Tennant v. South Point Natural Therapies Ltd. Date:, 2017 BCPC 157

Citation: Tennant v. South Point Natural Therapies Ltd. Date: 20170428 2017 BCPC 157 File No: S76942 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: SHARLENE TENNANT CLAIMANT AND: SOUTH POINT NATURAL THERAPIES LTD. SARGE SANDHU AND SAM SAMRAI DEFENDANTS REASONS FOR JUDGMENT OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE R.N. HAMILTON Appearing in person: S. Tennant Appearing for the Defendants: S. Sandhu and S. Samrai Place of Hearing: Surrey , B.C. Dates of Hearing: September 1 and 2, 2016; October 26, 2016; March 28, 2017 Date of Judgment: April 28, 2017

INTRODUCTION [ 1 ] Sharlene Tennant paid the defendants $544.70 for medical treatment back in November and December, 2012. She paid that money to the defendants thinking she was receiving medical treatment from doctors. [ 2 ] The defendants Sarge Sandhu and Sam Samrai are unlicensed and unregulated medicine practitioners who call themselves doctors when they are not doctors. [ 3 ] Ms. Tennant wants her money back because she says she was misled into thinking she was receiving medical treatment from doctors when she was not. The defendants say that at no time did they mislead Ms.

Tennant into thinking they were Naturopathic doctors, rather they say that at all times they held themselves out as “doctors of natural medicine.” I am of the view that the vast majority of the public would have no idea what the difference is between these two kinds of “doctors”. [ 4 ] While the defendants Sandhu and Samrai freely and openly acknowledge that they call themselves doctors in circumstances where they are not doctors they say that they have the blessing of the Examining Board of Natural Medicine Practitioners (the “EBNMP”) to mislead the public into believing that they are doctors.

There was no admissible evidence led in this trial to establish this alleged blessing by the EBNMP to mislead the public. [ 5 ] If a member of the public learned about this practice of natural medicine and thought that the EBNMP was some kind of authoritative body overseeing the medical practitioners who pay to use the EBNMP trademarks, that member of the public would be mistaken.

The defendants Sandhu and Samrai do not represent themselves to the public in accordance with the advertising parameters laid down by the EBNMP, and they do so with impunity. [ 6 ] While this case is about a relatively small amount of money, the underlying conflict and the allegations of misrepresentation within the medical field that lie at the heart of this case have fuelled a prolonged and hotly contested dispute between these parties. [ 7 ] As I have indicated, Ms. Tennant seeks the return of her money she paid for medical treatment by the defendants.

She also claims for punitive and aggravated damages against the defendants. All of the defendants deny any liability to the claimant for the return of her money, and the defendant Samrai advances a counterclaim against Ms. Tennant for alleged harassment and defamation. For the reasons that follow I find that the claimant has established her claim against the defendants and the defendant Samrai has failed to establish her counterclaim. BACKGROUND [ 8 ] In 2012, Ms. Tennant went to her doctor to seek some medical treatment for chronic neck pain she had been suffering from for many years.

Her General Practitioner gave Ms. Tennant a referral to a Naturopathic doctor, Timothy Brown, and suggested she seek some injection therapy from Dr. Brown. [ 9 ] On July 27, 2012, Ms. Tennant had an appointment with Dr. Brown at Ocean Park Natural Therapies, but she did not like his manner with her so she sought a second referral from her General Practitioner who then referred her to South Point Natural Therapies (“South Point”) and in particular referred her to Sarge Sandhu. [ 10 ] On October 11, 2012, Ms. Tennant attended at South Point for her appointment with Mr. Sandhu.

While she was at South Point that day she filled out some patient information paperwork while waiting to see Mr. Sandhu. [ 11 ] The claimant’s evidence and the defendants’ evidence differ in some respects as to what happened on October 11, 2012. What is clear is that Ms. Tennant did not receive any treatment from Mr. Sandhu or Ms. Samrai that day. According to Ms. Tennant, she waited an inordinate amount of time for Mr. Sandhu to see her. South Point’s manager, Ms. Micu, gave Ms. Tennant a voucher for a free coffee from a café across the street and Ms. Tennant went and waited at the café for Mr. Sandhu.

Ultimately Ms. Tennant could not wait any longer and left South Point. She rescheduled her appointment with Mr. Sandhu and saw him for the first time on November 26, 2012. [ 12 ] Ms. Tennant had three further appointments at South Point during which she received some laser treatment from Ms. Samrai, and Mr. Sandhu performed some work or treatment on Ms. Tennant’s muscles. Ms. Tennant’s appointments at South Point occurred on November 26 and December 3, 10, and 17, 2012. A significant dispute in the evidence is whether, during her appointment with Mr. Sandhu on December 17, 2012, Mr. Sandhu gave Ms.

Tennant an injection of some kind to treat Ms. Tennant’s neck pain. I will return to the “injection dispute” later in this decision. [ 13 ] In late December 2012 or early January 2013, Ms. Tennant submitted the receipts for her treatment at South Point to Pacific Blue Cross (“Blue Cross”), her extended health benefits insurer. Blue Cross rejected her claim for the treatment she received from Mr. Sandhu and Ms. Samrai. [ 14 ] When Ms. Tennant enquired with Blue Cross as to why her treatment expenses were not covered, she learned that Mr. Sandhu and Ms.

Samrai were unlicensed and unregulated medicine practitioners in British Columbia, and their treatment was not covered by Blue Cross. This news came as a shock to Ms. Tennant and she contacted South Point to enquire into obtaining a refund of her treatment expenses. South Point’s manager, Ms. Micu, refused to refund Ms. Tennant her money and this dispute began in earnest. [ 15 ] The foregoing is a very basic

summary of the protracted evidence tendered in this trial. There were a myriad of issues that all parties insisted were important to their cases. With respect, I disagree. While I agree that a few of the issues the parties addressed in their evidence are important to this case, the balance of the issues were all red-herrings. I will discuss the relevant issues below and only briefly address the issues that I find are not relevant to the claims advanced in this case.

DISCUSSION AND ANALYSIS A.

Summary of Ms. Tennant’s Claim [ 16 ] Ms. Tennant’s claim is based upon the assertion that she was misled by the defendants into thinking that Mr. Sandhu and Ms. Samrai were doctors and agreed to be treated by them on that basis. She says that had she known from the outset that Mr. Sandhu and Ms. Samrai were not doctors, she never would have agreed to undergo treatment by them. Ms. Tennant also says that had she known the difference between Naturopathic doctors and “doctors of natural medicine”, she would not have pursued treatment from Mr. Sandhu and Ms. Samrai. [ 17 ] Ms.

Tennant also says that had she known that, in fact, there is no such thing as a “doctor of natural medicine”, and that Mr. Sandhu and Ms. Samrai pay a relatively insignificant annual fee to the EBNMP for the right to utilize the trademarked title of “Doctorate of Natural Medicine®”, she most definitely would have taken her medical treatment needs elsewhere. [ 18 ] In the end, Ms. Tennant asserts that she was duped by Mr. Sandhu and Ms.

Samrai, and that she should have her money back, regardless of the fact that she received treatment from them and that some of her money covered the cost of certain supplements which she used. B.

Summary of the Defendants’ Defences and Ms. Samrai’s Counterclaim [ 19 ] The defendants’ defend Ms. Tennant’s claim on the basis that they never held themselves out as Naturopathic doctors, that they clearly warned Ms. Tennant that their services were not covered by most extended health benefit insurers, and that Ms. Tennant signed documents that include warnings as to the lack of insurance coverage for their services and a disclaimer that states they are not Naturopathic doctors. [ 20 ] The defendants assert that despite all of the warnings they gave to Ms.

Tennant, she insisted she would have insurance coverage and she went ahead with treatment at South Point. The defendants say that when Ms. Tennant discovered that the expenses for her treatment at South Point were not covered by Blue Cross, she feigned ignorance and started this law suit. [ 21 ] Ms. Samrai advances a counterclaim in which she asserts that Ms. Tennant was so doggedly determined to be reimbursed by South Point that she repeatedly called South Point and harassed staff at the clinic causing undue stress to the employees. Ms. Samrai also alleges that on one occasion Ms. Tennant pushed her way past Ms.

Micu in an effort to deliver some documents to Mr. Sandhu, and in the process, one of Ms. Samrai’s children was knocked over and injured. Ms. Samrai or someone at South Point called the police, but no charges were laid against Ms. Tennant. [ 22 ] Ms. Samrai’s counterclaim also includes a claim for damages for defamation, and she advances a claim for aggravated and punitive damages from Ms. Tennant. C. Credibility of the Parties and Ms. Micu [ 23 ] I want to make some general comments about the credibility of the parties and Ms. Micu, South Point’s office manager. [ 24 ] I find Ms. Tennant to be highly credible.

She was careful in her evidence to be accurate, and she was measured in her handling of this case. She was not given to argument. She answered the questions she was asked in a straight-forward and forthright manner. In short, she was impressive. [ 25 ] In contrast to the claimant, Mr. Sandhu was argumentative, especially when answering the claimant’s questions. Mr. Sandhu often would not answer the question he was asked or he went well beyond what he was asked in the question. He was defensive and evasive at times during his evidence.

I find that on the key areas of the dispute in this case he was not credible. [ 26 ] Many of my findings relating to Mr. Sandhu’s credibility apply equally to Ms. Samrai and Ms. Micu. A dominant feature of their evidence was an unwavering insistence that at the very beginning of the relationship between Ms. Tennant and South Point, Ms. Tennant was told, not once, but repeatedly, that Mr. Sandhu’s and Ms. Samrai’s treatments would not be covered by Ms. Tennant’s extended health benefits insurer. Ms. Samrai and Ms. Micu both said that after clearly telling Ms.

Tennant that their services would not be covered by health insurance, they were baffled that she nonetheless made appointments and came to see Mr. Sandhu and Ms. Samrai. [ 27 ] The difficulty that I have with Ms. Samrai’s and Ms. Micu’s evidence on this issue of the lack of insurance coverage is that their evidence is in direct conflict with the paperwork they had Ms. Tennant complete prior to starting her treatment at South Point. [ 28 ] On October 11, 2012, Ms. Tennant completed a Confidential Patient Health Record.

A considerable amount of time was spent during the defendant’s evidence over a statement on this document that says, “Please note that some Extended Medical Plans do not cover treatments by Doctors of Natural Medicine (DNM).” [ 29 ] On another document completed by Ms. Tennant on October 11, 2012 - South Point’s “Explanation of Fees”- the document starts off with the following: Dear Patient, The Services of Doctor of Natural Medicine are covered by many extended health care providers, but are currently not covered under the Medical Services Plan. [ 30 ] Further down this Explanation of Fees is the following: 7.

Visits and testing are often not covered under extended health insurance plans, however some plans may cover and you can be reimbursed accordingly. We would strongly advise you to check your extended plan.

[ 31 ] Despite the content of these two documents which quite clearly states that there may be insurance coverage for the services of Mr. Sandhu and Ms. Samrai, both Ms. Samrai and Ms. Micu were adamant in their evidence that they told Ms. Tennant that her visits would not be covered by Ms. Tennant’s extended health benefit insurer. When pressed as to why they would say this to Ms. Tennant when quite clearly their documents state coverage may be available, both Ms. Samrai and Ms.

Micu stated that they tell clients at the beginning that there will be no insurance coverage at all and then tell the clients to nonetheless check with their insurance provider to see if there is coverage. This evidence makes no sense and is inconsistent and irreconcilable with South Point’s paperwork. [ 32 ] I prefer Ms. Tennant’s evidence on this issue.

She testified that she noted the information concerning the possibility that there would be no insurance coverage, but she was not concerned about that because Blue Cross provided extensive extended health benefits, and she was confident the fees for her treatment at South Point would be covered. Interestingly, during her evidence Ms. Micu was asked if she could name any extended health benefit insurer who covered the fees charged by South Point and the only insurer she could name was Blue Cross. [ 33 ] I find that Ms. Samrai and Ms. Micu did not tell Ms.

Tennant that there was no possibility that the fees charged by South Point would be covered by Ms. Tennant’s extended health benefit insurer. Had Ms. Micu enquired of Ms. Tennant as to which benefit insurer provided her coverage and learned that the insurer was Blue Cross, then based upon Ms. Micu’s experience, she would have told Ms. Tennant that there was some prospect that the fees would be covered. If Ms. Micu did not enquire of Ms. Tennant as to her benefit insurer, then there would be no basis upon which Ms. Micu or Ms. Samrai could confidently state that Ms.

Tennant had no insurance coverage. [ 34 ] Accordingly I reject the evidence of both Ms. Samrai and Ms. Micu on this issue of what they told Ms. Tennant about the prospect, or lack thereof, that she would have extended health benefit coverage for the fees charged by South Point. [ 35 ] Overall, where the evidence of Ms. Tennant and the defendants is in conflict, I prefer Ms. Tennant’s evidence. D. Did the Defendants Mislead the Claimant ? [ 36 ] This is the only issue that I need to determine to resolve Ms.

Tennant’s claims in this case. [ 37 ] In arriving at my conclusion on this issue it is important to keep firmly in mind this basic point. Mr. Sandhu and Ms. Samrai present themselves to the public as “Doctors of Natural Medicine.” There is no such thing as a doctor of natural medicine, or at least no recognized practitioner of natural medicine that has a sanctioned right to refer to him or herself as a doctor. [ 38 ] Ms. Tennant testified, and I find that when she sought treatment at South Point, she thought she was being treated by doctors. While I accept that Mr. Sandhu and Ms. Samrai were clear with Ms.

Tennant that they were not Naturopathic doctors, at no time did they inform Ms. Tennant that while they call themselves doctors of natural medicine, they are not, in fact, doctors. At no time did they tell Ms. Tennant that they improperly hold themselves out to the public as doctors because they pay an annual fee to the EBNMP for the right to call themselves by the trademarked name, “Doctorate of Natural Medicine®”, and that they sought and obtained approval from the EBNMP to further mislead the public by calling themselves “doctors” rather than “doctorates”. [ 39 ] I find that Mr. Sandhu and Ms.

Samrai did not inform Ms. Tennant as to the true state of affairs, because doing so would expose them as unlicensed and unregulated practitioners of medicine. I further find that most members of the public would be reluctant to hand over their medical treatment to a person who is not regulated, not licensed, and who calls himself a doctor only because he pays an annual fee to an organization that holds certain trademarks, and further, that this “doctor” calls himself a “doctor” in violation of the advertising rules laid down by that organization. [ 40 ] I find that had Ms.

Tennant been properly and fully informed as to who she was seeing for medical treatment of her neck pain, she would not have agreed to seek treatment from South Point. [ 41 ] The defendants and Ms. Micu testified that Mr. Sandhu and Ms. Samrai were referred to, verbally, as “practitioners” at South Point.

That may be the case, but without a fulsome and honest explanation as to their credentials to practice natural medicine, the basis upon which they advertise themselves as “doctors of natural medicine”, and the fact that they are unlicensed and unregulated practitioners, simply referring to themselves verbally as “practitioners” cannot undo the misleading nature of their business. [ 42 ] The final point I wish to make on this issue of whether the defendants misled Ms. Tennant is the remarkable similarity in the paperwork used by South Point when compared to the paperwork used by Dr.

Timothy Brown, the Naturopathic doctor Ms. Tennant went to see prior to her referral to Mr. Sandhu. [ 43 ] Both Dr. Brown and South Point use identical “Confidential Patient Health Records” which includes on page 2 a line for the doctor’s signature. Both Dr. Brown and South Point use identical patient invoices. Dr. Brown calls his business “Ocean Park Natural Therapies”, and Mr. Sandhu and Ms. Samrai call their business “South Point Natural Therapies”. [ 44 ] Dr. Brown refers to himself on his patient invoice as “Dr. Timothy Brown, N.D. D.C.” Mr.

Sandhu refers to himself on his patient invoice as “Sarge Sandhu, BA, DNM #547-807”. Mr. Sandhu’s use of the letters “DNM” after his name on his patient invoice and on his business cards is a further violation of the EBNMP advertising rules which Mr. Sandhu says he has been exempted from following. Ms. Samrai holds herself out to the public in terms identical to Mr. Sandhu. [ 45 ] The point is simply this, if Mr. Sandhu and Ms.

Samrai are genuinely trying to portray themselves as something materially different than naturopathic doctors, their paperwork and advertising fall far short of doing so. [ 46 ] Accordingly, for the foregoing reasons, I find that Mr. Sandhu, Ms. Samrai, and South Point misled Ms. Tennant into believing that she was receiving treatment from doctors when she was not. But for that misrepresentation, I find that Ms. Tennant would not have paid South Point for the medical treatment she received from Mr. Sandhu and Ms. Samrai. Since I find that Ms.

Tennant would never have sought medical treatment from South Point had she not been misled, I award her a full reimbursement of all of the fees she paid to

South Point inclusive of the cost of supplements and taxes, being $544.70. E. The Injection Dispute [ 47 ] Ms. Tennant testified that during her visit to South Point on December 17, 2012, Mr. Sandhu gave her an injection. [ 48 ] Mr. Sandhu testified that at no time did he give Ms. Tennant an injection. Mr. Sandhu testified that during his first meeting with Ms. Tennant, she told him that she was seeking an injection therapy that Mr. Sandhu was not able to provide. Ms. Tennant agrees that Mr. Sandhu told her that he could not provide her with the injection treatment she was seeking, but that Mr.

Sandhu told her that he used alternative medical treatments that could be just as effective as the injection therapy that Ms. Tennant was looking for. [ 49 ] For the reasons I have set out above under the heading “Credibility of the Parties and Ms. Micu”, I prefer the evidence of Ms. Tennant over that of Mr. Sandhu on this issue. Accordingly I find that Mr. Sandhu gave Ms. Tennant an injection on December 17, 2012. [ 50 ] As I have indicated, Ms. Tennant was careful in her evidence. She was thorough and organized. I do not accept that she is mistaken when she says that Mr.

Sandhu stuck a needle into her on December 17, 2012. It is difficult for me to accept that anyone could be mistaken about whether or not a medical practitioner stuck a needle in them during an office visit. Ms. Tennant’s evidence on this point is corroborated by the fact that South Point’s invoice for Ms. Tennant’s treatment on December 17, 2012 was for $148.00 which is significantly higher than the usual fee South Point charged clients for an office visit. [ 51 ] Mr. Sandhu testified that the additional charge for the December 17, 2012 visit was because he and Ms.

Tennant spent much more time talking on that visit than is ordinarily the case for a routine visit. But Ms. Micu was unable to explain the basis upon which she arrived at the charge on the invoice for the December 17, 2012 visit. On the South Point document “Explanation of Fees”, there is nothing that stipulates what the fee is for an extended visit. However, that same document clearly states that there are additional fees for services including injections. [ 52 ] The description on the invoice for the December 17, 2012 visit says, “Extended visit”. But as Ms. Tennant pointed out, the chart notes written by Mr.

Sandhu for the December 17, 2012 visit are remarkably short. So, if he and Ms. Tennant spent extra time talking about her medical condition, her complaints of pain, the improvement if any she was experiencing from Mr. Sandhu’s and Ms. Samrai’s treatment, or anything else related to their treatment of Ms. Tennant, Mr. Sandhu failed to make any detailed notes of what they discussed. [ 53 ] Accordingly, with no credible explanation as to why and on what basis Ms. Micu charged Ms. Tennant the extra fee for her visit on December 17, 2012, and Ms.

Tennant’s clear recollection of having been administered an injection by Mr. Sandhu on that visit, I find that Mr. Sandhu administered an injection to Ms. Tennant on December 17, 2012. F. Ms. Samrai’s Counterclaim [ 54 ] As I indicated at the outset of these reasons, Ms. Samrai advances a counterclaim in her Reply filed on December 12, 2014. In short, the claims against Ms. Tennant included in the counterclaim are for making false accusations, harassment, and defamation. [ 55 ] While I accept that the relationship between Ms. Tennant and the defendants became strained following Ms.

Tennant’s discovery that she had been duped by the defendants into thinking she was receiving medical treatment by doctors, I am not satisfied that any act of Ms. Tennant forms the basis for an actionable tort claim against her by Ms. Samrai. [ 56 ] First, the Provincial Court does not have jurisdiction to hear defamation claims. [ 57 ] Second, while the defendants and staff at South Point may have felt harassed by Ms. Tennant, there is nothing in the evidence before me upon which I could conclude that Ms. Tennant’s actions were objectively harassing.

And even if I could, there is no evidence before me upon which I could assess any damages for the alleged harassment. Ms. Samrai testified that on one occasion Ms. Tennant attended at South Point to deliver some documents, and while there, Ms. Tennant pushed past Ms. Micu and in doing so pushed over Ms. Samrai’s child. Apparently someone called the police to attend at South Point on this occasion but no charges were laid. [ 58 ] While I acknowledge that Mr. Sandhu and Ms. Samrai have little to no experience conducting a trial in a courtroom, the difficulty with this evidence from Ms.

Samrai is that the alleged pushing of Ms. Micu and the resulting injury to the child was not put to Ms. Tennant during her testimony. Regardless, it is not open to Ms. Samrai to advance tort claims on behalf of Ms. Micu or the South Point employees. And while it is open to Ms. Samrai to advance tort claims on behalf of her child, she did not include that claim in her counterclaim. But if she did, I would dismiss that claim on the basis that there is no evidence before me in this case to support a tort claim on behalf of Ms. Samrai’s child. [ 59 ] Third, the claim against Ms.

Tennant for making false accusations must be rejected. It is not clear to me what the legal basis for such a tort claim might be, but in any event, there is no evidence before me upon which I could conclude that Ms. Tennant made any false accusations. Indeed, the only evidence of false information in this case rests solely at the feet of the defendants who held out Mr. Sandhu and Ms. Samrai as doctors when they were not. [ 60 ] Accordingly, for those reasons, I dismiss Ms. Samrai’s counterclaim. G. Ms. Tennant’s Claim for Aggravated and Punitive Damages [ 61 ] Early during the course of this trial Ms.

Tennant attempted to adduce evidence of certain proceedings brought against the defendants by the College of Naturopathic Physicians. At the time, I declined to hear that evidence because I did not see its relevance to the claims advanced by Ms. Tennant. Ms. Tennant argued that the evidence was relevant to her claims for aggravated and punitive damages. I ruled that before we got to any claims for aggravated and punitive damages, I would have to assess Ms. Tennant’s claim for

the refund of her money based upon the allegations of having been misled by the defendants. [ 62 ] I made that ruling because I was concerned that expanding this case to include evidence about some kind of disciplinary proceedings taken against the defendants by the College of Naturopathic Physicians would prejudice the defendants in a manner that would exceed the probative value of the evidence. [ 63 ] I ruled at that time that once I reached a decision on Ms.

Tennant’s underlying claim for the return of her money from the defendants, I would then hear evidence as to whether the defendants were under investigation by the College of Naturopathic Physicians and whether that evidence supports an award of aggravated and/or punitive damages. [ 64 ] Having decided this case in Ms. Tennant’s favour, I am now prepared to hear the evidence that the parties wish to tender with respect to Ms. Tennant’s claim for these additional damages. [ 65 ] Accordingly, I order that the parties attend before the judicial case managers and

schedule one day before me to tender their evidence on this issue. CONCLUSION [ 66 ] For the foregoing reasons I make the following orders: 1. I award Ms. Tennant judgment against the defendants in the amount of $544.70 with pre-judgment interest calculated at the Registrar’s rates from December 17, 2012 until today’s date; 2. I dismiss Ms. Samrai’s counterclaim against Ms. Tennant; and 3. I order the parties to

schedule a one day continuation before me to hear their evidence with respect to Ms. Tennant’s claim for aggravated and punitive damages against the defendants. The Honourable Regional Administrative Judge R.N. Hamilton Provincial Court of British Columbia