DISCIPLINE COMMITTEE OF THE COLLEGE OF CHIROPODISTS OF ONTARIO
Indexed as: Ontario (College of Chiropodists of Ontario) v. Member, 2023 ONCOCOO 5
THE DISCIPLINE COMMITTEE OF THE COLLEGE OF CHIROPODISTS OF ONTARIO
IN THE MATTER OF a Hearing directed by the Inquiries, Complaints and Reports Committee of the College of Chiropodists of Ontario pursuant to Section 26(1) of the Health Professions Procedural Code being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended.
BETWEEN:
COLLEGE OF CHIROPODISTS OF ONTARIO
- and -
MEMBER, D.Ch.
PANEL MEMBERS:
Cesar Mendez Chair, Professional Member
Reshad Nazeer Public Member
Brooke Mitchell Professional Member
Chad Bezaire Professional Member
Allan Katz Public Member
COUNSEL FOR THE COLLEGE:
Debra McKenna
REPRESENTATIVE FOR THE MEMBER:
Lisa Hamilton
INDEPENDENT LEGAL COUNSEL:
Justin Safayeni (June 5, 2023) Luisa Ritacca
Hearing Dates: June 5-7, 2023
Decision Date: July 6, 2023
Release of Written Reasons: July 6, 2023
Decision and Reasons
- This matter came on for hearing before a panel of the Discipline Committee on June 5, 2022. With the consent of the parties, this matter was heard electronically.
Publication Ban
At the outset of the hearing, the College sought an order banning the publication of the name of the complainant (the “Patient”) and banning the publication of any information that could disclose their identity. The Member’s counsel consented to the request.
The Panel was satisfied that a publication ban as requested was appropriate in this matter and made the order accordingly. The Panel’s order applies to the Exhibits, including the Notice of Hearing, as well as the Panel’s Decision and Reasons.
Overview of the Allegations
The allegations made against the Member are set out in a Notice of Hearing, dated May 27, 2022, which is attached as Appendix “A” to the Panel’s Decision and Reasons.
In brief, it is alleged that [the Member] engaged in sexual abuse of a patient during the period from approximately August 2015 to October 2015. In particular, it is alleged that the Member engaged in a personal conversation with the Patient during an office visit; he exchanged phone numbers with the Patient and made comments of a sexual nature to [the patient] via text and/or telephone communications; and on at least one occasion, he engaged in touching and/or behaviour of a sexual and/or inappropriate nature with the Patient. In addition to sexual abuse, the College alleges that this conduct amounted to a contravention of the standards of practice of the profession, practising the profession while the member was in a conflict of interest, and conduct which, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional.
There was no dispute between the parties that if the Member engaged in the conduct as alleged, such conduct would constitute sexual abuse as that is defined in the Code and professional misconduct as specifically enumerated in the Notice of Hearing. Further, there was no dispute that the onus was on the College to prove the allegations on the civil standard of proof – that is on a balance of probabilities.
For the reasons set out below, the Panel finds that the College has not discharged its burden of proving the allegations against [the Member] on a balance of probabilities.
Evidence
[The Member] was born in India. He came to Canada in 1994 and has been a member of the College since July 2005, having graduated from the Michener Institute the same year. At the time of the hearing, the Member worked as a chiropodist at [the hospital], [the clinic], a private practice in [], and at the [ ] (“Health Centre”). The Member has been married since May 2015.
The Member has worked at the Health Centre continuously since 2007 and it is there where he first met and treated the Patient, from August 2015 to October 2015. The Health Centre is a converted two-storey bus station, which serves marginalized and vulnerable populations within Hamilton. In addition to providing chiropody services, clients can access additional medical and social services.
The Member described the Health Centre as busy and loud. He explained that his treatment room was repurposed office space on the second floor of the Centre. It could be accessed via stairs or elevator. He had a small waiting area outside his treatment room, where people were usually standing to wait for their appointment. According to the Member, anyone attending for a chiropody appointment would have to check in at reception on the first floor of the Health Centre.
The Panel heard from both the Member and the College Investigator that the Member performed chiropody services in a small treatment room, which had a treatment chair, which was attached to the floor, a countertop, window, and room for the Member’s chair and one other visitor chair. Outside the treatment room there was a sign reminding patients to check in with reception before sitting in the waiting room. While the treatment room was private, it was not totally soundproof. The Member explained that you could hear voices from the treatment room in the waiting room, although you could not hear what was specifically being said.
The Member testified that most people attending for chiropody services must make an appointment beforehand. He typically sees between 20 and 25 patients per day and as a result does not usually have time to see drop-in patients. This was true in 2015 as well. The Member did acknowledge, however, that the Health Centre does try to accommodate drop-in patients with an urgent issue, like a wound or infection. Other than instances where there is an urgent need to be seen, drop-in patients are asked to make an appointment for another day.
The Patient first attended the Health Centre for foot care on August 6, 2015. According to the Member’s clinical notes for the Patient, he attended to her on three occasions – August 6, August 11, and October 13, 2015, at which time the Patient asked to be discharged from his care.
According to the Member’s clinical notes, at the Patient’s first visit on August 6, 2015, he completed a medical history, discussed the Patient’s chief complaint, noted that she had corns and a leg discrepancy. He also noted that the Patient was new to Canada and that she walks everywhere as she does not drive. He developed a treatment plan, which included debriding the corn and taking a measurement of the Patient’s leg lengths. The Patient and the Member also arranged for the Patient to reattend to have casting done for orthotics.
At the Patient’s second visit with the Member, the clinical notes indicate that the Patient reported to the Member that she was not feeling happy (overwhelmed). The Member noted that that the Patient asked him “personal questions”. The Member further noted that he told the Patient that it “is inappropriate to discuss” his “dating/marital status”. The Member recorded that the Patient seemed disappointed/quiet in response and that he suggested to her to see a social worker at the Health Centre if she needed someone to talk to. The Patient told the Member that she would consider that. The Member noted that there were no further questions regarding personal matters after that. The Patient was cast for orthotics at this second visit.
The Member’s clinical notes record that the Patient was scheduled to attend for a third visit on September 3, 2015, but did not show up. Instead, according to the clinical notes, the Patient arrived at the Health Centre on October 7, 2015, without an appointment, to pick-up her orthotics. The Member was notified by reception that the Patient was present. The Member told reception that the Patient would have to make an appointment to have her orthotics dispensed in person. The Patient reattended on October 13, 2015, at which time the Member dispensed her orthotics, and she was discharged by him, as per her request.
The Member confirmed that he did not have an independent recollection of the Patient or his interactions with her beyond what he set out in his clinical notes at the time. He said he did not communicate with or see the Patient outside of the three visits recorded in his clinical notes and that he did not provide the Patient with his telephone number, as alleged.
According to the Patient, she attended at the Health Centre and was seen by the Member on the three occasions recorded in the Member’s clinical notes, as well as on at least one additional occasion, sometime between August 11 and October 13, 2015.
The Patient testified that she was born in [ ] and moved to Canada as a young child. Thereafter, she moved back to [ ] a few times and as of August 2015, she had just recently returned to Canada from spending time abroad. While it was not entirely clear from the Patient’s testimony, it appears that the Patient was unemployed and receiving Ontario Works benefits between May and at least September/October 2015. The Patient was also a member of the [ ].
The Patient told the Panel that she suffered a head injury as a teenager and that more recently, just prior to filing her complaint with the College, she suffered another head-related injury at work. She described it as a “concussion from work.” She also described herself as a survivor of an acquired brain injury (ABI).
The Patient did not take issue with the Member’s clinical notes, which described her visits on August 6, 11 and October 13, 2015. She also did not dispute that she attended the Health Centre on at least one occasion, when she was told that she would have to make an appointment for another day to have her orthotics dispensed by the Member.
With respect to the allegations of sexual abuse the Patient provided the Panel with the following information:
(a) The Patient testified that during the August 11th visit, she had recently returned to Canada, that it was a difficult time for her and that she was in a bad place due to her mental health. She said that given that the Member was also from Europe1, she felt a connection to him, and she took it upon herself to ask him if they could connect outside of the Health Centre and perhaps go out for coffee. The Patient testified that while the Member was initially taken aback by her offer, saying “no” to her, he later changed his mind, and they exchanged telephone numbers.
(b) The Patient testified that while a coffee date was originally arranged, it was subsequently canceled by the Member. She said she was disappointed, but she could not recall the details of when and how the date was cancelled. She acknowledged that she had no in-person interactions with the Member outside of the Health Centre.
(c) The Patient testified that she and the Member communicated throughout this period, however she was not able to recollect how frequently, whether they communicated via telephone or text or both, and who initiated the contact. The Patient described these communications as sexual in nature. She recalled a specific conversation when she was sitting outside of a [ ]station with her dog. She said the conversation was so sexual that she recalled feeling aroused and telling the Member that.
(d) The Patient testified that at some point the Member told her to come to the Health Centre without making an appointment. She said she was able to get past reception and onto the elevator without checking in with reception. During this visit, the Patient testified that the Member pulled her inwards, close to him, hugging her tightly. She said that the Member had his arms around her waist and was pulling her close to kiss her. The Patient testified that the Member said, “we could fuck on the chair”. Initially, the Patient believed that the chair was facing the window and that it could swivel. The Patient could not recall whether this incident took place before or after the time she attended the Health Centre without an appointment and she was turned away (October 7, according to the clinical notes).
(e) The Patient testified that at some point during her communications with the Member she learned that he had a girlfriend, which surprised her. She said that the Member invited her to have a threesome with him and his girlfriend. The Patient said that she felt set-back and rejected when she learned of the Member’s girlfriend. She wondered why he would express any sexual interest in her if he was already with someone else.
(f) The Patient testified that at her last visit, the Member dispensed her orthotics, but the visit was uncomfortable. She said that while the Member was “acting normal”, she was very distant, and the Member seemed nervous.
- The Patient made a complaint to the College about the Member’s alleged conduct in August 2021. In explaining why she did not complain about the Member sooner, the Patient first told the Panel that she initially felt like she did not have any proof of the conduct and that she would not have been believed. She later told the Panel that she complained in 2021 because she had only recently started to remember what had happened as memories resurfaced. She did not describe how or why she had memories resurface at that time.
Decision and Reasons
As set out above, the Panel concludes that based on the totality of the evidence received, the College has not discharged its burden of proving on a balance of probabilities that the Member engaged in professional misconduct as alleged in the Notice of Hearing.
In reaching its decision, the Panel carefully considered the evidence of the Patient, the Member, and the clinical records available. On balance, the Panel did not find the Patient’s evidence to be reliable. There were several inconsistencies and gaps in her testimony which the Panel could not overlook.
In reaching its decision regarding the Patient’s evidence, the Panel carefully considered its obligation to avoid stereotypical assumptions or myths about how a victim of sexual abuse should behave in a given circumstance. The Panel assessed the Patient’s evidence recognizing that testifying about a difficult experience can be challenging, and that given the passage of time, it was reasonable for the Patient not to be able to remember every detail. On balance, however, the Panel was not satisfied that it was more likely than not that the sexual abuse occurred as alleged.
In weighing the credibility of the evidence received, the Panel considered both the truthfulness of the witness’ testimony and the reliability of that testimony. The Panel understands that while a witness could have an honestly held belief about a fact or certain events, their evidence may nonetheless be unreliable given their inability to recall important details, their ability to perceive the events at issue and the overall consistency or lack of consistency in their testimony.
The Patient testified that during her second visit with the Member, they agreed to exchange telephone numbers, after some initial hesitation by the Member. The Patient was unable to recall any detail as to how they exchanged numbers or even exactly when the exchanged numbers. When pressed, the Patient said she was unable to recall even whether this exchange took place during the same visit (i.e., the second visit) when the Member had initially expressed discomfort. On balance, the Panel was not satisfied the Member had in fact provided the Patient with his contact information for the purposes of engaging in personal communications with her or at all. The Panel finds that it is more likely than not, given the Member’s clinical notes for August 11, 2015, that the Patient raised something personal with the Member and that he told her that it was not appropriate for her to be asking him those questions.
The Patient’s testimony regarding the alleged communications with the Member was not reliable. She gave unclear and inconsistent answers about how frequent these communications were, who initiated them and whether they were via telephone or text. For example, the Patient said initially that the Member invited her into a threesome with his girlfriend via text, but under cross-examination said that it was during a telephone call. While it is possible that these communications occurred, given the number of times the Patient equivocated on the key details and evaded probing questions during cross-examination, the Panel could not rely on the Patient’s evidence in this regard and was as such not satisfied that it is more likely than not that the Member exchanged communications with the Patient – either by telephone or text – that were of a sexual nature or at all.
In her initial complaint and in subsequent communications with the College, the Patient inferred that she snuck in to see the Member at the Health Centre on more than one occasion, but during her testimony she appeared to concede that in addition to the three scheduled visits with the Member recorded in the clinical notes, there was only one other time that she attended the Health Centre without an appointment and interacted with the Member. Given the passage of time, it is not unreasonable for the Patient to have forgotten specific dates of events, but the Panel found the Patient’s testimony unclear. It was difficult to follow even the basic sequencing of the events the Patient said occurred. Her testimony was inconsistent regarding when the text/phone call exchanges took place in relation to her visits at the Health Centre. Further, she could provide no clarity as to when the alleged assault took place in relation to her other visits to the Health Centre and the alleged text/telephone communications. Further, on several occasions during cross-examination, the Patient became evasive and simply refused to answer questions that she found difficult or offensive (even in the absence of any objections from counsel or the Panel). This made it difficult for the Panel to rely on the Patient’s retelling of events.
In the Patient’s initial complaint to the College, she explained that when the Member forced himself on her she was in his treatment room with the treatment chair swiveled to be facing the window. The evidence of the Member and the College Investigator confirmed that the treatment chair was bolted to the ground and could not be swiveled to face the window. Faced with this information, the Patient seemed to equivocate on whether the chair could swivel and/or whether it was facing the window. While the Panel was not persuaded that the Patient’s memory regarding the chair was in and of itself fatal to her credibility, this change in her evidence, taken together with the lack of coherency in her evidence in total, did factor into the Panel’s assessment of the overall reliability of her evidence.
As previously noted, in many instances during her cross-examination, the Patient refused to answer questions, becoming angry and accusing counsel of victim blaming. The Panel did not find the questions to be objectionable. Unfortunately, the Patient’s reaction toward probing questions from counsel largely diminished her credibility and the reliability of her evidence.
The College argued that the fact that the Patient knew some personal information about the Member supported her assertion that she and the Member had engaged in personal conversations. In particular, the College noted that the Patient had reported knowing that the Member was in a relationship, that he had a motorcycle and where he lived. The Panel considered this evidence carefully. While the Patient did know that the Member rode a motorcycle, the Panel did not find that this information was particularly personal or difficult to ascertain. As the Member noted, he had a motorcycle helmet visible in his office at the Health Centre. While it is possible that the Member told the Patient about his motorcycle, it is equally as possible that she saw him arrive on the motorcycle and/or noticed his helmet in his office. It is also possible that the fact he rode a motorcycle was something that might have been discussed during one of the three office visits.
With respect to the Member’s relationship status, it is important to note that the Patient testified that the Member told her that he had a girlfriend during their communications. The Member was in fact married during the relevant time and so the Patient’s information was incorrect. Finally, the Patient testified that the Member told her he lived in “Etobicoke” or somewhere in the Toronto area. At the relevant time, the Member lived in Mississauga. Again, it appears that the Patient did not have accurate information about the Member’s residence. We are not persuaded that the Mississauga is located in the “Toronto area” as the College suggested.
In contrast to the Patient, the Panel found the Member’s evidence to be clear and cogent. While he did not have an independent memory of his interactions with the Patient, his testimony regarding the ordinary practices at the Health Centre, together with his clinical notes provided the Panel with a clear and compelling picture of the Member’s interactions with the Patient. Further, the Member’s denial of any sexual abuse or inappropriate conduct in relation to the Patient was steadfast. His testimony remained consistent through examination-in-chief and cross-examination and was consistent with his written responses to the Patient’s complaint filed with the College.
The Member’s evidence that it was highly unlikely that the Patient could have attended the Health Centre without an appointment and could have come up to the Chiropody clinic on the second floor, is consistent with the evidence of the Investigator, the Member’s clinical notes, and the Patient’s own acknowledgement that on at least one occasion she attended the Health Centre without an appointment and was turned away.
In support of the suggestion that the Patient attended the Health Centre and gained access to the Member without an appointment, the College relied on the fact that the Member had a copy of the Patient’s funding approval letter for her orthotics in his file. The College argued that this was evidence that the Patient likely did attend the Health Centre and was seen by the Member at some time in addition to the three visits recorded in the clinical notes. The Member explained that the letter could have been dropped off at anytime with Health Centre’s reception and that just because it was in the Patient’s file, does not mean that the Member would have seen the Patient. The Panel agrees. It is certainly possible that the letter was dropped off at some point before the Patient attended to pick-up her orthotics. The Member testified that it was not unusual for him to order orthotics before receiving confirmation for funding since funding for his patients on social assistance was never an issue.
The Panel is not persuaded that the Patient was in a position to attend at the Health Centre, without checking in with reception. The Health Centre’s registration process and security protocols outlined by the Member are consistent with information the College’s Investigator obtained. The Panel concluded that, while not impossible, these registration and security protocols make it unlikely that the Patient was able to enter the Centre, by-pass the registration desk, reach the Chiropody treatment room, interact with the Member in the Chiropody treatment room, leave the Chiropody treatment room, by-pass the registration desk and exit the Centre without there being any record of her attendance.
Further, the Panel accepts that the sign posted in the Chiropody clinic advising patients to go back downstairs and register before presenting to the Chiropody clinic is intended to redirect patients who have already registered to be seen by other practitioners at the Health Centre, and who are also scheduled for Chiropody services. While the Panel acknowledges that it is certainly possible that patients may, on occasion, get past the registration desk without checking in, the Panel does not accept the College’s evidence that this sign implies that this is a common occurrence and holds that is equally probable that patients, including the Patient, would not be permitted to proceed to the Chiropody clinic without first checking in at the registration desk.
In conclusion, the Panel is not persuaded on a balance of probabilities that the Member engaged in the conduct alleged in the Notice of Hearing. The Panel makes no findings against the Member.