The College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599

CITATION: The College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599

DIVISIONAL COURT FILE NO.: 569/11

DATE: 20130318

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT AT TORONTO

MOLLOY, LAX AND HARVISON YOUNG JJ.

BETWEEN:

The College of Physicians and Surgeons of Ontario

Respondent

– and –

Allan Beitel

Appellant

Vicki White, for the Respondent

Jaan E. Lilles and Jon Laxer, for the Appellant

HEARD AT TORONTO: February 13, 2013

harvison young j.

Reasons for Decision

1This appeal was heard on February 13, 2013. At the end of the hearing, the panel advised counsel that the appeal was allowed for reasons to follow. These are those reasons.

2The Appellant, Dr. Allan Beitel, appeals from decisions rendered by the Discipline Committee of the Respondent, College of Physicians and Surgeons of Ontario regarding both the merits of a complaint and the penalty imposed on the merits.

3Dr. Beitel is a psychiatrist. The Complainant alleged that during their initial meeting, the Appellant directed him to stand in front of him and expose his genitalia. The Appellant denied that this occurred. Only the Complainant and Appellant testified at the hearing before the Discipline Committee.

4The central question before the Committee was whether the alleged act of sexual abuse in fact took place. The Committee rendered a decision concluding that “…on the balance of probabilities, based on clear, cogent and convincing evidence” the abuse occurred and accordingly that all of the allegations were proven (Reasons for Decision, p. 21).

5The Appellant raised a number of grounds of appeal with respect to the Committee’s conclusion that the complaint had been proved.

6First, he submitted that the Committee, in approaching its task as it did, effectively reversed the burden of proof.

7Second, he submitted that the Committee relied inappropriately on prior consistent statements in finding that the complaint was substantiated.

8Third, he submitted that the Committee should have allowed the Appellant’s request for disclosure of the Complainant’s third party records (the “O’Connor application”), particularly after the Complainant’s mental and psychological state had been put into play by the College itself in the course of the hearing. Moreover, the Appellant argued that the Committee, having dismissed the O’Connor application, should not have then relied on the absence of such evidence in finding that the incident took place as alleged by the Complainant.

9Fourth, and in the alternative, the Appellant submitted that the reasons given by the Committee are insufficient and therefore failed to meet the standard of reasonableness: Newfoundland and Labradors Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.

10The Appellant also submitted that the Committee made reversible errors in its assessment of the appropriate penalty, both in its first penalty decision dated May 1, 2012 and in its second decision concerning penalty dated July 17, 2012.

The Standard of Review

11The standard of review that applies to the articulation and application of the onus and standard of proof is that of correctness: Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321 at para. 70; Pimparé v. Canada (Attorney General), 2012 FC 581, [2012] F.C.J. No. 589 at para. 34; Nova Scotia Teachers Union v. Nova Scotia Community College, 2006 NSCA 22 at para. 31; Miners' Memorial Manor v. International Union of Operating Engineers, Local 968B, 2010 NSSC 464 at para. 37. With respect to the sufficiency of the reasons as a whole, the reasons must be read together with the outcome and reviewed on the reasonableness standard: Newfoundland Nurses; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 14.

Did the Committee’s approach to the evidence effectively reverse the onus of proof?

12The primary ground of appeal raised by Dr. Beitel was that, in approaching the evidence as it did, the Committee misapplied the onus of proof, and that the structure of its reasons demonstrates this misapplication.

13The Respondent disagreed with the Appellant’s submission that the structure of the Committee’s approach to the inquiry reversed the onus of proof. It submits that the Appellant seeks to “divert this Court’s attention from a review of the reasons as a whole, and from the appropriate level of deference to the Discipline Committee’s findings on credibility.”

The Committee’s Decision

14The Committee’s analysis of the evidence may be briefly summarized.

15Following a summary of the evidence given at the hearing, the Committee began with the question of when the appointment took place and whether the Complainant had brought the referral letter from his doctor with him at that time, or whether it had been mailed to the Appellant and received by him later. It mentioned that a great deal of time was spent on these issues at the hearing. The Appellant’s evidence was that the appointment took place on August 14, 2009 and that he had received the letter later in the mail. The Complainant’s evidence was that the appointment was on August 18 and that he had brought the letter with him on that date. The referral letter was dated August 18.

16The Committee stated that the debate surrounding the actual date of the appointment was “peripheral to the main issue of sexual abuse” but given the parties’ view that the matter went to credibility, and the efforts expended on it, the Committee considered the competing evidence “in some detail” (Reasons for Decision, p. 13). Ultimately, the Committee concluded that the appointment had taken place on August 18, 2009 and that the Complainant had brought the letter with him, as he had testified. It did not find credible the Appellant’s proposition that the Complainant, having already left a message for the Appellant on August 14 saying that he would not be returning for any further sessions, would then have gone to his doctor’s office to procure a referral letter four days later on August 18, 2009.

17It is common ground that the Committee made an express finding of credibility against the Appellant and in favour of the Complainant on this question of the date of the appointment and how the Appellant received the letter. It is also common ground that the Committee properly and reasonably assessed the evidence on this issue.

18The Committee then continued to consider the Complainant’s allegation in itself. It began by stating that in its view, there were “four possible alternatives”:

(i) that the Complainant “fantasized the incident”;

(ii) that the Complainant “misremembered or misunderstood the incident”;

(iii) that the Complainant “deliberately fabricated his account of the incident”; or

(iv) that the incident “occurred substantially as [the Complainant] testified” ( Reasons for Decision, p. 16).

19With respect to the first possibility, the Committee found there was no medical evidence suggesting the Complainant suffered from delusional pathology, or that he was intoxicated on the day of the appointment. Accordingly, it concluded there was no evidence supporting the possibility that the abuse was fantasized (Reasons for Decision, p. 16).

20With respect to the second possibility, the Committee found that there was no evidence of cognitive or memory problems that would account for such a “misremembering” or misunderstanding (Reasons for Decision, p. 17).

21With respect to the third possibility, the Committee stated that it “would be a monstrous act” to fabricate an account of sexual abuse in this case, and the testimony of the Complainant did not suggest he was capable of this. According to the Committee, the complainant was embarrassed rather than vengeful, and only testified reluctantly. There was never an actual diagnosis of borderline personality disorder. Consequently, the Committee found the Complainant did not fabricate the story (Reasons for Decision, p. 17). Having rejected that possibility, the Committee then concluded, “The Committee believed [the Complainant’s testimony and did not accept as truth the testimony of Dr. Beitel.”

22With respect to the fourth possibility, the Committee found that the Complainant maintained the same account of the incident from his first recounting to the nurse through to cross-examination. The Appellant’s description of a “happy patient, eager to continue the process” was incongruous with the Complainant leaving a message on the same day as his first appointment saying that he would not return.

23Having concluded that it did not believe the account of the Appellant, and did believe the account of the Complainant, the Committee found that the incident took place “substantially” as the Complainant described, concluding at p. 18 that:

In summary, the Committee found, on the balance of probabilities, based on clear, cogent and convincing evidence, that the allegations that Dr. Beitel sexually abused a patient and that he engaged in conduct relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonorable or unprofessional, have been proved.

Analysis of the Committee’s Decision

24There is no question that the standard of review with respect to credibility is a very deferential one indeed. Credibility findings are “quintessentially findings of fact” and command a heightened level of deference: see Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 38.

25The reasons in this case, however, reflect fundamental flaws in the approach to the assessment of the evidence that undermine the conclusions reached. As the Appellant submits, the presentation and structure of the “alternative approaches” to the evidence effectively reverses the burden of proof.

26The Committee rejected the first two possibilities set out above because “there was no evidence” that the Complainant had been diagnosed with a mental or psychological disorder. With respect to the third possibility, it rejected the defence submission that the Complainant had been diagnosed with borderline personality disorder saying that it was “in this case, one of a computer-generated list of possible diagnoses and that it had not been applied as a diagnosis to [the Complainant]”.

27The fourth scenario presented was that the incident occurred as described by the Complainant.

28There are a number of problems with this approach. First, the first three scenarios were resolved in favour of the Complainant on the basis of the absence of evidence, which suggests that the onus was placed on the Appellant to prove he did not sexually assault the Complainant.

29Second, the structure of the Committee’s approach leads by way of default from a rejection of the first three scenarios to the conclusion that the fourth scenario had occurred and that the Complainant’s version was established.

30This structure fails to allow for or consider the possibility that even if the Committee rejected the other three scenarios, the fourth scenario was not established on a balance of probabilities. As O’Neill J. wrote in Olegario v. Cabaraban [2007] O.J. No. 631 (Ont. S.C.) at para. 33:

I am not restricted to simply choosing whether I accept the evidence of the plaintiff or the evidence of the defendant. Rejection of one does not equate to acceptance of the other. The stark alternative of believing the plaintiff’s evidence or the defence’s evidence excludes the legitimate possibility of being unable to resolve conflicting evidence. The issue in this civil trial is not which of the two versions with respect to Terra Cotta and Grand Valley are true but rather, on the totality of the evidence, viewed as a whole, has the plaintiff proved her case on balance of probabilities.

31In addition, the Committee did not make express findings of credibility in relation to the allegation at issue. It did, as the Respondent emphasized, make a credibility finding in favour of the Complainant in relation to the issue about the date and the referral letter. It conducted an appropriate credibility analysis on this point, giving reasons for its acceptance of the Complainant’s evidence on this issue. However, it described this issue as “peripheral”. The fact that the Committee believed the Complainant on this issue does not explain, standing alone, why it believed him on everything, particularly in light of its view that this was a peripheral issue. As juries are always informed, a trier of fact may accept some, all or none of a witness’s evidence.

32While we agree with the Respondent that a reviewing court must consider the reasons as a whole, looking at these reasons as a whole does not assist the College in this case because the presentation of the “alternative approaches” dominates or drives the decision as a whole. The analysis begins with the four scenarios as set out above, and, as the Appellant submits, proceeds through them by process of elimination.

33Reading the reasons as a whole, the concluding statement that, “on the balance of probabilities, based on clear, cogent and convincing evidence” the abuse occurred and, accordingly, that all of the allegations were proven was no more than a conclusory statement that did not flow from the preceding reasons. Put another way, it is a formulaic statement that is not borne out by the substance and structure of the reasons, which, as discussed above, do not clearly consider whether the College has proven the allegations on a balance of probabilities. As the Court of Appeal held in Barrington v. The Institute of Chartered Accountants of Ontario, 2011 ONCA 409 at para. 113:

The reasons for decision in professional discipline cases must address the major points in issue in the case. A failure to deal with material evidence or a failure to provide an adequate explanation for rejecting material evidence precludes effective appellate review: Gray v. Ontario 2002 7805 (ON CA), (2002), 59 O.R. (3d) 364 (C.A.), at paras. 22-24; Law Society of Upper Canada v. Neinstein (2010), 2010 ONCA 193, 99 O.R. (3d) 1 (C.A.), at paras. 61 and 92.

34We are of the view that the appeal must be allowed on the basis that the Committee, in approaching the evidence as it did, effectively misapplied or reversed the onus of proof. As we will discuss further below, however, the errors made in this regard are compounded in this case by the Committee’s treatment of the prior consistent statements and by its reliance on the absence of mental health evidence in the light of its refusal to allow the Appellant’s third party records application.

O’Connor Application

35The Appellant also appealed on the basis that the Committee, having refused his applications for disclosure of the Complainant’s counseling records, proceeded to rely on the lack of evidence establishing that the Complainant suffered from a psychological or mental disorder as a basis for substantiating the complaint. At para. 55 of his factum, the Appellant submitted as follows:

The Committee’s error in reversing the burden of proof was compounded by its rejection of Dr. Beitel’s third-party records application for [the Complainant’s] counseling records…. As outlined above, the Committee reversed the burden of proof and required that Dr. Beitel prove that [the Complainant] suffered from a psychological or mental disorder. At the same time it refused to grant Dr. Beitel access to [the Complainant’s] psychological counseling records which would allow him to meet this burden. This placed Dr. Beitel “in an impossible Catch-22 position”.

36The Appellant brought an application for disclosure of third party counseling records in advance of the hearing. The Committee dismissed the application on the basis of the first stage of the analysis set out in R. v. O’Connor 1995 51 (SCC), [1995] 4 S.C.R. 411, holding that these records were not “likely relevant”.

37During the hearing, the Appellant renewed its application after counsel for the College examined the Complainant about his medical history, including the counseling he had received for post-traumatic stress disorder following a motorcycle accident in which he had been seriously injured. The Appellant argued that this treatment and any such psychological or mental issues were thus “live” issues in the case. The Committee also denied this application on the basis that it was not “likely relevant”.

38We agree with the Respondent College that the standard of review applicable to the College’s dismissals of the O’Connor applications is that of reasonableness. On these facts, however, even if it was reasonable for the Committee to dismiss the O’Connor applications, it was improper and unreasonable for the Committee to then draw inferences in favour of the Complainant on the very basis of the absence of the type of evidence that might have been disclosed through the O’Connor applications. Doing so further compounded the errors set out above with respect to the approach to the evidence and the onus of proof.

The Use of Prior Consistent Statements

39The Appellant also submitted that the Committee improperly relied on prior consistent statements in support of its acceptance of the bulk of the Complainant’s account of the incident.

40The Respondent College did not take issue with the legal principles governing the use of prior consistent statements as set out by the Appellant. It submitted, however, that the Committee did not use these statements inappropriately, but that, even if it did, this should not be a basis to set aside the entire decision.

41The main statements in issue were contained in the accounts that the Complainant had made to the nurse practitioner in his family doctor’s office, and then to his family doctor. These were admissible to rebut the suggestion that the first time that the Complainant had said that the appointment was on August 14 had been the night before his testimony.

42College counsel specifically warned the Committee about the restrictions upon the use of that statement, emphasizing that the statement could not be used as evidence of the date of the appointment but only to rebut the attack on the Complainant’s credibility and to rebut the allegation of recent fabrication.

43Unfortunately, the Reasons for Decision indicate that the Committee did rely on the content of these statements as it was warned not to do. In considering its fourth scenario, that is that the incident occurred as described by the Complainant, it states at p. 17 of its Reasons that the Complainant

…maintained the substance of his account of the incident to the nurse practitioner, to Dr. Bender, in his letter to the College, in his interview with Mr. McNamara and under vigorous cross-examination. While he admitted the possibility of minor wording inconsistencies in his evidence, his description of the incident did not vary in any major point and remained unshaken.

44These comments took place within the discussion of the four scenarios which addressed the substance of the allegations. It did not take place within the discussion of the date of the appointment with Dr. Beitel. It is clear from both the wording and the context that the Committee relied on these prior consistent statements to bolster the substance of the allegation. This is precisely what the rule against prior consistent statements is meant to guard against. In the circumstances of this case, the use of the prior consistent statements further compounds the errors in relation to the onus of proof as discussed above, as well as the treatment of the absence of evidence of any mental or psychological issues in the Committee’s reasons in light of its decisions on the O’Connor applications. It is not necessary to decide whether, in and of themselves, the appeal would have been allowed on the basis of the reliance on these statements.

Sufficiency of Reasons

45The Appellant submitted, in the alternative, that the reasons for decision were not sufficient. Given our conclusions on the central grounds, it will not be necessary to address this submission.

The Penalty Decisions

46Similarly, on the basis of our conclusion that the appeal as to the finding of professional misconduct must be allowed, it will not be necessary to address the submissions with respect to penalty.

Conclusion and Costs

47For the foregoing reasons, the appeal is allowed. The parties agreed that the amount of costs should be fixed at $7500.00. Accordingly, costs are payable by the College to Dr. Beitel in the amount of $7500.00.

Harvison Young J.

Molloy J.

Lax J.