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Professionals - Discipline (3). Um v. College of Naturopaths of Ontario [the criminal law 'Kienapple' multiple-offence principle and administrative matters]
In Um v. College of Naturopaths of Ontario (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a combined RHPA appeal, this from professional misconduct rulings by the Discipline Committee of the College of Naturopaths of Ontario that alternatively suspended, and revoked, Certificates of Registration.
Here the court considers the application of the criminal law 'Kienapple' multiple-offence principle to administrative matters:h. Multiple Finding of Professional Misconduct based on same Facts contrary to Kienapple
[80] As noted, both appellants were found to have engaged in thirteen acts of professional misconduct as defined by the Professional Misconduct Regulation. With respect to Kienapple, both appellants argued that, as the Panels found that both appellants had offered treatment for cancer, which was outside the scope of practice, they should not also be punished for the following acts of professional misconduct as set out in the Professional Misconduct Regulation:7. Recommending or providing treatment that the member knows or ought to know is unnecessary or ineffective.
8. Providing or attempting to provide services or treatment that the member knows or ought to know to be beyond the member’s knowledge, skill or judgment.
9. Failing to advise a patient or the patient’s authorized representative to consult another member of a health profession within the meaning of the Regulated Health Professions Act, 1991, when the member knows or ought to know that the patient requires a service that the member does not have the knowledge, skill or judgment to offer or is beyond his or her scope of practice. [81] The appellants based their argument on this passage from the summary of findings by both the Prytula and Um Panels:Further, the Registrant offered or provided treatment that he knew or ought to have known was unnecessary or ineffective. The Registrant offered treatment for cancer, which is outside of the scope of practice and therefore unnecessary and/or ineffective. While the Registrant may be trained to offer certain treatments for cancer in other jurisdictions, he is not allowed to do so in Ontario and therefore is not qualified here with the necessary skill or judgment. For this reason, the Panel finds that the Registrant provided or attempted to provide treatment beyond his knowledge, skill or judgment. The Registrant ought to have referred his patients elsewhere, when the Registrant believed that the patient required services beyond his scope of practice. [82] The passages are identical except that the Prytula decision does not contain the words “For this reason” found at the fourth sentence quoted above.
[83] In Carruthers v. College of Nurses of Ontario,[30] the Court held that the rule against multiple convictions for the same matter or cause can be applied to similar allegations of professional misconduct heard by a Panel. However, the Court determined the same conduct may give rise to different incidences of professional misconduct. The College argued that the offering treatment outside the scope of practice, recommending or providing treatment that is ineffective, providing treatment beyond knowledge, skill or judgement, and failing to consult another health profession are all separate causes or matters of misconduct even if these allegations arise out of the same acts.
[84] Both appellants submit that neither Panel addressed the Kienapple arguments raised at the Penalty Hearings.
[85] In the Prytula Penalty Hearing on January 27, 2025, Mr. Kogan, the paralegal representing Dr. Prytula submitted that multiple convictions based on the exact same facts are not lawful. However, counsel for the College submitted that where an act of misconduct has distinct aspects to it, then multiple findings of misconduct may be made. While the Panel did not refer to this submission, the result is correct and in accordance with Carruthers.
[86] In the Um Penalty Hearing on March 25, 2025, Mr. Kogan did not directly make the Kienapple[31] argument, other than to state that there is a rule against multiple convictions arsing from the same events and that there were three convictions against Dr. Um for practising out of scope. Counsel for the College did not address this argument.
[87] Neither Discipline Panel addressed the Kienapple submissions. Reasons are sufficient if they are responsive to the case’s live issues and the parties’ key arguments and explain why the decision was made in a manner that permits meaningful appellate review.[32] While the appellants made Kienapple submissions at the Penalty Hearings, the submissions were not central to their arguments and made superficially in the Um Hearing, such that the College did not respond. The principles as expressed in Carruthers are sufficiently well settled, and uncontroversial, such that it was not necessary for the Panels to address this submission.
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