COURT FILE NO.: 304/02

DATE: 20030521

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, SOMERS AND GREER JJ.

B E T W E E N:

COLLEGE OF MASSAGE THERAPISTS OF ONTARIO

Respondent

• and -

SCOTT BROWN

Appellant

Richard H. Shekter and Elizabeth A. Hall, for the Respondent

Irwin Koziebrocki, for the Appellant

HEARD: May 21, 2003

THEN J.: (Orally)

1This is an appeal from the decision of the Discipline Committee of the College of Massage Therapists which found the appellant guilty of professional misconduct with respect to an act of sexual abuse through inappropriate sexual touching and through verbal abuse of a female client.

2The Committee imposed a penalty of nine months suspension, which could be reduced through the appellant's participation in counselling pertaining to personal boundaries, and also imposed an order requiring the appellant to pay $5,000 for the costs of the proceeding.

3In its Reason for Decision, the Committee stated the following:

"This was a difficult case to adjudicate, as there was conflicting evidence as to what did or did not occur on January 6th, 2000. Credibility became the primary issue to determine. The Panel was concerned that the complainant took it upon herself, to coerce a confession from the member in consideration of her not filing a complaint. The Panel was also concerned by the conflict in testimony between the College's investigator and the complainant. The allegation that the College's investigator attempted to obstruct justice was extremely serious. After substantial deliberation, the Panel unequivocally accepts the evidence of Mr. McGrath that he did not counsel the complainant to withhold evidence. The discrepancy in the evidence between the complainant and Mr. McGrath does not in our view diminish DM's credibility relative to her allegations against Mr. Brown especially in light of the member's admission that he likely did touch her as described. The member's admissions substantially accorded with the complainant's evidence. When combined with his failure to make any mention of his epilepsy or call any expert evidence in support of his defence leads us to accept the complainant's version of the facts. The professional members of the Panel were also concerned that the manner in which the member described the course of the massage leading to the touching of the labia was not convincing. The Panel was of the view that his fingers rather than his elbow did in fact touch the labia as described. Mr. Brown testified that he apologized a number of times without explanation. If it were indeed inadvertent and/or caused by his epilepsy the Panel believes that he would have apologized in different terms.

The majority of the Panel is of the view that the evidence against the member is cogent, compelling and convincing. We understand the onus is upon the prosecution to make its case and believe he has done so despite some concerns regarding an ancillary issue (Mr. McGrath)."

4Mr. Koziebrocki submits that once the Committee found that the complainant's evidence with respect to her discussion with Mr. McGrath was not accepted, the Committee was bound as a matter of law to find that her credibility was seriously affected with respect to the allegations against the appellant. He submits the Committee erred in law in holding that her credibility had not been diminished vis-à-vis allegations against the appellant.

5Mr. Koziebrocki also submits that the Committee erred factually in holding that the evidence of Mr. Brown confirmed that he touched her as she described substantially in conformity with her evidence.

6On the first point, while it would have been preferable for the Committee to have instructed itself in terms that given the discrepancy, the credibility of the complainant with respect to the allegations was affected and that they therefore should be very cautious to accept her evidence and indeed that it was dangerous to do so. However, the reasons as a whole make it clear that the Committee was greatly concerned with the discrepancy but nevertheless accepted the evidence of the complainant because of confirmation on the pivotal issue of whether the touching occurred deliberately as the complainant alleged or accidentally as maintained by the appellant.

7We are satisfied that while the manner of expression of the difficult legal concepts with respect to the discrepancy and its effect on credibility was not felicitous, due allowance must be made for the erroneous expression of difficult legal concepts in the course of reasons given by lay tribunals (See Re Del Core and Ontario College of Pharmacists (1985), 51 O.R. (2d) 1 at p.7 (C.A.)).

8We are not persuaded despite the manner of expression that the Committee did not properly appreciate the legal significance on the issue of credibility of the discrepancy between the complainant's evidence and that of Mr. McGrath in the context of the entire reasons and the impact of that discrepancy on the result.

9As to the second point, we are of the view that while the Committee overstated the similarity between the complainant's evidence and that of the appellant as to the touching of the complainant, the appellant did admit that he probably did touch the complainant's genitalia with his elbow as a result either of a twitch induced by his epileptic condition or as a result of an error in therapeutic treatment. We are all of the view that it was open to the Committee to find the evidence against the appellant to be cogent, compelling and convincing in reliance upon the strong confirmatory evidence referred to by the Committee.

10Insofar as the Committee's findings of credibility are factually based, we do not find those findings to be unreasonable. (See Dr. Q. v. College of Physicians and Surgeons of British Columbia, para. 38 and 39). Moreover, notwithstanding the language used with respect to the complainant's credibility given the discrepancy with the evidence of Mr. McGrath, we are not persuaded that this error and the factual error alleged affects the decision as a whole. In this respect see Law Society of New Brunswick v. Ryan, para. 56.

11As to the issue of penalty, we can discern no error in principle such that the punishment does not fit the crime which would warrant our interference with the judgment of the Committee. In this respect we adopt the views of Mr. Justice Robins in Re Takahashi v. College of Physicians and Surgeons of Ontario (1979), 26 O.R. (2d) 353 (Div.Ct.) at 363 where he stated the following:

"The Discipline Committee of a professional body is charged with a public responsibility to ensure and maintain high standards of professional ethics and practice. The penalty imposed by it against the member for professional misconduct as has often been said is not to be lightly interfered with. The Committee in the proper discharge of his function is best able to assess the gravity of the misconduct and its consequences to the public and to the profession. Unless there is error in principle, unless the punishment clearly does not fit the crime so to speak, a Court sitting in appeal ought not to disturb the penalty and substitute its judgment for that of the Committee."

12Accordingly, notwithstanding the able submissions of Mr. Koziebrocki, the appeal must be dismissed.

13Costs to the respondent in the amount of $5,000. On consent, we order that the appellant has two years to pay in conformity with the order made by the Committee that the appellant has two years to pay for the cost of the prosecution so that the two orders will dovetail.

THEN J.

SOMERS J.

GREER J.

Date of Reasons for Judgment: May 21, 2003

Date of Release: May 28, 2003

COURT FILE NO.: 304/02

DATE: 20030521

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT