College of Physiotherapists of Ontario v. Boon, 2018 ONSC 3463

CITATION: College of Physiotherapists of Ontario v. Boon, 2018 ONSC 3463

DIVISIONAL COURT FILE NO.: 263/17 DATE: 20180608

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MARROCCO A.C.J.S.C., HARVISON YOUNG, MEW JJ.

BETWEEN:

College of Physiotherapists of Ontario

Respondent

– and –

Neil Boon

Appellant

Joanna Birenbaum, Jenna Meguid, for the Respondent

Todd J. Burke, Sarah Willis, Appellant

HEARD at Toronto, May 29, 2018

Harvison Young J.

1The Appellant Neil Boon appeals from orders made by the Respondent College of Physiotherapists of Ontario. The Discipline Committee found that certain allegations of professional misconduct were substantiated, imposed a penalty of 3 months suspension, and imposed costs in the amount of $30,000.

2The Appellant seeks a declaration that he did not commit acts of professional misconduct as alleged by the College of Physiotherapists of Ontario, and an order setting aside the Penalty and Costs Decisions. In the alternative, should the court find that the Appellant committed the acts of professional misconduct, an order be made setting aside the three (3) month suspension of Mr. Boon’s Certificate of Registration.

3The Respondent asks the court to dismiss the appeal. At the time of the hearing, Mr. Boon had been a registered physiotherapist with the College for the past 17 years: Reasons and Decision on Finding (“Reasons”), page 22).

Factual Background

4The complainant, KV, was an eighteen year old female who visited Mr. Boon for treatment, on April 2, 2015, for a sprain on her left ankle. Following the appointment, KV initiated a complaint with the police and then to the College. KV alleged that Mr. Boon had inappropriately encroached on her personal space, and had inappropriately touched her back, thigh and under-arm area near her breast, and placed her foot in his crotch area over his genitals while performing a treatment modality (the ankle\calf or the “dorsiflexion stretch”). After investigating the complaint, the College referred the matter to the Committee, alleging both sexual misconduct and professional misconduct. The Committee did not find that the allegations of misconduct of a sexual nature were substantiated but did find that the allegations of professional misconduct were substantiated.

5The Appellant submits that the following breaches support his claim:

1. the Committee exceeded its jurisdiction in denying Mr. Boon natural justice and or procedural fairness by relying on evidence not in the record and not disclosed to the parties’

2. the Committee erred in law in disregarding or failing to place sufficient weight on the evidence relating to the complainant’s credibility;

3. the Committee erred in its determination that the manner in which the appellant touched the complainant was not clinically indicated;

4. the Committee erred in imposing a three month suspension of his Certificate of Registration.

6Finally, the Appellant asks that if the court concludes that the Committee erred in reaching its decision and\or the penalty imposed, the costs decision be set aside.

7The standard of review to be applied by this Court to the findings of the Committee is, in general, that of reasonableness: see Stefanov v. College of Massage Therapists of Ontario, 2016 ONSC 848 at para 59. With respect to questions of procedural fairness and natural justice, however, the courts do not undertake a standard of review analysis. Rather, the courts consider whether there has been a violation of the person’s rights to natural justice and procedural fairness and if not, the decision must be set aside.

Issues and analysis

Did the panel rely on evidence not in the record and not disclosed to the parties?

8The Appellant Mr Boon submits that the Committee breached his right to natural justice and procedural fairness in two ways:

a. by reconstructing events outside of the hearing while deliberating without giving either party an opportunity to review or challenge the reconstruction; and

b. by concluding that based on its inability to privately recreate the two activities described by Boon in his evidence, Boon had been dishonest and his evidence “was so incredible” that it constituted a “fatal blow to his credibility”.

9The Appellant states that the Committee did not have the necessary underlying evidentiary foundation to challenge the plausibility of Mr. Boon’s technique.

10This issue concerns two aspects of the evidence that were central to the differences between the complainant’s and Mr. Boon’s testimony. It will be convenient to summarize the evidence on both before considering the manner in which the panel treated this evidence.

11The first aspect related to the Committee’s assessment of the evidence as to Mr. Boon’s position when he was using an Atlas of Anatomy to explain KV’s injuries to her. According to KV, he was initially crouched beside her, then transitioned to resting the book on her lap at which time he poked her thigh, using it rather than her ankle to demonstrate the injury. She also testified that during this period, his body was positioned directly beside her on the plinth facing forward the same direction as she was. She felt that his torso was leaning into hers and, as a result, she felt uncomfortable and shifted away from him.

12Mr Boon brought his Atlas to the hearing and demonstrated to the Committee how he would have held the Atlas while explaining to KV her injuries. He was emphatic that neither the Atlas nor his body would have come into any contact with KV despite the Atlas being a rather large and soft covered book, and therefore rather “floppy”. (See Reasons, page 23). His demonstrated approach with his testimony showed that there was “quite a gap” between himself and the position of KV on the plinth, with him seated on a rolling stool. The demonstration showed him holding the book aloft with arms that had to have been almost, if not fully, extended so that KV could see the book without having to twist her body and so that he could maintain the gap while seated on the stool with no part of the book coming into contact with KV. Mr. Boon suggested to the Committee that he was a fit person who would have had no trouble holding the book aloft in this position without experiencing any fatigue.

13The second aspect of the evidence related to the procedural fairness ground of appeal related to how Mr. Boon performed the ankle mobilization and ankle stretch on KV.

14According to KV, Mr. Boon treated her ankle with a mobilization and a stretching technique. While she had no initial concerns with his technique, she testified that when he moved on to the ankle stretch, he placed her foot initially against his crotch such that she felt his genitals under her foot. She testified that this part of the stretch lasted no more than 30 seconds, after which he repositioned her foot fully onto his thigh and continued on with the stretch for a total time of no more than 2-3 minutes. The stretch consisted of Mr. Boon holding her foot with one hand using a towel around her ankle and the other hand over the top of her foot, while her foot rested against his crotch\thigh, and he applied forward pressure, through a rocking motion, for approximately 30 seconds at a time to the sole of her foot in order to stretch her ankle, bringing the top of her foot closer to her body with the stretch (Reasons, page 21).

15Mr. Boon’s evidence describing how he performed the ankle stretch was very different. He demonstrated his technique, stating that it was his own creation and that he did not use the other methods commonly accepted as ways of performing the ankle stretch. He stated that he routinely places the palm of his hand over his lateral thigh and then a towel on top of his hand. He then places the patient’s foot on top of his hand and the patient’s foot. He angles his hips away from the patient to ensure no contact with his groin, then uses forward motion of the lateral aspect of his thigh to effect the stretch.

16In the course of its reasons the central issue was the assessment of the credibility of KV and Mr. Boon. The Appellant takes issue with what it refers to as the Committee’s “re-enactment” of Mr. Boon’s testimony as described by the Committee in its reasons at page 17:

The Panel being very concerned about the plausibility associated with these two key areas of testimony, took time, during deliberations, to attempt to recreate Mr. Boon’s actions in the exact manner to which he testified. The Panel, after multiple attempts, could not satisfy itself that either the body positioning of Mr. Boon during the Atlas use of the ankle stretch, as described, were plausible.

17The Appellant argues that this “re-enactment” constituted evidence not in the record because the Committee did this in the course of its deliberations and thus the Appellant was unable to know precisely what was done or to cross-examine on it. On behalf of Mr. Boon, Mr. Burke relies on Re Reddall and College of Nurses of Ontario, 42 O.R. (2d) 412 (ON CA), which states that a discipline Committee can only act on evidence that is on the record (AF at para. 45). Mr. Burke submits that Section 49 of the Code limits the findings of the Committee exclusively to the evidence admitted before it.

18On behalf of the Respondent, Ms. Birnbaum submits that the trier of fact is entitled, during its deliberations, to examine exhibits and make reasonable inferences based on those exhibits. The College states that such inferences don not constitute an expansion of the evidentiary record, but are rather indicative of a thorough and proper evaluation of it (R v. Tam, 1994 CarswellBC 2515 at paras. 5, 6; Agar v. Weber, 2014 BCCA 297, at para. 38).

19A significant part of the evidence related to the assessment of evidence as to where and how Mr. Boon was positioned during the session with the complainant. The Committee had the opportunity to view Mr. Boon demonstrate how and where he was seated. Because of its centrality to the allegations and to the credibility assessment of the complainant and Mr. Boon, the evidence on these issues consumed a significant portion of the almost four day hearing. Both witnesses were vigorously cross-examined on this as well as other aspects of their evidence.

20The heart of the Appellant’s argument on this procedural fairness ground is that the Committee, in attempting to recreate the actions as Mr. Boon testified that he had done, effectively created its own evidence that was not in the record because he did not have a chance to witness and cross-examine on this. I do not agree with this for a number of reasons.

21First, this case is readily distinguishable from the authorities such as Reddall, in which the Committee had found that a nurse had “endangered the life of patient assigned to her care” when it was common ground that none of the nineteen errors and omissions admitted “endangered life”. There was no evidentiary foundation for any allegation that the nurse’s conduct had “endangered life”. This was very different from the present facts. The allegations and evidence were fully before the Committee in this case. Moreover, at one point during the hearing, counsel for Mr. Boon at the hearing, Mr. McKenna, invited the members of the Committee to hold the book and feel its weight during a break, which it did.

22Second, as Ms. Birnbaum submits, the Committee only attempted to recreate Mr. Boon’s evidence relating to his Atlas use and the ankle stretch because it was very concerned about the plausibility of the evidence. This concern was itself grounded on the evidence. Not only did Mr. Boon’s testimony as to his position when he was showing KV the Atlas seem implausible and uncomfortable, but his own character witness, Mr. Quenneville, testified that he could not recall ever seeing Mr. Boon perform the ankle stretch as he claimed to have always done it. Given the fact that the two men had studied together, worked in the same open area for some time and known each other for many years, the Committee was entitled to consider that this raised some concerns as to the credibility of Mr. Boon’s evidence. In addition, Mr. Quenneville’s evidence as to the stretch that the two men had been taught and the one he had seen Mr. Boon “always use” was consistent with KV’s version of the stretch and not with Mr. Boon’s.

23I also reject the Appellant’s submission that the Committee improperly expressed its reservations as to Mr. Boon’s testimony about his position during the Atlas use because “it would not have been all compatible with the principles of good body mechanics and was incredibly difficult for the Committee to imagine as being comfortable for any length of time”. (Reasons, page 31) The Appellant argues that it was a violation of the Appellant’s right to procedural fairness to find that this was not compatible with “good body mechanics” in the absence of expert evidence on the point. I disagree. Both Mr. Quenneville and Mr. Boon testified that Mr. Boon was conscious of and practiced “good body mechanics”. The Committee was merely framing its finding that this was uncomfortable and implausible in its own “lingo”.

24All the Committee did in its deliberations was to closely and thoroughly examine the evidence as presented, something we in fact expect triers of fact to do. This was used by the Committee in order to assist it in its weight and credibility assessments. The inferences it drew were based on the evidence properly before it, and this foundation amply supported those inferences. There is no basis to support the suggestion that the Committee drew inferences from anything other than the evidence properly before it. I would therefore dismiss this ground of appeal.

Did the Committee err in its assessment of the evidence?

25At the outset, I note that the framing of the issues raised by the Appellant with respect to the assessment of the evidence implies a correctness standard of review, rather than reasonableness. As Mr. Burke fairly acknowledged before this Court, the findings of the Committee are entitled to a high degree of deference, especially when they rest on an assessment of credibility. The proper question is whether the reasons of the Committee, as a whole, support the decision after a fair and somewhat probing examination: see Stefanov, supra, Ryan v. Law Society (New Brunswick), 2003 SCC 20 at para 47.

26The high level of deference owed is further underlined when a tribunal has weighed evidence in light of its own expertise: see Devgan v. College of Physicians and Surgeons of Ontario, (2005), 193 O.A.C. 357 (Div. Ct, Then J) which cited, at para. 87, the following passage from Reddall:

On any appeal one would expect the Divisional Court to give considerable weight to the decisions of the Tribunal which has weighed the admissible evidence in light of its expertise and we do not deny the value of that expertise.

27Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process, but also with whether the decision falls within a range of possible, acceptable outcomes: New Brunswick v. Dunsmuir, 2008 SCC 9 at para. 47.

28It follows from the standard of reasonableness that a court on appeal should not minutely dissect the reasons or retry the case. In essence, that is what the Appellant asks this Court to do with respect to its credibility findings and its conclusion that the manner in which Mr. Boon touched the complainant was not clinically indicated. Mr. Burke points to some areas of inaccuracy in KV’s evidence to support his argument that she should not have been believed on key areas of her evidence. This is precisely the sort of determination which is subject to a high degree of deference. The Committee clearly and carefully addressed the parts of KV’s evidence that were inconsistent with other evidence, in particular, her evidence as to the layout of the room in which she was examined. It concluded that the inaccuracies were not material, and that her evidence with respect to the key issues was credible. As juries are generally told, they may accept some, all, or none of a witness’ evidence. Similarly, the reasons explain fully why the Committee found that Mr. Boon’s evidence was not credible and why it found that he fabricated some key points of his evidence relating to the Atlas positioning and the ankle stretch.

29In short, the findings of the Committee were open to it and were amply supported by the evidentiary record before it. The decision and its reasons are justified, transparent and intelligent and falls within the range of possible outcomes.

Was the penalty unreasonable?

30The Appellant submits that the penalty was excessive given the fact that the sexual misconduct allegations were dismissed. The heart of this submission rest on the fact that the Panel listed Mr. Boon’s failure to express any remorse under the heading “aggravating factor”: see College of Physicians & Surgeons (Ontario) v. Porter, 2003 CarswellOnt 2740(Ont. Div. Ct.).

31I agree with the Appellant that an expression of remorse may properly be considered as a mitigating factor, while its absence should not be treated as an aggravating factor, as to do so may suggest that an accused person is not entitled to mount a vigorous defence. The Committee here, however, emphasized that it was conscious of Mr. Boon’s right to mount a vigorous defence as he did.

32In addition, I do not agree that the penalty was unreasonable. The Appellant submits that the Panel did not attribute sufficient consideration to the fact that the sexual misconduct allegations were dismissed, or to the stigma associated with such charges given that there was extensive publicity about them. However, Mr. Boon’s own evidence was that his business had not suffered at all, and that he had received a tremendous outpouring of support.

33In any event, the penalty imposed falls within the range of those cases illustrated by the charts provided by counsel. While it would have been preferable for the Committee to have treated the lack of remorse as a factor reducing the degree of mitigating considerations, its failure to do so is not sufficient to justify a finding that the penalty is unreasonable in the circumstances because while it listed it under “aggravating” factors, its explicit recognition that Mr. Boon was entitled to defend himself vigorously suggests that it was functionally considered as an absence of a mitigating factor. This is further supported by the fact that, in considering what the Committee called “aggravating” and “mitigating” factors, the Committee was explicitly addressing the question as to whether it should remit any or all of the three month suspension period. (Reasons, page 47).

34In short, read as a whole, and in light of all of the factors considered by the Panel, the penalty imposed was reasonable. The appeal from the penalty is dismissed.

35For the foregoing reasons, the appeal is dismissed. It will not be necessary to consider the question as to whether the costs ordered by the Committee should be set aside.

36The parties agreed to fix costs in the amount of $17, 500 payable to the successful party in this appeal. Accordingly, the Appellant is to pay the Respondent costs in the amount of $17, 500.

HARVISON YOUNG J.

I agree _______________________________

MARROCCO A.C.J.S.C.

I agree _______________________________