Controlled Acts Injunction

Under the Regulated Health Professions Act a College can obtain an order under the statute to prohibit unauthorized persons from performing certain activities or using protected titles. A number of recent cases have set out the criteria used by the courts to determine when to make an order. Those cases are nicely summarized in College of Physicians and Surgeons of Ontario v Canon, 2018 ONSC 4815, http://canlii.ca/t/htkjf. In that case there was uncontroverted evidence that the respondent had used protected titles (e.g., Dr., osteopath), had communicated a diagnosis (e.g., slipped disc in her lower back with bursitis in both shoulders), administered injections, made spinal adjustments and had performed procedures below the dermis of patients. Interestingly, some persuasive evidence (against the individual) came from patient testimonials from his website. The Court summarized the approach on such applications by citing judicial comments in another case:

In Canada v. IPSCO Recycling Inc., at para. 51, Justice Dawson of the Federal Court summarized the legal principles that are to be applied in determining whether to grant a statutory injunction, as follows:

51. On the basis of the authorities cited by the parties I am satisfied that where a statue provides a remedy by way of injunction, different considerations govern the exercise of the court’s discretion than apply when an Attorney General sues at common law to enforce public rights. The following general principles apply when an injunction is authorized by statute:

(i) The court’s discretion is more fettered. The factors considered by a court when considering equitable relief will have a more limited application.

(ii) Specifically, an applicant will not have to prove that damages are inadequate or that irreparable harm will result if the injunction is refused.

(iii) There is no need for other enforcement remedies to have been pursued.

(iv) The Court retains a discretion as to whether to grant injunctive relief. Hardship from the imposition and enforcement of an injunction will generally not outweigh the public interest in having the law obeyed. However, an injunction will not issue where it would be of questionable utility or inequitable.

(v) It remains more difficult to obtain a mandatory injunction. [internal citations omitted]

The Court went on to say:

Proof of damages or proof of harm to the public is not an element of the legal test to obtain a statutory injunction.

Where a public authority applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach. The onus to raise the exceptional circumstances lies with the respondent, and those circumstances are limited; for example, to where there was a right that pre-existed the enactment contravened or where the events do not give rise to the mischief the enactment was intended to preclude. [citations omitted]

The restraining order was granted.

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