Article January 12, 1907 Issue

[The Toronto Globe, in its Dec. 7 issue, says editorially,...

The Toronto (Ont.) Globe

[The Toronto Globe, in its Dec. 7 issue, says editorially, "The Court of Appeal by a non-committal verdict has properly refused to decide whether or not osteopaths and similar practitioners have a right to charge for their services. It is the duty of the Government to decide this matter, and if the law is uncertian it should be made clear and definite." The text of the question referred to the Court of Appeal, the answer of the Court, and the judgment of Chief Justice Moss, follows.]

"Re Ontario Medical Act.—Judgment (L.) upon a question referred to the Court of Appeal as to the construction of sec. 49 of the Ontario Medical Act. Ought it to be held upon the true interpretation of sec. 49 of R.S.O., 1897, ch. 176, that a person not registered under that Act, undertaking or attempting for reward to cure or alleviate disease, does not practise medicine within the meaning of that section, merely because the remedy advised, prescribed, or administered by him does not involve the use of or application of any drug or other substance which has or is supposed to have the property of curing or alleviating disease; that is to say, do the words 'to practise medicine' in that section mean to attempt to cure or alleviate disease by the use of drugs, etc., or do they include cases in which the remedy or treatment advised, prescribed, or administered does not involve the use of drugs or other substances which have or are supposed to have the property of curing or alleviating disease. The answer of the Court is, that each case must depend or be determined on its own circumstances; but, dependent upon the facts in each case, there may be a practising of medicine which does not involve the use of drugs or other substances having or supposed to have the property of curing or alleviating disease.

"Per Moss, C.J.O.:—The question asked is within the scope of the authority to refer conferred by the Act, and it is within the competency of the Court under R.S.O., 1897, ch. 84, to make answer to it. In considering the question regard must be had to the decided cases bearing upon it. Having regard to the way in which the second part of the question interprets the first part, we are asked to put a legal interpretation on the words 'to practise medicine' in sec. 49 of the Ontario Medical Act, which interpretation is to be applied to every possible kind of case that may arise. We are asked to say whether their meaning is to be confined to treatment of illness or disease, or whether their meaning extends to include treatment which does not involve the use of drugs or similar therapeutic agents. The generality of the question prevents a categorical answer. It would not be possible, even by attempting a process of exclusion, to cover all cases that might arise. It is possible to say, because it has been so decided by a Court of competent jurisdiction, that the defendant in Regina v. Stewart, 17 O.R. 4, in doing what he did in that instance was not practising medicine. But unless there is a concrete case with the facts proved or known, how is it possible to say whether or not the words of sec. 49 are applicable? If the answer given was that if it were shown that a person not registered under the Ontario Medical Act attempted to cure or alleviate disease by methods and courses of treatment known to medical science and adopted and used in their practice by medical practitioners registered under the Act, or advised or prescribed treatment for disease or illness such as would be advised or prescribed by the registered practitioner, then, although what was done, prescribed, or administered did not involve the use or application of any drug or other substance having or supposed to have the property of curing or alleviating disease, he might be held to be practising medicine within the meaning of sec. 49, it would still leave the matter to be dealt with in a concrete case, in which the ultimate decision must turn upon the facts found. Yet this is the only way in which the question is capable of being answered without endeavoring by some process of exclusion to imagine and provide for all possible cases. Reference to re Lord's Day Act, I O.W.R. 316 (1903), A.C. at p. 529. The question does not admit of an unqualified affirmative or negative answer, and no other answer can be framed to meet all the possible cases and facts that might occur. W. Nesbitt, K.C., and H. S. Osler, K.C., for the Medical Council of Ontario. S. H. Blake, K.C., and J. E. Day for the osteopaths. H. Cassels, K.C., and R. S. Cassels for First Church of Christ, Scientist. W. M. Hall for Second Church of Christ, Scientist."

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