CITATION: Taliano v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3529

DIVISIONAL COURT FILE NO.: 387/21

DATE: 2022/06/20

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Sachs, Newton and Davies JJ.

BETWEEN:

John Patrick Taliano

Appellant

– and –

College of Physicians and Surgeons of Ontario

Respondent

Eli Lederman and Sean Blakeley, for the Appellant

Morgana Kellythorne and Andrea Dias, for the Respondent

HEARD at Toronto by videoconference: May 26, 2022

Publication Ban Notification

This is notice that the Discipline Committee ordered that no person shall publish or broadcast the identity of Patient A and Witness B, or any information that could disclose the identity Patient A and Witness B, under subsection 45(3) of the Health Professions Procedural Code (the “Code”), which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended.

The Committee also made an order to prohibit the publication, including broadcasting, of the identity of Patient A and Witness B or any information that could identify Patient A and Witness B, whose testimony is in relation to allegations of the member’s misconduct of a sexual nature involving the witness under subsection 47(1) of the Code.

The non-publication order applies to all material filed on this appeal and to the reasons on appeal as confirmed by the Order of Corbett J. made March 18, 2022.

H. sachs J.

Overview

1This is an appeal of a decision of the Discipline Committee (the “Committee”) of the College of Physicians and Surgeons (the “College”) finding that the Appellant, Dr. Taliano, had engaged in professional misconduct having sexually abused an adolescent patient, Patient A, and engaged in disgraceful, dishonourable or unprofessional conduct towards him. Dr. Taliano was also found to have engaged in disgraceful, dishonourable or unprofessional conduct of a sexual nature towards a second adolescent boy, Witness B, who was not his patient (the “Liability Decision”).

2In a separate decision (the “Penalty Decision”) the Committee determined that revocation of Dr. Taliano’s certificate of registration was required by law and, furthermore, that it was the necessary and appropriate penalty. Dr. Taliano is also appealing the Penalty Decision.

3Dr. Taliano asserts that in the Liability Decision the Committee committed errors of law, including holding his evidence to a stricter standard of scrutiny than that of the College, and palpable and overriding errors of fact. For the reasons that follow, I find that there is no merit to his submissions. The Liability Decision reveals that the Committee evaluated the totality of the evidence, engaging with the substance of the live issues and identified what was material to its decision. In doing so it committed no errors of law or palpable and overriding of error of fact. Essentially, Dr. Taliano’s submissions amount to a request to this Court to retry the case and reweigh the evidence. There is no basis for us to do so.

4With respect to the Penalty Decision, Dr. Taliano submitted that the Committee erred in finding that revocation was mandatory in law because he had masturbated Patient A. According to Dr. Taliano, there was no basis in fact for the finding he masturbated Patient A as there was no evidence that Dr. Taliano’s actions were designed to sexually stimulate Patient A. For the reasons that follow, I conclude that the Committee’s finding regarding masturbation was available to it on the record before it, including the evidence of both Patient A and Dr. Taliano.

5For these reasons I would dismiss the appeal.

Background

The Allegations

6Dr. Taliano is a family physician in St. Catharines, Ontario. He began practising as a full-time emergency room physician in 1991, but transitioned to a family medicine practice in 1998.

7This dispute concerns Dr. Taliano’s interactions with two adolescent boys about a decade ago. One boy (“Patient A”) was a then-14-year-old patient of Dr. Taliano’s. The College alleged that on August 29, 2012, Dr. Taliano engaged in professional misconduct when he sexually abused Patient A by touching his penis and testicles sexually under the guise of a genital examination. The College alleged that this conduct, and the manner in which he insisted on “examining” Patient A despite his protests, also constituted disgraceful, dishonourable or unprofessional conduct. The incident came to the College’s attention when Patient A told another physician about it and the physician made a mandatory report.

8The other boy (“Witness B”) was the then-13-year-old brother of a relative of Dr. Taliano’s. The College alleged that Dr. Taliano engaged in disgraceful, dishonourable or unprofessional conduct, and hence professional misconduct, when in 2011 he entered Witness B’s shower naked, touched the boy’s penis, and commented about the size of his penis to others. This allegedly occurred at Dr. Taliano’s cottage. Members of his family and Witness B’s family were present at the cottage. The incident came to the College’s attention as a result of an investigation into the allegations concerning Patient A.

9Dr. Taliano denied these allegations. He maintained that he had conducted a clinically-appropriate examination that Patient A consented to and that his only actions with regard to Witness B had been moving the shower curtain and yelling at him to hurry up because he was wasting water.

The Liability Decision

10The Committee heard this matter in October, November, and December of 2019.

11In the Liability Decision, issued October 22, 2020, the Committee concluded that the allegations had been made out. It found that Dr. Taliano had committed an act of professional misconduct by engaging in the sexual abuse of a patient and engaged in an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

12At the outset of its decision, the Committee outlined the allegations and the College’s burden to prove the allegations on a balance of probabilities.

13The Committee next discussed the concepts of witness credibility and reliability, stated that these were “key considerations” for the Committee, and indicated its approach to assessing them. It also stated that it should weigh any inconsistencies while being mindful of the fact that the complainants were children at the time of the incidents. Finally, it addressed collusion and noted that there had been no application to admit similar fact evidence.

Incident involving Patient A

14The Committee turned to the incident involving Patient A and summarized the witnesses’ evidence. The College witnesses consisted of Patient A; Patient A’s mother; Ms. C., a friend of both Patient A and Witness B; and Dr. Karen Ferguson, an expert witness. Dr. Taliano testified on his own behalf and called Dr. Michael Schwartz, an expert witness.

15Patient A testified that on August 29, 2012, shortly before starting Grade 9, he attended at an appointment with his family doctor, Dr. Taliano. Both his mother and sister were present. After some discussions that did not involve him, Dr. Taliano left the room briefly. When he returned he announced to Patient A that “it was time for [him] to drop his pants.” Patient A was shocked and said “no” several times. Dr. Taliano tried to get his mother “on board” and eventually his mother and sister left the room, leaving him alone with Dr. Taliano. Dr. Taliano then pulled down Patient A’s shorts and underwear.

16The Committee summarized Patient A’s evidence of what occurred next as follows:

Patient A testified that he was in the middle of the examination room and that Dr. Taliano was crouched and close enough that he could feel his breath, maybe six inches away. He described Dr. Taliano “playing with my balls”, and tickling or cupping his testicles. He testified that at the same time Dr. Taliano’s other hand grasped Patient A’s penis and was moving up and down. Patient A explicitly described the movements on his penis as if “you were trying to pleasure yourself”. It felt to him that Dr. Taliano was trying “to get him off”. Dr. Taliano said nothing while this was occurring. Patient A describes Dr. Taliano as looking up at him and then looking at his genitals while this happened. He testified that this lasted no more “than like five minutes” but under cross-examination he agreed this could have been only ten seconds. Patient A testified that it felt like a lifetime to him. Patient A clearly felt that he had been sexually abused.

17Dr. Taliano testified that he performed a genital examination after conducting a full physical examination of Patient A. He stated that he explained to Patient A and his mother that the reason for the examination was because young men can develop testicular cancer. He admitted that the examination would not have been clinically indicated, in an asymptomatic patient, if performed in isolation from a well child visit. He denied suddenly telling Patient A to drop his pants. According to Dr. Taliano he had what he believed to be Patient A’s full consent to the examination as Patient A had agreed that he was “okay with this” when his mother asked him before leaving the room and after Dr. Taliano’s explanation of the examination and the reason for it. He stated that Patient A lowered his shorts and underwear at his request. Dr. Taliano then performed a clinically-appropriate genital examination of Patient A at arm’s length, inspecting his penis and testicles and palpating each testicle but not touching Patient A’s penis.

18The Committee noted that s. 1(3) of the Code sets out the definition of “sexual abuse” of a patient by a member, and that, since such sexual abuse often takes in private, the credibility of Patient A and Dr. Taliano was of “critical importance.”

19The Committee came to the following conclusions regarding the witness’ credibility and reliability:

• Patient A was credible and reliable, and it was understandable that he did not recall some details, which did not diminish his credibility. The Committee also found that Patient A “did not embellish or exaggerate his evidence” and that it was consistent with his mother’s and Ms. C.’s evidence.
• Dr. Taliano’s evidence was not credible or reliable. The Committee had particular concerns about a missing clinical record of the encounter; Dr. Taliano’s inconsistent statements regarding the missing note; his evidence about his practice of note taking; and his claim that he had conducted a full physical examination of Patient A on the date of the incident because Patient A was overdue for one. This latter assertion was inconsistent with Dr. Taliano’s admission that ten months earlier (in October 2011) Patient A had an examination involving most of the elements of a full examination.
• Patient A’s mother’s evidence was credible and reliable.
• Ms. C’s evidence was credible and reliable.

20The Committee accepted Dr. Ferguson’s expert evidence, including on the issue of consent, which included the opinion that physicians should get express consent for genital examination directly from an adolescent patient. The Committee found that Dr. Taliano’s expert, Dr. Schwartz, had misunderstood his role. In particular he admitted that in preparing his opinion he had weighed the evidence of Dr. Taliano and Patient A himself and made a credibility determination that he found Dr. Taliano to be more believable. The Committee also rejected Dr. Schwartz’s evidence that appropriate consent was obtained when Patient A said no to the examination, his mother offered to leave the room, and the doctor removed his pants (which even Dr. Taliano testified would be inappropriate).

21The Committee next considered six subissues and decided them as follows:

1. Did Dr. Taliano perform a routine adolescent history and physical examination on Patient A on August 29, 2012? No. The preponderance of evidence (including, e.g., the absence of a medical record, and the fact that a full medical examination had been conducted 10 months earlier) led to the conclusion that no such examination had been performed that day.

2. Did Dr. Taliano make inappropriate comments? Yes. The Committee found that Dr. Taliano had told Patient A to “Drop your pants”, that the comment was unexpected, and that it was unprofessional to use that phrase with a 14-year-old patient without any prior explanation, especially in the presence of his mother and sister.

3. Did Dr. Taliano have the appropriate consent to perform a genital examination on Patient A? No. Dr. Taliano did not obtain consent from Patient A, who objected to the examination, yet nevertheless proceeded to remove Patient A’s pants and underwear. This was inappropriate and constituted disgraceful, dishonourable or unprofessional conduct.

4. Did Dr. Taliano touch Patient A in an inappropriate manner by fondling his testicles and rubbing the shaft of his penis? Yes. Dr. Taliano engaged in sexual abuse of Patient A. The Committee accepted Patient A’s version of events.

5. Were there any relevant significant events subsequent to the August 29, 2012 encounter? The Committee discussed several subsequent events that together reflected a kind of “gradual disclosure” or delay in reporting that the Committee found to be common in cases of sexual abuse of adolescents.

6. Was there any evidence of collusion among the witnesses? No, as between Patient A, his mother, Ms. C. and Witness B.

22In the final analysis, the Committee found that the allegations were made out, that is, that Dr. Taliano had engaged in professional misconduct and disgraceful, dishonourable or unprofessional conduct in his sexual abuse of and conduct towards Patient A.

Incident involving Witness B

23Turning to the incident with Witness B, the Committee reviewed the allegation:

The College alleges that Dr. Taliano engaged in professional misconduct, in that he engaged in disgraceful, dishonourable or unprofessional conduct regarding Witness B, then a 13-year-old boy, in August 2011, by entering Witness B’s shower naked and touching Witness B’s penis, and by subsequently commenting about Witness B’s penis size to others.

24Witness B testified that in the summer of 2011, when he was 13, he visited Dr. Taliano’s cottage for the Labour Day weekend. His mother, his brother, his sisters, Mr. E., Dr. Taliano, Dr. Taliano’s then wife, and their daughter were present. Witness B stayed overnight. His mother, brother and one of his sisters left. Only the sister that was married to Mr. E at the time remained. The next morning he went to take a shower on the second floor. The following is the Committee description of Witness B’s testimony about what happened in the shower:

Witness B testified that when he took the shower, he shut the upstairs bathroom door. He describes the shower curtain/door being opened. Dr. Taliano was standing there naked and got into the shower with him. Witness B was able to describe Dr. Taliano’s appearance as pudgy and his genitalia shrunken using an analogy with the Penguin in the Batman movie. Witness B testified that Dr. Taliano made comments about the need to share showers to conserve water, which he interpreted as a joke. While the soap was still running off his hair Witness B testified that Dr. Taliano rubbed the soap off Witness B’s chest and his hand passed over and rubbed his penis. It was not until that point that he was aware that this was not just showering with him as men may do in a locker room. He appeared sincere and did not appear to exaggerate; in fact, he specified this was not a jerk off motion. He said he was shocked. Dr. Taliano remained in the shower with him only for 20-30 seconds. Witness B denied being aware that he had been asked to hurry up or was yelled at to get out of the shower.

25When Witness B finished his shower he went downstairs and tried to convey, in a “not-alarming fashion”, that “[Dr. Taliano] got in the shower with me”, but found that the assembled company “laughed it off”. He was nervous, embarrassed, and confused about what had happened and felt his sister had failed to “take notice of what happened” so did not divulge further details. Witness B told his mother shortly afterwards about the incident but did not remember exactly how long afterwards and did not remember speaking to her about it. He also told his girlfriend, Ms. C, at the beginning of high school, although he did not recall the details he divulged.

26Witness B’s sister agreed that Witness B showered in the morning after staying overnight. When Witness B came downstairs after his shower, he stated that Dr. Taliano had got into the shower with him. Dr. Taliano, who was present, laughed and said that he told Witness B that they had to conserve water by sharing showers at the cottage. Mr. E. and Ms. D. laughed and Dr. Taliano made a joke about Witness B having a large penis.

27Dr. Taliano denied that the shower occurred in the morning after Witness B had stayed overnight. He testified that after a Friday at the beach, everyone went back to the cottage to get ready to go out to dinner and multiple people took showers. He told everyone not to waste water with long showers. Witness B went to take a shower on the second floor and after about twenty minutes, Dr. Taliano stuck his head in the bathroom door and told Witness B to get out. Ten minutes later, he opened the door, pulled the curtain and told Witness B that his long shower was dangerous for the cottage and to get out or Dr. Taliano would pull him out. Dr. Taliano was wearing a bathing suit at the time.

28The College witnesses consisted of Witness B; Witness B’s sister; Ms. C.; and Patrick Keane, the College investigator. Dr. Taliano testified on his own behalf and called Ms. D., his former wife; and Mr. E., Ms. D’s brother and the former spouse of Witness B’s sister, both of whom were at the cottage on the day in question. Ms. D. and Mr. E. testified that they witnessed the incident and gave evidence supporting Dr. Taliano’s version of events.

29The Committee set out its findings on the witnesses’ credibility and reliability. It found that:

• Witness B’s evidence was credible, including his account of what happened in the shower and when, although his reliability was “modestly diminished” with respect to his evidence on some dates and specifics of his disclosure. The Committee also found that he did not embellish his evidence.
• Witness B’s sister was credible and reliable. Her evidence was mostly internally consistent. It was also mostly consistent with Witness B’s and any inconsistencies were minor.
• Dr. Taliano was not credible or reliable. There were numerous external inconsistencies with his evidence. Further, his evidence often appeared “to be purposely exaggerated, contrived, or misleading” because he repeatedly deflected from the shower incident to the perceived threat made by Witness B’s mother to share the secret of Dr. Taliano getting into the shower with Witness B. Witness B’s mother was alleged to have used the shower incident to threaten Mr. E. should he not treat her daughter appropriately in their divorce. Witness B’s sister had been married to Mr. E.
• Ms. D was not credible or reliable. There were internal inconsistencies in her evidence. Further, she often answered questions indirectly, displayed animus towards Witness B’s mother and Witness B, had a motive to support the narrative advanced by Dr. Taliano (he could only support her if he continued to earn money as a doctor), downplayed the shower incident, and made gratuitous comments.
• Mr. E was generally credible, but the Committee did not accept his evidence on when the shower occurred and what he believed he heard and saw.

30The Committee then considered and decided six subissues as follows:

1. Did Witness B stay overnight at the Taliano cottage and if so, how did that come about? Yes. Dr. Taliano or his wife invited Witness B to stay overnight, which he did. He left the next day with his sister and her then-husband Mr. E.

2. Did the incident happen in the afternoon or the next morning? The next morning. This finding was based on, e.g., Witness B and his sister’s consistent evidence and the Committee’s evaluation of the witnesses’ credibility and reliability.

3. What happened in the shower? The Committee found Witness B to be sincere and persuasive in his testimony as to what had taken place.

4. What transpired immediately after the shower, including comments made? Witness B came downstairs and told those present that Dr. Taliano had entered the shower with him. Dr. Taliano commented about Witness B’s penis.

5. Were there any actions taken in the immediate aftermath? The Committee could not say, given a lack of evidence.

6. What happened in the 2012 meeting between Witness B’s mother and Mr. E and is it relevant? There was a threat by Witness B’s mother that she would share the secret of Dr. Taliano getting into the shower with Witness B. The Committee found that the fact that Witness B’s mother made a threat was not the focus of the matter.

31The Committee stated that it had considered the evidence, including internal and external inconsistencies, and that the evidence it accepted strongly supported Witness B and his sister’s version of events.

32The Committee concluded that Dr. Taliano entered the shower of Witness B (who was naked), touched Witness B’s penis, and later made a comment about Witness B’s penis size in the presence of others, and that these acts constituted disgraceful, dishonourable or unprofessional conduct.

The Penalty Decision

33On January 11, 2021, a three-member Committee (constituted by three of the five members on the previous Committee), heard evidence and submissions on penalty and costs.

34In its Penalty Order and Reasons dated April 15, 2021, the Committee ordered the revocation of Dr. Taliano’s certificate of registration. It also ordered:

• an in-person reprimand;
• that he comply with a College policy on closing a medical practice;
• that he pay $124,440 in costs; and
• that pursuant to s. 51(2)5.1 of the Code he reimburse the College for funding provided to patients under s. 85.7 of the Code (which sets out eligibility of patients who were subject to sexual abuse by a member to seek funding for therapy and counselling).

35The Committee found that Dr. Taliano’s actions amounted to masturbation—an act that, per the version of the Code applicable at the time of the sexual abuse, required mandatory revocation. The Committee also found that, even if it was incorrect on mandatory revocation, revocation was the only appropriate order given the reigning principles of public protection, general deterrence of the profession, maintaining the integrity of the profession and public confidence in the College’s ability to self-regulate in the public interest, and denunciation.

Issues

36Dr. Taliano submitted that the Committee made a number of significant legal and factual errors that had a material effect on its Liability Decision. In particular:

(a) It made a legal error in its treatment of the Consultation Report from the Staff Psychiatrist that Patient A saw in 2016. It was this psychiatrist who reported Dr. Taliano to the College for allegedly abusing Patient A.

(b) It made a palpable and overriding error in the way that it treated the evidence of Dr. Taliano and Patient A’s mother. According to Dr. Taliano, Patient A’s mother’s evidence supported his evidence as to what happened on the day he examined Patient A.

(c) It failed to analyze the contradiction between Patient A’s evidence that he never told anyone the details of the examination and Patient A’s mother’s evidence that Patient A’s sister told her about the details of the examination in 2014, which was the same time frame as when Patient A found out about Witness B from Ms. C.

(d) It committed a legal error when it relied on the fact that Patient A did not embellish his evidence as a basis for finding that he was credible.

(e) It made a palpable and overriding error when it brushed aside the fact that Witness B never told the College investigator that Dr. Taliano touched his penis in the shower. This was a major inconsistency in Witness B’s evidence that had to be resolved reasonably and was not.

(f) It overlooked material reliability and credibility problems with the College witnesses while at the same time using any such problems to discredit Dr. Taliano’s evidence. One example is the treatment of the inconsistency in Witness B’s evidence about Dr. Taliano touching his penis. Another is the fact that the Committee dismissed Patient A’s declared animus towards Dr. Taliano while finding that Dr. Taliano’s hostility to Witness B’s mother was evidence that he was not credible. The Committee focused on every inconsistency between the defence witnesses to the Witness B incident to find those witnesses less credible. The same did not happen with the College witnesses. It dismissed the evidence of the defence witnesses to the Witness B incident on the basis of collusion, but made no such finding with respect to the College witnesses with respect to the Patient A incident where there was also an allegation of collusion.

37With respect to the Penalty Decision Dr. Taliano submitted that the Committee erred in finding that revocation was mandatory since his conduct towards Patient A was not masturbation. In order to constitute masturbation there must be some evidence in the record and some finding that the touching in question was done for a sexual purpose. In this case, there was not.

38According to Dr. Taliano, if the conduct was not masturbation then revocation was a disproportionate penalty that was outside the range of penalties imposed in other cases with similar facts.

Jurisdiction and Standard of Review

39Section 70(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, provides that a party to a proceeding before a panel of the Discipline Committee has a statutory right of appeal to the Divisional Court.

40As a statutory appeal, this matter is to be decided on the appellate standards of review, i.e. correctness on questions of law and palpable and overriding error on questions of fact and on findings of mixed fact and law (absent an extricable question of law): Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1, at para. 37.

41A penalty imposed by a regulatory tribunal cannot be overturned unless the tribunal has made an error in principle or the penalty is “clearly unfit.” A “clearly unfit” penalty falls outside the range of reasonableness. A reasonable penalty will be guided by proportionality and an assessment of the range of appropriate penalties according to the facts of the case and the penalties imposed in other cases: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at paras. 56- 57.

Analysis

Applicable Legal Principles

Palpable and Overriding Error

42As put by the Supreme Court of Canada in Hydro-Québec v. Matta, 2020 SCC 37, 450 D.L.R. (4th) 547, at para. 33:

Absent a palpable and overriding error, an appellate court must refrain from interfering with findings of fact and findings of mixed fact and law made by the trial judge. An error is palpable if it plainly seen and if all the evidence need not be reconsidered in order to identify it, and is overriding if it has affected the result. As Morissette J.A. so eloquently put it … “a palpable and overriding error is in the nature not of a needle in the haystack, but of a beam in the eye. And it is impossible to confuse these last two notions”. The beam in the eye metaphor not only illustrates the obviousness of a reviewable error, but also connotes a misreading of the case whose impact on the decision is plain to see. [Citations omitted.]

43Another way of driving home the distinction between an error that is palpable and overriding and one that is not was adopted by the Supreme Court in Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 38, where the Court quotes with approval the following statement by Stratas J.A. in Canada v. South Yukon Forest Corporation, 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46: “When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.”

44In R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, the Supreme Court recognized, at para. 20, that:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. That is why this Court decided, most recently in H.L., that in the absence of a palpable and overriding error by the trial judge, his or her perceptions should be respected.

45In R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 81, the Supreme Court accepted that in sexual assault cases, “where the crime is often committed in private, there is little additional evidence, and articulating reasons for findings of credibility can be more challenging.”

The Distinction Between Credibility and Reliability

46Dr. Taliano submitted that the Committee’s reasons failed to do an adequate analysis of distinguishing between credibility and reliability and as a consequence focused too much on credibility and not enough on reliability. In considering this argument it is important to keep in mind the admonition from the Supreme Court in G.F., at para. 82, that:

Credibility findings must also be assessed in light of the presumption of the correct application of the law, particularly regarding the relationship between reliability and credibility ... However, under a functional and contextual reading of the trial reasons, appellate courts should consider not whether the trial judge specifically used the words “credibility” and “reliability” but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns ... Provided trial judges turn their mind to these considerations, there is no requirement that they utter the word “reliable”.

Uneven Scrutiny

47Dr. Taliano submits that the Committee over-scrutinized the details of the evidence he called and failed to resolve errors and inconsistencies in the College’s evidence. It is an error of law for a trier of fact to use a higher degree of scrutiny in assessing the credibility or reliability of evidence adduced by one party over that adduced by another party. Where this happens, a party is denied a fair hearing: Miller v. College of Optometrists of Ontario, 2020 ONSC 2573 (Div. Ct), at para. 30.

48In assessing Dr. Taliano’s submissions about uneven scrutiny, it is important to keep in mind the following:

(i) To succeed on such an argument, it is not enough to show that a different trier could have assessed credibility in a different way. Nor it is enough to demonstrate that a trier failed to say something that they could have said in assessing the respective credibility of a complainant and a defendant. Dr. Taliano must point to something in the reasons or the record that makes it clear that the trier has actually applied different standards in assessing the evidence of both parties: R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.), at para. 59; R. v. Radcliffe, 2017 ONCA 176, 347 C.C.C. (3d) 3, at para. 25, leave to appeal refused, [2017] S.C.C.A. No. 294; R. v. T.C., 2020 ONCA 469, at para. 27.

(ii) Appellate courts are not entitled to reweigh and reassess evidence unless the tribunal below has committed a palpable and overriding error. Appeals on the basis of uneven scrutiny of the evidence can often be disguised as attempts to engage in precisely this exercise. As put by the Court of Appeal in Radcliffe, at para. 23:

[A]ppellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinations and to re-try the case on an arid, printed record. [Citations omitted.]

(iii) It is within the discretion of the trier of fact to determine what areas of the evidence should be included in their reasons and a trier is not obligated to deal with every frailty in a witness’ evidence: T.C., at para. 25. As long as a trier has grappled with the substance of the issues, failure to mention some aspects of the evidence does not constitute an error: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64.

The Consultation Report from the Staff Psychiatrist

49Dr. Taliano argues that the Committee erred in law in its treatment of a consultation report from a staff psychiatrist whom Patient A saw in 2016 when he was admitted to the regional health system after a suicide attempt. In that report the staff psychiatrist wrote that Patient A told him that he had been sexually abused by his family doctor, that the doctor’s license was suspended two years later for sexually abusing another patient and that Patient A felt that this was punishment enough. During his testimony before the Committee, Patient A could not recall making the statements to the staff psychiatrist about his family doctor being suspended or his feeling that his family doctor had been punished enough. He also stated that he had no reason to believe that they were true. The Committee dealt with this apparent contradiction in the following manner:

[The staff psychiatrist] did not testify, and his medical records were not entered in evidence. The only sworn evidence with respect to what Patient A told [the staff psychiatrist] is that of Patient A, and we accept his evidence as truthful.

50Dr. Taliano submitted that the Committee erred in dismissing the consultation report in this way. According to Dr. Taliano the consultation report was admitted into evidence as a business record and, therefore, the record itself constituted evidence of the fact that Patient A made the statements that he denied making. Dr. Taliano argues that to find otherwise was an error in law.

51Dr. Taliano is correct that the consultation report was admitted into evidence as a business record and marked as an exhibit. However, when College counsel acknowledged that it was business record she stated:

Yes. The College acknowledges that this is a business record and we’re not requiring a custodian – a record holder from Niagara. But, I would note the evidence that’s before you, which is the statements in the record are inaccurate. So, we’re prepared to mark it as a business record, but not make any further admissions as to the accuracy of this document.

52After this, the Committee directed that the report be marked as an exhibit.

53The Committee stated that the staff psychiatrist’s medical records “were not entered in evidence.” To the extent that this statement refers to the consultation report this is incorrect. The report was admitted as a business record. As such it does stand as some evidence of what is recorded in the report. However, the weight to be given to such evidence was still within the discretion of the Committee. Given the statement made by College counsel when the record was entered into evidence and the fact that Dr. Taliano called no sworn evidence attesting to the accuracy of the impugned statements in the report, while Patient A gave sworn evidence that they were not accurate, it was open to the Committee to find that the report was not an accurate representation of the statements that Patient A actually made to the staff psychiatrist. This is particularly the case since the Committee would have known that Dr. Taliano was not suspended prior to the report by the staff psychiatrist to the College. never made.

54Further, if the Committee did commit any error in its treatment of the consultation report, it cannot be said that such an error would have impacted the result. Patient A did not deny telling the psychiatrist that he had been abused, which was the essential issue in the case. He could not recall telling the psychiatrist that his family doctor had been suspended and that he did not want to punish him any further. These two statements were on issues that were entirely tangential to the case. The failure to recall statements on tangential issues made in a stressful context such as a hospital is not a factor that would have any significant effect on the reliability assessment of a witness.

The Evidence of Patient A’s Mother

55Dr. Taliano submitted that the Committee also failed to grapple with the significant inconsistencies between Patient A’s mother’s evidence and Patient A’s evidence. In particular, Patient A’s mother testified that she asked Dr. Taliano if he thought it would be easier if she and Patient A’s sister left the room while he did the genital examination on Patient A and Dr. Taliano responded positively to the suggestion. Dr. Taliano also testified that it was Patient A’s mother who made the suggestion that she leave the room. When this was put to Patient A, he testified that he did not believe that this was accurate; his recollection was Dr. Taliano told his mother and sister to leave the room.

56Patient A testified that as they were leaving from the appointment his mother asked him how he felt and he responded by saying he felt violated and started crying. However, he did not tell his mother the details of what happened. In fact, he did not tell anyone the details of what happened prior to the College hearing. Patient A’s mother agreed that she did not initially know the details of what happened but she was sufficiently concerned that she called the College the next day and advised Dr. Taliano at her next appointment that her son had been upset (Dr. Taliano agreed this had happened). However, Patient A’s mother also testified that a couple of years later, in 2014, her daughter came to her and told her that Patient A had confided in his sister that Dr. Taliano had fondled his penis during the 2012 examination. After hearing this, she called the College again and also spoke to her son. Her son stated that he wanted no part of filing a report to the College and would not tell her the details of what happened.

57Thus, according to Dr. Taliano, Patient A’s mother’s testimony supported a significant aspect of Dr. Taliano’s evidence about what occurred during the examination and also called into serious question Patient A’s reliability. The Committee did not deal with these concerns.

58It cannot be said that these concerns rise to the level of palpable and overriding error. Who told whom to leave the room is not an important detail. What was important is whether Patient A consented to the examination and both Patient A and Patient A’s mother testified that he did not. Another important aspect of Patient A’s mother’s testimony is that she confirmed Patient A’s evidence that when Dr. Taliano re-entered the examination room he abruptly told Patient A to “drop his pants”, which shocked Patient A and caused Patient A’s sister to laugh “hysterically”.

59The fact that Patient A disclosed the details of the examination to his sister is also not an important detail. It may have been significant in the collusion analysis if he had disclosed the details to Ms. C. (Witness B’s friend), but there was no suggestion that Patient A’s sister was ever in touch with either Ms. C. or Witness B.

60To borrow a metaphor from Stratas J.A., at most these inconsistencies amount to leaves on a branch; they come nowhere near to bringing down the whole tree. As put by the Committee, “To the extent that Patient A’s reliability is challenged on peripheral details, the Committee viewed this as slight and not reflective of his overall evidence, which we accept.”

Lack of Exaggeration or Embellishment

61In the section of its reasons where the Committee assessed Patient A’s credibility and reliability it stated: “Patient A did not embellish or exaggerate his evidence.” According to Dr. Taliano, it was an error of law for the Committee to rely on lack of exaggeration or embellishment to support a finding that Patient A was credible.

62In making this submission Dr. Taliano relied on the decision of the Court of Appeal in R. v. Alisaleh, 2020 ONCA 597. In that case, the trial judge addressed the complainant’s credibility in the following manner: “There are two important factors that I find enhance [the complainant’s] credibility.” She then went on to explain that one of those factors was her view that the complainant had not embellished her evidence. According to the trial judge the complainant had given a “measured” and “understated” description of the assault.

63The Court of Appeal noted, at para. 13, that the Crown conceded “that the trial judge erred in finding that the complainant’s credibility was enhanced because she did not appear to exaggerate her allegations against the appellant.” The Court then stated, at para. 16:

To be clear, it is not an error to simply note that there is an absence of embellishment in the complainant’s testimony. This court has held that the presence of embellishment can be a basis to find the complainant incredible, and there is nothing wrong with noting the absence of something that could have diminished credibility. However, it is wrong to reason that because an allegation could have been worse, it is more likely to be true.

64In this case the Committee went no further than noting that Patient A did not embellish or exaggerate his evidence. They did not suggest that Patent A’s account of the assault was more credible because it could have been worse. Thus, it did not commit an error of law.

Witness B’s Interaction with the College Investigator

65Witness B testified that Dr. Taliano touched his penis while he was in the shower. He admitted on cross-examination that when he was interviewed by the College investigator in February of 2017 he did not tell the investigator that Dr. Taliano had touched his penis. According to Dr. Taliano, this was a significant inconsistency that the Committee did not deal with adequately. As such, it committed a palpable and overriding error.

66The Committee dealt with this inconsistency as follows:

Witness B in his interview with the College investigator did not disclose that Dr. Taliano had touched his penis. Witness B explained that he was embarrassed and ashamed and had not revisited the incident in detail before attending the interview. He was also very upset during his interview with the College investigator and broke down crying. The Committee accepts his explanation. He was [a] teenager at the time of the incident. The incident was deeply upsetting to him. This was apparent when he testified. He had not previously disclosed the details of what occurred – even to those close to him. In light of this, we do not find that there was any intent to deceive the investigator nor any attempt to embellish his account of what happened at the hearing. It is not surprising that Witness B felt uncomfortable disclosing these details to a stranger during the interview with the College, especially in light of the fact that he had not initiated communication with the College and had made no complaint to the College. We do not find that this omission negatively impacts on his credibility.

67Witness B gave an explanation for the inconsistency, the Committee considered that explanation and accepted it. Further, the Committee gave reasons for its acceptance of that explanation, reasons which must also be read in light of its earlier comments about assessing the credibility of witnesses who were sexually assaulted as adolescents but are adults when they are testifying about the events in question. As the Committee noted:

The Committee recognizes that sexual abuse of an adolescent is traumatic emotionally and may be associated with shame and humiliation. Reluctance to speak of it and delay in reporting is common. A complainant’s failure to make a timely complaint must not be the subject of any presumptive adverse inference based upon now-rejected stereotypical assumptions of how persons (particularly children) react to acts of sexual abuse (R. v. D.D., 2000 SCC 43 at para 63).

68Thus, the Committee’s acceptance of Witness B’s explanation that he was embarrassed, ashamed and upset during his interview with the College investigator was consistent with the type of emotions that the Supreme Court of Canada has recognized that adolescent victims of sexual abuse experience. The Court directed triers to take these emotions into account when assessing the credibility of witnesses who were abused as adolescents and in doing so to set aside any stereotypical assumptions about how victims of sexual abuse should behave.

69According to Dr. Taliano, Witness B’s explanation for the inconsistency should not have been accepted and if not accepted this should have caused the Committee to find that he was an unreliable witness, which in turn would have had a fatal impact on the case against Dr. Taliano with respect to Witness B’s allegation.

70The problem with this submission is that there is no basis for this Court to interfere with the Committee’s findings on this issue. Those findings were based on their observations of Witness B and on the guidance that the Supreme Court of Canada has provided regarding assessing the evidence of adult witness who are testifying about sexual abuse that occurred when they were adolescents.

Uneven Scrutiny

Inconsistencies

71Dr. Taliano submitted that the Committee treated the inconsistencies in his evidence very differently than how it treated the inconsistencies in the College’s evidence. In making this argument he again points to the inconsistency in Witness B’s evidence concerning whether his penis was touched during the encounter. As already noted, the Committee found that that inconsistency did not affect their assessment of Witness B’s credibility and reliability. This is in stark contrast to their treatment of the inconsistencies in Dr. Taliano’s evidence.

72It is true that the Committee had concerns about Dr. Taliano’s credibility because of inconsistent statements he made. Of particular significance to the Committee were Dr. Taliano’s statements to the College about the fact that he had no clinical record for the encounter with Patient A on August 29, 2012. The Committee found that Dr. Taliano did not reveal that the chart entry was missing when he first responded to the College on November 6, 2018. On that date he told the College that the scheduled appointments were for Patient A’s sister and mother. He then advised the College in July of 2019 that the note of Patient A’s examination was lost due to an administrative error due to the fact that Patient A did not have a scheduled appointment. In September of 2019 Dr. Taliano received Dr. Ferguson’s report in which she suggested that it was unusual to “fit in” a well child visit for an unscheduled visit. After that Dr. Taliano changed his story to say that Patient A did have a scheduled appointment. He also told the College that his previous explanation for the missing chart had been an error. As a result, the Committee stated that it was “troubled by the fact that Dr. Taliano made specific representations to the College as to why there were no medical note (no appointment scheduled), which he then subsequently admitted were not true.”

73In the case of Witness B, the Committee accepted Witness B’s explanation for the inconsistency and found that it was not intentional. It came to a different conclusion regarding the inconsistencies in Dr. Taliano’s statements to the College about the missing record. It did so because the most compelling evidence as to why Dr. Taliano changed his story when he did was the receipt of the report from Dr. Ferguson. In thc face of this evidence the Committee was entitled not to accept Dr. Taliano’s explanation for the inconsistencies in his statements about the missing record.

74It is clear that the Committee dealt with and analyzed each of the inconsistencies asserted against each of the witnesses. The fact that it was more troubled by the inconsistencies in the defence evidence than those in the College’s evidence does not mean that it subjected the former to an unfair level of scrutiny. There is no evidence that the standards applied by the Committee to analyze the College’s evidence were any different than the standards applied to analyze the defence evidence. In each case it made findings it was entitled to make, findings that were available to it on the evidence and that are entitled to deference from this court.

Hostility

75Dr. Taliano pointed to the Committee’s different findings regarding hostility as another example of uneven scrutiny. It found that Dr. Taliano’s hostility to Witness B’s mother (for threatening Mr. E.) was a concern. By way of contrast the Committee did not consider the email or text message between Patient A and Ms. C. in October of 2019 as relevant to his credibility. In that correspondence, Patient A indicated that he was “fucking fired up”, and that he hated Dr. Taliano and wanted him dead.

76With respect to the hostility displayed by Dr. Taliano to Witness B’s mother, the Committee had this to say:

• The thrust of [Dr. Taliano’s] evidence was often to shift the focus from what he considered to be a non-issue (i.e., the shower incident) to the threat to his family posed by Witness B’s mother. The Committee understands that someone in Dr. Taliano’s position, if facing a false allegation, might be defensive; however, his evidence went beyond this and appeared at numerous times to be purposely exaggerated, contrived, or misleading:
• Dr. Taliano testified that it was reported to him that Witness B’s mother said, “If you don’t do right by my daughter and her divorce, I will make your brother-in-law’s life hell over the shower incident”. Mr. E did not say anything about Witness B’s mother threatening to make his brother-in-law’s life hell over the shower incident.
• He used every opportunity to deflect the issue from the shower incident to the perceived threat made by Witness B’s mother. He described Witness B’s family as “despicable people” and accused them of extortion. ...

77The Committee viewed the hostility displayed by Dr. Taliano to Witness B’s mother as an example of a concern it already had with his testimony about exaggeration and attempts to deflect that. In the end this was one reason why it rejected his testimony. As already discussed, exaggeration is a legitimate reason to find a witness less credible. The Committee’s concern about Dr. Taliano exaggerating in his testimony was not limited to the hostility he displayed toward Witness B’s mother. It was also present in his account of what happened on the day in question.

78The Committee’s treatment of Patient A’s email or text exchange with Ms. C was as follows:

Patient A wrote that he was “fucking fired up”, that he hated Dr. Taliano and wanted him dead. “I’m so done with this fucking shit”. Patient A was challenged on these comments under cross-examination. He explained that he was frustrated at the time, and thought that Dr. Taliano was coming after him and going after his family’s medical and phone records. As his evidence shows, Patient A felt attacked. He explained that “wanting him dead” was a figure of speech. The Committee heard that this occurred around the time that the defense was seeking Patient A’s mental health records. While the language used is strong, the explanation and the circumstances at the time make the outburst of feeling understandable. We find no reason to support the conclusion that Patient A wanted to exact revenge on Dr. Taliano and that his evidence was fabricated as a result. While it is clear that Patient A was expressing animus towards Dr. Taliano at that time, such animus was not inconsistent with his account of what happened.

79Thus, in contrast to the view that the Committee took of Dr. Taliano’s hostility to Witness B’s mother, it found that Patient A’s hostility did not affect the credibility or reliability of his account of what happened during the event giving rise to the misconduct charges. Both findings were findings that the Committee was entitled to make; neither display any palpable or overriding error. A claim of uneven scrutiny cannot be sustained merely because a tribunal comes to a different conclusion about the effect on credibility of an issue like hostility with respect to one witness versus another.

Collusion

80The Committee properly instructed itself on the law regarding collusion. It then considered its application to both the College and defence witnesses. Ultimately it found no collusion involving the College witnesses, but it did have a concern about collusion involving the defence witnesses who testified regarding the Witness B incident. This, according to Dr. Taliano, is another example of uneven scrutiny.

81I disagree. The Committee found no collusion involving Ms. C. based on her evidence, and that of Patient A and Witness B:

• she did not disclose what Witness B told her before Patient A disclosed to her,
• she did not tell Witness B what Patient A said happened to him, and
• they did not discuss what happened.

By contrast, the Committee noted that

• Dr. Taliano admitted to talking to Ms. D. and Mr. E. about what they recalled happening after Witness B’s mother made her threat,
• Ms. D. and Mr. E. were inconsistent in how they characterized these discussions,
• it was not credible that the three of them remembered the details of an incident that was a “non-issue” as clearly as claimed, and
• they used strikingly similar language in their descriptions.

There was no palpable and overriding error in this forming the basis for the Committee’s finding that their evidence was tainted by collusion.

The Penalty Decision

82Dr. Taliano submits that the Committee erred in law by holding that its findings concerning the genital examination of Patient A constituted “masturbation” and revocation was therefore mandatory pursuant to s. 51(5) of the Code in effect at the time Dr. Taliano sexually abused Patient A. According to Dr. Taliano, in order for the impugned conduct to constitute masturbation, there must be a finding that Dr. Taliano stimulated Patient A’s genitals for the purpose of giving or deriving sexual pleasure. According to Dr. Taliano, the Committee made no such finding.

83In the Penalty Decision the Committee found that “masturbation is the attempt to sexually stimulate the genitalia”. This finding makes it clear that the touching must go beyond merely touching the genitalia. The touching must be done with the intent of stimulating sexual pleasure.

84The Committee then looked at the findings it made in regard to the incident in question. In doing so it noted that it accepted Patient A’s description of what had occurred during the examination of his genitalia. Its summary of Patient A’s description included the following:

According to Patient A, Dr. Taliano then proceeded to “play with my balls and stroke my penis.” When asked what he meant by “play with my balls”, he stated, “Just like moving them around, tickling them. Like, trying to get me off.” When asked to describe what he meant by “stroke my penis”, Patient A testified, “It’s like he was – grasped around the shaft and he was moving it up and down, like you would if you were trying to pleasure yourself.”

85Thus, the Committee accepted Patient A’s evidence that the purpose of the touching was to “try to get [him] off’ and that the nature of the touching was the kind that you would do “if you were trying to pleasure yourself.” These findings were a sufficient basis for the Committee to conclude that Dr. Taliano stimulated Patient A’s genitals for the purpose of giving or deriving sexual pleasure. As both parties admit, the fact that neither party may have derived sexual pleasure from the encounter is irrelevant.

86Furthermore, during the liability hearing, Dr. Taliano indicated that he was in no doubt that Patient A’s allegations amounted to masturbation. For example, he stated that he “had no idea that [Patient A] was going to create a story about me masturbating him”; he asked College counsel what she would expect to be in the missing clinical note, “Would you expect that in that note [sic] to say that I masturbated [Patient A]?”; and he asked rhetorically, “Do I disagree with his evidence? He said I masturbated him. Yes. I disagree with every word that comes out of his mouth.” It was only after the Committee accepted Patient A’s evidence that Dr. Taliano took the position that what was described was not masturbation.

87Dr. Taliano argued that his use of the word “masturbation” should have no impact on whether the conduct described was masturbation. Interpreting legislation requires the tribunals to, among other things, consider the words used in their “grammatical and ordinary sense”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, at para. 21. Dr. Taliano’s use of the word “masturbation” to describe what Patient A was alleging is consistent with a finding that the impugned conduct amounted to “masturbation” as that term is ordinarily used.

88For these reasons I find that Dr. Taliano has failed to demonstrate that the Committee committed an error in law in finding that his conduct towards Patient A constituted masturbation.

89Given this finding, there is no need to deal with Dr. Taliano’s second submission - that revocation was an unfit penalty. Suffice it to say that I would not find that the penalty was unfit.

Conclusion

90For these reasons the appeal is dismissed. As agreed by the parties, Dr. Taliano is to pay the College its costs of the appeal, fixed in the amount of $10,000, all inclusive.

H. Sachs J.

I agree _______________________________

Newton J.

I agree _______________________________

Davies J.

Released: June 20, 2022

CITATION: Taliano v. College of Physicians and Surgeons of Ontario, 2022 ONSC 3529

DIVISIONAL COURT FILE NO.: 387/21