Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981

CITATION: Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981

DIVISIONAL COURT FILE NO.: 181/14 DATE: 20150325

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

J. WILSON, SACHS AND HARVISON YOUNG JJ.

BETWEEN:

DR. JEFFREY GALE Appellant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

Chris G. Paliare and Karen V. Jones, for the Appellant

Lisa Brownstone, for the Respondent

HEARD at Toronto: March 25, 2015

JANET WILSON J. (ORALLY)

1This is an appeal pursuant to s.70 of the Health Professions Procedural Code (the “Code”) from a disciplinary decision against Dr. Jeffrey Gale. On December 13, 2013, three members of a five member Discipline Committee Panel of the College of Physicians and Surgeons of Ontario (the “College”) found Dr. Gale guilty of professional misconduct and sexual abuse of a former patient (the “Decision”). The other two members agreed that Dr. Gale had committed professional misconduct but found that the College had failed to prove the sexual abuse.

2Dr. Gale appeals the finding of sexual abuse by the majority in the Decision. He argues that the minority reached the correct conclusion on the allegation of sexual abuse. He seeks to set aside the majority decision and either confirm the minority decision or alternatively he seeks a new hearing on the issue of sexual abuse.

3The College asks this Court to dismiss the appeal and affirm the majority Decision on both charges. The College submits that the only issue on this appeal is whether the majority decision is reasonable. It argues that contrary to the suggestion of the appellant, the fact that the minority concluded differently on the issue of sexual abuse does not render the majority Decision unreasonable.

4On March 4, 2014 the panel revoked Dr. Gale’s Certificate of Registration as required by law and ordered him to pay a total of $60,000 in costs and contribution to the College Assistant Program for Victims of Sexual Abuse (the “Order”).

This Court’s Jurisdiction

5Section 70 of the Code establishes a right of appeal to this Court from a final decision of the College Discipline Committee Panel. The appeal may engage questions of law and/or facts. Section 70(3) of the Code provides that this Court, “has all the power to the panel that dealt with the matter.”

Standard of Review

6The appellant acknowledges that a panel is entitled to deference in its decisions regarding findings of professional misconduct and that the standard of review is reasonableness.

7Given the 3 to 2 split in the decision, and the arguments raised by the appellant, it is worthwhile to reiterate the parameters of what constitutes a reasonable decision.

8The guiding principles in this fact-driven appeal are well established by this Court and by the Supreme Court of Canada. They may be summarized as follows:

(i) Reasonableness is a deferential standard, animated by the principle that certain questions that come before tribunals do not lend themselves to one particular result. It is concerned with whether the outcome falls within a range of possible acceptable outcomes. (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 47; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] S.C.J. No. 17 at paras. 48-56)

(ii) A reviewing court should not seize on one or more mistakes or elements of the decision that do not affect it as a whole. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. (Dunsmuir v. New Brunswick, supra, paras. 47-49,; Law Society of New Brusnwick v. Ryan, supra, at paras. 48-56)

(iii) Deference therefore requires that the Court refrain from subjecting the tribunal’s reasons to a “painstaking scrutiny”. It would be “counterproductive to dissect” minutely a fact-finder’s reasons so as to undermine the fact-finder’s responsibility for weighing all of the evidence.

[A]ppellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components. (R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, 2006 S.C.C. 17 at para. 19; Ressel v. College of Chiropractors of Ontario, [2003] O.J. No. 3032 (Div. Ct.) at paras. 16, 18 )

(iv) The task of the reviewing court is not to posit alternative interpretations of the evidence, or engage in a reassessment of the evidence. The powers of the appeal court do not amount to a general warrant to retry the case decided by the tribunal. Rather, the task of the reviewing court is to determine whether the Committee’s decision is reasonable and that it had “some basis in the evidence.” The reviewing court’s review of the evidence is “beside the point.” (College of Physicians and Surgeons of British Columbia v. Dr. Q., [2003] S.C.C. 19, at para. 41; R. v. C.(T.), 2005 371 (ON CA), [2005] O.J. No. 24 (C.A.) at para. 45)

(v) Heightened deference is owed to tribunals’ assessments of credibility. (College of Physicians and Surgeons of British Columbia v. Dr. Q., supra at para. 38; F.H. v. McDougall, supra at para. 72; Muhammad v. College of Physicians and Surgeons of Ontario, [2014] O.J. No. 3154 (Div. Ct.) at paras. 4, 6-8)

(vi) An appellate court should not interfere with a trial judge’s assessment of a complainant’s evidence simply because it would have arrived at a different result. (Dissenting reasons of Laskin J.A. in R. v. Sanichar, 2012 ONCA 117, 2012 CarswellOnt 1914 (C.A.) at para. 72 (aff’d in R. v. Sanichar, 2013 SCC 4, [2013] S.C.J. No. 4)

(vii) Where credibility and reliability area an issue, and the trial judge demonstrates she is alive to inconsistencies but accepts the evidence of the witness nonetheless, in the absence of a palpable and overriding error, there is no basis for interference. That is,

Where the trial judge refers to the inconsistencies and deals expressly with a number of them, it must be assumed that she took them into account in assessing the balance of probabilities.

(F.H. v. McDougall, supra at para. 70)

9The Supreme Court of Canada cautions that assessing credibility is a difficult and delicate matter and does not always lend itself to precise and complete verbalization. The reviewing court must be cognizant of the deference owed to finders of fact with respect to the assessment of credibility. As noted by the Court in F.H. v. McDougall:

With respect, I cannot interpret the reasons of the majority of the Court of Appeal other than that it disagreed with the trial judge’s credibility assessment of F.H. in light of the inconsistencies in his evidence and the lack of support from the surrounding circumstances. Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility.

The Key Issues

The appellant raises two issues:

1. Did the majority err in law in its credibility assessments?

2. Did the majority err in law by making findings of fact or drawing inferences from the evidence that were not supported by the evidence?

Legal Framework

10When a Member of the Regulated Health Profession in Ontario is found to have committed sexual abuse, as defined by the Code in accordance with s.61 (5)(2) of the Code, the College must revoke his/her licence to practice. The Member’s only recourse is a successful appeal to this Court on a question of law or fact. Allegations of sexual abuse are heard by a five-person panel of the College Discipline Committee. Three of the five are doctors and the other two are lay persons.

Overview

11Dr. Gale is an opthamologist and was a doctor for the complainant beginning in January 2007 and continuing until June 12, 2008. The complainant is a Type I diabetic with significant problems with her eyes stemming from her diabetes. During this period of time Dr. Gale administered numerous injections into the complainant’s eye. As well he performed surgery on her eye on June 3, 2008.

12In August 7, 2007, the complainant was hired as a full-time nanny looking after the two Gale children. In November 2007, she began living in the basement of the Gale home where she resided on a continuous basis until mid-June 2008.

13The complainant alleges that a sexual relationship began with Dr. Gale in May 2008 and that it continued until after her termination as a nanny on June 7, 2008 until the July 1^st long weekend.

The Appellant’s Arguments

14The appellant’s first argument is that the findings of the dishonourable, discreditable, unprofessional conduct (DDU) of Dr. Gale, which has not been challenged by Dr. Gale in this appeal, infused and contaminated the majority findings of fact with respect to the sexual abuse allegations. The appellant argued that the Decision of the majority was “result-driven” as a result of the DDU finding, causing the majority to deal with the evidence before them with respect to the sexual abuse in an unreasonable manner.

15There are six alleged incidents of sexual abuse. The appellant challenges each of these allegations and takes the position that there were serious problems with the complainant’s evidence with respect to each and every one of these incidents. The majority either failed to address the frailties or inconsistencies in the complainant’s evidence or did so in an unreasonable manner. Considered cumulatively, the appellant argues that these failures reach the threshold which requires the majority Decision on the sexual abuse allegations to be set aside.

16We will review each of the allegations of sexual abuse raised by the complainant, and the appellant’s submissions with respect to each allegation.

Allegation # 1. May 13, 2008

17The appellant beings his submissions by challenging the findings of fact by the majority as to the first incident that the complainant alleged occurred on May 13, 2008.

18The complainant alleges that Dr. Gale came to her room in the basement during the night, and that she performed oral sex on him. According to the appellant, the complainant’s account of that night cannot be accepted as it was clear from the other evidence that the incident could not have taken place on that particular date. When confronted with the other evidence pointing to the fact that the complainant may have been mistaken as to the date, and that the incident could not have taken place on May 13, 2008, the complainant changed her evidence confirming that the incident took place on May 11 or 12, 2008 rather than May 13, 2008.

19The complainant recorded the incident as having occurred May 13, 2008 in her calendar. The majority found that this incident was “an example of faulty memory for dates” (Decision page 61). The majority considered the error as to the date, and found that it did not accept that this faulty memory for dates undermined the complainant’s credibility with respect to the substance of the allegation.

20We find that the conclusion of the majority as to the significance of the date was reasonable, given that the calendar that the appellant was relying upon for her dates was created by the complainant some months after the events in question in 2008, in preparation for her making a complaint to the College. The calendar did not purport to be a contemporaneous record made as the alleged events unfolded.

Allegation #2- May 14th, 2008

21The second incident challenged by the appellant is alleged by the complainant to have occured on May 14, 2008.

22The substance of the allegation, is that following dilation of her eyes and an injection by Dr. Gale into the vitreous of the eye that the complainant and Dr. Gale engaged in mutual oral sex in his office at the hospital before returning to the Gale home for dinner.

23The appellant relied on the minority decision to argue that this version of the facts was implausible and that the findings of the majority are hence unreasonable.

24We disagree. The majority heard the evidence and accepted the evidence of the complainant as to this incident. The appellant is inviting us to reweigh the evidence and second-guess the majority findings as to credibility. This is not our function on a reasonableness review.

Allegation #3- the Period from May 14 to the end of May 2008

25The appellant next focused on the allegations of sexual abuse that are alleged to have occurred between May 14 and the end of May 2008. It is during this period that the complainant alleged the first incident of sexual intercourse took place. According to the appellant, the majority failed to adequately address these allegations, because they could not be believed.

26First, the appellant points out that there is no reference to sexual activity during this period in the complainant’s calendar. This absence is significant as the complainant alleged that it was during this period that she and Dr. Gale first engaged in sexual intercourse, which would have been a noteworthy event that should appear in the calendar.

27The appellant also points to the agreed statement of fact that it is admitted that Dr. Gale’s wife suffered from colitis which meant that she was in the bathroom during the night at least two or three times on a regular basis. The appellant argues that Mrs. Gale would have noticed the absence of her husband from her bed on a regular basis during this period given her medical condition.

28The majority addressed the allegations of sexual activity during the month of May 2008 as follows on page 63 of the Decision:

What is Dr. Gale’s answer to the allegations that sexual relations occurred in May 2008? It is the same answer he gives generally with respect to all of the sexual allegations, namely that it did not happen. This denial both specifically related to the May 2008 allegations and generally is not believable to the Committee on a consideration of the evidence as a whole. The evidence as a whole supports the finding of a sexual relationship which included sexual intercourse. The flirtatious relationship as found by the Committee up until May 2008 can hardly be disputed and as previously stated, it is in this context that the sexual allegations must be considered. The NILF [Nanny I Like to Fuck] reference, the GILF card,[Grandmother I Like to Fuck card given to the complainant’s mother], the breast flashing and the “you know I love you” statement, the “boobs” email references, the evidence of “turmoil” and “tension” in the household in June and July 2008, to name only a few examples, strongly support the complainant’s version of events that sex occurred as she said it did.

29According to the appellant, this analysis of the facts by the majority is an example of results driven reasoning by the majority, where the findings of fact relevant to the DDU charge infused and contaminated the findings of fact with respect to sexual abuse.

30We disagree.

31The nature of the relationship established before May 14, 2008 and during this period was relevant factual context. It was both reasonable and appropriate to consider the undisputed facts and context in assessing the credibility of the complainant and the other witnesses. Again, the appellant is inviting this Court to engage in a parsing of the majority reasons with a view to second guessing its findings of credibility. This is not our function.

Allegation #4- June 2, 2008

32The fourth incident that the appellant addressed is alleged to have occurred on June 2, 2008, the night before the complainant’s eye surgery performed by Dr. Gale.

33According to the appellant the complainant’s testimony about the incident could not be believed for the following reasons:

(i) The complainant’s mother testified that she asked Dr. Gale’s wife whether Mrs. Gale was concerned about the closeness between Dr. Gale and the complainant. Yet the complainant’s mother testified that she let Dr. Gale get into bed with her daughter on that night so they could both get sleep before the surgery the next day.

(ii) Becky Mason, who was another caregiver employed by the Gales, testified that she was taking care of Carter that night. Ms. Mason’s evidence meant there was no need for Dr. Gale to go to the complainant’s bed to get sleep, and there was no need for the complainant’s mother to leave the complainant’s bed to assist with child care.

(iii) Mrs. Gale testified that she did not notice Dr. Gale was not in her bed that night although she was up as usual two to three times that night due to her medical condition.

(iv) The complainant agreed that Mrs. Gale would have been very angry that her husband was having an affair.

(v) The complainant testified that she and Dr. Gale engaged in sexual activity most of the night, only stopping when they heard Mrs. Gale’s footsteps on the basement stairs. At that point they put on their pyjamas quickly and pretended to be asleep.

34According to the appellant the complainant’s version of events is inherently implausible, and that it was not reasonable, given the frailties in this evidence, for it to have been accepted by the majority.

35In considering this incident, it is important to recognize that the majority carefully considered and weighed all of the evidence and accepted the evidence of the complainant and her mother. They rejected the evidence of Dr. Gale, Mrs. Gale and Ms. Mason. They gave detailed reasons for doing so and their findings of fact and conclusions are reasonable and supported by the evidence.

Allegation #5- June 7 to June 12, 2008

36The appellant next challenges, as not being supported by the evidence, the conclusions of the majority with respect to the sexual activity that took place in the period from June 7 to 12, 2008. According to the appellant, the complainant’s evidence about this period is a total fabrication.

37On her calendar she indicated that on June 7, 2008 she was fired and that the children were with Ms. Mason and that she spent the day in bed with Dr. Gale. It is not disputed that she was fired on June 7, 2008. According to the complainant, Ms. Mason had taken the Gale children to her family farm.

38The evidence established by photos that the visit to the farm was in fact on May 25, 2008, not June 7, 2008. The majority considered this evidence and found that they were less concerned about where the children were on June 7, 2008 and more were concerned with the fact that Dr. Gale took time off work and stayed at the Gale home from June 7, 2008 to June 12, 2008. The majority decision states “the more important point is that Dr. Gale remained at home with the complainant who was now fired as a nanny, all while Dr. Gale’s wife was away.” (Decision page 70).

39The inference drawn by the majority that Dr. Gale stayed home with the complainant during the period from June 7 to 12 2008 to continue to engage in sexual activity was a reasonable one and available on the evidence. Again, the majority considered the inconsistent evidence as to when the children visited Ms. Mason’s farm, but confirmed that in their view the problem with the dates “was of no consequence.” (Decision page 70)

40These findings of the majority are founded on the evidence they accepted and are reasonable. Again, we reiterate it is not our role to reweigh the evidence and retry the case.

Allegation #6- June 28 to July 1, 2008

41The final incident challenged by the appellant is alleged by the complainant to have taken place place over the Canada Day weekend between June 28 and July 1, 2008.

42According to the appellant the complainant’s testimony about this alleged incident cannot be believed for two reasons:

(i) In her calendar the complainant recorded the date of this incident as being June 28, 2008. Yet, when confronted with the telephone record, she admitted she was mistaken and that it must have taken place on June 30, 2008.

(ii) Dr. Gale and Ms. Mason both testified that they returned to Kingston on June 30, 2008 so that the incident could not have occurred as alleged by the complainant on June 30, 2008.

43In dealing with this argument, it is important to recognize that the majority did not accept Dr. Gale’s evidence and Ms. Mason’s evidence that they returned to Kingston on June 30, 2008. The documentary evidence confirms the complainant’s evidence that the incident occurred the night of June 30, 2008, not the date that appears in the complainant’s diary of June 28, 2008. Again, the majority was not troubled by the complainant’s initial confusion as to the dates and was satisfied as to truth of the substance of her evidence. We see nothing unreasonable about the majority’s assessment of this incident.

Conclusions

44In the end, taken as whole, the appellant’s submissions on each of the allegations of sexual activity amount to no more than an invitation to this Court to dissect the majority’s comprehensive and detailed 82 page reasons. Counsel for the appellant essentially invites this Court to retry the case.

45We do not accept the appellant’s arguments. This is a case where reasonable people have disagreed about how the evidence should be assessed and who should be believed. The reasonableness standard acknowledges that reasonable people can and do disagree. The submissions of the appellant as to the various incidents of sexual abuse, considered both individually and cumulatively, do not render the majority decision unreasonable. We agree with the respondent that the fact that the minority concluded differently does not render the majority’s decision unreasonable.

46For these reasons the appeal is dismissed.

Costs

47I have endorsed the Appeal Book, “For oral reasons given by J. Wilson J. this appeal is dismissed. Costs agreed to be paid by the appellant to the respondent in the amount of $15,000 inclusive of HST and disbursements.”

___________________________ J. WILSON J.