College of Massage Therapists of Ontario v. Michel Sarkis, 2025 ONMTDT 10

ONTARIO MASSAGE THERAPISTS DISCIPLINE TRIBUNAL

BETWEEN:

College of Massage Therapists of Ontario

College

• and -

Michel Sarkis

Registrant

REASONS FOR DECISION

Heard: March 6, 2025, by videoconference

Panel:

Sherry Liang (panel chair)

Bobbie Flint (massage therapist)

Charles Gollob (massage therapist)

Brian Highgate (public)

Jalpa Patel (public)

Appearances:

Renée Kopp, for the College

No one appearing for the Registrant

RESTRICTION ON PUBLICATION

The Ontario Massage Therapists Discipline Tribunal ordered, under s. 45(3) of the Health Professions Procedural Code, that no one may publish or broadcast the name of the clients and/or any information that would disclose the identity of the clients referred to during the hearing or in any documents filed at the hearing. There may be significant fines for breaching this order.

Following the hearing of this matter but prior to the release of these reasons, the Discipline Committee was renamed the Ontario Massage Therapists Discipline Tribunal (OMTDT). The OMTDT is the Discipline Committee established under the Health Professions Procedural Code.

INTRODUCTION

1At the time of the events, Michel Sarkis was a registrant of the College of Massage Therapists of Ontario (the College), practising at various locations north of Toronto.

2The College alleges that the registrant sexually abused a client by touching her in a sexual manner and engaging in behaviour of a sexual nature and that his conduct amounts to physical abuse of a client. It alleges that he contravened published standards of the College, including those relating to maintaining professional boundaries and preventing sexual abuse, and that he failed to keep records as required. The College also alleges that by his actions, the registrant engaged in conduct that members of the profession would reasonably regard as disgraceful, dishonourable or unprofessional.

3The registrant and his counsel were not present for the hearing of this matter. The College provided the panel with an Agreed Statement of Facts (ASF) signed by the registrant and advised that the registrant was content to have the hearing proceed without him or his counsel and would be available at the conclusion for a reprimand, if any.

4In the ASF, the registrant admitted that his actions described in the agreed facts constitute professional misconduct as alleged. Based on the agreed facts and after hearing the College’s submissions, the panel found that the registrant committed professional misconduct. We accepted the parties’ joint submission on penalty and costs, which included the legislated mandatory penalty terms of revocation and a reprimand. The registrant joined the hearing for the purpose of receiving the reprimand.

BACKGROUND

5The facts underlying the allegations are described in the ASF. In May 2019, a female client (Client 1) received massage therapy from the registrant at one of the locations at which he worked. In late 2020, the registrant was arrested and charged with one count of sexual assault against another client. As a result of the police investigation, the registrant was eventually charged with five counts of sexual assault, including one count in relation to the massage therapy appointment with Client 1 in May 2019.

6In late 2020, the registrant resigned his certificate of registration while under investigation. He later signed an undertaking to never re-apply for registration. The Notice of Hearing in this matter was referred to the tribunal in 2020 and the matter was held in abeyance pending the disposition of the criminal proceeding.

7In late 2023, before the Ontario Court of Justice and pursuant to a joint submission, the registrant pled guilty to and was convicted of one count of sexual assault, that relating to Client 1. The trial judge accepted the agreed facts presented by the Crown to the effect that, during the massage therapy session in May 2019, the registrant:

• exposed Client 1’s buttocks, leaned on them, then massaged them in a manner that resulted in significant bruising;

• leaned against Client 1’s side with an erect penis while touching her buttocks and aggressively massaging the side of her breasts for a sexual purpose and without her consent.

8The touching and behaviour described above was sexual in nature and was not of a clinical nature appropriate to the service provided.

FINDINGS OF PROFESSIONAL MISCONDUCT

The registrant committed sexual abuse

9Sexual abuse of a patient is professional misconduct under section 51(1)(b.1) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18 (the Code). The Code defines “sexual abuse” to mean sexual intercourse or other forms of physical sexual relations between a member and a patient, touching of a sexual nature of a patient by a member, or behaviour or remarks of a sexual nature by a member towards a patient. Touching of a “sexual nature” does not include touching of a clinical nature appropriate to the service provided.

10By exposing Client 1’s buttocks, leaning on them and massaging them in a sexual manner and not in a clinical nature appropriate to the service provided, the registrant committed sexual abuse within the meaning of the Code. His actions in leaning against Client 1 with an erect penis while touching her buttocks and aggressively massaging the side of her breasts for a sexual purpose and without her consent also constitute sexual abuse.

The registrant contravened published standards of the College

11Under s. 26(1), para. 9 of O. Reg. 544/94 made under the Massage Therapy Act, 1991, S.O. 1991, c. 27 (the Regulation and the Act) (para. 6 of s. 26 at the time of the events), contravening a published standard of the College is an act of misconduct. The College alleges and the registrant admits that he contravened the College’s published standards for Maintaining Professional Boundaries and Preventing Sexual Abuse, Consent and Client Health Record, in effect at the time of the events.

12The registrant’s conduct contravened the standard on Maintaining Professional Boundaries and Preventing Sexual Abuse in several ways. The standard prohibited sexual abuse of clients. Since we found that the registrant sexually abused Client 1, his actions contravened this prohibition. The standard also required registrants to apply appropriate and secure draping measures or techniques. The registrant contravened the standard when he exposed Client 1’s buttocks without a clinical purpose.

13The standard further required that treatment of sensitive areas (defined to include the breasts and gluteal region) be clinically indicated, done with proper draping and with prior written informed consent. The registrant contravened the standard when, among other things, he exposed the client’s buttocks and massaged her breasts and buttocks without a clinical indication or her consent. By his actions, the registrant also contravened the College’s Communication/Public Health Standard 7: Consent, requiring that registrants obtain a client’s consent to perform assessment/reassessment or treatment.

14The College’s Communication/Public Health Standard 14: Client Health Record sets out required elements of a client health record, including:

• areas treated

• informed consent

• updated health history and treatment information as obtained.

15The parties agree that the records for Client 1 were incomplete and did not contain documentation and notes regarding patient history, general health, medications, consent for assessment and treatment of sensitive areas (glutes) and accurate details of the treatment areas. We find that the registrant contravened the standard on the Client Health Record when he failed to include these required elements.

The registrant committed physical abuse

16Under s. 26(1), para. 11 of the Regulation (para. 8 of s. 26 at the time of the events), physical abuse of a client is an act of misconduct. The College submits that the registrant’s actions constitute physical abuse. We find that in sexually abusing the client, he violated her physical integrity. Moreover, in this case, there is evidence of excessive force. We are satisfied that in sexually abusing Client 1 by, among other things, massaging her buttocks and breasts in a forceful manner and without consent or clinical indication, the registrant physically abused her.

The registrant failed to keep records as required

17Paragraph 5 of s. 26(1) of the Regulation (para. 26 of s. 26 at the time of the events) includes as an act of misconduct “failing to keep records as required.” Under s. 7(1) of the Regulation, registrants must take all reasonable steps necessary to ensure that records are kept as required, including keeping a client record with specific elements broadly mirroring those in Standard 14. These elements include the client’s relevant medical history and particulars of the treatment applied at each visit. For the same reasons we found the registrant in contravention of Standard 14, we find that he engaged in misconduct under this part of the Regulation by failing to keep records as required.

The registrant’s conduct was disgraceful, dishonourable or unprofessional

18We find that the registrant’s conduct would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, under para. 44 of s. 26 (now para. 38 of s. 26(1)) of the Regulation. His actions were an abuse of power and took advantage of a client in a vulnerable position for his own sexual gratification. It is conduct that members of the profession would reasonably view as morally repugnant, not to mention unprofessional.

CONCLUSION ON FINDINGS OF MISCONDUCT

19In sum, we find that the registrant sexually abused a client by touching her in a sexual manner and engaging in behaviour of a sexual nature. His conduct also amounts to physical abuse of the client. He contravened published standards of the College relating to maintaining professional boundaries and preventing sexual abuse, consent and the client health record. The registrant failed to keep records as required under the Regulation. We are satisfied that the registrant engaged in conduct that members of the profession would reasonably regard as disgraceful, dishonourable or unprofessional.

PENALTY AND COSTS

20The parties jointly submitted that the registrant be reprimanded, his certificate of registration be revoked, that he reimburse the College for funding provided to Client 1 under the program established pursuant to section 85.7 of the Code and that he pay costs of $5,852 to the College, in installments.

21As the College submitted, our role is limited when the parties agree on a penalty. We should only depart from a joint submission if the proposed penalty would bring the administration of justice into disrepute or is otherwise not in the public interest: R. v. Anthony-Cook, 2016 SCC 43. We are satisfied that the proposed penalty would not bring the administration of justice into disrepute and is not contrary to the public interest.

22Having concluded that the registrant sexually abused a client and that the sexual abuse consisted of touching of a sexual nature of the client’s breasts and buttocks, section 51(5) of the Code requires us to reprimand the registrant and revoke his certificate of registration. These are mandatory penalty terms which reflect the Code’s purpose of eradicating sexual abuse and the extremely serious nature of such conduct, and we order them here.

23Under section 85.7 of the Code, the College has established a program to provide funding for therapy and counselling for clients who allege sexual abuse by a registrant. The parties jointly submitted and we find it appropriate to order that the registrant reimburse the College for funding that may be provided to Client 1 under that program. The client’s victim impact statement, read to the court during the criminal proceeding, states that she has sought therapy and provides evidence to support the order of reimbursement.

24The parties jointly submitted, and we order, that the registrant pay costs of $5,852 to the College within 12 months of the date of our order, payable in 11 installments of $500 and one of $352. The amount corresponds to the standard rate for the costs and expenses of a half-day hearing pursuant to Rule 10.02 and Tariff A of the Discipline Committee Rules. We are satisfied that the proposed costs award is reasonable and reflects the principle that the College’s registrant base as a whole should not bear the entire expense of a proceeding that results in a finding of professional misconduct.

ORDER

25We made the following order on penalty and costs:

1. The Registrant is required to appear before a panel of the Tribunal to be reprimanded, with the fact of the reprimand and the text of the reprimand to appear on the public register of the College;

2. The Registrar is directed to immediately revoke the Registrant’s Certificate of Registration;

3. The Registrant is required to reimburse the College for funding provided to Client 1 under the program required under section 85.7 of the Code; and

4. The Registrant is required to pay the College costs in the amount of $5,852 within 12 months of the date of the Tribunal’s order, in 11 monthly payments of $500, plus one payment of $352.