A massage therapist will have a new hearing as a result of Discipline Committee’s errors in credibility assessment in sexual abuse complaint

Appeal from decision of Discipline Committee Panel of the College of Massage Therapists of Ontario on the basis of errors in credibility assessment in sexual abuse complaint.

Administrative law – College of Massage Therapists – Conduct unbecoming – Credibility – Decisions of administrative tribunals – Disciplinary proceedings – Evidence – Judicial Review – Massage Therapists – Professional governance and discipline – Professional misconduct – Reasonableness simpliciter – Standard of Review

Stefanov v. College of Massage Therapists of Ontario, [2016] O.J. No. 731, 2016 ONSC 848, Ontario Superior Court of Justice, February 10, 2016, C.D. Aitken, K.E. Swinton and C.J. Horkins JJ.

The appellant, a registered massage therapist, was found guilty of professional misconduct and sexual abuse.

The Discipline Committee Panel of the College of Massage Therapists of Ontario (the “Panel”) found the appellant breached standards of practice of the profession, engaged in sexual abuse of a patient, and engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

The Panel ordered the appellant’s certificate of registration be suspended for a period of 12 months, the appellant be required to enrol in and complete the College’s ProBE course, issuance of a public and recorded reprimand, costs to the College, and payment of $2,500 for security for funding of counselling for the complainant.

On appeal to the Divisional Court, the court found the Panel’s reasons were so flawed that the Panel produced an unreasonable result.

The court found that to support a finding of professional misconduct, the balance of probabilities requires that proof be clear and convincing and based upon cogent evidence. The Panel was required to act with care and caution in assessing and weighing all the evidence. In doing so, the Panel was required to ensure that the evidence was of such a quality and quantity to justify a finding of sexual abuse.

The Panel’s decision turned on its assessment of credibility. The court characterized this as a “classic credibility case.” The appellant consistently denied the complainant’s allegations of sexual abuse. The allegations either happened or they did not. The Panel had to be persuaded on a balance of probabilities the wrongdoing alleged by the complainant actually occurred.

The Panel found the complainant was “very credible” and the appellant was not. The court found the Panel’s pathway to this conclusion was incomplete, not transparent, and unintelligible. The Panel’s reasons indicated their credibility assessment of the complainant was flawed and incomplete. In particular:

1. The Panel gave sparse consideration to the complainant’s inability to recall details and no consideration to the inconsistencies in her evidence. For example, the Panel found the complainant was “very credible” with respect to when her buttocks were exposed during the massage; however, the Panel failed to consider inconsistencies in the complainant’s evidence regarding this issue, and the complainant’s inability to recall which version of events was correct. The Panel’s reasons did not reflect any consideration of the inability of the complainant to recall many details of the massage.

2. Having rejected two significant allegations – that the appellant exposed the complainant’s bikini and vulva areas and that the appellant looked under the sheet at the complainant’s genitalia – the Panel did not consider the relevance of having rejected these significant allegations in their credibility assessment. For example, the Panel did not accept the complainant’s evidence regarding her bikini area and part of the vulva being exposed when the appellant massaged her inner thighs, but did not consider whether their rejection of the complainant’s evidence in this area impacted the reliability of the rest of her evidence which the Panel chose to accept. The Panel concluded the appellant did not commit allegations he looked under the sheet at the complainant’s genitalia; however, having found the complainant was mistaken with respect to what she thought happened, the Panel never considered the possibility she could be mistaken about any other allegations. The court characterized this as an essential element of a credibility assessment.

3. The Panel gave minimal consideration to the appellant’s evidence and unfairly characterized and scrutinized his evidence that they did acknowledge. For example, the Panel found the appellant’s testimony to be extremely detailed for an event that took place several years prior to the hearing, and found that degree of detail to be questionable. On that basis, it found the complainant’s less detailed version of events to be more credible. This reasoning for preferring the complainant’s evidence was illogical. Further, the Panel found the complainant was “very credible” because, due to her education in psychology, the Panel could not conceive of what motive she would have for making up her allegations.

The court found the Panel’s conclusory reasoning informed their entire analysis. It concluded the Panel reached its decision through faulty reasoning. Given the numerous flaws in the Panel’s approach to assessing credibility, the Panel’s conclusion did not meet the justification, transparency and intelligibility standard. The decision was unreasonable.

The court allowed the appeal and remitted the matter for a new hearing before a differently constituted panel.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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