



COURT OF APPEAL
    FOR ONTARIO

CITATION: College of Traditional Chinese Medicine
    Practitioners and Acupuncturists of Ontario v. Federation of Ontario
    Traditional Chinese Medicine Association (Committee of Traditional Chinese
    Medicine Practitioners & Acupuncturists of Ontario), 2015 ONCA 851

DATE: 20151207

DOCKET: C60110

Sharpe, Cronk and Miller JJ.A

BETWEEN

College
    of Traditional Chinese Medicine Practitioners and

Acupuncturists of Ontario

Applicant (Respondent)

and

The
    Federation of Ontario Traditional Chinese Medicine

Association,
    A. K. A the Committee of Traditional Chinese

Medicine
    Practitioners & Acupuncturists of Ontario, the

Ontario
    Acupuncture Examination Committee, the College of

Traditional
    Chinese Medicine & Pharmacology Canada, the

Canadian
    Association of Acupuncture & Traditional Chinese

Medicine,
    Committee of Certified Acupuncturists of Ontario,

James X.N. Yuan, and Jia Li

Respondents (Appellants)

Sean Hu, representative for the corporate appellants

James X.N. Yuan, acting in person

Jia Li, acting in person

Jaan Lilles and Laura
    Robinson, for the respondent College of Traditional Chinese Medicine
    Practitioners and Acupuncturists of Ontario

Zachary Green, for the intervener the Attorney General
    of Ontario

Heard: November 30, 2015

On appeal from the judgment of Justice Graeme Mew of the Superior
    Court of Justice, dated February 6, 2015, with reasons reported at 2015 ONSC
    661.

By the Court:

[1]

The appellants, individuals and corporations engaged in various
    capacities in the practice of traditional Chinese medicine, appeal the decision
    of the Superior Court granting the respondent College of Traditional Chinese
    Medicine Practitioners and Acupuncturists of Ontario (the College)
    declaratory and injunctive relief. The application judge found that the
    corporate appellants falsely held themselves out as regulatory colleges, that
    the individual appellants had wrongly held themselves out as representatives of
    the regulator, that certain of the appellants had engaged in unauthorized
    practice, and that the individual appellants had engaged in the unauthorized
    use of the protected titles Doctor or traditional Chinese medicine
    practitioner, all contrary to the
Regulated Health Professions Act
,
1991
,
    S.O. 1991, c. 18 and the
Traditional Chinese Medicine Act, 2006
, S.O.
    2006, c. 27.

[2]

In their defense to the claims of the College, the appellants submitted
    that the
Traditional Chinese Medicine Act, 2006
and, in particular the
    Registration Regulation made under that Act, were discriminatory and violated
    their s. 15
Charter
rights. The application judge rejected that defense
    on the ground that both individual appellants and one of the corporate
    appellants had previously unsuccessfully advanced essentially the same argument
    in an application before the Divisional Court: see
Yuan, Li v. Transitional
    Council of the College of Traditional Chinese Medicine Practitioners and
    Acupuncturists of Ontario
, 2014 ONSC 351, 316 O.A.C. 272 (Div. Ct.). In
    that same application, the Divisional Court also dismissed the claim that the
    College had acted unlawfully in not enacting a regulation to permit the use of
    the title Doctor in relation to the practice of traditional Chinese medicine.
    The appellants did not seek leave to appeal the Divisional Courts decision. The
    application judge held that the Divisional Court judgment barred the appellants
    from advancing the same arguments on grounds of
res judicata
, issue
    estoppel or abuse of process.

A.

Issue estoppel and abuse of process

[3]

In our view, the application judge did not err by refusing to entertain
    the appellants constitutional argument on the ground that it had been
    conclusively and finally determined against them in the prior proceeding. We
    agree with his conclusion that the required elements of issue estoppel were
    made out.

[4]

The three preconditions for issue estoppel are:

1)

the issue must be the
    same as the one decided in the prior decision;

2)

the prior judicial
    decision must have been final; and

3)

the parties to both
    proceedings must be the same or their privies.

See
Danyluk v. Ainsworth Technologies Inc
.,
    2001 SCC 44, [2001] 2 S.C.R. 460, at para. 25.

(1)

Same issue

[5]

The central argument presented to the application judge was that the
    language proficiency requirement set out in the Registration Regulation is
    discriminatory. That same argument was unsuccessfully advanced before the
    Divisional Court. The appellants contend that before the Divisional Court,
    their s. 15 argument was that the language requirement discriminated
    against all people of Chinese origin, whereas before the application judge they
    argued that the language proficiency requirement was discriminatory against
    ethnic mainland Chinese practitioners.

[6]

We agree with the application judge, at para. 52 of his reasons, that by
    reframing their argument in this manner, the appellants cannot mask the
    reality that their complaints still emanate from the linguistic requirements of
    the Registration Regulation. As pointed out in
Danyluk
, at para. 18,
    litigants are only entitled to one bite at the cherry and are required to
    put their best foot forward to establish the truth of their allegations when
    first called upon to do so. The applicable principle is that litigation is
    conclusive upon issues actually brought before the court and upon any issues
    which the parties, exercising reasonable diligence, should have brought forward
    on that occasion:
Las Vegas Strip Ltd. v. Toronto (City)
(1996), 30
    O.R. (3d) 286 (Gen. Div.), affd (1997), 32 O.R. (3d) 651 (C.A.). The
    appellants have always complained that the language proficiency requirement is
    discriminatory and they have failed to provide an adequate explanation for why
    they could not, with reasonable diligence, have advanced the same argument that
    they sought to make before the application judge in the application before the
    Divisional Court.

[7]

The appellants argue that the Divisional Court did not deal with the
    question whether the language proficiency requirement was discriminatory
    contrary to the Ontario
Human Rights Code
, R.S.O 1990, c. H.19. We
    agree with the respondent that the determination by the Divisional Court that
    the language proficiency requirement was not discriminatory under the
Charter
also answered the threshold issue of discrimination under the
Code
. It
    was not open to the appellants to re-litigate what in substance was the same
    argument by giving it a different legal label.

(2)

Final decision

[8]

The order of the Divisional Court dismissing the previous application
    was a final order. The appellants did not seek leave to appeal that order.

(3)

Same parties

[9]

The two individual appellants were parties to the Divisional Court
    proceeding as was the Federation of Ontario Traditional Chinese Medicine
    Association. All corporate appellants, except Committee of Certified
    Acupuncturists of Ontario, share the same registered address and they all share
    many of the same directors and officers, including the two individual
    appellants. In the context of these proceedings, this constitutes a sufficient
    degree of identification among the parties to make it just to hold that the
    decision to which one was a party should be binding in the proceedings to which
    the other is a party:
Re EnerNorth Industries Inc.
, 2009 ONCA 536, 96
    O.R. (3d) 1, at para. 62. In any event, even if the same parties requirement
    for issue estoppel is not strictly met, permitting the appellants to
    re-litigate the issue that was determined by the Divisional Court would amount
    to an abuse of process: see
Toronto (City) v. C.U.P.E., Local 79
, 2003
    SCC 63, [2003] 3 S.C.R. 77, at para. 37.

(4)

Discretion

[10]

Finally,
    we are not persuaded that the application judge erred by failing to exercise
    his discretion to permit the appellants to avoid the doctrines of issue
    estoppel and abuse of process. The application judge thoroughly reviewed the
    evidence and submissions of the appellants and concluded that they were simply
    re-litigating the same case before him that they had advanced before the
    Divisional Court. We agree with that conclusion and while we understand the
    appellants frustration over the effect of the Registration Regulation, we see
    no basis for permitting them to re-litigate the issue whether that Regulation
    is discriminatory.

B.

Injunction and declaratory relief

[11]

The evidence before the application judge amply supported his
    findings that the College was entitled to declaratory and injunctive relief on
    the grounds that the corporate appellants falsely held themselves out as
    regulatory colleges, that the individual appellants had wrongly held themselves
    out as representatives of the regulator, that certain of the appellants had
    engaged in unauthorized practice, and that the individual appellants had
    engaged in the unauthorized use of the protected titles Doctor or
    traditional Chinese medicine practitioner,  all contrary to the
Regulated
    Health Professions Act
, 1991

and the
Traditional Chinese Medicine Act, 2006.

C.

Disposition

[12]

Accordingly,
    the appeal is dismissed with costs to the respondent fixed at $12,500,
    inclusive of disbursements and taxes.

Released: December 7, 2015

Robert J. Sharpe
    J.A.

E.A.
    Cronk J.A.

B.W.
    Miller J.A.


