Naturopathic doctor alleged to have sold fecal materials denied leave by BC Court of Appeal

The BC Court of Appeal has denied leave to appeal for naturopathic doctor allegedly involved in manufacturing fecal microbiota transplant materials for export to Mexico.

In Klop v. College of Naturopathic Physicians of British Columbia, 2023 BCCA 125, Dr. Jason Klop is a registrant of the College of Naturopathic Physicians of British Columbia. He allegedly manufactured and exported fecal microbiota transplant (FMT) materials to Mexico for us in treating children with autism. The College initiated an investigation of Dr. Klop’s conduct for potential contraventions of Health Canada policy and the College’s code of conduct and bylaws.

Dr. Klop advised the College that he was taking steps to separate his involvement with FMT from his practice, but subsequent investigations suggested that he did not do so. Dr. Klop’s former laboratory employees also submitted a complaint to the College, alleging that Dr. Klop employed the FMT manufacturing process in his laboratory. Accordingly, a panel of the College’s inquiry committee initiated a second investigation and made an interim order prohibiting Dr. Klop from producing, manufacturing, and selling FMT materials.

Dr. Klop brought the matter to court, seeking to quash the panel’s interim order, but the chambers judge dismissed his petition. Dr. Klop elevated the case to the BC Court of Appeal, arguing that the court should grant him leave as his appeal will be significant to the practitioners in law and medicine.

The Court disagreed with Dr. Klop’s submissions, finding that his proposed appeal was misguided because it attacked the chambers judge’s reasons rather than her order. The court emphasized that an appeal from the chambers judge’s order “will turn not on whether she erred, but rather on whether the panel did.”

The court found no suggestion that the panel misstated, misunderstood or misapplied the applicable legal test under the Health Professions Act. Further, the court found that the judge had applied the test correctly.

Dr. Klop also argued that the judge made an error in finding that expert evidence is never required to establish a real risk to the public, but the court found that the judge and the panel never made such a ruling. Dr. Klop said the judge made an error by finding facts and making inferences that were not reasonably supported by the record, including finding that the FMT guidance provided a sufficient basis to infer a real risk of harm to the public. The court pointed out that Dr. Klop raised questions that do not require answers in the circumstances of the case.

The court further said that the panel was entitled to engage in a limited weighing of the material put before it and to discount evidence inconsistent with objective or undisputed evidence or manifestly unreliable. The panel was also entitled to consider evidence establishing that the allegations were “manifestly unfounded or manifestly exaggerated.”

The court found that the material before the panel did not establish that the allegations against Dr. Klop were “manifestly unfounded or manifestly exaggerated.” The court further emphasized that merit is a relatively low bar on a leave to appeal application. Dr. Klop’s grounds of appeal failed to show sufficient merit to meet the relatively low merit threshold.