CITATION: Carrasco v. College of Massage Therapists of Ontario, 2025 ONSC 4581

COURT FILE NO.: DC-24-00000100-0000

DATE.: 2025-08-18

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

Dominic Carrasco

Self-Represented

Appellants/Moving Party

• and -

College of Massage Therapists of Ontario

Erica Richler, for the Respondent/Responding Party

Respondent/Responding Party

HEARD: June 2, 2025, by Video Conference

AMENDED ENDORSEMENT

NOTICE OF PUBLICATION BAN - This is notice that the Divisional Court has continued a publication ban imposed by the Panel of the Discipline Committee which ordered that no person shall publish, broadcast or otherwise disclose the name of the client referred to during the hearing or in documents filed at the hearing commencing on July 29, 2024, or any information that would disclose the identity of the client, under section 47 of the Health Professions Procedural Code (the Code), which is Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18, as amended.

This Endorsement is an amended version of mine dated 8 August 2025, with amendments in bold italicised type.

THE MOTION

1The Appellant moves for an order:

a. Staying the 11 November 2024 Decision of the Respondent suspending his licence to practice;

b. Staying the mandatory revocation of his licence;

c. Ordering the Respondent to amend its website to delete the Discipline Committee’s Reasons for Decision, and be replaced by a copy of his Notice of Appeal filed 6 December 2024;

d. Permitting a Factum more than 30 pages.

2The Respondent consents to the request to submit longer facta than the Rules permit. It also consents to the motion being heard in writing.

A NOTE ON THE MATERIAL FILED.

3Mr. Carrasco filed his motion materials, and the College its Response. I then received a 63 page “Motion Record Reply of the Moving Party” in the Appellant’s Motion to Stay. That Record contains a very short Affidavit from the Appellant and attaches his submissions on penalty and costs that he sent to the Discipline Committee in lieu of attending.

4The College objected to the material being filed.

5None of the Affidavit provides proper evidence. In his Affidavit, the Appellant simply attaches his submissions. There is no suggestion that what is contained in it is true.

6The Appellant includes in his Reply Record an 18 paragraph Reply Factum, which I have accepted. Were the rule on Reply strictly applied I would not have allowed this Factum. It responds to arguments the Respondent advanced, none of which ought to have been a surprise to the Appellant. However, as the Appellant is self-represented I have relaxed the Rule and have read and considered the first 9 paragraphs of this Factum

7The balance of that Factum is restatement of arguments he made, or statemen afresh of arguments he should have made in his main submissions. I have ignored the balance of that Factum.

RESULT

8The Motion to file facta of more than 30 pages is granted.

9The balance of the Motion is dismissed. I set out a process for addressing costs at the end of this Endorsement.

BACKGROUND

10Since August 1994, the Appellant practices treatment-based deep tissue massage to alleviate chronic pain and pain from acute injuries.

11On 24 February 2020, the Appellant saw a client at the clinic for a massage. The client alleged that during the massage, the Appellant put his hands under the draping and touched her breasts.

12Before the session began, he and the client agreed that if she paid him cash, he would discount $20 off the $100 massage fee. She paid in cash; he did not record the discount on the receipt. He conceded at the discipline hearing that this amounted to improper record-keeping and billing.

The Complaint

13On 2 March 2020, the College received a complaint from the client that the Appellant had sexually assaulted her during the massage. The College commenced its investigation but paused it when the Appellant was criminally charged with sexual assault.

On 30 November 2020, the Appellant entered a voluntary undertaking with the College to practice under the supervision of another professional pending the completing of its complaints process.

The Acquittal

14On 28 July 2021, the Appellant was acquitted of the criminal charges. The Ontario Court of Justice Judge hearing the trial did not find the client credible. He found the Appellant credible.

15After the completion of the criminal proceedings, the College resumed its investigation on the finish of the criminal process.

The Discipline Process

16After its investigation, the College’s Inquiries, Complaints, and Reports Committee referred the allegations of professional misconduct to the Discipline Committee in a decision dated 23 March 2023, and on 3 April 2023, the College issued a Notice of Hearing.

17The hearing was adjourned many times, each time at the Appellant’s request. The first time it was adjourned so that he could retain and instruct counsel. The new hearing date was set for 15 August.

18The Appellant made his second request for an adjournment on 19 July 2023 when he asked for 15 August hearing date to be adjourned so that he could retain and instruct counsel. This request was denied. At the hearing, however, that chair adjourned the hearing to November 2023 so that he could retain and instruct counsel.

19The third request was made at a Case Management Conference on 24 November 2023, because the Appellant still had no counsel. The hearing was scheduled for April 2024.

20The third request was made on 13 February 2024, when the Appellant’s counsel requested an adjournment until August 2024, so the Appellant could raise funds for legal representation. The College did not oppose and the adjournment was granted. In his Case Management Direction dated 23 of February 2024, the chair wrote that he granted the adjournment reluctantly.

21On 10 June 2024, the Appellant’s then counsel removed himself from the record which resulted in the College requesting an immediate Case Management Conference about whether the Chair should appoint a representative to cross-examine the client given that the Appellant was without counsel. At the CMC, the Appellant made his fourth an adjournment request so that the pro bono counsel assisting him could be present. The Chair directed that the issue of appointing counsel to cross-examine the client should be addressed in writing. On 21 June 2024, the chair made an order counsel be appointed to cross-examine the client.

22At a CMC held on 28 June 2024, the Appellant asked a fifth time for an adjournment because he retained new counsel who was unavailable for the scheduled hearing dates. This request was denied with respect to the first hearing day with leave to address the hearing chair about adjourning the other hearing dates. The client was scheduled to give evidence on the first day. The Chair reasoned that it was, on balance, important to have the client’s evidence taken. The College will appoint counsel on that day with whom the Appellant could have spoken. By allowing the Chair at the hearing to

adjourn the balance of the hearing, the CMC chair did not prejudice the Appellant’s retaining counsel. The Appellant’s next lawyer removed herself from the record and the Appellant retained one of the hearing office’s suggested options as his defence counsel.

23The Appellant requested a sixth adjournment on 25 July 2020, so that he could bring a motion on an evidentiary question before the hearing; namely, whether the client could be cross examined on the criminal trial judge’s reasons. The Chair at the CMC ruled that motion could be dealt with at the beginning of the hearing. The CMC chair also noted the number of adjournment requests already and the importance that the hearing move forward in a timely way, in the public’s client’s and Appellant’s interest.

24The hearing took place on July 29, 30, August 1, 19, 20, 22, 2024. The client was represented by appointed counsel.

The Discipline Committee’s Decision

25In its 11 November 2024 decision, the panel found that the Appellant engaged in professional misconduct for sexually abusing the client by reaching under her draping and touching her breasts, and for billing and record-keeping misconduct. The Committee then made an interim suspension order as required under sub section 51 (4.2)(c) of the College’s Health Professions Procedural Code, pending the penalty hearing.

26On 9 December 2024, the Appellant served and filed his Notice of Appeal. The order suspending his Certificate of Registration remained in effect despite the appeal pursuant to section 71.1 of the Code. The Appellant did not seek a stay of the discipline committee’s order at that time.

27On 16 January 2025, the Appellant advised the College that the Public Register Profile on the College’s website had not yet been updated to reflect that he had appealed the Discipline Committee’s decision. The College rectified this, immediately, in accordance with section 23 of the Code. The Appellant asked the College to take down the Discipline Committee’s decision. The College explained that they could not since the decision was part of the public record and was published, to ensure transparency and serve the public interest. The College advised that if the decision is overturned or varied by the Divisional Court than the register would be updated.

28A penalty and costs hearing was held on 6 February 2025, which the Appellant did not attend despite being provided notice. In reasons released on 27 February 2025, the Discipline Committee ordered the mandatory revocation of the Appellant’s Certificate of Registration pursuant to section 51 (5) of the Code, and imposed a reprimand, ordered reimbursement of the cost of the therapy, and costs. The revocation of the Appellant’s Certificate of Registration was not stayed pending appeal and the Appellant did not ask the Discipline Committee for a stay pending appeal.

29This Motion for a Stay was served on 18 February 2025, more than two months after the Appellant served his notice of appeal.

ISSUES

30There are two live issues on this motion:

a. Should this Court stay the 11 November 2024 Decision of the Discipline Committee suspending the Appellant’s licence to practice and the mandatory revocation of his licence;

b. Should this Court order the College to amend its website to delete the Discipline Committee’s Reasons for Decision and replace it with a copy of his Notice of Appeal filed 6 December 2024.

c. Should leave be granted on this motion to file Facta of more than 20 pages? The parties agree to the extension of the length of Facta.

RESULT

31The motion for leave to allow Facta of more than 20 pages is allowed on consent.

32The motion is otherwise dismissed.

ANALYSIS

1. Stay

33Under Rule 63.01(1), the filing of a Notice of Appeal automatically stays those parts of the order appealed from that order the payment of money. There are exceptions which do not apply here. Any party wishing to stay portions of the judgment appealed from that do not order the payment of money must apply for a stay under Rule 63.02.

34The tests for a stay under Rule 63.02 is that set out in RJR-MacDonald Inc. v.

Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, namely: the moving party must show:

a. There is a serious issue to be tried;

b. The moving party will suffer irreparable harm if the stay is not granted; and

c. The balance of convenience favours granting the stay.

35These considerations are interrelated. The strength of one factor may assist a weaker factor. The overarching issue is whether it is in the interests of justice to grant the stay. See: Louis v. Poitras, 2020 ONCA 815 at para. 16.

36This case must be considered in the context of the zero-tolerance approach to sexual abuse by health professionals under the legislation. See: Aboujamra v. The College of Physicians and Surgeons of Ontario, 2023 ONSC 1136 at paras. 25 and 29. The Code reflects this zero-tolerance approach. See, for example:

a. Sexual abuse is defined broadly and includes touching of a sexual nature (Code, S.1);

b. The Code imposes mandatory penalties following a finding of sexual abuse. A reprimand and suspension are a minimum. For certain kinds of sexual abuse, including touching breasts in a sexual nature, revocation is mandatory (Code, s. 51(5);

c. Where suspension and revocation orders are made, they take effect immediately despite any appeal (Code S.s 71 and 71.1);

d. Health Colleges must provide funding for therapy and counselling to complainants (Code, s. 85.7);

e. Health professionals must report sexual abuse to the College (Code s. 85.1).

f. The Code says at s. 1.1:

The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling in connection with allegations of sexual abuse by members and, ultimately, to eradicate the sexual abuse of patients by members.

A. There is a Serious Issue to be Tried

37Under this branch of the test, the threshold for whether there is a serious issue to be tried is low. The issue must not be vexatious or frivolous. This question is answered

applying a “common sense and an extremely limited review of the case on the merits.” A prolonged examination of the merits is neither necessary nor desirable.

38The College concedes that this low threshold is met. It argues, however, that the issues in the Appeal are not strong issues to be tried. The Appellant argues that the College’s breach of procedural fairness, generally, the refusal to adjourn to permit the Appellant to retain counsel of choice, the refusal to adjourn to permit College-appointed counsel to come up to speed, a rushed defence which meant that the defence was not able to put all its evidence before the panel, the panel’s “misuse” of the Appellant’s admissions, and various errors of law and evidence, mean that the issues are very serious.

39Mr. Carrasco’s submissions invites this Court to do exactly what it is told by the Supreme Court to not do; namely, conduct a prolonged and detailed examination of the merits.

40Even were this Court willing to conduct the analysis that the Appellant wants done, the Appellant’s evidentiary basis for his analysis is his Affidavit filed on this Motion. Such an analysis, if required, is to be done on the transcript. The full transcript is not provided. The analysis the Appellant wants, were it to be done, cannot be done.

41Accordingly, while the Appellant meets the low threshold easily, I cannot determine the strength of the issues to be tried on the record before me other than to say they are not frivolous or vexatious. Therefore, this is a neutral factor weighing for nor against the stay.

B. Will the Appellant suffer Irreparable Harm?

42Irreparable harm must be more than loss of income or financial loss. Were this the standard, then every case in which the moving parties suffer a loss of income would meet the test. Indeed, in a professional disciplinary matter where there is a suspension or revocation of licence, economic losses are to be expected. See: Aboujamra, supra, at para. 17 to 18; Kitmitto et al. v. Ontario Securities Commission, 2023 ONSC 1739 at para. 13.

43Emotional harm, reputational harm, and psychological attachment to a profession will almost always exist in a professional discipline case, something more must exist, otherwise, irreparable harm as a consequence would always exist and weigh in favour of granting a stay. See: Sazant v. College of Physicians & Surgeons (Ontario), 2011 CarswellOnt 15914 (ONCA) at para. 13; Noriega v. College of Physicians and Surgeons of Ontario, unreported, October 22, 2015 (Div. Ct.) at para. 26; Aboujamra, supra, at paras. 18-20, Kitmitto, supra, at para. 14; Doe v. College of Physicians and Surgeons, 2021 ONSC 7550 at para. 12. These kinds of harm are not irreparable. They are addressed by vindication on appeal. See Doe, supra, para. 12.

44Irreparable harm must be harm that is incapable of quantifying, or which cannot be cured because one party cannot collect damages from the other. It is the nature of the harm that is to be considered, not its magnitude. Evidence of irreparable harm must be clear and not speculative, so too the evidence that the moving party will suffer it. Evidence of possible or likely harm is not enough. See: Sazant at para. 11; Noble v. Noble, 2002 CarswellOnt 4445 (ONSC) at para. 16; Kitmitto, supra, at para. 13.

45Mr. Carrasco states he has suffered serious harm. He faces bankruptcy, although he is trying to delay that event. He says that he has borrowed money from his family but they say that they can no longer provide him with money. Finally, he has few assets to call upon.

46Bankruptcy, alone, does not constitute irreparable harm, unless, for example, it would destroy a commercial business, for example. The possibility of bankruptcy and speculative evidence about how bankruptcy will affect the moving party is not enough. See: Aboujamra, supra, at para. 18.

47The threshold for establishing irreparable harm is high. See: Barnwell v. LSO, 2024 ONSC 5826 at para. 16.

48The Appellant has presented no convincing evidence that he cannot work in any other place or that the financial consequences he faces will be borne by other family members, for example. Indeed, he has not provided evidence that he will be going bankrupt.

49Delay also works against the Appellant’s claim of irreparable harm. Generally, a stay motion must be brought at the earliest opportunity, which is usually between when the decision appealed from is released and when the appeal is commenced. See: Law Society of Ontario v. A.A., 2024 ONSC 2681 at para. 27. In this case, the Appellant brought his motion to stay 3 months after the decision appealed from and 2 months after commencing his appeal. Much of the economic impact he alleges as creating irreparable harm, occurred during this delay period. It is not appropriate to consider as irreparable harm under the stay analysis, harm incurred by the Appellant’s own lack of diligence.

C. The Balance of Convenience

50Under this leg of the test, the court must balance the prejudice to the moving party of not granting the stay against the prejudice to the responding party in granting it. In a case involving professional discipline, it is the public’s interest that must be balanced against the moving party’s. See: Yazdanfar v. College of Physicians and Surgeons of Ontario, 2012 ONSC 2422 at paras. 67-68.

51In this leg of the test, the public interest is paramount. Schabas, J. words at para.

38 of Kitmitto are appropriate here:

The balance of convenience favours the public interest over the private interests of the moving parties in not staying the market participation bans pending the appeals. To continue the interim stay would ignore the fundamental change in circumstances brought about by the Tribunal’s findings about each of the moving parties, the legislative direction that sanctions are not to be delayed absent meeting the test for a stay, the limits on supervision of Goss, and the need to preserve public confidence in the administration and enforcement of the Securities Act.

52Prior to his being found to have breached the Code of Conduct, the Appellant faced only allegations. Things are different, now - he has been found to have engaged in professional misconduct. His conviction is for acts which are viewed by his regulator as being sufficiently heinous as to merit cancellation of his licence. A stay would undermine public confidence in the self-regulation of members of his profession and other similar professions. See: Aboujamara, supra, at para. 25.

53Finally, the Appellant faces the presumption that the decision was correct until he succeeds on the appeal.

54The Appellant argues that he will suffer prejudice because of the suspension because he cannot continue to serve his clients in a field built on trust between the client and the service provider. It is an inherently personal profession requiring consistent client engagement over long career to build trust and loyalty between the client and service provider.

55The determination by the College that the Appellant had engaged in professional misconduct caused that damage, not the stay.

D. Balancing the Factors

56As indicated, the issue to be tried is admitted but it is a neutral factor on the record before me, or only weighing slightly in favour of the stay. The irreparable harm weighs weakly in favour of the stay. The overriding factor is the balance of convenience. Imposing a stay weights heavily in favour of not granting a stay, so heavily that it outweighs the other factors.

2. Amending the Web Page

57Notwithstanding that the Appellant sought an order that the College remove the link on its web page to the decision concerning the Appellant, he does not advance any argument in that respect. I address this argument, nonetheless.

58The College is required to post the discipline decision and reasons under sections 23 and 56 of the Code and s. 7(o) of the College’s By-Law No. 8. There is no regulatory of Code requirement to post a Notice of Appeal. It is required to post notice that an Appeal from the Discipline Committee was taken, which the College did once the Appellant brought to the College’s attention that it did not post such a note.

59It is in the public interest to post such decisions and the fact that Appeals have been taken.

COSTS

60The College has been successful and is presumed entitled to its costs of this motion. I will address who pays whom costs and in what amount based on written submissions limited to 3 double spaced, type-written pages (excluding Bills of Costs and Offers). The College’s shall be served and filed by 4 pm, 22 August 2025, and the Appellant’s by 4 pm, 5 September 2025.

Trimble, J.

Released: August 18, 2025

CITATION.: Carrasco v. College of Massage Therapists of Ontario, 2025 ONSC 4581

COURT FILE NO.: DC-24-00000100-0000

DATE.: 2025-08-18

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Dominic Carrasco

Appellant/Moving Party

- and –

College of Massage Therapists of Ontario

Respondent/Responding Party