CITATION: Kalam v. College of Massage Therapists of Ontario, 2017 ONSC 7163
DIVISIONAL COURT FILE NO.: 281/16 DATE: 2017/11/29
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, M.G. QUIGLEY and LeMAY JJ.
BETWEEN:
MURALEEDHARAN KOODANCHERY KALAM
Jasmine Ghosn, for the Appellant
Appellant
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
Julie Maciura, for the Respondent
Respondent
HEARD at Toronto: November 29, 2017
LeMay J. (Orally)
[1] This is an appeal from a penalty decision of the Panel of the Discipline Committee of the College of Massage Therapists of Ontario (the “Tribunal”). The Tribunal announced its decision on penalty on May 19th, 2016, and issued written reasons respecting their decision over a year later, on May 30th, 2017.
[2] This appeal is brought pursuant to section 70(1) of the Regulated Health Professions Act, 1991, SO 1991, c 18, Schedule 2. Pursuant to section 70(2), appeals may be made on questions of law or fact or both, and under section 70(3), the Court has all of the powers of the Tribunal.
[3] This matter proceeded by way of an agreed statement of facts. In the agreed statement of facts, the Appellant admitted to the following behavior that he acknowledged constituted professional misconduct under various subsections of the Health Professions Procedural Code of the Massage Therapy Act, 1991:
(a) He admitted that he failed to maintain appropriate boundaries in his treatment of the Complainant.
(b) He admitted that he failed to obtain informed consent for his treatment of the Complainant.
(c) He admitted that he draped, or failed to drape, the Complainant’s body in such a manner that fell below the standards of practice.
(d) He admitted that he failed to obtain informed consent to treatment of the Complainant’s lower back, down to the areas above the gluteal cleft, legs or medial thighs.
[4] The Tribunal imposed an eight-month suspension, remitted by three months if the Appellant completed a satisfactory reflective piece. The Appellant has completed a satisfactory reflective piece, and has served a suspension of four (4) weeks.
[5] The Appellant’s central ground of appeal is that the penalty imposed by the Tribunal is unreasonable because it was based on a finding that he touched the Complainant’s sensitive areas, a finding that the Appellant argues he specifically did not admit to. According to the Appellant, without this finding the reasonable penalty would have been in the range of four weeks.
[6] It is clear from its decision that the Tribunal did proceed on the basis that the Appellant had admitted to touching the Complainant’s sensitive areas. This is apparent from the following passage that appears on page 16 of the Tribunal’s decision:
While the Panel acknowledges there may have been no intent of a sexual nature, panel [sic] finds his conduct was still a very serious matter. The conduct of the Registrant breached the standards of practice and this involved more than a lapse in communicating with his client. He did not seek proper consent nor did he properly drape the client while treating her sensitive areas both of which constitute a serious breach of the standards of practice.
[7] The case law considered by the Tribunal in its decision focused on cases which involved suspensions of members for having failed to obtain consent to treat sensitive areas, and having failed to observe proper draping techniques.
[8] Sensitive areas is not defined in the legislation, but it is a term of art that is used by the Respondent. On February 17th, 2004, the Respondent approved a position statement regarding the “treatment of sensitive areas”. In that statement, the following guidance is given about what is or is not a sensitive area:
The chest wall musculature, breast tissue, inner thigh and gluteal region are considered sensitive areas of the body generally regarded as potential targets for both misunderstandings of intent and actual sexual abuse.
[9] On reading the actual admissions set out in paragraph 20 of the Agreed Statement of Facts that form the basis for the Tribunal’s decision on penalty, it is clear that there is no mention of any of these sensitive areas. The closest that the actual admissions come to embracing a sensitive area is the reference to “lower back down to the area above the gluteal cleft” and “or medial thighs”.
[10] The Respondent submits that, when the Appellant admitted to treating the Complainant’s lower back down to the area above the gluteal cleft, he was admitting to treating a sensitive area, namely the “gluteal region”. The Respondent also argues that, when the Appellant admitted to treating the Complainant’s medial thigh, he was admitting to treating another sensitive area, namely the “inner thigh”.
[11] If admissions are going to be relied upon as the foundation for a disciplinary penalty in the professional regulation context, then they must be clear and unambiguous. In this case, the words used in the admissions are different from the words used in the policy statement that defines sensitive areas. It is also important to remember that the original Notice of Hearing included an allegation that the Appellant “failed to obtain informed consent to treatment of [the Complainant’s] sensitive areas.” There was no admission with respect to this allegation, indeed it was withdrawn. The Notice of Hearing also alleged that the Appellant failed to obtain the Complainant’s informed consent to the treatment of the Complainant’s “buttocks” or “inner thighs”. This allegation was not admitted. Further, the submissions made by the Appellant’s counsel before the Tribunal emphasized, several times, that the Appellant was not admitting to any conduct of a “sexual nature”.
[12] In view of this, we find that the Appellant did not clearly admit to treating the Complainant’s sensitive areas. Thus, we agree with the Appellant that the Tribunal’s penalty decision was unreasonable because it was based on a misapprehension of the Appellant’s admissions. We also do not accept that the penalty imposed is justified without a finding that the Appellant treated sensitive areas.
[13] Our review of the case law indicates that a penalty significantly closer to the range that the Appellant is seeking is appropriate. This is particularly true when it is remembered that the penalty included a remission of three months because the Appellant completed a satisfactory reflective piece.
[14] Given the fact that it took more than twelve months before the Appellant found out why he was given the penalty he was, and the fact that the Appellant has already completed the reflective piece required by the Tribunal, and served a four week suspension we are setting aside the suspension imposed by the Tribunal and substituting a suspension of four weeks, which has already been served.
SACHS J.
[15] I have endorsed the Appellant’s Appeal Book and Compendium as follows: “For reasons given orally by LeMay J., this appeal is allowed. The suspension imposed by the Tribunal is set
aside and a suspension of four weeks is substituted, which has already been served. The Appellant is entitled to his costs of this appeal, which we fix in the amount of $8,000.00, all inclusive.”
___________________________ LeMAY J.
I agree
___________________________
SACHS J.
I agree
___________________________
M.G.QUIGLEY J.
Date of Reasons for Judgment: November 29, 2017
Date of Release: December 1, 2017
CITATION: Kalam v. College of Massage Therapists of Ontario, 2017 ONSC 7163
DIVISIONAL COURT FILE NO.: 281/16 DATE: 2017/11/29
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, M.G. QUIGLEY and LeMAY JJ.
BETWEEN:
MURALEEDHARAN KOODANCHERY KALAM
Appellant
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
LeMay J.
Date of Reasons for Judgment: November 29, 2017
Date of Release: December 1, 2017