ONTARIO MASSAGE THERAPISTS DISCIPLINE TRIBUNAL

Date: April 28, 2025

Tribunal File No.: 190130-0101

BETWEEN:

College of Massage Therapists of Ontario

College

• and -

Jeffrey Pitts

Registrant

REASONS FOR DECISION

Heard: March 17, 2025, by videoconference

Panel:

Jennifer Scott (panel chair)

Brian Highgate (public)

Jennifer McGill (massage therapist)

Howard Shears (public)

Jayne Webster (massage therapist)

Appearances:

Anastasia-Maria Hountalas, for the College

No one appearing for the registrant

Maureen Salama, appointed representative to cross-examine the client

RESTRICTION ON PUBLICATION

The Ontario Massage Therapists Discipline Tribunal ordered, under ss. 45(3) and 47 of the Health Professions Procedural Code, that no one may publish or broadcast the name of the client and/or any information that would disclose the identity of the client 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

1The College of Massage Therapists of Ontario (the College) alleges the Registrant, Jeffrey Pitts, engaged in sexual and physical abuse of a client (the Client) during a massage therapy session in 2018, breached the College’s standards of practice, and engaged in conduct that was disgraceful, dishonourable or unprofessional.

2On February 14, 2025, the Tribunal ordered that a representative (the Representative) be appointed to cross-examine the Client pursuant to Rule 9.08(3) of the Discipline Committee Rules because the Registrant was self-represented.

3The hearing commenced on March 17, 2025. The Registrant was not in attendance. After reviewing the correspondence between the College and the Registrant and between the Representative and the Registrant, we found the Registrant received proper notice of the hearing and chose not to attend. We deemed the hearing to be a contested hearing and proceeded in his absence. We released the Representative because the Client would not be cross-examined given the Registrant’s decision to not participate in the hearing.

4The Client was the sole witness. The College also filed the Maintaining Professional Boundaries and Preventing Sexual Abuse Standard (the Boundaries Standard) and Communication/Public Health Standard 14: Client Health Record (the Client Health Record Standard) in effect at the time of the alleged conduct.

5After considering the evidence before us, we find the College has proved the misconduct on a balance of probabilities, based on clear, convincing and cogent evidence.

BACKGROUND

6The Registrant was a Registered Massage Therapist (RMT) in 2018 and practised at a massage therapy clinic (the Clinic).

7In September 2018, the Client attended a massage therapy appointment with the Registrant. The Registrant provided a full body massage and treated the Client’s gluteal area and inner thighs.

8The College alleges the Registrant failed to obtain written consent as required for the treatment of the Client’s gluteal area and inner thighs, offered unprompted to treat all four of the Client’s sensitive areas (chest wall, breast, upper inner thigh and gluteal region), lifted up the Client’s legs causing the draping to fall and expose her genitals and/or looked at her exposed genitals, and brushed his groin area against the Client’s head.

THE EVIDENCE

THE CLIENT’S EVIDENCE

9The Client testified she scheduled a massage because she was experiencing neck and shoulder pain relating to migraines. She went to the Clinic and filled out a health history form where she indicated her primary complaint was neck and shoulders, and migraines were a serious medical condition.

10At the beginning of the session, the Client testified the Registrant asked her if she wanted a full body massage, and she said that she did. She testified further that he asked her if she knew a full body massage included treatment of her inner thighs, buttocks, abdominals and chest. The Client said she was not interested in having her breasts and abdomen massaged. The Client testified she gave verbal consent to have her buttocks, inner thighs and upper chest (clavicle area) massaged. She said the Registrant did not ask her to sign a written consent form for the treatment of sensitive areas and she did not sign such a form.

11While the Registrant was out of the room, the Client undressed completely and got under the draping on the massage table, face down. The Registrant re-entered the room and started working on her feet and moved up to her inner thighs. He then started to work on her buttocks. The Client testified the Registrant spent a lot of time on her buttocks and it was painful because of the amount of pressure that he was using. She said the Registrant started to breathe heavily. She said she was unsure why he paid so much attention to her buttocks when that was not her issue.

12The Client testified that while she was lying face down, the Registrant stood at the top of the treatment table and leaned over her body to massage her lower back. His groin area touched her head a couple of times. She said she knew it was his groin because it was less dense and had less resistance than a stomach or thighs. She testified she became frightened.

13The Client testified the Registrant asked her to turn over. He told her that he needed to put a pillow under her legs, and he lifted her legs up ninety degrees. The Client testified the draping was loose and she could feel air on the backs of her legs and her private area was exposed. The client said her eyes were closed and she believed the Registrant was “taking a peek” at her exposed private area. She said there was no other reason for him to lift her legs that high. The Client testified she was embarrassed, ashamed and confused.

14The Client testified that while standing behind her, the Registrant used massage oil to massage her upper chest area, shoulders and the back of her neck. She said his groin area touched the top of her head three times and each time it stayed there for about five seconds. The Client testified she wanted the massage to end so she could leave.

15The massage concluded and the Registrant left the room. The Client got dressed. The Registrant walked her out and she made another appointment with him. She did not go to that appointment. Her next appointment at the Clinic was with a female massage therapist.

16The Client made a complaint to the College about the Registrant’s conduct.

THE STANDARDS

17The College relies on the Boundaries Standard and the Client Health Record Standard. The key elements of these published standards are described below.

Boundaries Standard

Draping

18RMTs must apply necessary draping measures securely to set clear physical boundaries that separate the areas of treatment and the areas where no touch will be applied throughout treatment; verify client safety, sense of security and comfort level with draping/positioning measures; and ensure that only the area of the client’s body that is actively receiving assessment or treatment is uncovered (with the exception of the face and head).

Preventing Sexual Abuse

19This standard reiterates the statutory definition of and prohibition against sexual abuse and sets out the College’s zero tolerance approach towards sexual abuse.

Treatment of Sensitive Areas of the Body

20Standard B1 states the treatment of sensitive areas is a high-risk activity for the profession. RMTs must only treat sensitive areas if the treatment is clinically indicated, proper draping methods are used, treatment is discussed in advance with the client, and written informed consent is obtained. The standard states that where treatment of a sensitive area is clinically indicated, the RMT shall initiate a discussion of risks, benefits and alternatives to treatment and the client must request the massage of the sensitive area and provide further written consent prior to treatment.

21Standard B states RMTs must use secure draping techniques and ensure that drape boundaries properly protect the client from exposure of the genital area and the gluteal cleft without exception.

Client Health Record Standard

Recording Consent

22The Client Health Record Standard sets out the minimum requirements for the client health record and requires RMTs to record a client’s consent to treatment.

LEGAL FRAMEWORK

Burden of Proof

23The burden of proof is on the College to prove the allegations of misconduct. The standard of proof is the civil standard. This means the College must prove the allegations on a balance of probabilities based on clear, convincing, and cogent evidence. The seriousness of the alleged conduct and the consequences of a finding do not alter the standard of proof: F.H. v. McDougall, 2008 SCC 53at paras. 40 and 45-49.

Credibility and Reliability

24Credibility refers to a witness’ sincerity and willingness to tell what they believe to be the truth. Reliability, on the other hand, relates to the ability of the witness to accurately observe, recall and recount the events in question. Both elements must be considered when assessing the credibility of a witness: Stefanov v. College of Massage Therapists of Ontario, 2016 ONSC 848 (Div. Ct.) at para. 65.

25While there is no exhaustive list for assessing credibility and reliability, the following factors can be considered: Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053:

a. the witness’ opportunity to observe events;

b. the witness’ interest in the outcome;

c. any bias on the part of the witness;

d. whether the witness’ evidence accords with common sense/the probability or improbability of the witness’ story;

e. whether the witness’ evidence was consistent with other evidence;

f. whether the witness’ evidence was internally consistent; and

g. the appearance and demeanour of the witness.

26Applying these factors, we find the Client was a credible and reliable witness. She was able to recall the events in question in a clear and concise manner and described in detail what she heard and felt during the treatment. Her evidence was consistent with the documentary evidence, specifically the health history form and the Registrant’s clinical notes. For example, in his treatment notes, the Registrant wrote “verbal consent glutes, inner thighs, upper chest.” This is consistent with the Client’s evidence. The Client also testified that she did not give written consent for the treatment of sensitive areas. This is also consistent with the documentary evidence – there is no written consent in the Registrant’s records.

27Finally, the Client’s description of the sequence of the Registrant’s conduct is probable and internally consistent. There was nothing in the client’s evidence that suggested she had a particular interest in the outcome of this proceeding. Finally, there is no contradictory evidence by the Registrant because he chose not to attend the hearing.

FINDINGS

Breach of Boundaries Standard

28Under section 26, paragraph 6 of Ontario Regulation 544/94 under the Massage Therapy Act, 1991, SO 1991, c.27 (the Massage Therapy Regulation), it is professional misconduct to contravene a standard of practice of the profession or a published standard of the College.

29The Registrant contravened the Boundaries Standard in many ways. He treated the Client’s buttocks and inner thighs when it was not clinically indicated, he did not discuss the treatment in advance with the Client and he failed to obtain written consent for the treatment of these sensitive areas.

30He contravened the Boundaries Standard further when he told the Client that a full body massage includes treatment of the sensitive areas. The Boundaries Standard is clear that treatment of sensitive areas is a high-risk activity for the profession and must only be done where it is clinically indicated. If treatment of the sensitive areas is clinically indicated, written consent must be obtained. These stringent requirements demonstrate that contrary to the Registrant’s assertion to the Client, treatment of sensitive areas is not a routine part of a full body massage.

31The Registrant also breached the Boundaries Standard when he lifted the Client’s legs ninety degrees without secure draping. There was no reason for him to lift her legs this high to put a pillow under her knees. Lifting her legs and putting the pillow directly under her legs, instead of under the bottom sheet, caused the loose draping to fall and exposed the back of the Client’s legs and her genitals. The Client felt air.

32The Client testified that although her eyes were closed, she thought the Registrant looked at her genitals. We do not need to decide whether the Registrant looked because it is the exposure that matters. Exposing her in this way made her vulnerable.

No Breach of Client Health Record Standard

33The Registrant did not breach the Client Health Record Standard. He recorded the Client’s consent to therapeutic massage treatment on the health history form, which she signed. The Registrant did not obtain written consent for the treatment of sensitive areas in contravention of the Boundaries Standard as set out above.

Sexual Abuse

34Sexual abuse is defined in subsection 1(3) of the Health Professions Procedural Code, which is Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c.18 (Code):

1(3) In this Code,

“sexual abuse” of a patient by a member means,

(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,

(b) touching, of a sexual nature, of the patient by the member, or

(c) behaviour or remarks of a sexual nature by the member towards the patient.

(4) For the purposes of subsection (3),

“sexual nature” does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.

35When determining whether conduct is sexual in nature, the following objective test is applied: “[v]iewed in light of all the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer.” The part of the body touched, the nature of the contact, the situation in which the touching occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct are relevant to the determination of whether the alleged touching was sexual in nature: Ontario (College of Massage Therapists of Ontario) v. Williams, 2019 ONCMTO 32.

36The Registrant began his therapy session by telling the Client treatment of sensitive areas is part of a full body massage. This information was not only wrong, it created an opportunity for the Registrant to massage two of her sensitive areas (buttocks and inner thighs) when it was not clinically indicated, was not the reason for the massage, and he had not obtained written consent. He massaged her buttocks for an extended period even though her areas of concern were her neck and shoulders and related migraines.

37The Registrant’s groin area touched the Client’s head approximately five times when she was lying face down and face up. The contact lasted about five seconds. The fact that this happened repeatedly makes it more likely than not that it was intentional conduct on the part of the Registrant and was not inadvertent. If it had been accidental, one would have expected the Registrant to be extremely careful to ensure that it did not happen again. It made the Client very uncomfortable.

38The Registrant lifted the Client’s legs high enough to cause her draping to fall and expose her genital area. There was no clinical reason for him to do this and it made the Client extremely vulnerable. During parts of the massage, the Registrant was breathing heavily.

39The Registrant’s conduct progressed from massaging her sensitive areas, to touching her head with his groin, to exposing her genitals, while breathing heavily at times. We find that a reasonable observer would conclude, when examining these circumstances and the progression of his actions, that the Registrant’s behaviour towards the Client was of a sexual nature and constitutes sexual abuse.

Physical Abuse

40Physical abuse, which is an act of professional misconduct under section 26, paragraph 8 the Massage Therapy Regulation, is conduct that violates the bodily integrity of the client. It does not require proof of intention to cause bodily harm, nor does it require proof that the conduct caused a hurt or injury that interferes with the health or comfort of the complainant: Williams, above.

41We find the Registrant’s sexual behaviour, done without the Client’s consent and without clinical indication, was a violation of the Client’s physical integrity and constitutes physical abuse.

Disgraceful, Dishonourable and Unprofessional

42Disgraceful, dishonourable or unprofessional conduct is defined in section 26, paragraph 44 of the Massage Therapy Regulation as “engaging in conduct or performing an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.”

43The Registrant engaged in sexual abuse when he misled the Client on the treatment of sensitive areas, massaged her sensitive areas without written consent, touched her head with his groin and exposed her genitals. Sexual abuse is conduct that would reasonably be regarded by other registrants as disgraceful, dishonourable and unprofessional. It is an egregious boundary violation and an abuse of the power inherent in the relationship between massage therapists and their clients.

44For these reasons, we find the College has proved the misconduct. The Hearings Office will schedule a hearing on penalty and costs.