CITATION: Karkanis v. College of Physicians and Surgeons 2014 ONSC 7018
DIVISIONAL COURT FILE NO.: 222/13
DATE: 20141204
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SWINTON, & NORDHEIMER JJ.
BETWEEN:
DR. SAMI KARKANIS
Appellant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
M. Sandler & A. Ross, for the appellant
A. Block, for the respondent
HEARD at Toronto: November 17, 2014
NORDHEIMER J.:
[1] The appellant appeals the decision of the Discipline Committee of the respondent dated November 16, 2012 that found the appellant committed two acts of disgraceful, dishonourable and unprofessional conduct. As a consequence of those findings, the Discipline Committee ordered that the appellant’s certificate of registration be revoked, that he be reprimanded and that he pay costs. The appellant appeals only the findings of misconduct. He does not appeal from the penalty imposed. In other words, the appellant accepts that, if the findings of misconduct are sustained, the penalty imposed was an appropriate one .
[2] For reasons that I will explain, it is my view that the decision of the Discipline Committee is so flawed in its reasoning that it cannot be confidently relied upon to have produced a reasonable result. The appeal must therefore be allowed.
Facts
[3] It is necessary to set out the factual background in some detail to put the issues that arise into their proper perspective. The appellant is a physician with a specialization in obstetrics and gynaecology. The allegations fall into two time frames, one in 2002 to 2003 and the other in 2006. During those times, the appellant lived in Ajax and practiced at the Ajax Hospital. He also had a sole practice in his own office. In 2006, the appellant turned his practice over to a locum and relocated to Dubai to serve as an assistant professor. He returned periodically to his practice. The office remained open until 2010.
[4] The complainant in this matter, to whom I shall refer throughout these reasons as Ms. B., moved to Canada from the Czech Republic in 1993. At the material times, she also lived in Ajax with her husband, Mr. C.B., and their two young children. Ms. B. is employed as a marketing and customer relations representative for a sleep clinic. The appellant lived, with his wife and children, in the same community as Ms. B. Ms. B. initially met the appellant during her first pregnancy in 2002. From August 1, 2002 to March 18, 2003, she attended the appellant's office for regular check-ups throughout her pregnancy.
[5] In her evidence, Ms. B said that her husband never accompanied her on any of these visits. She also said that she never felt that the appellant’s conduct during this period had been inappropriate until after she saw a different gynaecologist for her second pregnancy in 2009. According to Ms. B., the appellant’s inappropriate conduct included vaginal examinations during every one, or at least most, of her fifteen visits. It also involved repeated comments about the quality of the Ms. B.’s skin during times while the appellant was touching her abdomen.
[6] In relation to the vaginal examinations, Ms. B.’s evidence varied between saying that the appellant had conducted such examinations on most of her visits and that he had conducted such examinations on all of her visits. The latter would have amounted to fifteen vaginal examinations. Ms. B.’s medical records, however, indicated that she had had only two vaginal examinations over the course of the fifteen visits. Ms. B. said that her recollection did not accord with the medical records. The appellant gave evidence confirming what the medical records showed, that only two vaginal examinations took place – one January 30, 2003 and the other on March 18, 2003. The Discipline Committee accepted that there were legitimate medical reasons for both of these examinations.
[7] The appellant called Ms. B.’s husband, Mr. C.B., as a witness. Mr. C.B. said that he did accompany Ms. B. to one of these appointments. Also, contrary to Ms. B.’s evidence, Mr. C.B. said that his wife told him that she “felt a little uneasy” about the appellant from the outset.
[8] In relation to the second feature of alleged impropriety, Ms. B. testified that the appellant would touch and rub the skin on her stomach during her examinations, tell her that she had nice soft skin, and ask her what products she used on it. She could not remember the exact words he used, but his comments related to her stomach. She said that the touching involved rubbing more than examining, but she was not entirely certain of the movement.
[9] Although these examinations took place, in part, to measure the size of the baby, Ms. B. did not recall the appellant ever using a measuring tape to measure her abdomen. She was therefore unable to explain how he measured and recorded the “synthesis fundus height” in his medical notes for every visit. The appellant gave evidence confirming that he examined Ms. B.’s abdomen on every single visit. He said that this was standard practice for prenatal visits. The examination included checking the size of the abdomen with a measuring tape, as well as checking the fetal heart rate and the position of the baby. The appellant recorded this information in Ms. B.’s medical records.
[10] According to Ms. B., the appellant explained his interest in the quality of her skin because he wanted to be able to tell his other patients how to deal with stretch marks and black marks (known as linea nigra) that appear in pregnancy. The appellant told Ms. B. that he had researched the issue before, but with no success. This was confirmed by the appellant, who gave evidence that pregnant women were frequently concerned about the development of dark lines on their bodies during pregnancy. There is no known treatment for this condition. However, the appellant noticed, when examining Ms. B., that she had no stretch marks and no black marks and that she appeared to have applied a product to her skin. Accordingly, he remarked to Ms. B. about the lack of marks on her abdomen, and asked her if she used anything. He acknowledged that he would have touched Ms. B.’s skin during these conversations. The appellant said that he sometimes used his hands when he spoke and so could well have pointed to and touched Ms. B.’s abdomen to indicate the lack of marks. This touching would occur simultaneously with his examination of Ms. B.’s abdomen; he would be examining the baby and feeling where the head was at the same time as he was discussing Ms. B.’s lack of black lines and touching her stomach to indicate the areas he was referring to.
[11] Ms. B. gave evidence that she brought in the product (a natural cream) to show the appellant. She recalled that even after that, he continued to stroke and comment on her skin. Ms. B. said that this happened repeatedly and that the appellant also made the same comments repeatedly.
[12] The appellant gave evidence that he had indeed asked Ms. B. for the name of the product, but he could not now recall the product’s name or if she actually brought it in to show him. He also readily acknowledged that he may have discussed Ms. B.’s lack of stretch marks and black lines on several occasions: potentially on her first visit, and then afterwards as she did not develop black lines or stretch marks throughout her pregnancy. The appellant explained that such lines can develop at various stages in the pregnancy; so they may have had ongoing discussions about this, as well as other routine updates regarding the baby. However, according to the appellant, this happened probably “two or three times at most”.
[13] Ms. B. gave birth to her daughter in March 2003. The appellant did not deliver Ms. B.’s baby, but she did see him for in-patient postpartum care in March 2003 and then again in 2006 for out-patient gynaecological appointments.
[14] After her daughter was born, Ms. B. also saw the appellant in the Ajax community. The appellant had mentioned that he went to Paradise Park with his family. This was a local park that Ms. B. also frequented. Ms. B. gave evidence that, on one occasion around 2005, she took her daughter to the park. The appellant was there with his wife and child or children. The appellant said hello, and they had a basic, friendly conversation. The appellant also remembered this event, although he recalled that it had occurred at a later time in 2006. He gave evidence that he was at the park, with his wife and daughter, when they bumped into Ms. B. and her daughter. Ms. B. sat down with the appellant and his wife, and they chatted about their children and the park. According to the appellant, his wife also engaged in this conversation although Ms. B. denied this. They talked for about half an hour.
[15] What was purportedly most significant about the conversation was that, according to Ms. B., the appellant said something about her being a good mother, and a woman or mother that he would like to have for his children. Ms. B. said that she did not give much thought to the comment at the time, in part, because English was her second language. Ms. B. said that as she thought about the comments further, she thought that they were definitely inappropriate.
[16] Ms. B. recounted a different version of the conversation in the park, however, when she was interviewed by the respondent’s investigator in 2010. At that time, Ms. B. said that the appellant had commented that he wished he had a “wife” like her. Ms. B. claimed that this is what she believed the appellant had said and that she felt that it was inappropriate.
[17] The appellant denied saying that he wished that he had a wife like Ms. B. He said that he would not have made such a comment given that he was at the park with his wife. He did acknowledge telling Ms. B. that she was a good mother.
[18] Mr. C.B.’s evidence touched on this matter as well. He said that his wife had told him that the appellant said something to the effect that she was a good mom, as she was at the park all of the time with her daughter. Nonetheless, Mr. C.B. said that the comment had offended his wife and he also found it too personal.
[19] In cross-examination, Ms. B. was asked to explain the discrepancy between what she had told her husband and the Committee and her initial disclosure to the College. She acknowledged that she could not remember exactly what the comment had been, but said, for the first time, that the appellant had made more than one comment on that occasion. Ms. B. also said, again for the first time, that the appellant’s wife had left by the time these comments were made.
[20] Ms. B. made an appointment to see the appellant again on May 11, 2006. Two more appointments followed: one on June 21, 2006 and the final one on July 20, 2006.
[21] At the May 11, 2006 appointment, Ms. B. complained of occasional pelvic pain, pain with intercourse and ovulation pain. She also thought that she had a yeast infection. Due to her complaint about pelvic pain, the appellant ordered an ultrasound that revealed a septated cyst in her left ovary. He also did a vaginal swab. The yeast infection had returned as of the June 21 appointment, and Ms. B. complained again of pelvic and ovulation pain. Ms. B. also told the appellant that she was going to Europe for several months, and needed medication for her recurrent yeast infection as she was worried about her ability to get a prescription in the Czech Republic. The appellant advised Ms. B. that it was important to have another ultrasound to follow up on the cyst before she went to Europe. Ms. B. gave evidence that she did not remember the appellant's assistant, Ms. Benak, being present in the examination room during these appointments. However, the appellant’s medical records noted that Ms. Benak was present for these examinations.
[22] Ms. B. said that she was suspicious of the appellant because it was too easy for her to get appointments with him. Ms. B. subsequently connected this special treatment in her own mind with the sexual assault that she occurred later. She acknowledged that she had felt, at one of her last appointments, that she was being treated as a special client, and attributed any inconsistencies in her evidence on this point to language difficulties, noting again that English was her second language. Ms. B. admitted that she did not know if the appellant’s practice with all of his patients was to ensure availability on short notice for problems that needed to be addressed. She did agree that the appellant provided her with good medical care in trying to follow up with her problems before she left for the Czech Republic for two or three months.
[23] The appellant gave evidence that for first time patients, his waiting time for an appointment was a maximum of two weeks. For established patients, he would always squeeze the patient in and that he would also not necessarily take patients in order, depending on the nature of the treatment that they needed. In any event, he said that he always had vacancies, as he was not a fully booked obstetrician. As of the June appointment, Ms. B. had told the appellant that she was leaving for Europe and required medication. Because Ms. B. was leaving for Europe, the appellant also noted that she had the follow-up ultrasound more quickly than would regularly be scheduled.
[24] Ms. B. acknowledged that she had thought that the appellant was being very unprofessional and had a special interest in her even before her last visit. Indeed, she went further by describing the appellant’s conduct as “stalker-like behaviour” or “behaving like a stalker”. She drew no distinction between the two.
[25] The conduct that Ms. B. characterized as “stalking”, was said to have been comprised of (a) one telephone message and one phone call to Ms. B.’s home regarding Ms. B.’s medical test results, and (b) the appellant stopping by Ms. B.s former home on one occasion when it was up for sale after running into Ms. B. while she was bicycling near his home. It is to be remembered that Ms. B. and the appellant lived in relative close proximity to each other.
[26] Sometime before Ms. B.’s final visit on July 20, but after her first visit in May, the appellant called her home twice. On the first occasion, he left a message on the answering machine. The second time, he spoke to Ms. B. He told her that he was on his way home from the hospital, and was calling her to let her know about her test results. According to Ms. B., the appellant asked her about her weekend plans, whether she would be going to the park with her daughter, and if she was at home alone. Ms. B. felt that the appellant calling her was extremely unprofessional and inappropriate.
[27] Ms. B. admitted that the only time the appellant called her home was to discuss test results. The appellant told her that he called his patients personally with positive test results in case the patient had questions. Ms. B. claimed that the appellant had never called her personally with positive (i.e. abnormal) test results, and that, on this occasion, he informed her that the yeast infection test results were negative (i.e. normal). Ms. B. said that she was suspicious of the appellant’s motivation for calling because she wondered why she would have any questions about her test results, if they were negative. However, in cross-examination, it was pointed out to Ms. B. that her medical records showed that, while a pap smear was normal (negative), the yeast infection test was positive. While Ms. B. initially maintained, despite the records, that the appellant had told her that the test results were negative, she ultimately admitted that the appellant may, in fact, have told her that while the pap smear was negative, the yeast infection test was positive. That admission accorded with the appellant’s evidence regarding the telephone conversation and with his office procedures regarding reporting test results. The appellant admitted that he could well have started off the conversation by speaking with Ms. B. about her daughter and whether they were going to go to the park. The appellant explained that Ajax was a small community and that he often ran into and chatted with his patients.
[28] In approximately the Spring of 2006, Ms. B. saw the appellant while she was bicycling with her daughter near the appellant’s home. The appellant was in his vehicle with his child or children. According to Ms. B., they had a basic, neighbourly conversation while the appellant followed Ms. B. in his car slowly. Ms. B. then cut between some houses on her bicycle and proceeded home. A few minutes later, she saw the appellant coming towards her street from the opposite direction. He no longer had his child or children with him. The appellant stopped his car at Ms. B.’s home and continued the conversation with her. Ms. B.’s husband came out of the house during their conversation. Ms. B. felt that this made the appellant nervous, and he returned to his vehicle and left. Mr. C. B. gave evidence that he did come out of the house and did see the appellant, who he thought looked embarrassed, and the appellant then left. However, Mr. C. B. said that the appellant was in his car, with the window rolled down, talking to Ms. B.
[29] The appellant recalled running into Ms. B. while she was on her bike. He could not recall if he had been riding his bicycle or was in his car, but was certain that he would not have driven his car in the manner described by Ms. B. The appellant denied following Ms. B. home. He said that he ran into Ms. B. coincidentally in front of her home. Prior to that, he had not known exactly where Ms. B. lived. He saw the “For Sale” sign on the property, and stopped to say hello. The appellant testified that Ms. B. told him that she had a nice house and that it had the biggest backyard in Ajax. As a result, the appellant looked at the backyard from the gate. Ms. B. did not recall the appellant looking into the backyard. Ms. B. did admit, however, that her home had been up for sale at the time, a fact that she had discussed during one of her appointments with the appellant. She also acknowledged that her home had the biggest backyard in the area, and that the appellant had indicated that he was looking at homes in the area for physician colleagues who wanted to live near the Ajax-Pickering Hospital.
[30] Ms. B. also claimed that, during one of the 2006 medical appointments, in relation to her complaint of having pain with intercourse, the appellant asked her, “do you like them big?”. Ms. B. was shown her medical records which indicated that on May 11 and June 21, she complained of pain on intercourse. Ms. B. admitted that the appellant had asked her questions about the complaint, but she could not recall specifically what questions he had asked. She could not recall, for example, if the appellant had asked her if she had discomfort on superficial/initial entry with intercourse, or on deep entry.
[31] The appellant gave evidence that, when a patient complained of pain on intercourse, he wanted to know where the pain was coming from – either superficial pain, or deep penetration pain. The appellant would ask the patient questions such as: how long was it happening for; is it something new; where is the pain; is it deep or superficial; does it happen all the time or sometimes; does it happen in certain positions; does it stop the patient from finishing intercourse?
[32] The appellant denied asking Ms. B. “do you like them big?”. The appellant suggested that Ms. B. misunderstood the question due to language issues, or had misheard him. It was suggested to Ms. B. in cross-examination that the appellant had in fact never asked her, “do you like them big?” and that she was mistaken in that regard. Ms. B. insisted that she did remember this comment, although she remembered none of the other questions posed, including a possible question about “deep” entry. Ms. B said that she remembered this comment because it was so shocking that it stuck in her head. Ms. B., however, never mentioned this comment in her March 2010 complaint letter to the respondent or during her lengthy interview with the respondent’s investigator on April 1, 2010. According to the Discipline Committee’s reasons, the matter was first raised with the respondent in August 2012.
[33] Ms. B. said that, by the May long weekend in 2006, she was uncomfortable and suspicious that the appellant was harbouring a secret attraction to her, was actively engaging in “stalker-like” behaviour, and was acting unprofessionally. Mr. C. B. confirmed that, due to the phone calls and the attendance at their home, he and his wife had reached the conclusion that the appellant was engaging in stalker-like behaviour.
[34] Ms. B. drew a distinction between the appellant's “out of office” conduct and his “in office” conduct. As a result of this distinction, Ms. B. said that she expected the appellant to act professionally at his office.
[35] Ms. B.’s last appointment with the appellant took place on July 20, 2006, right before her trip to Europe. The appellant’s office was busy when she arrived. Ms. B. said that she noticed that she was called ahead of other people who were already there. According to Ms. B., when she entered the appellant’s office at the outset of her appointment, he gave her a full, embracing hug. He told her that he was moving out of the country because of a job offer, and asked Ms. B. if he could contact her while he was away. The appellant asked her for her email address or her cell phone number so he could contact her. Ms. B. did not provide the requested information to him. According to Ms. B., the appellant also told her that he was going through a divorce and had to go to court as a way of explaining why he was dressed up.
[36] The appellant gave evidence that he had moved out of his home and thus was no longer frequenting the local park. He said that he may have referred to his divorce in that context. He had also told other patients about his divorce: specifically, those who knew him or his wife, or were from his church. The appellant said that Ms. B. expressed concern that he was leaving for Dubai, as she had been dealing with recurrent problems, and would have no gynaecologist.
[37] The appellant’s evidence was that signs were placed in his office to let patients know that he was leaving and a locum would replace him. He offered patients his email address if they expressed concerns about reaching him while he was away. He was, in fact, contacted by patients, students and other doctors while away, although he did not treat patients by email. The appellant’s evidence was also that certain patients only wanted to deal with him and that these patients waited three or four months to see him during those periods when he returned from Dubai between 2006 and 2010. The appellant did not specifically recall if he provided Ms. B. with his email address, but he did say that he would not have asked for her telephone numbers, as they were already in his file.
[38] The appellant remembered hugging Ms. B. in the corridor outside of his office when they said goodbye. The hug was mutual and likely initiated by Ms. B. He did not usually initiate hugs with patients so as to avoid misunderstandings.
[39] On this last visit, according to Ms. B., the appellant left the room and she prepared for a vaginal examination. The appellant returned with his assistant, Ms. Benak, and began examining her. The appellant’s evidence was that his practice had been, for a number of years, to have a chaperone present for such examinations. Throughout the examination, Ms. B. felt that the appellant’s thumb was touching her clitoris. She initially thought that the contact was accidental, but then she began to doubt that, as she noticed that the touch was “a little bit longer than accidental”. Ms. B. claimed that the assistant could not see what was going on because the assistant was standing by the door, which was by Ms. B.’s head. She specifically denied that Ms. Benak stood beside the appellant.
[40] Ms. Benak’s initials in the medical notes confirmed that she was present for the examination. Contrary to Ms. B.’s account, Ms. Benak’s evidence was that, although she had no specific recollection of Ms. B. or her visit, she always stood at the patient’s feet, beside the appellant. As a result, she was able to observe the entire procedure and assist the appellant. The only exception to her practice of standing beside the appellant occurred if she offered comfort to a patient who became upset. Even in the latter situation, Ms. Benak would have moved to the patient’s head, offered comfort and then returned to her position beside the appellant.
[41] Ms. Benak’s evidence was consistent with the appellant’s description of her role. The appellant had no independent memory of Ms. B.'s visit. However, based on his medical notes, he indicated that Ms. B. had complained of a resistant yeast infection, and vaginal itching and burning. As a result, the appellant did a vaginal swab, with normal results. He could not recall whether an internal examination was done but said it was certainly possible. The appellant noted that both an “inspection” exam (including the swab) and an internal exam are usually required at every visit to complete the full vaginal exam properly.
[42] According to Ms. B., after the swab examination was finished, the appellant said that he was done and the assistant left the office. Ms. B. sat up in her paper gown and waited for the appellant to leave. Instead, the appellant said that he had forgotten to check on something and asked her if she would please lie down. Ms. B. did lie down, and the appellant resumed the examination. It was at this point that Ms. B. alleged that she was “sexually assaulted”.
[43] According to Ms. B., the resumed examination felt more like a sexual interaction than a medical examination. Ms. B. could feel the appellant’s fingers moving in and out of her vagina in a straight, repeated in and out motion. The appellant touched Ms. B.’s clitoris a few more times with his thumb. At one point, the appellant looked at Ms. B.’s face and asked, “How does that feel?”. Ms. B. felt that the question was asked in a sexual rather than a medical manner. She did not respond. Ms. B. acknowledged that the appellant did not make any other sexual comments during the visit. Ms. B. further acknowledged that, while she had assumed that the appellant’s facial expression was sexual, she saw no other signs of arousal.
[44] The appellant was adamant that he had never examined Ms. B. in anything other than a professional manner. The appellant noted that he has very short hands, making obstetrical work difficult for him and requiring that he actually put part of his hand inside the vagina during examinations to reach properly. He described in detail how he conducts a vaginal examination. The appellant said that, like most obstetricians, he usually uses two fingers to conduct the internal examination. The thumb is around the clitoris area. There is no other way to perform it, particularly given the size of his hands. He would simply try to keep the thumb pulled back as far as possible. As well, if he inserts two fingers of his right hand into the vagina, with his left hand on the abdomen, and squeezes the uterus in between, and the patient has a lot of pain, this typically shows there is endometriosis in the uterine wall. The appellant acknowledged that his fingers would be moving in the vagina. He said that, when he is checking for pain caused on intercourse, he is attempting to find where the pain is. Therefore, he has to probe different areas to see which one hurts.
[45] The appellant’s medical chart confirmed that Ms. B.’s test results from the previous two appointments had first been positive for yeast and then negative, and that subsequently Ms. B. had continued to complain of burning and itching. Accordingly, she would have required a full palpitation on examination.
[46] Following the examination, Ms. B. left the office. She testified that she was confused and in shock, and wondered if the incident had really happened, or whether it had been her imagination. She bought a coffee, drove down to the lake, and had a cigarette in an attempt to calm herself down. Upon arriving home (at her in-laws where she was then residing), Ms. B. encountered her mother-in-law, R.B., and requested a strong drink instead of her usual tea. This was unusual because she rarely drank. She was very upset, and told her mother-in-law that she felt that she had been sexually abused.
[47] Ms. B. did not report her complaint at that time. She said that she just tried to put it behind her and move on with her life. It was not until her second pregnancy and an appointment with a different gynaecologist, at the beginning of 2009, that she disclosed her experience with the appellant. She cried when asked by a nurse about her previous obstetrician, as it “triggered everything that was piled up in my mind for that period of time” and indicated that there had been a sexual violation. Ms. B.’s new gynaecologist was informed and he advised her that he would have to report the incident to the respondent. Ms. B. subsequently brought a complaint to the respondent.
Analysis
[48] The Discipline Committee gave a full set of reasons for reaching the conclusion that the appellant had engaged in conduct that constituted disgraceful, dishonourable or unprofessional conduct in two respects. One was the comments that the appellant made in 2002 and 2003 regarding the attractiveness of Ms. B.’s skin while touching her abdomen. The other was in sexually abusing Ms. B. during a pelvic examination on July 20, 2006.
[49] I begin my analysis by saying that I recognize that the findings of the Discipline Committee are entitled to a high degree of deference. I also recognize that a reviewing court should not minutely dissect the reasons of a tribunal nor should it retry the case. In the end, the question is whether the reasons of the tribunal support the decision after a fair examination of them. Indeed, in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, the Supreme Court of Canada put the question as follows, where McLachlin C.J.C. said, at para. 47:
The content of a standard of review is essentially the question that a court must ask when reviewing an administrative decision. The standard of reasonableness basically involves asking “After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?”
[50] The approach to the application of the reasonableness standard, and thus the question to be asked by a reviewing court, was expressed in different terms in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 but, in my view, the central analysis remains the same. In Dunsmuir, Bastarache and LeBel JJ. expressed the standard in this way, at para. 47:
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
In my view, however, the central analysis remains the same. Do the reasons support the decision once those reasons are subjected to a fair, but serious, review?
[51] In my view, the reasons of the Discipline Committee reveal the following significant errors:
(i) the Discipline Committee accepted Ms. B.’s characterization of the appellant’s conduct as “stalker-like”;
(ii) the Discipline Committee subjected the appellant’s evidence to a different level of scrutiny than they applied to the evidence of Ms. B.;
(iii) the Discipline Committee relied on the evidence of after the fact conduct for an improper purpose.
[52] This case was a typical clash between two versions of the same events. It is a case that is often referred to as a “she said, he said” type of case. Thus, the Discipline Committee was required to decide between these two competing versions in order to come to their conclusions. In doing so, the Discipline Committee was required to assess the credibility of the appellant and Ms. B. Credibility assessments have two constituent elements. One relates to the honesty of the witness, that is, the witness’ willingness to speak the truth as s/he believes it to be. The other relates to the reliability of the witness, that is the witness’ ability to observe, recall and recount the events s/he gives evidence on.
[53] In this case, the appellant did not challenge the honesty of Ms. B. The appellant accepted that Ms. B. believed that the events happened as she believed that they did. The appellant did, however, challenge the reliability of Ms. B.’s evidence. The appellant submits that the reliability of Ms. B.’s recounting of events before the Discipline Committee, when compared to other available evidence including her own earlier recollections, is open to very serious question. The appellant says that the Discipline Committee failed to appreciate the difference between the honesty (loosely referred to as credibility by the Discipline Committee) of Ms. B. and the reliability of Ms. B.’s evidence. I agree with the appellant that the Discipline Committee does not appear to have recognized, or properly understood, this distinction.
[54] In terms of the “stalker-like” conduct, the evidence underlying this characterization consists of the appellant’s telephone call to Ms. B. to report on the test results and the encounter when Ms. B. was on the bicycle followed by the attendance at Ms. B.’s home. It is difficult to reconcile the Discipline Committee’s acceptance that these events “occurred largely as Ms. B. said they did” with the fact that Ms. B.’s concern about the telephone call was premised on her belief that the test results were negative when, in fact, one of the two test results was positive. It is also difficult to see how the Discipline Committee reached their conclusion, that the events at Ms. B.’s home occurred as she remembered, when the Discipline Committee did not address the differences between Ms. B.’s recollection of those events and the recollection of her husband; the fact that Ms. B.’s home was for sale and had a “For Sale” sign outside; and that Ms. B. and the appellant lived in relatively close proximity to each other thereby increasing the likelihood of them casually encountering each other in the neighbourhood. None of these items are determinative of the issue but they were items that needed to be mentioned in the analysis of whose version ought to be believed and yet they are missing from the Discipline Committee’s analysis.
[55] Further, in accepting Ms. B.’s characterization of the conduct of the appellant in these two instances, the Discipline Committee found that it was “understandable” that she would not say anything to the appellant about her concerns that he had crossed some professional line in his dealings with her. The Discipline Committee also found that it was “understandable” that Ms. B. would go ahead with the July 20, 2006 appointment notwithstanding her concerns (and those of her husband) that the appellant was engaging in “stalker-like” conduct. The Discipline Committee never explains why Ms. B.’s conduct, in these circumstances, was understandable.
[56] The Discipline Committee also attempts to explain Ms. B.’s decision to attend the July 20, 2006 appointment on the basis that Ms. B. “rightly expected” that the appellant would act professionally towards her at the office. In doing so, the Discipline Committee again does not explain why Ms. B. would rightly expect that, especially in light of the fact that, by that time, Ms. B. believed that the appellant had conducted fifteen vaginal examinations on her in 2002 and 2003; had made all of the repeated comments about her skin; and had, during an office visit, made the “do you like them big?” comment.
[57] Another problem that arises from the Discipline Committee’s decision is the fact that there were a number of contradictions in the evidence that Ms. B. gave before the Discipline Committee and the recollection of the same events that she had earlier given to the respondent along with the independent records. It is a matter of common sense that, when a witness says one thing at a hearing, but has said something quite different on an earlier occasion, the fact that the witness has given different versions may be important in deciding whether, or how much, to believe of, and rely upon, the witness’ evidence.
[58] By way of example, Ms. B. maintained that the appellant had conducted vaginal examinations in 2002 and 2003 on virtually each and every time that she saw him, that is, on fifteen occasions. The medical records showed that there were only two such examinations. The Discipline Committee explained this discrepancy in the following way:
The Committee does not find that the complainant was untruthful when she said that she was vaginally examined every time she attended Dr. Karkanis’ office in 2002 and 2003. She was called upon to try to remember events from many years earlier and the Committee finds that she was simply mistaken on this point and, considered in context, it is of no consequence.
[59] The passage of time is a perfectly valid basis upon which to explain away a witness’ failure to accurately recall an event. However, it is difficult to see how the passage of time would have confused Ms. B. between whether a vaginal examination had occurred or not. It is also difficult, in the circumstances of this case, to say that the discrepancy was “of no consequence”. This instance also reveals the distinction between honesty and reliability. While the Discipline Committee could conclude that Ms. B. was being honest in her evidence, the conflict in the versions of events had to be considered by the Discipline Committee in considering whether Ms. B.’s evidence was reliable. It is not evident that the Discipline Committee considered this second part of the credibility analysis.
[60] This is not the only example of faulty recall by Ms. B. Another example is that Ms. B. said that her husband never accompanied her on any of the visits in 2002 and 2003 whereas Mr. C.B. said that he had. Of more importance on this point, however, is the “do you like them big?” comment attributed by Ms. B. to the appellant in 2006. Ms. B. said that the nature of the comment stuck in her mind. I have no difficulty in accepting that as true. I would expect that such a comment would be something that any person in Ms. B.’s situation would remember. Indeed, I would expect it to be something that would be at the forefront of a person’s mind when she determined to make a complaint to the respondent. If this concern raises questions regarding Ms. B.’s reliability to recall this incident, it then raises a further concern as to her reliability to recall the earlier events in 2002-2003.
[61] However, Ms. B. did not mention this alleged comment by the appellant in her complaint nor did she mention it to the respondent’s investigator. The Discipline Committee explains away this failure again on the basis of the passage of time. The Discipline Committee said
The Committee accepts the explanation of Ms. [B.] that at the time of her complaint, she was attempting to recall numerous events over a significant time period that had occurred many years before.
As I have already mentioned, this is not the type of comment that one would think, if made, would get lost in one’s memory when one is complaining about the inappropriate sexual conduct of a physician.
[62] The Discipline Committee attempts to buttress their conclusion, on this point, by expressly rejecting the appellant’s evidence that Ms. B. must have misunderstood something that he said during the time that he was examining her regarding her complaint about pain during intercourse. The nature of the pain and whether it was on entry or in deeper was part of the discussion about that pain. In rejecting the appellant’s evidence on this point, the Discipline Committee found the appellant’s explanation not to be credible and added:
There was no evidence of any language miscommunications or misunderstandings on any other points and the Committee does not believe that there was any misunderstanding on this point.
[63] The fact is that there was evidence of language problems. Indeed, Ms. B., on more than one occasion, explained problems, with her recollections of things said, on the basis that English was her second language. She did so with respect to the different versions as to what was said by the appellant in the park and she did so with respect to discrepancies in her recollection of how she felt that she was receiving special treatment. The Discipline Committee’s finding that there was “no evidence” of any language misunderstandings is simply wrong.
[64] The Discipline Committee’s conclusion regarding the events of the July 20, 2006 visit also reveal a number of problems. First, the Discipline Committee recounts the fact that Ms. B. said that both parts of the appellant’s examination of her that day, that is when the appellant’s assistant was in the room and when she was not, were inappropriate. The Discipline Committee does not adequately address why, if that was Ms. B.’s belief, the assistant did not observe any such inappropriate conduct nor does it explain why Ms. B. did not say anything to the assistant about it. It also does not explain why, if Ms. B. thought that the appellant was acting inappropriately during the first examination, Ms. B. would not have asked for the assistant to return before the second examination took place.
[65] Once again, on this point, the Discipline Committee rejected the explanation of the appellant that he may have touched Ms. B.’s clitoris inadvertently or accidentally as a result of his short hands and short fingers. In doing so, the Discipline Committee found that the appellant’s explanation in this regard was “inherently very unlikely and not credible”. It is not clear on what basis the Discipline Committee reached that conclusion. I appreciate, as the respondent submits, that the Discipline Committee is a specialized tribunal. It is made up of three physicians and two lay members. However, there is no evidence that the physician members of the Committee have any expertise in vaginal examinations. Indeed, there is no evidence of the background of the physician members at all. In addition, there are two “lay” members of the Discipline Committee and there is no reason to believe that they have any expertise in this area. I repeat that it was open to the Discipline Committee to reach the conclusion that they did, but they were obliged to explain the basis upon which the conclusion was reached. This they failed to do.
[66] Also on this point, and of even more concern, is the use to which the Discipline Committee put the evidence of Ms. B., and her mother-in-law, regarding how she reacted to the alleged inappropriate conduct of the appellant. The Discipline Committee found that this evidence “supports her version of events as concerns the July 20 visit”.
[67] With respect, the Discipline Committee could not use the upset state of Ms. B. for the purpose of concluding that the appellant had acted inappropriately towards her. Ms. B. would be equally upset if she misunderstood what had occurred, as she would be if the appellant had actually acted improperly. As a result, Ms. B.’s upset state of mind does not assist in determining exactly what happened. It only establishes that she was upset about something.
[68] This error by the Discipline Committee is compounded by the fact that, directly after relying on this evidence to support Ms. B.’s version of the events, the Discipline Committee relied on Ms. B.’s reaction, three years later, when questioned by her new gynaecologist’s nurse. The Discipline Committee said:
Ms. [B.’s] testimony that she became very upset and cried three years after the incident, when asked a simple question by Dr. Odueke’s nurse about her earlier pregnancy was unchallenged and the Committee accepts it. This evidence also supports her explanation that the July 20, 2006 examination was improper.
[69] Putting aside the issue as to how the appellant would have realistically challenged that evidence, for the same reasons that I have just set out, Ms. B.’s reaction three years later no more assists in determining what actually happened than does her state of mind directly after the event.
[70] In both of these instances, the Discipline Committee failed to appreciate that after the fact conduct can only provide circumstantial evidence that an event occurred where there are no other explanations for the conduct. This point is made in R. v. Lindsay, [2005] O.J. No. 2870 (S.C.J.) where Fuerst J. said, at para. 159:
It is well-established, however, that evidence of a complainant's emotional state after an alleged offence may constitute circumstantial evidence confirming that the offence occurred, depending on the circumstances of the case, including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state: [citations omitted]
While the Discipline Committee referred to this authority, they failed to properly apply it. Here, of course, there was an alternative explanation for Ms. B.’s emotional state, that is, that she misunderstood the actions of the appellant.
[71] Finally, I have serious concerns regarding whether the Discipline Committee applied the same scrutiny to the evidence of Ms. B. that they did to the evidence of the appellant. For example, while the Discipline Committee was prepared to excuse inconsistencies in Ms. B.’s evidence (e.g. the number of vaginal examinations, the “do you like them big?” question; the comment as to whether she was a good wife or a good mother in 2006) on the basis that she was attempting to recall events of a number of years earlier, the Discipline Committee was critical of the appellant for his failure to remember the name of the cream that Ms. B. brought to him in 2002 or 2003. A similar concern arises with the Discipline Committee’s conclusions regarding the hug that occurred between the two on the July 20, 2006 visit.
[72] The concerns that I have identified might not be sufficient, each by itself, to raise doubt regarding the reasonableness of the decision reached. However, collectively, they do raise a serious issue as to whether the reasoning of the Discipline Committee can sustain the decision reached. If the Discipline Committee had evaluated the evidence on a proper basis, it is not clear that they would have reached the same conclusions as to whose evidence they accepted or what facts they would have found. That conclusion means that the reasons do not meet the justification, transparency and intelligibility standard. Given the stakes involved for the appellant, i.e. the loss of his licence to practice medicine, the flaws that I have identified in the reasons of the Discipline Committee do not allow for the necessary conclusion that the decision reached by the Discipline Committee is a defensible one. The decision, consequently, cannot be found to be reasonable.
[73] The appeal is allowed. The matter is remitted to the Discipline Committee for a re-hearing should the respondent determine that the matter is to be pursued. The respondent will pay to the appellant his costs of the appeal fixed in the amount of $17,500 inclusive of disbursements and HST, the amount having been agreed between the parties.
NORDHEIMER J.
SPENCE J.
SWINTON J.
Date of Release:
CITATION: Karkanis v. College of Physicians and Surgeons 2014 ONSC 7018
DIVISIONAL COURT FILE NO: 222/13
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SPENCE, SWINTON, & NORDHEIMER JJ.
BETWEEN:
DR. SAMI KARKANIS
Appellant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Release: