CITATION: Muhammad v. College of Physicians and Surgeons of Ontario, 2014 ONSC 3734
DIVISIONAL COURT FILE NO.: 219/13
DATE: 20140618
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, DAMBROT AND SWINTON JJ.
BETWEEN:
DR. NAEEM HAFIZ MUHAMMAD
Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
Mark J. Sandler and Megan M. Schwartzentruber, for the Appellant
Lisa Brownstone, for the Respondent
HEARD at Toronto: June 18, 2014
DAMBROT J. (orally)
[1] The appellant appeals from findings of the Discipline Committee of the College of Physicians and Surgeons that he engaged in sexual abuse with a patient and that he engaged in disgraceful, dishonourable or unprofessional misconduct. The outcome of the proceedings turned entirely on the assessment of credibility.
[2] The appellant has dissected the reasons of the Discipline Committee minutely and subjected them to painstaking scrutiny. He argues that the Committee failed to consider relevant evidence and misapprehended the substance of significant items of evidence.
[3] It is plain that the Committee was alive to virtually every challenge now made to the credibility of the complainant and every factual issue raised by the appellant. In the course of thorough, detailed and thoughtful reasons, the Committee carefully reviewed the evidence of the witnesses and the video footage from security cameras in the appellant’s office and considered in detail the two concerns emphasized by the appellant before us, namely:
(i) the effect of the fact that the complainant, in her evidence, described the events of September 11, 2010 as two incidents separated in time while on other occasions she appeared to describe the events as one continuing incident; and
(ii) the significance of the video tape recorded in the doctor’s office that day.
[4] The Committee gave careful attention to both of these matters. The Committee considered that the first of these two concerns reflected a “significant” inconsistency in the complainant’s evidence. It considered the complainant’s explanation for the apparent change or changes in her account of the events of that day in detail. The Committee did not see the implications of these concerns in the way that the appellant would have liked. They did not consider the inconsistency to be material enough to discount the veracity of the complainant in the context of the whole of the evidence.
[5] With respect to the video tape evidence, given the imprecise testimony of the complainant as to how long it was between the two incidents, the video tape evidence does not refute her evidence. The video evidence is open to interpretation and is not decisive including in relation to her demeanour and behaviour after 10:39 a.m.
[6] The Committee’s findings of credibility are entitled to particular deference. The fact that some of these matters might have been viewed differently by the Committee is of no concern. In particular, contrary to the argument of the appellant, it is clear to us, as I have said, that the video tape is not open to only one reasonable interpretation.
[7] In the end, the Committee concluded that the appellant was credible and that the material particulars of her account of the events in issue were reliable having regard to the entirety of the evidence, while the evidence of the appellant and witnesses supporting him was not credible and reliable on material particulars. The Committee completely discounted the theory advanced by the appellant to explain why the complainant might have fabricated her account of these events and made its findings of professional conduct.
[8] The standard of review on this appeal is reasonableness. In our view, the decision of the Committee was reasonable with respect to both allegations of misconduct. There was a basis in the evidence for the Committee’s findings of credibility and for the decision it reached. The appeal must be dismissed.
ASTON J.
COSTS
[9] I have endorsed the Appeal Book on behalf of the panel as follows, “The appeal is dismissed in accordance with the oral reasons of Dambrot J. on behalf of the panel. Brief written submissions on costs may be served and filed in the next 15 days if the parties are unable to agree on those costs.”
DAMBROT J.
ASTON J.
SWINTON J.
Date of Reasons for Judgment: June 18, 2014
Date of Release: July 3, 2014
CITATION: Muhammad v. College of Physicians and Surgeons of Ontario, 2014 ONSC 3734
DIVISIONAL COURT FILE NO.: 219/13
DATE: 20140618
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, DAMBROT AND SWINTON JJ.
BETWEEN:
DR. NAEEM HAFIZ MUHAMMAD
Appellant
– and –
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: June 18, 2014
Date of Release: July 3, 2014