COURT FILE NO.: 662/03

DATE: 20041026

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, MEEHAN AND SWINTON JJ.

IN THE MATTER OF a hearing panel of the Discipline Committee of the College of Chiropractors of Ontario held pursuant to the provisions of the Health Professions Procedural Code of the Chiropractic Act, 1991, Statutes of Ontario, 1991, Vol. 2, c.21 (“Chiropractic Act”) respecting one Dr. Gheza Kovacs, of the City of Toronto, in the Province of Ontario;

AND IN THE MATTER OF the Chiropractic Act and Ontario Regulation 852, Regulations of Ontario, 1993, as amended (“Chiropractic Act Regulation”);

B E T W E E N:

COLLEGE OF CHIROPRACTORS OF ONTARIO

Appellant

• and -

DR. GHEZA KOVACS

Respondent

Chris Paliare, for the Appellant

Gary S. Farb, for the Respondent

HEARD: May 25 & 26, 2004

MEEHAN J. (Dissenting):

[1] This is an appeal by the College of Chiropractors of Ontario (College) (Appellant) from the September 29, 2003 decision of the Discipline Committee of the College of Chiropractors of Ontario, in which the majority of the Committee found that Dr. Kovacs (Respondent) did not commit any acts of professional misconduct.

[2] The Appellant seeks an order setting aside the decision of the Discipline Committee and a finding that the Respondent committed the acts of professional misconduct alleged in the Notice of Hearing. In the alternative, the Appellant requests that the Court return the matter to a different panel of the Discipline Committee for a new hearing.

[3] At the Hearing of the appeal, counsel for the Appellant indicated that in the event he was successful at appeal, the matter would have to go back for a new Hearing.

[4] As well as the revocation of his Certificate of Registration, the Respondent chiropractor also faced a fine of not more than $35,000, the risk of having to pay all or part of the College’s legal costs and expenses, including the cost of the investigation, the costs of conducting a hearing, the costs for funding provided for therapy and counseling for a person if the act of the professional misconduct was the sexual abuse of the person, and security acceptable to the College to guarantee the payment of any amounts he may be required to reimburse the College for a program of therapy and counseling for a person who was sexually abused by him.

Background

[5] This case relates to allegations of sexual abuse made by D.D. against the Respondent. She made a complaint to the College claiming that on November 9 and 12, 2001, he improperly touched her breasts, massaged her upper pubic area, fondled her buttocks and external genitalia and penetrated her vagina digitally. Hearings before the Discipline Committee were ultimately held on June 3, 4, 5 and July 10, 11, 2003.

[6] In a decision released on September 29, 2003, the majority of the panel of the Discipline Committee found that the College failed to make its case against the Respondent, largely due to a finding that the complainant was not a credible witness, based upon inconsistencies between her testimony and her earlier statement to the police and, as well, her videotaped statement.

[7] There was a dissenting decision that found the complainant to be a credible witness while noting that the Respondent’s denial of virtually everything the complainant said was not believable.

[8] Did the majority of the Discipline Committee err in law

(a) in its assessment of the complainant’s credibility

(b) by making findings of fact and/or by drawing unwarranted inferences from the evidence to support its finding that the Respondent was more credible?

[9] For the reasons that follow, I find that the Majority of the Discipline Committee did not err. I would dismiss the appeal.

Position of the Parties (The Appellant)

[10] The Appellant argued that the majority considered irrelevant factors and applied improper stereotyping. These irrelevant factors coloured the majority’s reasoning and caused them to reach an erroneous conclusion with respect to the complainant’s credibility. It was the submission of the Appellant that the standard of proof in professional misconduct proceedings is proof upon a balance of probabilities based upon clear, cogent and convincing evidence. It was their submission that the complainant met this standard. The majority erred in law in failing to accept her evidence.

[11] The majority relied upon the fact that there were no previous complaints against the Respondent to support a finding that the Respondent was a more credible witness. The majority also made assumptions about whether the complainant was a likely candidate for sexual abuse. This was an error in law.

[12] The majority also relied upon irrelevant factors concerning the complainant’s conduct following the assault, namely whether she sought a medical examination to secure corroborating evidence to assist her credibility. This was an error.

[13] The majority focused on irrelevant inconsistencies. The majority placed undue emphasis on irrelevant discrepancies between the complainant’s testimony and her description of the incident in a videotape police interview, such as the distinction between whether the Respondent licked his finger or spat on it. It was their submission that on the key elements of the complaint, the complainant’s testimony was consistent.

The Respondent

[14] The Respondent argued that the majority did not err in its assessment of the complainant’s credibility. The panel was entitled to consider the complainant’s less than convincing explanation as to why she attended the Sexual Assault Clinic, but refused readily available examination and testing. In that context, the panel was also entitled to consider the complainant’s statement that she went to the Clinic to “produce a record” as harmful to her credibility.

[15] The majority did not apply stereotypes surrounding sexual assault complainants; rather the panel applied common sense. The complainant was a nurse aware of proper hygiene procedures, the risks of sexually transmitted diseases (STDs) and whether there was any therapeutic value to the procedures she claimed were performed upon her. These were issues the majority was entitled to consider.

[16] The majority’s findings of facts and credibility were supported by evidence. There was sufficient evidence to support a finding that the Respondent was more credible. There were numerous inconsistencies and difficulties with the complainant’s testimony.

The Proceedings

[17] This matter apparently commenced in April 2003 and was adjourned at the request of counsel for Dr. Kovacs who had only received production of some records at the beginning of the Hearing due to the late production by the complainant.

[18] The Hearing proceeded again with a new member of the panel upon consent and, as well, with only four members of the panel.

[19] The chairman of the panel was a male chiropractor who apparently died before the reasons were released but he did form part of the majority. The three remaining members of the panel were a female chiropractor and a female lay person. The other female lay member was in the minority.

[20] As the Hearing commenced, there was difficulty again over production, since the day before the Hearing, various documentary items had been sent to Dr. Kovacs’s counsel’s office. Unfortunately, she was not there and was unaware of them as the Hearing started. She, however, had given three weeks before the Hearing, in compliance with the notice of provisions contained in the Statute, a copy of a medical report which had been prepared by an expert on behalf of the defence. It was based upon the disclosure given to her by the College, including the statement of the complainant as to the duration of the alleged penetration.

[21] The complainant’s statement was sent to the College in a letter dated February 18, 2002. It was based upon the handwritten statement which was dated Tuesday, November 13, 2001, which she had presented to the police and it had been reduced and typewritten and signed again by her before the police. It was also before her when she was videotaped shortly after her first complaint to the police.

[22] In all of those statements, the complainant indicated that the Respondent had inserted a finger into her vagina and initially continued to massage her internally for 10 to 15 minutes. She was then told to lie on her stomach. He then massaged her buttocks and inserted his finger into her vagina once again, for approximately five to 10 minutes.

[23] The College replied to her letter and indicated that her letter was unsigned and it should be signed, outlined the procedure to her, and once again, summarized the complaint to her, once again outlining the times which I have already mentioned. She was asked to confirm that this description accurately reflected her concerns about Dr. Kovacs.

[24] In a letter dated April 11, 2002, the investigator indicated that they were assuming she felt no changes were necessary.

[25] Her evidence at the Hearing was:

Question: Can you give the Committee some sense of how long his fingers would have been in your vagina while you were on your back?

Answer: Approximately five minutes.

Question: You will pardon me, but I just thought I would ask you this detail; was there any clocks in the room or did you have watch on or was there any sense, or are you just giving us your impression of how long this was?

Answer: Just going on what I thought the time was. I didn’t have a watch on and I didn’t look at a clock at all.

[26] They then went on to deal with the question of penetration while she was on her stomach. At page 136:

Question: Okay. Approximately how long would you have been on your stomach with his fingers in your vagina?

Answer: Approximately three minutes.

[27] When confronted in cross-examination with the difference in her testimony, she agreed that she had stood upon her statement as late as February 18, 2002 and that she stated in her evidence at page 216 that she was prepared to say that at the first hearing date. When asked:

Question: Okay. When, well but today is the first time you have ever told anyone it was actually three to eight minutes, is it not?

Answer: No, I discussed with the lawyers that it was about probably more likely five minutes the first, when he first inserted his fingers and then three minutes the second time.

Question: And you had this discussion yesterday with the lawyers?

Answer: No, about a month ago, before like in May.

Question: And did you give anything in writing the lawyers?

Answer: No.

[28] Mr. Paliare, at page 219, indicated that he became aware of it before the April Hearing date.

[29] Counsel for the Respondent then called to the panel’s attention that the first hearing did not go on because the defence had not been provided full disclosure until late and then went on to indicate that the expert’s report that she served May 6, 2003 was based upon the statements including the time interval of 15 to 25 minutes. She indicated it was only for the first time that the Respondent’s counsel heard about this change although the witness claimed that counsel for the Appellant knew about this a month ago.

[30] At page 219, Mr. Paliare indicated:

…I can tell you that prior to the last day of the hearing, it was before we were commenced, the information given to us by the complainant was that the times that were set out in her letter were inappropriate, that they were no longer than she recollected and they would have been, as her evidence today, basically approximately five minutes and approximately three minutes, and her explanation then as it is now is that it seemed like forever, so when she gave her statement within 24 hours and 48 hours, that it just seemed like it was forever.

[31] At page 219, line 12:

I don’t view either of those times as anything that was material. What was material was whether or not there had been penetration, whether it was for two minutes, whether it was for two seconds, whether it was for 20 minutes.

[32] At line 20:

…and isn’t anything that I would have ever turned my mind to as being something that my friend ought to have been apprised of, or that she would be concerned about.

[33] Counsel for the College then went on at page 220 to indicate that it was irrelevant because there was no evidence then or now that the complainant was ever examined, so there was no factual foundation for the Defendant’s expert’s report; it was meaningless, “…it is completely totally meaningless”.

[34] At page 221, line 19, counsel for the Respondent replied:

I’m a little dumbfounded that my friend would suggest that’s not material the length of time this penetration took place. We have an issue of credibility here.

[35] At the end of submissions, counsel for the panel indicated at page 224, line 18:

So in that sense the time estimate, although the duration of this event wouldn’t necessarily go to proving whether it happened or not in one sense, and if you look strictly at the legal elements that must be proven, in the broader sense as it relates to credibility, the estimate may, depending on the view you take of the complainant’s credibility, it may go to whether this event happened at all.

[36] It was suggested by counsel for the panel and accepted by the panel that there be a short adjournment so that the expert could be apprised of this new evidence that had only been given to them that day.

[37] Counsel for the College went on at page 232 to indicate that, in his view, the evidence of the doctor was now totally irrelevant. At page 233, line 8:

…So it’s completely a red herring.

[38] Counsel for the Respondent doctor wanted an order giving full disclosure by the College, even at that late date. The panel gave that order and adjourned the matter until the next morning so that counsel for the Respondent could consult with her expert.

[39] The next day, counsel for the Respondent returned having found the fax which had been delivered June 2, the day before the Hearing, setting out eight new pieces of information, one of which was the issue of the penetration and the timing of the penetration, which was sent over to her at 4:02 p.m. That letter seemed to indicate, at page 245, that that information had been conveyed to counsel only on that day.

[40] A further dispute arose as a result of that. At page 251, Mr. Paliare stated at line 19:

…That was disclosed to us the day before the hearing last day, not now, and we talked about the time issue. I’d get her to focus on that, say look at the time, is this how long it was? It seemed like that, she said, but I think honestly it was less time than that. You are going to be cross-examined on that. So she said, I understand. She said I just want to tell the truth. So, but you tell the truth as to what time elapsed during this, but there was no obligation on me, in my respectful view, to have told my friend that she would be able to cross-examine on it, she would be able to point out the inconsistency between the written statements and what she was saying under oath, but it wasn’t material so that I had to write to her about it.

[41] Counsel for the Respondent indicated upon her return the evening before, she received another letter with yet two more pieces of information and this was raised as “we met with [D.D.] and confirmed the following information”.

[42] Counsel for the College then went on to say that he sent the letter the day before this Hearing because by then he had seen the expert report. He went on to argue that the expert’s report would not be admissible in a court of law because there was no foundation for it.

[43] He then went on to review Stinchcombe and said at page 259, line 16:

It is a continuing obligation on the part of the prosecutor to make disclosure.

[44] As a result of all this, an order was made that all of the notes from Karen Jones, co-counsel to Mr. Paliare, be given to independent legal counsel to go through to determine what is relevant in relation to this issue. After this was done, independent legal counsel found that there were no additional items of information to which counsel for the Respondent was entitled.

[45] Another legal problem arose during the Hearing when in cross-examination, counsel for the Respondent chiropractor asked the witness if she had met with Mr. Paliare and his co-counsel Ms. Jones after the Hearing the day before, which of course would be during the course of cross-examination. At page 361, she was asked if they talked about the videotape and she indicated:

Answer: They asked me if I had ever seen the videotape since this had been done and I said no, and that was it.

Question: They showed you the report though of the doctor?

Answer: Yes, it was sitting on the table in front of me. I looked at it.

Question: Okay, but you’ve read the report you told us earlier.

Answer: Yes.

Question: So it is a little more than looking, you are reading it, right?

Answer: Yes

Question: Okay. What else did you talk about yesterday?

Answer: What time to come in today, things were going well, that’s about it.

Question: At no time did you tell your counsel yesterday about these various mistakes you’ve just told us about?

Answer: I don’t remember.

Question: So you may have?

Answer: It is possible.

Question: You have no recollection of whether or not yesterday after the hearing you had this conversation or you didn’t?

Answer: No.

Question: Okay. What time was the meeting?

Answer: Right after we got out, after everything finished yesterday. (Which is about 3:30 p.m.) (Emphasis mine)

[46] As a result of the late disclosure and the discussion between counsel for the College and the complainant, after the Hearing and during cross-examination, counsel for the Respondent asked for an order granting a mistrial with costs, because her client could not get a fair hearing as a result of these matters.

[47] Mr. Paliare was of the opinion that there was no Charter violation and Ms. Freeman thought that s. 7 guaranteed a person the right to a fair hearing and part of that was a full, fair and timely disclosure.

[48] This was discussed with Mr. Paliare at page 459:

Well I think if you remember the meeting, what she describes is a meeting, it turns out there is only one place that the member can sit, so she’s not out in the lobby and that’s in this room where there is a phone. I think you may recall that what she said was, I was on the phone while all of this was going on.

I must say I didn’t realize or appreciate it, and I don’t think Ms. Jones did, that the doctor’s opinion letter was on the table, but the opinion letter. I think that is what she said she read, the doctor’s opinion letter, that is the essence of it. What did you say to Paliare? He was on the phone dealing with his messages, which is what I do at the end of the day to try to keep the rest of my modest practice alive, and I have a hard time understanding what the nature of the concern would be, that she read the doctor’s report because we are going to have an argument about that shortly that it’s irrelevant in any event, there is nothing in that report, in my respectful view, that anybody would have given to her, certainly on the prosecution’s side to assist her in giving her evidence in cross-examination.

Should she have had it, I don’t, I wouldn’t have given it to her, that’s for sure, but I don’t think there is anything wrong in her having looked at it and her having read it.

[49] Ms. Freeman, for the Respondent, indicated that the actual testimony of the complainant was that she could not recall the discussion. She certainly did not say that Mr. Paliare was on the phone throughout the day.

[50] At page 465, Ms. Freeman’s motion was dismissed.

[51] It is difficult for me to comprehend why experienced counsel would, in the circumstances, leave himself open to an allegation that he was meeting with a witness during cross-examination, especially in the circumstances of her earlier change of testimony.

The Expert’s Report

[52] Counsel for the College objected to the introduction of the expert’s report. At page 546, counsel for the chiropractor submitted:

With respect to the attack on the report that my friend has made, he challenges the issue of the digital penetration and the length of time that the doctor has used in his assumption. Well we all know why that assumption was made by the doctor and that’s because, of course, that was the only information available to the defence, notwithstanding it was available to the College.

[53] The expert, of course, was a well-known doctor who had been a practicing gynecologist for over 30 years. The counsel for the Committee reviewed the various cases and indicated that the evidence, at least in substantial measure, was admissible, but the matter of weight was to remain until the end of the case when it was to be considered with all of the evidence. It was also mentioned that there was the basic fairness issue in this case because of the change in the time frame alleged by the complainant and the circumstances in which that occurred. Ultimately, the panel ruled that the expert witness could give evidence on certain limited portions of this report.

[54] Later, counsel for Dr. Kovacs tried to have the doctor’s statement, which had been produced so much earlier, introduced and, once again, Mr. Paliare objected. It was eventually allowed to be presented to the panel because Ms. Freeman was able to get a transcript which indicated that it had been identified by the witness D.D., contrary to the submissions of the College.

[55] Dr. Kovacs testified. He indicated that he did not have a criminal record. He described his career as a doctor in Hungary and Romania before he came to Canada where he went through a full course of chiropractic. He indicated that he was charged with a criminal offence as a result of this allegation. He produced a copy of the article in the Toronto Sun which gave his name and clinic address. That led to another exchange between counsel at page 52:

Ms. Freeman: I would like to submit this as evidence. I am not sure what exhibit we’re at.

Mr. Paliare: Ms. Freeman, I haven’t seen it. You did this the last time.

Ms. Freeman: You actually have seen this. You have a copy. I pulled it from your disclosure material. But I am quite prepared to show it to you again.

--- Pause in proceedings.

Mr. Paliare: I have no objection to its admissibility.

[56] Next, Dr. Kovacs was asked at page 53:

Question: Dr. Kovacs, other than the present complaint that we’re dealing with now, have you ever had any complaints registered against you during your 30-odd years in practice as a medical doctor or as a chiropractor?

Answer: No, I didn’t.

[57] It appears that the proposed trial date for the criminal matter was to be in March and the charges were stayed in January by the Crown, some six or seven months before this Hearing.

[58] From a technical viewpoint, Dr. Kovacs put his character in issue, as he was entitled to do. He was cross-examined in regard to a perhaps omitted place of residence, but it turns out only that he had taken examinations to become qualified in another American state but that he had never resided there.

Motive to Fabricate

[59] Ordinarily, this type of evidence would not play a major part in this type of Hearing because of legal constraints, however, unfortunately for Dr. Kovacs, counsel for the College asked him at page 82, line 9:

Question: And I take it you can’t think of any reason why she would have made up a complaint about you?

Answer: Well, there are many reasons, but I don’t know why.

[60] His counsel tried to rehabilitate him in regard to that potentially damaging question at page 52, Volume 5. His answer was:

Well, knowing a little bit the family, the father, the father told me they are a divorced family. So might have been a childhood problem of seeking attention situation. I don’t know. But they were a family fall apart. That could be a reason.

The other reason could be money. That happening everywhere. I am – basically, was an easy target, working myself, alone, because I couldn’t afford to be anything… Father – at least the father knew that I am alone in there, so it could have been an easy target, and might request some money, she might request some money. Sorry, yes?

Ms. Foster: (who is the minority) I didn’t understand that last reason.

The Witness: Last reason is that because I am working – I work myself alone, so maybe I was an easy target for anybody. People are just doing that. So to request some money.

Maybe a third thing I would say --

Ms. Freeman: Dr. Kovacs, the Panel member has a question.

Ms. Foster: I don’t understand how money has to do with this. What does money – you have mentioned money. You said working alone, easy target, and then you mentioned the word “money”.

The Witness: Well, yes. Well, people can make up a story and request – scare you, threaten you, and request money, and you pay, and it’s off.

And another thing could be psychological problem. You don’t know, because I – you know, I know, many people out there in hiring position basically are mentally or psychologically disturbed. Or a combination of that. I don’t know. Just, I am guessing. But there are many reasons too.

[61] This whole line of questioning is, in my view, improper. In R. v. S.(W.) (1994), 90 C.C.C. (3d) 242 at page 252, Finlayson J.A., speaking for the Court of Appeal, stated:

The Crown on appeal conceded that it was improper for the Crown at trial to demand an explanation from the appellant as to why the complainant would make up what counsel referred to as “this horrendous lie”. There is no onus on an accused person to explain away the complaints against him or her. The trial judge should have resolutely rejected this approach. Instead he implicitly adopted it.

[62] These words were noted with approval as well in R. v. Vandenberghe (1995), 96 C.C.C. (3d) page 371 at page 373. As well, R. v. Henderson (1999), 134 C.C.C. (3d) at 131 page 140 para. 15.

The Expert Evidence

[63] The expert was Dr. Steinberg, a highly qualified obstetrician and gynaecologist. He had treated women who were victims of sexual assault. He had taught and written numerous articles. Dr. Steinberg gave his evidence in relation to the possible visible damage as a result of this type of assault, as to the opportunity to gain an infectious disease with the insertion of ungloved fingers, and as to the training of nurses in regard to transmission of infectious diseases.

[64] As I indicated, he gave evidence over the objections of Mr. Paliare. He indicated that he might have expected to find secondary evidence with the shorter time of penetration, massage and opening of the thighs and he indicated that in 24 hours, much of the inflammation and swelling might have subsided. He testified that he might see some bruising; he might see areas of trauma with lacerations or superficial abrasions.

[65] He indicated the constrictive muscles of the vagina in that area could only be overcome at times with some force. The use of that force would be visible with the naked eye. He would have looked for it with high-powered magnification or possibly a dye. He indicated that if a woman was “surprised”, the normal response was constriction and that would lead to greater force to overcome the constriction and that being massaged by a stranger would not lead to lubrication and relaxation but more likely to constriction.

[66] He indicated that by 48 hours, the acute inflammatory response would have receded. There would be less swelling but that he could still see evidence of trauma or friction.

[67] He indicated: “Trauma for 15 minutes is an outrageously long period of time. That you would be more likely to see evidence of it than you would after five minutes. The degree of trauma would be exaggerated”.

[68] He described the purposes of wearing gloves and that nurses, particularly, are meticulous. He indicated how one took a pap smear and he also gave testimony as to the various diseases which could be transmitted in situations like this, although it would be difficult to transmit gonorrhea or chlamydia by hand.

[69] In cross-examination, Mr. Paliare suggested that Dr. Steinberg’s opinion was highly speculative. Dr. Steinberg refused to admit it was speculative. He said:

…I tried to make it easy to understand how, if one slots in these variables, one can draw a common-sense conclusion as to what one might or might not have found.

[70] Once again, at page 233, he said: “I didn’t speculate”.

[71] In cross-examination, he replied to a question from counsel for the College:

…in a –compliant woman who is looking forward to sexual activity, gentle action in this area can produce a favourable lubricant in sexual response. There are women who, even in appropriate circumstances, find this tissue so sensitive that it actually shuts down.

Certainly, in a woman who was surprised, frightened, or in a non-conducive situation outside of a, if I can paraphrase, a normal sexual interaction, I would be surprised that such activity would stimulate a positive secretion of fluid.

The Submissions of Counsel

[72] In his submissions to the panel, counsel for the College indicated the evidence will really “require you to make a determination of whether you believe D.D. or Dr. Kovacs”. At page 75: “…She had nothing to gain by filing this complaint”.

[73] Four matters were referred to by counsel for the College as evidence which would make the complainant more likely to be believed. The initial item was the lymphatic drainage aspect and the diagrams in the medical record. The second matter dealt with whether she was on her back for a portion of the treatments and he indicated that the diagrams put in by the defence showed a patient on her back. The difficulty with that evidence was that she denied that that was the type of treatment that she had. As well, the doctor testified that she was not on her back and the professional majority found nothing wrong with that testimony. The third item which could be corroborative is the matter of her emotional state which of course was only available in evidence by her testimony; no independent evidence was called as to her emotional state. The evidence on the record, including hers, was that after the event, she did make another appointment in the office with the chiropractor. As far as consistency, up until the actual Hearing, she produced the same written statement which she had written out before she went to the police. The fourth piece of evidence that he indicated was corroborative was dealing with the fact that she knew the chiropractor was left-handed. I will go on to deal with that specific piece of evidence later in this judgment.

[74] Dealing with the time situation, it was his submission that:

…in many ways it’s irrelevant…because Dr. Kovacs said it never happened. So you know, now you’ve got – you know, she says, ‘Lookit, he penetrated me.’ Whether it was five seconds, ten seconds, ten minutes, an hour, it’s inappropriate. It doesn’t matter how long it was, on the one hand. He denies it ever happened.

[75] He went on to indicate at page 88, line 15:

And when you – I know there was a concern by the Committee, and certainly one raised by my friend, about whether or not she changed her evidence, based on the expert’s report. You’ve got to deal with her evidence under oath. And I wouldn’t have called the evidence – as a professional, as a lawyer, I can’t call evidence that I know is untrue. It’s unprofessional to do it.

[76] This particular comment is inappropriate in jury trials and, in my view, it is also inappropriate in these types of quasi criminal proceedings.

[77] In a somewhat unusual submission, he indicated that her change in evidence was way back in April. That was not exactly correct as I indicated earlier. And then he went on to deal with her evidence about him standing on her left side and what hand was penetrating her? She said: “His left hand”.

[78] He then proceeded, as I view the situation, to give evidence by saying: “Doctor Kovacs indicated when he was sworn in that he was left-handed. He said: “Oh, sorry, I’m left-handed.” He said that when confronted in cross-examination and he said he was “ambidextrous”. Actually, the transcript at page 44, Volume 4, indicates as follows:

The Chair: Dr. Kovacs, if you would speak slowly and clearly, so that we can hear you, and so that the court reporter can get it.

I’ll ask Ms. Molu to either swear or affirm you. Which would you prefer? Would you like to swear on the Bible, or would you rather just affirm what you’re going to say is the truth?

Dr. Kovacs: I can swear on the Bible, no problem.

The Court Reporter: Can you put your right hand on the Bible.

Dr. Kovacs: Mm-hmm.

The Court Reporter: Your right hand.

Dr. Kovacs: Right hand? I’m left-handed, right-handed, both-handed, so it doesn’t matter.

[79] And later in his evidence, he indicated he was “ambidextrous”. Then, in his submissions, counsel for the College went on to indicate that Dr. Steinberg’s report was speculative. He called the report “complete red herrings, and totally irrelevant to the issues that you have to decide.” He then indicated that “on the third visit, sets up what I talk about as a two-stage predatory approach to this entire exercise”.

[80] Once again at page 96:

So you’ve got to ask yourself, is it consistent with common sense that she would have done this if it hadn’t occurred? It’s a criminal offense to do that, for openers, but is that likely? The answer – it’s a rhetorical question - of course not.

[81] He then went on to canvass the motive that the complainant might have. At page 100 and 101, he quotes Dr. Kovacs talking about money again. In my view, as I indicated earlier, this whole line of questioning was improper because it can be said to shift the onus to the accused, and that is exactly what it did. But in ordinary circumstances, the prosecution should not be allowed to benefit from the introduction of this type of evidence.

[82] Ms. Freeman, in her submissions, pointed out that there was no onus on Dr. Kovacs to prove that this event did not happen. She indicated that the onus was on the College to establish that this incident did occur. She said that the evidence of the complainant was rife with inconsistencies and “she displayed consistently a faulty recollection, and in some cases, I submit her testimony was sheerly unbelievable”. She pointed out that Dr. Kovacs had been pointed out on numerous occasions to be a predatory man by counsel for the College. She went on to indicate that in her view, that was unlikely, “with no previous record, with a 30-year unblemished medical record, with no criminal record, no previous complaints, no current complaints”, why would he choose to prey on a 22-year-old nurse who is a patient who is the daughter of a patient of a current client?” She went on to indicate at page 114, line 15:

…is it reasonable that a 22-year-old nurse, well-educated, visiting a chiropractor for what she describes as back problems, would allow a chiropractor to perform a five-minute breast exam, rub her vagina, massage her clitoris, spit on his fingers, ungloved fingers, penetrate her vagina for five minutes, ask her to roll over, to which she complies, and then penetrate her again. And that is really, in a nutshell, what the College is asking this Panel to accept happened.

[83] And she indicated at page 116, line 7:

And to explain what – to explain where she was at, she stated that she believed penetration could be part of treatment for back pain.

[84] She went on to indicate that it was unlikely that a trained nurse would allow a doctor to spit on his fingers and insert them into her vagina, and then roll over and allow it to happen again. She stated: “I thought this might be part of some technique that he explained to me that he forgot to tell me about.”

[85] She also knew the risk of STDs, through hand-to-genital contact, including the transmission of HIV, hepatitis, and HPV, and yet, she would have “this panel believe that she permitted an ungloved hand to penetrate her vagina for eight minutes, because it could be part of the treatment for back pain.”

[86] Ms. Freeman took issue with counsel for the College’s comments about Dr. Kovacs being left-handed and indicated that her notes, because she did not have a transcript because they could not afford one, said “left side, right side, it doesn’t matter to me.” Incidentally, it turned out that she was right.

[87] She went on to deal with the issue of the lymph nodes. She reviewed the evidence of the complainant, that she was shown a diagram where the lymph nodes were on the diagram of the lymph system and that Dr. Kovacs went on to explain the lymph system. She points to Exhibit 10 which indicated that the complainant had put “X’s running from the base of her neck down to the soles of her feet, and that perhaps is the reason that the issue of leg problems arose”. She went on to indicate that the answers of Dr. Kovacs in relation to the markings on the material were reasonable in that he treated other parts of the body so that those parts could be improved.

[88] She also submitted that it was for the other two panel members who were professionals to decide whether the treatment rendered was appropriate. She indicated: “And there’s been absolutely no evidence put forward that the chiropractic treatment rendered for - after day one for treatment of any sternum or groin pain was inappropriate.”

[89] She pointed out that any submissions that she made were not evidence in the case. She indicated that it was for them to consider whether the complainant had tailored her evidence to match Dr. Steinberg’s report and stated that the only evidence really as to that was the complainant who said that she brought this forth in April. There was no further evidence.

[90] Ms. Freeman also addressed the issue of lack of forensics. The witness D.D. knew about the clinic at her own hospital. On November 13, Nurse Zaida, her friend, told her to come in to the clinic. Also, on November 13, P.C. James said you should go to the clinic to get yourself checked out, but she did not go. She did not go until the 14th. When she did, she knew the treatment for sexual assault included counselling, the use of a rape kit, thorough examination of the vagina, and so on. And although Nurse Zaida, who, being a friend, did not want to examine her, the complainant did not in fact get herself checked out. She had no examination, nor was she tested for anything, although on her own admission, she went there to protect herself and for peace of mind. Ms. Freeman went on to review the evidence where the complainant first denied that Nurse Zaida either suggested or recommended an examination and she said it was discussed. She then asked if Nurse Zaida ever said she needed an exam and she said to Nurse Zaida: “I don’t need an examination because I have already taken a shower”. Nurse Zaida agreed with her response that she didn’t need an examination. At page 129, line 11:

Now, I ask you to consider this…that the complainant is deciding she doesn’t need an examination.

[91] Then, she indicated that as the discussion went on, Nurse Zaida told her that if she was going to have an exam, someone else would have to do it, but she could make arrangements for that exam.

[92] And when pressed in cross-examination, she admitted finally that Nurse Zaida may have said that there may be something there. But she couldn’t recall whether Nurse Zaida actually made the statement. And then she finally agreed that she did recall stating in response that she replied: “I was stubborn and said I’m okay with it, not having the examination.”

[93] Ms. Freeman also indicated that D.D. had attended at the Sexual Assault Centre, that D.D. took no counseling, even though they called her, and that D.D. said she had attended to provide a record.

[94] She then referred to the evidence of Dr. Steinberg, regarding what one might find in 24 hours and what you might find in 48 hours, and in the event it was 15 to 25 minutes, that he would have expected to have seen much greater trauma than was likely with the shorter time.

[95] Then, Ms. Freeman went through the variables set forth by Dr. Steinberg and attempted to note that there was evidence upon which he could rely. In the end, that the expert’s testimony said that after 48 hours, one would expect to see some evidence of trauma. So why would D.D. not have an exam?

[96] She went on to deal with the issue of STDs and other diseases in relation to the lack of an examination. She asked her: “How did she secure her peace of mind, one of her admitted purposes for going to the hospital? She took some pills. She didn’t know what they were for or, indeed, whether they were necessary.” According to her, she took the pills that were offered.

[97] Then in cross-examination, she asked the complainant why she would not take a two-minute exam which would have alleviated any fears and the reply was, “Well, I didn’t have the exam, because I was going to see my family doctor shortly for the yearly exam.” Then, when she was asked when the examination was set up for, “she finally admitted her visit was a couple of months away, a couple of months.”

[98] She then reviewed the complainant’s evidence in regard to telling her boyfriend who was a police officer. That he even offered to help her report the incident, but she chose to sit down and write out a four-page statement before going to the police. She gave the statement to P.C. James and he goes through the statement with her, gets her to initial it for accuracy and he initials it as well. Then she takes this four-page statement to go see Nurse Zaida and she reviewed it with Nurse Zaida and there were no changes. 72 hours later, she goes to the police station and gives a videotaped statement and she reviewed this statement before the taping of the video. Three months later, she makes a complaint to the College and she again turns her mind to this statement by typing it up. A few weeks later, there is a letter from the College requesting that she provide the College with any information of any inaccuracies in this statement and she does not do so.

[99] Then there is a further letter, April 11, 2002, indicating that they assume no changes are necessary. Within a short period of time before she says the timing changes because, according to her evidence, it changed in the month of April, when she advised someone. Counsel then went on to indicate the first time defence heard about it was June 2, 2003.

[100] Then Ms. Freeman dealt with omissions in the complainant’s testimony of items that were included in her written statements. Some of those items were in regard to Dr. Kovacs washing his hands and that she indicated that her knees were only pushed apart once. Then, finally, that she could not really recall if her legs were pushed apart one or more times. Ms. Freeman then went on to review the videotape, continued on to note inconsistencies between the videotape and the evidence at trial including whether Dr. Kovacs was having trouble penetrating her, which was in the videotaped statement, “so he licked his fingers and then inserted them into her vagina again”, but in her testimony, she said Dr. Kovacs had no trouble inserting his fingers into her vagina.

[101] She went on to indicate that, in the videotape, she said: “he inserted his fingers into her vagina again after licking his fingers” while at the hearing, she indicated that when his fingers were inserted, at no time had he removed them and re-inserted them. She went on to indicate that there would be nothing unusual about a nurse knowing where the lymph nodes were. Ms. Freeman also indicated that a large part of the complainant’s evidence was tailored or merged to make a better case.

[102] Ms. Freeman called attention to a great deal of confusion with D.D.’s explanation on the videotape, which seemed to indicate that there was no penetration after she rolled on her stomach and she indicated she told the officer: “If this happens again, I’m going to sit up and leave.”

[103] She also indicated that it was possible that after meeting with counsel, during cross-examination, that her questions to respond to certain inconsistencies were enhanced. For example, at page 167, she indicated in the statement on the video:

… ‘If this happens again, I am going to sit up and say something’, but he didn’t penetrate, her explanation, number one, she felt she had given enough detail already, ‘And I had nothing in front of me to help me with the story’. But this is clearly not true, because in the videotape, which I played for her, her written statement is sitting in front of her.

So I confronted her with that…So then she says, ‘Well, if I’ve missed anything, I thought the officer would have asked.’ So we see a shifting of responsibility.

[104] Ms. Freeman indicated that it is a merger of testimony, by saying that in the videotape, “she mixed things up and put them in a different order”. That the complainant now revises her evidence, which is by this point given numerous times, and saying “he may have spread her legs for a second time while she was on her stomach, and he also may have gone to her buttocks area at the end.”

[105] She then reviewed the evidence of the patient sitting in the waiting room who could not be seen. That witness’s specific denial of any statement about “I didn’t take advantage of you”.

[106] This witness’s evidence also contradicts the complainant’s evidence where she testified that Dr. Kovacs never left the treatment room during any of the four visits. This evidence was retracted in any case when the videotape was played to the complainant.

[107] She then put to the panel that despite the alleged offence being publicized in the Toronto Sun, no one else came forward. At pages 182-183, “This predator, no one came forward.”

[108] Ms. Freeman then went on to indicate that the evidence of Dr. Kovacs as to the treatments he did perform is uncontradicted as to whether or not it is proper chiropractic treatment.

[109] Ms. Freeman also dealt with the idea of a motive for the complainant to lie. “The law is very clear that the burden does not shift to us to explain an absence of motive.” She then quoted R. v. Vandenberghe. In that case, it was ruled that the trial judge shifted the burden of proof to the appellant and required him to prove his innocence in allowing extensive cross-examination of the appellant as to why the complainant and her mother would lie about the incident. The Court of Appeal found that the cross-examination was improper. It was improper for the Crown at trial to demand an explanation as to why the complainant would make up what counsel referred to as this horrendous lie. She then went on to indicate that this shifted the burden of proof. And before Ms. Freeman could object to a question in cross-examination, which is noted at page 186, her client had answered.

Reply by Counsel for the College

[110] Mr. Paliare, in reply, indicated that his friend referred to the fact that her client is 60 years of age, practicing for almost 30 years, and why would he jeopardize that, she asks, in essence, over a 22-year-old patient.

[111] He then went on to indicate: “We’re not required, nor is anybody required, to answer that question, as to why he would have been – why he would have done what he did. But he certainly wouldn’t be the first health care provider to have engaged in inappropriate conduct with a member of the opposite sex who was substantially younger than him or her.”

[112] He went ahead to review the evidence from a transcript as to what she said about the legs. He then described the forensic evidence as a “red herring”.

[113] In dealing with R. v. Vandenberghe, counsel for the College, in his reply submissions, says: “I don’t suggest for a moment the burden shifts to Dr. Kovacs and that he has to come up with some motive. I was attempting to be fair to Dr. Kovacs. And I didn’t demand an answer from him as to a motive.”

Counsel for the Panel

[114] Their own counsel indicated that there was a subsequent decision of the Ontario Court of Appeal in Board of Ophthalmic Dispensers v. Toth, [1990] O.J. No. 1802 which states that more serious the allegation, the more cogent the evidence must be.

[115] Their own counsel then reviewed the individual counts with them. He specifically indicated: “In other words, you shouldn’t take an either/or position, because that would exclude the possibility that you are left with – you are left in a state such that you haven’t been satisfied on a balance of probabilities, based on clear, cogent, and convincing evidence.”

[116] He reviewed the three manners in which Dr. Kovacs could be acquitted. Dealing with the matter of the complainant’s possible motives for lying and the doctor’s answers, he noted that Vandenberghe case and indicated that it involved accepting speculation from one witness as to another person’s motivation, and that the best course of action was to ignore that evidence.

Standard of Review

[117] Section 70 of the Health Professions Procedural Code of the Chiropractic Act, 1991 provides the Court with broad powers of review and there is no privative clause.

[118] The Supreme Court of Canada has determined that disciplinary bodies of self-governing professions should be awarded a large degree of autonomy and their decisions should not be interfered with “unless judicial intervention is clearly warranted”.

Pearlman v. Manitoba Law Society Judicial Committee, [1991] 2 S.C.R. 869 at 888

[119] Further, in Pezim v. British Columbia (Supt. Of Brokers), [1994] 2 S.C.R. 557 at 591, the court clearly states:

Consequently, even where there is no privative clause and where there is a statutory right to appeal, the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise.

[120] A tribunal’s findings of credibility should be granted deference given the relative advantage of a panel hearing viva voce evidence. This was stated in Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19 at p. 10, para. 38:

Finally, however, the need for deference is greatly heightened by the nature of the problem – a finding of credibility. Assessments of credibility are quintessentially questions of fact. The relative advantage enjoyed by the Committee, who heard the viva voce evidence, must be respected.

Balancing these factors, I am satisfied that the appropriate standard of review is reasonableness simipliciter (sic). The reviewing judge should have asked herself whether the Committee’s assessment of credibility and application of the standard of proof to the evidence was unreasonable, in the sense of not being supported by any reasons that can bear somewhat probing examination.

[121] Authority exists to support the notion that deference must be shown to a Discipline Committee of a professional body dealing with a penalty issue. Robins J. in Re Takahashi and College of Physicians and Surgeons of Ontario (1979), 26 O.R. (2d) 353 (Div.Ct.) at 363, was quoted with approval in this Court in Goldman v. Ontario College of Pharmacists (1997), 105 O.A.C. 153, and Patel v. Ontario College of Pharmacists (2000), 130 O.A.C. 291:

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 a member for professional misconduct, as has often been said, is not to be lightly interfered with. The committee in the proper discharge of its function is best able to assess the gravity of the misconduct and its consequences to the public and 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.

Facts

[122] The complainant D.D. was a registered nurse who attended at the Respondent’s chiropractic clinic on November 7, 2001 for treatment of low back pain having been referred to him by her father who was a patient.

[123] The Respondent had been trained as a medical doctor and practiced medicine in Romania and Hungary before immigrating to Canada where his medical qualifications were not recognized. He then attended chiropractic college and, after a full course, he graduated as a chiropractor in Ontario.

[124] The complainant testified that she received treatments on November 7 and 8 and, on both occasions, that she was seated and that on the initial occasion, he had explained chiropractic and indicated that it was a procedure adjusting muscles and joints of the back and neck to alleviate strain and pain on joints and muscles. She indicated that she sat down on the table and that Dr. Kovacs did a bit of stretching and massage of the neck and then: “he did a bit on my back and that’s about it. Stretching and pulling and adjusting of my neck and back.” She returned on November 8 with her X-rays as he had requested and on that occasion, he discussed the X-rays with her, he pointed certain things out to her on the X-ray box, and he indicated that there were some ligaments and muscles that were pulling her back slightly but he just needed to do some primary care to avoid any degeneration.

[125] On that occasion, her evidence was that there was nothing different with respect to the treatment as opposed to the previous occasion. Her evidence was that “she had been told everyone had a different kind of treatment according to why they are at a chiropractor according to their own specific problems and just to come back the next day or whenever I was available.”

[126] The complainant D.D. testified that the Respondent spoke to her on November 9 about lymphatic drainage and indicated he massages the areas of lymph nodes to help get rid of the toxins and fat from the lymph system. She indicated that he showed her a diagram of the lymph system in one of the books where all the lymph nodes are. She also indicated that due to her training as a nurse she was aware of where the lymph nodes were in any event.

[127] On November 9, she indicated her treatment was a bit different. He started to massage around her head, temples, neck, underarms and arms. She said: “He then massaged around my breasts, the side of my breasts and the top of my breasts with my bra still on”. He massaged her stomach, her abdomen and her groin area. He rolled down the top of her underwear slightly to massage her groin area in and around her thighs and down behind her knees.When her underwear was rolled down slightly, it did not expose any of her pubic area.

[128] She testified that she had no concerns about the treatment of November 9. Although she felt a little bit shy, she assumed it was part of the procedure.

[129] The Respondent’s testimony was that on her first visit, as part of his discussion of the chiropractic system, he, as well, discussed the lymph system with her. He produced in re-examination a diagram of the back of the knee area which is consistent with his notes of November 8 where he continued commenting on the right hamstring. On November 9, he also commented on the hamstring and the calf. He also indicated that he had applied soft tissue therapy and indicated the same thing on November 12, including “tight hamstrings”.

[130] The Respondent denied that at any time he had massaged her lymph nodes and indicated to the contrary that that would not be done because it would be painful. As well, he denied massaging her bare stomach, abdomen, and upper groin area. As well, he specifically denied that she was on her back on the occasion of November 9. In any case, the complainant made another appointment and returned November 12 for treatment.

[131] On November 12, he went over the details of lymphatic drainage, according to her. He told her about the history of lymphatic drainage and then she indicated she sat down on the table which would be consistent with at least her evidence in regards to the first two appointment and started to massage her neck, adjust her neck a bit, and then he asked her to remove her bra. Her evidence was that he asked her to lie down on her back with her gown still on. Her evidence was that he then began to massage her breasts with both hands, the whole breast, and then he replaced the top of her gown, he placed a blanket over the top half and moved on to her abdomen, massaging her abdomen. He rolled down the top of her underwear and started massaging in and around her pelvis and groin area, then he pulled her underwear down around her thighs. “He started to massage the labia majora and the outer areas of the vagina, still in the groin and around the top of my thighs with both hands”. He fully removed her underwear and placed it on the floor and he began to kind of open up her legs a bit, began to massage the labia minora, the inner part of the clitoris. I brought my legs up a bit, he pushed my knees down and said: “Just relax”. Then she indicated that he spit on his fingers and inserted his ungloved fingers into her vagina. She said she saw him spit on his fingers.

[132] At the Hearing, she indicated that while she was on her back, his fingers would have been in her vagina five minutes. She was then asked if there were any clocks or watches, “or are you just giving us your impression of how long this was?” Her answer: “Just going on what I thought the time was. I didn’t have a watch on and I didn’t look at a clock at all”. Then, he took his hand out of her vagina and asked her to roll over on her stomach. He began to massage her buttocks and then insert his fingers again in her vagina. He would have been in her vagina approximately three minutes. He then proceeded to massage around her temples, forehead, neck and did some adjustments on her neck and back and he didn’t wash his hands before he did that.

[133] The treatment then ended. He handed her underwear and she got up. “He asked how I felt and I said I was fine, but to be honest, I felt uncomfortable with him massaging that area. He said I can tell but I didn’t take advantage of you. I’m a professional. I don’t think that way. He said: ‘Get dressed, come to the front and we’ll make another appointment’.” So she got dressed, cleaned herself up and she indicated that she started to cry and then she walked to the front where, according to her, he said again: “I know that might have been uncomfortable for you, but I didn’t take advantage of you” and she made another appointment for the 14th of November.

[134] Her evidence was that on the way home, she had to pull over because she was crying. She then called her boyfriend and asked if she could go over and talk to him. She had a discussion with her boyfriend who is a policeman. According to her, she worked the night shift that night and went home and tried to sleep. Then she went to the police station on November 13.

[135] The complainant testified that after she left the office she spoke to her boyfriend, the police officer, and then she prepared a written statement on her own. The statement, which is Exhibit #2, in handwritten form, was dated Tuesday, November 13.

[136] It was her evidence that she worked at the hospital at midnight on the nightshift on November 12.

[137] She produced a written statement to the police and they accepted it. Then on November 15, she gave a videotape interview with the police with her statement in front of her. On the advice of the police and a nurse at the Sexual Assault Centre, she went to the Sexual Assault Centre at her hospital on November 14. She testified that she was familiar generally with the Sexual Assault Centre and the kits used at the Centre and so on. She testified that before she went, she had showered twice and washed her underwear. She also testified that she was aware that trauma was more likely to be discerned closer to the time of infliction of trauma.

[138] The complainant testified that she had attempted to contact Nurse Zaida, Head Nurse of the Sexual Assault Centre, on November 13 and that she spoke to her on November 13. Nurse Zaida suggested to her that she come over right away, “come right in”. And that was the same advice given to her by P.C. James and she did not go in until November 14 when she saw Nurse Zaida and presented her with the same four-page written statement that had already been presented to the police.

[139] She originally indicated that it was not Nurse Zaida’s recommendation that she have an internal examination or a physical examination. After a considerable amount of cross-examination, she did indicate at page 401, line 10:

Question: “Or feel, fair enough. And Zaida, to that, did not say words to the effect of it’s better to safe (sic) than sure, or there may be something there?”

Answer: “She might have, but I probably was stubborn and said no, I’m okay with it.

Question: Well I am going to suggest to you that Zaida indeed did say you should have an examination because there may be something there.

Answer: I said, she may have but I don’t recall.

Evidence of Kathyrn Dzikowski

[140] Kathryn Dzikowski was called as a witness for the Respondent doctor. She testified that she was at the clinic from 12:30 until 1:30 and that she had come early for an appointment that was scheduled from 3:00 to 3:30 p.m. because she was a diabetic and she occasionally came in early depending on how she was feeling.

[141] At page 575, Volume 3, she gave a general description of the patient who was leaving when she was sitting in a place where she could be unobserved and she described the patient as white, average height and build with dark hair, a patient in which the description matched the complainant D.D.

[142] This lady was a patient of the Respondent chiropractor, had no criminal record and has been his patient for two to three years. She indicated that she was at the clinic on November 12, that she got there about 12:40 p.m. and that Dr. Kovacs came out shortly after she opened the door, because there is a bell of some sort and he said: “I’ll finish my last patient and I’ll treat you”. She then sat and read a newspaper. He and the patient came out and went into his office and they discussed how she felt and booked another treatment. When the words: “I didn’t take advantage of you. I know you were uncomfortable but I’m a professional and I don’t think that way”, she indicated that she did not hear anyone utter those words. She indicated the patient left and then she went in for her treatment.

[143] In spite of a lengthy cross-examination, Ms. Dzikowski continued to maintain that she had been there early and she indicated that she had been a long-term patient of the doctor and that she had been contacted approximately within a week by Dr. Kovacs, who told her that he had been charged by this patient.

[144] She produced a statement in cross-examination dated December 31, 2001 which apparently was consistent with her evidence.

[145] Ms. Dzikowski denied being a friend of Dr. Kovacs or ever having socialized with him. She testified that she had taken point notes which she destroyed after signing the formal statement. She also indicated that he had provided her with legal and medical reports as a result of her accident but she did not think he was still doing it at this time. She indicated that the person that she saw had a limp which incidentally was also the evidence of Dr. Kovacs. She maintained that she heard nothing other than what she said and she indicated that at the desk Dr. Kovacs and the complainant talked about how she felt, the appointment and left.

[146] In re-examination, Ms. Dzikowski indicated that she was 99% certain nothing else was said other than what she testified to. And she was 100% sure that she had heard nothing like the statement which the complainant alleged was made.

Decision of the Discipline Committee

[147] There was not unanimity on the Discipline Committee. The three-person majority concluded that the College had not proven its case. The record discloses that one of those three persons, the only male, agreed with the result that died before the Reasons were published.

[148] There seems to be no issue that the majority properly instructed themselves as to the standard of proof as set out in Re: Bernstein v. College of Physicians and Surgeons Ontario (1977), 76 D.L.R. (3d) 38 (Ont.Div.Ct.) at 61 and subsequent cases as proof that is clear and convincing based upon cogent evidence which is accepted by the tribunal.

[149] The majority judgment was approximately 15 pages long. They used the format of setting forth the allegations and giving an overview of the evidence of the witnesses who testified. They applied the proper standard of proof as set out in their judgment and they also, at page 6 of their Reasons, properly in my view, indicated:

…The onus is on the College to prove its case by meeting the standard of proof fixed in relation to each allegation, that is, proof on a balance of probabilities, bearing in mind the principle that “the more serious the allegation to be proved, the more cogent must be the evidence”.

[150] They indicated on the same page there was a lack of clear evidence from the complainant in the area of the sexual abuse allegations. Much evidence was not cogent or convincing as demonstrated in these Reasons. Although some areas of inconsistencies existed in Dr. Kovacs’s testimony, there was less credibility in the complainant’s evidence. “The panel is obligated to find in favour of the Member”.

[151] They then went on to consider the credibility of the witnesses keeping in mind the standard civil jury instruction on credibility. At page 9, they went on to make the following findings regarding the credibility of the witnesses. They found Dr. Steinberg, the defence medical expert, as an extremely knowledgeable witness. They mention specifically in the middle of paragraph 3:

A problem arose as to the relevance of his testimony when the complainant changed her oral evidence from 15 to 25 minutes of digital penetration to 5 to 10 minutes of digital penetration.

[152] They went on to review the evidence of the witness Ms. Dzikowski in which they indicated was only moderate importance in relation to whether the discussion of “I didn’t take advantage of you, I know you were uncomfortable but I’m a professional and I don’t think that way”. They concluded:

…that although she was in the waiting room, she may not have been in a position to “hear all” communication between Dr. Kovacs and the Complainant…

They went on to mention the insurance coverage influencing the panel’s determination of her credibility.

[153] At page 10, they went on to consider the credibility of the complainant. They found her evidence, concerning Dr. Kovacs’s discussion about chiropractic in the events of the initial two visits, consistent. They found her credibility, when testifying about the actual sexual abuse allegations, was inconsistent and changeable. They mentioned specifically less importance to inconsistencies in her evidence as it related to certain secondary issues which were:

(1) she dropped her bra on top of or beside her clothes;

(2) her eyes were open or shut;

(3) she had a blanket placed on her or not;

(4) and Dr. Kovacs ever left the treatment room during any of her treatments.

[154] They found that her testimony was inconsistent as to whether Dr. Kovacs spat on or licked his fingers.

[155] The videotaped statement appears to say: “He actually inserted his fingers into my vagina and started massaging. I guess he had trouble so I kind of looked up. At this point, I thought what is he doing. And later – then when I looked up, I really took a look. I just wanted to peak to see what he was doing. I peaked up and he licked his fingers and then inserted his fingers into my vagina again and without gloves on.”

[156] This statement was at least inconsistent with page 3 of her written testimony in Exhibit #2, page 21 of the Exhibit Book.

[157] The majority went on to indicate inconsistencies with whether he had trouble inserting his fingers and that’s why he pulled them away from her vagina to lick them or whether he had to lick his fingers to re-insert them. The issue was whether he had trouble inserting his fingers.

[158] Then there was the following exchange:

Question: You were mistaken on the video when you said he had trouble?

Answer: Yes.

[159] They went on to indicate that the evidence of how many times digital penetration occurred demonstrated inconsistencies also. Her oral evidence was that he penetrated twice while on her stomach and yet in her video statement, the complainant said: “I rolled over onto my back…he didn’t insert his fingers anymore in. I thought he was going to but he didn’t.” Her explanation there, the inconsistency was: “I was very, very nervous that day and I mean I’m human, I probably made a mistake”.

[160] They went on to review Dr. Kovacs’s evidence and they noted the confusion regarding the diagram used to demonstrate the lymph system. There was a contrast between the evidence there. Then they found inconsistency and confusion as to the use of Exhibit #4, the illustration of techniques by Dr. J. F. Bourdillon. They went on to say:

On other areas of questioning, he gave consistent testimony.

[161] At the end, they noted:

Dr. Kovacs had a problem understanding the nature of some questions because of language difficulties but gave reasonable explanations for particular treatments and testings. His reasons for treating some symptoms and not others (i.e. psoas muscle pain) was reasonable in that he affirmed that this particular symptom will respond to treatment of the low back. He also recommended she consult a massage therapist because the full massage was not something he did in his practice.

[162] They found it did not make common sense that she would allow another individual to insert an ungloved finger in her vagina without some form of protest, especially since she admitted that she was not intimidated by doctors. It did not make sense to them that she would not be more concerned about STDs although she testified that she was aware of the possible risks. She was not sure what the drugs were for but frequently claimed she took them for peace of mind. And she also testified she did not require a complete examination because she would be seeing her doctor soon and he would check her out. In actuality, she did not consult her M.D. until many months had passed.

[163] They then went on to consider the circumstances that she did not avail herself of one tool that could validate her allegations. They reviewed the evidence at the Sexual Assault Centre and the complainant’s failure to produce her clothes. Finally, her visit to the hospital, after the incident, was only to produce another written record and not to have herself thoroughly examined or for evidence or to protect herself from STDs. She also refused counselling and indicated that she would call him before the case went to the court.

[164] They then went on to consider the late filing of this report which was just prior to what originally had been scheduled as the initial hearing.

[165] In the next paragraph, they indicated that it would not make sense for the doctor to say in the presence of another patient: “I didn’t take advantage of you. I know you were uncomfortable but I’m a professional. and I don’t think that way.”

[166] They went on to indicate that she only became emotional when she was confronted with inconsistencies.

[167] They then went on to consider Dr. Kovacs having no previous complaints and a long history as a health professional with no complaints. They considered that the complainant would be an unlikely candidate for Dr. Kovacs to prey on because she was an educated person. She would know the appropriate boundary restrictions and her father had been a patient of Dr. Kovacs for a few years previously.

[168] Then, they stated in para. 3 at page 15:

Further, as Ms. Freeman argued, if Dr. Kovacs is a “sexual predator” as the College contends, it would have been reasonable to expect at least one more victim to step forward with a complaint, given the media attention to the criminal charge laid in this case.

They referred to the article from the Toronto Sun:

However, no further complainant(s) came forward, and we are left with the Complainant’s unconfirmed evidence.

[169] At page 29 of the Appeal Book & Compendium, they found:

We found it highly unreasonable that a doctor who had struggled to achieve as much as Dr. Kovacs had would risk everything by engaging in the misconduct alleged in the circumstances referred to in the testimony. When assessing credibility, we considered witnesses’ interests in the outcome of the case. It is true that he stands to lose everything (or gain everything back) depending on the outcome of the hearing. One could say that could make him a less credible witness. On the other hand, this is true of every member who comes before us in a serious case such as this. We took into consideration the fact that the Complainant has nothing to gain from the outcome (but also nothing to lose).

[170] Then they indicated that they found that he was not guilty on all six charges brought against him.

[171] The dissenting panel member’s report was also before this Court. It, too, was 10 pages. It used an overview. It summarized the issues in the evidence. It dealt with the standard of proof and the credibility of the witnesses in the same fashion. And then it went on to deal with the evidence of the complainant. The dissenting Member found:

…Her account of what took place in Dr. Kovacs’s office was clear, detailed and convincing. It is reasonable to believe that the fact that she relayed did occur. She answered the questions posed to her in a direct, clear and concise manner, answering only to the questions, not adding more than was required for the answer. At times she answered “I don’t know”, or “I can’t remember”, giving the impression of an effort to be honest”.

[172] In para. 2, “She was very knowledgeable about the lymph system and in addition she knew the lymphatic drainage technique was not practiced by many chiropractors and it dates back to the ancestors of Dr. Kovacs in Europe. She could have only learned this from Dr. Kovacs. She was also knowledgeable in soft tissue therapy as a massage technique. It seems probable she would believe massaging her breasts and pubic area was an acceptable treatment.” In the next paragraph, she went on in effect to reach the same conclusion.

[173] She deals with the evidence with the change of the duration of digital penetration at page 8 and concluded:

Her explanation of this change was because in retrospect, this probably occurred over a shorter time. She explained that at the time of penetration, however, it had seemed to last forever. I find this explanation to be reasonable and believable, and I accept it.

[174] She then went on to find that the complainant stated she did not have an examination following her experience with Dr. Kovacs as he was very gentle. She felt there were no physical injuries that would show after two days. “I accept this as a reasonable explanation for not submitting to an examination”.

[175] She then went on to review the evidence of Ms. Dzikowski, the witness who was in the office, and found the credibility of the witness was affected by the fact that she had something to gain from Dr. Kovacs, namely that her accident claim was not settled. Then, she went on to say that she was agitated. And she found that when questioned by Ms. Freeman in re-examination, she said that she was 100% sure that Dr. Kovacs did not say: “I didn’t take advantage of you. I’m a professional. I don’t think that way”. The dissenting Member found it was not reasonable that Ms. Dzikowski could be that sure.

[176] Then she dealt with the issue of the limp and found that this was never confirmed and that it is reasonable to believe that it was the contrived fact that it was an easy way to identify the complainant with whom she was not acquainted.

[177] The dissenting Member found the expert’s report was speculative and irrelevant. She then went on to review the evidence of the complainant and the chiropractor, and indicated at page 10:

Dr. Kovacs brought in a diagram of the leg muscle, which he said he used to explain the lymphatic system to the Complainant. Her explanation of a diagram of the lymphatic system showing the whole body and the areas of the lymph nodes was more believable.

[178] The dissenting member reviewed Dr. Kovacs’ testimony and commented that he tried too hard to explain he did not touch on the front during his treatment of her. He answered “No” to any question that could incriminate him relating to touching her. If he had agreed with some elements of her testimony and explained that the massage of her breasts and pubic area were on a high level and in places where lymph nodes exist, his testimony would have been believable. We could then have reasonably concluded the alleged sexual abuse was the result of a young woman’s imagination. “His denial of virtually everything she said is not believable…”. And then she went on to indicate: “…we see a doctor who planned and found a way to use a young naïve woman’s body for his own sexual gratification”. She found that he was guilty of professional misconduct, allegations 1, 3, 5 and 6.

Analysis

[179] The decision of the majority of the Discipline Committee here is reasonable. I have put in the history of the proceedings, including the original adjournment, so that the way the prosecution proceeded may be related to the Reasons given by the Committee.

[180] At page 9 of the Reasons, the majority indicated that they were impressed by the evidence of Dr. Wilfred Steinberg, the defence expert, and they commented mid-way through the third paragraph:

A problem arose as to the relevance of his testimony when the complainant changed her oral evidence from 15 to 25 minutes of digital penetration to 5 to 10 minutes of digital penetration.

[181] The majority was obviously aware of that situation as it had occupied a great deal of time during the Hearing.

[182] Viewing the prosecution as a whole, it could even be found to be oppressive since it appears there were three occasions of failure to disclose which resulted in late disclosure on the eve of the two Hearings. It appears that the prosecution was in possession of knowledge that the complainant was going to change her evidence about the total time of penetration and did not feel that it had any duty to advise the defence of that, although for a good portion of that period, the prosecution was in possession of Dr. Steinberg’s report dealing with the subject including his comment as to the likelihood of penetration for that time period and the likelihood of visible damage being occasioned.

[183] In continuing with the analysis, it is said that the majority erred in the treatment of inconsistencies in the complainant’s evidence. One of the inconsistencies, of course, was the matter of the total duration of digital penetration.

[184] I cannot accept the argument that the central issue in this case was whether penetration occurred and not any issue as to the credibility of the parties.

[185] The prosecution raised the issue of the motive of the complainant to fabricate. They even asked the unfortunate chiropractor to speculate on her motives contrary to the general rule in quasi criminal proceedings.

[186] When the chiropractor’s counsel attempted to deal with the situation in re-examination, it attracted the attention of the minority who, not for the first time, entered into the proceedings and proceeded to ask Dr. Kovacs what he meant about money.

[187] Dr. Kovacs testified and put his character in issue. He was cross-examined on only one aspect of his past history, namely the taking of an exam as it turned out in one of the U.S. states. No other discreditable evidence was led against him although in summation he was attacked by the prosecuting counsel as a sexual predator. That label seems to connote more than one attack.

[188] The lack of any other complaints arose from the evidence led by the defence, as well as the introduction of the newspaper report of his arrest. Once again, this whole line of evidence was initiated by the prosecution. It, in my view, is then prevented from commenting as to the relevancy of such evidence when the majority found against the theory that the doctor was somehow a sexual predator.

[189] Once having been invited to do so, I see nothing improper in the assessment of his past history, how far he had come, and the likelihood that he would begin a career of sexual abuse upon a fellow health professional.

[190] In my view, the majority’s Reasons do not rest on stereotypes in regard to possible victims of sexual assault or possible perpetrators. There was evidence before them that a woman who was a nurse responded in a particular way to an alleged sexual assault.

[191] The complainant’s testimony in regard to the issue of a medical examination was initially that it was indicated that she did not need a medical examination.

[192] After cross-examination, she indicated that she was too stubborn to have a medical examination and that she could not remember whether the nurse at the Sexual Assault Centre had told her to have one or not and that she was there to prepare a record.

[193] The record is clear that at the start of the Hearing, neither the doctor nor his solicitor were aware of the most recent disclosure or the change in the complainant’s evidence. This led to numerous motion proceedings and arguments before the Committee. As a result of these matters, the complainant’s cross-examination was interrupted because the doctor’s counsel wanted time to reconsider her position and speak to her expert who had already prepared a report and review with him the effect of this new evidence.

[194] Because Ms. Freeman had scheduled witnesses, including the expert witness in advance, based upon the estimates given to her by counsel for the College, it was decided that those witnesses would testify. Then the cross-examination of the complainant would resume.

[195] When that cross-examination resumed, it was the opinion of counsel for the doctor that there had been a substantial shift in some of the testimony given by the complainant especially in regard to previously admitting inconsistencies.

[196] She then became aware that during the adjournment, the complainant had met with both counsel who represented the College and that there had been discussions with them. She also, at that time, had read the medical report of the doctor.

[197] Counsel for Dr. Kovacs raised, at page 430, the issue of communication to her office on June 3rd, following the Hearing, that there was some discussion between counsel for the College and the complainant after that Hearing and it was her position that it was improper for counsel to speak to a witness in the middle of cross-examination. “…and from what I have seen because the letter came in, of which you have a copy June 3rd, we have confirmed certain things with the complainant...” There was a discussion and that’s a breach of our professional code of ethics”.

[198] Ms. Freeman’s motion for an adjournment with costs or dismissal of abuse of process was dismissed after a great deal of legal argument.

[199] Part way through the proceedings, a major element of the defence of the doctor had been destroyed by the change of testimony in regard to the duration of the digital penetration. A spirited submission was being made that the doctor’s evidence and his report were no longer relevant because of the change in testimony, and the whole nature of the Hearing had changed.

[200] The cross-examination of the complainant proceeded after the testimony of Ms. Dzikowski. While it is true that the Committee ruled in favour of the admittance of part of the doctor’s evidence, counsel for the College continued in his final submissions to call it speculative although the witness, at least, had denied on numerous occasions that it was speculative.

[201] It was argued that the decision of the minority was the proper decision and that it was preferable to that of the majority.

[202] In assessing the credibility of the doctor, she indicated: “He answered ‘No’ to any question which would incriminate him relating to touching her. If he had agreed with some elements of her testimony and explained that the massage of her breasts and pubic area were on a very high level and in places where the lymph nodes exist, his testimony would have been believable. We could then have reasonably concluded the alleged sexual abuse was the result of a young woman’s imagination. His denial of virtually everything she said is not believable and does not make common sense”.

[203] Given the factual basis in which this prosecution has proceeded - that there was digital penetration on at least two occasions, I find it difficult to comprehend what it was that the defendant was expected to admit to become more credible.

[204] I am troubled by the impression that in this particular proceeding, the Respondent chiropractor appears to be under some sort of onus to provide proof to negate the allegations brought against him by the complainant. Without any doubt, this impropriety by the prosecution certainly affected the opinion of the minority, even causing her to enter into questioning the unfortunate doctor when he was trying to give a motive “money” which might have caused this witness to testify in this fashion.

[205] It cannot be said, however, that the majority in going on to compare the likelihood of motivation to lie in regard to both parties did anything improper once having been invited to do so by the actions of the prosecution.

[206] In her submissions to the Committee, counsel for the Respondent doctor indicated that the circumstances could be outlined as follows:

a) he inserted his fingers in her vagina and proceeded to massage the inside of her vagina;

b) then he removed his fingers, told her to roll over, and she did, and he did it again.

[207] The prosecution’s theory was obviously that by massaging around the groin and the vagina as outlined by the complainant, that the area would be lubricated and penetration would take place more easily. Unfortunately, that did not turn out to be the evidence of the expert, who said that that was unlikely to be the case when this was done by a stranger to an unwilling participant.

[208] This is perhaps why the majority paid so much attention to the issues of how many penetrations there were, when they took place, when the insertion of the fingers took place and whether it was lubricated by either a spit or a lick.

[209] The circumstances under which the complaints were made were somewhat unusual, as a written statement was made up by the complainant before she went to the police and it was initialed by the policeman on her visit to the police station. That written statement was then produced again to the sexual assault unit, which I also find unusual.

[210] In my view, the majority was right in considering the visit to the sexual assault unit as somewhat unusual. On her own evidence, the complainant waited to go to the unit knowing the likelihood that signs of trauma would diminish. This particular aspect is troubling indeed since it was her evidence that she was already at the hospital only some hours after the alleged offence.

[211] To go to a sexual assault unit and produce a “record”, as is illustrated by the testimony of the complainant here, is to raise questions in the mind as to why this would take place.

[212] The same might be said in relation to what appears to be a total disinterest in regard to the possible transmission of STDs. It should be remembered that the evidence of Dr. Steinberg was that amongst the types of diseases that could be transmitted in this fashion was HIV and Hepatitis, both of which are serious indeed. The expert’s evidence also was that the antibiotics that were given her did not affect the STDs that she was likely to have obtained by this type of contact.

[213] The issue of the change of testimony as to the duration of the penetration obviously loomed large in this proceeding. Arguments in submissions in regard to this particular aspect of the evidence took up many pages. It, however, left the complainant in the position of having made a substantial change in her testimony some 17 months after her original statement. That did not change until apparently shortly before the Hearing and after the criminal process was stayed by the Crown in January.

[214] The submissions of counsel perhaps bear some responsibility for some of the difficulties that the panel had with the evidence. For example, at page 78, counsel for the College indicates:

And what he says now that he showed her was not the lymph system, but a muscle and joint in the leg as an example of something for her. Of course, we know that whatever problems she had, they clearly weren’t leg problems. So just try to think about this, you know. Apply common sense and see whether it makes any sense to you.

[215] I have already indicated the notes and records which indicates that there was a problem with the right leg.

[216] It appears that there was even a suggestion that there was a duty on the defence to call further evidence. For example, at page 85, counsel for the prosecution:

…And she told the people at Women’s College as well, at the sexual abuse clinic, what had happened. And my friend had the right to call those witnesses, if there was anything inconsistent.

[217] This is not entirely accurate as her evidence was that she produced the same written statement to the people at the Sexual Abuse Clinic.

[218] And then dealing with the matter of the inconsistencies as to the duration, he indicated that her evidence before the Tribunal was under oath and the other statements were not. Then he indicated: “…nobody ever asked her about the length of time until she – about the length of time of penetration…and no one asked her about it until she came to meet with Ms. Jones and myself”. Whatever the merits of that particular submission are, in the circumstances, I really have to wonder why, since she produced a ready-made written statement and used the word “approximately” in front of her time estimate, anybody would ask her about it.

[219] Then he went on to indicate that it is human nature to think that if you are not having a good time, if it is painful or boring, it seems to go on longer. And finally, and in my view, once again, improperly, at page 88:

…I know there was a concern by the Committee, and certainly one raised by my friend, about whether or not she changed her evidence, based on the expert’s report. You’ve got to deal with her evidence under oath. And I wouldn’t have called the evidence – as a professional, as a lawyer, I can’t call evidence that I know is untrue. It’s unprofessional to do it.

[220] In my view, it is not proper for counsel to use his own credibility to buttress the testimony of the complainant. It is particularly inappropriate for counsel to give his own opinion as to the veracity of the complainant when, as in this situation, he is the counsel for the College and the Committee are members of the College.

[221] And finally, at page 89, one of the worst of the misrepresentations:

When asked what side of her was Dr. Kovacs standing on when all this occurred, she says, ‘On my left side.’ And so what hand was penetrating her? His left hand, because it would be difficult, if not impossible, certainly difficult, to use his right hand. That’s what she says. She wouldn’t have known Dr. Kovacs is left-handed.

Now, there is an issue about what he said to the reporter when he was sworn in. And I don’t know whether you were listening or not. Hopefully, you were. If you weren’t, all I can do is tell you what I heard.

And the reporter said to Dr. Kovacs, ‘Take the Bible in your right hand,’ because he said he was going to be sworn, and she said to him, ‘No, no, your right hand,’ because he put his left hand on the Bible. And his response was, ‘Oh, sorry, I’m left-handed’.

[222] Unfortunately, as I indicated earlier, that was not the Respondent’s evidence. Even if it had been the evidence, it is difficult, in my view, to maintain an argument which indicates this: the complainant testified that the accused used his left hand. The accused is left-handed. Therefore, the accused is guilty.

[223] Counsel for the accused indicated that her notes said “left side, right side, it doesn’t matter to me”. She did not have the advantage of the transcript because it was too expensive and it turned out that she was right.

[224] Counsel for the College chose not to call any expert evidence in relation to the significance of the notes and records. He relied upon cross-examination of the chiropractor to show that these were corroborative of the complainant’s story and indicated conflicts with the evidence of the chiropractor.

[225] The chiropractor adamantly denied any impropriety with this patient. He indicated that his references to soft tissue massage were usual and only in relation to preparation for adjustments. He indicated that “psoas” was of concern to him. There was no other evidence in relation to this material, however, I find it is significant that the two professional members of the panel found that there was no evidence which would lead them to conclude that the treatment was other than proper. Deference must be extended to the members of the panel in relation to this type of specialized knowledge.

[226] Much was made of the complainant’s emotional state in the submissions of counsel for the College at page 99 and at page 100. Unfortunately, in the circumstances, there was no other witness who viewed this alleged emotional state. No other witness was called. As her credibility was obviously going to be under attack, it was open to counsel for the College to call her boyfriend who, presumably, was the first person spoken to about this incident. He could have, at a bare minimum, testified as to her emotional upset.

[227] On her own evidence, at the booking of the next appointment, she indicated that she was no longer crying, which was also the evidence of the Respondent chiropractor and his patient witness.

[228] At page 101, counsel for the College went on about her motive and he quoted Dr. Kovacs saying: “Oh, money. She probably did this to try to, what, extort money…” and so on. He quotes Dr. Kovacs and he goes on: “Second motive, if it’s not money, she’s probably crazy…”.

[229] In that I have already pointed out that such a question was, in my view, improper initially, it is easily seen how it can be built upon.

[230] Then his final reason is at page 102:

Third reason, she’s got parents who are divorced, and maybe she wanted attention, and that’s why she’s asserting that she’s been sexually assaulted. Just, I can’t – no evidence at all to sustain that. And Dr. Kovacs’ answer to that question is a reliance upon the most outdated, stereotypical notions about why it is that women make sexual complaints. You know, it’s just completely nonsensical and without any factual foundation.

[231] And then he moved to deal with Dr. Kovacs’s credibility. This, of course, was the first introduction of stereotypical notions about sexual complaints in that it was based upon the improper introduction of evidence by the unfortunate Respondent chiropractor. It exacerbated his problems.

[232] In Ressel v. College of Chiropractors of Ontario [2003] O.J. No. 3032, the Divisional Court clearly confirmed the importance of deference to the trier of fact in matters of credibility at paras. 22 and 24:

It would serve no useful purpose, indeed, it would fly in the face of the authorities cited above, to go through the evidence of each witness and compare and contrast the evidence of the witness with the evidence of other witnesses and its application to five (5) allegations of professional misconduct.

The Appellant’s handicap is that the Committee did not believe him. [Emphasis added]

[233] In this case, it was the complainant that the majority did not believe and the panel, of course, was entitled to prefer his evidence to hers.

[234] In regard to the question of bias or the use of stereotypes, Roy v. Newfoundland Medical Board, [1996] N.J. No. 234, at para. 37:

I have not been persuaded on the submissions of counsel for the appellant that these points in themselves, (changes in complainant’s evidence and so on) or with the other arguments put, raise a reasonable apprehension of bias. First, it must be remembered that at the hearing the appellant was represented by counsel who was free to pursue with the witnesses any of the evidentiary points now raised by the appellant. The Board was fully entitled to defer to counsel’s manner of conducting the case for Dr. Roy, as well as to draw reasonable inferences therefrom. Secondly, the Board is not comprised of legally-trained persons whose choice of language, for example, might reasonably be subject to more critical scrutiny in terms of showing either bias in fact, or a reasonable apprehension thereof. In other words, insofar as an inference of bias, or the absence thereof, (as distinct from overt indications of partiality), I think the position can be somewhat analogized to that recognized by the courts respecting the impropriety of subjecting a “lay” tribunal’s conclusions and reasons to fine analysis and scrutiny (see with respect to this, for example: Mackey et al v. Chiropractors’ Association of Saskatchewan et al. (1990), 47 Admin. L.R. 36 (Sask. Q.B.); Trotter v. College of Nurses (Ontario) (1991), 44 O.A.C. 302 (Div.Ct.)).

[235] Proper allowance must be made for the erroneous expression of difficult legal concepts in the course of reasons given by lay tribunals. Decisions of bodies such as the Discipline Committee of the College should be accorded a substantial degree of deference and their decision should not be subject to painstaking scrutiny by this court: Gale v. College of Physicians and Surgeons of Ontario, 23 O.J. No. 3948 (Div.Ct.) referring to Re Del Core and Ontario College of Parmacists (1985), 51 O.R. (2d) 1 at 7, per Finlayson J.A.

[236] The principles as set out by the Court of Appeal in Waxman v. Waxman, [2004] O.J. No. 1765, are, while referring to a decision of a trial judge, are in many ways applicable to decisions such as this by Discipline tribunals.

[237] At para. 291, the appellate court indicated:

There is one and only one standard of review applicable to all factual conclusions made by the trial judge. That of palpable and overriding error.

[238] At para. 292:

The palpable and overriding error demands strong appellant deference to findings of fact made at trial.

[239] At para. 293:

The trial judge saw the witnesses and heard the evidence unfold in the narrative with a beginning, a middle and an end. Our system of litigation is predicated on the belief that it is through the unfolding of a narrative in the testimony of witnesses that the truth will emerge.

This Court is not presented with a narrative but instead with a description or summary of that narrative from the trial judge in the Reasons and from counsel in their written and oral submissions.

The descriptions provided by counsel are not designed to tell a story but rather to support an argument. Of necessity and in keeping with their forensic role, counsel’s description of the narrative at trial is selective and focuses on parts of the narrative on a particular interpretation of part of the narrative.

[240] And finally, at para. 295:

We are entirely satisfied we cannot possibly know and understand this trial record in the way that the trial judge came to know and understand it. Her factual determinations are much more likely to be accurate than any we might make.

[241] This description of the process is consistent with the principles set out in Dr. Q v. College of Physicians and Surgeons of British Columbia [2003] 1 S.C.J. No. 18 2003 SCC 19. In that decision, in a reverse situation, the Chief Justice of Canada McLachlin C.J. concluded at para. 4:

I conclude that the reviewing judge of the British Columbia Supreme Court exceeded the limits of judicial review authorized by the Act by engaging in a reconsideration of the Committee’s findings of fact…

[242] At para. 13, she referred to the assessment of both stories in light of potentially corroborative evidence.

[243] The suggested items of corroboration were the records and the diagram of the lymph nodes, the picture of the patient on her back, her emotional state and the suggestion that the chiropractor was left-handed. In my view, they are not based on any proper or independent evidence on which they could be found to be corroborative.

[244] At para. 28:

Greater deference will be called for only where the decision-making body is, in some way, more expert than the courts and the question under consideration is one that falls within the scope of this greater expertise: see Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, at para. 50.

This is appropriate here when assessing the notes and the treatment.

[245] At page 10, para. 41:

Yet when the standard of review is reasonableness, the reviewing judge’s role is not to posit alternate interpretations of the evidence; rather, it is to determine whether the Committee’s interpretation is unreasonable.

[246] In this case, in my view, there was ample evidence to indicate that there were inconsistencies in the complainant’s evidence, both between the written statement, the videotaped statement and her evidence at trial. There is nothing unreasonable in the majority accepting Dr. Kovacs’s version of events or in finding him not guilty. There was sufficient evidence upon which the panel could reasonably find him not guilty.

[247] It would be, in my view, not proper for me to review all of the various items of evidence. Instead, in these Reasons, I have attempted to show how the proceedings unfolded before the Committee and how the problems of lack of disclosure, change of testimony and lengthy legal arguments on the subject of credibility, impacted on the defendant’s opportunity to provide full answer and defence by calling his expert witness, even after the major evidence on which he had relied had been recanted, and the eventual result of that proceeding.

[248] The trial record discloses the issues that have led to the major criticism of the decision of the majority, the comparison of the motives of the complainant and of the chiropractor were introduced by the prosecution. In my view, it is not open to criticize the majority of the tribunal for considering those items and noting them in their Reasons after being invited to do so.

[249] While no doubt there are instances of cases which disclose decisions based upon sexual stereotypes, there is nothing indicating that the panel in this case based its decision on such stereotypes.

[250] In the circumstances of this particular proceeding, the Committee viewed the witnesses; it viewed the chiropractic records; it viewed all of the exhibits. It had an opportunity that was not available to me. It was able to assess the evidence as it was given. The Committee also had the opportunity of reviewing the videotaped statement, which is not the case in the hearing of this appeal and with it, they were able to compare the complainant’s testimony and her demeanour at the proceeding and at the video.

[251] It is my understanding that on one occasion, their footnotes were incorrect. Nothing, in my view, can be drawn from this other than a typographical error. Hopefully, this is the same type of error as that set forth in para. 41 of the Appellant’s Factum where the evidence of the witness Dzikowski is totally misrepresented. The heading of that section of evidence is “Dzikowski’s Evidence was not Corroborative”. Once again, I question why, in the circumstances of this case, it was necessary for the doctor to call corroborative evidence in his defence.

[252] The Appellant has asked this Court to allow the appeal and remit all counts back for another hearing. This proposal, however, ignores the fact that both the majority and the minority acquitted the Respondent on two of the counts.

[253] In conclusion, I find that the majority of the Discipline Committee did not err in law, either in its assessment of the complainant’s credibility, or by drawing unwarranted inferences from the evidence to support its finding that the Respondent was more credible. I would dismiss the appeal.

[254] Appeal dismissed with costs to the Respondent.

MEEHAN J.

Released: August 17, 2004

COURT FILE NO.: 662/03

DATE: 20041026

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

THEN, MEEHAN AND SWINTON JJ.

IN THE MATTER OF a hearing panel of the Discipline Committee of the College of Chiropractors of Ontario held pursuant to the provisions of the Health Professions Procedural Code of the Chiropractic Act, 1991, Statutes of Ontario, 1991, Vol. 2, c.21 (“Chiropractic Act”) respecting one Dr. Gheza Kovacs, of the City of Toronto, in the Province of Ontario;

AND IN THE MATTER OF the Chiropractic Act and Ontario Regulation 852, Regulations of Ontario, 1993, as amended (“Chiropractic Act Regulation”);

B E T W E E N:

COLLEGE OF CHIROPRACTORS OF ONTARIO

Appellant

• and -

DR. GHEZA KOVACS

Respondent

REASONS FOR JUDGMENT

Released: October 26, 2004