College of Massage Therapists of Ontario v. Registrant S, 2025 ONMTDT 24

ONTARIO MASSAGE THERAPISTS DISCIPLINE TRIBUNAL

Date: August 5, 2025

Tribunal File No.: PC-10969

BETWEEN:

College of Massage Therapists of Ontario

College

• and -

Registrant S

Registrant

REASONS FOR DECISION

Heard: April 29, 30, May 2, 9, 15, 2025, by videoconference

Panel:

Jay Sengupta (panel chair)

Bobbie Flint (massage therapist)

Matthew Gordon (public)

Jennifer McGill (massage therapist)

Jalpa Patel (public)

Appearances:

Erica Richler and Karen Heath, for the College

Lisa Spiegel and Nabiel Dawood, for the registrant

RESTRICTION ON PUBLICATION

Pursuant to Rule 2.2.2 of the HPDT Rules of Procedure and ss. 45-47 of the Health Professions Procedural Code, no one shall publish or broadcast the names of clients or any information that could identify clients or disclose clients’ personal health information or health records referred to at a hearing or in any documents filed with the Tribunal. There may be significant fines for breaching this restriction.

The Ontario Massage Therapists Discipline Tribunal is the Discipline Committee established under the Health Professions Procedural Code.

INTRODUCTION

1The College of Massage Therapists of Ontario (the College) alleges that Registrant S (the registrant) sexually abused a female client on July 23, 2023, by touching, prodding or rubbing her arms and hands with his erect penis through his clothing during a massage therapy treatment.

2The College called evidence from the client. We also heard from the registrant, Dr. Sidney Radomski, an expert witness with a specialty in urology, and three of the registrant’s colleagues who also offer services at the clinic where he practises.

3We conclude that the evidence that the registrant touched, prodded or rubbed the client’s arms and hands with his erect penis through his clothes was not reliable and, therefore, are not satisfied that the College has met its burden to establish that the conduct occurred as alleged. We make no finding of professional misconduct.

4The reasons for our decision are set out below.

THE EVIDENCE

Background

5The registrant has been a registered massage therapist since 2019. He has not been the subject of any prior complaints and has no discipline history.

6The registrant’s treatment room is the middle of three rooms in the clinic and is bordered on either side by treatment rooms used by the other massage therapists who operate out of the clinic. All three of those colleagues gave evidence at the hearing and attested to the fact that sounds and muffled voices from the adjoining rooms and the hallway outside are audible but what is said cannot be heard clearly.

7Approximately 80 percent of the registrant’s clients are returning clients. His practice is primarily focussed on shiatsu therapy. He rarely performs Swedish massage and only does so on request. His appointment book showed that he only performed Swedish massage on three occasions in all of 2023.

8The registrant described the main differences between the two types of massage therapy in the following way. Shiatsu is done using the thumb, forefinger and palm on pressure points with locked elbows and the client remains clothed. In Swedish massage, lotion and oil are applied directly to the skin using the palm, knuckle and elbows.

9Traditionally, shiatsu is done on a mattress on the floor. For sanitary reasons, that cannot be done in the clinic setting and the registrant uses a table which, though not designed for shiatsu, is adjustable. He uses the lowest possible setting for shiatsu massages. We were provided with pictures showing the height at which the table was usually set for shiatsu massages, which the registrant testified was lower than that used for Swedish massages. The registrant’s three colleagues, some of whom have worked with him since 2018, confirmed that his table is usually at the lowest setting. Two of his colleagues said they had never seen it otherwise.

10Although his listings on various sites show that he is closed on Sundays, the registrant testified that although he does not accept same-day bookings on Sunday, if it is an advance booking, he serves clients on Sundays. His appointment book confirmed that he served clients on 30 out of 53 Sundays in 2023.

11The parties agree that the client contacted the registrant through Facebook on the evening of Saturday, July 22, 2023, to book an appointment the next day. The message indicated that the client had a tight calf muscle on her left leg and a sore back. It said the registrant had been recommended by a friend.

12The Facebook account did not have the client’s name or picture on it. The account had a fictitious name and the text “a virgin, a pathological liar, a drug dealer, nihilist” along with a picture of some houses. The registrant’s evidence was that he thought the client may be a Korean man because of the profile name. The registrant and client did not speak to each other prior to the appointment which was arranged through Facebook messages.

The Appointment

13The client testified she arrived shortly before the scheduled time and was greeted by the registrant. She described seeing a receptionist’s desk, but all the massage therapists who work at the clinic confirmed that there is no receptionist at the clinic and no desk set aside for one.

14The parties agree that the registrant and the client were both aware that one of the registrant’s colleagues was also in the clinic in one of the treatment rooms with the door closed. Following the initial greeting, the client changed into a loose t-shirt and silky pyjama pants. She does not recall whether she went to the washroom before or after the treatment, but knows she asked for a key and did so at some point during the visit.

15There is no dispute that the registrant was dressed in his usual treatment uniform that is depicted in the pictures introduced in evidence: a shirt (hospital scrubs) with two front pockets near the bottom, tucked into sweatpants under which the registrant testified he wore boxer shorts. The registrant also testified that he had his card holder and wallet in the pockets of his shirt which were tucked into his sweatpants. The client testified that she may have seen bulges in his pants during their initial interaction and before the massage. She also said that she could have felt those items during her massage. The registrant carried a bottle of rubbing alcohol in his side pant pocket near his right knee. The registrant wore a mask, face shield and disposable gloves.

16The parties agree that the client was asked to fill out a health history form by the registrant and they had an initial discussion about shiatsu therapy, as this was her first visit. They also had a conversation about areas that required special focus, given her message about a tight calf muscle and sore back. They agree that the registrant explained the sensitive areas assessment and treatment consent form to her. While there was some disagreement about who checked off certain parts of the form, there is no suggestion that consent was not properly sought or voluntarily given.

17The registrant testified that he performed a basic full shiatsu massage in accordance with his usual practice, in addition to treating the client’s left calf area using a Swedish massage technique. The treatment began with the client lying on her stomach (in the prone position). He first treated the left side of her body in the usual order and treated the left calf with soothing oil, before moving to treating the right side. The client was then invited to turn over onto her back (in the supine position) and the registrant completed a circuit on the left side again, followed by the right and then the abdomen. He denied having an erection or rubbing, prodding or poking the client with it. He also denied changing her hand position when she was in the prone position from palms facing down to facing up.

18The client’s account regarding the order of treatment varied slightly from that of the registrant. She said he began by working on the calf while sitting on a rolling chair, something the registrant says he does not have in the room. She says he then began working on the rest of her body.

19She testified that when she was on her stomach and he was working on her left side, she felt a poking and prodding sensation on her left arm. She described it as “frotteuring” movement - which she said meant rubbing in French – back and forth like a saw. She immediately thought it was an erection.

20She considered whether it could be something in a pocket but concluded it could not be, because “it did not have gravity and was floating” and she could feel a “corona detail” and “heat” when the massage continued further down her left side and she felt the sensation on her left hand.

21While she testified that she felt these details because the registrant’s erect penis was in her cupped hand, in cross examination she agreed that she had told the investigator that the erect penis went from the pinky side of her hand in a straight line across the cupped area of the thumb and index finger rather than the palm of her cupped hand.

22She described being in a state of shock. Once the registrant moved to the right side, she said she turned her hand to her side, and he turned it upwards and open. She felt the same sensation on her right arm and hand while he was working on her right side. She described it as being “spongy” and that the weight, shape, heat and feeling the corona on her hand through his pants convinced her it was an erect penis. During her examination in chief, the client described having felt the corona and frenulum of the penis but acknowledged in cross-examination that she may have incorrectly used the term “frenulum.”

23When she turned over onto her back, she did not recall where the registrant was standing and said at some point there had been a sheet over her body. It is not in dispute, and the client confirmed during her testimony, that she did not see the registrant with an erection once she had turned over onto her back, or at any other time during the treatment, when she had an opportunity to observe him.

24Following the massage, the registrant left the room, and the client changed into her street clothes and let him know when she was done. They discussed the treatment, she paid and asked when she should return for another treatment. There was some discussion about leaving a tip. The registrant said he had already entered the amount into the machine and suggested that she use the money for her next appointment. He acknowledged that he told the investigator that he does not accept tips.

Impact of the Events

25The client described the negative impact this event had on her. She said, “you feel like you let it happen” and said she experienced feelings of self-hate and anger. It impacted her ability to be at work, and she “brought it home with her”. It has upset her that she has had to tell the story so many times.

26The registrant testified that since receiving notice of the complaint, he has thought about it constantly. He is traumatized about taking on new female clients, has stopped taking new Swedish massage clients and no longer keeps things in his pocket during treatment sessions to avoid any possible misunderstandings.

Expert Evidence

27Dr. Radomski was qualified as an expert in urology, able to opine on the anatomy and features of a penis including during erection. He testified that he met the registrant in his office, wearing his usual treatment uniform, and conducted an examination of the registrant’s genitalia, which he pronounced normal.

28Dr. Radomski explained that if people have a tight band, the frenulum, which is a thin elastic tissue that runs from the glans to the foreskin, would be easier to feel. That is not the case with the registrant, who Dr. Radomski indicated has a normal and supple frenulum.

29He also indicated that the corona, which is the bottom portion of the glans or head of the penis, is not as prominent on the ventral or bottom side. He indicated it would be difficult to feel it through three layers of clothing. When erect, the penis would point upwards, usually at 45 degrees or higher and if wearing tight clothing, it would be closer to the body.

ANALYSIS

Burden of Proof and Credibility and Reliability Findings

30The College bears the burden of proof in this matter. It must prove the allegations on a balance of probabilities based on clear, cogent and convincing evidence (FH v McDougall, 2008 SCC 53).

31In the present case, two witnesses have provided conflicting evidence about the events at the heart of this matter. We must assess the credibility and reliability of their evidence. As the panel in College of Massage Therapists of Ontario v. Vranic, 2025 ONCMTO 2, described it,

Credibility 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. A witness can be credible but their evidence unreliable.

32The panel in Vranic went on to list some considerations in assessing a witness’ evidence:

• The witness’ demeanour (bearing in mind that demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness)

• Consistency of the evidence with objective facts and common sense

• Partisanship

• Human frailties

• Prior inconsistent statements

• Internal inconsistencies in the evidence

• Tendency to exaggerate.

Assessment of the Evidence

The Client’s Evidence

33While we are not persuaded by the registrant’s argument that the client’s demeanour during the hearing, her educational and employment background in creative writing and her use of a fictional name in her Facebook profile should give us pause when assessing the credibility of her account, we have concerns about the reliability of the client’s memory when describing the events that took place during the appointment for the reasons that follow.

34During the hearing, we observed that the client occasionally laughed, was sarcastic in some of her responses and, on at least one occasion, used an expletive in responding to a question put to her by registrant’s counsel. We attribute these reactions to feelings of frustration and do not find her lacking in credibility because of the manner in which she gave her evidence

35Similarly, we find that as the client was not asked about her education and employment background by the College during the investigation, she did not actively conceal those details. In any event, her background in creative writing does not render her account less credible. Nor does the use of a fictitious name on her Facebook page, explained as a step taken to protect her privacy on social media, an explanation which we accept.

36We do, however, have concerns about the reliability of the evidence given by the client; specifically, her ability to accurately observe, recall and recount the events in question. The client did not recall, or recalled incorrectly, the order and a number of the details of treatment.

37Her description of the clinic premises included a reception desk. We find there was no reception desk, a fact confirmed by the massage therapists who attended the hearing and also practise in the clinic.

38Although the client did not suggest that she did not give consent to treatment of sensitive areas, she said that some of the notations on the form were not completed by her, but by the registrant. Our review of the document in question leads us to conclude otherwise and we find that the checkmarks were made by her as they more closely resemble those that she admits to making, rather than those the registrant testified he made.

39The client gave evidence that the calf massage was done when she was on her back in the supine position. We prefer the registrant’s evidence on this point as his description of the order in which he ordinarily completes massage treatment was clear and consistent.

40The client gave evidence that the registrant was on a rolling chair. We prefer the registrant’s evidence that he does not have a rolling chair in his treatment room as consistent with the documentary evidence entered jointly into evidence.

41The evidence of the client that her arms were massaged when she was in the prone position was disputed by the registrant, who testified that the usual order of treatment, which he followed on this occasion, was to massage the arms when the client is in the supine position. We prefer his evidence on this point given its consistency with the method described in the manual on which his treatment process is based.

42While each of these issues on their own could be characterized as minor or peripheral in nature, taken as a whole, and coupled with the inconsistencies in the client’s account relating to the matter at the heart of the complaint regarding feeling the registrant’s penis on her arm and in her hands, they raise a concern regarding the overall reliability of the client’s account.

43The client gave a number of different estimates of the height of the treatment table. She acknowledged that she told the College that she thought it was both about a foot below the registrant’s waistline and also that it was four to six inches below his waistline. In looking at photographs of the treatment table, she described both the lowest setting and a higher one as the likely height of the table.

44The College argued that the client was making sincere efforts to be accurate about her recollection of the treatment table height and that it was clear that she was providing estimates. However, the varying and disparate estimates she did provide make her account less reliable than that of the registrant on this point.

45Under cross-examination, the client acknowledged that she had told the College investigator that when she was lying on her stomach, the registrant had positioned her left palm facing up even though it was uncomfortable. A number of the massage therapists gave evidence that that is the usual position when clients lie on their stomachs with their arms by their sides. Although the registrant denies changing the position of the client’s palms, the client’s resistance to acknowledging that the natural position in those circumstances is palms facing upwards is both noteworthy and puzzling.

46The client used the terms corona and frenulum to describe what she felt on her arms and in her hands in the letter of complaint to the College. During her examination in chief, she did not mention that she had felt the frenulum. Under cross-examination, after asserting that she had felt both the corona and frenulum, she acknowledged that she may not have a clear understanding of what the term “frenulum” meant and may not have felt it. She did not sufficiently explain why she had originally used such a specific term. She then went on to describe feeling the “corona detail” and used descriptions like “spongy, without gravity and floating” to describe what she felt on her arms and in her hands.

47Dr. Radomski’s evidence was that it would not be possible to feel the corona through three layers of clothing. He also explained that the corona is not as prominent on the bottom side of the penis as on the upper side.

48The College argued that we should accept the client’s account as credible and reliable. The focus, it argues, should be that she said she was touched by the registrant’s penis, rather than whether she felt his frenulum or corona touch her. However, we note that while she resiled from use of the word “frenulum,” the client continued to describe feeling the “corona detail”.

49The client’s evolving description regarding what she felt touch her arms and hands, as well as Dr. Radomski’s evidence regarding the unlikelihood of feeling the corona through three layers of clothing, leads us to conclude that the client’s account is not reliable on this central and material point.

The Registrant’s Evidence

50We found the evidence of the registrant to be generally credible and reliable. He was direct and forthcoming in his answers to questions, with evidence that was consistent with his clinical notes and records. He was clear in his explanations and descriptions of his process, the checklists he uses and the supporting literature and texts that inform his shiatsu practices and routines.

51The College argued that the registrant’s account contains inconsistencies. While we address those arguments below, in our assessment, any inconsistencies in the registrant’s evidence are not significant enough to undermine his testimony as a whole.

52The College pointed to an answer provided to the College investigator in which the registrant said treatment began with the sacrum. The College suggested that statement was inconsistent with his evidence at the hearing when he referred to palpations and an opening technique being done at the outset. We are not persuaded that there is any inconsistency between the two accounts. The health records show palpations listed under a box entitled “Assessment Performed,” suggesting that palpations were recorded as being performed but were considered part of the assessment stage rather than the treatment stage.

53Similarly, the registrant’s failure to mention to the College investigator that he treated the client’s head and face when she moved to the supine position (on her back) is of little import given the inclusion of some of those details in the registrant’s treatment records. Moreover, in our view, this is a minor or peripheral issue.

54Thirdly, whether the registrant telling the investigator that he does not accept tips is inconsistent with telling the client to use the money on her next treatment is not consequential, given that the parties agreed that the client proposed paying a tip and the registrant declined it.

55Finally, in our view, the registrant’s choice, since the complaint, to no longer carry his wallet and cardholder in his pockets to avoid misunderstanding cannot be seen as inconsistent with his view that it did not make sense to suggest that the client may have mistaken those items for his penis. It is more properly understood as a cautious response to having received a complaint.

56We have also taken note of the documentary evidence presented in this case and find that the table height was set at the usual setting the registrant used for shiatsu massages – the lowest setting. In reaching this conclusion we rely on the following evidence:

• the registrant’s evidence regarding his usual practice of setting the table at its lowest height when performing the shiatsu massages that form the bulk of his practice;

• the documentary evidence showing the wear and tear on the lowest peg settings;

• the corroborating evidence of the registrant’s colleagues who had an opportunity to view his treatment room on multiple occasions and stated that his table height was low and rarely changed;

• the client’s inconsistent descriptions of the table height;

• the fact that the registrant’s last appointment before the client was for a shiatsu massage; and

• the fact that the client was booked to receive shiatsu treatment.

57Given our finding that the table was set at its lowest setting, the jointly submitted photographic evidence showing the registrant standing next to the table at the lowest setting confirms that the registrant’s hips were higher than the table height. Dr. Radomski’s evidence is that if the registrant had an erection, his penis would be pointing upwards by at least 45 degrees or more, rendering the parts of his anatomy referenced by the client, specifically the corona of the penis, closer to his waist.

58In our view, the physical and photographic evidence confirms that it would be impossible for the registrant to both (a) apply pressure on the client’s back with both hands while keeping his arms straight with locked elbows and (b) also poke, prod, rub or make a “frotteuring” movement with his penis on the client’s arm, let alone place his erect penis in her open or cupped palm or cupped fingers such that she could feel the “corona detail”.

59Contact with the registrant’s penis on the client’s arm and feeling the corona on her hand could only be possible if he bent at his knees and/or angled his body over hers while still continuing to apply pressure with both arms locked. While the College argues that is not physically impossible, there is no credible evidence to suggest that actually he did so, and the client’s evidence is that the massage continued without pause.

60As a result, we prefer the evidence of the registrant and are not persuaded that the College has established that it is more likely than not that the alleged events took place as described.

CONCLUSION

61For the above reasons, we find that the College has not proven the allegations on a balance of probabilities.

62Accordingly, we make no finding of professional misconduct.