The assessment and weighing of evidence in any legal proceeding be it civil or criminal is a vitally important aspect of the proceeding. The failure of any tribunal to weigh and assess the evidence of witnesses in a judicious manner is a well recognized error of law. A tribunal which is formally put on notice by independent counsel that it retains that a motion seeking a stay on the basis that delay has compromised both the credibility and reliability of evidence is a live issue - undertakes to consider the issue following a hearing of all of the evidence and fails to consider this issue in upholding the allegations has committed serious and fundamental legal error.
The Divisional Court recently dealt with the issue of an inferior tribunal's failure to properly assess and evaluate credibility and reliability of evidence in the context of an allegation of sexual abuse in the professional discipline setting involving a massage therapist. In a nutshell, their decision reveals that the tribunal's failure to properly assess and weigh the evidence is a fatal error. The finding of professional misconduct can not stand. It was not necessary to address penalty.
DIVISIONAL
COURT FILE NO.: 473/14
C.
HORKINS J.
[5] Lastly, Mr. Stefanov seeks
an order that the Penalty Order
be quashed or, in the
alternative, reduced
and an order for costs of this
appeal.
OVERVIEW OF THE EVIDENCE
Lower Legs in Prone
Position
[24] Mr. Stefanov then massaged DH's legs, one leg at
a time, including
her hamstrings,
calves, ankles
and feet. DH's evidence was
consistent with that of Mr. Stefanov.
Flipping to Supine Position
Upper Leg Massage While in Supine Position
Lower Leg Massage While
in Supine Position
[32] According to Mr. Stefanov, after completing both legs, he draped
the
legs and moved to the end of
the table
by DH's feet. He then folded the blanket and
sheet and rolled them to cover the legs to just
above the knees. He then
massaged from DH’s ankle
to knee several times. After completing this portion of the
massage, Mr. Stefanov
pulled the drape down to cover the legs and feet.
Upper Body
Massage
While in Supine
Position
[40] DH testified
that
at the end of the massage, Mr. Stefanov moved up to the head of
the table and
massaged her shoulders and neck. When he was doing that, DH
asked him to
work on her forearms.
"I said to
him that I had asked him to work on [my] forearms which he hadn't worked
on yet and he, he did. He worked on my forearms really briefly and then the massage was done".
After the Massage
THE
DECISION AND REASONS
[48] On May 8,
2014, the Panel released its “Decision and
Reasons” (“reasons”), finding
that Mr. Stefanov had contravened a standard of practice of the profession,
engaged in conduct that
would reasonably be regarded by
members as disgraceful, dishonourable or
unprofessional, and engaged in sexual abuse.
1. …
STANDARD OF REVIEW
ANALYSIS - THE DECISION
IS UNREASONABLE
[62] To support
a
finding of
professional misconduct, “the balance of probabilities
requires that proof be
‘clear and convincing and based upon cogent
evidence’” (F.H. v.
McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para.
31). This is particularly important
in this case
because sexual
abuse is one of the most
significant and serious
findings that the
Panel can make against a
member. Given the consequences of such a finding, the Panel is required to act with care and caution
in assessing and weighing all
the evidence. In doing so, the
Panel
must ensure that the evidence is of such a quality and
quantity to justify
a finding of sexual abuse
(Re Bernstein and College of Physicians and Surgeons
of Ontario (1977), 15 O.R. (2d) 447 (Div. Ct.), at pp. 486- 488).
1.
Undraping of Buttocks
[S]he was
very
clear that her buttocks
were exposed as she could tell when
a sheet was
on her skin and when it was
not.
DH’s thought process that ‘she shouldn’t be a prude as this
might be the norm
for someone trained in
Russia’ gave
further credibility.… DH had a regular history of
having
massage therapy, there had been
no incidents
in the past and she had
never met Mr. Stefanov until that day. The hearing was stressful and emotional for DH and, with her educational background
in psychology, the Panel could not conceive what motive DH would have for making this up. [Emphasis added.]
A. I think
that when I was laying
down I had a pretty
good sense of approximately where I was covered and
where I wasn’t, yes.
2.
Anterior Leg Drape
[79] This part of the massage occurred after DH turned over and was lying on her back.
DH testified that the anterior
leg
drape exposed her bikini area and part
of the vulva
while Mr. Stefanov massaged her
inner
thighs.
3.
Massage of inner thighs under the sheets
[86] When
the Panel refers to
the “reasons listed above”
for finding DH more credible, there
is nothing more in the reasons than the flawed consideration
of the evidence that I have already
described. Furthermore, the starting point for the Panel
was that DH was “very
credible”, in great measure because, due to her education in
psychology, the Panel could
not conceive of what motive she would have for making up her allegations. This conclusory reasoning informed their
entire analysis.
[93] Finally, the Panel
rejected Mr. Stefanov’s evidence because
“his was
more along the lines of what
he does in a massage
than what happened with
DH”. The transcript of Mr. Stefanov’s evidence reveals that he provided considerable evidence about
the events
on the day in question
and, when he spoke about what he typically does, the question often elicited this type of response.
4.
Inappropriate touching (sexual abuse)
(a)
Massaging the exposed buttocks and touching the
gluteal cleft and labia
(b)
Touching the labia and vulva when massaging the anterior legs under sheets
[99] The Panel had already found that Mr. Stefanov massaged DH under the sheets. They went
on to accept that he
touched her labia
and vulva. Their
reasoning is conclusory
as follows: “Given that the Panel
has found that Mr.
Stefanov has already breached the standard of practice by massaging under the sheets,
the Panel concludes his behavior
continued”. The Panel does not explain why the behavior
would continue. Instead, since they find that Mr. Stefanov massaged
her under the sheets, they
conclude that he
must have touched DH’s labia and vulva. This is impermissible reasoning.
(c)
Looking under the sheets
at DH’s genitalia
Regarding the
issue of looking under the
sheets at
DH’s
genitalia,
the Panel concluded that DH
might have thought Mr.
Stefanov was looking under the sheets, given his position at the bottom
of the table and leaning forward,
but the likelihood that he could see under the sheets is unlikely. For these reasons, the
Panel
finds that Mr.
Stefanov did not
engage in this particular misconduct alleged.
CONCLUSION
Released: February
10, 2016
DIVISIONAL COURT FILE NO.: 473/14
DATE: 20160210
Released: February 10, 2016
The Divisional Court recently dealt with the issue of an inferior tribunal's failure to properly assess and evaluate credibility and reliability of evidence in the context of an allegation of sexual abuse in the professional discipline setting involving a massage therapist. In a nutshell, their decision reveals that the tribunal's failure to properly assess and weigh the evidence is a fatal error. The finding of professional misconduct can not stand. It was not necessary to address penalty.
CITATION: Stefanov
v. College of
Massage
Therapists of Ontario, 2016 ONSC 848
DIVISIONAL
COURT FILE NO.: 473/14
DATE: 20160210
BETWEEN:
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STEFAN STEFANOV
Appellant
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
Respondent
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Michael
B. Fraleigh and Martine Garland, for the Appellant
Jaan Lilles and Ian MacLeod, for the Respondent
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HEARD at Toronto: January 11, 2016
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C.
HORKINS J.
[1] The appellant,
Stefan Stefanov, appeals the decision of
the
Discipline Committee Panel
(the
"Panel") of the College
of Massage Therapists of Ontario (the “College”) dated May 8,
2014 (“decision”).
[2] The Panel found that Mr. Stefanov breached a
standard 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.
[3] Mr. Stefanov also appeals the Panel's penalty decision made on September 19,
2014. The Panel ordered, among other things, that Mr. Stefanov's certificate
of registration be suspended for a period of twelve months.
[4] Mr. Stefanov seeks
an order that the decision be set aside and a
declaration that he is not guilty of
professional misconduct and sexual abuse as
alleged. In the alternative, he seeks an order that the allegations of
professional misconduct and
sexual abuse against him be
remitted for a
new hearing before a differently constituted panel of the Discipline Committee.
[5] Lastly, Mr. Stefanov seeks
an order that the Penalty Order
be quashed or, in the
alternative, reduced
and an order for costs of this
appeal.
[6] For reasons that are set out below,
I conclude that
the
reasons of the Panel are so flawed that
the Panel produced an unreasonable
result. The appeal must therefore be
allowed and the matter
referred back for a new
hearing before a differently
constituted panel of the
Discipline Committee.
OVERVIEW OF THE EVIDENCE
[7] The events giving
rise to the decision occurred
on December 12, 2011. On that day, the respondent
DH attended at
Elmwood Spa
("Spa") for a
massage therapy treatment with Mr. Stefanov.
[8] Mr. Stefanov
has been registered with the College since September 2009
and
has continued to work at the Spa since May 2011. He received his degree in Kinesiology
and a Certificate
for Reflexology and Sports Massage from
the
National Sports
Academy in Sofia, Bulgaria.
He practiced in Bulgaria
for several years before moving
to
Canada and receiving his diploma from the
Wellspring College of Massage Therapy and Aesthetics in
2009.
[9] At the time
of the hearing, DH was a thirty-eight
year
old graduate student in clinical developmental psychology. DH has
two undergraduate Arts degrees,
one with a concentration
in theatre
and the other with
a concentration in psychology. Her evidence was that
she had received over one hundred massages in her lifetime.
[10] When DH arrived at the Spa on December 12,
2011, she completed a health history
form electronically on a computer in the reception area. DH then
went to the
ladies change room, where she met her friend, and they went to use the pool facilities. DH and her friend changed into robes
and sat
in
the waiting area for the
massage therapy to begin.
[11] Mr. Stefanov introduced himself to DH and then directed DH to the Turquoise Room
for her massage therapy treatment.
Mr. Stefanov reviewed and
discussed the health history with DH. DH specified that she had tension due
to stress and that she wanted him to work on
her forearms,
outer hips and
IT bands. DH wanted deep
tissue
massage in these
areas.
[12] Mr. Stefanov left
the room. DH then disrobed,
laid
face down on
the
massage table and covered herself with the
sheets on the table.
[13] Mr. Stefanov's evidence was that the
massage rooms at the Spa
were
set up with two sheets and one duvet blanket. DH could not
recall if there were one or
two
sheets or a duvet cover.
[14] Mr. Stefanov testified that
when he returned to the room, he performed the
massage of DH according
to
Spa protocol. While DH was lying face down (“prone
position”)
he massaged the upper body, including shoulders and back, followed by the legs. After DH turned over to lie
face up
(“supine position”),
he then
massaged the upper legs, lower
legs and then upper body.
Body Massage in Prone
Position
[15] Mr. Stefanov testified that he undraped the sheets from DH's back,
covering the lower part
of her
body from the
waist down. He then
massaged DH's shoulders, upper
back and neck.
[16] According to Mr. Stefanov, after he completed the massage
of DH's upper back
and shoulder area, he re-draped DH's lower back
to the posterior superior iliac spine ("PSIS") level
at the end of the lumbar curve,
and tucked the drape underneath the outside of
the hips so that the
border of the drape was at the
PSIS level. The positioning of the drape stayed at the same
level throughout the lower back massage and
always maintained
coverage of DH's buttocks.
[17] Mr. Stefanov testified that, during the massage, he asked
DH
whether she was
comfortable and
she
answered yes.
[18] DH's evidence about this portion of
the
massage is very different.
DH testified that
Mr. Stefanov exposed her buttocks
and massaged her buttocks with "one
hand going
counterclockwise and the other hand
going clockwise around my butt cheeks". DH went on
to testify that "at one point he asked me if I was
comfortable". DH
replied: “I
guessed it was okay".
[19] DH testified that she asked Mr. Stefanov
to
massage her outer hips and
IT band and that when he
massaged the outer
hip and IT band, "he
draped the buttock
cheek of the side
that he wasn't working on".
[20] DH testified that, at this point, Mr. Stefanov fully undraped
her buttocks again and
massaged her buttocks in a
circular motion. He circled around the outside of her
butt cheeks and,
as he came around the bottom of her buttocks, she felt his thumbs go into the crack of
her butt. DH testified
that this happened twice and,
on the second occasion, she said: "I felt his thumbs go inside the crack and I felt one
of his thumbs touch
my labia".
[21] Mr. Stefanov denied ever pulling the covers down to
expose DH's buttocks. He also stated that he
never massaged DH's buttocks in a circular motion
and did not touch
DH's labia.
[22] Mr. Stefanov testified
that
DH never expressed any concerns during the massage
and her body was quiet. He explained
this to mean that, if the body is uncomfortable, the patient would have
a visible body reaction, including tremors or
muscle contractions, or
she
may make sounds or request him to stop.
Mr. Stefanov stated
that
none of these signs was
present with DH.
Lower Legs in Prone
Position
[23] Mr. Stefanov testified that once he completed the massage of DH's
lower back, he draped
the back and arms to temporarily provide a
full
body drape. He then moved down to
the
side of table and undraped the blanket from ankle to knee and from knee to hip area, with the sheet still covering the
body. Mr. Stefanov then undraped the
sheet from ankle to knee and tucked this into the inside of the leg. He then slightly elevated each leg with his hands and tucked the sheet into the outside of the hip area,
creating a diagonal from knee
to hamstring.
[24] Mr. Stefanov then massaged DH's legs, one leg at
a time, including
her hamstrings,
calves, ankles
and feet. DH's evidence was
consistent with that of Mr. Stefanov.
Flipping to Supine Position
[25] Mr. Stefanov testified that he then moved to DH's head and asked:
"How
do you feel so far?" DH responded "so far
so good". At this point, DH
then turned onto her back
for the second half
of the massage. To do so, Mr. Stefanov
elevated the sheet and asked
DH
to slide her body
down and turn over, face
up. Mr. Stefanov testified that, during this rotation, with the sheet lifted up,
he was unable to see DH's
face. Every part of her body was covered.
[26] DH similarly stated that her body
was fully draped with both arms underneath the covers. She acknowledged that this part
of the massage "seemed
totally like experiences [she'd] had
before, there was
nothing unusual about it".
[27] Mr. Stefanov testified that he then placed a
small
damp towel with lemongrass essential oil over
DH's face, eyes and
forehead. A pillow was placed under DH's knees.
[28] DH did not recall whether a small towel
was over her eyes
and
did not
remember whether there was
a pillow under her knees.
Upper Leg Massage While in Supine Position
[29] Mr. Stefanov testified that, after DH was positioned, he worked the lower part
of the body. He
undraped the blanket and sheet of one leg from
ankle
to knee and knee
to hip area, and he tucked both the sheet and
blanket under the hip.
[30] DH testified that
Mr. Stefanov massaged each
leg
individually and that "he removed the draping
from the leg that he
was working on and tucked it in, in between
my legs like right at
the very
top of my inner thigh and then like outside, on
the
outside, like really high, high up on my hip …. about an inch
of my bikini area was exposed".
DH described her bikini line to be
"the place that
quite often pubic hair grows that might be exposed if you
were
wearing a
swimsuit", and she specified that the exposed
portion included part of the vulva. DH stated
that
Mr. Stefanov massaged up to the very top
of her inner thigh.
[31] Mr. Stefanov’s testimony was
different. He stated that his
leg draping was
secure, and it
was not possible to uncover
the inside of the thighs, including DH's genital area. Mr. Stefanov also
testified that at no
time during this portion of the massage did he massage
DH's upper inner
thighs. He explained that the draping he
used actually covered this region of
DH's
thighs that DH
alleged he massaged. Further, at no time were
DH's vulva and genitals visible to him. The
draping did,
however, allow him to work
the quads and
IT bands.
Lower Leg Massage While
in Supine Position
[32] According to Mr. Stefanov, after completing both legs, he draped
the
legs and moved to the end of
the table
by DH's feet. He then folded the blanket and
sheet and rolled them to cover the legs to just
above the knees. He then
massaged from DH’s ankle
to knee several times. After completing this portion of the
massage, Mr. Stefanov
pulled the drape down to cover the legs and feet.
[33] DH described this part of the
massage much differently.
She testified that, while her legs were
draped to the knee,
Mr. Stefanov picked up each
of her
legs and moved them
to the outer edges
of the massage table, placing them in a
“V”
formation.
[34] DH stated that once she was in this position, Mr. Stefanov
massaged her legs from
ankle to knee. After repeating this motion a couple of times, Mr. Stefanov continued this motion
up
“as
far as [her] thighs go. He didn't touch [her] genitals at that point".
[35] According to DH, Mr. Stefanov then brought his hands to the top of her inner thighs and
his
thumbs touched her
labia
and his fingers touched her vulva.
[36] In response to
the alleged touching
of her labia, DH stated that she "was
curious about what he
was doing so [she] lifted [her]
head up ... and peeped
down". She further stated: "it appeared to me that Mr.
Stefanov was kind
of leaning down in
as though he was trying to look
between my legs
under the covers". DH was of the view that "Mr. Stefanov was crouching down far enough while reaching to [her] thighs in order
to look
at [her] genitals".
[37] DH testified that she was uncomfortable
that somebody
had
just touched her. When asked how many times she was
touched she
said:
So I am -- I don’t -- I couldn’t say for
sure, at least once. Like I
know it happened once and I just kind of freaked out in
my head like at that
point, I got
really tense and really --
like I just stiffened up and like I
don’t,
I don’t know it was like my brain kind of
zapped up and I just didn’t want to believe what was happening.
[38] In contrast, Mr. Stefanov testified that he did not massage DH's inner thighs and he did not move
DH's legs. Her legs were in the normal
position, with approximately
one fist between
the legs. At
no time, did he pick up her legs to increase the spacing. Further,
Mr. Stefanov testified
that his hands never went under the drape, nor did he lean over and
look under the drape.
Upper Body
Massage
While in Supine
Position
[39] Mr. Stefanov testified that the last part of the massage
involved the upper body, including the arms, shoulders and
forearms. At that
time, he took
each of DH's arms out from
under the sheet
and blanket, one at a time, and
placed the arms on top
of the blanket. Mr.
Stefanov testified that,
after massaging DH's arms and
shoulders, he finished
by massaging the neck
area. Once the massage
was complete, he removed the
compress from DH's
eyes.
[40] DH testified
that
at the end of the massage, Mr. Stefanov moved up to the head of
the table and
massaged her shoulders and neck. When he was doing that, DH
asked him to
work on her forearms.
"I said to
him that I had asked him to work on [my] forearms which he hadn't worked
on yet and he, he did. He worked on my forearms really briefly and then the massage was done".
After the Massage
[41] DH testified that
after the massage, she met her friend in the women's change room. DH began crying and told her friend about the massage
with Mr. Stefanov. DH then spoke
with Ms. Yamashita, the duty
manager at the Spa.
DH
told Ms. Yamashita that she was not happy with the
massage. She thought
Mr. Stefanov was inappropriate, and
she was very uncomfortable
during the massage, even though she had had a lot of massages before. Ms. Yamashita testified
that DH
“looked upset. She was almost in
tears and I could only tell that she was very
upset”.
[42] On December 13, 2011, DH filled out the complaint form from the website of
the College and
described the massage
with Mr. Stefanov (the "complaint
form"). She then emailed the
complaint form to Ms. Manchisi, one of the managers of the Spa.
[43] Mr. Stefanov testified
that on December 13,
2011, he met with Ms. Manchisi and was
asked about
the massage with DH.
Mr. Stefanov was told that DH had
made a complaint regarding
inappropriate touching and
draping. Mr. Stefanov
was not provided with a copy of the
complaint form at that
time. Mr. Stefanov testified that he was
asked
to complete a note regarding
the massage and
did
so on December 15,
2011.
[44] On March
12, 2012, DH met with
Robin Barker, the investigator for the College,
and prepared
a written statement about
the
massage (the "written
statement").
[45] On April
3, 2012, Mr. Stefanov prepared a
written report for the College in response
to DH’s
statement.
[46] On November 23, 2012, a Notice of Hearing was issued by
the
College setting
out the
allegations against Mr.
Stefanov. The hearing
took place on June 26
and
27, 2013 and September 19 and 20, 2013.
[47] Each party called
an expert to testify.
On the following key points the experts
were in agreement. The practice of
draping allows the member
to cover the client safely and give access to
the area to be massaged. A secure drape prevents a part
of the body from
being exposed. A drape might be
loose yet secure. A drape can become loose if
a client moves, due
to
rhythmic techniques and/or moving the client.
Should this happen,
the member is to re-secure the drape. Exposure and/or touching of the buttock, genitals and/or
the gluteal cleft are not permitted. Similarly, it is not appropriate for the member
to place his hands under the drape and massage the
body.
THE
DECISION AND REASONS
[48] On May 8,
2014, the Panel released its “Decision and
Reasons” (“reasons”), finding
that Mr. Stefanov had contravened a standard of practice of the profession,
engaged in conduct that
would reasonably be regarded by
members as disgraceful, dishonourable or
unprofessional, and engaged in sexual abuse.
[49] The Panel first
considered if any of
the
standards of
practice were breached
before
considering the allegations
of sexual abuse. It
correctly stated that
the burden of proof was on the College
to prove its case on a balance of probabilities, based on clear, convincing and cogent evidence.
[50] The outcome of the hearing turned on
the
Panel’s assessment of
credibility. The Panel
stated that, when assessing
credibility, some of the factors to be
considered included:
1.
Opportunity to observe
2.
Common sense
3.
Probability or improbability of the witness’ story
4.
Whether their statements were consistent
5.
Whether there was anything confirming one version of events over another
6.
Whether witnesses were forthright in their evidence
7.
Appearance and demeanour of the witness
[51] The Panel
found that the
thrust of the College’s
case was that Mr. Stefanov failed to maintain
the standards by doing the
following:
1.
The [un]draping of the buttocks
2.
Exposing all of the gluteal cleft
3.
The draping
of the anterior leg which exposed the vulva and massaging the
inner
thighs without
permission
4.
Massaging
legs with hands under the sheets and thereby massaging the inner thighs
[52] The Panel found
Mr. Stefanov guilty of
allegations
in 1, 2 and 4 as set out above. They found that allegation
3 was not proven.
[53] Having determined that Mr. Stefanov was
guilty of
allegations 1,
2 and 4, the Panel turned to consider the allegation of sexual abuse of DH.
[54] Sexual abuse of a patient by a member is defined in subsections 1(3)
and
1(4) of the Health
Professions Procedural Code, being
Schedule 2 to the Regulated
Health Professions Act, 1991, S.O.
1991, c. 18 as follows:
1. …
(3)
In this Code,
"sexual
abuse" of a patient by a member
means,
(a)
sexual intercourse or other forms of physical sexual
relations between the member
and the patient,
(b)
touching, of a sexual nature, of the patient by the member, or
(c)
behaviour
or remarks of
a sexual nature by the member
towards the patient.
(4)
For the purposes of
subsection (3),
"sexual nature"
does not include touching,
behaviour or remarks of
a clinical nature appropriate to the services provided.
[55] Section
1.1 of the Health Professions Procedural Code further clarifies
the purpose of the sexual abuse provisions:
The purpose of the provisions of this Code
with
respect to sexual abuse of patients
by members is to encourage the reporting of such abuse,
to provide funding for therapy
and counselling for patients who
have been sexually abused by
members and, ultimately, to
eradicate the sexual abuse
of patients by members.
[56] The College alleged three areas
of inappropriate touching as follows :
1.
Simultaneously massaging both buttocks and running a digit up the gluteal cleft
and touching the
labia
2. Touching the labia and vulva when massaging the anterior legs under the sheets
3.
Looking under the sheets at DH’s genitalia
[57] The Panel found
that the inappropriate touching described in 1
and
2 had occurred, but rejected the
third allegation. It found
that there was a pattern to Mr.
Stefanov’s behavior that suggested the touching was not accidental. The complete undraping of the buttocks
was inappropriate and
could be viewed in “a sexual light”. This was reinforced by
the simultaneous massage of the buttocks and touching of
the
labia and vulva. Finally, the Panel found that there
was no clinical reason for
this
touching.
[58] Turning to the penalty,
the Panel ordered the following
sanctions:
1.
Mr. Stefanov's
certificate of
registration
be suspended for a period of
twelve months, and that such suspension be
remitted
for three
months if Mr. Stefanov attends
counselling in accordance with the terms of
the Penalty
Order
Mr. Stefanov's
certificate of
registration
be suspended for a period of
twelve months, and that such suspension be
remitted
for three
months if Mr. Stefanov attends
counselling in accordance with the terms of
the Penalty
Order
2.
Mr. Stefanov's certificate
be amended to require
him to enroll in and complete the
College's ProBE course
3.
A public and
recorded reprimand
4.
Mr. Stefanov pay costs to the College
in the amount of $7,500 and make a further payment of $2,500 for security for funding of counselling for DH
STANDARD OF REVIEW
[59] The standard of review on
this
appeal is reasonableness.
I acknowledge that the findings of the Panel are entitled
to a high degree of deference, especially when those findings
rest on an assessment of credibility. I also recognize that a reviewing court should not minutely dissect the reasons of a tribunal or retry
the case.
[60] The question is whether the reasons of the
tribunal support the decision after
a
fair examination.
In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R.
247, the Supreme Court of Canada
put the question as
follows,
where McLachlin C.J.C. said, at para. 47:
The content of a standard of review is essentially the question that a court must
ask when reviewing an administrative decision. The standard of
reasonableness basically involves asking "After a somewhat probing examination,
can the reasons given, when
taken as a whole, support the decision?"
[61] In Dunsmuir v.
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ.
expressed the
standard in this way, at para. 47:
A court conducting
a review for reasonableness
inquires into the qualities that
make a decision reasonable, referring both
to the process of articulating
the reasons and
to outcomes. In judicial review,
reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the decision-making process. But it is also
concerned with whether
the decision falls within a range
of possible, acceptable outcomes which are defensible
in respect of the facts and law.
ANALYSIS - THE DECISION
IS UNREASONABLE
[62] To support
a
finding of
professional misconduct, “the balance of probabilities
requires that proof be
‘clear and convincing and based upon cogent
evidence’” (F.H. v.
McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para.
31). This is particularly important
in this case
because sexual
abuse is one of the most
significant and serious
findings that the
Panel can make against a
member. Given the consequences of such a finding, the Panel is required to act with care and caution
in assessing and weighing all
the evidence. In doing so, the
Panel
must ensure that the evidence is of such a quality and
quantity to justify
a finding of sexual abuse
(Re Bernstein and College of Physicians and Surgeons
of Ontario (1977), 15 O.R. (2d) 447 (Div. Ct.), at pp. 486- 488).
[63] This was
a
classic credibility case.
Mr. Stefanov consistently denied DH’s allegations against him. The allegations either happened or they
did not. The Panel had to be persuaded on a balance
of probabilities that the wrongdoing
alleged by
DH
actually occurred. The credibility
of DH was critical to the outcome.
[64] The Panel found
that DH was “very
credible” and Mr. Stefanov was not. They
found her version of the events “to be
more probable”.
The pathway to this conclusion was incomplete, not transparent
and unintelligible.
Further, there was minimal consideration of Mr. Stefanov’s
evidence and an unreasonable explanation given as to
why his evidence was rejected.
[65] Credibility
assessments have two constituent elements:
honesty and reliability (see
Karkanis v. College of Physicians and Surgeons, 2014 ONSC 7018, 329 O.A.C. 114 (Div. Ct.), at para. 52).
The
Panel may have found DH to be
honest,
but they failed to do a proper analysis as to whether
her evidence was reliable. As a result, their credibility
assessment of
DH
was flawed and incomplete. I turn now
to the analysis that supports this conclusion.
[66] The Panel
divided their review of the
evidence into four areas:
1.
The undraping of the buttocks and exposure
of the gluteal cleft
2.
The anterior leg drape, exposure of
the vulva and
massage of inner thighs
3.
Massage of inner thighs with hands
under the sheets
4.
The inappropriate touching (sexual abuse)
[67] The reasons
reveal the flawed
nature of the Panel’s determination that DH was credible and Mr. Stefanov was not. First, the Panel
gave sparse consideration
to DH’s
inability to recall details and no consideration to the inconsistencies in her evidence. Second, having rejected two significant allegations (that Mr. Stefanov exposed DH’s
bikini and vulva areas
and that he looked under the sheets at her genitalia),
the Panel
did
not consider the relevance of this rejection
in their credibility assessment.
Lastly, the
Panel gave minimal
consideration to Mr.
Stefanov’s evidence and unfairly characterized
and scrutinized his evidence that
they did acknowledge.
1.
Undraping of Buttocks
[68] Dealing
first with the exposure of the buttocks, the
Panel found that
DH was “very credible” and gave the
following reasons:
[S]he was
very
clear that her buttocks
were exposed as she could tell when
a sheet was
on her skin and when it was
not.
DH’s thought process that ‘she shouldn’t be a prude as this
might be the norm
for someone trained in
Russia’ gave
further credibility.… DH had a regular history of
having
massage therapy, there had been
no incidents
in the past and she had
never met Mr. Stefanov until that day. The hearing was stressful and emotional for DH and, with her educational background
in psychology, the Panel could not conceive what motive DH would have for making this up. [Emphasis added.]
[69] As noted above, the
Panel found DH to be very
clear about her buttocks being
exposed. However, DH was not always clear about
whether her
buttocks were
exposed.
[70] On December 13, 2011, DH filled
out the complaint form
from the College’s
website. She then emailed the complaint form to Ms. Manchisi, one of the managers
of the Spa. In this complaint
form, DH states that Mr.
Stefanov “left my right buttock exposed
while massaging my
upper back”.
When DH testified in chief before
the Panel,
she said
that her buttocks were covered during the massage of the upper
back. When confronted with this inconsistency during cross-examination,
DH acknowledged the discrepancy
in her evidence. She
“did not know” if
her description in the complaint
form was correct or not.
[71] The reasons of the Panel
do
not
reveal any consideration of this inconsistency
and inability to recall which version
was correct. As noted above,
the Panel described
DH as very credible because
she was “very clear that her buttocks were
exposed as she could tell when a sheet was on her
skin and when it was not”. However, this inconsistency
reveals that DH was not always very clear about the exposure of her buttocks. The
Panel did not consider this in their credibility
assessment of DH.
[72] In her written statement to the College,
DH described as follows the massage
of her lower legs while she was still prone:
I believe he then
began to massage my
lower legs and my feet
while
I was prone. When he
worked on my lower legs, Mr.
Stefanov covered my upper
back. I think he covered my entire
buttocks but I couldn’t say for sure. By this point, my feeling was that
more than half the time allotted for my massage
had gone by.
[73] DH was cross-examined about this evidence. She agreed that, when
she was talking to the College
investigator, she could
not recall if her buttocks were draped
or not. The following exchange occurred:
Q. I suggest
to you, Ms. H that at certain
points in the massage you were
unable to perceive where the draping
was?
A. You can suggest that all you like.
Q. And
you wouldn’t agree
with that?
A. I think
that when I was laying
down I had a pretty
good sense of approximately where I was covered and
where I wasn’t, yes.
Q. But in this
statement here you are unsure?
A. Once again, I do not—at the time
that I wrote this statement, I could not recall if I was
draped or not.
[74] The reasons of
the
Panel do
not
reveal any consideration of
the
above evidence. Since DH
is on her stomach and cannot see her buttocks, her ability to
know whether or not her buttocks were
draped depended on what she could feel. The Panel did not
address in the reasons how
DH could be certain about exposure
of her buttocks at certain points and yet unsure at other
times during the
massage.
[75] The Panel acknowledged
that Mr. Stefanov consistently
denied exposing DH’s buttocks. However, his evidence was rejected because the
Panel found
DH’s evidence “more
probable”. Given this, the Panel found there was no reason to doubt DH. They explained that, since they had “accepted
that DH’s buttocks were
fully undraped, this means
that all of the gluteal
cleft was exposed”. This led the Panel to conclude that the
standard of practice of
the
profession in this
regard was
not met.
[76] The Panel did
not explain why DH’s
evidence was
more probable than
Mr. Stefanov’s evidence. This is an important step in assessing credibility
because Mr. Stefanov was consistent
about
draping the buttocks and
DH was not.
[77] Mr. Stefanov argued that DH’s
“memory lacked clarity”. The Panel acknowledged
that DH could not recall the set-up of the
massage room. They found
that this did
not reflect on DH’s credibility because “most
clients do
not
take the time to study the setup of
a treatment room”. The Panel does not
explain how they
would
know what most clients take the time to consider during a
massage.
There was
no evidence on this point.
[78] The reasons do not reflect any consideration
of the inability of DH to recall many other
details of the massage.
The
transcript shows that when DH
entered the
massage room she could not
recall if music was
playing or
if
the lights were dimmed. She could not recall if she discussed
her health history with Mr. Stefanov. DH could not
recall if Mr. Stefanov applied light pressure to her back
at the start. She could not recall any pressure on her back
before the undraping. When
DH placed her face down on the table into the horseshoe cradle, she could not
recall if there was a cloth
or fabric covering on the cradle.
DH could not recall if there as a duvet
used
to cover her. DH could not
recall if Mr. Stefanov
placed a
pillow beneath her lower legs and
ankle
area at the start
of the massage. When she turned
over onto her back, DH could not recall if Mr. Stefanov placed a
pillow
under her knees
or a cold compress
over her eyes.
2.
Anterior Leg Drape
[79] This part of the massage occurred after DH turned over and was lying on her back.
DH testified that the anterior
leg
drape exposed her bikini area and part
of the vulva
while Mr. Stefanov massaged her
inner
thighs.
[80] The Panel did
not accept DH’s evidence. They found that the “bulk of
the
sheet and
blanket in between the thighs would not allow a lot of
access to the inner thigh or
expose the vulva”. The
leg drape was correct and “the area massaged was not the upper inner thigh but lower down
the abductors”.
[81] The Panel states
that DH “might have
believed this area
was exposed” when
it was not. This is
based on
the Panel’s
belief that her “skin was sensitive where
she shaved (bikini
area and upper thigh) and
due to that she might have
believed this area was exposed”. In trying
to explain their rejection of DH’s evidence, the Panel speculated about the sensitivity of DH’s skin.
[82] DH testified that
she could tell the bikini area was
exposed because she had shaved the bikini
area the morning of the massage
and the skin in the shaved area felt cooler when
exposed. The Panel
found that the bikini area was properly draped. Therefore, it was not exposed. There
was no evidence to support the
Panel’s belief that
the skin was sensitive when covered.
[83] The Panel did not consider
whether their rejection of DH’s evidence in this area impacted
the reliability of the rest of
her
evidence that the Panel chose to accept. This is an
essential element of
a credibility assessment.
3.
Massage of inner thighs under the sheets
[84] The reasons about this part of the massage
are brief. Mr. Stefanov moved to the end of the
table. The drape over the legs
was rolled up to the knees and Mr.
Stefanov states he
massaged from the ankles
to knees. The Panel notes that
the parties “agreed that both legs were draped
to just above
the knees”.
[85] The Panel accepted DH’s evidence that Mr. Stefanov massaged under the sheets to her inner
thighs. Mr. Stefanov denied
that this happened. The following brief
reasons were given:
The Panel looked at the credibility
of both witnesses and found DH more credible for reasons listed above. Also,
the Panel found Mr.
Stefanov’s testimony to be extremely
detailed for an event that
took place several
years
ago and his testimony
was more along the lines of what
he
does in a massage than what happened with DH.
Exhibit 17, a letter to
the College showed this. The letter was written four months after
the massage, yet it was full of
very
specific information like what massage
techniques were used
and when and in what order, even what questions
he asked of DH and her answers. The Panel finds this degree of detail to be questionable
and for those reasons, finds DH to be
more credible. [Emphasis
added.]
[86] When
the Panel refers to
the “reasons listed above”
for finding DH more credible, there
is nothing more in the reasons than the flawed consideration
of the evidence that I have already
described. Furthermore, the starting point for the Panel
was that DH was “very
credible”, in great measure because, due to her education in
psychology, the Panel could
not conceive of what motive she would have for making up her allegations. This conclusory reasoning informed their
entire analysis.
[87] To say that
Mr. Stefanov’s detailed testimony
is a reason for preferring DH’s
evidence is illogical. Mr.
Stefanov’s account of the
events was no more detailed than DH’s testimony and
yet she was found
credible and he was not.
[88] The Panel had evidence from Mr. Stefanov that was relevant to why a
person in his position
would recall the events in detail. He was told the day after the massage
that DH had made serious allegations
against him. There is no indication in the reasons that this evidence, as
set out below, was considered by the
Panel.
[89] On December 13, 2011, the day after the massage,
Mr. Stefanov had a meeting with his
manager. The manager told
him that
“[DH] made
a complaint against you for
inappropriate touch and inappropriate
draping. I was surprised, I was in shock”. The same day, Mr. Stefanov prepared a handwritten, one and half page memorandum for his manager, setting out his recollection
of the massage. At this
point he did not have
a copy
of DH’s complaint form. On
April 3, 2012, Mr. Stefanov prepared a
four
and half page handwritten report for the College.
This more detailed account was
prepared after Mr.
Stefanov was given
DH’s written statement that she signed
on March 12, 2012.
[90] The Panel’s treatment of DH and Mr. Stefanov is this area was very uneven.
The stress and
emotion that DH
experienced was a reason why the Panel “could not conceive what motive
DH would have for
making this up”.
Similarly, the
seriousness of the allegations that Mr.
Stefanov learned about
the day after the
massage caused him to be surprised and left him in
shock. However, in the reasons, the Panel ignored Mr.
Stefanov’s evidence about his reaction to the complaint.
[91] DH prepared a
very
brief complaint form on
December 13,
2011 that consisted of two short handwritten paragraphs about the
massage. It
was less detailed than
Mr. Stefanov’s first
statement. Three months later, DH prepared a more detailed statement. The Panel
found the level
of detail
in Mr. Stefanov’s
second statement to be questionable, but
did not question DH’s detailed second statement.
[92] The Panel did not
address why, in regard
to the previous allegation,
it had rejected DH’s evidence that Mr. Stefanov had massaged her inner thighs but, in regard to this allegation, it unquestionably accepted DH’s
allegation that
Mr. Stefanov had massaged her
inner thighs. In both circumstances, DH had not observed what
was happening and was relying on her sense of
touch. The Panel found that DH had misunderstood where Mr. Stefanov was massaging her legs
in the earlier circumstance, but that she had
accurately interpreted her sense of touch in the later
circumstance. No meaningful analysis was offered as to why the Panel
was so accepting of DH’s evidence based on her feelings of
being
touched in one circumstance, but was not convinced of her
ability in this regard shortly
before.
[93] Finally, the Panel
rejected Mr. Stefanov’s evidence because
“his was
more along the lines of what
he does in a massage
than what happened with
DH”. The transcript of Mr. Stefanov’s evidence reveals that he provided considerable evidence about
the events
on the day in question
and, when he spoke about what he typically does, the question often elicited this type of response.
4.
Inappropriate touching (sexual abuse)
[94] Three areas of inappropriate touching were considered and
the Panel
found that
Mr. Stefanov committed
a “pattern of sexual abuse”. They reached this very
serious conclusion without ever considering the reliability
of DH’s evidence.
The flawed reasoning set
out above continued, resulting in a
serious finding that was not grounded in evidence that was “sufficiently clear, convincing and cogent” to satisfy the balance of probabilities test (F.H. v.
McDougall,
at para. 46).
(a)
Massaging the exposed buttocks and touching the
gluteal cleft and labia
[95] The Panel determined that DH’s buttocks were
exposed and simultaneously massaged in
a circular motion. They also accepted that, “with
this technique there
was a greater
likelihood that
Mr. Stefanov’s
thumbs ran up
her gluteal cleft
and in doing
so touched her labia”. Mr. Stefanov denied all
of this.
[96] The Panel
found Mr. Stefanov’s evidence “not
to be convincing”. Once again,
they relied on the detailed nature of his written
statement as a reason to reject his evidence. In his statement,
Mr. Stefanov records that he
asked DH during the massage: “[d]o
you feel secure?” The
Panel found that this was not a typical question that massage therapists are trained to ask clients. The Panel
therefore
questioned “the likelihood that Mr. Stefanov would
have even
asked this”.
[97] It is
readily apparent from
Mr. Stefanov’s transcript
and statements,
that English is not
his first language and
that he struggles when
expressing himself in written
and oral English. This is an obvious possible
explanation for using the word “secure” that the
Panel never
considered in the reasons. Further, the Panel did not give Mr. Stefanov an opportunity to explain his use of the
word secure during the hearing.
[98] Otherwise,
the Panel simply found that DH was “forthright” in her
evidence and her version of events was
“clear and concise and more probable”, therefore, Mr. Stefanov’s evidence was
not convincing. The Panel
gave no consideration to
DH’s earlier statement that
she had “thought” Mr. Stefanov had “grazed” her
labia with his
thumb because, considering what
she felt, it
“made sense” to her that it must have been
his
thumb.
(b)
Touching the labia and vulva when massaging the anterior legs under sheets
[99] The Panel had already found that Mr. Stefanov massaged DH under the sheets. They went
on to accept that he
touched her labia
and vulva. Their
reasoning is conclusory
as follows: “Given that the Panel
has found that Mr.
Stefanov has already breached the standard of practice by massaging under the sheets,
the Panel concludes his behavior
continued”. The Panel does not explain why the behavior
would continue. Instead, since they find that Mr. Stefanov massaged
her under the sheets, they
conclude that he
must have touched DH’s labia and vulva. This is impermissible reasoning.
[100] The Panel
found that DH was very
upset after her massage and that this supported her testimony as follows:
Counsel
for Mr.
Stefanov suggested that these behaviours didn’t
occur as DH didn’t protest
or stop the massage. The Panel accepts that
a person may freeze when put into difficult circumstances
especially when
there is touching of
sensitive areas. The Panel finds that DH tried to redirect Mr. Stefanov to other less
sensitive areas of her
body and this was her way of coping. The Panel
also
heard testimony that DH was very
upset after her massage and
this supported her testimony. Given
this, the Panel found that Mr. Stefanov engaged in the
misconduct alleged.
[101] The Panel failed
to appreciate that after-the-fact conduct can only provide circumstantial evidence that an event occurred, where there are no other explanations for the conduct. This
point
is made
in
R. v. Lindsay,
[2005] O.J. No. 2870 (S.C.) where Fuerst
J. said, at para. 159:
It is well-established,
however, that evidence of a complainant's
emotional state
after an alleged offence may constitute
circumstantial evidence confirming that the
offence occurred, depending
on the circumstances of the case, including
the temporal nexus to the alleged offence and the
existence of alternative
explanations for the emotional state.
[102] In this case, DH’s emotional
state could
have been explained by
her honest, but
mistaken belief that her vulva had been exposed through inappropriate draping
at which time Mr. Stefanov had massaged her inner thighs
–
two allegations which the Panel rejected.
DH’s emotional state could also have been explained by her mistaken
perception that Mr. Stefanov had tried to look under the
sheets at her genitalia
– another allegation
which the Panel
rejected. In
that DH’s emotional
state could be explained by mistaken perceptions
on DH’s part, that
same emotional state cannot be used, as the Panel did,
as proof that other allegations actually happened.
(c)
Looking under the sheets
at DH’s genitalia
[103] DH testified that, while she was lying on her back
with
her legs spread in a
“V”
formation, she lifted her
head because she was
curious about what Mr.
Stefanov was doing. She saw him “crouching
down far enough while
reaching to [her] thighs in
order to
look at [her] genitals”.
[104] The Panel
did
not accept this evidence and gave the
following reasons:
Regarding the
issue of looking under the
sheets at
DH’s
genitalia,
the Panel concluded that DH
might have thought Mr.
Stefanov was looking under the sheets, given his position at the bottom
of the table and leaning forward,
but the likelihood that he could see under the sheets is unlikely. For these reasons, the
Panel
finds that Mr.
Stefanov did not
engage in this particular misconduct alleged.
[105] The allegations
that Mr. Stefanov looked under the sheets
at DH’s genitalia,
exposed DH's
bikini area and vulva, and massaged DH's inner thigh,
were specifically set
out in the Notice of Hearing.
These were serious allegations before the Panel that
were not proven by the
College. The Panel viewed
DH as mistaken in what she
thought happened. If DH could be mistaken
about these serious allegations, could she be mistaken about the rest of the allegations?
The Panel never considered this possibility in the reasons. The Panel’s finding
that Mr. Stefanov did not commit these particular allegations ought to have
been a consideration in the overall
reliability of the evidence
of DH and Mr. Stefanov, and
it
was not.
CONCLUSION
[106] In summary, the
Panel reached its decision
through faulty reasoning. This was a
pure
credibility case. Given the
numerous flaws in the
Panel’s approach to assessing
credibility, the conclusion
does not meet the
justification, transparency
and intelligibility
standard. It necessarily
follows that the decision was
not reasonable.
[107] In these
circumstances, it is not necessary to consider the
appeal of the Penalty Order.
[108] The appeal
is allowed,
and the decisions of the Discipline Committee are set aside. The matter
is remitted back to the Discipline Committee for a new hearing before a differently
constituted panel of the Discipline Committee.
[109] The respondent
shall pay
to
Mr. Stefanov his costs of the appeal fixed in the amount of
$12,500 inclusive of
fees, disbursements and HST. This
amount was agreed upon between
the parties.
C. Horkins J.
Aitken J.
Swinton J.
Released: February
10, 2016
CITATION: Stefanov
v. College of
Massage
Therapists of Ontario, 2016 ONSC 848
DIVISIONAL COURT FILE NO.: 473/14
DATE: 20160210
ONTARIO
SUPERIOR COURT
OF JUSTICE DIVISIONAL COURT
|
Aitken, Swinton, C. Horkins JJ.
|
BETWEEN:
|
STEFAN STEFANOV
Appellant
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
Respondent
|
REASONS FOR JUDGMENT
|
C. Horkins J.
|
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