Roland Plummer v. The College of Massage Therapists of Ontario, 2012 ONSC 282

CITATION: Plummer v. College of Massage Therapists of Ontario, 2012 ONSC 282

DIVISIONAL COURT FILE NO.: 605/10

DATE: 20120110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

ASTON, PEPALL AND LAUWERS JJ.

BETWEEN:

ROLAND PLUMMER, RMT

Appellant

– and –

THE COLLEGE OF MASSAGE THERAPISTS OF ONTARIO

Respondent

Charles Wagman, for the Appellant

Nina Bombier and Pinta Maguire, for the Respondent

HEARD at Toronto: January 10, 2012

ASTON J. (ORALLY)

[1]

Introduction

Ronald Plummer appeals a decision of the Discipline Panel of the College of Massage Therapists of Ontario. In that decision he was found guilty of conduct unbecoming a massage therapist on the grounds that he had instructed or authorized an employee to issue false receipts indicating that he had performed massages which were instead performed by his non-registered employee.

2Counsel for Mr. Plummer submits today that the panel erred in convicting him on a different theory of liability than that advanced by the prosecutor for the College. He also contends that the panel erred in its factual determination that Mr. Plummer instructed or authorized Ms. Johnson to issue the receipts.

3This Court has jurisdiction by virtue of s.70(1) of the Health Professions Procedural Code, which provides in part “a party to proceedings before a panel of the Discipline Committee may appeal to the Divisional Court on questions of law or fact or both.”

[4]

Standard of Review

The parties agree that the appropriate standard of review is reasonableness. The existence of a statutory right of appeal in the governing statute does not detract from the application of this deferential standard.

[5]

First Ground of Appeal

Turning to the first ground of appeal, the Notice of Hearing Appeal specifically included in its particulars:

“The Member instructed and/or authorized an employee to issue receipts to a client that falsely represented that massage therapy had been provided by the Member.”

6In addition to the particulars in the Notice of Hearing, it was clear from the outset that Ms. Johnson would testify she treated patients and issued receipts in Mr. Plummer’s name with his authorization or direction. This was specifically identified by counsel for the College in her opening statement. Assuming, without deciding, that criminal cases are germane to this issue, the prosecutor was only bound to prove the particulars not the theory of its case (see R. v. Groot, 1998 2151 (ON CA), [1998] O.J. No. 3674 (C.A.), aff’d 1999 672 (SCC), [1999] 3 S.C.R. 664.)

7In our view the appellant suffered no unfair prejudice and the case he had to meet did not come as any surprise to him. Accordingly, there was no denial of procedural fairness or error in law and no basis upon which appellate intervention is justified.

[8]

Second Ground of Appeal

Turning to the second ground of appeal, the critical issue of whether Mr. Plummer authorized or directed Ms. Johnson to perform massage therapy and issue the receipts in his name is nothing more than a question of deciding whose evidence to believe, Mr. Plummer’s or Ms. Johnson’s. It is quite clear that the panel accepted Ms. Johnson’s evidence and rejected Mr. Plummer’s evidence on this particular point, while expressing its reservations about other aspects of her evidence. The panel gave cogent reasons for doing so. See pages 8 and 9 of the Decision.

9Credibility findings attract considerable deference. It is not the function of the appellate court to weigh the evidence and substitute its own view, particularly in a case based on oral testimony tested by cross examination.

10The findings of the panel and its ultimate conclusion are reasonable. The appeal is therefore dismissed.

COSTS

[11]

Costs

Costs fixed at $7,500.00, all inclusive.