unbecoming a member of the health profession”. “Unprofessional conduct” is in turn defined to include “professional misconduct”.
[21] Professional misconduct is also defined in the Code to include “conduct unbecoming a naturopathic physician”: Code, s. 2(b). The Code also provides a non-exhaustive list of conduct that “shall be deemed to be misconduct unbecoming a member of the College”, including:
a) practicing outside the Scope of Practice for the profession (s. 1(a));
b) failing to use scientifically accepted barrier precautions and infection control practices (s. 3(j));
c) improper use of the authority to prescribe, sell or dispense a medical product (s. 3(h));
d) receiving fees from any person to whom a member has referred a patient (s. 8(g));
e) permitting anyone other than specified persons to share in the fees for professional services (s. 8(h)); and
f) practicing in another jurisdiction by any means or manner without being duly licensed or authorized by the appropriate naturopathic regulatory authority in that jurisdiction (s. 11(f)).
[22] A person who wishes to make a complaint against a registrant is required to deliver the complaint to the College in writing: Act, s. 32(1). The College is in turn required to convene the inquiry committee (“Inquiry Committee”) to investigate the complaint: Act, s. 32(2).
[23] The Inquiry Committee is an investigatory body established under s. 19(1)(t) of the Act and s. 17 of the Bylaws that undertakes a provisional assessment of matters before it to determine whether further regulatory action is required. The Board of the College must appoint at least three persons to the Inquiry Committee, and at least one-third of the Committee must consist of public representatives: Bylaws, ss. 17(1)–(2), 23(2). The Inquiry Committee may meet in panels of three members and a person cannot be a member of both the Inquiry Committee and disciplinary committee at one time: Bylaws, ss. 23(7), 67(1).
[24] Section 33(4) of the Act also empowers the Inquiry Committee to investigate certain types of conduct on its own motion, including professional misconduct and unprofessional conduct:
(4) The inquiry committee may, on its own motion, investigate a registrant regarding any of the following matters:
(a) a contravention of this Act, the regulations or the bylaws;
(b) a failure to comply with a standard, limit or condition imposed under this Act;
(c) professional misconduct or unprofessional conduct;
[25] The Inquiry Committee may appoint inspectors to act on behalf of the College, who are empowered to investigate a registrant’s premises, equipment and materials used in practice; records relating to their practice; and the practice of their designated health profession: Act, ss. 27–28. Inspectors are required to report the results of their investigations to the Inquiry Committee: Act, s. 28(3).
[26] The Inquiry Committee is not an adjudicative body; it does not hold hearings, make findings of fact or make orders against registrants. Rather, depending on the genesis of the investigation, s. 33(6) of the Act provides that an Inquiry Committee may take various actions following the conclusion of an investigation ranging from taking no further action to directing that a citation be issued:
(6) After considering any information provided by the registrant, the inquiry committee may
(a) take no further action if the inquiry committee is of the view that the matter is trivial, frivolous, vexatious or made in bad faith or that the conduct or competence to which the matter relates is satisfactory,
(b) in the case of an investigation respecting a complaint, take any action it considers appropriate to resolve the matter between the complainant and the registrant,
(d) direct the registrar to issue a citation under section 37.
[27] If an Inquiry Committee makes a direction under s. 33(6)(d), a citation is issued by the registrar under s. 37 of the Act. The discipline committee must then hear and determine the matter in accordance with ss. 38 and 39 of the Act.
[28] During the course of an ongoing investigation, or pending a discipline committee hearing, s. 35 of the Act empowers the Inquiry Committee to make interim orders for protection of the public:
Extraordinary action to protect public
35 (1) If the inquiry committee considers the action necessary to protect the public during the investigation of a registrant or pending a hearing of the discipline committee, it may, by order,
(a) impose limits or conditions on the practice of the designated health profession by the registrant, or
(b) suspend the registration of the registrant.
[29] A registrant adversely affected by a s. 35 order may appeal to this Court: Act, s. 35(5). The appeal must be in accordance with s. 40 of the Act and “must be a review on the record unless the court is satisfied that a new hearing or the admission of further evidence is necessary in the interests of justice”: Act, s. 40(8).
[30] Section 3(l) of the Code requires that registrants comply with “all applicable legislation of the federal, provincial and municipal governments”. The production, advertisement, labelling, sale and packing of drugs and other products is governed by the federal scheme prescribed by the Food and Drugs Act, R.S.C. 1985, c. F-27 [FDA]: see e.g. Saputo Inc. v. Canada (Attorney General), 2011 FCA 69 at para. 71.
[31] Drugs are defined in s. 2 of the FDA as:
… any substance or mixture of substances manufactured, sold or represented for use in
(a) the diagnosis, treatment, mitigation or prevention of a disease, disorder or abnormal physical state, or its symptoms, in human beings or animals,
(b) restoring, correcting or modifying organic functions in human beings or animals, or
(c) disinfection in premises in which food is manufactured, prepared or kept; …
[32] The combined effect of ss. 8 and 11 of the FDA is to prohibit the manufacturing and sale of drugs in unsanitary conditions. Section 37(b) exempts drugs that are intended for export and not manufactured, prepared or sold for consumption or use in Canada from the requirements of the FDA.
[33] Health Canada considers the fecal matter used in FMT to meet the definition of a “drug” under the FDA and therefore regulates FMT as a new biologic drug.
[34] Health Canada publishes a guidance document titled, Fecal Microbiota Therapy Used in the Treatment of Clostridium difficile Infection Not Responsive to Conventional Therapies, which was last updated in March 2020 (the “FMT Guidance”). Health Canada guidance documents are intended to assist industry and health care professionals in complying with governing statues and regulations; they are not intended to have the force of law: FMT Guidance at 3.
[35] The FMT Guidance is an interim policy addressing the use of FMT to treat clostridium difficile (“CDI”). The FMT Guidance states that CDI is the only indication for which FMT has demonstrated safety and efficacy and, therefore, the only condition for which FMT merits consideration outside the direct regulatory provisions of an investigational clinical trial (at p. 7):
Health Canada considers the fecal matter used in FMT to meet the definition of a “drug” under the Food and Drugs Act and, as a result, regulates FMT as a new biologic drug. The study of a new biologic drug requires a risk-benefit assessment focused on the quality, safety and efficacy of the drug as part of a clinical trial application (CTA). Since no company or individual has sought market authorizations for materials used in FMT, the therapy is considered investigational, meaning that it can only be conducted in the context of an authorized clinical trial.
As with other biological drugs derived from human sources, donor screening standards must be employed to ensure that donors are healthy and free of infectious diseases, including HIV and hepatitis. Donors must also be screened for other intestinal pathogens that could be harmful to the recipient.
To date, CDI is the only indication for which FMT has demonstrated safety and efficacy. Therefore, it is the only condition for which FMT merits consideration outside the direct regulatory provisions of an investigational clinical trial, provided that the conditions noted in this guidance document are followed.
[Emphasis added.]
[36] For all other indications, “the use of FMT must still be conducted under a clinical trial authorized by Health Canada”. Health care practitioners are thus permitted to treat patients suffering from CDI and not responsive to conventional therapies with FMT outside a clinical trial. However, to do so, they must comply with the conditions set out in the FMT Guidance.
[37] It is common ground between the parties that Health Canada has not authorized the use of FMT in Canada outside the confines of a clinical trial other than for treatment of CDI (in accordance with the FMT Guidance), and that FMT has not been endorsed by Health Canada for the treatment of autism in children.
[38] In addition to his practice as an ND, the petitioner also owns and operates various businesses in the natural health products sector—FMT Solution, NaturoLyfe, and NovelBiome—that sell digestive health products, and in some instances, also manufacture and export FMT material, principally to clients receiving treatment in Mexico. The petitioner maintains that he does not distribute or sell FMT in Canada.
[39] The petitioner initially manufactured FMT at a laboratory located in a residential property in Abbotsford, British Columbia (“Abbotsford Lab”). The Abbotsford Lab was the location from which the petitioner shipped FMT materials and other NaturoLyfe products. By late June 2021, the petitioner had closed the Abbotsford Lab and opened new laboratory premises in Chilliwack, British Columbia (“Chilliwack Lab”). The petitioner now manufactures FMT materials at the Chilliwack Lab.
[40] FMT Solution provides FMT materials to health care providers and is a resource of general information about FMT. FMT Solution also operates a website at www.fmtsolution.com through which prospective FMT patients can arrange for an initial consultation with an ND, though not necessarily the petitioner.
[41] NovelBiome advertises FMT on its website as “medically supervised treatment” for “autism and the diverse range of symptoms that come with being on the spectrum”. The website provides background information and links to clinical studies on the mechanism and effectiveness of FMT. It also sets out the cost and process of attending a “treatment clinic”. NovelBiome claims to meet donor screening requirements from the Food and Drug Administration and American Gastroenterology Association.
[42] For its part, Naturolyfe advertises ten gastrointestinal supplements on its website that are “guaranteed” to eradicate digestive symptoms. NovelBiome and Naturolyfe’s websites both identify the petitioner as “Dr. Klop” or “Dr. Jason Klop, ND”, including in testimonials from past clients, which the record indicates were posted on the NovelBiome website as recently as June and August 2021.
[43] The record suggests that the petitioner was also involved with Baja MedGate, a clinic located in Mexico. The petitioner described a limited role with Baja MedGate, focussed on providing FMT supplies, information about FMT, and support to “subject individuals and their families”. The petitioner advised the College that he supplied FMT materials to Baja MedGate, which then used individuals qualified in Mexico to administer FMT to patients. In correspondence dated January 23, 2020, the petitioner advised the College the he had disassociated himself from Baja MedGate.
[44] The College’s first investigation of the petitioner was initiated by the Inquiry Committee’s own motion on July 29, 2019 (“Investigation 372”). The notice of investigation for Investigation 372 raised the following issues of concern regarding the petitioner’s conduct, namely that he was:
a) improperly facilitating access to and/or providing FMT to patients, contrary to Health Canada policy;
b) prescribing or directing the use of substances outside of the approved scope of practice for NDs contrary to ss. 1(a) and 3(h) of the Code and s. 101(2) of the Bylaws;
c) practising naturopathic or other medicine in a manner or means in another jurisdiction contrary to s. 11(f) of the Code and s. 101(2) of the Bylaws;
d) engaging in an improper business relationship with another business entity or healthcare facility, including Baja MedGate, contrary to ss. 8(g) and (h) of the Code; and
e) making improper and false claims regarding the efficacy of FMT and the conditions it potentially treats, contrary to ss. 100(2) and (3) of the Bylaws.
[45] The College appointed Paladin Risk Solutions (“Paladin”) as an inspector under s. 27 of the Act. Paladin’s efforts to interview the petitioner in the summer of 2019 were unsuccessful. In October 2019, the petitioner advised the College that it lacked jurisdiction to investigate because his involvement with FMT took place outside of British Columbia and was not connected with his practice of naturopathic medicine in the province.
[46] Nonetheless, by letter dated January 23, 2020, the petitioner provided his response to Investigation 372, advising that he was not administering FMT to patients and had discontinued his business relationship with Baja MedGate. As to his relationship with FMT Solution, the petitioner said this:
I am the founder of FMT Solution, which is a company started to provide supplies for FMT treatment to health care providers and be a resource of general information about this treatment.
Following my disassociation from Baja Medgate, FMT Solution continues to supply FMT treatment to medical doctors licensed and practicing in Mexico that assess, examines, treats, supervises and administers FMT treatment. My role is largely unchanged, that is to arrange the FMT supply to the facility, provide support, suggestions and information to the health team a well as support the subject individuals and their families.
[Emphasis added.]
[47] The petitioner advised the College that he would be removing references to his ND designation and registration with the College from his website. In response, the College reiterated its concerns that the petitioner was advertising FMT on his professional websites and social media, and using his title and licensure issued by the College to legitimize his FMT involvement. The petitioner again indicated that he had taken steps to “separate [his] ND designation from [his] involvement with FMT”. These steps included: removing references to his ND credentials from the FMT Solution website and removing references to his credentials when associated with FMT discussions from his social media.
[48] In March 2020, Paladin provided two further investigation reports (the “Paladin Reports”) to the College summarising the results of open source searches and undercover inquiries it had conducted. Among other information, Paladin reported that an investigator conducted a covert telephone inquiry with the petitioner in February 2020, in which the petitioner provided the following information:
a) While FMT is a fairly new treatment, the risks associated with it are fairly low and mitigated by using high quality donors, and adequately and properly screening them;
b) He has been offering FMT retreats for about two years and had been working exclusively with children with autism for the past eight months;
c) He had treated approximately 60 children with autism and expected this number to exceed 100 by July 2020; and
d) The results of his treatment for digestive problems related to autism in children using FMT are better than conventional treatments.
[49] The petitioner also provided Paladin with copies of two documents: a Consent Form for FMT Fecal Microbiota Transplant For Minors, and a FMT Retreat Attendee Agreement. The latter agreement contained the following:
FMT Retreat Attendee Agreement
This FMT Retreat Attendee Agreement (“Agreement”) is between Dr. Jason Klop ND, Inc. (“Dr. Klop”), a British Columbia Incorporated Company, and ________ (“Attendee”).
…
1. Program. Dr. Klop will provide the following Program, during March 14-19, 2020 at Rosarito Beach Hotel and Spa, in Baja California, Mexico:
· Five (5) days of medically supervised fecal microbiota transplants (FMT) delivered over a period of five (5) days at Rosarito Beach Hotel and Spa.
· Follow-up FMT treatment at home for a total of sixteen (16) weeks.
· Consultation with Dr. Sandoval regarding the FMT treatments.
· Arrangement of transportation from San Diego to and from the Rosarita Beach Hotel and Spa.
· Arrangement for a block rate discount for hotel room for you and any additional guests at the Rosarito Beach Hotel and Spa.
A follow-up program may be available, at an additional cost, upon the mutual agreement of you and Dr. Klop.
…
9. No Guarantees. Dr. Klop is committed to providing quality health education and high quality medically supervised fecal microbiota transplants (FMT). … Dr. Klop does not guarantee that the FMT material will clear customs.
10. Disclosure. You understand that you are not a patient of Dr. Klop, and that Dr. Klop is not providing healthcare, medical advice, mental health advice, or therapy through this program. …
[50] In addition, email correspondence between Paladin and the petitioner suggested that:
a) as of March 2020, he continued to offer FMT in Mexico to families from British Columbia; and
b) he continued to use the title “Naturopathic Doctor” in his email signature when communicating with prospective patients regarding FMT, using his jason@drjasonklop.com email address.
[51] In April 2020, the College provided the Paladin Reports to the petitioner and requested additional information from him, including details of the billing and financial records for his naturopathic practice from 2018 to 2020. In response, the petitioner took the position that those financial records were not relevant to Investigation 372 and reiterated the assertion that he does not administer FMT to anyone inside or outside of Canada. The petitioner also:
a) advised the College that his role was “predominantly being a communicator to share his knowledge about FMT both to individuals and health care workers, in order to increase awareness and safety related to FMT”; and
b) acknowledged his involvement in “coordinating the logistics for people to obtain FMT, including scheduling the assessment and administration of FMT by a licensed medical doctor in Mexico” and “providing information and coordinating access to the providers and to [FMT] supplies”.
[52] In light of these assertions, the petitioner requested that Investigation 372 be concluded pursuant to s. 33(6)(a) of the Act on the basis that his conduct was satisfactory, since he was not administering FMT and was not required to possess an ND designation to provide information and coordinate FMT treatment in Mexico. This was not acceptable to the College.
[53] From July through December 2020, the College persisted in its efforts to investigate the petitioner’s involvement with FMT and further correspondence ensued. In July 2020, the College communicated its position to the petitioner’s legal counsel as follows:
Given that [the petitioner] is a registrant of the College and his expected to adhere to and comply with the law in Canada, pursuant to section 3(l) of the College Code of Conduct. It is irrelevant that the College does not provide specific guidance or standard in relation to FMT. A potential breach of the provisions of the College Code of Conduct, Code of Ethics and/or College Bylaws is a sufficient basis for the College to investigate [the petitioner] for his involvement in helping families access FMT. Families who are prepared to have their children undertake such experimental treatment are in a highly vulnerable position and necessarily rely on [the petitioner’s] clinical judgment in providing safe and ethical advice and care.
The Committee is heartened that [the petitioner] has revised the FMT Solution website to clarify that it no longer accepts Canadians at the retreats in Mexico. However, the fact remains that there is evidence that he was facilitating FMT access to Canadians for the sole purpose of treating autism. The Committee has concluded that it is not enough that [the petitioner] has simply now ceased to facilitate access to Canadian families. It is of the view that [the petitioner] must cease to facilitate access to the public at large, which includes members of the public in foreign jurisdictions as long as he is a registrant and holding out himself as a naturopathic physician in relation to those treatments.
If [the petitioner] was to propose a voluntary renunciation of his registration with the College as a naturopathic doctor for a minimum period of 3 years, the Committee would be prepared to consider disposing of the matter at this juncture. For now, the Committee will continue its investigation and awaits a copy of the requested financial and billing records.
[Emphasis added.]
[54] The petitioner responded in September 2020, maintaining the position that the College lacked jurisdiction but indicated that he would be providing the requested financial and billing information. The petitioner also indicated a desire to resolve Investigation 372, but was not amenable to the College’s suggestion of a three-year voluntary renunciation of his registration with the College.
[55] In December 2020, the petitioner responded to the College’s request for financial records by providing a single-page letter from the co-founder and director of Baja MedGate confirming that there were no payments, commissions or fees paid “between FMT Solutions nor [the petitioner]”. The petitioner took the position that this correspondence fully addressed the College’s concern about an improper business relationship with Baja MedGate and that as a result, provision of further financial or billing records was unnecessary.
[56] The College disagreed and maintained its request for production of financial and billing records relating to the petitioner’s naturopathic practice from 2018 to date. As of February 2021, the College’s position remained that:
As long as the Registrant holds a license from this College to practice naturopathic medicine, and continues to practice in procedures which are not approved by Health Canada and not within the scope of practice allowed by his license, the College will fulfill its mandate to regulate his conduct. The mandate of the College is to regulate the profession of naturopathic medicine in BC, and to protect the public, both in BC, and outside of BC. A registrant practicing in this manner may endanger the public, mislead the public, and bring the profession into disrepute. These are all issues which are squarely within the jurisdiction of the College, even where the Registrant is practicing on non-Canadians outside of BC.
[Emphasis added.]
[57] The record does not disclose a response from the petitioner to the College’s February 2021 correspondence.
[58] The College was aware that Health Canada was also investigating the petitioner’s involvement with FMT. In March 2021, Lee Dorner, an Investigations and Compliance Officer with the College, contacted Winnie Cheng, a Senior Compliance Officer, Health Product Compliance West, with Health Canada’s Regulatory Operations and Enforcement Branch. Mr. Dorner noted that he understood Health Canada had been investigating the petitioner’s involvement with, and advertising of, FMT retreats, and made inquiries as to the status of Health Canada’s investigation.
[59] In response, Ms. Cheng advised that she would be closing her file, as Health Canada understood the petitioner had stopped advertising and selling unlicensed natural health products in Canada:
… We have had the case in inspection mode for compliance verification and not investigation. Through our compliance and enforcement actions, we have been successful in bringing [the petitioner] to comply with the Food and Drugs Act and its regulations. Since our intervention, [the petitioner] was informed that he was not allowed to practice FMT in Canada. In addition, he stopped advertising and sale of unlicensed Natural Health Products. As such, I can close the case file that was assigned to me in Jan. 2020.
[60] As will be discussed further below, the petitioner relies on this email as Health Canada’s approval of his manufacturing and export of FMT materials.
[61] In April 2021, the College received a complaint from an individual later known to be Katie Hamilton, a former employee of the petitioner, which raised concerns about his laboratory operations and business practices (the “Hamilton Complaint”).
[62] The Hamilton Complaint triggered a second investigation of the petitioner under s. 33(4) of the Act, which was initiated on June 28, 2021 (“Investigation 507”; collectively with Investigation 372, the “Investigations”). Investigation 507 concerned the petitioner’s manufacturing of FMT absent compliance with the FDA, thereby allegedly in contravention of s. 3(l) of the Code, which requires NDs to comply with all federal, provincial and municipal legislation.
[63] In the Hamilton Complaint, Ms. Hamilton alleged that the petitioner was manufacturing FMT pills and enemas at the Abbotsford Lab with little or no oversight or operating procedures. She stated that the lab was managed by someone with no scientific qualifications, had no protocols for screening donors or analyzing product, and disposed of fecal waste with household garbage. Ms. Hamilton advised that she had knowledge of the petitioner’s product labelling process, and expressed concern that patients were not provided with information about the products or avenues to report adverse reactions, beyond contacting the petitioner. Ms. Hamilton also alleged that the petitioner frequently flew to Mexico to distribute FMT products.
[64] On May 28, 2021, Ms. Hamilton was interviewed by Mr. Dorner on behalf of the College. The transcript of that interview shows that Ms. Hamilton confirmed the issues raised in her complaint, notably that the Abbotsford Lab had no standard operating procedures relating to the disposal of the fecal waste, screening of donors or storage of the product. She detailed the packaging and shipping processes at the Abbotsford Lab and the distribution scheme in Mexico. Ms. Hamilton also reiterated that the petitioner was travelling to Mexico frequently to distribute the FMT. She also claimed that the petitioner had cut her out of communications relating to the Chilliwack Lab opening and installed remote access software on her computer and email account.
[65] The petitioner was notified of Investigation 507 on July 15, 2021, and provided with various materials, including correspondence from Health Canada and a transcript of the College’s interview with Ms. Hamilton. Investigation 507 particularized concerns that the petitioner was:
a) manufacturing FMT material for purposes of treating patients with autism, contrary to Health Canada’s FMT Guidance;
b) manufacturing drugs (FMT) without proper health and safety protocols, contrary to ss. 1(b) and 3(j) of the Code and ss. 8 and 11 of the FDA; and
c) failing to comply with Health Canada’s advertising policies in accordance with the College’s May 5, 2021 Notice to Registrants.
[66] At approximately the same time as the College was pursuing the Investigations, the petitioner was also the subject of two Health Canada investigations. The first (case 2020-000714) arose from Health Canada’s concern that the petitioner was advertising FMT for sale to Canadians for the unauthorized treatment of children with autism at his clinic in Mexico (“Case 714”). Case 714 appears to have been assigned to Ms. Cheng in January 2020.
[67] As noted above, on July 13, 2021, Ms. Cheng advised the College that Health Canada understood that the petitioner was no longer advertising or selling unlicensed health products in Canada and as such, she would be closing her file. The record does not disclose whether Ms. Cheng did in fact close Case 714 and if so, whether or when this was communicated to the petitioner.
[68] Health Canada’s second investigation (case 2021-027900) was initiated in May 2021 and involved the petitioner’s manufacturing and export of FMT for the treatment of autism in children in Mexico (“Case 27900”). Like Investigation 507, Case 27900 arose out of the Hamilton Complaint.
[69] On June 2, 2021, Health Canada wrote to the petitioner in Case 27900, requesting that he provide information necessary for Health Canada to determine whether he was manufacturing or exporting FMT and if so, to ensure that the requirements of s. 37 of the FDA were being met. The petitioner corresponded with Craig Johnson of Health Canada regarding Case 27900. Ms. Cheng does not appear to have been copied on the correspondence regarding Case 27900, nor does the record suggested she was otherwise involved in Case 27900.
[70] In late June 2021, Health Canada visited the Chilliwack Lab and requested additional documentation from the petitioner to determine whether he was complying with ss. 8 and 9 of the FDA. On July 6, 2021, Health Canada again reiterated its request for documentation, which included raw and finished product specifications, batch record documentation, donor screening forms and laboratory test results for raw ingredients and finished products.
[71] As of July 20, 2021, Health Canada’s request for documentation regarding the petitioner’s manufacturing of FMT material remained outstanding. Notably, this request remained extant at the time of—and indeed following—Ms. Cheng’s July 13, 2021 email, suggesting that she would be closing Case 714.
[72] On July 27, 2021, the petitioner provided Health Canada with some of the documents it had requested. The petitioner’s counsel also indicated that “We look forward to Health Canada’s feed-back”. The record discloses no further communication between the petitioner and Health Canada regarding Case 27900.
[73] Contrary to the petitioner’s pleadings in S240451, the record discloses no correspondence from Health Canada stating that it has “concluded its investigation and elected to take no action against [the petitioner’s] export of [FMT] products”. Nor is there any correspondence from Health Canada confirming that it did not take issue with the petitioner’s production of FMT. The current status of Cases 714 and 27900 is, at best, unclear on the record.
[74] On June 28, 2021, contemporaneously with its initiation of Investigation 507, the Inquiry Committee appointed a panel (“Panel”) to consider whether extraordinary action pursuant to s. 35 of the Act was necessary to protect the public during the investigation or pending a hearing of the discipline committee.
[75] Following two adjournments at the petitioner’s request, the College and the petitioner provided written submissions to the Panel. The parties then appeared before the Panel to make oral submissions by videoconference on August 9, 2021.
[76] The Panel rendered its decision on August 19, 2021, concluding that extraordinary action in the form of restrictions on the petitioner’s practice were necessary in the public interest (the “Decision”). The Panel characterized the allegations before it on the s. 35 hearing as whether the petitioner was manufacturing FMT materials:
a) for the purposes of treating patients with autism, contrary to Health Canada policy; and
b) without proper health and safety protocols, contrary to ss. 1(b) and 3(j) of the Code and ss. 8 and 11 of the FDA.
[77] Based on the material before it, the Panel made interim factual findings—which the petitioner has not challenged in these proceedings—that the petitioner was producing FMT material and selling it to the public, and that he was producing, selling and distributing FMT materials to treat conditions other than CDI: Decision paras. 32, 39.
[78] With respect to whether there was a prima facie case supporting the allegations against the petitioner, the Panel noted the “significant conflict” between the petitioner’s evidence and the Hamilton Complaint about the standards employed in the petitioner’s lab. However, the Panel found that it was not in a position to address the quality of the lab and FMT materials being produced: Decision at para. 31. Rather, the Panel characterized the more important and immediate concern before it as whether the petitioner was producing FMT materials and selling it to the public: Decision at para. 32.
[79] The Panel rejected the petitioner’s submission that his involvement with FMT did not fall within the definition of “naturopathic medicine” and therefore could not constitute unprofessional conduct, concluding as follows:
[44] The Panel accepts the College’s submission that “off duty” conduct may give rise to a finding of unprofessional conduct if it brings the reputation of the profession into disrepute.
[45] The manufacture of a product for health-related purposes is closely connected to the profession of naturopathy. In this way, the two cases relied upon by [the petitioner] are unlike the present circumstance.
[46] Furthermore, [the petitioner] is not simply manufacturing FMT materials, he is advocating for the health benefits of FMT beyond the treatment of CDI and, as set out above, employing FMT for the treatment of other health conditions.
[47] That falls squarely within the definition of practice in the Naturopathic Physicians Regulation, B.C. Reg 156/2009. …
[80] The petitioner also took the position before the Panel that an interim order was not warranted because his manufacturing for export complies with the FDA. In that regard, the petitioner relied—as he does on this appeal—on Ms. Cheng’s July 13, 2021 email as evidence that he was in compliance with Health Canada’s requirements. The Panel did not accept that this negated the need for an interim order, reasoning as follows:
[55] Health Canada is not concerned with the ultimate use to be made of a drug manufactured for export only. Regardless of the standards of the FMT materials or [the petitioner’s] lab, and even if [the petitioner] is compliant with the export provisions under the Food and Drugs Act, he is manufacturing and distributing FMT materials for treatment that is not authorized under the Health Canada Guidelines.
[56] This is the heart of the Panel’s concern. Health Canada says that the only use of FMT that merits consideration is as a last resort treatment for CDI. The FMT that is prescribed or promoted by [the petitioner] and, in some cases, administered by [the petitioner], is not for CDI. It is for constipation and autism and other conditions. Such treatments are not authorized in Canada. As a practicing registrant of this College, who is manufacturing, selling and essentially operating from BC, it is of no moment to say that FMT treatment is administered in Mexico or anywhere else outside Canada.
[81] The Panel thus concluded that a prima facie case was made out that the petitioner had engaged in conduct amounting to unprofessional conduct or professional misconduct by manufacturing, producing and distributing FMT materials for the treatment of autism or conditions other than CDI: Decision at para. 60.
[82] As to protection of the public, the Panel noted that the risk to the public or public safety must be real or immediate. The Panel considered the petitioner’s evidence, but concluded that it was satisfied that his continued manufacture and distribution of FMT materials constituted a real risk to the public such that interim measures were appropriate: Decision at para. 67. In so concluding, the Panel reasoned as follows:
[62] A drug that has not been approved under the Food and Drugs Act has not received the protections afforded by the approval regime.
[63] The ingestion or other type of transfer of fecal material from one person to another necessarily carries risk. The significant risk is that the donor’s fecal material contains pathogens, such as E. coli, which, even in very small quantities, can cause illness or death to the recipient. Further, as referenced by Health Canada in the Guidelines, apart from the rare CDI case, when all the other precautions are observed, there is no other condition for which FMT has demonstrated safety or efficacy. In this Panel’s view, the use of FMT for treatment of autism or other conditions presents a high risk to public safety. The production and sale of FMT materials for use in such unauthorized treatments presents a similarly high risk.
[83] In the result, the Panel made an interim order that the petitioner be prohibited from:
a) producing, manufacturing or otherwise assisting with or facilitating the production or manufacturing of FMT materials; and
b) advertising, promoting, selling, shipping or assisting with or facilitating the advertising, promoting, selling or shipping of FMT materials to the public.
[84] The first of the two petitions before the Court, S240451, was filed on September 17, 2021, appealing the Interim Order and seeking to have it quashed under ss. 35(5) and 40 of the Act.
[85] In October 2021, the College became aware of information appearing on two of the petitioner’s websites (www.naturolyfe.com and www.novelbiome.com), which caused it concern that contrary to his previous representations, the petitioner appeared to be continuing use his ND credentials to market and promote FMT on these websites. As such, the Inquiry Committee expanded Investigation 372 to include allegations that the petitioner was:
a) advertising FMT treatments to Canadians and using his license and title as an ND, contrary to past assurances provided to the College;
b) advertising patient testimonials contrary to s. 3.2(e) of the College’s Advertising Policy;
c) failing to use the designation “naturopathic” or “ND” when referring to himself as a doctor contrary to s. 2.1(b) of the Advertising Policy; and
d) making unverifiable claims contrary to s. 3.1(d) of the Advertising Policy, or claims which are likely to create unjustified expectations of results in the minds of recipients, contrary to s. 3.2(b) of the Advertising Policy.
[86] The College requested the petitioner’s response to the expanded scope of Investigation 372 by October 27, 2021. The College advised that once Investigation 372 was concluded, the Inquiry Committee would decide how to proceed, pursuant to s. 33(6) of the Act.
[87] By the fall of 2021, given the overlap between the Investigations, the College was communicating with the petitioner about both Investigations simultaneously. In October 2021, the College reiterated its request for production of the petitioner’s financial records, which had not yet been provided despite multiple demands, dating back to July 2020. The petitioner requested a further extension of time to respond, which the College granted. On November 8, 2021, the petitioner responded that he had no records to produce because he had not been practicing as an ND in British Columbia since July 2019.
[88] Shortly thereafter, on November 12, 2021, the petitioner filed the second petition—S241376—seeking judicial review of the College’s decision to investigate his FMT-related business practices and seeking an order prohibiting the College from continuing the Investigations.
[89] Notwithstanding the filing of S241376, further correspondence ensued between the College and the petitioner regarding the NovelBiome and NaturoLyfe websites. On November 25, 2021, at the direction of the Inquiry Committee, Mr. Dorner made further requests for information, including: copies of any licenses that permitted the petitioner to manufacture, sell and distribute FMT out of the Abbotsford and Chilliwack Labs; and a list of jurisdictions where the petitioner advertised FMT, including jurisdictions where he blocked access to local internet protocol addresses.
[90] As of the hearing of the petitions, both of the Investigations remained ongoing and some of the Inquiry Committee’s requests for documents and information from the petitioner in respect of the Investigations remain outstanding. The Inquiry Committee has not yet determined what action(s) it will take, if any, under ss. 33(6)(a)–(d) of the Act in respect of either of the Investigations.
[91] In S240451, the petitioner proceeds by way of statutory appeal seeking to quash the Interim Order. Specifically, the petitioner seeks an order pursuant to ss. 35(5) and 40 of the Act, quashing the Interim Order.
[92] The petitioner initially alleged the Panel erred in two respects: by exceeding its jurisdiction in making the Interim Order against the petitioner; and in finding his involvement with FMT established a prima facie case of professional misconduct requiring protection of the public. However, when the appeal came on for hearing, the petitioner conceded that the College has in personam jurisdiction over him as a registrant, and that this jurisdiction extends to extraterritorial activities. This is consistent with the College’s public interest mandate and the weight of the jurisprudence on this point: see e.g. Ewachniuk v. Law Society of British Columbia, 46 B.C.L.R. (3d) 203 at paras. 30–34, 1998 CanLII 6469 (C.A.); Re Legault and Law Society of Upper Canada, 8 O.R. (2d) 585 at para. 5, 1975 CanLII 706 (C.A.) at para. 5; Underwood McLellan & Associates Ltd. v. Saskatchewan Association of Professional Engineers, 1 Sask. R. 25, 1979 CanLII 2222 (C.A.); Mema v. Chartered Professional Accountants of Alberta, 2020 ABQB 486 at para. 51, aff’d 2022 ABCA 4.
[93] This leaves for determination the second ground of appeal, namely whether the Panel erred in concluding that the petitioner’s involvement with FMT established a prima facie case of professional misconduct requiring protection of the public. The petitioner alleges that the Panel erred in its interpretation of professional misconduct and unprofessional conduct, and in finding that the petitioner’s involvement with FMT gave rise to a prima facie case of professional misconduct or unprofessional conduct. More specifically, the petitioner says that the Panel erred in two ways:
a) In finding a prima facie case of conduct unbecoming of an ND by using the FMT Guidance to infer that FMT posed a risk to the public; and
b) In finding that the FMT materials he manufactured for export posed such a risk, despite Health Canada having approved his manufacturing and export of FMT.
[94] The College’s position is that the Panel did not err in how it approached the concept of unprofessional conduct, nor did it commit a palpable and overriding error in concluding there was a prima facie case to support the allegations, and that the public interest required protection by way of a s. 35 order.
[95] The parties agree that in accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 37 [Vavilov], the applicable standard of review with regard to this statutory appeal is correctness for questions of law, and palpable and overriding error for questions of fact, or mixed fact and law for which the legal principle is not readily extricable. This reflects the typical appellate standard for judicial decisions, which Vavilov deemed appropriate where the existence of a statutory appeal mechanism indicates “the legislature’s choice of a more involved role for the courts in supervising administrative decision making”: Vavilov at para. 46; Whieldon v. British Columbia College of Nurses and Midwives, 2021 BCSC 1648 at para. 30.
[96] The parties also generally agree on the application of these standards to the alleged errors in issue on this appeal:
a) Whether the Panel erred in its interpretation of “professional misconduct” under the Act and the Regulation is a question of law that attracts a correctness standard; and
b) Whether the Panel erred in its application of the definition of “professional misconduct” and “unprofessional conduct” to the petitioner’s conduct to find a prima facie case requiring protection of the public is a question of mixed fact and law, assessed for palpable and overriding error: Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 at para. 25.
[97] Correctness is the least deferential standard of review. The reviewing court may choose to either uphold the administrative decision maker’s determination or substitute its own view: Vavilov at para. 54. No deference is owed to the Panel on errors of law: Canada (Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at paras. 30–31; Whieldon at para. 32.
[98] The palpable and overriding error standard requires considerable deference to the College: Whieldon at para. 36. A palpable and overriding error is one that is plainly seen: Housen v. Nikolaisen, 2002 SCC 33 at paras. 5–6; Southwind v. Canada, 2021 SCC 28 at para. 158. An error is “palpable” if it is clear, and “overriding” if it is so tied to the issues that it can be said to have affected the outcome: Franklin v. Cooper, 2016 BCCA 447 at para. 13.
[99] When reviewing for palpable and overriding error, the court may interfere with the Panel’s findings if they are based on a misapprehension of evidence or not supportable on the evidence: Franklin at para. 13; Chavez-Salinas v. Tower, 2022 BCCA 43 at paras. 28–29. However, even if the Panel fails to consider some evidence, this will not constitute a palpable and overriding error, unless the omission “[gives] rise to a ‘reasoned belief that the [Panel] must have forgotten, ignored, or misconceived evidence in a way that affected [its] conclusion’”: Davis v. Jeyaratnam, 2022 BCCA 273 at para. 52, citing Van de Perre v. Edwards, 2001 SCC 60 at para. 15.
[100] Similarly, inferences should not be interfered with if they were available on the evidence and the inference-making process was sound: Chavez-Salinas at para. 28, citing Housen at paras. 10, 21–23. Conversely, inferences that lack support in the record are speculation, which, when arising in respect of a material fact, may constitute palpable and overriding error: Chavez-Salinas at para. 29.
[101] In considering the issues before it, the Panel applied the two-part test under s. 35(1) of the Act as articulated in Scott v. College of Massage Therapists of British Columbia, 2016 BCCA 180. The parties agree that this is the controlling authority on point.
[102] An interim order under s. 35 is a drastic remedy that may have serious reputational and financial impacts on the registrant and thus ought to be used sparingly: Scott at paras. 41, 55. As such, to make an interim order under s. 35(1), the Panel must be satisfied that (Scott, at para. 81):
a) there is a prima facie case supporting the allegations against the registrant; and
b) the public requires protection through an interim order.
[103] On the first element of the Scott test, the Panel is not assessing the substantive allegations; rather, its objective is to determine whether an interim order is required until the discipline committee assesses the merits: Scott at paras. 44, 72–76, 88. At this stage of the analysis, the Inquiry Committee need only find a prima facie case. This standard is satisfied by a case that “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”: Scott at para. 80, citing Ontario (Human Rights Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536 at 558, 1985 CanLII 18 [Simpson Sears].
[104] Here, the allegations in issue were whether the petitioner was manufacturing FMT materials for the purposes of treating patients with autism, contrary to the FMT Guidance; and manufacturing FMT without proper health and safety protocols, contrary to the Code and the FDA: Decision at para. 20. To meet the first element of the Scott test, the Panel must find that these allegations are grounded in conduct that can be interpreted as prima facie professional misconduct or conduct unbecoming under the Act.
[105] On the second branch of the test, the Panel must find that there is a real risk to the public if an interim order is not granted: Scott at para. 55. The seriousness of the risk is determined with a view to the seriousness of the allegations, nature of the evidence and likelihood of the conduct being repeated if no order is made: Scott at para. 55. The analysis at this stage is limited to a “preliminary assessment of the facts”: Scott at para. 88. The Panel is not to venture into an analysis of the merits of the allegations, but is permitted to discount evidence that is “manifestly unfounded or manifestly exaggerated”: Scott at para. 63.
[106] On the first element of the Scott test, the petitioner asserts the Panel erred in law in its interpretation of unprofessional conduct, including the scope of conduct constituting “conduct unbecoming”, as defined in the Act and the Regulation. The petitioner makes two general arguments to the effect that the Panel erred by:
a) failing to interpret professional misconduct and unprofessional conduct by reference to a written normative standard, namely the definition of “naturopathic medicine” prescribed in the Regulation; and
b) interpreting “unprofessional conduct” as including non-compliance with the FDA.
[107] The proper approach to statutory interpretation is well-settled: R. v. Downes, 2022 BCCA 8 at para. 70. A provision must be interpreted in accordance with the modern principle, as set out by Elmer Driedger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) and endorsed in Rizzo & Rizzo Shoes Ltd. (Re), [1988] 1 S.C.R. 27, 1988 CanLII 837. The modern principle requires that a provision is read “contextually, in a manner that reflects the grammatical and ordinary meaning of the text, harmoniously with the scheme and object of the Act and the intention of [the legislature]”: Downes at para. 70, citing Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42 at para. 26. If the provision is unambiguous, three considerations are paramount: the text, context and purpose: The Owners, Strata Plan KAS 2428 v. Baettig, 2017 BCCA 377 at para. 37.
[108] “Professional misconduct” under s. 26 of the Act is conduct that arises in the course of practicing a profession—here, in the practice of naturopathic medicine. I agree with the College that activities, such as counselling or educating patients about treatment options, advocating for particular treatments or monitoring a patient’s use of a drug or substance, is conduct that falls squarely within the definition of “naturopathic medicine” in the Regulation and thus the definition of professional misconduct under the Act. As such, the Panel did not err in finding that this conduct was captured by the Regulation: Decision at paras. 46–47.
[109] More importantly, professional misconduct is not limited to conduct occurring in the course of practicing a profession (i.e. conduct falling within the definition of “naturopathic medicine” in the Regulation). In the present regulatory framework, professional misconduct by definition includes “unprofessional conduct” and “conduct unbecoming a naturopathic physician”: Act, s. 26; Code, s. 2(b).
[110] Conduct outside the practice of a profession—often described as off-duty conduct—can amount to conduct unbecoming where there is a nexus with the professional practice: College of Physicians & Surgeons Alberta v. Ali, 2017 ABCA 442 at para. 100, Slatter J. dissenting not on this point [Ali]; Strom v. Saskatchewan Registered Nurses’ Association, 2020 SKCA 112 at para. 89. Further, and as this Court has noted, it is well settled that off-duty conduct can give rise to discipline when it has a negative impact on the individual’s ability to carry out their professional obligations or where the conduct has a negative impact on, or conflicts with the core values of, the profession: Fountain v. British Columbia College of Teachers, 2007 BCSC 830 at para. 51; see also Kempling v. British Columbia College of Teachers, 2005 BCCA 327 at paras. 36, 46 [Kempling CA]; Strom at paras. 113–115.
[111] The petitioner also says that the Panel erred in failing to appreciate that a finding of unprofessional conduct must be tied to some form of “normative legal standard” against which alleged conduct can be assessed. In the petitioner’s submission, the definition of naturopathic medicine in the Regulation provides the “normative yardstick” against which professional misconduct and unprofessional conduct should be assessed and the Panel thus erred by failing to anchor its interpretation in that definition. I disagree.
[112] First, the Panel did have regard to the definition of naturopathic medicine in the Regulation to inform its interpretation of unprofessional conduct. This is evident in paragraphs 46–47 of the Decision, where the Panel noted that the petitioner’s conduct in advocating for the health benefits of FMT beyond the treatment of CDI and employing it for the treatment of other health conditions falls “squarely within” the definition of practice in the Regulation.
[113] Second, the petitioner’s position is inconsistent with the weight of the jurisprudence. In Janzen v. The Society of Notaries Public of British Columbia, 2015 BCSC 2485, the Court rejected a similar argument to that of the petitioner here, namely that a finding of professional misconduct cannot arise in respect of conduct falling outside the permitted scope of practice for the profession. In that case, Mr. Janzen failed in his duties as executor of a client’s estate—conduct falling outside the scope of practice of a notary public: para. 32. The Society found Mr. Janzen guilty of professional misconduct and imposed a one-month suspension: para. 1. The Society’s decision was upheld on judicial review, with the Court concluding as follows on the nexus between notaries’ scope of practice and his conduct:
[40] The fact that the services in question did not fall within s. 18 of the Notaries Act does not detract from the close connection between Mr. Janzen’s status as a notary and the estate matter. Mr. Janzen had prepared Ms. Carlson’s will and continued to use his notary company’s office address and describe himself as a notary on all correspondence relating to the estate.
[114] The petitioner points to Kempling v. The British Columbia College of Teachers, 2004 BCSC 133 [Kempling SC], aff’d Kempling CA, as an example of a normative legal standard being required to assess conduct unbecoming. Mr. Kempling was a teacher who was cited for professional misconduct for authoring certain publications that the disciplinary committee of the British Columbia College of Teachers (“BCCT”) concluded were discriminatory: Kempling SC at paras. 2, 5. Mr. Kempling was found guilty of conduct unbecoming a member of the BCCT, and his license was suspended: Kempling SC at paras. 4, 6–8.
[115] In the petitioner’s submission, the school curriculum provided the normative standard against which Mr. Kempling’s conduct was assessed. The College disagrees and says that Mr. Kempling’s off-duty publications demonstrated his unwillingness to consider and uphold the education system’s core values, including the right to be free of discrimination. In the College’s submission, it was those core values—not the curriculum specifically—that provided the standard against which Mr. Kempling’s conduct was assessed.
[116] I agree with the College. Kempling SC and Kempling CA do not establish a requirement that conduct unbecoming a professional be assessed against a written normative standard. This is evident from both this Court’s decision in Kempling SC and the subsequent decision on appeal. In dismissing Mr. Kempling’s appeal to this Court, Justice Holmes noted the nexus between Mr. Kempling’s conduct and his professional status, and its impact on the school system as a whole:
[46] By publicly linking his private, discriminatory views of homosexuality with his status and professional judgment as a teacher and secondary school counsellor, the appellant called into question his own preparedness to be impartial in the fulfilment of his professional and legal obligations to all students, as well as the impartiality of the school system. That in itself is a harmful impact on the school system as a non-discriminatory entity.
[117] Mr. Kempling then pursued a further appeal, arguing that the BCCT hearing panel erred in finding him guilty on the basis that his writings were discriminatory, amounting to unprofessional conduct. The appeal was dismissed, with the Court of Appeal recognizing that “the Panel certainly has greater expertise than the court as to what amounts to conduct unbecoming a member of the BCCT”: Kempling CA at para. 24. The Court then went on to assess whether Mr. Kempling’s conduct was conduct unbecoming by considering it in light of the core values of the education system, not against the curriculum as a written normative standard. This is evident in the following passages:
[42] A finding of conduct unbecoming may be justified on the basis that a teacher’s conduct caused harm to the education system. I do not accept that it is necessary to determine whether an inference of harm is sufficient to sustain a finding of conduct unbecoming as there was, in my view, direct evidence that Mr. Kempling’s writings caused harm. This harm is not to any particular student or parent (though such harm may have been caused), but to the integrity of the school system as a whole.
[43] Non-discrimination is a core value of the public education system; the integrity of that system is dependent upon teachers upholding that value by ensuring the school environment is accepting of all students. When a teacher makes public statements espousing discriminatory views, and when such views are linked to his or her professional position as a teacher, harm to the integrity of the school system is a necessary result.
[Emphasis added.]
[118] The Panel interpreted “unprofessional conduct” to include off-duty conduct that brings the reputation of the profession into disrepute: Decision at para. 44. This interpretation is consistent with the Act, the Regulation and the applicable jurisprudence. The petitioner’s contention that these terms must be interpreted with reference to a written normative standard finds no support in the statutory framework or jurisprudence.
[119] Nor do I accept the petitioner’s contention that the Panel erred in interpreting unprofessional conduct as being sufficiently broad to capture non-compliance with other statutes—here, the FDA. First, s. 3(l) of the Code expressly requires that registrants comply with “all applicable legislation of the federal, provincial and municipal governments”. While the FDA is not expressly mentioned, I find that this provision is sufficiently broad to include it.
[120] Further, as is evident from the jurisprudence, the scope of off-duty conduct that may fall within the ambit of unprofessional conduct is broad. Failure to comply with one’s obligations under another statute may constitute unprofessional conduct where it could affect the public’s confidence in, or the reputation of, the profession or reflects on a professional’s integrity: Ali at paras. 58, 61. Ali involved a finding of unprofessional conduct on the part of a physician who, among other conduct, failed to comply with his obligations in bankruptcy. The Alberta Court of Appeal dismissed the physician’s appeal of the College’s findings on all grounds related to his failure to comply with his obligations in bankruptcy. The Court concluded as follows:
[83] The Hearing Tribunal concluded its analysis of the allegations under Count #3 [appellant’s failure to comply with his obligations in bankruptcy] with the following observation:
Although there are a number of reasons why Dr. Ali found himself in financial difficulty, once he filed for bankruptcy, he was required to fulfill his obligations as a bankrupt person in a timely, thorough and candid manner. Engaging in the practice of medicine is a privilege, and members of the profession are expected to comply with all applicable laws. Dr. Ali failed to do so. Although the conduct was not directly related to the practice of the profession, it is nevertheless ‘unprofessional conduct’ as contemplated by the HPA.
In our view, the Hearing Tribunal was well within its mandate to make these findings given the parameters of the Act and the Council’s responsibility and authority to govern the conduct of members of the medical profession. As a result, we see no error on the part of the Hearing Tribunal that would warrant appellate intervention with respect to this allegation.
[Emphasis added.]
[121] Likewise, I am of the view that the Panel did not err in interpreting professional misconduct and unprofessional conduct as sufficiently broad to include potential contraventions of other statutes—here, the FDA—where there is a sufficient nexus with the profession. I am unable to find any suggestion within the words of the Act, the Regulation or the applicable jurisprudence that the interpretation of either professional misconduct or unprofessional conduct ought to be constrained by the definition of “naturopathic medicine” prescribed in the Regulation. This would be contrary to the requirement to interpret the words with reference to their context and the purpose of the College as set our in the Act—particularly, the protection of the public as expressly contemplated in s. 16(2).
[122] In the result, I find that the Panel correctly interpreted professional misconduct and unprofessional conduct as including off-duty conduct and not being limited by the Regulation’s definition of “naturopathic medicine”.
[123] When considering whether to act under s. 35, the Inquiry Committee must be “satisfied that there is a prima facie case supporting the index allegations, and that having regard to [the record] before it …, the public requires protection through an interim order”: Scott at para. 81. For a prima facie case to be made out, the Inquiry Committee must find that the allegations, if true, could lead to a finding of misconduct: Scott at para. 80, citing Simpson Sears at 558; see also Fingertote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131 at paras. 27–28.
[124] The petitioner’s position on the standard required to find a risk of harm to the public for the purpose of s. 35 shifted over the course of the hearing. While he initially asserted the College needed to establish actual harm to the public, the petitioner conceded in reply that the applicable standard is a real, non-speculative risk. This concession is consistent with applicable jurisprudence and properly accords with the College’s overarching public interest mandate: Scott at paras. 40–43; Hannos v. The Registered Nurses Assn. of B.C., 1996 CanLII 3213 at para. 39, [1996] B.C.J. No. 138 (S.C.).
[125] Nonetheless, the petitioner says the Panel erred at paragraph 63 of the Decision in finding a prima facie case that his conduct posed a real and non-speculative risk of harm to the public. First, he says that the Panel erred at paragraph 56 of the Decision when it inferred a risk of harm based on the FMT Guidance when that document has no application to conduct occurring in Mexico:
[56] This is the heart of the Panel’s concern. Health Canada says that the only use of FMT that merits consideration is as a last resort treatment for CDI. The FMT that is prescribed or promoted by [the petitioner] and, in some cases, administered by [the petitioner], is not for CDI. It is for constipation and autism and other conditions. Such treatments are not authorized in Canada. As a practicing registrant of this College, who is manufacturing, selling and essentially operating from BC, it is of no moment to say that FMT treatment is administered in Mexico or anywhere else outside Canada.
[126] Second, the petitioner asserts that the Panel erred in its conclusion that the production and sale of FMT materials for use in unauthorized treatments poses a high risk to the public wherever situated:
[63] In this Panel’s view, the use of FMT for treatment of autism or other conditions presents a high risk to public safety. The production and sale of FMT materials for use in such unauthorized treatments presents a similarly high risk.
[127] In support of both of these alleged errors, the petitioner initially asserted that FMT is lawful in Mexico. When confronted with the lacunae of evidence in the record as to the lawfulness of FMT in Mexico—whether for CDI, autism or any other condition—the petitioner conceded that the record was devoid of any evidence on this point. Nonetheless, a common theme flowing through the petitioner’s submissions is the assertion that there was no evidence before the Panel that FMT poses a danger to the public.
[128] In this regard, the petitioner suggested that in order to find a prima facie risk of harm to the public, the Panel ought to have had expert evidence on that point before it prior to making the Interim Order. It bears repeating that at this stage of the process, all that is required is a prima facie case. I agree with the College that to import a requirement for expert evidence at this stage of the administrative process would have the effect of conflating the investigatory stage of the process with the disciplinary stage, assuming a citation were to be issued by the registrar. The proper time and place for expert evidence is within the disciplinary committee hearing process, as is expressly contemplated in s. 38(4.1) of the Act.
[129] The petitioner also notes as an overarching point that despite having the ability to do so, the College has not directly prohibited the use of FMT. In my view, conduct is not required to be expressly prohibited by the College before it can be considered as conduct potentially posing a risk of harm to the public. This is especially the case here, where the FMT Guidance explicitly provides that Health Canada has only approved FMT for use outside of an authorized clinical trial for the treatment of persistent CDI. According to Health Canada, treatment of persistent CDI is the only indication for which FMT has demonstrated safety and efficacy. Health Canada has not approved FMT for use in any other circumstances, and in particular, has not approved its use for the treatment of children with autism. In such circumstances, restricting inferences of harm to being made only where conduct is specifically prohibited by the College would unduly tie the College’s hands in its oversight of registrants, and negatively impact—rather than promote—the public interest and confidence in the profession.
[130] Further, the petitioner’s submission ignores Standards 2 and 3, which require naturopathic doctors to prescribe in accordance with, among other statutes, the FDA, and to do so in accordance with “ethical, legal and professional standards”. Moreover, Standard 4 requires that the petitioner engage in evidence-based prescribing and “consider best practice guidelines and other relevant guidelines when prescribing for clients, including when recommending therapies” (emphasis added). Thus, while the College has not expressly prohibited FMT, the Standards do require the petitioner to consider other relevant guidelines when recommending therapies, and in my view, the FMT Guidance is precisely the type of guideline that would come within the ambit of Standard 4 in the present circumstances.
[131] Regardless, the potential risk of harm arising from the use of FMT for treatment of children with autism is manifest on the face of the FMT Guidance. It specifically notes that donors should be screened for all transmissible diseases, including HIV and hepatitis, and outlines a lengthy list of potential microorganisms and diseases that could be transmitted through FMT. That list includes, by way of example: HIV-1/2; Hepatitis B and C; syphilis; Salmonella species; various Multi-drug Resistant Organisms, such as methicillin-resistant Staphylococcus aureus; listeria; norovirus; rotavirus; adenovirus; parasites; malaria; gonorrhea, Chlamydia; and cancer: FMT Guidance at p. 8. The FMT Guidance thus also recommends extensive testing of donor fecal samples to “ensure maximum detectability of an infectious disease” and exclusion of donors who may transfer “undesirable agents” which could affect the safety of the patient: FMT Guidance at p. 9. In light of this, I find that the inference drawn by the Panel from the FMT Guidance that the petitioner’s involvement with FMT posed a real, non-speculative risk of harm to the public was available on the record before it.
[132] As such, I find that the Panel did not err at paragraph 63 of the Decision when if relied on the FMT Guidance in inferring risk of harm to the public arising from the petitioner’s involvement with FMT. The Panel’s conclusion in this regard was not speculative. In the result, the Panel did not err in its inference-making process.
[133] As to the FMT Guidance, the petitioner says that it is a “neutral” factor, in that it does not actually say that FMT is dangerous. The petitioner goes on to say that regardless, the FMT Guidance has no application in Mexico and is irrelevant to treatment provided in Mexico by people other than the petitioner. In the circumstances, the petitioner says the Panel erred in inferring a risk of harm to the public from the FMT Guidance. I disagree.
[134] The FMT Guidance clearly limits FMT to the treatment of persistent CDI, and states that “[f]or all other indications, the use of FMT must still be conducted under a clinical trial authorized by Health Canada” (emphasis added): FMT Guidance at p. 6. FMT has not been approved by Health Canada outside a clinical trial for the treatment of any condition other than persistent CDI. More importantly, the FMT Guidance outlines a lengthy list of potentially serious health risks that could arise from FMT, including “intestinal pathogens and infectious disease agents that could be harmful to the recipient”: FMT Guidance at p. 8.
[135] Regardless, whether or not the FMT Guidance has application in Mexico is immaterial. So long as the petitioner remains a registrant of the College, he must conduct himself in accordance with the Standards and the Code, which require him to comply with all applicable federal legislation. This is particularly the case given that the record before the Panel supported its concern that despite his assurances to the contrary, the petitioner continued to hold himself out as an ND and College registrant, while linking his ND practice to his involvement with FMT, advocating for its benefits in treating children with autism.
[136] The petitioner asserts that the Panel erred because there was no evidence that the specific FMT materials he manufactures pose a risk of harm to the public. In the petitioner’s submission, the Panel ought to have rejected Ms. Hamilton’s evidence about the conditions under which he manufactured FMT materials and instead preferred his evidence as to the standard operating procedures and donor screening processes employed.
[137] The Panel recognized the conflict in the evidence before it on the standards employed in the petitioner’s Abbotsford Lab, but declined to weigh the evidence to determine the veracity of the allegations made in the Hamilton Complaint: Decision at para. 31. The role of the Panel is not to weigh evidence, make findings of fact or determine whether the petitioner was, in fact, engaged in professional misconduct or unprofessional conduct. Rather, as the Court noted in Scott:
[73] … [The inquiry committee’s] task under s. 35 is not to decide whether it prefers the version of events put forward by the complainant or the registrant; it must make the decision on interim action “while facts are in dispute and not yet finally determined by the Discipline Committee following a hearing with full procedural rights.”
[138] The Panel properly understood that it was not required to determine whether either of the petitioner’s laboratories had or were using standard operating procedures, whether staff had adequate training or whether the petitioner’s conduct did in fact amount to professional misconduct or unprofessional conduct: Decision at paras. 17, 31. In my view, the Panel properly declined to engage in weighing the evidence to determine whether Hamilton Complaint had merit at this stage of the analysis. It’s failure to do so does not amount to a palpable and overriding error. Weighing of conflicting evidence and making findings of fact are matters for the disciplinary committee, if a citation is eventually issued.
[139] Moreover, the petitioner’s position in this regard is predicated on standard operating procedures and standards for testing donor samples and manufacturing FMT materials being employed in his laboratories. The record shows that the petitioner provided documentation to Health Canada that he asserts set out the standard operating procedures and donor testing practices in place at the Chilliwack Lab. However, beyond the FMT Guidance suggesting that “appropriate detection and assessment methods” should be used, and that samples should be tested “within an appropriate time period so as to ensure maximum detectability of an infectious disease”, the record appears to be devoid of evidence as to whether the petitioner’s operating procedures or testing regime complies with Health Canada or any other recognized industry standards—or that such standards even exist for FMT materials.
[140] Finally, the petitioner says the Panel erred in finding a risk of harm because his manufacturing of FMT complies with the FDA. In support of this position, he points to Ms. Cheng’s July 13, 2021 email to the College. In my view, Ms. Cheng’s email does not provide the assurance the petitioner suggests. Notably, there is no evidence in the record that Ms. Cheng did in fact close Case 714 or that if she did, this was communicated to the petitioner. If such documentation existed, the petitioner would presumably have provided it to the Panel.
[141] More importantly, Ms. Cheng’s email appears to have been written in respect of Case 714, the case that was assigned to her and which involved the petitioner’s advertising of FMT, not the manufacturing practices that were the subject of Case 27900. While Ms. Cheng noted generally that Health Canada’s actions had been “successful in bringing [the petitioner] to comply with the [FDA]”, she went on to specifically note that she had been advised that he was not allowed to practice FMT in Canada and had “stopped [the] advertising and sale of unlicensed Natural Health Products” (emphasis added). Ms. Cheng’s email makes no reference to Case 27900, to the petitioner’s manufacturing of FMT for export, or to Health Canada being satisfied that his manufacturing practices comply with the FDA.
[142] The petitioner says that the Panel erred in para. 54 of the Decision when it found that “While [Case 714] was apparently closed, the Health Canada investigation resulting from the former employee’s 2021 complaint [Case 27900] remains underway”. This submission is without merit. The record supports the Panel’s conclusion that Case 27900 remained outstanding after July 13, 2021. This is evidenced by the subsequent correspondence between the petitioner and Health Canada:
a) On July 20, 2021, Mr. Johnston of Health Canada wrote to the petitioner’s then-counsel Mr. Buckley noting that the documents requested in his June 29, 2021 correspondence remained outstanding and requesting that they be provided to Health Canada “for evaluation”; and
b) On July 27, 2021, Mr. Buckley responded to Mr. Johnston providing some of the requested documents, indicated that the petitioner still needed to “look into the stability testing” and noted that they looked forward to Health Canada’s feedback.
[143] The evidence before the Panel thus clearly supported its conclusion that Case 27900 remained ongoing after Ms. Cheng’s July 13, 2021 email. In my view, the Panel did not commit a palpable and overriding error in finding, for the purpose of issuing the Interim Order, that Health Canada had not authorized the petitioner’s manufacturing of FMT materials for export.
[144] In the circumstances, I find that the Panel did not err in inferring a risk of harm to the public based on the FMT Guidance and in the absence of the College having expressly prohibited FMT. The Panel’s finding in this regard was grounded in the record before it, which was capable of establishing—on a prima facie basis—a real risk of harm to the public.
[145] Finally, the petitioner asserts that the Panel erred in finding that his manufacturing of FMT materials and involvement in the use of FMT in Mexico constituted unprofessional conduct. This alleged error involves the application of the definition of professional misconduct to the petitioner’s conduct, which is a question of mixed fact and law, reviewable on the palpable and overriding error standard.
[146] In support of this submission, the petitioner raises the same arguments that I have rejected above, namely that the Panel fell into error because: FMT is not prohibited by the College, there is no evidence that FMT is inherently dangerous or unsafe, and he has complied with Health Canada’s requirements for manufacturing FMT for export. For the reasons set out above, I reject these assertions in the context of this ground of appeal.
[147] Taking into consideration the broad scope of conduct that can comprise unprofessional conduct and the Panel’s unchallenged finding of nexus between the manufacturing of a product for health-related purposes and the profession of naturopathy, I find that the Panel did not err in finding a prima facie case had been made out that the petitioner’s involvement with FMT constituted unprofessional conduct. This is particularly the case given the evidence in the record of the College’s continuing concern, supported in the record before the Panel, that the petitioner continued to use his ND credentials to market and promote FMT on his websites despite having provided assurances to the contrary to the College.
[148] In sum, the Panel was required to determine if there was a prima facie case supporting the allegations against the registrant such that the public required the protection of an interim order, pending the investigatory process and potential disciplinary proceedings. In my view, the petitioner has not established any palpable and overriding error in the Panel’s conclusion that a prima facie case was made out, and the Interim Order necessary to protect the public.
[149] In my view, the Panel correctly interpreted “professional misconduct” and “unprofessional conduct” within the applicable regulatory framework. The record before the Panel supported its conclusion that the petitioner’s manufacturing and export of FMT materials to, and his involvement in the use of FMT for the treatment of children with autism in, Mexico constituted a prima facie case of unprofessional conduct, and posed a real risk of harm to the public warranting the Interim Order. In the result, S240451 is dismissed.
[150] The preliminary issue that must be addressed in respect of the application for judicial review sought in S241376 is whether it is premature given that the Investigations remain ongoing. For the reasons that follow, I agree with the College that the petition is premature and must be dismissed as such. It is therefore unnecessary for me to determine the substantive issues raised on the judicial review, and I decline to do so.
[151] It is uncontested that S241376 is brought mid-investigation, that is, prior to the Inquiry Committee having made a provisional assessment of the evidence gathered through the Investigations and having determined what further action, if any, may be appropriate under s. 33(6) of the Act. As the College points out, the Inquiry Committee may eventually accept some, all or none of the petitioner’s submissions in response to the Investigations.
[152] Judicial review is discretionary in nature: Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, s. 8. It is well established that parties ought not to “proceed to the court system until the administrative process has run its course” and, absent exceptional circumstances, the courts should not interfere with ongoing administrative processes: Chu v. British Columbia (Police Complaint Commissioner), 2021 BCCA 174 at para. 65, citing C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 at para. 31 [C.B. Powell]; Independent School Authority v. Parent, 2022 BCSC 570 at paras. 48–50 [Parent].
[153] The trend in the jurisprudence clearly favours showing restraint in interfering with administrative decision-making processes, as the Supreme Court of Canada noted in Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10:
[36] While such intervention may sometimes be appropriate, there are sound practical and theoretical reasons for restraint…Early judicial intervention risks depriving the reviewing court of a full record bearing on the issue; allows for judicial imposition of a “correctness” standard with respect to legal questions that, had they been decided by the tribunal, might be entitled to deference; encourages an inefficient multiplicity of proceedings in tribunals and courts; and may compromise carefully crafted, comprehensive legislative regimes: …Thus, reviewing courts now show more restraint in short-circuiting the decision-making role of the tribunal, particularly when asked to review a preliminary screening decision such as that at issue in Bell (1971).
[154] The prematurity principle operates as a discretionary, but not absolute, bar to judicial review: Parent at para. 47; ICBC v. Yuan, 2009 BCCA 279 at para. 24 [Yuan]. A court will only intervene in an ongoing administrative process in exceptional circumstances: Hemminger v. Law Society of British Columbia, 2022 BCSC 30 at para. 38; Diaz-Rodriguez v. British Columbia (Police Complaint Commissioner), 2020 BCCA 221 at para. 33. The applicable legal principles were summarized in C.B. Powell:
[33] Courts across Canada have enforced the general principle of non-interference with ongoing administrative processes vigorously. This is shown by the narrowness of the “exceptional circumstances” exception. […] Suffice to say, the authorities show that very few circumstances qualify as “exceptional” and the threshold for exceptionality is high: see, generally, D.J.M. Brown and J.M. Evans, Judicial Review of Administrative Action in Canada (looseleaf) (Toronto: Canvasback Publishing, 2007) at 3:2200, 3:2300 and 3:4000 and David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pages 485‑494. Exceptional circumstances are best illustrated by the very few modern cases where courts have granted prohibition or injunction against administrative decision-makers before or during their proceedings. Concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted: see Harelkin, supra; Okwuobi, supra at paragraphs 38-55; University of Toronto v. C.U.E.W, Local 2 (1988), 1988 CanLII 4757 (ONSC), 52 D.L.R. (4th) 128 (Ont. Div. Ct.). As I shall soon demonstrate, the presence of so-called jurisdictional issues is not an exceptional circumstance justifying early recourse to courts.
[155] Restraint in engaging in interim judicial review is exercised with a view toward appropriate deference to the designated decision makers, and the process described by the legislature: British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, 2014 BCCA 220 at para. 31 [Mzite].
[156] The prematurity principle is aimed at preventing fragmented and piecemeal proceedings with the attendant cost and delay, and avoiding the waste associated with hearing an interlocutory judicial review when the applicant may ultimately succeed at the end of the administrative process: Diaz-Rodriguez at para. 29.
[157] The “exceptional circumstances” exception to the prematurity principle is narrow and the threshold for meeting it has been characterized as “exceptionally high”: Thielmann v. The Association of Professional Engineers and Geoscientists of the Province of Manitoba, 2020 MBCA 8 at para. 24, citing C.B. Powell at para. 33. Some of the reasons why judicial review will only be entertained in exceptional circumstances during an ongoing administrative process include:
a) judicial intervention may fragment the tribunal’s proceedings;
b) the tribunal may resolve the dispute to the parties’ satisfaction;
c) the court’s decision may be rendered moot because of the tribunal’s decision on some other aspect of the proceedings;
d) it is helpful for the court to have an evidentiary record and the tribunal’s analysis of the dispute, especially in areas where the tribunal has special expertise; and
e) courts are to avoid deciding constitutional and Charter issues on hypothetical facts or in a factual vacuum.
Parent at para. 51, citing Kelowna (City) v. British Columbia (Human Rights Commission), 1999 CanLII 35162 at para. 11, [1999] B.C.J. No. 1848 (S.C.).
[158] The factors which may be considered in determining whether exceptional circumstances exist to warrant early judicial intervention include: hardship or prejudice to the applicant, waste of resources, delay, fragmentation of proceedings, the strength of the case and the statutory context. The analysis is flexible and does not turn on a single factor: Chu at para. 66; Parent at para. 52.
[159] The Investigations are ongoing, and the Inquiry Committee has not yet determined what further action—if any—may be taken under s. 33(6) of the Act, let alone decided to direct the registrar to issue a citation, thereby initiating disciplinary proceedings under the Act. The fact that the Investigations remain ongoing engages the prematurity principle in the case at bar: Chu at para. 76.
[160] Unlike the circumstances in which the Court has exercised its discretion to intervene early in administrative processes, the petitioner has not identified any procedural or substantive errors that rendered the proceedings so deeply flawed that it is obvious that a judicial review would be successful: Chu at para. 92; see also Imperial Parking v. Bali, 2005 BCSC 643; Yuan; Workers’ Compensation Appeal Tribunal v. Hill, 2011 BCCA 49; Mzite.
[161] The petitioner’s allegation that the Investigation Committee exceeded its jurisdiction does not constitute an exceptional circumstance justifying early intervention by the Court: Thielmann at para. 32, citing C.B. Powell at para. 33. The rationale for this relates to the ease with which almost any issue could be labelled as jurisdictional within the administrative law context: Thielmann at para. 33, citing Vavilov at para. 66. Essentially the same argument advanced by the petitioner here was dismissed in Thielmann, with the Court noting that “the exceptional circumstances exception is exceptionally narrow and the threshold for intervention is exceptionally high”: Thielmann at para. 24.
[162] The petitioner submits that the language of s. 33(4)—specifically, the use of the word “motion”—requires that a minimum evidentiary threshold is met to trigger the College’s investigatory jurisdiction. I disagree. The petitioner identifies no authority in support of his position, and it would run contrary to the purpose of an investigation under s. 33 of the Act, which is to gather the necessary evidence—if any—to determine whether misconduct has occurred.
[163] Nor is there any suggestion on the record that the College’s decisions to initiate Investigations 372 and 507 were arbitrary. Investigation 507 arose from the Hamilton Complaint. By operation of s. 33(1) of the Act, upon receipt of the Hamilton Complaint from the registrar, the Inquiry Committee was required investigate it.
[164] Investigation 372 was initiated on the Inquiry Committee’s own motion under s. 33(4) of the Act. As set out above, the notice of investigation for Investigation 372 sets out multiple grounds of investigation, which grounds are anchored in the Code and the Bylaws and, therefore, fall within the College’s jurisdiction to investigate. Importantly, the grounds raised include potential contraventions of the Code and the Bylaws, and conduct which could amount to professional misconduct or unprofessional conduct: see e.g. Act, ss. 33(4)(a), (c).
[165] I also agree with the College that the use of the words “own motion” in s. 33 of the Act reflects an intention to permit the College to fulfill its public interest mandate by conducting investigations in circumstances where potential misconduct has come to its attention, but a formal complaint has not been filed. This is consistent with the College’s overarching duty to protect the public interest and its broad jurisdiction over registrants. I do not accept the petitioner’s submission that his manufacturing of FMT for export is unrelated to his status as a registrant of the College, particularly given his repeated conduct in referring to himself as an ND in conjunction with his involvement with FMT on his NaturoLyfe and NovelBiome websites.
[166] I am satisfied that the Investigations fall within the College’s jurisdiction under ss. 33(1) and 33(4) of the Act and the petitioner has not identified any jurisdictional defect in the College’s pursuit of the Investigations. In the result, I find that the petitioner has not met the exceptionally high burden on him to establish special circumstances sufficient to warrant the Court’s intervention prior to the Inquiry Committee process running its course and the Investigations being completed.
[167] The Inquiry Committee has not yet fulfilled its statutory role under Part 3 of the Act in respect of the Investigations. The process under Part 3 of the Act within which the Investigations are embedded has far from run its course. In like fashion to Chu, it cannot be said that the Inquiry Committee has “nothing left to decide” in respect of Investigation 372 or 507: Chu at para. 81. As the Court of Appeal remarked in Mzite at para. 37:
… the logic of [Vancouver (City v. British Columbia (Assessment Appeal Board) (1996), 20 B.C.L.R. (3d) 79] remains compelling. It is appropriate for the reviewing court to consider whether the tribunal has finished its work in relation to the specific issue in question. That approach is founded upon recognition of and deference to the role of the tribunal.
[168] Many of the reasons articulated in the jurisprudence as to why courts are reluctant to intervene before the administrative process has been exhausted also arise here. First and as noted above, the investigatory process under s. 33 of the Act is not complete and the Inquiry Committee has not had the opportunity to fulfill its statutorily mandated purpose in accordance with the Act. The Inquiry Committee may yet resolve the Investigations to the petitioner’s satisfaction, either by taking no further action under s. 33(6)(a), by consent resolution under s. 36 or, in the case of Investigation 507, under s. 33(6)(b). Any of these potential dispositions may have the effect of rendering the Court’s decision moot.
[169] Alternatively, if the Inquiry Committee directs that the registrar issue a citation in one or both of the Investigations, the matters in issue will then proceed to a full hearing on their merits before the discipline committee. That committee will then be tasked with weighing the merits on a more complete evidentiary record than is currently available mid-investigation or that which will be available at the conclusion of the investigatory stage of the process.
[170] Interfering with the administrative process at this juncture also potentially pre-empts the Inquiry Committee from directing that a citation be issued, which in turn deprives the disciplinary committee of the opportunity to consider and apply its specialized expertise to the matters in issue. As the Court of Appeal recently noted in The College of Physicians and Surgeons of British Columbia v. The Health Professions Review Board, 2022 BCCA 10, leave to appeal to SCC ref’d, 40106 (24 November 2022):
[188] The Health Professions Act is structured to allow health professions (including the medical profession) to be self-governing. It recognizes that professional colleges are well-placed to understand their professions and to establish what constitutes professional misconduct or incompetence. Peer review and self-regulation are given critical roles in protection of the public interest (see Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 at 890; Pharmascience Inc. v. Binet, 2006 SCC 48 at para. 36). As Brundrett J. observed in Sanders v. College of Physicians and Surgeons of British Columbia, 2018 BCSC 441 at para. 97, “it is the members of the medical profession who are best placed to assess allegations of professional misconduct in relation to the care of patients and to assess decisions involving clinical judgment”.
[Emphasis added.]
See also Law Society of New Brunswick v. Ryan, 2003 SCC 20 at paras. 31–34.
[171] Further, this judicial review application is not brought between two discrete stages of the administrative process, but rather very early in the midst of the initial investigatory stage. Unlike Mzite and Yuan, this application is not brought at an interval in the administrative proceedings. The investigatory process under s. 33 of the Act has not concluded; the effect of engaging in judicial review at this juncture would not only delay that process, but in fact terminate it before the Inquiry Committee has had the opportunity to fulfill its statutory mandate—thereby usurping the role afforded to it by the legislature within framework of the Act.
[172] In the present circumstances, proceeding with judicial review at this stage will fragment the Inquiry Committee’s process in terms of its ability to complete the Investigations and fulfill its statutory mandate under s. 33 of the Act: Mzite at para. 38. The effect of permitting judicial review of the Investigations at this time will, in my view, result in further delay and a wasting of resources that the parties would be best served by directing towards the petitioner responding to the Inquiry Committee’s outstanding requests and the Inquiry Committee then working to conclude the Investigations. It will also fragment the investigation and disciplinary process contemplated in Part 3 of the Act at a more general level, which in turn potentially compromises the carefully crafted and comprehensive legislative regime prescribed in the Act.
[173] The statutory context and the public interest also weigh heavily in favour of permitting the Inquiry Committee to conclude the Investigations prior to engaging in judicial review in the circumstances of this case. Allowing the Inquiry Committee’s process to continue and conclude is in the best interests of all stakeholders including the petitioner. In the latter regard, it bears repeating that Investigations could yet lead to no further action being taken in respect of the petitioner’s involvement with FMT under s. 33(6)(a) of the Act, or some other outcome short of a citation being issued.
[174] Importantly in this case, the very purpose of the Investigations is to gather the evidentiary record that will provide not only the basis for the Inquiry Committee’s determination as to next steps under Part 3 of the Act, but also the evidentiary record for a judicial review once the administrative process is complete. Further evidence on the matters in issue is likely to arise if the Inquiry Committee is permitted to complete its investigatory work, including by way of the petitioner’s outstanding responses to the Inquiry Committee’s outstanding requests for documents and other information in the Investigations. This case is not like Mzite, where no further evidence on the matters in issue will be available following completion of the administrative process or where the issue will eventually be determined on the same record as is presently before me. Quite the opposite.
[175] In my view, the ability of the Investigations to run their course is particularly important in the present circumstances, where the administrative process involves a self-regulated profession and area requiring specialized expertise: here, the regulation of NDs and practice of naturopathic medicine by registrants of the College. Further, if the matters proceed to a disciplinary hearing under s. 37 of the Act, the disciplinary committee may receive additional evidence—potentially including expert evidence—in the course of that hearing. This evidence is likely to enhance the evidentiary record that will eventually form the basis for both a decision on the merits by the discipline committee and any future judicial review of that decision.
[176] Finally, attempting to engage in judicial review at this stage deprives the Court of a fully-considered decision on the merits with which to engage on judicial review. In my view, the majority of the key circumstances that were present in Mzite and Chu, which rendered it appropriate to engage in judicial review before the administrative processes were complete, are lacking here.
[177] Considering the legal principles set out above and the mandate of the College as set out in the Act, I conclude that this judicial review of the Investigations is premature. The petitioner has not established exceptional circumstances that permit this Court to exercise its discretion in favour of intervening on judicial review, prior to the conclusion of the Inquiry Committee’s process.
[178] Petition S240451, the petitioner’s appeal of the Interim Order, is dismissed. Petition S241376 seeking judicial review of the Investigations is dismissed as premature.
[179] If the petitioner and the College are unable to agree on costs, leave is granted to make further submissions.
[180] Consistent with his position, I make no costs order against or in favour of the Attorney General of British Columbia consequent on its participation in these proceedings.
“Hughes J.”
[1] “Drug” is defined in the Regulation as meaning, except in the definition of "substance", a drug specified in Schedule I of the Drug Schedules Regulation, B.C. Reg. 9/98 (other than a drug set out in the Schedule of the Regulation), or specified in Schedule II of the Drug Schedules Regulation. A “substance” includes air and water, but excludes drugs specified in Schedule I, IA, II or IV of the Drug Schedules Regulation.