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Lad_Kucis

In a recent case[1] that has application to RMTs, the Discipline Tribunal allowed a motion to set aside allegations of professional misconduct against a chiropodist because they fell outside the scope of the investigation authorized by the Inquiries, Complaints and Reports Committee (ICRC), and the chiropodist was not provided with an opportunity to respond to the allegations.

This case is significant because health professional colleges, including the CMTO, have typically taken a broad view of the scope of a Registrar-initiated investigation (i.e., an investigation commenced without a complaint), which has always generated great concern from health professionals.

The facts of the case are that the ICRC authorized a Registrar’s investigation regarding concerns that the chiropodist:

• may be practicing pursuant to a conflict of interest by virtue of his position as a medical director of an orthotics lab;
• may have failed to report a practice site to the College of Chiropodists of Ontario (CCO) in relation to his involvement with the orthotics lab; and
• may have prescribed orthotics manufactured with the use of foam box, which is a process that is noncompliant with CCO standards.

The ICRC investigated these concerns and prepared an investigation report, which was provided to the chiropodist for comment.

Subsequently, the ICRC conducted further investigations into whether the chiropodist was working at multiple practice locations on the same dates and times. An addendum report addressing this scheduling issue was also provided to the chiropodist for comment.

The ICRC ultimately issued a Notice of Hearing referring various allegations of professional misconduct to the Discipline Tribunal. In addition to the allegations that were investigated and set out in the reports that had been provided to the chiropodist, the Notice of Hearing also included new allegations concerning the chiropodist’s “prescribing practices” relating to orthotics, including among other items, over-prescribing, failing to perform assessments to determine medical necessity and recordkeeping. To confirm, these concerns about “prescribing practices” had not been identified nor analyzed in the reports that had been provided to the chiropodist.

The Discipline Panel concluded that these new allegations constituted a different type of issue that was factually unrelated to the reasonable and probable grounds that authorized the Registrar’s investigation. To elaborate, the Discipline Tribunal held that the reasonable and probable grounds to believe the chiropodist had an improper relationship with an orthotics lab was unconnected to the chiropodist’s prescribing practices. As a result, the Discipline Tribunal did not believe that the new allegations were within the scope of the investigation initiated by the Registrar.

The Discipline Tribunal further held that the new allegations were not “related to the report,” as the report did not identify any such concerns and the chiropodist had no opportunity to respond to them. The Discipline Tribunal rejected the argument that the inclusion of patient charts in the investigation report permitted the ICRC to refer any allegation arising from its review of those charts. Rather, it stated that any concern must be expressly identified in the report and must relate to the issues that formed the basis of the reasonable and probable grounds for the investigation.

The Discipline Tribunal also summarized the applicable procedural requirements for Registrar investigations as follows:

• An investigation can commence where the Registrar has reasonable and probable grounds to believe the registrant committed professional misconduct and authorization for the investigation is obtained from the ICRC;
• The investigation must have a defined scope, limited to the issues that formed the basis of the reasonable and probable grounds, interpreted generously. Investigative powers can only be exercised in matters relating to that scope;
• The findings of the investigation must be set out in a report and provided to the registrant for comment; and
• Any allegations referred to the Discipline Tribunal must be based on the concerns identified in the report provided to the registrant.

This decision has application to all types of health professionals, including RMTs, and confirms that Registrar investigations are not unfettered and must be confined to the issues that gave rise to the investigation. As such, if the CMTO were to identify a new issue during the course of an investigation, it must obtain authorization from the ICRC to investigate the issue, which must be supported by reasonable and probable grounds. The decision also reinforces the requirement that RMTs must be informed of investigative findings and given a meaningful opportunity to respond.

As there have been very few, if any, cases that have explored the jurisdictional ambit of Registrar investigations, I would expect that this decision will be relied upon in future cases where the CMTO is alleged to have exceeded the scope of the authorized investigation.

About the Author

Lad Kucis is certified by the Law Society of Ontario as a specialist in health law and provides advice and representation to registered massage therapists in respect of all types of regulatory matters, including complaint and disciplinary matters before the CMTO, and complaint reviews before the Health Professions Appeal and Review Board.

Lad can be reached by telephone at 416.864.3114 or by email at lkucis@grllp.com.

[1]     College of Chiropodists of Ontario (CCO) v. Ku (December 9, 2025)