Donald v. Canadian College of Acupuncture and Natural Medicine Ltd.

Donald v. Canadian College of Acupuncture and Natural Medicine Ltd. Court Small Claims Court Date 2008-07-07 Citation 2008 NSSM 46 Docket SCCH 07-288478 Judge/Registrar/Adjudicator Thompson, J. Walter (Adjudicator) Document Type Decision Decision Content CLAIM NO. SCCH‑07‑288478 "REVISED" DECISION AND ORDER IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Donald v. Canadian College of Acupuncture and Natural Medicine Ltd., 2008 NSSM 46 BETWEEN: Name: CATHY DONALD ‑ CLAIMANT Name: CANADIAN COLLEGE OF ACUPUNCTURE AND NATURAL MEDICINE LIMITED ‑ DEFENDANT DATE OF HEARING: February 18, 2008 REVISED DECISION: The text of the original decision has been revised to remove addresses of the parties on August 21, 2008. DECISION [1] Cathy Donald is a physiotherapist. The Canadian College of Acupuncture and Natural Medicine, as its name suggests, offers programs in the Chinese healing arts out of a clinic in Bedford, Nova Scotia. The College offered a 3600 hour program leading over 4 years to a diploma granting the status of doctor of acupuncture and traditional Chinese medicine. Ms. Donald enrolled in the program, but was bitterly disappointed by it and claims the refund of her tuition for two years in the amount of $11,600. [2] This matter became long and involved, but in the end I am satisfied that it boils down to several fairly straight forward issues. Before discussing those issues, however, I want to address generally some issues of context and credibility. [3] First of all, I am satisfied that all the witnesses testified sincerely and truthfully. I do make a finding of fact on one point, but that finding should not be taken as a suggestion of lack of credibility. Overall, much time was consumed by testimony from those who found the program worthwhile and those who did not. I have no trouble accepting both their respective points of view. Secondly, of course, I am utterly unqualified to comment on whether the program is good, bad or indifferent. I can only say what I think the contract between Ms. Donald and the College was, whether in my view it was fulfilled and whether the Private Carreer Colleges Regulation Act, S.N.S. 1998, c. 23 applies to it. [4] The practice of acupuncture and what is called traditional Chinese medicine (TCM) is unregulated in Nova Scotia. The practitioners are not chartered by legislation as a self governing profession or trade nor is there legislation governing the practice. Practitioners have not yet organized themselves to set standards of practice. Anyone may call themselves a practitioner and hang out a shingle. Anyone can offer to teach. There is no one to gainsay it. Nationally, only a few provinces have established acupuncture and TCM as a self‑regulating profession and there are a myriad of jurisdictions and organizations purporting to train and recognize practitioners. The whole movement struggles for recognition, but there is no one organization or body which, at the national level, has the clout to establish standards that other organizations or jurisdictions will recognize. [5] The College can only offer its own diploma. The principals of the College, Dr. Li and Dr. Chen work hard to gain credibility for the diploma and have had some success. The diploma gets some recognition from at least one organization that purports to be national and either through that organization or through the diploma, a billing number may be obtained from Blue Cross, but other than that, the diploma can carry no weight because there is no structure to accept it. Thus the diploma the College offers entitles the graduate to little more than the graduate could do anyway. There really are no, taking the words from Ms. Donald's McMaster University degree, "rights and privileges pertaining thereto" [6] Ms. Donald sought a program that would provide her with national and even international recognition of the training she received. She wanted, at the end, to be able to competently practice acupuncture and TCM, and be in a position where she was recognized as being qualified to do so. [7] Ms. Donald expected the College to teach her in a formal and structured way. The College's program, however, was very much focused on self directed study, self‑directed research, and attendance at the clinic. There were not lectures in the usual sense. Classes were more like meetings to discuss relevant issues. Students who adapted to the program are happy with it. Ms. Donald was not. The Contract [8] I look first to the calendar issued by the College. The front page introduces the principals of the college, Dr. Franklin Chen and Dr. Diana Tong Li. Dr. Chen says "We are committed to providing you and the community with the highest standard of technical and professional training in Traditional Chinese Medicine." [9] Dr. Li says; "The educational standards of these Diploma programs are among the highest in Canada. .." [10] The College offers a number of courses. Under the headings What We Offer and Diploma Programs the calendar says; Doctor of Accupuncture and Traditional Chinese Medicine Diploma Program (Dr. TCM; Dr. Ac.) 4 academic years of study, 3600 hours total Excellent balance of academic study and clinical practice Meets Provincial, National, and International education standards Professional and personal growth potential On‑site clinical experience [11] The next page repeats the points listed above and adds the following; The College faculty is highly qualified and well educated. They have many years of teaching and clinical experience. They are committed to academic and professional excellence. The faculty consists of Doctors of Chinese Medicine, Acupuncture, Naturopathy, Western Medicine and Chiropractic as well as Massage Therapists and other health‑care practitioners... [12] Then there is a page listing 46 individual courses. These courses are then elaborated upon in the following three pages. Course CM002A‑Foundations of TCM A, for example, is described as follows: Basic theory of TCM will be discussed in this course. The relationship of Yin and Yang, the five elements, the formation and function of Energy (Qi), Blood (Xue), Essence (Jing), and Body Fluids (Jin\ye) will be covered. [13] The College's web site speaks in rather more general terms about the programs being offered. [14] Ms. Donald met with Dr. Li, filed an application dated February 2, 2006 and a personal essay saying why she was keen to enter the College. The meeting with Dr. Li is important. Dr. Li says that during this meeting she went through a document called CCANM Admissions Policies and Procedures with Ms. Donald. She says Ms. Donald did not wish to sign the document at the time of the interview, and took the it with her to review in detail. Ms. Donald says she has no recollection of having been given the document, but she says in any event that it was not reviewed with her nor explained to her. [15] The Admissions Policies document provides a detailed form of contract, but for our purposes it is the first two clauses that are important. The document says at the outset; Programs, courses and classes are generally open to health care professionals and natural medicine practitioners for continuing education credit as well as to the general public for self‑care and general interest. Please Note: The College is not a career college. The College does not guarantee job placement. [16] Paragraph 2 of the document elaborates on the above and says at the end; Students are aware that the part‑time nature of the program requires an ongoing deliberate dedication to homework and self‑study (to meet the 3600 hours of program content). Students are expected to pre‑read and pre‑prep all materials before class. Class will be considered an opportunity to review text and materials, make inquiry, and receive the experience and insights of the teacher. [17] A further document is entitled Acupuncture and Traditional Chinese Medicine (ATCM) Program Disclaimer. It recites the same conditions as the Admissions Policies. It also provides; D) Students are expected and responsible for forming study groups with the purpose of mutual support. 5. I understand the Diploma is currently, fully recognized by the Chinese Medicine and Acupuncture Association of Canada and the Acupuncture and the Naturopath Association of Nova Scotia. 6. I understand the Diploma does not grant license to practice. This right or privilege to practice may be in the domain of licensing authorities within Municipal, Provincial and\or Federal agencies, and may depend upon membership in a peer group association. It (sic) the duty of the student to make inquiry regarding licensing and membership with Municipal, Provincial, and\or Federal licensing agencies and peer group associations where they exist. [18] The Admissions Policies and the Disclaimer documents were presented to her and she signed them a year after she had enrolled, but that is too late in my view for the documents to be said to form a part of the contract. The issue for me is whether these documents were presented to Ms. Donald and reviewed with her before she entered the program. Thus, I must make a finding on whether to accept Dr. Li's recollection of the February, 2006 interview or Ms. Donald's. [19] On balance, I accept Ms. Donald's recollection. I am satisfied that neither of the documents were presented to her or reviewed with her at the February meeting. I accept her statement that if she had read and understood that the College was simply offering a program of continuing education, then she would not have enrolled. I am satisfied that Ms. Donald's perception of what the College was offering in its doctorate was very different from what the Admissions Policies and the Disclaimer documents say the program would be. Those who adapted to the College's prescription of an enormous effort of self‑directed education supplemented by week end meetings, study groups and clinic observation are very happy with it, but I am satisfied that is not what Ms. Donald expected and that is why she began this proceeding. I accept that she is sincere. I do not accept that she has recreated reality, disregarded what she was told, and then because the program did not work out for her, sued to get her tuition back. [20] Mr. Star described Ms. Donald as being 'flummoxed' when presented with the documents in 2007. That is consistent, in my view, with Ms. Donald's state of mind and inconsistent with a prior knowledge of the documents. [21] I should add because of the acute sensitivities involved in this dispute that I mean no reflection on Dr. Li's integrity. I accept that she or other staff go over the documents and students sign them as a part of their enrollment. I am just saying that, probably by oversight in this one case, that step was not taken. [22] The Admissions Procedures and the Disclaimer documents are a fair statement of how the ATCM program operates. If indeed I was satisfied that the documents had been made a part of the terms of her enrollment then I would find no breach of contract by the College. [23] Ms. Donald also viewed the College's web‑site. Ms. Donald says that the web‑site said the acupuncture‑TCM programs was accredited. Dr. Li, Dr. Chen and Mr. Star all say the web site is substantially unchanged and never said the programs were accredited. In their turn, they say that the web‑site makes clear the fact that the acupuncture‑TCM course is offered as continuing education. I shall comment on both views later, but for the present I just wish to say that in my view the web‑site does not add to the terms of the contract stated in the calendar. [24] I am satisfied that the contract boils down to this. The College in its calendar invited an application for enrollment offering to provide the four points stated above; 4 academic years of study, 3600 hours total Excellent balance of academic study and clinical practice Meets Provincial, National, and International education standards Professional and personal growth potential On‑site clinical experience [25] I am satisfied that the College's program as implemented for Ms. Donald , particularly given the overall tone and context of the calendar, did not meet these conditions. The calendar, in its overall tone and context, suggests a large, well established institution and program The very name, "The Canadian College" suggests something large and complex. In fact, the College is small and limited to one building in Bedford, Nova Scotia. It had just begun its program in 2005 The College is really just as a side‑line operated by a few busy clinicians. One calls himself the President, another calls herself the Director of Education. The references to the faculty suggests a staff of teachers, but the reality is that the program is administered by Dr. Chen and Dr. Li, supplemented by student teaching assistants and occasional visiting lecturers. More will be said about this later, but the calendar offers a doctorate when in fact the profession has no status in Nova Scotia and the meaning and effect of attaining the doctorate is quite limited. I find the calendar to be rather grandiose and not an accurate representation of what the College was actually to provide Ms. Donald. [26] The calendar says the program "Meets Provincial, National, and International education standards". These words represent, in my view, that there is some generally recognized standard which the program has attained. Ms. Donald seemed fixated on the word accredited. I am satisfied for the record that the College did not use that word, but that is not the point. The College represented that standards exist and the College has attained them. I am satisfied, however, that standards and recognition are elusive and the practitioners of acupuncture and traditional Chinese medicine are in a struggle to attain them. Those standards do not exist for it to be said that the College meets them but the effect of the statement was, I am satisfied, to lead Ms. Donald to believe that the College would provide her with something it could not. [27] The calendar offers "4 academic years of study, 3600 hours total." and an "Excellent balance of academic and clinical practice". The words "4 academic years" mean, in my view, that the college was offering a program in the usual way of North American academic pursuits. In other words, the words propose, in my view, a program of academic lectures, directed reading and writing, regular assessments and reports on success or failure. The calendar says 3600 hours of academic work. 3600 hours is effectively two years of forty hour work weeks for most of us. The 3600 hours, I have learned however, is a total arrived at through many hours of self directed study and attendance at the clinic. The calendar does not describe the reality. The program, in reality, provides weekend meetings with student teaching assistants, presentations and discussions with Dr. Li and Dr. Chen, occasional visiting lecturers, but for the most part relies on self directed study and research, and the opportunity to observe and participate in the Chen‑Li clinic. The program is unbalanced; it is not academic study as academic study is commonly understood. [28] The calendar offers a doctorate on its completion, but the doctorate has no real status. For all the significance the term has in Nova Scotia, I could incorporate an association or corporation myself, fix up a certificate and award myself the diploma and suggest to the world I am a doctor of acupuncture. There is no substance to being a doctor because outside of a few other organizations connected to Dr. Chen and Dr. Li, so little recognition comes with it. I am satisfied that a person reviewing the calendar and the offer of the doctorate, however, would have the opposite understanding; that the diploma of doctorate does have "rights and privileges pertaining thereto". [29] Even some of those students who are happy with the program had to go through a period of adjustment. There was tension at the school arising out of students dissatisfaction. It came to a head in a December, 2006 meeting. Some students who gave evidence for the College, I am satisfied, refocused afterwards, adapted themselves to the program as the College was in fact providing it, and as I have said, are more than happy with it. The process they went through, however, is evidence to me of the conflict between the expectation and the reality which Ms. Donald felt more than others. [30] In summary, I construe the contract to have provided that the College provide a program of education consistent with its calendar. I am satisfied that it did not. I am satisfied that the program, with its extensive reliance on self directed study, group discussion, student teaching assistants, its lack of structure and the lack of significance of the goal at the end was not what was promised to Ms. Donald nor what she reasonably, in my view, had reason to expect. [31] I repeat that I heard from a number of students of the program who are more than satisfied with the program as offered by Dr. Chen, Dr. Li and Mr. Star. Again I do not doubt the sincerity of all of them, their dedication to their work, their dedication to the better health of Nova Scotians. I only say that their program as promoted to Ms. Donald was not, in my opinion, fulfilled. Registration under the Private Career Colleges Act [32] The College was not registered under the Private Career Colleges Act, of Nova Scotia. The act and the regulations define to whom the act applies and who may be exempt. A private career college is defined in the Act as; 2 (p) "private career college" means a school or place where vocations, occupational or career training is provided to students, 37(1) The Governor in Council may make regulations... (h) designating an occupation, calling or career as an occupation within the meaning of this Act (j) exempting an occupation, course or private career college or any particular type of private career college or course from the operation of this Act [33] The regulations provide; 2(1) These regulations apply to all occupations as defined by clause 2(1) of the Act, or as designated pursuant to clause 37(1)(h) of the Act. (2) All training programs for occupations are required to be registered with the Department unless otherwise exempted in these regulations 3 Any organization, college, or other like entity offering a non‑occupational training program is exempt from the Act [34] The act and the regulations provides exemptions; 3 This Act does not apply to.... (d) occupational training offered by an organization, where the training or instruction is a requirement or part of professional development [35] The act says; 5(1) No person shall established or operate a private career college without holding a valid certificate of registration issued pursuant to this Act 35(1) Unless an operator holds a certificate of registration that is in force, a contract in respect of a course in or in connection with a private career college made in the Province by or through such person or by or through an agent of such person is null and void (2) A private career college that does not have a valid certificate of registration as a private career college is not capable of commencing or maintaining any action or other proceeding in any court in the Province (a) with respect to a contract made in whole or in part in the Province; or..... [36] A predecessor college operated by Dr. Chen and Dr. Li was registered under the Act. No application was ever made for the Canadian College of Acupuncture and Natural Medicine. Dr. Chen, Dr. Li, and Mr. Star say that they have canvassed the civil servants who administer the Act and have consistently been advised that their College was exempt. Dr. Chen, Dr. Li and Mr. Star say that their College provided continuing education programs [37] In the end, however, it is for people such as me who are charged with ruling on the proper interpretation of the Act, who determine whether the Canadian College of Acupuncture and Natural Medicine was exempt or is included in the definition of career college and so should have been registered. The College offers a 3600 hour, four year, 49 course program leading to a doctorate in acupuncture and traditional Chinese medicine at a total cost of approximately $25,000.00. That to me is not continuing education. It is preparation for entry into a career. People who complete the program expect to be able work in the field. I refer in particular to one student at the college who has an undergraduate degree in psychology and who works as a counselor in a group home. It is important to her to complete the program and then obtain a health insurance billing number so she can bill clients through their health plans. She is dedicated to the task and has worked very hard. Acupuncture and traditional Chinese medicine training offers her, in my view, a career opportunity only tenuously related to her current work. Reference was made to a student at the College who has been licensed in China following additional study there; a significant achievement indeed, but this kind of dedication to the art and the science of Chinese medicine cannot be minimized as 'continuing education' even if it is eventually used as an adjunct to an existing discipline. [38] The College laid stress on this idea that to be admitted to the College one must have prior qualifications. The Policy and Procedures document says; Programs, courses and classes are generally open to health care professionals and natural medicine practitioners for continuing education credit as well as to the general public for self‑care and general interest. [39] The Policies and Procedures document, to repeat, says that the program is open to the general public who are interested in their own care and to people who have a general interest in the field. Thus, the College itself states that it has an open admission policy. In fact, one student who enrolled had cancer and was interested in alternate ways of managing it. Another is a clergyman with a sophisticated training in the martial arts. One other described herself as a herbalist. Another had training in holistic nutrition. In sum, in my opinion, the program cannot be described as continuing education for health professionals. [40] The fact that the College has represented itself as being an institute of continuing education does not make it so. The College repeatedly described itself as such to the civil servants administering the Act. It can thus be no surprise that the civil servants accepted it. A letter of February 6th, 2008 from the College to the Director, Department of Education, Private Career Colleges says in part; Thank you for taking the time on Tuesday February 5th, 2008, to discuss and review our current status as a provider of continuing education on the topic of acupuncture and Traditional Chinese Medicine during your telephone conversation......As you advise Joseph Starr that the College is presently exempt and not governed by the Career Colleges Regulations Act and Regulations. More specifically, the exempt status is also contingent on the fact that the College's continuing education program only accepts health care professionals or individuals with health related backgrounds. .... .....I would appreciate it if you would advise us regarding any upcoming changes to the Private Career College's Act and Regulations, which in your view, may impact on our College's continuing education program. [41] In my opinion the College is a school or place where vocational, occupational or career training is provided to students within the meaning of the Act. The contract is therefore, by law, void. I accept the law as submitted on behalf of Ms. Donald to the effect that the court in appropriate circumstances may order restitution where the contract is found to be contrary to statute; in this case that would mean a return of tuition. Ms. Donald as a student at the College became a member of a class of people intended to be protected through the statutory scheme regulating private career colleges. Denial of relief to her would defeat the very purpose of the legislation. The purpose of the legislation is to protect students. I do not want to suggest in the least that the College is disreputable, but it is operating, in my view, contrary to a statute which is meant to protect Nova Scotia students seeking career, vocational or occupational training. The award of a remedy in circumstances such as this is necessary to give meaning an effect to the statute. [42] In summary, I am satisfied that Ms. Donald is entitled to the return of her tuition in the amount of $11,600.00 both because the College breached its contract with her as I have found that contract to be and because the College had not registered itself rendering the contract void by statute. [43] Ms. Donald claims she paid the College an extra months tuition. I am not satisfied on balance that she did. I dismiss the claim for that amount. I dismiss the counter claim. The College is not registered and, by virtue of s.35(2) of the statute quoted above, cannot claim against Ms. Donald. Furthermore, the College's letter of June 6, 2007 to Ms. Donald says; The college acknowledges the receipt of your letter dated May 24th. The College regrettably, is prepared to accept this letter as your letter of withdrawal from the Canadian College of Acupuncture and Natural Medicine. [44] It is clear, in my view, that Ms. Donald withdrew from the College at the end of her second year. ORDER [45] Ms. Donald, I find, paid $11,600 in tuition. I order the Canadian College of Acupuncture and Natural Medicine Limited to pay the sum of $11,770.88 to Cathy Donald including her costs of issuing the claim in the amount of $170.88. Dated at Halifax, Nova Scotia this 7th day of July, 2008. __________________________________ J. WALTER THOMPSON, Q.C. ADJUDICATOR Original Court File Copy Claimants(s) Copy Defendant(s)