2016 ONSC 924
DIVISIONAL COURT FILE NO.: DC-14-550 DATE: 20160308
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
J. WILSON, STEWART AND THORBURN JJ.
BETWEEN:
DR. ELEAZAR HUMBERTO NORIEGA
Appellant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
David M. Porter, Christine Wadsworth, for the Appellant
Elisabeth Widner, for the Respondent
HEARD at Toronto: February 3, 2016
J. WILSON J.:
REASONS FOR JUDGMENT
[1] Dr. Eleazar Humberto Noriega is a pediatrician who appeals the findings of sexual impropriety with an adolescent patient. The appeal is brought pursuant to s. 70 of the Health Professions Procedural Code, which is Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”). On November 3, 2014, a four person Discipline Committee of the College of Physicians and Surgeons of Ontario (the “Committee”) found that Dr. Noriega engaged in professional misconduct that is disgraceful, dishonourable, and unprofessional (the “Decision”).
[2] The Committee found that the College had proven on a balance of probabilities the allegations that Dr. Noriega had sexually stimulated an adolescent patient, Ms. X. The alleged misconduct took place during a medical examination in January 1979, when Dr. Noriega allegedly rubbed her clitoris to the point of orgasm.
[3] The Appellant’s certificate of registration with the College was revoked and he was required to pay costs. The Appellant does not challenge the penalty imposed or the costs award.
[4] Dr. Noriega challenges the findings of fact of the Committee and alleges that it made errors in the way it considered the evidence and, in particular, that it failed to adequately inform itself as to the parameters for the assessments of the credibility and the reliability of Ms. X’s evidence, given the frailties in her evidence. He argues that the Committee assessed the defence evidence on a more exacting standard than the prosecution evidence. Finally, the Appellant argues that the Committee did not give adequate reasons on how it used evidence given by another patient concerning a similar allegation. The Appellant asks that the allegations of misconduct be dismissed or, alternatively that a new hearing be ordered.
This Court’s Jurisdiction
[5] Section 70 of the Code, found in Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, establishes a right of appeal to the Divisional Court from a final decision of the Discipline Committee on questions of law, fact or both. Section 70(3) of the Code provides that this Court “has all the powers of the panel that dealt with the matter”.
Standard of Review
[6] The Appellant submits that the standard of review for errors of law outside of the Committee’s specialized expertise is correctness. For errors in factual findings and inferences, the Appellant submits that the standard is reasonableness. Findings of fact may be overturned if the Committee disregarded relevant evidence, which may be an error of fact or of mixed fact and law. Findings of credibility may be set aside where a panel made a palpable and overriding error that affected its assessment of the facts. Failure to give adequate reasons is a breach of natural justice if it precludes meaningful appellate review.
[7] The Respondent argues that the standard of review for a decision of a College’s Discipline Committee is reasonableness.
[8] We agree generally with the Appellant’s characterization of the standard of review. However, we would add that it is not enough for a legal matter to be outside of the Committee’s specialized expertise, as a legal question must also be “of central importance to the legal system” to attract the standard of correctness: see Yar v. College of Physicians and Surgeons of Ontario, [2009] O.J. No. 1017, at paras. 3-5.
Background Facts
[9] The Appellant is a pediatrician practicing in Toronto. He obtained his medical degree in Mexico and specialized in pediatrics in Canada, obtaining his specialist certificate in 1977. Dr. Noriega has worked at the Adolescent Medicine Clinic at the Hospital for Sick Children (the “Teen Clinic”) since the mid-1970s as a fellow and as a staff pediatrician starting in 1977.
[10] Ms. X was a patient of the Appellant at the Teen Clinic in 1978 and 1979, beginning when she was 15 years old. She attended the clinic to obtain a birth control prescription, as she wished to engage in sexual intercourse with her 16 year old boyfriend.
[11] Ms. X came from a troubled background. She reported to Dr. Noriega allegations of sexual abuse by her stepfather. She lived with her mother in subsidized housing, had a spotty school record and admitted to occasionally consuming marijuana and LSD.
[12] Her evidence was that at the last appointment with Dr. Noriega, he told her to remove her clothes from the waist down as he wanted to see if she was sexually active.
[13] She alleges that he rubbed her clitoris for about two or three minutes to the point that she experienced orgasm (the “incident”). She described the incident “like scrubbing a spot off a pot”, and, as noted by the Committee, she described his breathing as “a little more labored than normal.” She testified that she “froze” when the incident occurred, knew it was wrong, but did not report it to anyone.
[14] She is unsure of the exact date this happened, but states it was the last appointment with Dr. Noriega as she never returned. According to her medical records, the appointment in question is likely to have been on January 12, 1979. A follow up appointment was booked in April 1979, but she did not show up.
[15] Ms. X came forward in 2008 after hearing the Appellant’s name on television in connection with another investigation. She had kept a contraceptive prescription package from March 1978 with the name of the doctor on it, in case she ever came forward. As noted by the Committee in the Decision, at para 16:
Ms X testified that she did not tell anyone what had happened. She felt embarrassed and ashamed, and did not think that she would be believed. She did, however, keep the package of birth control pills with Dr. Noriega’s name on it. She did this because she thought that, if she ever came forward with her allegations about Dr. Noriega, she would have his name. She testified that she had saved a few packages at her house in her bedroom drawer and that she did not believe there was any significance to this particular package.
[16] When she came forward to report the allegations, she was 51 years of age, married with four children, and had been employed as a school bus driver for children for 26 years.
[17] When she saw another incident reported on the television, she spoke to her husband, and he encouraged her to come forward.
[18] She called the police and gave a statement to the police in 2008.
[19] There are inconsistencies between her statement given to the police in spring of 2008 (before she saw her medical record), and in her evidence given to the College in this proceeding.
[20] When she gave her statement to the police, she thought she had gone to the Teen Clinic one or two times, and that the incident took place in the winter of 1978 before she had sexual relations with her boyfriend. The medical record discloses that she went to the clinic on six or seven occasions beginning in March 1978. These visits were for exams and renewal of birth control prescriptions. The last visit was in January 1979.
[21] In 2009, the College initiated proceedings based on the events described by Ms. X. It alleged that Dr. Noriega committed professional misconduct by engaging in sexual impropriety with a patient in his practice regarded as disgraceful, dishonourable, or unprofessional, counter to paras. 26.31 and 26.28 of O. Reg. 577/75 made under the Health Disciplines Act, 1974, S.O. 1974, c. 47, which was the governing regulation at the time of these allegations.
Similar Fact Application
[22] In this proceeding, the College presented the evidence of Ms. X and sought to call similar fact evidence from another adolescent patient who described an allegation of sexual impropriety similar to the incident described by Ms. X.
[23] The admissibility of the similar fact evidence was vigorously contested. An argument advanced for the non-admissibility of this evidence was the lengthy gap in time between the two allegations. Ms. X alleges the incident occurred in 1979, whereas the similar fact incident is alleged to have taken place 23 years later. There were striking similarities in the incidents. As noted in the Decision, both allegations include clitoral stimulation of a mature adolescent female during a routine examination with no one else present in the room. There was no issue of collusion, as the two women did not know each other.
[24] The Committee ruled that the similar fact evidence was admissible, with reasons to follow. The Decision outlines, in detail, the reasons for admitting the similar fact evidence.
[25] In the Decision, the Committee concluded that although this evidence was admissible, it did not need to rely on the similar fact evidence with respect to the allegations of Ms. X. Her evidence alone was sufficient to underpin their conclusions that the College had met the burden of proof that the allegations took place. The Decision then confirms that if the similar fact evidence was considered, it supports the conclusions reached with respect to the allegations of Ms. X.
[26] The Appellant does not appeal the ruling in the Decision that the similar fact evidence was admissible.
[27] The Appellant challenges how the similar fact evidence was treated, and the adequacy of the reasons. I will return to this issue when I consider the third ground of appeal.
The Discipline Committee Hearing
[28] The hearing lasted five days. The complainant’s evidence was called, followed by the evidence on the voir dire seeking to admit the similar fact evidence.
[29] Ms. X testified and was cross-examined in detail on her recollection of the incident and surrounding circumstances.
[30] In the voir dire, another former patient, Ms. Y, gave testimony of being similarly touched by Dr. Noriega in 2002. Ms. Y’s friend also testified as to Ms. Y’s reaction to the incident. A doctor testified on behalf of the defence confirming the appropriateness of Dr. Noriega’s examination in the context of what was noted in the patient chart.
[31] Argument then proceeded on the admissibility of the similar fact evidence.
[32] Before calling any defence evidence, the Appellant requested the Discipline Committee to rule on the admissibility of the similar fact evidence.
[33] The Discipline Committee ruled that the similar fact evidence was admissible, without providing detailed reasons. The detailed reasons as to admissibility of the similar fact evidence are contained in the Decision.
[34] The defence evidence included the testimony of Dr. Noriega, the nurse working at the Teen Clinic at the time when Ms. X’s allegations arose, and an expert witness testifying as to the appropriateness of the examination conducted by Dr. Noriega relevant to the similar fact allegations.
[35] Dr. Noriega testified in response to the allegations of Ms. X and Ms. Y that the incidents never took place. He testified that he had no present recollection of Ms. X, but he did recall Ms. Y and her family.
[36] Helen Dickson, a nurse who worked at the Teen Clinic with Dr. Noriega at the time of the allegations in this matter arose also had no present recollection of Ms. X. She described her recollection of the functioning of the clinic in the context of a teaching hospital and Dr. Noriega’s usual practice. She also commented on treatment relevant to Ms. X based upon the patient chart (the “Nurse’s Testimony”).
[37] Dr. David Atkinson gave expert testimony on the appropriateness of Dr. Noriega’s physical examinations of Ms. Y based on the notes in her chart.
Findings of the Discipline Committee
[38] The Committee concluded that the College had proven the allegations against Dr. Noriega.
[39] It found Ms. X’s evidence to be both credible and reliable. The Committee found that Ms. X’s recollection of the sexual activity itself—the “central issue”—was clear:
The Committee carefully considered the totality of the evidence and the submissions of counsel. For the reasons that follow, the Committee finds that the College established on a balance of probabilities that Dr. Noriega engaged in the alleged acts of sexual impropriety with Ms X, and that his conduct in doing so would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional.
[40] Given the passage of time, the Committee concluded that it is understandable that Ms. X did not recall details of and around her appointments at the Teen Clinic, and found that this did not detract from the reliability of her evidence on the key issues in this case. The Decision confirms that the totality of her evidence conveys a plausible narrative. The Committee concluded that her sincere demeanour in giving testimony and her free acknowledgment that her memory was poor for the surrounding particulars enhanced her credibility.
[41] The Decision confirms that the “crucial context” is established by the totality of the evidence—including from her medical records—that she did attend the clinic on seven occasions, had a medical relationship with Dr. Noriega, and then abruptly stopped going and did not attend her follow-up appointment after the alleged date of the incident.
[42] The Committee found that Dr. Noriega’s evidence was “largely lacking in credibility”. The Committee found his testimony was neither clear nor precise, as his answers were often evasive and scripted. His testimony was disingenuous in his characterization of the functioning of the Teen Clinic. He tried to downplay the role of patient care and make the clinic sound like primarily a teaching facility. This characterization was meant to support his defence that he would usually have students present during exams. The Committee concluded that he contradicted himself or was contradicted by the Nurse’s Testimony in this regard. The Committee concluded that the evidence in support of Dr. Noriega’s defence about lack of opportunity for the assault was not convincing.
The Issues Raised by the Appellant
[43] The Appellant raises three issues:
• Did the Committee err in finding that Ms. X’s evidence was credible and reliable?
• Did the Committee assess the credibility and reliability of the Appellant’s evidence on a more stringent standard than that of the College?
• Did the Committee provide inadequate reasons for how it used the similar fact evidence in reaching its decision?
Issue 1: Did the Committee err in finding that Ms. X’s evidence was credible and reliable when she had a clear recollection of the incident but not of the surrounding events?
The Arguments Advanced by the Appellant
[44] The Appellant relies upon the analysis in Karkanis v. College of Physicians and Surgeons, 2014 ONSC 7018. The Divisional Court in Karkanis concluded that the Discipline Committee did not appear to have appreciated the distinction between the honesty of a witness in assessing credibility and the reliability of the witness’s evidence. This was one of the three grounds for setting aside that decision and ordering a new hearing.
[45] The Appellant argues that, likewise, the Committee failed to adequately instruct itself as to the distinction between credibility and reliability in its analysis of Ms. X’s evidence. Counsel suggests that the failure to “define reliability”, or for the Committee to instruct itself as to the meaning of reliability, is a reviewable error.
[46] The Appellant argues that the Committee erred by not properly considering Ms. X’s lack of recollection and inconsistent evidence on the events and circumstances surrounding the incident, as it instead, artificially, focused in on her recollection of the alleged assault itself as the “central issue”. The Appellant argues that the Committee erred in deeming the inconsistencies and lack of recollection as “peripheral issues” that do not challenge the reliability of Ms. X’s evidence.
[47] In light of these failures, the Appellant argues that the Committee failed to appreciate the importance of reliability in assessing Ms. X’s evidence, and therefore failed to engage in the proper analysis on the totality of the evidence.
[48] The Appellant argues that an important and serious inconsistency was the difference between the statement that Ms. X gave to the police in 2008 and her evidence before the Committee after she had seen her medical records. According to the Appellant, this inconsistency was not adequately considered by the Committee, and it is relevant to the question of reliability.
[49] Ms. X’s initial statement given to the police in 2008 was that she saw Dr. Noriega once or twice at the clinic, and that the assault took place in the winter of 1978 before she was sexually active with her boyfriend. Further, she did not recall any exams or tests. This was not a case of refreshed memory once Ms. X saw her chart, but a continued absence of recollection of many of the surrounding facts.
[50] Instead, her medical records confirm that she had seven appointments with Dr. Noriega between March 1978 and January 12, 1979, and that Dr. Noriega had performed a number of physical exams and tests.
[51] As birth control pills were prescribed at the first meeting with Dr. Noriega in March, 1978, Ms. X was in fact sexually active during the last appointment when the alleged assault took place in January 1979. Therefore, the Appellant argues that the evidence given to the police as to whether she was sexually active with her boyfriend at the time of the incident of abuse occurred was untrue.
[52] The Appellant argues that this is a serious inconsistency in the evidence between her evidence given to the police and her evidence at the hearing that was not adequately considered by the Committee in its reasons.
[53] The Respondent argues that although Ms. X gave inconsistent evidence about whether she was sexually active when the assault took place, this submission is misleading and takes the evidence out of context. Ms. X later recognized that she had mistakenly conflated her first and last appointments with Dr. Noriega and, in the passage cited, she only reaffirmed what she had initially told the police believing it to be true: see Transcript of Ms. X, Vol. 1, p. 1-56 to 1-62. This inconsistency was fully canvassed by the Committee in its reasons.
[54] The Appellant also argues that the Committee failed to adequately consider the total absence of memory of Ms. X as to the location and layout of the clinic itself, its staffing, or filling out the medical questionnaire or exams that took place during the ten month period that Ms. X was coming to the clinic, disregarding these important gaps in memory as simply unimportant, peripheral facts.
[55] The Appellant argues that the Committee failed to take into account important evidence in its reasons, including:
• It was possible, based upon the evidence of Dr. Noriega and the nurse, that students were present at the final appointment with Dr. Noriega;
• The significance that a further appointment had been booked for April 23, 1979 that Ms. X did not attend; and,
• Contextual evidence of the nurse, i.e., the Teen Clinic provided a supportive environment and no complaint was made to the nurse of the incident.
[56] The Respondent submits that the Committee gave careful consideration to the memory lapses and inconsistencies in Ms. X’s evidence and reached the reasonable conclusion that her testimony of the sexual abuse was reliable on the basis that the incident took place many years ago and that details of the clinic and its staff are less likely to be remembered as they were routine and non-threatening.
[57] The relevant analysis of credibility and reliability of Ms. X is confirmed in paras 18 and 19 as well as 95 and 96 of the Decision:
In her evidence, Ms X admitted that she has virtually no recollection of any of her other visits to the teen health clinic of which, as documented in the clinical record (Exhibit 2), there were seven in total between February 1978 and January 1979. She could not remember the location of the clinic within the hospital, the layout of the rooms, or the number or identities of other staff present. She did not remember that she had completed a detailed health questionnaire, or that she had blood work, a chest x-ray, and a pap test at different times. She was also clear that, initially when she had come forward with her allegations in 2008, she thought that she had seen Dr. Noriega only once or twice. She acknowledged that, having eventually seen her medical record, her memory in this regard was obviously inaccurate. She did recall that it was winter when the sexual assault had occurred, and she was clear that this was the last time that she saw Dr. Noriega. Having seen her medical record, she now assumes that this must have happened in January 1979, her last documented visit to the clinic.
Ms X also acknowledged that an earlier statement, which she gave to the police with respect to this incident, was inconsistent with her present testimony, in that she had told the police that on the day of the assault, Dr. Noriega had questioned her about whether she was sexually active, and she had replied “no”. She stated that while she was being truthful to the best of her abilities at all times, she was obviously not accurately recalling details pertaining to the chronology of her involvement at the clinic. She now believes that she had conflated some elements of her first and last visits to the clinic. She was clear and consistent in her recollection that the sexual touching had occurred on her last visit.
Ms X freely acknowledged that her memory was poor for many of the particulars pertaining to her involvement with the teen health clinic, including how often she had attended there and over what period of time, and what specific assessments and procedures she had undergone there. It is understandable that she would not remember these details, given the passage of time; Ms X’s explanation was that her involvement at the clinic, prior to the sexual impropriety, had been routine and non-threatening, therefore less likely to be remembered in detail. In the view of the Committee, this is a plausible, even likely, explanation for her poor memory. Ms X also acknowledged inconsistencies between some of her earlier statements, and her testimony at this time, pertaining to peripheral issues such as whether Dr. Noriega had questioned her about the extent of her sexual activity on the day the alleged sexual abuse occurred. Furthermore, Ms X was frank in admitting to her various struggles at that stage of her life, including in her schooling, her trouble with the law, and her drug use. The fact that she demonstrated a willingness to portray herself in a negative light with respect to these issues further enhances her credibility.
Counsel for Dr. Noriega argued that Ms X’s evidence is so hopelessly conflicted, inconsistent and changing in substance that it cannot found a finding of professional misconduct. The Committee disagrees. Despite some of the frailties with aspects of her evidence, notably the inconsistencies identified and her poor memory for some of the contextual details, the Committee finds that, with respect to the central issue, her evidence was clear and consistent. In the Committee’s view, the inconsistencies in Ms X’s testimony and her inability to recall details on minor matters and surrounding circumstances as a result of the passage of time do not call the overall reliability of her evidence into question on the key issues in this case. The Committee accepts her evidence as credible and reliable for the reasons stated above.
[Emphasis added]
Principles to Assess Credibility and Reliability
[58] Before outlining my conclusions on the challenges raised by the Appellant on the findings of fact by the Committee, I outline the principles that apply in cases such as this where credibility and reliability of a witness’s testimony is being challenged. The following is a summary of the relevant principles outlined in Gale v. College of Physicians and Surgeons, 2015 ONSC 1981, at para 8:
The 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 [sic] 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)
[59] The case law is clear that the failure by a trial judge or an administrative tribunal to sufficiently articulate how the credibility or reliability concerns are resolved may constitute a reversible error. The Appellant is entitled to know why the Committee found that the allegations of Ms. X had been established. This principle has been recently affirmed in the Court of Appeal for Ontario’s decision in R. v. A.M., 2014 ONCA 769, 123 O.R. (3d) 536, at paras 18 and 19.
[60] As noted by the Court in F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para 72, the 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:
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.
Conclusions on the Committee’s Factual Findings Relevant to Reliability of the Complainant’s Evidence
[61] Counsel for the Appellant does not appear to challenge the honesty of the complainant, but rather focuses on problems with the reliability of her evidence due to memory gaps and inconsistencies.
[62] Counsel concedes that the issue of credibility and reliability were fully argued before the Committee and the same arguments that were made before the Committee were made to this Court. The same counsel represented the Appellant before the Committee.
[63] The Appellant did not refer to any authority to suggest that an administrative tribunal or a trial judge must define reliability when it proceeds to assess the reliability of the evidence.
[64] The Decision deals with the credibility of the complainant in several paragraphs and finds that she was a believable and honest witness. The Decision also concludes that Ms. X’s evidence was reliable, notwithstanding the arguments advanced by counsel for Dr. Noriega that her prior statement to the police was inconsistent with whether she was sexually active when the incident took place, and her absence of memory about the other visits to the clinic or treatment received made her evidence on the central issue unreliable.
[65] The Committee found that that the gaps of memory on what they term “peripheral issues” were understandable and explainable, due to the significant passage of time and as the earlier interactions with Dr. Noriega were routine and non-threatening.
[66] This conclusion by the Committee is reasonable and supported by the evidence. The inconsistency that is relied upon by the Appellant in Ms. X’s statement to the police and her evidence at the hearing was explained by the complainant as conflating the first visit with Dr. Noriega—before she was sexually active—and the last visit. The important issue for determination by the Committee’s members is whether they were satisfied that the incident took place as alleged. Whether or not she was sexually active at the time of the incident is peripheral to the central issue. The Committee accepted her explanation on this inconsistency, and, again, this finding is reasonable.
[67] We are of the view that the reasons, when considered as a whole, more than adequately canvass aspects of credibility, including the complainant’s honesty, as well as the reliability of her evidence in accordance with the principles outlined in Karkanis.
[68] The Committee was live to and addressed the arguments raised by the Appellant about the complainant’s lack of memory of surrounding circumstances, as well as the inconsistencies. The Committee considered the evidence, and counsel’s submissions, but ultimately rejected the Appellant’s arguments in its assessment of the evidence that it accepted had been proven.
[69] The Appellant also argued that the Decision failed to consider material evidence noted above: i.e., it was possible that students were present at the final appointment with Dr. Noriega; a further appointment had been booked for April 23, 1979 that Ms. X did not attend; and the contextual evidence of the nurse.
[70] The Committee canvassed the issue of whether a student was present or not on January 12, 1979. The Committee accepted the evidence of Ms. X that she was alone, and rejected the evidence of Dr. Noriega and the nurse that a student was often present during examinations, and may have been present. Neither Dr. Noriega nor the nurse had any present recollection of the appointment with Ms. X on January 12, 1979.
[71] We find the complainant’s failure to attend the final appointment, and the fact that Ms. X did not complain to the nurse after the incident about Dr. Noriega’s conduct are not material facts relevant to whether or not the sexual abuse occurred. The Committee did consider the issue of the no show for the April 1979 appointment at para 107.
[72] The Appellant’s submissions are an invitation to dissect the Committee’s comprehensive and detailed decision. The Committee appropriately considered the credibility of Ms. X and Dr. Noriega. The Committee concluded that Ms. X was both honest, and, notwithstanding inconsistencies and problems with memory on peripheral issues due to the passage of time, that her evidence as to the allegation of sexual abuse was both credible and reliable.
[73] The Committee concluded that on the essential evidence relevant to the allegation that the evidence of the complainant was clear, cogent and convincing. These findings are reasonable and are supported by the evidence.
[74] For these reasons, we find there is no merit to the first ground of this appeal. The arguments raised challenging the findings of fact in the Decision, considered individually and cumulatively, do not raise a palpable and overriding error as to the Committee’s assessment of the facts.
Issue 2: Did the Committee assess the credibility and reliability of the Appellant’s evidence on a more stringent standard than that of the College?
[75] The Appellant argues that the Committee, in effect, reversed the burden of proof requiring Dr. Noriega to prove his innocence. It imposed an impossible burden of proof by suggesting that Dr. Noriega had to prove a total absence of opportunity for the alleged assault by showing that he was never alone with patients, when the defence was that it was highly unlikely for such an assault to occur considering that Dr. Noriega was usually accompanied in the exam room by either a nurse or students.
[76] The Appellant submits that the Committee made several errors in its consideration of the evidence of Dr. Noriega. Namely, the Committee judged Dr. Noriega’s testimony on the minutiae of his practice from some 35 years ago as “neither clear nor precise”. At the same time, the Committee excused inconsistencies in the evidence of Ms. X.
[77] The Appellant argues that the Committee had no basis to find that the “scripted and formulaic” entries in Ms. X’s chart bring into question the accuracy of Dr. Noriega’s portrayal of his interaction with Ms. X, as the authenticity or accuracy of the medical records was never challenged.
[78] To place the submissions of the Appellant in context, it is helpful to consider the reasons given by the Committee underpinning their conclusion that Dr. Noriega’s evidence was largely lacking in credibility. They outline the reasons for their findings in paras 98 to 105:
Dr. Noriega’s testimony was neither clear nor precise. He sometimes would not answer questions directly, and appeared to be evasive, attempting to obfuscate the issues. Some of his responses to questions appeared to be scripted and formulaic, as did some of his entries in the records reviewed, creating doubt as to whether what he said, and what he had charted, gave an accurate portrayal of his interactions with the complainant.
There was a disingenuous quality to Dr. Noriega’s testimony that pervaded much of his evidence. Dr. Noriega tried to underplay the role of patient care at the clinic and the amount of time he spent with patients at the clinic in a way that the Committee found lacked credibility. For example, Dr. Noriega claimed that the purpose of his clinic was “teaching” and not to see patients. This evidence was contradicted by Ms S’s evidence that the clinic’s purpose was to see patients and her description of the clinic as patient-centered.
Dr. Noriega contradicted himself at times in his testimony, for example, with respect to the question of how many patients were typically seen in a morning at the teen health clinic. At other times, his testimony was contradicted by Ms S. Dr. Noriega stated, for example, that generally the clinic was not busy because it was perceived as “dirty”; Ms S testified that it was a busy clinic. Dr. Noriega stated that the teen health clinic’s main function was teaching; Ms S stated that, although the educational role was prominent, the purpose of the clinic was patient care. Overall, Dr. Noriega appeared to be trying to over-emphasize and embellish his role at the teen health clinic as being almost exclusively focussed on teaching, for the evident purpose of supporting one aspect of his defence, which was that he would not have had the opportunity to sexually assault Ms X because a trainee would have been present with him at the material time.
Dr. Noriega’s counsel argued that Ms X’s allegation was highly improbable in light of the involvement of medical students in Dr. Noriega’s practice and nurses in Ms X’s care. The Committee is satisfied that the evidence as a whole supports the conclusion that Dr. Noriega would have had the opportunity to assault Ms X in the manner in which she alleges.
The evidence does establish that Dr. Noriega had a prominent teaching role at the teen health clinic. The Committee accepts that, in his appointments with patients, medical trainees would often have been present. Furthermore, members of other disciplines, including nursing, would have been present in the clinic when the abusive acts are said to have occurred. The examining room was in close proximity to the reception desk, where, the evidence is, someone was always present.
However, the Committee does not find the evidence with respect to lack of opportunity convincing. The fact that Dr. Noriega usually had trainees with him, says nothing about his behaviour on those occasions where trainees were not present. The evidence of the complainant is that she was alone with Dr. Noriega. The evidence of Ms S confirms that Dr. Noriega would sometimes see patients alone. Dr. Noriega himself reluctantly admitted that this would sometimes be the case. Ms X's patient chart contains a notation that Ms X had a pelvic examination a few months previously. The entry in her patient chart for a date in January 1979, does not indicate that a sensitive examination was planned that day. As the sole pediatrician on duty at the clinic, Dr. Noriega, on account of his position of authority, could have created the opportunity to see patients alone, or taken advantage of the opportunity when it presented itself. This finding flows from the totality of the evidence before the Committee with respect to the functioning of the teen health clinic and Dr. Noriega’s role within it.
The medical record of Ms X is of no assistance with respect to the Committee’s finding. If the medical record were accepted as containing a complete and accurate record of everything that took place between Dr. Noriega and Ms X, then Dr. Noriega would be exonerated; however, if Ms X’s allegations are true, the Committee doubts that any record of these would have been made in the chart.
It was suggested that it is implausible that Dr. Noriega would have run the risk of being interrupted in sexually abusing the complainant as alleged. The evidence is, however, that interruptions would have been infrequent and would have been initiated by a knock on the examination room door.
[79] The Respondent submits that the Committee relied on evidence other than “scripted and formulaic” chart entries to find Dr. Noriega’s evidence not credible: he answered evasively, his testimony was disingenuous in trying to downplay the role of patient care at the Teen Clinic to support his defence that his role was mainly to teach—a characterization that was contradicted by the Nurse’s Testimony—and he gave self-contradictory evidence on the number of patients typically seen in a day.
[80] The Respondent argues that the Appellant took the Committee’s reasons out of context, and the Committee never questioned the authenticity of the medical charts. The Committee correctly considered the evidence relating to Dr. Noriega’s opportunity to commit an assault and gave reasons for finding the evidence on lack of opportunity unconvincing.
Case Law on Applying a Higher Standard of Scrutiny upon the Appellant
[81] R. v. Owen, 2001 3367 (ON CA), [2001] O.J. No. 4257 (C.A.) confirms that if one side’s evidence is subject to a higher standard of scrutiny than the other, then this may be a legal error in the assessment of credibility justifying appellate intervention.
[82] Mr. Owen was charged with assaulting a police officer. The trial judge reached his conclusions on credibility based primarily upon the demeanor of the accused, and not the content of the evidence. Only one minor discrepancy was present in the accused’s testimony: that is whether the blinds in the room were open or closed when the alleged assault occurred. By way of contrast, the Court of Appeal found that the trial judge took a much more lenient approach to assessing the evidence of the police officers, even despite a serious weakness in their case that they had closely collaborated in the preparation of their notes.
[83] The Court found at para 2: “Given the importance of their notes as a record of the alleged assault, this lack of candour of the police officers provides a striking and fundamental weakness in their evidence, certainly more significant than anything mentioned by the trial judge with respect to the appellant’s evidence.” This unequal treatment in the assessment of the substantive evidence warranted the conviction being set aside.
[84] In R. v. Howe, [2005] CanLll 253 (On CA.), Doherty, J.A. considered the issue of applying a different standard to the assessment of the parties’ evidence as one ground in the appeal. First, he canvassed and criticized the trial judge’s findings of credibility. On the one hand, the trial judge accepted evidence that the complainant had a motive to fabricate her evidence, and this finding of a motive was not taken into account in assessing the credibility of the complainant. He outlined a second error in that case, which the Appellant relies upon: that is the allegation that the trial judge applied a higher standard of scrutiny to the accused’s evidence compared to the scrutiny of the complainant’s evidence.
[85] At para 59, Doherty, J. A. confirmed that this argument is a common ground of appeal in judge alone trials, and confirms the requirement of clear proof to succeed in this argument:
This argument or some variation on it is common on appeals from conviction in judge alone trials where the evidence pits the word of the complainant against the denial of the accused and the result turns on the trial judge’s credibility assessments. This is a difficult argument to make successfully. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant.
[Emphasis added]
[86] In Howe, the errors in assessing credibility were serious, bringing into question the reliability of the verdict. The appeal was allowed as the trial judge in assessing credibility had failed to take into account the motive of the complainant to fabricate evidence, as well as her lies on material facts. As Doherty, J.A. concluded at para 65:
The trial judge failed to give effect to his implicit finding that Ms. A.K. had a motive to falsely accuse the appellant and also failed to give any effect to his finding that Ms. A.K. had lied on material matters during her evidence. These errors lead me to conclude that the appellant was convicted as a result of a seriously flawed analysis of the credibility of the accuser. This constitutes a miscarriage of justice.
[87] The decision of the Divisional Court in Karkanis confirms that one of the three significant errors in the hearing was that the Discipline Committee subjected the appellant to a more exacting standard of scrutiny than the complainant. For instance, while the Discipline Committee was willing to overlook major gaps in the complainant’s memory, the members took issue with the appellant’s inability to recall small details from the period in question, e.g., the name of the cream that the complainant brought to his office.
[88] The unequal treatment of the accused’s testimony in Owen, Howe, and Karkanis appear clear and obvious as demonstrated by the facts of each of these cases.
[89] As Doherty, J.A. stated in Howe, the Appellant must show that it is clear that the Committee applied a different standard to assessing the evidence of the Appellant, compared to the assessment of the evidence of the complainant, either by pointing to something in the reasons or in the record.
Conclusions on the Onus and the Standard of Scrutiny
[90] The Decision, at para 89, confirms that the College bears the onus of proof that the allegations occurred: “The onus is on the College to prove the allegations that Dr. Noriega committed the acts of professional misconduct alleged in the Notice of Hearing… The College must show that it is more likely than not that the professional misconduct occurred. Proof must be based on evidence that is clear, cogent, and convincing.” We find that the Committee did not reverse the onus of proof.
[91] The complainant testified that she was alone with Dr. Noriega when the abuse occurred. The Appellant raised as part of his defence that absence of opportunity was a live issue. The Appellant argued that the Committee effectively reversed the onus, by requiring the Appellant to prove his innocence by establishing a total absence of opportunity for the alleged assault by showing that he was never alone with patients. He contends that his defence was actually that it was highly unlikely for such an assault to occur considering the hospital practice.
[92] We find that that the Committee did not reverse the onus of proof, but rather did not accept the evidence of Dr. Noriega and the nurse as to the lack of opportunity taking into account their evidence that usually, although not invariably, a student was present during examinations at this teaching hospital. The Nurse’s Testimony confirmed that once an examination commenced, it would take place behind closed doors, and would not be interrupted without at least a knock on the door.
[93] A review of the reasons indicates that the Committee carefully considered all of the evidence given by Dr. Noriega and did not find it to be credible and reliable.
[94] The only criticism I have of the reasons from the Committee was its finding at para 98 that the Appellant’s responses to questions appeared to be scripted and formulaic “as did some of his entries in the records reviewed”. The records of Dr. Noriega were entered by the College as a business record. There does not appear to be any criticism of the records during cross-examination, and this comment appears to be excessively critical.
[95] However, the reasons of the Committee are well reasoned and link the finding of credibility to the evidence, and are entirely reasonable. The comment in para 98 appears somewhat excessive, but a single comment is not clear evidence of a different standard being applied to assess the evidence of the Appellant.
[96] Considering the submissions, the case law and the reasons in the Decision, we conclude that there is no merit to the assertion that the Committee reversed the onus of proof, or that a different standard was applied by the Committee to assessing the evidence of the witnesses for each side.
Issue 3: Did the Committee provide inadequate reasons for how it used the similar fact evidence in reaching its decision?
[97] The Appellant submits that it is “highly irregular and inconsistent with a fair hearing” to admit similar fact evidence, state that it was considered in deliberations, and then state that it was not relied upon in reaching the ultimate decision. These inconsistent claims by the Committee cannot be reconciled, and they instead create a lack of transparency and murkiness in the reasons.
[98] The Appellant argued before us that the Committee was attempting to “judgment proof” the Decision. He submits that the Committee had both a statutory and common law duty to give reasons allowing for meaningful appellate review and failed to do so. The Appellant then argued that, if the Committee did not rely on the similar fact evidence, the conclusions of the Committee cannot be supported as Ms. X’s evidence is unreliable.
[99] The Respondent submits that the Appellant’s complaint is that he does not know how the similar fact evidence was used by the Committee in making its findings. This is an invalid concern, as the Committee plainly stated in its conclusion that it did not rely upon this evidence.
[100] I will review the three paragraphs relevant to this issue.
[101] The Decision confirms at para 37 that the Committee granted the application by the College to admit the similar fact evidence for the reasons outlined in paras 38 to 69. Paragraph 37 states:
For the reasons set out below, the Committee granted the College’s application for leave to introduce the evidence of Ms Q as “similar fact evidence” in respect of the allegations related to Ms X. The Committee therefore considered the evidence given in the voir dire of these witnesses in its deliberations on the allegations of professional misconduct pertaining to Ms X.
[Emphasis added]
[102] At para 69 the Committee concluded that when applying the appropriate legal test, that the similar fact evidence is admissible: “In the view of the Committee, the probative value of the evidence of Ms Q outweighs its prejudicial effect. Accordingly, the evidence of Ms Q and Ms R was admitted and considered by the Committee in its deliberations on the allegations of professional misconduct pertaining to Ms X.”
[103] In para 90, after a review of the evidence from the complainant, Dr. Noriega and the nurse, the Committee confirmed that it admitted the similar fact evidence, but that it was not necessary to rely on the similar fact evidence in reaching its conclusions on the merits:
The Committee carefully considered the evidence before it, and the submissions of counsel. Based on the totality of the evidence, the Committee finds that the College has proven the allegations against Dr. Noriega. This finding is made without reliance on the similar fact evidence introduced by the College. While the Committee did not rely on the similar fact evidence, the Committee notes that the similar fact evidence, when considered in accordance with the caution received from counsel for the parties and the Committee’s independent legal counsel regarding the permissible and impermissible uses of similar fact evidence, further supports its finding.
[Emphasis added]
[104] The Decision then considers the evidence of this complaint after its consideration of the similar fact evidence. There is no reference anywhere to the similar fact evidence in the analysis of the case before it from para 70 onwards when the case is considered on it merits, except at para 90 as noted above.
[105] Two points need to be made in assessing whether there is any merit to this argument.
[106] First, the Appellant does not challenge the ruling that the similar fact evidence was admissible.
[107] Second, the Committee was asked to rule on the admissibility of the similar fact evidence before the defence called any evidence, not at the end of the proceeding after hearing all of the evidence.
[108] The Decision makes it clear that although the similar fact evidence was admitted and formed part of the evidence and was considered as part of the evidence in their deliberations, the Committee concluded that it did not need to rely on any of the similar fact evidence when assessing the evidence of Ms. X and reaching their conclusions on the merits.
[109] The Appellant appears to argue that notwithstanding this statement, the Committee must have relied upon the similar fact evidence as Ms. X’s evidence was not reliable. These allegations which are at the forefront of this appeal as to the complainant’s reliability are reviewed in the first issue raised. The Committee considered but rejected the Appellant’s arguments that the evidence of the complainant was not reliable.
[110] The statement in para 37 of the Decision that the Committee “considered the evidence given in the voir dire of these witnesses in its deliberations on the allegations of professional conduct relating to Ms. X”, means simply that the Committee considered the admissible similar fact evidence as part of the evidence before it, as it is required to do, but it did not rely upon the similar fact evidence in reaching its conclusions on the credibility and reliability of the evidence of Ms. X. The Committee then adds, that if it had relied upon the similar fact evidence, applying the caution from counsel as to the permissible and impermissible uses of similar fact evidence, the similar fact evidence “further supports its finding.”
[111] After outlining why it was not necessary to rely on the similar fact evidence, the Committee summarized its conclusions on the credibility of Ms. X at paras 91-92:
The Committee finds that, with respect to the central issue, Ms X was credible. Her recollection of the sexual activity itself was clear, detailed, and consistently stated in her testimony, despite that these events occurred some 36 years ago.
The most compelling aspects of Ms X’s testimony were her detailed description of the sexual acts perpetrated on her by Dr. Noriega, her stated conviction that she would never return to see him again after these events occurred, and her decision to keep a prescription for birth control pills with Dr. Noriega’s name on it as proof that she had seen him at the material time, on the assumption that this would be useful in case she decided to come forward with her allegations.
[112] The Decision then considers in detail the basis for the conclusions on credibility and reliability of Ms. X, taking into account the submissions of the Appellant.
[113] We find that there is no merit to the suggestion that the Committee relied upon the similar fact evidence in reaching its conclusions on the reliability of Ms. X’s evidence, without providing adequate reasons. There is no merit to the third ground of the appeal.
[114] For these reasons, the appeal is dismissed.
[115] The parties agreed that the unsuccessful party would pay the successful party’s costs fixed in the amount of $10,000.00 inclusive of disbursements and HST. The Appellant shall pay the sum of $10,000.00 to the College for costs of this appeal.
J. Wilson, J.
Stewart, J.
Thorburn, J.
Released: March 8, 2016
2016 ONSC 924
DIVISIONAL COURT FILE NO.: DC-14-550
DATE: 20160308
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
J. WILSON, STEWART AND THORBURN JJ.
BETWEEN:
DR. ELEAZAR HUMBERTO NORIEGA
Appellant
– and –
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
J. Wilson J.
Released: March 8, 2016