BC Supreme Court Emphasizes Need for ‘Near Certainty’ of Evidence in Contempt Applications

The B.C. College of Traditional Chinese Medicine (“TCM”) unsuccessfully sought a finding of contempt on the basis of unauthorized practice, in a case where a College investigation yielded a large amount of circumstantial evidence, but no direct evidence of TCM practice: College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia v. Chik, 2019 BCSC 1135. This case highlights the evidentiary difficulty of establishing contempt and the practical difficulties regulators face enforcing injunctions without cooperative witnesses.

In June 2016, the College obtained an injunction restraining the Respondent from the practice of TCM. Between September 2016 and January 2017, The College observed the Respondent attending at various private residences for 45-minute sessions and carrying a “black Nike bag.” In June 2017, the College executed a court-ordered search and seizure of the Respondent’s home and vehicle. The search yielded a large amount of paraphernalia in the Registrant’s home and black Nike bag (e.g. 7,000 acupuncture needles & 2,000 single use alcohol swabs) (para. 32). The College lead evidence that this paraphernalia was consistent with the practice of TCM. The search also yielded “appointment books and phone numbers,” but no documentary evidence of services rendered to clients or payment invoices.

The College failed to establish, beyond a reasonable doubt, the Respondent intentionally disobeyed the order by practicing TCM. The College argued the only rational explanation for the seized materials was that the Respondent was engaged in large scale TCM practice (para. 74). The court framed the central issue as whether “the only reasonable inference [it] can draw is that [Respondent] was practicing TCM or Acupuncture while he was inside the residences for these 45-minute periods” (para. 76). The Respondent lead no evidence as to why he possessed the materials or why he was observed entering the residences.

The court found the evidence before it did not satisfy this question. There was “no nexus provided between possession [of the materials] and actual practice” (para. 84). A key evidentiary weakness was the 5-month gap between when the College observed the Respondent entering residences with the Nike bag and when the search revealed paraphernalia in said bag. The gap made it impossible to determine whether the contents of the bag at the time of the search resembled its contents during the times the Respondent attended the residences (para. 82). The court held that the College should have executed the search “in closer proximity” to the observations or performed subsequent observations prior to the search to mend this difficulty (para. 85). Direct evidence from a patient as to services provided or documentary records of services, or payment received for services would have also helped to bridge this gap.

This case highlights the evidentiary difficulty regulators face proving unauthorized practice and contempt. It is challenging to obtain “direct and compelling evidence of unauthorized practice” without direct client or patient evidence. Regulators are institutionally ill-equipped to gather such evidence. Obtaining a search order under s. 29 of the HPA, for instance, may involve a college retaining and third-party investigator to develop an evidentiary basis for the order, then hiring legal counsel to bring the application, in addition to its own internal deliberative process. This will result in a significant gap between when an individual is observed engaging in activity which appears to be unauthorized practice and a search which yields evidence of unauthorized practice. The College can partially remedy be directing further surveillance, but at added cost. At the same time, patients or clients may be unwilling to assist a College investigation. This leaves colleges with few avenues apart from ‘sting operations,’ which may be impractical and expensive, and attempting to find documentary evidence of services provided (e.g. billing invoices).

College of Traditional Chinese Medicine Practitioners and Acupuncturists of British Columbia v. Chik, 2019 BCSC 1135

Will Pollitt