DISCIPLINE COMMITTEE OF THE COLLEGE OF AUDIOLOGISTS AND SPEECH-LANGUAGE PATHOLOGISTS OF ONTARIO
Hearing Date: March 10-13, 2023 Decision Date: September 4, 2024 Release of Written Reasons: September 4, 2024
BETWEEN:
College of Audiologists and Speech-Language Pathologists of Ontario
College
- and –
Parviz Ashtari
Registrant
Panel:
Kim Eskritt, Chair (AUD)
Simone Fischbach (SLP)
John Leitch (Public)
Appearances:
Bernard Le Blanc, Valreen Sealie for the College
Robert Barbiero for Parviz Ashtari
INTRODUCTION
1This matter came on for hearing before a panel of the Discipline Committee on March 10 and 13, 2023. With the consent of the parties, this matter was heard electronically.
2At the outset of the hearing, the parties sought, and the Panel ordered a publication ban over the name and any information that could identify the identity of the complainant, ML. The Panel’s publication ban order extend to the exhibits filed, the testimony received and this decision and reasons.
3The allegations against the Registrant were set out in the Notice of Hearing, dated May 21, 2020. The allegations in the Notice of Hearing (Exhibit #1) are as follows:
The Allegations
- Parviz Ashtari was, at all material times, an audiologist qualified to practise audiology in the Province of Ontario. Mr. Ashtari practised at Alpha Hearing Centre, Inc. (“Alpha”), in North York, Ontario.
Summary of the Facts
ML attended at Alpha on or around Saturday, December 16, 2017 for what was supposed to be the first of a number of weekly volunteering sessions. ML had an interest in learning more about audiology and wanted to volunteer in a hearing clinic.
When ML arrived at Alpha, only Mr. Ashtari was present.
During their meeting, Mr. Ashtari acted inappropriately in a number of respects, including:
(a) while placing hearing equipment on ML’s head in Alpha’s soundproof booth, he brushed his groin region against ML’s buttocks each time he shifted his height; and
(b) while subsequently talking with ML he:
(a) put his hand on her thigh;
(b) took her hand and held it;
(c) brushed his hand against her chest;
(d) cupped her face with both hands and pulled her face close to his to talk;
(e) touched her arms and legs repeatedly;
(f) touched her ears; and,
(g) touched her neck and shoulders repeatedly.
- Mr. Ashtari thereby engaged in professional misconduct pursuant to section 51(1)(b.1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991 (the “Code”) (sexual abuse of a patient, more specifically, touching of a sexual nature and behaviour or remarks of a sexual nature); and section 51(1)(c) of the Code and as defined in the following paragraphs of section 1 of Ontario Regulation 749/93 made under the Audiology and Speech‐Language Pathology Act, 1991: 2 (failing to maintain a standard of practice of the profession), 5 (abusing a patient or client verbally, emotionally, psychologically or physically) and 37 (engaging in conduct or performing 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 Registrant’s Plea
4The Registrant denied the allegations as set out in the Notice of Hearing.
Overview
5The allegations against the Registrant relate to one interaction he had with ML, a volunteer, who attended at Alpha to learn more about audiology as a possible career path.
6There is no dispute between the parties that the Registrant and ML had at least one interaction in December 2017, which included the Registrant conducting a brief hearing test on ML. It is the Registrant’s evidence that this interaction took place on December 11, 2017, a Monday, lasted approximately an hour and included a demonstration and some discussion.
7ML testified that she attended Alpha twice – once on Monday, December 11 and once on Saturday, December 16. It is her evidence that during the December 16 visit, the Registrant brushed his groin up against her buttocks in successive up-down movements and that he continuously touched her face, ears, neck, shoulders, chest, arms, hands, and legs. She testified that the incident was entirely non-consensual and made her feel violated.
8There is no dispute that the Registrant conducted a brief hearing test on ML on December 11. The College argues that she was a “patient” as defined under the Code. The Registrant disputes this. In their testimony, neither ML nor the registrant said they considered her to be a patient.
9The principal issues for the Panel to consider in this case are (i) did the inappropriate touching occur as alleged by the College, consistent with ML’s evidence; and (ii) was ML a “patient” as defined under the Code.
10For the reasons set out below, the Panel finds that the College has proven on a balance of probabilities that the Registrant engaged in inappropriate touching of ML. We find it has not established on a balance of probabilities that she was his “patient.” Accordingly, we find that the College has proven the allegation that the Registrant 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, contrary to para. 37 of s. 1 of Ontario Regulation 749/93 made under the Audiology and Speech-Lanaguage Pathology Act¸1991, S.O. 1991, c. 19. We also find that his sexual misconduct in relation to a student failed to meet the standard of practice of the profession. Given our finding that she was not a patient, the College has not established its allegations of sexual, physical and emotional abuse of a patient.
The Evidence
11The College called one witness, ML, in support of its case.
12ML testified that at the time of the alleged incidents she was recently out of undergrad and had applied to medical school but was considering other professions as well.
13ML testified that she found the Registrant’s clinic, Alpha, and decided to “cold call” him. She could not remember exactly when she did so but believed that it would have been sometime in early December. On the call, she told the Registrant that she was interested in learning about audiology. The Registrant told her about audiology in broad strokes, talked to her about his clinic specifically and asked her to bring in a resumé.
14ML told the Panel that she had a first meeting with the Registrant on Monday, December 11, 2017. According to ML, on that day, she went into Alpha, where the Registrant came out to greet her. She also remembered that there was a receptionist present, with platinum blonde hair. ML explained that she and the Registrant had a “rather informal interview”. They went into his sound booth and the Registrant asked her if she would be interested in having an audiogram test performed. ML indicated that she would be interested and so the Registrant conducted the test, which she recalled took about 10-minutes to complete. He advised her that her hearing was in the top 5%, that her right ear was better than her left and then he offered her some tea.
15ML testified that at the end of this first meeting, the Registrant told her that she could return on Saturday to start volunteering with him. She testified that Mr. Ashtari provided a list of several YouTube videos about audiology which he recommended ML to view prior to the volunteer session scheduled for December 16, 2017. ML testified that, in preparation for this volunteer session, ML did view the recommended videos, in addition to making copious notes regarding their content. Exhibit #4 of the Exhibit Brief of the College (“Notes prepared by complainant re: Suzanne Miller videos”, pp 29-43) details the 14 pages of these notes completed by ML prior to the December 16, 2017 meeting. ML attests that she did not have any other reason for viewing these videos and making detailed notes aside from preparing for the volunteer sessions with Mr. Ashtari.
16ML was shown a Facebook messenger chat thread with two friends. In the thread, ML told her friends that she had gone to an audiology clinic to discuss a volunteer position on December 11th.
17Further, ML provided the Panel with a Word document she created after her initial meeting with the Registrant, which includes notes she wrote while watching Susanna Miller YouTube videos about audiology. ML testified that she watched these videos at Mr. Ashtari’s suggestion.
18ML testified that on December 16, 2017, she attended at Alpha a second time. On that occasion, she told the Panel, the clinic was quieter. She testified that the receptionist was not present and that the only person there when she arrived was the Registrant.
19ML recalled arriving at the clinic sometime around 2 pm. At the time of her arrival, the Registrant reviewed with her the work that she would be doing for him, including faxing, filing documents, and helping him with hearing tests and with pitching products to patients once she became more familiar with them.
20ML testified that about 20 minutes after she arrived at Alpha, a “frail Caucasian lady” came in to ask about hearing aids. The Registrant attended to the client. He offered to give her a free hearing test. ML testified that she thought the Registrant was “pretty impressive” how he administered the test, changing up the tone and keeping the sounds unexpected. ML said she could see that an audiogram was being generated on the computer screen while the test was being conducted. The Registrant also allowed ML to help him administer the speech audio test, which required ML to read a list of words outside of the doorway of the sound booth. The client was then asked to repeat back what she could hear.
21ML testified that the client stayed in Alpha for approximately 30 to 40 minutes, but that she did not buy anything that day. ML said that the client was the only customer she saw come in that day.
22ML testified that after the client left the clinic, Mr. Ashtari told her that he wanted to show her different kinds of hearing tests, so they went into the sound booth together. She could not remember the order in which they discussed the various tests, but she recalled discussing both the otoscope and tympanometry testing.
23While in the booth, ML testified that the Registrant asked her to turn around. She was standing in between the chair and table. He approached her to put headphones on her. ML said the Registrant was very close and in that moment he grinded his groin into her buttock area in a few up and down movements. ML testified that the Registrant was acting as if everything was normal and that right after the touching occurred, she was feeling upset and in shock. At this point, the Registrant left her alone in the sound booth for a few moments.
24A short time later, the Registrant came back into the sound booth and according to ML, continued to touch her. ML testified that he pulled her face with his hands and pulled her in close. He put his hand on her thigh, he touched her neck, shoulders, ears, the top part of her chest, and her knees, “many times”.
25ML testified that this interaction lasted a few minutes. She said that she did not say anything to the Registrant because of her social anxiety. She explained to the Panel that she just wanted it “all to be over”.
26ML testified that she stayed at Alpha until about 4:00pm. Upon leaving she sat in her car for another 30 or 40 minutes, mulling over what had happened. She said she texted her friend about the incident and that she ultimately went over to her house. Her text to her friend included the following statement: “I feel like the audiologist is a bit touchy”.
27ML acknowledged that several months later, in August 2018, she posted one or more reviews online about Mr. Ashtari. She felt that in doing so she got some sense of justice. She said in the review that the Registrant was “creepy” and that she would not recommend him. Ultimately, she took the reviews down.
28ML testified that she contacted Alpha on August 25, 2018. At the time, she had forgotten Mr. Ashtari’s name, but she was told that there was only one audiologist who worked at the clinic.
29She testified that during this phone call she accused Mr. Ashtari of touching her without her consent. Mr. Ashtari allegedly said, “oh, I remember you”, and that he sounded very stressed by her accusation. Further, Mr. Ashtari confronted her about the online review and asked her to please remove it. ML told the Registrant that she would think about doing so.
30ML said that later that same day, she received a text message from Mr. Ashtari. The text message reads as follows:
I have lots of pressure in my head and Hart. (sic) I never hurt anybody in my life. I am so sorry about your feeling. I have family. Would you please to remove your sentence about me if possible. I would be very appreciated about your kindness. I will try to help people not hurt them so I am sorry again if I hurt you. God bless you. Thank you.
31ML testified that the next day she called Mr. Ashtari again and during that conversation he said, “I’m sorry I touched you”.
32ML contacted the College to lodge a complaint against the Registrant on or about August 27, 2018.
33In her original complaint to the College (received in writing on October 15, 2018), she indicated that she had one meeting with the Registrant, which took place on Saturday, December 9, 2017. She did not advise the College that she had two interactions with the Registrant. She made no mention of a meeting on December 11 or December 16. ML said that she was off on her dates and that she did not mention the two interactions, indicating only that there had been a brief interview prior to the meeting where the inappropriate touching took place.
34ML further acknowledged in cross-examination that it was not until she received a copy of the Registrant’s response to the complaint in March 2019 that she corrected her original version of events to include a first meeting on December 11 and a second meeting on December 16.
35ML confirmed that she did not believe she was a patient of the Registrant’s and that she had attended Alpha to act as a volunteer.
36ML identified the following text messages from her cell phone sent to two friends:
(a) On December 10, 2021, saying that she would be going for an interview for a volunteer audiology position the next day;
(b) On December 11, 2021 at 10:58 am, saying “I’m done!”)
(c) On December 15, 2021, saying she would be volunteering the next day until 3. When the friend asked “which one” she said “the audiology one” at “Bayview and Cummer”. She also told the friend “but I had to watch this lady’s audiology vids on YouTube so now I know all about audiology testing and hearing loss.”
(d) On December 16, 2021 at 4:00 pm saying “I just finished at volunteering.” In response to the friend’s questions about whether it was fun and what she did, she said “I guess, but I feel like the audiologist is a bit touchy” and “I learned to look into ears, I helped ready out words for this ladys [sic] speech recognition test and I helped her interpret her test result.” After a couple of other messages, she said “Can I tell you about the touchiness? I’m kind of uncomfortable.”
37In response to the College’s case, the Registrant testified and called two additional witnesses.
38The Registrant testified that he was born and raised in Iran. He and his family (wife and two daughters) came to Canada in 2008. The Registrant, who had been an audiologist in Iran, spent his first years in Canada upgrading his education at the University of Western Ontario. In 2011, he became registered with the College as an audiologist. He has worked at Alpha since that time.
39The Registrant confirmed that in late 2017, he was contacted by ML, who told him she was interested in meeting to learn more about the audiology field. The Registrant said he agreed to meet with ML at his clinic.
40Consistent with ML’s evidence, the Registrant agreed that he met with ML at Alpha on Monday, December 11, 2017. He confirmed that his receptionist was present in the clinic at the time of the meeting. He recalled that the meeting took place at around 10:00am.
41The Registrant said that he and ML discussed the audiology field in general. He talked to her about various kinds of testing available. He then asked ML if she would like to experience a hearing test demonstration. She confirmed that she would.
42The Registrant said that he did a quick demonstration in the sound booth. During the demonstration, the Registrant said that ML never had her back to him and that he never touched ML with his groin.
43Once the demonstration was complete, the Registrant invited ML to return to his workstation to see the hearing test results on his screen. The Registrant denied ever touching ML during this interaction.
44The Registrant testified that after this meeting, which he recalled lasted almost one hour, ML left the clinic and he never saw her again.
45The Registrant provided the Panel with ML’s results from the audiogram demonstration. The document includes the date of December 11, 2017.
46The Registrant adamantly denied that he had two separate meetings with ML. In particular, he denied that there was ever a meeting with ML on December 16th.
47The Registrant testified that contrary to the evidence provided by ML, he saw two existing patients on December 16. He did not see a new client, who could be described as a “frail Caucasian lady” or otherwise. He testified that he saw two clients for hearing aid adjustments. The Registrant provided the Panel with partial records for Patient BM and Patient MK, which show that both attended at Alpha on December 16.
48The Registrant confirmed that he originally advised the College that he did not see any patients on December 16, 2017, because he had no recollection of the day and so based his answer on the fact that his software records confirmed that he had not done any testing that day. Upon review of his complete records he identified that he had seen BM and MK, neither of whom were new, and neither of whom had received testing.
49The Registrant testified that his next contact with ML (after the one meeting on December 11) was in August 2018. At that time, he noticed a bad Google Review had been submitted, under a fake name. He said he was in shock. In or around the same time, the Registrant received a call from ML who asked him a lot of questions about how many audiologists worked at Alpha and if he remembered her from the previous December. In response, the Registrant asked ML if she was behind the bad Google review.
50The Registrant asked ML to remove the review. He believed that they had a polite conversation and at the end of it he decided to follow-up with his text message. He explained to the Panel that he was sorry that ML felt the way she did. He noted that ML was the same age as his eldest daughter.
51The Registrant denied ever saying that he was “sorry for touching you” to ML. He was simply trying to convey to her that he was sorry that she felt like they had a bad interaction.
52The Registrant testified that his clinic’s record-keeping software keeps all the auditory tests that are run. He testified that the records save the date and time for all tests and that you cannot delete the information.
53In response to the allegation that ML was his “patient”, the Registrant said that she was never his patient. He did not collect any health information from her, nor ask her about insurance coverage or her medical history. Following the demonstration, he did not provide her with a treatment plan or a follow-up recommendation.
54The Registrant denied ever touching ML as alleged and said that he did not brush up against her during their interaction at all.
55In cross-examination, the Registrant acknowledged that he performed an audiogram test on ML on December 11, 2017. He denied telling her that her hearing was in the top 5% because that is not something he would say to describe someone’s hearing.
56He further confirmed in cross-examination that he told ML to review some videos on YouTube if she wanted to volunteer at the clinic.
57The Registrant acknowledged that it took him some time to find his records to confirm whether Alpha was open on December 16, 2017, as ML alleged. He explained that they had already thrown out the clinic’s appointment book by the time the College had asked for the information in September 2019. The Registrant said he had to rely on the information available on the computer only and that the original information he found suggested that there had not been any patients in the office that day because there had not been any testing done.
58The Registrant called his receptionist, Lelia Badia, to give evidence. She described her job duties, which include scheduling appointments, managing incoming and outgoing calls, and dealing with financial payments.
59Ms. Badia testified that Mr. Ashtari’s workstation is close to the front of the clinic and that she can hear everything that happens at his station. She explained that Alpha is quite small and that she can see the entire office from the reception desk.
60Ms. Badia confirmed that ML attended Alpha on December 11, 2017. She was present at the clinic, although Ms. Badia confirmed that she did not watch ML and the Registrant’s interactions. Ms. Badia said that she did not hear anything inappropriate being discussed and that at the end of the meeting, ML did not appear upset or distraught in any way. Further, she testified that Mr. Ashtari was in his normal mood.
61Ms. Badia said she never saw ML again.
62Under cross-examination, Ms. Badia confirmed that she was not working on December 16, as Saturday was a day off. Further, she conceded that it was possible for Mr. Ashtari to have scheduled a follow-up with ML, although Ms. Badia said that she was the one who was normally in charge of scheduling.
63The Registrant called Marshall Chasin, who the Panel agreed to accept as an expert witness qualified to provide opinion evidence on the practice of audiology in Ontario.
64Mr. Chasin was asked to review the audiometric testing conducted on ML, by the Registrant. In Mr. Chasin’s opinion the testing did not include a complete examination. There was no mention of results. There was no tympanogram reading or speech audiometry testing. Further, he noted that there was no measure of next steps in terms of counselling. He opined that a true patient record would include demographic and medical information and would include information of a diagnostic quality, which is absent in the testing report produced following ML’s testing.
The Onus and Standard of Proof
65The Panel understands that the College bears the onus of proving the allegations in this case on a balance of probabilities. The Registrant does not bear any obligation to prove his version of events or to disprove the College’s case. In order for the Panel to make a finding, it must be satisfied that the College has established that it is more likely than not that the events occurred as alleged.
Assessment of Credibility and Reliability
66The Registrant is not challenging ML’s credibility. He agrees that she presented at the hearing as someone who believes the truth of what she is saying. However, he argues that her memory is flawed. He submits, in contrast, that his evidence was both credible and reliable.
67In R. v. Nyznik, 2017 ONSC 4392 at para. 35, the court explained:
Typically, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. Reliability has to do with the accuracy of a witness’ evidence – whether she has a good memory; whether she is able to recount the details of the event; and whether she is an accurate historian. Credibility has to do with whether the witness is telling the truth. A witness who is not telling the truth is by definition not providing reliable evidence. However, the reverse is not the case. Sometimes an honest witness will be trying her best to tell the truth and will fervently believe the truth of what she is relating, but nevertheless be mistaken in her recollection. Such witnesses will appear to be telling the truth and will be convinced they are right, but may still be proven wrong by incontrovertible extrinsic evidence. Although honest, their evidence is not reliable. Only evidence that is both reliable and credible can support a finding of guilt beyond a reasonable doubt.
68The Registrant argues that ML’s evidence is not reliable for five reasons:
(a) ML’s memory has been eroded by the passage of time, and she acknowledged that the details are difficult to recall. She made notes the night before her testimony to assist her.
(b) For the first time in cross-examination, ML said for the first time that she could feel the outline of Mr. Ashtari’s penis and the warmth of his body when he is alleged to have brushed against her.
(c) ML’s complaint alleged that the brushing occurred during a tympanometry test while a piece of hearing testing equipment was being placed on her head. She never reported a probe being placed in her ear, which is required for tympanometry.
(d) Her initial complaint alleged that the incident happened on December 9, 2017, not December 16.
(e) ML’s evidence is inconsistent with the Registrant’s records. There is no record of a “Caucasian lady”, or anyone else, coming to Alpha for a hearing test on December 16. The system retains the records of all hearing tests and they cannot be deleted. ML says she saw the graph from the test on the Registrant’s workstation, which means a record was created. The electronic files of the clients who attended for adjustments are time stamped as occurring before 2:30 pm, when ML says she arrived. ML was given the description of the female patient in cross-examination and said that was not the person she saw.
69In considering the witnesses’ credibility, the Panel was mindful of the following, among other things:
(a) Were there internal or external inconsistencies in the witness’ testimony and if so, was there a reasonable explanation?
(b) Has the witness previously given a statement that is inconsistent with part of their testimony that may affect their reliability?
(c) What was the witness’ ability to recall the relevant events in question?
(d) Did the witness provide evidence that was contradicted by other witness evidence and/or documentary evidence? If so, was there an explanation?
The Panel’s Findings
General Comments on Credibility
70Despite some inconsistencies in ML’s statements regarding dates of occurrence, the Panel finds ML’s testimony pertaining to the touching incident reliable and credible. The order and details recounted by ML during testimony remains consistent with previous statements. Additionally, the texts and messages between ML and her friend on the date of the incident support ML’s account of the December 16th meeting.
71While the Panel recognizes the inconsistencies in some of ML’s statements, we note that such inconsistencies pertain to details such as dates, times, names, etc., memories we would expect to fade over time. Despite these inconsistencies, ML’s account of the details of the incident remains unwavering.
72On the other hand, Mr. Ashtari’s story changed in fundamental ways. First, he claimed not to have tested ML’s hearing and then admitted he had. Second, as discussed in more detail below, he initially claimed not have seen patients on December 16 and then said he had seen two Iranian patients. In essence, his explanation for these changes is that he had found more information in his records. Good record-keeping is a core part of the work of an audiologist, as it is for any health profession. The Panel does not accept that he would have been so careless in locating records, knowing he was under investigation by the College for extremely serious misconduct.
ML attended at the Registrant’s Clinic on December 16th
73The Panel is satisfied that a meeting took place between ML and the Registrant on December 16th, 2017, as alleged and that the Registrant is not telling the truth when he denies this.
74Text messages that ML sent at the time show that she did go to the Registrant’s clinic on December 16. The Panel recognizes that we cannot rely on the fact that ML made a prior consistent statement as proof that it is true; repeating a story doesn’t make it truer. However, in this case the Registrant is arguing that the passage of the time and ML’s allegedly poor memory have led her to believe things that did not occur, and that we should believe the Registrant that no meeting took place. In other words, he is arguing that ML has unintentionally fabricated the story, including that there was a meeting on December 16. The text evidence is admissible to answer this theory.
75The contemporaneous text messages are compelling documentary evidence that supports ML’s assertion that she went to the Registrant’s clinic on December 16. She texted her friends both before, and after the appointment. There is no question it was the Registrant’s clinic she was attending.
76The text message about having to watch the audiology YouTube videos and the extensive notes that she made starting on December 13 also support her evidence that the Registrant asked her to watch those videos before their next meeting. She would likely not have made those extensive notes in such a short time if she had not been expecting to return to the Clinic.
77We accept that the ML made an error about which Saturday the events occurred on when she originally made the complaint.
78We therefore find that ML is accurately recalling that she went to Alpha and met with the Registrant on December 16, 2018. We do not accept the Registrant’s evidence that no meeting took place on December 16th.
The Registrant Touched ML on December 16, 2017 as Described
79ML testified that while demonstrating the tympanometry procedure, she was asked to turn her back to Mr. Ashtari so he could place the tympanometry equipment on her head. It is during this time that Mr. Ashtari reportedly brushed his groin against ML’s buttocks “in successive up-down movements.” ML contends that this action was entirely non-consensual and left her feeling violated. Additionally, Mr. Ashtari reportedly put his hand on ML’s thigh, held her hand, brushed his hand against her chest region several times, and touched her face, neck and shoulders repeatedly. ML stated that although these actions made her feel uncomfortable and violated, she continued to stay at the clinic for her scheduled volunteer session, leaving at 4:00 pm that day.
80We accept ML’s version of what occurred during the Saturday visit. As discussed above, her testimony was more clear, detailed and believable and the Registrant’s testimony shifted. Most important, we are satisfied that the College has established that the Registrant is not telling the truth about the fact that she visited the clinic that day. This detracts from his general credibility. In addition, the most logical conclusion is that he did not tell the truth about her coming to the clinic because he behaved inappropriately while she was there.
81We do not agree with the Registrant that the greater detail about what she felt (his penis and the warmth of his body) or the fact that she does not remember the equipment used for the test mean that she is not credible. We would not expect a witness to describe what she felt in exactly the same way each time, nor would someone necessarily remember the equipment that was used, particularly during an interaction in which she was touched in a sexually inappropriate manner. These details do not detract from her credibility, in particular given that we have found that the Registrant did not tell the truth about the very fact of her visit.
82We also accept ML’s evidence that a new patient attended for tests on December 16, 2017 while she was at the clinic. While ML recounts an older woman attending for a free hearing test conducted by the Registrant, Mr. Ashtari contends he has no record of this visit. However, he does note records on hand for the visits of two other patients on that date, occurring around 11:00 am and 12:30 pm, respectively,
83The Panel finds that the Registrant’s record-keeping is unreliable. Despite his initial reports to the College investigator that no patients were seen that day, he later identified the two patients. The Registrant also indicated that he does not keep paper files on hand for patients, as the files are stored electronically through the office management system and cannot be deleted. Mr. Ashtari reportedly had considerable difficulty in retrieving these electronic records requested during the investigation by the College. His story about who he saw that day changed as he located more records. We do not accept his current evidence as accurate.
84The Registrant relies only on his own testimony for the proposition that evidence of the hearing test could not have been deleted. We do not accept that. Most or all software allows for changes to records. Without expert, independent or more detailed evidence on the subject we do accept this questionable assertion.
85Finally, even if ML’s memory about patients that attended or their ethnicity is incorrect, that does not mean her description of being sexually touched is not reliable.
86Therefore, the Panel finds ML is a truthful and credible witness and accepts the details of the incident as presented in the College’s case. The College has proven that Mr. Ashtari rubbed his groin against ML’s buttocks, touched her thigh, held her hand, brushed the top of her chest and touched her face, neck and shoulders.
Should ML be considered the registrant’s patient?
87Of paramount importance to this case is whether or not ML was a patient of Mr. Ashtari. The College submits that ML was indeed a patient of the Registrant, relying Ontario (College of Physicians and Surgeons of Ontario) v. Redhead, 2013 ONCPSD 13, which sets a number of factors used in assessing patient criteria, including:
(a) whether the healthcare professional had a patient file for the patient;
(b) whether there were billing records for treatments provided by the healthcare professional to the individual;
(c) the number and nature of treatments received by the individual from the healthcare professional, and the location in which those treatments were received;
(d) whether the individual ever received a consent-to-treatment form;
(e) whether there was any documentary evidence in which the healthcare professional referred to the individual as his or her patient; and
(f) whether the healthcare professional referred the individual to other healthcare professionals.
88While Mr. Ashtari had an electronic record of a hearing test, he had no patient file for ML. He only treated her on one occasion. Both Mr. Ashtari and ML stated that the intent of conducting the audiogram was for demonstration purposes only. While Mr. Ashtari provided an interpretation of ML’s hearing acuity, both parties agree that the intent was not for diagnostic or treatment purposes but rather as a demonstration of what occurs in a standard audiometric examination and thus conducted for educational purposes only. The information in the electronic record of this audiometric demonstration is clearly deficient and lacks many criteria identified in Redhead, such as billing records, consent to treatment information, demographics, case history, and so forth. Additionally, it lacks the degree of completeness in diagnostic testing as determined by the professional standard. Demonstrations are often utilized in the profession as a method of teaching students, and frequently include performing audiometric testing using volunteers. Such testing may be utilized to demonstrate a particular test, technique, or for student experience and do not constitute a true patient-clinician relationship. If this was not the case, every audiometric demonstration conducted on a student volunteer by a registrant could be seen as a patient record despite the intent of the parties.
89Given all the evidence presented, the Panel is not persuaded on a balance of probabilities that ML was a patient of the Registrant.
90Despite the conclusion that ML was not a patient, the Panel still finds that Mr. Ashtari failed to maintain the standard of practice of the profession. Regardless of ML’s role in this case (i.e., patient vs. student volunteer), the question still arises as to whether or not Mr. Ashtari breached para 37 of the misconduct regulation. Certain types of conduct are unacceptable for registrants, regardless of circumstances. In this situation, Mr. Ashtari was acting as mentor to a student volunteer, a position of authority and trust. His actions in this matter have demonstrated a gross abuse of this position and cannot be condoned.
91The law defines “failure to maintain a standard of practice of the profession” and conduct “that would reasonably be regarded by registrants as disgraceful, dishonourable or unprofessional” as acts of professional misconduct for members of these professions: see O. Reg. 749/93 made under the Audiology and Speech-Language Pathology Act, 1991, SO 1991, c. 19. It is evident that non-consensual touching of a sexual nature falls under both categories, regardless of the complainant’s position (i.e., patient vs student volunteer) or the circumstances of the situation (patient-clinician relationship vs mentor-student relationship.)
92The Panel therefore finds that Mr. Ashtari committed these acts of misconduct as alleged, save for the allegation that he sexually abused a patient. Given our finding that ML was not a patient of the Registrant, the Panel makes no finding of sexual abuse of a patient.
93The Committee will schedule a penalty hearing.
I, Kim Eskritt, sign this Decision and Reasons for the decision as Chair of this Discipline panel and on behalf of the members of the Discipline panel as listed below:
September 4, 2024.
Date
Simone Fischbach
John Leitch