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Sexual abuse allegation failed for lack of reliable and persuasive evidence.
In a professional discipline hearing, the College alleged sexual abuse during a massage therapy appointment, asserting that the registrant touched the client’s arms and hands with his erect penis through clothing.
The tribunal applied the balance of probabilities standard requiring clear, cogent and convincing evidence and undertook a detailed credibility and reliability assessment of the client, the registrant, and the surrounding physical and documentary evidence.
The tribunal found the client credible in sincerity but unreliable in her observation, recall, and description of material events, including treatment details and the alleged physical sensations.
The tribunal accepted the registrant’s evidence and the defence urology expert’s opinion that the alleged contact, as described, was physically implausible.
The allegation was not proven and no finding of professional misconduct was made.
The Court of Appeal dismissed an informed consent claim and reversed a finding of post-operative negligence, holding that expert concessions on cross-examination undermined the breach of standard of care.
The appellant appealed the dismissal of her negligence claim based on lack of informed consent following a laparoscopically assisted vaginal hysterectomy performed by the respondent surgeon, during which the appellant's left ureter was transected.
The respondent cross-appealed the trial judge's finding of negligence in post-operative care.
The Court of Appeal dismissed the appeal on informed consent, finding the trial judge properly applied the modified objective test and reasonably concluded that a reasonable person in the appellant's circumstances would have proceeded with surgery despite the risks.
The Court allowed the cross-appeal, finding the trial judge's conclusion that the respondent breached the standard of care in post-operative management was not supported by the expert evidence, as the experts acknowledged that declining to order a CT scan on July 7, 2008 was a reasonable decision within the standard of care.
