Health Professions Review Board Suite 900, 747 Fort Street, Victoria, BC V8W 3E9 Complainant v. The College of Massage Therapists of British Columbia DECISION NO. 2016-HPA-002(a) September 12, 2016

In the matter of an application (the “Application”) under section 50.6 of the Health Professions Act, R.S.B.C. 1996, c. 183, as amended, (the “Act”) for review of a complaint disposition made by, or considered to be a disposition by, an inquiry committee

BETWEEN: The Complainant COMPLAINANT

AND: The College of Massage Therapists of British Columbia

COLLEGE

AND: A (Retired) Massage Therapist REGISTRANT

BEFORE: Brenda L. Edwards, Panel Chair REVIEW BOARD

DATE: Conducted by way of written submissions closing on August 11, 2016

APPEARING: For the Complainant: Self-represented

DECISION ON A PRELIMINARY MATTER AND ON AN APPLICATION FOR REVIEW

I INTRODUCTION

[1] On January 4, 2016, the Review Board received an application from the Complainant seeking a review of a disposition made by the Inquiry Committee of a complaint made against the Registrant.

[2] After receiving several extensions of time in which to make her submissions to the Review Board in support of her application, the Chair directed that the Complainant was to either provide her submissions by August 10, 2016, or inform the Review Board that she was relying upon submissions made to that date or, in the further alternative, provide written confirmation of her withdrawal of her application.

[3] On August 11, 2016, the Review Board received an email from the Complainant apologizing for missing the deadline (August 10, 2016) and attaching her written submission.

[4] On August 15, 2016, the Complainant emailed the Review Board indicating that she wished to file still further additional information. This request will be addressed by me under the heading “Preliminary Matter," below.

[5] On August 17, 2016, the review of these applications was assigned to me by the Chair of the Review Board for a "Stage 1 hearing." At a Stage 1 hearing I may decide to:

(a) confirm the Inquiry Committee disposition under s.50.6(8)(a) of the Act if the application for review can be fairly, properly and finally adjudicated on the merits without the need for submissions from the College and Registrant; or

(b) determine that the application requires adjudication in a Stage 2 hearing, in which case no decision will be made until after requesting submissions from the College and Registrant, and further reply submissions from the Complainant.

[6] I am satisfied that this matter may appropriately be dealt with at Stage 1, that is to say based solely on the record of investigation provided by the College (the “Record”) and submissions from the Complainant.

II PRELIMINARY MATTER Background to the Preliminary Matter

[7] The Complainant sent an Application for Review dated December 31, 2015, which was received by the Review Board on January 4, 2016.

[8] On January 20, 2016, the Review Board wrote the parties and requested the College produce the record regarding the investigation of the complaint within 35 days.

[9] By letter dated February 11, 2016, the College requested an extension of time in which to produce the Record.

[10] By letter dated February 11, 2016, the Chair of the Review Board granted the College an extension of time to file the Record until March 11, 2016.

[11] On March 4, 2016, the College delivered the Record, by courier, to the Review Board and in its cover letter flagged 21 pages as containing sensitive information over which the Complainant may wish to make a s.42 application (presumably referencing s.42 of the Administrative Tribunals Act ) to have the Review Board receive certain information in confidence.

[12] On March 10, 2016, the Review Board wrote the Complainant and asked whether she intended to make a s.42 application and directed that she respond by April 12, 2016.

[13] The Complainant did not respond by the deadline, but on April 14, 2016, the Complainant emailed the Review Board and indicated that she gave her consent to disclose to the Registrant the 21 pages identified by the College.

[14] By letter dated April 18, 2016, the Chair of the Review Board provided the Complainant and the Registrant each with a copy of the Record and directed a Stage 1 hearing of the Application and further directed that the Complainant provide her Statement of Points no later than June 3, 2016.

[15] On May 25, 2016, the Complainant contacted the Review Board requesting an extension of time to provide her Statement of Points to July 4, 2016, due to medical reasons; the College consented to the request and the Registrant took no position and on May 31, 2016, the Chair of the Review Board granted the Complainant's request.

[16] After the deadline had passed, on July 6, 2016, the Complainant emailed the Review Board advising that her submission was finished but not yet proofread. On July 8, 2016, the Complainant, again, emailed the Review Board advising that her submission was not complete but that she was "working on it."

[17] On July 15, 2016, counsel for the Registrant emailed the Review Board objecting to the Review Board granting the Complainant any further extension of the time to provide her submissions.

[18] On July 20, 2016, the Complainant emailed the Review Board indicating that she had forgotten to review the audio tapes prepared by the Investigator for the College and required more time to complete her submissions.

[19] By letter dated July 20, 2016, the Chair of the Review Board granted the Complainant a final extension of time to provide her Statement of Points, after which the matter would proceed to adjudication based solely on the Complainant's application for review and the Record; the final deadline was set at August 10, 2016.

[20] On August 8, 2016, the Review Board received a Form 11 "Additional Documents" request from the Complainant (purportedly dated August 5, 2014) enclosing an audio tape of an interview conducted by the Investigator for the College together with a six page letter from the Complainant, dated August 5, 2016. In the letter the Complainant indicated that she was sending this material prior to sending her submission as the audio tape could not be sent by email.

[21] On August 11, 2016, the Complainant emailed the Review Board apologizing for missing the deadline and attaching a 35 page document entitled "August 11, 2016 Submission."

[22] On August 12, 2016, the Case Manager assigned to this matter by the Chair of the Review Board provided counsel for the College and the Registrant with the Complainant's submission and advised that the matter would be referred to a Review Board member for adjudication.

[23] On August 15, 2016, the Complainant wrote the Review Board indicating that the Submission which she had sent was a "draft" and was incomplete because she had not attached additional information such as further examples of the Registrant's advertising materials that she referenced in para. [4] of her submission.

[24] After reviewing the correspondence between the Review Board and the parties and after considering the Record provided by the College, I am denying the Complainant's request to file further additional documents for the following reasons.

[25] The Review Board is responsible for conducting complaint and registration reviews of certain decisions of the colleges of 22 self-regulating health professions in British Columbia. In 2015 alone, the Review Board received 239 applications for review.

[26] In order to meet its mandate in a timely manner, the Review Board must apply a certain rigour to the review process. Included in this rigour is an expectation that the Parties will respect the deadlines imposed by the Chair in order to ensure that applications for review are decided in a timely manner.

[27] As noted above, the Complainant was granted several extensions of time in which to file her submissions, (at times over the objections of the Registrant). Each time she failed to meet the deadline set by the Chair. Ultimately, despite missing the final deadline imposed by the Chair, her submissions (including the "Additional Information" which she sought to add on August 6, 2016) were accepted by the Review Board and, together with the 2,551 page record forwarded by the College, were provided to me when the Chair assigned this application to me for review.

[28] The Complainant now seeks to add still further "Additional Documents" in support of her submissions which she says are necessary in order for the proper adjudication of her application. The additional documents referenced were not provided by the Complainant but placeholders for them in the Complainant's August 11, 2016, submissions, indicate to me that the materials consist primarily of examples of advertising materials and publications purportedly authored by the Registrant and others during the time period covered by the complaint together with information regarding the Registrant's academic credentials from a university.

[29] None of these documents were before the Inquiry Committee and there is nothing in the Complainant's submission that explains why these documents were not provided to the Investigator for the Inquiry Committee if the Complainant was of the view that they were key to understanding her complaint.

[30] In my view, allowing the Complainant to file additional documents in support of her submissions after the final deadline imposed by the Chair would amount to the Review Board encouraging an abuse of its processes.

[31] Further, I am not satisfied that these further "Additional Documents" are required in order for me to properly adjudicate the Application for Review given the limited scope of my mandate.

[32] Since I have decided to deny the Complainant's request to add still further documents, I turn, next, to my Stage 1 review. For the reasons which follow, I am satisfied that I can fairly adjudicate the application for review based, solely, on the Complainant's submission and the Record provided by the College.

III BACKGROUND

History of the Complaint filed with the College:

[33] On September 3, 2002, the Complainant filed a complaint with the College alleging that "(f)rom May 1993 to January 1999, (the Registrant) psychologically manipulated and sexually assaulted me repeatedly as a counselor and massage therapist." In her complaint letter, the Complainant notes that she made a statement to the police and that she had been advised by the police on August 9, 2002, that the Registrant had been charged with sexual assault.

[34] The Registrant, as I reference him in this decision, is in fact a "former registrant" of the College. For most of the period of time referenced in the complaint, the Registrant's status with the College was "inactive." Specifically, from December 31, 1992 - November 5, 1997 his status was listed as "inactive"; from November 5, 1997 - January 1, 1998, his status was listed as "active; from January 1, 1998 - April 7, 1999, his status was, again, listed as "inactive"; from April 7, 1999 - October 30, 2002, the Registrant had returned to "active" status. As of October 30, 2002, the Registrant was "inactive" and the record indicates that he was "retired" as of 2006.

[35] The Inquiry Committee commenced an investigation of the complaint in 2002 and notified the Registrant of the complaint but as the Registrant was facing criminal charges at the time, his counsel advised the Inquiry Committee on October 30, 2002, that the Registrant was exercising his right to remain silent and was requesting that the Inquiry Committee defer its investigation until the criminal proceedings were completed so that he could make a meaningful response to the Inquiry Committee. The letter enclosed an undertaking, executed by the Registrant on October 30, 2002, that he would not practice massage therapy or apply for active status until the conclusion of the criminal proceedings and until he provided a response to the Inquiry Committee.

[36] The Inquiry Committee continued with its investigation until the summer of 2003 by contacting the police, gathering documentation and interviewing the Complainant. In June and July 2003, counsel for the College contacted counsel for the Registrant seeking his clinical records for massage treatment provided to the Complainant in November and December of 1997. There is little documentation of the investigation between 2002 and 2003.

[37] The investigation appears to have lain dormant as the criminal proceedings continued. The Complainant testified for several days at the preliminary inquiry regarding the events that form the basis for the complaint before the Inquiry Committee.

[38] In mid-2005, a lawyer who had been appointed as ad hoc Crown counsel entered a stay of proceedings with respect to the criminal charges against the Registrant. In a lengthy memorandum, which is included in the Record, the ad hoc Crown counsel expressed significant concerns about the reliability of the Complainant's evidence.

[39] There is no evidence that the Registrant notified the Inquiry Committee of the conclusion of the criminal proceedings, nor did he provide a response to the complaint as he had undertaken in October 2002.

[40] The Complainant complained to the College of Social Workers regarding the Registrant on July 31, 2013. The Director of Professional Practice for the College of Social Workers emailed the College on September 3, 2013, advising that a member of the public had made allegations of serious sexual misconduct against a counsellor who claimed to have social work experience and who was, allegedly, a registered massage therapist. Subsequently, the College of Social Workers provided the College with the documentation it had received from the Complainant in support of her complaint.

[41] The College, then, recommenced its investigation which had been in abeyance since 2003.

Background to the Complaint:

[42] The Complainant and the Registrant met in the late 1980s or early 1990s when they were both students in a counselling course offered by two individuals. In 1991, the Complainant was seeing a counsellor who referred her to the Registrant because of the Complainant's chronic back pain. The counsellor told the Complainant that the Registrant was both a counsellor and a massage therapist.

[43] The Complainant saw the Registrant on one occasion and then did not return until 1993. The Registrant provided the Complainant with a brochure that indicated that he offered "body-centered psychotherapy" and represented that he was trained in social work, counselling and massage therapy.

[44] The Complainant advised the Inquiry Committee that she returned to the Registrant because she was experiencing abuse memories and believed they might be memories of ritual abuse and she understood that the Registrant had experience in that area.

[45] The Complainant received regular treatment from the Registrant from June 1993 until 1999; first at an office building and later from his home. She considered that the treatment she received was a combination of massage therapy and psychological counselling.

[46] The Complainant provided the Inquiry Committee with the Registrant's handwritten notes of treatment sessions with her in 1994 detailing numerous instances of sexual or intimate contact between the Registrant and the Complainant. The Complainant asserted that the Registrant gave her the notes so she could confirm their accuracy as he wished to use them as the basis for a book he wanted to co-author with her.

[47] On February 28, 1995, the Registrant wrote a letter on behalf of the Complainant to the Canada Pension Plan, seeking to have disability payments made to her. In his letter, the Registrant asserted that he was a "counsellor" and had been providing the Complainant with therapy, twice weekly since 1993 because of the debilitating effects of

her experience of childhood sexual abuse by multiple offenders. The letter makes no mention of the fact that the Registrant was also qualified as a massage therapist or that he had provided massage therapy to the Complainant. The Canada Pension Plan obtained a report from a psychiatrist who interviewed the Complainant and suggested that "much of her present symptomatology is iatrogenic" and that she may be suffering from "false memory syndrome." The Canada Pension Plan denied her claim.

[48] The Complainant also advised the Inquiry Committee that in 1995, the Registrant disclosed to her that he had been sexual with another female client. At this time, the Registrant asked the Complainant to become his therapist. In other words, mutual therapy would occur from this point forward. The Complainant acknowledged to the Inquiry Committee that she acted as the Registrant's therapist, to some degree, for the remainder of the time that she was in therapy with him.

[49] In 1999, the Complainant terminated her therapeutic relationship with the Registrant. In 2000, the Complainant began seeing a new therapist for counselling. About this time, she confronted the Registrant about misrepresenting his counselling credentials and his failure to obtain supervision for his counselling, when she had requested that he do so. He agreed to repay her the fees which she had paid for the last year of therapy. He wrote her a series of cheques in 2000 and 2001.

[50] In early 2001, the Complainant began to compile a substantial array of handwritten notes and documentation extensively detailing her experiences in therapy with the Registrant and demonstrating the representations the Registrant had made regarding his credentials. She stated that she prepared this material in preparation for contacting the police later that year. After making a police statement she filed her complaint with the College.

[51] In 2002, the Complainant commenced a civil action against the Registrant alleging sexual assault in the course of the therapeutic relationship. That civil action has been dormant for some time but the Complainant noted in her June 2014 interview with the Investigator for the Inquiry Committee that she hoped the results of the Inquiry Committee would assist her in that action.

[52] Finally, as noted above, in 2013, the Complainant filed a complaint with the College of Social Workers which led to the complaint with the College being recommenced.

IV DECISION

[53] In reaching my decision, I considered all the information that was before me whether specifically referenced in this decision or not, including:

(a) the Complainant's application for review of the Inquiry Committee's disposition involving the Registrant;

(b) the Complainant's written submission, (received by the Review Board on August 11, 2016);

(c) A six page letter dated August 5, 2016; from the Complainant to the Review Board (sent with a Form 11 purportedly signed by the Complainant on August 5, 2014 but received by the Review Board on August 8, 2016, and attaching a recording of a meeting between the Complainant and the Investigator which the Complainant variously refers to as having occurred on August 16, 2014, or April 16, 2014);

(d) the 2,551 page record prepared by the College and attaching two audio recorded interviews of the Complaint by an Investigator for the Inquiry Committee (March 24, 2014, June 26, 2014).

[54] To be clear, while I have carefully reviewed all of the information set out in the preceding paragraph, including the "Additional Documents" received by the Review Board on August 8, 2016, I have focused my attention on those aspects of the Complainant's submissions which raise issues regarding the adequacy of the investigation and reasonableness of the disposition by the Inquiry Committee as that is the limit of my mandate under the Act.

V APPLICABLE LEGISLATION

[55] The Act governs the College's oversight of applications for registration and the supervision of registrants. It also provides for the investigation of complaints regarding the conduct or competence of registrants. In addition, the Act provides the Review Board with authority to review Inquiry Committee dispositions of complaints.

[56] The Inquiry Committee's disposition was made under sections 33(6)(c) and 36 of the Act.

[57] The Act provides in s.33 for investigations of complaints by the Inquiry Committee and requires that the Inquiry Committee request information from registrants who are the subject of a complaint.

[58] The Act also provides for the appointment of inspectors by the Inquiry Committee to assist in investigations:

27(1) The inquiry committee may appoint a person as inspectors for the college.

[59] Section 33(6) of the Act authorizes the Inquiry Committee to take certain steps after considering any information provided by the registrant.

33(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,

(c) act under section 36, or

(d) direct the registrar to issue a citation under section 37.

[60] In this instance, the Inquiry Committee decided to act under s.36 as provided in s. 33(6)(c).

[61] Section 36 authorizes the inquiry committee to request that a registrant consent to a reprimand or take some form of remedial action.

36(1) In relation to a matter investigated under section 33, the inquiry committee may request in writing that the registrant do one or more of the following:

(a) undertake not to repeat the conduct to which the matter relates;

(b) undertake to take educational courses specified by the inquiry committee;

(c) consent to a reprimand;

(d) undertake or consent to any other action specified by the inquiry committee.

[62] Under s.50.6(1) of the Act, a person may apply to the Review Board for a review of the disposition of the Inquiry Committee made under s.33(6) of the Act.

[63] Section 50.6(5) sets out the responsibility of the Review Board when conducting a review and s.50.6(8) identifies the powers of the Review Board after conducting the review:

50.6 (5) On receipt of an application under subsection (1), the review board must conduct a review of the disposition and must consider one or both of the following:

(a) the adequacy of the investigation conducted respecting the complaint;

(b) the reasonableness of the disposition.

[64] Section 50.6(8) sets out the powers of the Review Board after completing the review.

50.6 (8) On completion of its review under this section, the review board may make an order

(a) confirming the disposition of the inquiry committee,

(b) directing the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or

(c) sending the matter back to the inquiry committee for reconsideration with directions.

[65] My task, on behalf of the Review Board, as described in s.50.6 (5) of the Act, is to review the College's disposition of the complaints and to consider one or both of the adequacy of the investigation and the reasonableness of the disposition. In this case, I have considered both. Having said that, it is not within my mandate to conduct a fresh examination of the complaint, nor is it my role to substitute my decision for that of the Inquiry Committee.

VI THE INVESTIGATION PROCESS

The Complaint:

[66] On September 3, 2002, the Complainant filed a complaint with the College regarding the conduct of the Registrant. She alleged that the Registrant had "psychologically manipulated and sexually assaulted (her) repeatedly as a counsellor and a massage therapist."

[67] As detailed earlier in this decision, although the Inquiry Committee commenced an investigation at the time, the investigation became inactive in June 2003 while criminal proceedings against the Registrant proceeded as the criminal charges were based on the same conduct as formed the basis for the complaint to the College. The Registrant entered into an undertaking not to practice as a massage therapist until the criminal proceedings ended and he had notified the Inquiry Committee and responded to the complaint.

[68] In the fall of 2013 the Inquiry Committee's investigation was recommenced after the College of Social Workers referred a complaint to the College which it had received from the Complainant regarding the same conduct as had been the subject of the complaint to the College in 2002. In 2006, the Registrant "retired" as a registrant of the College.

[69] On October 8, 2013, the Director of Compliance for the College emailed the Complainant advising that the BC College of Social Workers had referred her matter to the College. The Director noted that the 2002 investigation by the Inquiry Committee of the College had been left in an unknown state and sought input from the Complainant as to her current wishes regarding her earlier complaint. The BC College of Social Workers forwarded to the College the documents it had received in support of the complaint.

[70] On November 7, 2013, the Director of Compliance telephoned the Complainant who indicated that she was not sure that she wanted to proceed with her complaint at the time, given the Registrant’s retirement as a registered massage therapist.

[71] A newly constituted panel of the Inquiry Committee, (comprised of four Registered Massage therapists and two appointed members representing the public) first met on December 12, 2013, and determined to suspend the Inquiry Committee's investigation of the matter for 30 days to permit the Complainant to complain to the Review Board about the delay in adjudicating her complaint, if she chose to do so. She did not.

[72] On February 17, 2014, the Director of Compliance wrote the Complainant and the Registrant to advise that the suspension of the Inquiry Committee's investigation had expired and the investigation had "recommenced." Also on February 17, 2014, the Director of Compliance, on behalf of the Inquiry Committee, retained the services of a local practising lawyer to prepare an investigation plan, conduct the investigation and prepare an Investigation Report for the Inquiry Committee. The Report was to be completed by April 17, 2014. In a second letter to the lawyer on February 17, 2014, the Director of Compliance confirmed that the lawyer was to act as an "inspector" under s.27(1) of the Act, subject to the directions of the Director of Compliance and the Inquiry Committee, and was to undertake an investigation under s.33 of the Act into the complaint regarding the Registrant. I will refer to the lawyer as the "Investigator" in this decision.

[73] On March 14, 2014, the Director of Compliance emailed the Investigator and asked him to contact the Complainant to schedule an interview with her. The Investigator emailed the Complainant the same day and offered a variety of ways that the interview could occur. The Complainant emailed the Investigator several times over the next 10 days attaching a further 75 pages of documentation in support of her complaint and suggested that she had still more documentation at her home.

[74] On March 24, 2014, the Investigator interviewed the Complainant. In the three weeks following the interview, the Complainant forwarded the Investigator more than 500 pages of documentation including documents relating to the civil action she had brought against the Registrant, transcripts from the preliminary inquiry in the criminal proceedings, documents supporting her claim for support from Crime Victim Assistance and more.

[75] Throughout the spring of 2014, the Complainant continued to forward further documentation in support of her claim to the Investigator.

[76] After interviewing the Complainant, the Investigator made numerous attempts in March, April, May and June, both by telephone and in writing, to discuss with counsel for the Registrant the possibility of the Investigator interviewing the Registrant. Finally on June 9, 2014, counsel for the Registrant advised the Investigator that the Registrant declined to be interviewed.

[77] After the Registrant refused to be interviewed, in June the Investigator prepared a summary of his March 24, 2014, interview of the Complainant and sent it to her for her review. In response, the Complainant provided the Investigator with a host of new documents, most of which she had generated herself or had transcribed from handwritten notes that had already been disclosed to the Investigator.

[78] On June 26, 2014, the Investigator interviewed the Complainant a second time; this time for approximately 2 1/2 hours. As a result of the interview, the Complainant forwarded still further documentation to the Investigator.

[79] On June 29, 2014, the Investigator sought an extension to his retainer given the Complainant was still providing documents and given the need to work through the extensive materials to determine what was relevant to the investigation. The Director of Compliance approved the extension. On June 30, 2014, the Investigator forwarded a draft summary of the June 26th interview to the Complainant for review. In response, she sent him another 137 pages of documentation regarding the religious group to which the Registrant belonged as she believed these teachings were directly relevant to the "no barriers" approach of therapy practised by the Registrant.

[80] In July, 2014, the Complainant provided the Investigator with several drafts of an edited version of the Investigator's summary of notes from her first interview.

[81] In August 2014, the Complainant corresponded with the College about the history of the Registrant's status with the College; information she said she needed for her civil action against the Registrant.

[82] On January 31, 2015, the Investigator completed the "Investigation Report for the Inquiry Committee" (the Investigation Report) regarding the Registrant without the Schedules. On February 12, 2015, the Report was edited slightly, but the report was not re-dated.

[83] The Inquiry Committee met a second time, this time by email between February 12, 2015 and March 8, 2015. After reviewing the Investigation Report, the panel members declined to pass a motion that proposed the investigation into the matter had been adequate and the report should be forwarded to the Registrant for his response. Instead, the Inquiry Committee directed further inquiries regarding the Registrant's status with the College of Social Workers, his billings to MSP and his records regarding the Complainant.

[84] On March 16, 2015, the Director of Professional Practice at the College of Social Workers emailed the Director of Compliance and confirmed that the Registrant was not presently, and to the best of their information had never been a registrant of the College of Social Workers.

[85] On April 16, 2015, the Inquiry Committee met a third time and directed a "further minor investigation" to:

obtain billing records for the period 1993-2002 "or as far back as possible" for massage therapy treatments provided by the Registrant to the Complaint;

list the Bylaw violations made by the Registrant; and

determine whether there was a billing complaint made by the Complainant to MSP and, if so, obtain a copy of the report of the investigation.

[86] On July 14, 2015, the Director of Compliance wrote the Billing Integrity Program of the Ministry of Health requesting any records the Ministry may have regarding the Registrant providing counselling services billed as massage therapy treatment between November 4, 1997 and December 1, 1997. The Director enclosed with her letter the Complainant's complaint to the Billing Integrity Program dated July 25, 2013 and attached MSP receipts for payment for services billed by the Registrant for massage therapy services rendered to the Complainant.

[87] On July 14, 2015, the Director, Billing Integrity Program replied to the Director's request for records by simply asserting that the Registrant's billings had been reviewed on July 31, 2013, and that the Program had noted that the Registrant had not been licensed to practice since 2002 and that, prior to then, his billings "were very low" and no further investigation had occurred.

[88] The Inquiry Committee met a fourth time (by email between July 14 and 26, 2015) to consider the current state of evidence obtained in the investigation regarding proof of massage therapy treatments being provided to the Complainant by the Registrant, the possible Bylaw contraventions and conduct issues identified and passed a motion to send the Investigation Report prepared for the Inquiry Committee (the Inquiry Report) to the Registrant for his response under s.33(5) of the Act.

[89] On July 27, 2015, the Inquiry Committee wrote the Registrant attaching the Investigation Report, and requested a copy of his patient and billing records related to the Complainant and his response to several questions regarding his provision of massage therapy services to the Complainant and his billings to MSP for services. The Registrant did not reply to the Inquiry Committee's letter.

[90] On September 17, 2015, the Inquiry Committee met a fifth time and moved to dispose of the complaint under s.33(6)(c) of the Act and instructed staff to draft an Undertaking and Consent Agreement including admissions on conduct, no reinstatement for five years and upon reinstatement of membership, payment of investigation costs.

[91] On September 24, 2015, the Director of Compliance wrote legal counsel to the Registrant attaching a copy of the Inquiry Committee's July 27, 2015, letter to the Registrant and directed that the Registrant respond to the Inquiry Committee's letter by October 8, 2015.

[92] On October 7, 2015, legal counsel to the Registrant emailed staff at the College and advised that the Registrant "has nothing to say at this time." Counsel noted that the Registrant was, then, 71 years of age and had not been a registrant for many years. He also noted that the Complainant's allegations had led to a criminal prosecution of the Registrant and that she had filed a civil action and complained to MSP as well as to the College. Counsel noted that all of this "gives rise to legal and factual issues, not least of which is over what if any of the allegations the College has jurisdiction."

[93] On October 14, 2015, the Inquiry Committee met a sixth time, again by teleconference, and again passed a motion "to confirm disposition under s.33(6)(c) of the HPA and instruct staff to draft the Undertaking and Consent Agreement."

[94] Between October 22 and October 29, 2015, the Inquiry Committee met for a seventh and final time, by email, and passed a motion approving the proposed Undertaking and Consent Agreement attached to the email.

[95] On November 2, 2015, the Inquiry Committee wrote to the Registrant and provided him with a draft agreement in which the Registrant must consent to certain actions specified by the Inquiry Committee or the Inquiry Committee might direct the College's Registrar to issue a citation pursuant to s.33(6)(d) of the Act, resulting in a hearing before the Discipline Committee of the College.

[96] After successfully proposing certain amendments to the proposed agreement which the Inquiry Committee accepted, the Registrant executed a document entitled "Consent Agreement" on November 23, 2015, the preamble of which referenced the Complainant's September 3, 2002, complaint to the College and the Inquiry Committee's investigation. The Consent Agreement also acknowledged that the College had jurisdiction over the subject matter of the complaint and the Registrant's conduct related to the complaint and set out a number of admissions and agreements, specifically:

1. I acknowledge that I committed professional misconduct by failing to maintain appropriate professional-patient boundaries while providing counselling services to (the Complainant) during the period commencing June 1993 until about 1999.

2. I acknowledge that I committed professional misconduct by improperly billing the Medical Services Plan ("MSP") for massage therapy services provided to (the Complainant) on November 6, November 10, November 13, November 17, November 20, November 24, December 1, December 4, December 8, December 11, and December 15, 1997 and March 31, 1998, when I did not provide massage therapy services to (the Complainant) on those dates.

3. I acknowledge that, in or about 1993, I committed professional misconduct by using my position as a massage therapist to promote my practice of "body-centered psychotherapy", by publishing a brochure titled "Counselling & Body-Centred Psychotherapy", which states "(the Registrant) is a registered massage therapist and a certified counsellor. For the past three years he has been integrating his knowledge in these two areas and has developed a body-centered approach to psychotherapy. This approach acknowledges the interplay and impact of emotional, psychological and physical aspects of the Self."

4. I agree that I will not apply to the College for registration during the five year period following the date of my signing this Agreement and if I do apply, I consent to the College or the appropriate committee refusing to administer my application and refusing my registration.

5. I agree that if I am granted reinstatement by the College or the appropriate Committee, I will pay $1,901.21 to the College, which amount represents a portion of the costs of the investigation of this matter.

6. I acknowledge that I am aware of my legal rights as they pertain to this matter. I have had the opportunity to receive independent legal advice concerning the contents of this

Agreement, and I hereby waive any and all rights of appeal or review concerning any of the limitations, restrictions or conditions contained in this Agreement.

7. I hereby expressly agree and consent that no term, condition, undertaking, agreement, restriction or limitation in this Agreement may be varied in any way without the express written agreement of the Registrar on behalf of the Inquiry Committee of the College and me.

8. I acknowledge that this Agreement has contractual force.

VII ADEQUACY OF THE INVESTIGATION

[97] As a member of the Review Board, I am aware that the College has limited resources and receives many complaints each year that require investigating. The College has the authority to manage those limited resources in a manner that is consistent with its duty to protect the public interest: Moore v. College of Physicians and Surgeons of BC and the Health Professions Review Board, 2013 BCSC 20181 at para. [119].

[98] As a result, the degree of diligence that the Inquiry Committee must exercise in order to ensure that an investigation is adequate will differ from one case to the next and will depend, in large part, on the seriousness of the issues raised in the complaint and the findings of the investigation as it progresses.

[99] What constitutes an "adequate investigation" was discussed in Review Board Decision No. 2009-HPA-001(a) to 0004(a) at paras. [97-98]:

[97] A complainant is not entitled to a perfect investigation, but he or she is entitled to an adequate investigation. Whether an investigation is adequate will depend on the facts. An investigation does not need to have been exhaustive in order to be adequate, provided that reasonable steps were taken to obtain the key information that would have affected the Inquiry Committee's assessment of the complaint.

[98] The degree of diligence expected of the College - what degree of investigation was adequate in the circumstances - may well vary from complaint to complaint. Factors such as the nature of the complaint, the seriousness of the harm alleged, the complexity of the investigation, the availability of evidence and the resources available to the college will all be relevant factors in determining whether an investigation was adequate in the circumstances.

[100] I accept that definition and have applied it to this review.

[101] In Moore, supra the Court found that the question of whether an investigation is adequate is contextual:

[104] The HPA requires the Board to determine whether or not the investigation conducted by the College was adequate and whether the disposition was reasonable.

[105] The adequacy of any investigation must be considered relative to the matter being investigated. What might be inadequate in one case might be adequate in another. By way of a simple example a serious complaint about a physician might result

in an admission by the physician of misconduct after very little investigation. Even though the investigation amounted to nothing more than drawing the complaint to the physician’s attention and requesting a response, that is all that was required for an adequate investigation in that context. Conversely, an extensive investigation into a complaint might be considered inadequate where one line of inquiry was ignored or not properly pursued.

[106] Thus, the nature of the complaint will inform the extent of the investigation required. Where the complaint is of a minor or trivial nature it may not be necessary in each case to conduct an extensive investigation.

[102] I do not read Moore, supra as requiring that an Inquiry Committee take every step by way of investigation that a Complainant wishes.

[103] In this case, it is clear that the Complainant spent close to two decades gathering and generating documentation in support of her complaints about the Registrant to various regulatory and police bodies, and in support of a civil action against the Registrant; all arising out of a therapeutic relationship that occurred in the 1990s. As new avenues of inquiry occurred to her over the years, the Complainant sought out more information and generated more documents summarizing the information and offering theories as to what occurred, when, why and how between the Registrant and herself and how that might be actionable. She continues to do so to the present time. At some point, however, the Inquiry Committee's investigation of her complaint had to end and so must this review.

[104] I have already set out the steps that the Inquiry Committee took in investigating the complaints. My task is to assess whether those steps resulted in an investigation that was "adequate" in all of the circumstances.

[105] In this case, the Inquiry Committee had before it a 453-page report from the Investigator together with correspondence between staff for the College and the Ministry of Health in July 2015 regarding payments made to the Registrant from the Medical Services Plan of BC. Further, the Inquiry Committee sought to interview the Registrant and to obtain records of care provided by him in relation to the Complainant. The Registrant denied providing massage therapy services to the Complainant and declined to be interviewed or to respond to the Inquiry Report.

[106] In my view, the Inquiry Committee's investigation was adequate in that it provided the Inquiry Committee with the key information it required to understand the nature of the complaint, the conduct complained of and the harm alleged.

[107] The Inquiry Committee was hampered in its ability to further investigate because of the passage of a significant amount of time between the alleged conduct complained about and the re-instated complaint and the difficulties that posed for accessing information; the refusal of the Registrant to attend for an interview by the Investigator or to respond to the Inquiry Committee's questions of him coupled with the Registrant's assertion that he did not provide massage therapy treatments to the Complainant, and the Complainant's changing perceptions over time about the treatment she received from the Registrant.

[108] The Complainant's 35 page submission, received by the Review Board on August 11, 2016, is written as if it is a Statement of Defence in a civil action beginning with an assertion that:

Except where expressly admitted herein, I deny each and every allegation of fact contained in the College's Inquiry Report and put the College to the strict proof of those allegations of fact.

[109] The Complainant appears to fundamentally misunderstand the role of the Inquiry Committee and the Review Board. I say "appears to fundamentally misunderstand" because I listened to the lengthy interviews of the Complainant by the Investigator wherein the Investigator provided a lengthy and detailed explanation of his task and that of the Inquiry Committee and the difference between the Inquiry Committee's mandate and that of a court at a criminal trial. By her responses, the Complainant indicated that she understood the difference in mandate and the burden of proof but also indicated that she was pursuing a civil suit and hoped for evidence from this process to assist her in that forum.

[110] I have summarized what I take to be the Complainant's concerns with the adequacy of the Inquiry Committee's investigation as set out in her submissions and in her December 31, 2015, letter to the Review Board accompanying her Application for Review. She submits that the Inquiry Committee failed to:

(1) update her on its investigation from June 26, 2014, (after her second interview) to November 26, 2015, (the date of the disposition letter);

(2) provide her with a copy of the Registrant's response to her complaint;

(3) adequately investigate the Registrant's advertising activities at various times between 1996 and 2016;

(4) verify the Registrant's qualifications as a counselling/social worker qualifications as advertised from 1993 to 1999;

(5) investigate breaches by the Registrant of his undertaking entered into with the Inquiry Committee on October 30, 2002, a previous undertaking in 1996 and his practice declarations and failed to investigate prior complaints to the College, (all of which it "knew or ought to have known" about);

(6) investigate the credentials or the advertising practices of the individuals who taught the counselling program to the Registrant in and around 1989-93;

(7) obtain billing and clinical records from the Registrant;

(8) investigate the Registrant's breach of the Massage Therapy Regulations because of his advertising as a Registered Massage Therapist and counsellor offering body-centered psychotherapy; and

(9) allow her to have legal representation during the 2014 investigation.

[111] In conducting its investigation, an Inquiry Committee should consider the suggested lines of inquiry posed by a Complainant and take all reasonable steps to ensure that any line of inquiry which is likely to lead to relevant information that is

readily available and which might inform the Inquiry Committee about the complaint is obtained. I am satisfied that the Inquiry Committee, in this case, did just that.

[112] As I have previously stated, the adequacy of an investigation is not tested by a Complainant's level of satisfaction with either the investigatory process, or the outcome. An investigation by an inquiry committee of a college is not an inquiry into every activity undertaken or representation made by a registrant during his or her entire career. Rather, it is an investigation into the circumstances bearing directly on the complaint. In this case the investigation was into a complaint alleging psychological manipulation and sexual abuse by the Registrant in the course of providing massage therapy treatments.

[113] As to the Complainant's concerns as I have set them out above, the Inquiry Committee is under no obligation to update a Complainant on the status of an investigation; she is entitled to a written summary of the Inquiry Committee's disposition under s.34 of the Act and the College had a duty to provide public notice of the Undertaking and Consent Agreement as provided for in s.39.3 of the Act. The Inquiry Committee could not provide her with the Registrant's response to the complaint as there was none. Rather, the Registrant's counsel wrote the College and indicated that the Registrant would not be offering a response to the Complaint.

[114] As to the issue of advertising, I note that the Inquiry Committee had sufficient information regarding the Registrant's advertising practices to allow it to understand the representations that he made based on his status as a registrant and to act based on that information in taking the action it did to obtain an Undertaking and Consent Agreement from the Registrant.

[115] It was not the task of the Inquiry Committee to re-investigate any earlier complaints against the Registrant nor to inquire into his practice declarations. That said, the Inquiry Committee had discretion under s.39.2 of the Act, to consider any previous actions taken against the Registrant.

[116] Neither was it within the Inquiry Committee's mandate to investigate the Registrant's qualifications as a counsellor (an unregulated profession) or to inquire into the qualifications or representations of other individuals. That said, the Inquiry Committee did seek to clarify the Complainant's status as a social worker after the College of Social Workers contacted the College. The Inquiry Committee was advised that the Registrant was not and never had been registered as a Social Worker.

[117] I am satisfied that the Inquiry Committee made significant and appropriate efforts to obtain any patient and billing records that the Registrant might have for the Complainant and both the Investigation Report and the Inquiry Committee minutes document those efforts and the results.

[118] The Complainant was not the subject of the investigation and her participation in the investigatory process was entirely voluntary. As a result, I know of no legal basis for her claim to entitlement to legal representation during the investigation. That said, neither am I aware of any request by her to have counsel present when she was interviewed. Certainly, there is no evidence that the Inquiry Committee or the Director of Compliance "denied (her) the right to legal representation."

[119] In sum, I am satisfied that the Inquiry Committee conducted an appropriate investigation in the circumstances. By taking the reasonable steps that I have described earlier, the Inquiry Committee ensured that it had the key information that it needed to understand the nature of the allegations against the Registrant, the circumstances under which care was alleged to have been provided by the Registrant to the Complainant and the complex relationship between the Registrant and the Complainant.

[120] Since I have found that the Inquiry Committee's investigation of the complaint was adequate, I must next turn my mind to whether the Inquiry Committee's disposition was reasonable given the information that it had at the end of the investigatory process.

VIII REASONABLENESS OF THE DISPOSITION:

[121] The scope of my authority under the Act is clear; it is not for me to substitute my decision for that of the Inquiry Committee simply because I might have reached a different conclusion. Rather, my mandate is limited to determining whether the disposition that the Inquiry Committee arrived at was "reasonable" in the circumstances and, if it was, I am to confirm that disposition. That said, as a member of a specialized administrative tribunal, I am entitled to determine the degree of deference that it is appropriate for me to afford the Inquiry Committee’s disposition in the circumstances, bringing to bear my own expertise as an administrative decision-maker.

[122] In this case, I have afforded a degree of deference to the Inquiry Committee but not the highest degree of deference as its disposition does not require the exercise of medical expertise and judgment.

[123] It is my understanding that the test for "reasonableness" requires that, in my capacity as a reviewing body, I must ask myself whether the decision falls within the range of acceptable outcomes that are defensible having regard to the facts and the law: Dunsmuir v. New Brunswick 2008 SCC 9 at para. [47].

[124] The Supreme Court of Canada in Dunsmuir provided further guidance to reviewing courts (and bodies such as the Review Board) when it held that:

(R)easonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process: at para. [47]

[125] The Review Board in Review Board Decision 2015-HPA-088(a) at para. [12], noted some of the key factors that should be present in a "reasonable" disposition:

A reasonable disposition should be transparent (clear as to how the Inquiry Committee arrived at its conclusion), intelligible (clearly expressed, easy to understand) and justified (the reader should be able to understand the factual and legal foundation for the Inquiry Committee’s conclusion).

[126] As noted above, the Panel of the Inquiry Committee that considered the complaint was a multi-person panel including both registered massage therapists and public representatives. In my view, the Panel was well qualified to assess whether the Registrants' conduct met the standards expected of registered massage therapists in the 1990s.

[127] The Inquiry Committee must make a disposition that reflects an appropriate level of investigation and, more importantly, the disposition has to be supported by the evidence before it: Review Board Decision No. 2012-HPA-056(a).

[128] The Inquiry Committee need not address every allegation that the Complainant made, either at the time her complaint was first made to the College in 2002 or in the intervening years as the investigation waxed and waned. That said, I am not satisfied that the Inquiry Committee's disposition letter reasonably responded to the key issues raised in the complaint.

The Complainant's Submissions Re: the Adequacy of the Inquiry Committee's Disposition

[129] In her December 31, 2015, letter to the Review Board which the Complainant provided with her Application for Review, the Complainant asserts that the disposition was not reasonable because:

(1) the disposition minimized the extent and duration of the Registrant's professional misconduct;

(2) the disposition and the Consent Agreement failed to disclose:

(a) that the Registrant admitted to combining his massage therapy treatment training and counselling techniques;

(b) that the Registrant knew, or ought to have known that he was restricted to the services that he could offer as a Registrant and was not permitted to offer counselling services and body-centered psychotherapy services despite;

(c) that from 2013-2015, the Registrant failed to verify his counselling credentials for the period 1993-1999;

(3) the term "former registrant" was used in the Consent Agreement which the Complainant found confusing;

(4) the disposition did not disclose that the Complainant had asserted that the Registrant used his status as a Registered Massage Therapist to justify having physical contact with the Complainant as a counselling client and combined his massage therapy training and counselling techniques "to sexually and ritually re-enact abuse to sexually assault (her) twice a week in (her) counselling sessions from 1993 to 1999;

(5) the Complainant asserts that the Inquiry Committee did not have jurisdiction over the Registrant for "failing to maintain appropriate professional-patient boundaries while providing counselling services" and she did not complain about his provision of counselling services to her;

(6) the Inquiry Committee's disposition included reference to the Registrant's misconduct for improperly billing MSP for massage therapy services when she did not complain about his misbilling; and

(7) the Inquiry Committee failed to provide reasons for asserting that it had jurisdiction over the Registrant's admitted professional misconduct for using his position as a Registered Massage Therapist to promote his practice of "body-centered psychotherapy."

[130] The Complainant's concerns appear to lie with the language of the Consent Agreement entered into by the Registrant on November 23, 2015. The wording of that agreement was negotiated between counsel for the Registrant and the Inquiry Committee. Ultimately, the Inquiry Committee accepted the final draft as appropriate to address their concerns arising from the investigation.

[131] I must consider the Complainant's concerns in the context of s.50.60(5) of the Act which provides that, on review, the Review Board is to consider the "reasonableness of the disposition."

[132] In my view, the determination of whether a disposition is "reasonable" is a two-step process. First, I must look to the actual outcome of the Inquiry Committee's investigation of the complaint. In other words, I must review the action that the Inquiry Committee took after concluding its investigation and ask myself whether, based on the record of the investigation, that action, or disposition, was "reasonable" in the circumstances. Second, I must review the means by which the Inquiry Committee conveyed its disposition to the Complainant. That is to say that I must determine whether the reasons that the Inquiry Committee gave the Complainant for disposing of the complaint in the manner that it did were sufficient or, put another way, whether the reasons given to the Complainant for the disposition were "reasonable."

[133] The Inquiry Committee properly considered all of the evidence before it. In my view, it was not limited to considering only those issues specifically raised in the wording of the complaint. Indeed, it would have been remiss in its duty to protect the public interest had it overlooked evidence of any misconduct by the Registrant, such as improper billing, merely because the Complainant did not raise the issue.

[134] As to the Complainant's concerns regarding the jurisdiction of the Inquiry Committee, that matter is not properly before me and I make no comment about it save to note that the Registrant acknowledged the jurisdiction of the Inquiry Committee.

[135] I am satisfied, based on the Record of the investigation that it was "reasonable" for the Inquiry Committee to dispose of the complaint under s.33(6)(c) by requiring that the Registrant enter into an agreement to undertake or consent to do or refrain from doing certain things. Specifically, I am satisfied that it was entirely reasonable, and appropriate, in the circumstances, for the Inquiry Committee to obtain the Registrant's acknowledgement that he had mis-conducted himself as specified in the Consent Agreement. Having obtained the acknowledgements of misconduct by the Registrant that it did, I am satisfied that it was reasonable for the Inquiry Committee to act under s.36 of the Act to obtain the Registrant's consent to refrain from applying for registration with the College for five years and, if reinstated, to pay a portion of the costs of the investigation of the complaint. It is not for me to "micro-manage" the process by which the final wording of the Consent Agreement was reached, nor is it for me to substitute

my judgment for that of the Inquiry Committee in determining the actual terminology of the Consent Agreement.

[136] My task does not end there, however. As noted above, a disposition will only be reasonable if adequate reasons for it are provided to the Complainant.

[137] I think it only fair to note that the Inquiry Committee had the difficult task of determining from the mass of documentary evidence obtained during the investigation, (as explained by the Complainant but without the benefit of any meaningful input from the Registrant), exactly what specific conduct of the Registrant's was the subject of complaint.

[138] It appears that the Inquiry Committee opted, in providing reasons for its disposition to the Complainant to say less, rather than more, about this complex complaint, investigation, and decision-making process. That is understandable. A disposition letter need not be lengthy in order to be adequate or "reasonable" in the circumstances, but it must be convey enough information to the Complainant so that it is clear to her that the Inquiry Committee properly understood her complaint, afforded the investigation appropriate time and attention to detail and then carefully weighed the product of that investigation and tested the Registrant's conduct against the standards expected of a registrant of the College before arriving at an appropriate disposition. In this case the Inquiry Committee's disposition letter fell short.

[139] I have already acknowledged that the Inquiry Committee was hampered by the passage of a significant amount of time between the conduct complained of and the re-commenced investigation in 2013. The Inquiry Committee was further burdened with sorting through volumes of information and allegations that suggested that the Registrant had co-mingled the provision of services to the Complainant in a very unorthodox and possibly criminal manner over a protracted period of time. The Registrant provided no assistance to the Inquiry Committee as it strove to understand what had occurred.

[140] Further, much of the information before the Inquiry Committee had been prepared by the Complainant in support of her statement to the police and various complaints she made over time to a number of governing bodies and regulatory agencies. Sorting through all of that to separate the wheat from the chaff was an onerous task.

[141] To then have to explain to the Complainant how the Inquiry Committee conducted its investigation, distilled the information and applied the relevant standards to arrive at a reasonable disposition, was surely a difficult task. But that is what is required of the Inquiry Committee under the Act.

[142] The Inquiry Committee's 2-page disposition letter of November 26, 2015, does not provide adequate reasons for the disposition; it is not "transparent, intelligible and both factually and legally justified" as those terms are used in Review Board Decision 2015-HPA-088(a). It is sparse, vague and lacks sufficient detail to allow the Complainant to understand the investigatory process and the decision-making process. It is certainly not "transparent."

[143] As to the investigation, the Inquiry Committee's disposition letter simply asserts:

The Inquiry Committee investigated each allegation raised in the complaint, and any other issues of concern to the Inquiry Committee, to decide if the evidence supported further action by the College.

[144] That is not to say that the Inquiry Committee failed to investigate the allegations raised by the Complainant; in my view it did an adequate investigation for the reasons stated above. However, an important part of any disposition of a complaint, in my view, is demonstrating to the Complainant that her allegations were understood and were properly investigated. The Inquiry Committee failed in that task.

[145] Further, the Inquiry Committee's disposition letter raises the prospect that there were "other issues of concern to the Inquiry Committee" without explaining what those concerns were, how they were investigated or how they fit into the ultimate disposition.

[146] In my view, the Inquiry Committee's disposition letter also fails to properly explain the decision-making process to the Complainant. In its disposition letter, the Inquiry Committee states:

The Inquiry Committee reviewed each of the allegations and all documents and information provided by you and (the Registrant), including specific information provided by the Registrant pursuant to section 33(5) of the Act. The Inquiry Committee considered the relevant standards, Bylaws and Code of Ethical Conduct provisions governing at the relevant times."

[147] In my view, the use of this type of "boiler plate" language is inadequate and potentially misleading to the Complainant. The Record provided by the College clearly indicates that the Inquiry Committee did not review "all documents and information provided by you and (the Registrant).” Rather, it reviewed the very detailed report of the Investigator together with correspondence received from the Ministry of Health regarding the Registrant's billings for massage therapy services. I want to be clear that I am not criticising the Inquiry Committee for failing to review all of the documents and information generated during the investigation process. I am simply noting that the Inquiry Committee asserted that it reviewed information which the Record indicates it did not.

[148] The potential to mislead the Complainant could have been avoided had the Inquiry Committee provided more information. At a minimum, I would have expected that the Inquiry Committee would advise the Complainant in the disposition letter that it had appointed a qualified investigator under the Act that the investigator had taken certain identified steps in the investigatory process and had reported the results of that investigation to the Inquiry Committee. I would also have expected that the Inquiry Committee would identify the steps it took to obtain records from the Registrant and to interview him, albeit without success.

[149] As to the decision-making process, I would have expected the Inquiry Committee to identify the relevant standards, bylaws and portions of the Code of Ethics that it considered and what its conclusions were with respect to the Registrant's compliance

with those provisions. The Inquiry Committee did not do so. In my view, it would also have been prudent for the Inquiry Committee to advise the Complainant of the constitution of the Inquiry Committee consisting as it does of both massage therapy practitioners and appointed members who represent the public interest.

[150] The letter is written in plain language but it is not intelligible in the sense that it does not set out the necessary steps taken, information considered and regulations applied by the Inquiry Committee so as to permit the Complainant to understand how the Inquiry Committee arrived at the result that it did.

[151] As to whether the disposition was defensible with respect to the facts and the law, I note that the Inquiry Committee's disposition letter states that:

The Inquiry Committee concluded the circumstances and the public interest warranted action under section 33(6)(c) of the Act and therefore requested that (the Registrant) consent to resolve this matter by providing professional undertakings and/or consents. (The Registrant) agreed and executed a written Consent Agreement dated November 23, 2015, wherein (the Registrant) agreed not to apply for reinstatement of his registration with the College for five years. (The Registrant) further agreed that, if he is granted reinstatement of registration by the College, he will pay a portion of costs of the investigation.

[152] In my view, simply asserting that "(t)he Inquiry Committee concluded the circumstances and the public interest warranted action under section 33(6)(c) of the Act" does not provide a sufficient factual basis to justify the disposition. The Complainant has no way of knowing what conduct of the Registrant and what public interest concerns compelled the Inquiry Committee to dispose of the complaint by requesting that the Registrant enter into an agreement to consent to certain action. (It might have been helpful to attach a copy of the Consent Agreement to the disposition letter).

[153] I am, however, satisfied that there is a sufficient legal basis to justify the disposition. Section 33(6)(c) of the Act provides that the Inquiry Committee, when investigating a complaint, may act under s.36 which, in turn, provides in paragraph (d) that the Inquiry Committee may request that a Registrant "undertake or consent to any other action specified by the Inquiry Committee."

[154] After considering all of the above, I am not satisfied that the Inquiry Committee's disposition was sufficiently transparent, intelligible and justifiable. In other words, it was not reasonable.

IX CONCLUSION

[155] I have concluded that the investigation of this complaint was adequate but the disposition was not "reasonable" for the reasons provided earlier in this decision.

[156] I must now determine what order to make given my conclusion that the Inquiry Committee carried out an adequate investigation of the complaint but failed to provide adequate reasons for its disposition and, as such, it failed to render a "reasonable disposition" of the complaint.

[157] I am mandated under s.50.6 (8) of the Act to make one of the following orders after completing my review:

(a) confirm the disposition of the inquiry committee,

(b) direct the inquiry committee to make a disposition that could have been made by the inquiry committee in the matter, or

(c) send the matter back to the inquiry committee for reconsideration with directions.

[158] In making my determination, I consider the following factors to be relevant:

the relationship between the Registrant and the Complainant during the period of the complaint was complex (to say the least) as were the allegations of misrepresentation, sexual and psychological abuse by the Registrant over a protracted period of time;

14 years have elapsed since the Complainant filed her complaint with the College;

17 years have elapsed since the latest of the dates identified by the Complainant as receiving massage therapy services from the Registrant;

the Registrant has not held "active" status with the College since 2002;

the Registrant is now in his 70s;

the Registrant denied providing any massage therapy services to the Complainant and executed a Consent Agreement in 2015 in which he:

o acknowledged professional misconduct by failing to maintain appropriate professional-patient boundaries while providing counselling services and by improperly billing MSP for massage therapy services which were not rendered;

o acknowledged using his position as a massage therapist to promote a practice of "body-centered psychotherapy", and

o agreed not to apply for reinstatement of his status as a registrant with the College for five years (i.e. November 23, 2020) at which time the Registrant would be approximately 76 years of age and would have to meet the requirements of registration at that date and would be required to repay a portion of the Inquiry Committee's costs in investigating the complaint;

the Consent Agreement is legally binding on both the College and the Registrant and cannot be changed without the consent of both parties;

there is a clear factual basis in the Record that could have been referenced in the disposition letter to support the Inquiry Committee's decision to request that the Registrant enter into a Consent Agreement; and

there is a clear legal basis, grounded in s.33(6)(c) and s.36 of the Act, that could have been further articulated to support the Inquiry Committee's decision to dispose of the complaint by requesting that the Registrant enter into a Consent Agreement such as it did.

[159] I have also considered that a disposition under s.33(6)(c) and s.36 of the Act, bears serious consequences for a Registrant; only a referral to the Discipline Committee of the College could be of greater consequence. In my view, such a referral would be pointless in the circumstances and is not warranted.

[160] As a result, after weighing all of these factors and considering all of the information set out in para. [12] of this decision, I am exercising my authority under s.50.6(8)(a) to confirm the disposition of the Inquiry Committee for the reasons set out above.

[161] With respect to the Inquiry Committee’s inadequate disposition letter I conclude this review by adopting the cautionary note expressed by the Court in R. v. Sussex Justices, [1924] 1 K.B. 256:

Not only must justice be done; it must be seen to be done....

“Brenda L. Edwards” Brenda L. Edwards, Panel Chair Health Professions Review Board