June 22, 1999

To:Planning and Transportation Committee

From:Commissioner, Urban Planning and Development Services

Subject:Amendments to By-law No. 20-85, the Licensing By-law: Massage Therapists

Purpose:

This report discusses the duplication of regulation of Massage Therapists (MT) in municipal licensing and provincial legislation and recommends the adoption of by-law amendments to repeal the specific schedules of the Licensing By-law applicable to MTs.

Funding Sources, Financial Implications and Impact Statement:

Repeal of the schedules applicable to MTs would not have a significant impact on the budget of the Municipal Licensing and Standards Division (MLS). The amendment would mean a drop in annual licensing revenue of $5,500.00. Staff and resources currently allocated to licensing MTs will be redeployed to work with the College of Massage Therapists and enforce the licensing regulations governing body rub and holistic services.

Recommendations:

It is recommended that:

(1)the licence requirements and schedules of the Licensing By-Law, By-law No. 20-85, relating to massage therapists and massage parlours be repealed;

(2)Staff continue to enforce the by-law schedules regulating body rub and holistic services, and work with the College of Massage Therapists to ensure compliance with relevant Toronto by-laws;

(3)Staff report back within one year on the impact of the changes recommended above; and,

(4)The appropriate City officials be authorized and directed to take the necessary action to give effect thereto.

Council Reference/Background/History:

This report discusses the impact of removing the requirement that MTs obtain a municipal licence. Under this proposal a full regulatory scheme for non-therapeutic massage services will remain intact. The municipal regulations for non-therapeutic massage services addressed in the body rub and holistic services schedule will continue unchanged, as these are distinct from the municipal regulations for MTs. The intention of this proposed revision is to address a long-standing issue: how to properly recognize and regulate providers of massage therapy, non-therapeutic massage and other services that involve touch.

Provincial legislation recognizes the professional status of MTs. MTs are subject to the same extensive legislation as many other health professionals. As described in the attached letter from the solicitor representing the College of Massage Therapists, it is the position of the College of Massage Therapists that the field of regulation of massage therapy is fully occupied by the provincial legislature by the provisions of The Massage Therapy Act S.O. 1991 c. 27 and The Regulated Health Professions Act S.O 1991 c. 18, thus Council lacks the authority to regulate massage therapists under its general authority to pass by-laws for the licensing, regulating and governing of businesses. The College of Massage Therapists has indicated that, failing other action by Council, the College will consider pursuing a legal challenge to the validity of the licensing regulations applied to MTs. The City Solicitor has previously provided legal advice to the former Toronto Licensing Commission consistent with the position taken by the College of Massage Therapists.

Comments and/or Discussion and/or Justification:

The requirements that MTs obtain a City of Toronto licence and must work in a licensed "massage parlour" were established years before the introduction of current comprehensive provincial legislation regulating MTs. Now, much of the City's licensing requirements duplicate provincial regulations. If Council approves the repeal of the licensing requirements for MTs, MTs would continue to be subject to comprehensive provincial regulation. Staff would continue to enforce the regulations for body rub and holistic services which will remain, and work with the College of Massage Therapists to ensure all practitioners comply with relevant Toronto by-laws.

Current Regulations Applying to Massage Therapists under By-law No. 20-85, as amended

By subsection 2(26) of the General Provisions of By-law No. 20-85 of the former Municipality of Metropolitan Toronto, "every massagist and every person who owns and operates a massage parlour" requires a City of Toronto licence. "Massagist" is defined in subsection 1(27) of the by-law as "a person who, in pursuance of a trade, calling, business or occupation, performs massages in a massage parlour".

Although "Massage Parlour" is not specifically defined in the by-law, section 2 of Schedule 17 to the by-law requires that owners of massage parlours only employ persons licensed under the by-law as "massagists". Since section 7 of Schedule 17 requires all "massagists" to be registered as massagists under the laws of the Province of Ontario, a massage parlour may be described as a premises on which only persons registered under the Massage Therapy Act may perform services.

Specific regulations pertaining to massage parlours are contained in Schedule 17 to the by-law, a copy of which is attached as Appendix "A". Other than the requirement for a licence from the City,By-law No. 20-85 and Schedule 17 do not contain any standards or qualifications for massage therapists which are not already contained in the Massage Therapy Act and the Regulated Health Professions Act, described in more detail below. In fact, section 7 of Schedule 17 recognizes these statutes by requiring that "all massagists shall, before carrying on business as a massagist, produce to the Commission evidence that they are duly qualified, licensed or registered as a massagist under the laws of the Province of Ontario."

Provincial Regulation of Massage Therapy

Provincial regulation recognizes MTs as health professionals and regulates them accordingly. They are one of the twenty one "self governing health professions" regulated by the Regulated Health Professions Act. Other "self governing health professions" include doctors, dentists, opticians, midwives and physiotherapists. Under this Act the regulations recognize massage therapists by defining their "scope of practice" as: "the assessment of the soft tissue and joints of the body and the treatment and prevention of physical dysfunction and pain of the soft tissues and joints by manipulation to develop, maintain, rehabilitate or augment physical function, or relieve pain."

Massage therapists are governed by the Massage Therapy Act, most of which came into force on December 31, 1993. In 1998, a final piece of regulation, the quality assurance programme requirement, became law. The College of Massage Therapists of Ontario in accordance with the Massage Therapy Act and the Regulated Health Professions Act is the self-governing body that administers this legislation. The College ensures MTs comply with the complete code of regulation for massage therapists which includes standards of practice. The College investigates and adjudicates complaints, disciplines members, and administers a quality assurance programme which audits practices and physical premises of each MT in a five year cycle.

While these regulations do not specifically regulate the premises at which the massage treatment is provided, they substantially duplicate the provisions of Schedule 17 to the by-law pertaining to massage parlours. The College of Massage Therapists maintains a directory of all registered members, including the address of the place of business. Massage therapists are required to keep for ten years detailed financial records, and health records for each person receiving massage therapy.

Regulation of Massage Performed by Persons Not Registered as Massage Therapists

Although the College of Massage Therapy has no authority over persons who perform massages which do not fall within the above scope of practice, under By-law No. 20-85, where a massage is performed by a person other than a massage therapist, such person is required to be licensed by the City of Toronto as a body-rubber or holistic practitioner and the premises on which such services are offered is required to be licensed as a body-rub parlour or holistic services centre.

Where enforcement staff reasonably believe that the business of a body-rub parlour is being carried on at a premises, staff may investigate and inspect such premises and, where there are grounds to do so, lay charges under the By-law in respect of the carrying on of the business of the body-rub parlour. The proposed amendments do not diminish the present authority of enforcement staff to investigate and inspect body-rub parlours or holistic services centre.

College of Massage Therapists

On May 7, 1999, staff of MLS and a member of Legal Services Division met with the Registrar and the Assistant Registrar of the College of Massage Therapists and their legal representative to discuss the current provincial and municipal regulation of massage therapy and to develop joint compliance activities. Staff from the MLS and College of Massage Therapists agreed that it is in the interest of both to work together to ensure all practitioners comply with the relevant regulations.

The College will use all the tools at their disposal to recognize legitimate MTs as such. MLS will work with the College to verify the licence status of clinics and MTs. The College will provide publicly available material resulting from any disciplinary hearings and will take action against anyone falsely advertising as an MT. In addition, the College will provide its directory of members on diskette. All these activities will support the enforcement of the provisions of By-Law No. 20-85, as amended, pertaining to body rub parlours and holistic centres.

Since that meeting, the College has provided a copy of the following documents pertaining to the College of Massage Therapy:

Code of Ethics and Standards of Practice,

A Guide to the Quality Assurance Program;

A Guide to the Health Care Consent Act and the Substitute Decisions Act

Publications respecting guidelines for professional behaviour regarding prevention of sexual abuse of clients of massage therapy;

1999 Examination Candidate's Handbook;

Brochure on the complaints process;

Annual Report 1997;

Information pamphlets for use by members of the public; and,

the 1998 Directory of Massage Therapists.

Conclusions:

The City Solicitor has been consulted in the preparation of this report.

The regulation of massage therapists under the Massage Therapy Act, in conjunction with the regulation of body rubbers and body rub parlours and holistic services under By-Law No. 20-85, as amended, provides a complete regulatory scheme governing the conduct of the business of both therapeutic and non-therapeutic massage.

Where a massage is performed by a massage therapist, the services provided to members of the public are regulated as the massage therapist is governed by the Massage Therapy Act. Where a massage or body rub is performed by a person who is not a massage therapist, services provided to members of the public are regulated by the provisions of By-law No. 20-85 pertaining to body-rubbers or holistic services. The proposed amendments do not diminish the authority of licensing enforcement staff to investigate services provided by persons who are not massage therapists, to inspect body-rub parlours and holistic centres and to lay charges under the By-law, where necessary.

Contact Name:

Harold Bratten, Director

Municipal Licensing and Standards

112 Elizabeth Street

392-8768

Reviewed by:

James RidgeVIRGINIA M. WEST

Executive DirectorCommissioner

Municipal Licensing and StandardsUrban Planning and Development Services

SCHEDULE 17 TO BY-LAW No. 20-85

Relating to Massage Parlours

1.Every applicant for a licence as a massagist shall submit with his application two photographs of himself, one of which photographs shall be attached to the licence and the other shall be filed with the Commission, and upon application for renewal of any licence, the applicant shall furnish new photographs if required so to do by the Commission.

2.No person owning or operating a massage parlour shall employ any person other than a massagist licensed under the provisions of this By-law to act as a massagist in such establishment.

3.Every owner or operator of a massage parlour shall, during the term of employment of any massagist, retain such massagist's licence in his possession.

4.Whenever any owner or operator of a massage parlour employs a massagist, he or she shall, within forty-eight hours thereafter, notify the Commission that he or she has employed such massagist, and when any massagist leaves such employment, such person shall within forty-eight hours thereafter, notify the Commission to such effect, giving reasons therefor.

5.The owner or operator of every massage parlour shall keep a record of all persons receiving massage treatment at his establishment, and such record shall give the date, name and address of each such person and the name of the licensed massagist giving such treatment and such record shall be open to inspection by the Commission or any person authorized by it.

6.Every massagist shall include or have included his name and business address in every advertisement of his massage business.

7.All massagists shall, before carrying on business as such, produce to the Commission evidence that they are duly qualified, licensed or registered as a massagist under the law of the Province of Ontario. AMENDED BY BY-LAW 99-96