CITATION: The College of Physicians and Surgeons of Ontario v. Yaghini, 2018 ONSC 2449
DIVISIONAL COURT FILE NO.: 34/17 DATE: 20180416
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, CONWAY and LeMAY JJ.
BETWEEN:
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Vicki White, for the Respondent
Respondent
– and –
DR. REZA YAGHINI
Ryan Breedon, for the Appellant
Appellant
HEARD at Toronto: April 16, 2018
LeMAY J. (Orally)
[1] The Appellant, Dr. Reza Yaghini, appeals from the decision of the Discipline Committee Panel (“the Panel”) of the College of Physicians and Surgeons of Ontario dated December 21, 2016. In that decision, the Panel found that Dr. Yaghini had engaged in conduct that would reasonably be regarded as disgraceful, dishonourable or unprofessional. I will refer to this as a finding of professional misconduct. The Panel also found that Dr. Yaghini had engaged in sexual abuse of the Complainant.
[2] The complaint arises from two interactions between the Complainant and Dr. Yaghini in April of 2012. At the time of these incidents, the Complainant was a fifteen year old girl living with her parents. She suffered an allergic reaction to an antibiotic and sought treatment at a hospital. Dr. Yaghini was the physician who administered the treatment at the hospital. He then saw the Complainant in a follow-up appointment in his clinic.
[3] The events that gave rise to the Complaint took place at Dr. Yaghini’s clinic during the follow up visit. The Complainant alleged that, during this visit, Dr. Yaghini kissed her on the cheek and attempted to kiss her on the lips. This kiss took place when Dr. Yaghini was examining the Complainant’s face. The Complainant also alleged that, during this same visit, Dr. Yaghini told her that she was pretty, that she reminded him of an old girlfriend, and that he was excited. The Complainant reported these allegations to the police, as well as to the College of Physicians and Surgeons. Dr. Yaghini denied the allegations.
[4] The College investigated, and referred the matter to the Panel. The Panel heard evidence over three days in July of 2016, and released a decision on December 21st, 2016. As noted above, that decision found that Dr. Yaghini had engaged in professional misconduct. Dr. Yaghini appeals the Panel’s decision to this Court.
[5] Dr. Yaghini’s Notice of Appeal advances five grounds on which he claims that the decision of the Panel, as well as any subsequent Penalty Decision, should be set aside. These grounds all engage the Panel’s findings of fact. In oral argument, Dr. Yaghini states that the Panel misapprehended the evidence in three ways:
(a) By failing to appreciate and address the significance of the inconsistencies and admissions in the Complainant’s evidence.
(b) By improperly considering the post-incident conduct of the Complainant.
(c) By failing to apply the same level of scrutiny to the evidence of the Complainant as to the evidence of Dr. Yaghini, and relying on improper inferences that were not supported by the evidence.
[6] In terms of the Penalty decision, the parties are ad idem that, if the Panel’s findings on the facts are upheld by this Court, then there are no grounds to adjust the penalty that was imposed on Dr. Yaghini.
[7] In addressing these three issues, it is useful to first briefly set out the standard of review applicable in this case.
Standard of Review
[8] The alleged errors in this case involve the Panel’s assessment of facts. As a result, the standard of review is reasonableness.
[9] In addition, two points should be kept in mind. First, as noted in F.H. v. MacDougall 2008 SCC 53, [2008] 3 S.C.R. 41, the Court noted (at paragraph 70) that:
The trial judge was not obliged to find that F.H. was not credible or that his evidence at trial was unreliable because of inconsistency between his trial evidence and the evidence he gave on prior occasions. Where a trial judge demonstrates that she is alive to the inconsistencies but still concludes that the witness was nonetheless credible, in the absence of palpable and overriding error, there is no basis for interference by the appellate court.
[10] In other words, where the trier of fact (in this case the Panel) is alive to the inconsistencies in the evidence, and has resolved them in a particular way, then this Court should not substitute its own views.
[11] Second, in reaching our decision, it is not our role to posit alternate interpretations of the evidence, or to engage in a reassessment of the evidence that was before the Panel. The Panel heard the evidence in this case and is uniquely positioned to make the findings of credibility that flow from that evidence.
[12] The general principles that apply to cases such as these are well known, and have been comprehensively discussed in this Court’s decision in Gale v. College of Physicians and Surgeons 2015 ONSC 1981 at paragraphs 8 and 9. These principles are equally applicable in this case.
Issue #1 - The Inconsistencies in the Complainant’s Evidence
[13] Dr. Yaghini argues that the Panel did not address the inconsistencies in the Complainant’s evidence. Dr. Yaghini points to two significant inconsistencies. First, there was inconsistent testimony over whether the Complainant’s arms and legs were examined. Second, whether the Complainant remembers pulling away from Dr. Yaghini when he attempted to kiss her.
[14] I reject this argument for two reasons. First, a reading of the Panel’s decision makes it clear that the Panel considered both of these issues. Indeed, the issue of whether the Complainant pulled away from Dr. Yaghini was the subject of argument before the Panel, and the Panel clearly explained why any inconsistencies in this evidence did not adversely affect the Complainant’s credibility. Similarly, the Panel explained why the inconsistencies over whether Dr. Yaghini examined the Complainant’s arms and legs were not material. I see no reason to interfere with either of these findings.
[15] Second, Dr. Yaghini argues that these two inconsistencies are important not just because they are inconsistencies, but because they also show that the Complainant is prepared to testify that she has certainty about her recollection when she does not. Dr. Yaghini argues that the Panel failed to appreciate this concern, or to consider its significance in assessing the Complainant’s credibility.
[16] However, when the reasons are read as a whole, it is clear that the Panel was alive to these concerns. It was also open to the Panel to conclude, as they did, that the Complainant’s evidence that Dr. Yaghini kissed her on the cheek and tried to kiss her on the lips was consistent, clear and compelling. I see no reason to interfere with this finding.
Issue #2 - Post Incident Conduct
[17] Counsel for Dr. Yaghini also argues that the Panel improperly used the post-incident conduct of the Complainant to support its credibility findings. Counsel argues, based on this Court’s decision in Karkanis v. College of Physicians and Surgeons 2014 ONSC 7018 (Div. Ct.) at paragraphs 66-67, that this was improper because this evidence was open to two equally consistent interpretations. It could indicate either that the incident actually took place or that the Complainant had misunderstood what had happened.
[18] I reject this argument. When the reasons are read as a whole, it is clear that the post-incident conduct is not the only, or even the most significant, reason for the Panel’s credibility finding. Indeed, the Panel lists this post-incident conduct at the end of a long list of reasons for the credibility findings and clearly states that the evidence is not determinative.
Issue #3 - The Level of Scrutiny Applied to Dr. Yaghini’s Evidence
[19] Dr. Yaghini argues that the Panel misapprehended the evidence by accepting the Complainant’s evidence without considering the inconsistencies in that evidence, and then rejecting Dr. Yaghini’s evidence because he could only estimate the distance from his face to the Complainant’s face when he was examining the Complainant’s face to see whether the allergic rash was a butterfly rash. In support of his position, Dr. Yaghini relies on the decision in Karkanis, supra.
[20] In Karkanis, the Divisional Court allowed the appeal from a Discipline Panel largely on the basis that they had “serious concerns regarding whether the Discipline Committee applied the same scrutiny to the evidence of [the Complainant] that they did to the evidence of the appellant.” See paragraph 71.
[21] In this case, I am of the view that the Panel did not make the error that the Panel in Karkanis made. I reach that conclusion for two reasons. First, it is clear from the Panel’s decision that they adopted the same approach to the evidence of both Dr. Yaghini and the Complainant. The Panel identified minor inconsistencies in both parties’ testimony, and stated, in regards to a minor inconsistency in Dr. Yaghini’s testimony, “that details such as these may be omitted from earlier statements, and it did not find the omissions to be significant.” Unlike the Panel in Karkanis, the Panel in this case was prepared to excuse minor inconsistencies from both the Complainant and Dr. Yaghini.
[22] Second, the Panel in Karkanis failed to resolve significant issues of credibility relating to the complainant. In this case, the Panel spent considerable time reviewing the credibility of the Complainant, and particularly addressed the two most significant credibility issues raised by Dr. Yaghini’s counsel.
[23] In terms of the testimony relating to the distance that Dr. Yaghini was from the Complainant’s face when he examined her face, I am of the view that the Panel had ample reason to conclude that this was a significant inconsistency in his evidence. If his testimony that he was a foot away from the Complainant when he examined her face was believed, then Dr. Yaghini’s knowledge that he had made the Complainant uncomfortable during the appointment in his office would be difficult to reconcile. As noted by counsel for the Respondent, this particular inconsistency goes to the core of the case before the Panel. In any event, however, the Panel is uniquely placed to resolve those types of credibility issues and this Court should not interfere, absent a significant misapprehension of the evidence. None exist in this case.
Disposition
[24] For the foregoing reasons, I would dismiss the appeal.
C. HORKINS J.
[25] I have endorsed the Appeal Book and Compendium as follows: “This appeal is dismissed for oral reasons provided today. Costs of the appeal payable by the Appellant to the Respondent are fixed $7,500 all inclusive.”
___________________________ LeMAY J.
I agree
C. HORKINS J.
I agree
CONWAY J.
Date of Reasons for Judgment: April 16, 2018
Date of Release: April 18, 2018
CITATION: The College of Physicians and Surgeons of Ontario v. Yaghini, 2018 ONSC 2449
DIVISIONAL COURT FILE NO.: 34/17 DATE: 20180416
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, CONWAY and LeMAY JJ.
BETWEEN:
THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Respondent
– and –
DR. REZA YAGHINI
Appellant
ORAL REASONS FOR JUDGMENT
LeMAY J.
Date of Reasons for Judgment: April 16, 2018
Date of Release: April 18, 2018