ONTARIO MASSAGE THERAPISTS DISCIPLINE TRIBUNAL
Tribunal File No.: PC-11012
BETWEEN:
College of Massage Therapists of Ontario
College
- and -
Pamela Reimer
Registrant
AMENDED REASONS FOR DECISION
Heard: February 3, 5, and 10, 2025, by videoconference
Panel:
Sophie Martel (panel chair)
Lauren Carnegie (massage therapist)
Bobbie Flint (massage therapist)
Brian Highgate (public)
Jalpa Patel (public)
Appearances:
Anastasia-Maria Hountalas, for the College
Pamela Reimer, self-represented
Lisa Freeman, appointed representative to cross-examine the client
RESTRICTION ON PUBLICATION
The Ontario Massage Therapists Discipline Tribunal ordered, under ss. 45(3) and 47(1) 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
1Pamela Reimer, the registrant, registered with the College in 2008 and for most of her career has operated a home-based massage therapy clinic.
2The client received massage therapy from the registrant on one occasion, September 13, 2023. The College alleges that from the beginning of this appointment until the end, the registrant made multiple inappropriate comments to the client, failed to ensure that the draping was adequate thereby exposing various sensitive areas of the client’s body, climbed onto the massage table with the client while flexing the client’s legs, treated the client’s inner thighs without consent, and touched the client’s breasts. The College submits that the registrant’s conduct during the appointment amounts to sexual abuse of the client.
3While the evidence from the client and the registrant about some parts of the appointment was similar, they provided conflicting testimony regarding most of the factual allegations. Our decision is, therefore, based on our credibility findings. We find the client credible and conclude that the College has proven on a balance of probabilities most of the factual allegations. We further conclude that the registrant committed sexual abuse, contravened published standards of the College, physically abused the client, and engaged in disgraceful, dishonourable or unprofessional conduct.
BACKGROUND
4The client has a history of sciatic nerve pain. While she had attended massage therapy with other therapists for this complaint prior to September 13, 2023, she had done so in the city where she previously lived. She did not have a massage therapist near her new home.
5On the morning of September 13, 2023, she experienced bad sciatic nerve pain and found the registrant by performing an online search. She was able to book a same-day appointment for 12:30 pm. She had never met the registrant before.
6The registrant operates a home-based massage therapy clinic in her apartment, located in an apartment complex.
7The client and the registrant both testified that the client sought treatment from the registrant for sciatic nerve pain. They also testified that a health history form was completed at the outset of the appointment. While the handwriting on the form is that of the registrant, the client agrees that the information is accurate and must have been provided by her. They also both testified that the registrant asked the client to complete a handwritten consent form for permission to treat her gluteal area. The client was accustomed to having to complete such a form, because she had done so at prior appointments with other massage therapists for the treatment of her gluteal area. The form states that she requests to have her “glutes” assessed and treated by the registrant. No other sensitive areas are covered by this form.
8The registrant provided pictures of her massage room. The client agreed that the pictures depict the massage room but indicated that when she attended, the room was messier. There is a mirror on the wall next to the massage table. While the pictures show a poster partially covering the mirror, the registrant testified that the poster was added at some point after the client’s appointment. There was no poster covering the mirror at the time of the client’s appointment. It is disputed whether the client would have been able to see herself in the mirror given its height above the massage table.
9The registrant and client disagree as to whether there was a blanket on the massage table during the appointment. While she is not fully certain, the client believes that there was only a sheet whereas the registrant testified that there was a sheet and a blanket. In any event, the client and the College agree that the issue with the draping was not about the type or size of the draping but rather that it was not properly secured and exposed the client at various times.
10While not depicted on the photo, the client and the registrant both testified that there were oil stains on the carpet. The registrant has since covered these with area rugs.
11The appointment was scheduled for sixty minutes but ended early. The client paid the registrant $100 by e-transfer for the appointment. The client never returned to the registrant’s clinic after September 13, 2023. She filed a complaint with the College about two days after the appointment. The College advised the registrant of the complaint and sought a written response to it shortly thereafter.
THE EVIDENCE REGARDING THE ALLEGATIONS
The client’s arrival at the registrant’s apartment
12The client testified that after she was let into the apartment building by another individual, she entered a courtyard and met the registrant at the stairs landing of her apartment. The client testified that as soon as she walked into the apartment, the registrant told her that she was beautiful and tucked a strand of hair behind her ear, which made her feel uncomfortable.
13The client testified that she also smelled a heavy smoke smell as if someone smoked in the apartment. She further noticed that the registrant was wearing a shirt with stains on it.
14The registrant denied telling the client that she was beautiful and denies touching her face and tucking a strand of hair behind her ear.
15The registrant testified that she probably did have a stain on her shirt, which had not come out in the wash since she subsequently noticed that one of her white work shirts had a stain on it.
16In respect of a smoke smell, the registrant explained that she lives on the first floor with a window facing the landing. She testified that it was possible that someone had smoked on the landing. She denied the presence of smoke or of a smoke smell in her apartment unit and treatment room. On cross-examination, the registrant agreed that she was a smoker at the time of the appointment but testified that she did not smoke in her home and had not smoked a cigarette before the client’s arrival. She denied smelling of smoke.
17On cross-examination, the registrant was also asked about her written response to the allegations dated September 20, 2023, in which she wrote that there was smoke in her unit and that the smell may have come from another unit or the courtyard. The registrant explained that there may have been smoke that drifted through the window next to the landing.
The registrant’s instructions regarding undressing
18The client testified that after she entered the massage room, the registrant said that she could remove everything and get under the sheets on the massage table. The client asked a clarifying question as to whether she was to remove everything including her underwear and the registrant replied that she should remove everything. The client testified that she has never been asked to remove her underwear at previous massage therapy appointments. However, since she is a “people pleasing” person, she removed all her clothing while the registrant waited outside the room.
19The registrant denied telling the client to remove all her clothing, adding that she would never tell any client to remove all their clothing. She testified that the client asked her how much to get undressed and she replied up to her comfort level. The registrant agreed that the client removed all her clothing for the treatment.
Tan lines comment
20The client testified that, while positioned on her side during the treatment with her hip, legs and buttocks exposed, the registrant remarked that the client had big tan lines on her “butt.” She could not recall if the registrant asked her if she had been travelling. On cross-examination, the client denied the suggestion that the registrant asked her if she had a sunburn. The client denied having a sunburn, adding that she has never had a sunburn as she does not burn.
21The registrant denied commenting about tan lines on the client’s buttocks. She testified that while the client was on her stomach, she noticed that the client’s back was slightly red such that she thought that she possibly had a sunburn. She asked the client if she had been on vacation and the client replied, “no.”
22On cross-examination, the registrant agreed that she had never mentioned the client being sunburnt in her written responses to the College and was raising it for the first time during the hearing. The registrant explained that she was raising it at the hearing because the client was alleging that she had made a comment about tan lines. She testified that she did not see tan lines, just a dark tan with a little bit of redness on top. On cross-examination, she was directed to her written response of September 20, 2023, where she wrote that she briefly commented on the client’s “tanned legs.” The registrant agreed that the written response does not reference a tanned back and replied that she noticed a tan on the legs and a little redness on the back.
Other conversations during the appointment
23The client testified that she heard a man’s voice during the appointment and therefore asked the registrant if she lived with anyone. The client testified that the registrant replied that she used to see a Spanish man but that one of them had a restraining order against the other. The client could not recall who had the restraining order against whom.
24The registrant testified that no one else was in the apartment during the client’s appointment and explained that it was possible that the client heard neighbours speaking. The registrant advised the client that she lived alone. The registrant testified that the client asked her if she had a boyfriend, and the registrant replied that she had a male Spanish friend but that she had not seen him for a while. She denied any conversation about a restraining order and testified that she does not have a restraining order against anyone.
25The client also testified that the registrant asked her if she was a student and the client replied that she was in a Masters psychology program. The client testified that the registrant then told her about a psychologist and YouTubers who were brainwashing and controlling people’s minds. She characterized the conversation as the registrant expressing political viewpoints, which she found to be uncomfortable and unprofessional.
26The registrant testified that since the client was a new client, she asked her about work and the client replied that she was a student. The registrant asked the client what she was studying, and the client replied that she was studying psychology. The registrant explained that she was interested in psychology and studying it on the side by listening to lectures. During her conversation with the client, she mentioned a particularly well-known psychiatrist she was listening to but denied having any conversation with the client about brainwashing.
27While not a specific allegation, the client and the respondent both testified that there was a discussion about modeling. The client testified that the registrant asked her if she had considered modeling and advised her that she used to model when she was younger. The registrant testified that the conversation occurred around the time they discussed her Spanish friend. The registrant advised the client that her friend was a photographer and that she had been doing modeling for several years.
The treatment order and draping
28The client testified that she was on her back under the sheet when the registrant entered the room and right away the registrant said that she had to reposition her. Rather than asking the client to roll onto her side, the client testified that the registrant manipulated her onto her side. According to the client, the sheets were falling, and she was trying to hold them to keep covered.
29On cross-examination, the client testified that while she remembers the treatment starting on her side, it is possible that the treatment started while she was on her stomach. She does not recall having her back massaged but conceded that it could have happened. She explained that she recalled with more clarity the parts of the appointment that made her uncomfortable.
30The client testified that while on her side, the draping was never secured and that at various times while the registrant was treating her hip, the side and top of her breasts were exposed such that she was constantly trying to cover them. While she was given one pillow to put on her side, she testified that it was lower than the pillow depicted on the pictures provided by the registrant to show her draping practices, such that her breasts were exposed at various times. She testified that the entire side of her hip, leg, and buttocks including the gluteal cleft were also exposed as the draping was not tucked under her. She was able to notice how exposed she was by looking in the mirror on the side wall. She denied that she was draped in the manner shown in the pictures provided by the registrant, which show the draping only uncovering a very small portion of the side buttocks (gluteal) area.
31The registrant testified that the client was first on her stomach, then on her side (she treated the unaffected side followed by the affected side) and lastly on her back. While she testified that it was possible that the draping loosened a little bit, she denied that the client’s sensitive areas were ever exposed. She denied manipulating the client when she changed positions. Rather, she testified she asked the client to turn while she held the sheet. The registrant also testified that because the mirror is higher than the massage table, it would have been impossible for the client to see herself in the mirror.
32The client testified that she does not remember the registrant ever checking in with her. The registrant testified that she continually checked in with the client about her pain level but that the client was not very responsive.
Arm massage
33The client testified that while she was on her back with her arms uncovered by her side, the registrant massaged her arms, one at a time. Because she was not properly draped, the client testified that the back of the registrant’s hand constantly kept rubbing against the side of her breast. She described this touch as being sexual and not accidental since there was no need for the registrant to massage her arms given that her complaint related to sciatic pain. She testified that even though she tried to move her second arm further away from her body, the same thing happened on the other side, with the back of the registrant’s hand repeatedly rubbing against the side of her breast.
34On cross-examination, the client was asked about her statement to the College investigator that the breast touching during the arm massage occurred three times. The client replied that it happened every time the registrant rubbed her hand up and down her arms and that it was possible that this occurred three times. She was also asked about telling the investigator that she understood that the purpose of the arm massage was to push the blood flow. The client could not fully recall this conversation and does not recall if the registrant explained the blood flow technique to her or if she came up with this explanation because she found it difficult to tell someone that she had been touched sexually.
35The registrant agreed that she massaged the client’s arms. She testified that when she massages a client’s arms, she pulls the arms away from the body and that since her massage table is wide, there is plenty of room for the arm to lie on the table. She did some gentle stroking of the arm and testified that there was “no way” that she could have touched the client’s breasts. She denied even an inadvertent touch to the breasts. She explained that if she had touched the client’s breast by accident, she would have apologized for it and recorded it in her treatment notes.
36The registrant explained that while she focused on the areas of complaint, she also told the client and obtained her permission to do a general massage with a focus on the pain areas. She agrees, however, that her treatment notes do not provide a treatment plan.
37In cross-examination, the registrant was directed to her written response of February 22, 2024, in which the registrant wrote that the client had requested a general full body massage and to focus mostly on the areas of pain, which were the low back, the right glute and the right leg. The registrant explained that she was quite taken by the allegations, which she considered to be false, and tried to respond as soon as possible to the College’s requests. She clarified that the client did not request a full body massage and that she should have worded her response differently. It was instead a general massage, with a focus on the main areas of complaint but also some massaging of other areas to make the massage more complete. She explained that she told the client that they would focus on the areas of pain with some treatment of the arms and legs.
Upper inner thigh massage
38The client testified that while she was lying on her back, the registrant massaged her inner thighs with an up and down movement that came very close to her vagina and felt sexual. The sheet was not covering her thighs.
39The registrant denied massaging the client’s inner thighs. She testified that the treatment was on the exterior side of the thigh although even that was minimal because most of the work was on the back and glutes.
Stretches
40The client testified that she was feeling increasingly uncomfortable during the massage to the point of feeling unsafe. She started telling the registrant that she would have to leave for work shortly and that she was expected somewhere. She advised the registrant that she might receive a text from work and need to leave earlier. The client testified that she made up these excuses because she was feeling uncomfortable and because she wanted to let the registrant know that people were expecting her. She testified that she was so scared by what was happening that she even contemplated having to escape through the window of the massage room.
41The client testified that the worst part of the massage was when the registrant made her do stretches. At this point she was lying on her back and the sheet was not covering anything other than her stomach and pelvis. The registrant pushed on her leg, told her that she was very flexible and then climbed onto the massage table. She was on the massage table kneeling between her thighs and pushing on her leg. The client testified that the sheet was not tucked in around her groin area such that her genital area was completely exposed while the registrant was pushing on her legs. At this point, the client, who was feeling increasingly uncomfortable, told the registrant that she thought she heard her phone ring. The registrant then said she wanted to do one more stretch and asked the client to roll onto her stomach and again pushed on her leg while saying she was flexible. At this point, the client had had enough and said she had to go. The client testified that the registrant told her that she would have to pay the full amount, which the client agreed to do.
42The registrant testified that about 45 minutes into the treatment, she asked the client to lie on her back so that she could give her some stretches, which they would practice together to do them properly and safely. She explained to the client that she would pull the knee up to stretch and asked her if it was okay to do so. She testified that she undraped the right leg and tucked the draping underneath the thigh and lateral pelvis because she was asking the client to bring her knee up to her chest. She then assisted the client with the stretch, which consisted of getting the knee as high as possible. She testified that the client’s genitals were not exposed. She denied getting on the massage table with the client but said that she often uses a stool to assist with stretches because she is not very tall. On cross-examination, however, the registrant testified that while she probably used the stool she could not specifically remember doing so.
43The registrant also testified that possibly around the 45-minute mark of the massage, the client said something about having to get going. She could not recall if the client’s phone rang. The registrant replied that it was important to go through the stretches. She believes the appointment only ended perhaps four minutes before the 60-minute mark.
44On cross-examination, the registrant indicated that she does not recall the client ever getting her phone. She then added that she may have heard the client’s phone ring or ping with a notification as she remembers her phone making some kind of sound. After being asked to clarify whether she remembered hearing any phone noises, the registrant testified that she did not fully remember. She testified that she never forced the client to stay, just shared the importance of finishing the stretch.
45The registrant testified that the treatment only ended about five minutes early. She conceded that it was possible that she told the client she would have to pay for the 60 minutes booked.
End of the appointment
46The registrant testified and her notes indicate that after the treatment the client shared that she experienced significant reduction in pain.
47The client could not recall telling the registrant that she had experienced pain reduction. She recalls, however, that she was in pain that following weekend and attended physiotherapy.
48After she had dressed and paid the registrant, the client testified that the registrant watched her leave the apartment building, which made her feel uncomfortable.
49The registrant testified that she watched the client like she does all her clients to ensure that they get down the stairs safely and to observe if there is any improvement in their gait.
50Since the treatment, the client wonders about the safety of any place she attends for services. She no longer attends services that are offered at home as she does not feel safe in such locations.
51The registrant’s theory regarding the client’s complaint is that the client was not accustomed to her type of treatment. For example, according to the registrant, the client had never previously been treated in the sideline position.
CREDIBILITY AND RELIABILITY
52We must decide whether the College has proved on a balance of probabilities that the alleged events happened based on clear, cogent and reliable evidence.
53As can be seen from the above, some of the evidence from the client and the registrant is contradictory. Given their conflicting evidence, we must assess the honesty and reliability of the client and the registrant’s evidence regarding what happened at the appointment of September 13, 2023.
54In assessing the credibility (honesty) and reliability of the witnesses, we have considered their ability to observe and recall the events, any interest or bias on their part, whether their evidence was internally consistent and consistent with other evidence, the plausibility of their evidence such as whether it accords with common sense and their appearance and demeanour (Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 CanLII 2053 (ON SC) at pages 16-17). We recognize that demeanour alone is an unreliable predictor of the accuracy of the evidence of a witness. We also note that we may believe all, part of, or none of what a witness has said.
55Furthermore, we are mindful of not judging credibility based solely on the client’s behaviour or by employing stereotypes about victims of sexual abuse, including how they are expected to behave during or following an instance of sexual abuse.
56In the following subsections, we address why we generally preferred the evidence of the client.
Client’s credibility and reliability
57At the hearing, the client readily admitted two errors she had made in her written complaint. She testified that referring to the draping as a “towel” in her complaint was an error, which she attributed to English not being her first language. She acknowledged that she was not alleging that the draping was too short or too small to cover her. Rather, her concern about the draping was that it was never secured, thereby exposing her.
58The client also corrected her written complaint that the registrant had removed the draping from her groin area. She corrected this statement to clarify that she could not say with certainty that the registrant had removed the draping, only that it fell off.
59The fact that the client readily and willingly admitted to errors in her written statement lent credibility to her testimony.
60We have some concerns about the reliability of parts of the client’s evidence. For example, while she believed that the massage treatment started with her lying on her back and that she could not recall having her back massaged (while lying on her stomach), she conceded that it was possible that the treatment had started while she was on her stomach even though she could not recall it because she had a better memory of the parts of the massage when she was uncomfortable. She also could not recall if she told the registrant that she had experienced some relief at the end of the treatment, only that she was in pain that weekend. She could not recall if the registrant told her that the restraining order was against her (the registrant) or against her Spanish friend. She could not recall the reason why she wrote in her complaint that the registrant massaged her arm to push blood flow up: she could not recall if it was because the registrant explained this to her or because she herself had come up with this explanation because she found it difficult to admit to someone that she had been touched sexually.
61Ultimately, however, the client’s lack of recall concerned events and statements that were not material issues in the hearing such that, in our view, it did not detract from her overall credibility and reliability. Furthermore, her willingness to admit what she could or could not remember lent credibility to her testimony. She was not combative and readily admitted to things she could not remember. On cross-examination, she also readily acknowledged that the registrant never touched her nipples and that while the registrant’s fingers came close to touching her vaginal area, they did not in fact touch that area.
62The client was also most visibly emotional during the parts of her testimony where she discussed the most invasive parts of the treatment: the breast touching and the exercise portion of the treatment when the registrant was alleged to have climbed onto the massage table and performed a stretch with her while her vaginal area was exposed.
63Both the client and the registrant testified that the client raised the possibility of having to leave early partway into the appointment. However, we found the client’s evidence about the reason for saying that she had to leave early more probable than the registrant’s evidence. Given that the client had booked the 60-minute 12:30 appointment that morning and needed pain relief, it does not make sense that partway through the appointment the client would inform the registrant of having to shorten the appointment unless something unusual happened at the appointment that made her want to leave early. Paired with the registrant’s inconsistent and self-serving testimony about whether she heard a phone notification (which we address in the subsequent section), the client’s version of events is the more plausible one. She was becoming increasingly uncomfortable with the massage given the exposure of her sensitive areas, the touching of her breasts and inner thighs, and the exercises that exposed her genital area.
64We also considered the registrant’s argument that the client’s initial impression of the environment, such as the stains on the carpet and on the registrant’s shirt, the messiness of the massage room, and the smoke smell, affected how she subsequently perceived the appointment, thereby questioning the reliability of her testimony. This question was put to the client in cross-examination. While the client, who is a psychology student, acknowledged that confirmation bias can shape how one processes information, she disagreed that that is what happened in the appointment. She was not only disgusted by the smell, but also by the registrant’s behaviour, which included inappropriate touches. We accept the client’s evidence that she did not misperceive what happened later in the appointment, such as the breast and inner thigh touching, simply because she formed a bad impression of the environment at the outset. The client readily admitted being alert to this possibility but categorically denied that this is what occurred.
Registrant’s credibility and reliability
65There were significant inconsistencies and improbabilities in the registrant’s evidence.
66In her written response of September 20, 2023, the registrant denied telling the client that she had a big tan on her butt but “did briefly comment on her tanned legs and asked if she was on a vacation.” There is nothing in her written response about being concerned about a sunburn. At the hearing, however, the registrant’s evidence was that the client’s back was tanned and slightly red. The area of the body and whether the client had a tan or a sunburn were therefore inconsistent as between her written response and her testimony at the hearing.
67The registrant’s evidence at the hearing about whether the client’s phone rang or pinged was also different than what she wrote in her written response of September 20, 2023. In her written response she stated that halfway through the client’s treatment, the client stated she was on-call with work and would have to leave if they called. The registrant wrote that the client’s phone never rang and the client never said that the registrant needed to stop. This evidence was inconsistent with what the registrant testified at the hearing. At the hearing, she first stated that she heard the phone ring or ping (a notification sound). Only when confronted with this inconsistency on cross-examination did she acknowledge that she did not have a full recollection of what happened.
68The registrant’s evidence about hearing a phone noise appeared to be self-serving to explain why the client left early. It appeared that the registrant suggested that the client did in fact hear from work and had to leave early in order to contradict the client’s evidence, which was that she had become so uncomfortable with the appointment that she came up with an excuse of having to leave early.
69The registrant’s evidence about a smoke smell in her apartment was also inconsistent and improbable. The client had testified that when she walked in the apartment, there was a “heavy” smoke smell. The registrant, however, denied any smoke or smoke smell in her apartment. She only acknowledged that she was a smoker on cross-examination but added that she never smoked in the apartment and that she herself did not smell of smoke. Firstly, it is improbable that, as a regular smoker, the registrant would not smell of smoke even if she did not smoke in the apartment. More significantly, this evidence is inconsistent with what the registrant wrote in her written response where she agreed that there was smoke in her unit which may have come from another unit or the courtyard.
70The registrant’s testimony that the draping was secured during the stretches such that there was no risk that the client’s genitals could not have been exposed was implausible. Despite agreeing that the client was not wearing underwear, that the exercise involved bending the uncovered leg up to the opposite shoulder, she maintained that it was not possible that the client’s genitals were exposed during the stretch.
71We heard submissions about the plausibility and implausibility of the client and the registrant’s evidence that the client could or could not see herself in the mirror during the side massage. We are not making findings about the plausibility of either the client or the registrant’s testimony on this issue. The pictures provided, in our view, are inconclusive to make this finding especially since the pictures depict a poster partially covering the mirror that was not there at the time of the appointment.
FACTUAL CONCLUSIONS
72As noted in our credibility findings, we preferred the evidence of the client.
73However, there are some factual allegations in the notice of hearing, which in our view, were not supported by clear, cogent and convincing evidence such that we have not relied upon them in our conclusion as to whether the registrant’s conduct amounted to sexual abuse of the client.
74We first set out the proven allegations followed by the unproven ones.
Proven allegations
75Relying on our credibility findings, we accept that the College has proved on a balance of probabilities that the following alleged events happened:
The registrant told the client she was beautiful and pushed the client’s hair behind her ear.
The registrant instructed the client to remove all her clothes, including her underwear.
The registrant commented on the tan lines on the client’s butt.
The registrant failed to ensure that the draping was adequate and secure, resulting in the exposure of the client’s breasts and genitals at various times during the massage appointment.
The registrant massaged the client’s hips (the treatment on her side) while the client’s breasts and gluteal cleft were exposed.
The registrant flexed and extended the client’s hips while the client’s genitals were exposed.
The registrant treated the client’s upper inner thigh without consent.
The registrant touched the client’s breasts with the back of her hands.
The registrant climbed onto the massage table positioning herself between the client’s legs.
76We accept that the registrant watched the client walk away after the appointment ended. The registrant herself agreed that she watched the client, although only to ensure that she got down the stairs safely and to observe if there is any gait improvement. As set out in our legal conclusions, however, we have found that watching the client walk away is not of any significance in this case.
Unproven allegations
77The first factual allegation in the notice of hearing was that the registrant touched the client’s face and/or pushed the client’s hair behind her ear. As noted above, relying on the client’s evidence, we found that the registrant pushed the client’s hair behind her ear. The client did not testify that the registrant touched her face, such that we do not make the finding that the registrant touched the client’s face.
78The notice of hearing alleges that the registrant made comments about her past sexual relationships to the client. We find that this allegation has not been proven. The client did not testify that the registrant discussed her past sexual relationships. Rather, her evidence was that the registrant referred to a past relationship with a Spanish friend and that one of them had a restraining order against the other. There was no evidence that sexual relationships were discussed, and the client also could not recall the conversation reliably since she could not remember who had the restraining order against whom.
79The notice of hearing alleges that the registrant removed the draping from the client’s groin area. The client herself acknowledged that she does not recall the registrant removing the draping – only that the draping fell off because it was not secure.
80The notice of hearing makes two allegations regarding the client’s breasts. It alleges that the registrant treated the side of the client’s breast without consent and alleges that the registrant touched the client’s breasts with the back of her hands. We accept the client’s evidence that the registrant touched the side of her breasts with the back of her hands while treating her arms. There was no evidence that the registrant treated her breasts.
81The notice of hearing alleges that the registrant talked about her views on psychologists after the client said she was studying psychology. While we accept that there was a discussion about psychology, the client’s evidence was quite vague as to the specifics of the conversation such that we do not conclude that the registrant discussed her views on this topic.
SEXUAL ABUSE
82Under section 51(1)(b.1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (Code), sexual abuse of a patient is professional misconduct. Section 1(3) of 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. Sexual abuse does not include touching, behaviour or remarks of a clinical nature appropriate to the service provided.
83In Ontario (College of Massage Therapists of Ontario) v. Williams, 2019 ONCMTO 32, the Discipline Committee stated that determining whether conduct is of a sexual nature depends on an objective test: “when viewed in light of the circumstances, is the sexual or carnal context of the assault visible to a reasonable observer?”. The Tribunal set out the following factors to consider:
a) the part of the body touched;
b) the nature of the contact;
c) the situation in which the touching occurred;
d) the words and gestures accompanying the act; and
e) all other circumstances surrounding the contact.
84While intent or motive may also be considered, the lack of sexual intent is not determinative.
85Applying the above test, we conclude that the registrant sexually abused the client during the massage therapy appointment of September 13, 2023.
86In arriving at this conclusion, we have not factored in the finding that the registrant watched the client as she left the appointment, since in our view, it does not support a sexual abuse finding, even when coupled with the other findings.
87We have, however, relied on the remainder of our factual findings, especially when considered together. These findings included the registrant telling the client that she was beautiful, tucking her hair behind her ear, telling her to undress completely, not securing the draping such that the client’s breasts and genitals were exposed, climbing onto the massage table between the client’s legs while her genitals were exposed, massaging the client’s upper inner thigh without consent, and repeatedly touching the client’s breasts with the back of her hand. In our view, the totality of the registrant’s words, gestures and parts of the body touched amount to remarks, behaviour and touching of a sexual nature.
88We conclude that the registrant sexually abused the client.
OTHER FINDINGS OF PROFESSIONAL MISCONDUCT
89Section 26 of Ontario Regulation 544/94 under the Massage Therapy Act, 1991, S.O. 1991, c. 27 establishes various types of misconduct.
Contravened published standards of the College (s. 26, para. 6)
90In addition to our finding of sexual abuse, the registrant also contravened the following published standards:
Contrary to the Standard of Practice: Client-centred Care, the registrant did not treat her client with respect and dignity, did not ensure the client’s continuing comfort and safety during the treatment, did not drape in accordance with the standards and abused the client.
Contrary to the Standard of Practice: Communication, the registrant failed to obtain informed consent for the treatment of certain body parts and failed to ensure that all communications were respectful, ethical and professional (such as when she greeted the client by telling her that she was beautiful).
Contrary to the Standard of Practice: Consent, the registrant did not obtain informed consent to treat certain body parts such as the upper inner thighs.
Contrary to the Standard of Practice: Draping and Physical Privacy, the registrant failed to ensure that the client was effectively covered by draping for her comfort and safety and failed to maintain appropriate boundaries. She failed to ensure that the client was protected from exposure of the genital area.
Contrary to the Standard of Practice: Prevention of Sexual Abuse, the registrant sexually abused the client.
Contrary to the Standard of Practice: Professional Boundaries, the registrant abused the client, failed to obtain informed consent for the treatment of certain body parts, did not drape in accordance with the standards and did not take any steps to manage the inherent power imbalance in the therapeutic relationship.
Physically abused the client (s. 26, para. 8)
91The registrant committed physical abuse by invading the client’s physical integrity when she touched the client’s breasts with the back of her hands and treated the client’s upper inner thigh without consent.
Disgraceful, dishonourable and unprofessional conduct (s. 26, para. 44)
92It is obvious that sexual abuse of a client amounts to conduct that would reasonably be regarded by the profession as disgraceful, dishonourable, or unprofessional conduct. Sexual touching reflects a boundary violation and a violation of the trust that clients place in their registered massage therapist.
CONCLUSION
93The College has proven the allegations of sexual abuse, contravening published standards of the College, physical abuse, and disgraceful, dishonourable or unprofessional conduct.
94Under s. 51(4.2) of the Code, the Tribunal must immediately make an order suspending a registrant’s certificate of registration if it finds there was touching of a sexual nature of a patient’s genitals, anus, breasts or buttocks. We concluded that the registrant touched the client’s breasts in a sexual way. Accordingly, we order that the registrant’s certificate of registration be suspended effective immediately.
95The Hearings Office will schedule a hearing on penalty and costs.