ONTARIO MASSAGE THERAPISTS DISCIPLINE TRIBUNAL

Date: October 9, 2025

Tribunal File No.: PC-10678

BETWEEN:

College of Massage Therapists of Ontario

College

• and -

Registrant Z

Registrant

FINDING REASONS

Heard: July 10, 11, 14, 15 and 17, 2025, by videoconference

Panel:

Sherry Liang (panel chair)

Charles Gollob (massage therapist)

Matthew Gordon (public)

Appearances:

Ahmad Mozaffari, for the College

Melissa Prada, 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 the registrant assisted her husband, also a registrant, in offering a course to help candidates pass the College’s Multiple-Choice Question Examination (MCQ). It alleges that she knew or ought to have known that her husband solicited information about actual questions on the MCQ from students who had recently written the exam and that he shared that information with students in his exam preparation course who were about to attempt the MCQ. In short, the College alleges that the registrant facilitated exam cheating. The College also alleges that the registrant obstructed its investigation into her husband’s activities by transferring files from her husband’s laptop to an external hard drive and telling a student not to cooperate with the College’s investigation.

2The Tribunal heard evidence from three College investigators, a student in the exam preparation course and the registrant. The parties also provided an Agreed Statement of Facts containing background information about the MCQ and the College’s investigation and a Joint Brief of Documents they agreed could be relied on for the truth of its contents.

3We find the College has not proved the allegation that the registrant facilitated exam cheating. We also find it has not proved that the registrant transferred files from her husband’s laptop to an external hard drive or deleted the files from a OneDrive account to obstruct the College’s investigation. Finally, the College has not proved that the registrant attempted to obstruct its investigation by telling a student not to talk to investigators.

Burden of proof and credibility

4The College has the burden of proof and must prove the allegations on a balance of probabilities. The panel must decide whether it is more likely than not that the alleged events occurred and, if so, whether they amount to professional misconduct as alleged in the Notice of Hearing. The evidence in support of the finding must be clear, convincing and cogent.

5The parties agree that credibility is an important issue in this case. In some respects, the testimony of the College’s witnesses differed from that of the registrant. Where necessary, we have assessed the witnesses’ credibility in deciding whose version of the events to accept.

6Credibility 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.

7While 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.

8While appearance and demeanour can be considered in assessing credibility, a panel should not place too much emphasis on these factors since they can be unreliable, on their own, to establish a witness’ credibility (Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 at para 66). Further, the panel may find a witness’ evidence to be credible on one point while finding the same witness is not credible on another point. We may decide to accept some, all or none of a witness’ evidence.

9Taking into consideration the above, we found the College’s investigators to be credible and reliable witnesses. Indeed, their evidence was largely uncontested. Their evidence was based on matters they had an opportunity to observe first-hand, contained no significant inconsistencies and was consistent with inherent probabilities and common sense. They gave their evidence in a straightforward manner without evasion or exaggeration.

10At the end of the day, however, the evidence of these investigators cannot directly prove the allegations. The investigators did not, for example, observe the registrant transferring files from her husband’s laptop or deleting files from a OneDrive account. They did not obtain direct evidence that the registrant was aware of her husband’s activities in collecting and sharing MCQ exam questions. To prove the allegations, the College urges us to draw inferences from the evidence before us, which requires us to assess whether “the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting the inference that it is more likely than not that the event occurred” (Haack v Secure Energy (Drilling Services) Inc., 2021 ABQB 82 at para. 114, quoted in K.R. v J.R., 2022 BCSC 1856 at para 341).

11The evidence of Vanessa Cui, the College’s remaining witness, gives rise to a different assessment. Her evidence about the events is, if believed, direct evidence of misconduct in that it amounts to an admission of wrongdoing by the registrant and a statement by the registrant that itself amounts to misconduct. Ms. Cui’s version of events is starkly different from the registrant’s and their accounts cannot both be true. For the reasons below, we found Ms. Cui’s evidence not sufficiently credible and reliable to establish misconduct on a balance of probabilities.

12While, as detailed below, we also had reservations about the credibility and reliability of some of the registrant’s evidence, the burden of proof to prove the allegations is on the College and we find that it has not met the burden.

Background facts

13The College’s registration examinations, which can be attempted after a candidate has completed an approved massage therapy education program, consist of the computer-based MCQ and an in-person Objectively Structured Clinical Examination (OSCE). The MCQ is designed to evaluate a candidate’s theoretical knowledge in various competency areas and consists of 150 questions administered over a three-hour period. The MCQ is a high-stakes examination and candidates have only three attempts to pass it, failing which they must obtain a new massage therapy diploma before attempting the MCQ again. The MCQ is offered in four blocks each year, beginning in April.

14In 2021 and 2022, the registrant’s husband (JRJ) offered private tutoring classes, for money, to prepare candidates for the College’s MCQ. These courses were offered through a company, JZJ Science Academy Inc. and its website. The registrant and JRJ are both officers and directors of the company, which was incorporated in February 2020. There are no other officers or directors.

15Among the documents in the JBD are numerous texts the College retrieved from JRJ’s cell phone. These include texts between the registrant and JRJ and between JRJ and his students. The documents also include screenshots of text conversations between an undercover investigator for the College (Investigator 1) and JRJ and screen recordings of conversations held over WeChat between students and JRJ.

16On July 24, 2022, College investigators arrived unannounced at the home of the registrant and JRJ. The purpose of this visit was to give notice to JRJ of the College investigation into allegations that he was selling CMTO licensing exam material to candidates taking the exam. The investigators also intended to obtain electronic evidence related to the investigation. The registrant and JRJ were both present during this visit. During the visit, the investigators obtained forensic images of JRJ’s electronic devices, including his laptop, phone and an external hard drive. More details about this visit are described in our analysis of the witnesses’ evidence below.

17During its investigation, the College also obtained mock MCQ exams from JRJ’s website. Prometric, a third-party company that administers the College’s MCQ and OSCE examinations, analyzed those mock MCQ exams and prepared a report for the College. The report indicated that 109 of the 1,567 mock MCQ exam questions obtained from JRJ were very similar or similar to items that had appeared on the three most recent MCQ exams administered by Prometric. One hundred and two of the 109 mock MCQs were questions that appeared on exams that were then currently being administered to candidates. Prometric determined that a large majority of the questions analyzed had first appeared on a College MCQ exam between two and seven years earlier. It also determined a large majority of items in the website’s PDFs had been circulating for some time.

18College investigators also accessed the website, www.jzjscienceacademy.ca, using JRJ’s administrator credentials obtained during the unannounced visit to his residence. The website had 137 registered users at that time. The registrant’s name and/or email address were not identified among the website’s registered users.

19JRJ communicated with Investigator 1 via WhatsApp following the unannounced attendance at his home. JRJ told Investigator 1 that the College was investigating him, that the “mock” sections of his website would no longer work and arranged for the investigator’s “friend,” who was a different undercover College investigator (Investigator 2), to retrieve 10 mock MCQ exams by copying them onto a USB drive. JRJ told Investigator 2 “Tell [Investigator 1] everything is on there. And tell her, ‘Keep it secret’.” Each of the mock exams contained between 121-161 multiple choice questions related to massage therapy theory.

The registrant did not facilitate exam cheating

20The College alleges that JRJ was engaged in exam cheating by asking students in his course to share questions from their recent MCQ exams and then giving those questions to other students about to take their exams. Among the documents before us are text messages appearing to show that JRJ obtained or intended to obtain questions from the MCQ exam from his students and shared them with other students. The registrant was not a party to these conversations. Neither the documents before us nor the College’s investigators provided any direct evidence that the registrant participated in or knew about this activity. In essence, the College asks this panel to infer, from the registrant’s role and activities in the company, that she must have known about it.

21We find that, although the registrant had a role in assisting JRJ in the affairs of JZJ Science Academy, she did not facilitate exam cheating. As indicated above, the registrant is an officer and director of JZJ Science Academy Inc. In February 2021, she (along with JRJ) signed a loan agreement between a bank and the company as “authorized signing officer” and “owner/partner.” JRJ sent the signed agreement to the bank by email, describing the registrant as his “business partner.”

22The evidence shows that the registrant helped JRJ to keep track of course payments from students. The records contain messages between JRJ and the registrant in which he tells her about receiving a payment. Further, in some texts between JRJ and his students, JRJ provides the registrant’s email address for the purpose of making payments. Records of an e-transfer to the registrant’s bank account contain messages from a student indicating they are payments for the course.

23In one exchange of messages between the registrant and JRJ, he asks if she paid herself for the month and the registrant confirms that he paid her. The registrant provided explanations for this exchange and the other texts which sought to minimize her role in the company. She claimed that payments from one student were a Mother’s Day gift to her and another was a belated wedding present from a relative and not a student. She also claimed that the conversation about being “paid” was an inside joke between her husband and herself about the importance of “rewarding” oneself. The registrant also testified that JRJ’s reports of student payments were simply his way of sharing good news about his business with her.

24We do not find the registrant’s evidence credible with respect to her role in receiving and keeping track of students’ course payments. When she received what she described as a Mother’s Day gift, she was not yet a mother. Her evidence that the payments referenced in the texts were gifts is plainly contradicted by the messages themselves, including those accompanying e-transfers to the registrant’s bank account. In one e-transfer, a student states: “Hi TinTin, here’s the payment installment to [JRJ], I have $200 balance more to make total payment,” followed by another e-transfer referring to “my full balance for my review fee.” We also find the registrant’s explanations about “rewarding” herself and of JRJ simply wishing to share good news with her lack credibility when viewed in the context of all the messages. Contrary to the registrant’s evidence, we find it more likely than not that the registrant performed a bookkeeping function within the company.

25We find, however, that this role did not extend to actively participating in the company’s teaching activities and, more specifically, preparing students for the MCQ exam. Nothing in the record refers to involvement by the registrant in teaching the MCQ preparation course. In the record of text, email and WhatsApp conversations, there are only isolated instances suggesting direct communications between the registrant and students. In one, JRJ stated that he was adding the registrant to a WeChat group so that she could share some “notes” with a student. We accept the registrant’s explanation that JRJ occasionally had difficulties using WeChat because the platform distinguishes between Chinese and non-Chinese users and when this happened, he asked her to help send material to students. The explanation is plausible and is not contradicted by the surrounding evidence. There is no evidence explaining what the “notes” consisted of.

26In another instance, the registrant asked JRJ whether she should share a “case” sent to the “secret OSCE group.” The registrant provided an explanation for the existence of a “secret OSCE group” which involved excluding a specific student. This exchange is not about the MCQ course and in any event is, as we have stated, one of only a few examples in the evidence in which the registrant may have directly communicated with students.

27The College asserted that the registrant was a member of a course WeChat group but the evidence of this is inconclusive. The WeChat group included an individual using the name “Tingting,” which is the registrant’s nickname. However, the registrant testified that this was not her, her WeChat name is not “Tingting,” and “Tingting” is a common nickname for girls in China. Her explanation is supported by the presence in the same WeChat group of other individuals named “Tingting”. It is also supported by the agreed fact that Investigator 1 had no interaction with the registrant, despite being a member of the course WeChat group.

28The registrant testified that she served as a “model” during demonstrations or practices of massage therapy techniques when her husband taught OSCE preparation. She also served refreshments to students visiting the home that she and JRJ shared. Among the texts between JRJ and his students are some that refer to the registrant, asking JRJ to give their regards or thanks to the registrant, or refer to her giving time to students and students “practising” with her. These texts are consistent with the explanations the registrant gave about her limited relationship with JRJ’s students.

29We conclude that while the registrant’s role in JZJ Science Academy was larger than she professed, it consisted primarily of helping JRJ with the financial part of the business. It did not involve her to any significant extent in teaching or in any activities in connection with the MCQ preparation course. We find the evidence insufficient to support the inference that the registrant must have known that JRJ asked students to share questions from their MCQ exam with him, for the purpose of sharing that information with students preparing to take the exam.

The College did not prove that the registrant ought to have known about exam cheating activities

30The College also submits that the registrant “ought to have known” about JRJ’s exam cheating activities.

31The registrant referred us to Ontario (College of Pharmacists) v. Bijanzadeh, 2019 ONCPDC 25. In that case, the College of Pharmacists alleged that a pharmacist who unknowingly aided in the trafficking of prescription narcotics engaged in professional misconduct by failing to exercise due diligence in filling prescriptions. The Discipline Committee’s finding of professional misconduct in that case rested to a large degree on the pharmacist’s failure to see numerous “red flags” which should have raised her suspicions about prescriptions that were ultimately determined to be forged. Among the red flags were high doses and large quantities of narcotics and five patients in one household all taking the same high dose narcotic medications. The Committee found that the pharmacist’s conduct fell below standards of practice of the profession.

32Assuming that JRJ’s activities amount to exam cheating, we do not have evidence of the kind of “red flags” found in Bijanzadeh, which might lead to the conclusion that the registrant suspected serious misconduct but proceeded anyway or ought to have known about it. The registrant’s limited interactions with students and limited role in the teaching activities of the company were not enough, in our view, to constitute “red flags” which should have alerted her to the conversations between JRJ and students about soliciting and sharing MCQ exam questions. It is arguable that, had we found the registrant ought to have known about serious misconduct by her business partner, this would constitute conduct that members of the profession would reasonably regard as disgraceful, dishonourable or unprofessional, or conduct unbecoming. However, we do not have a sufficient factual basis to make such a finding here.

The College did not prove that the registrant obstructed the investigation by transferring files from a laptop or deleting them from a OneDrive account

33As stated above, the Notice of Hearing alleged that the registrant obstructed its investigation into her husband’s activities by transferring files from her husband’s laptop to an external hard drive. In its final submissions, the College refined its factual allegations, submitting that the registrant deleted files from a OneDrive account after transferring material related to the MCQ to an external hard drive. The registrant did not object to the re-characterization of the factual allegations, addressing them on their merits.

34The panel heard the evidence of two College investigators, Andrew Sprung and Matthew Musters, and the registrant about the unannounced visit to the home of the registrant and JRJ early on Sunday, July 24, 2022. The investigators arrived at the home just before 8 a.m. and knocked on a door leading to a glass vestibule outside the house. JRJ answered the door and had a conversation with the investigators, who did not enter the glass vestibule. The investigators notified JRJ of the investigation and told him that the purpose of their visit was to gather electronic evidence.

35The investigators had a list of the electronic devices they were seeking, which was also detailed in the summons they gave to JRJ. After some discussion, JRJ stated that he needed time to speak to his wife, who was upstairs sleeping, as well as to review the documents the investigators gave him. JRJ mentioned that his wife was pregnant and it is not in dispute that the registrant was at this time about 8 months pregnant.

36JRJ had a cell phone in his hand at this time and the investigators agreed to allow him time to go inside the house, provided he left his cell phone on a chair inside the vestibule and left the front door open so they could keep him in sight. At about 8:15 a.m., JRJ went inside the house with the documents and left his cell phone in the vestibule. The investigators observed him through the open door as he spoke to the registrant and reviewed the documents.

37JRJ was inside the house for about 15 minutes. The investigators were able to observe him throughout this time. They also saw the registrant, but she was not always in their sight. JRJ then returned to the door and told the investigators he needed more time and wished to consult with his lawyer. The investigators told him that he could have more time for that purpose but asked him to leave the devices they were seeking with them. These consisted of his cell phone, his laptop and a hard drive called “Dr. J.” The investigators indicated they would permit JRJ to go inside the house and close the door for privacy while he tried to contact his lawyer. JRJ wrote down his lawyer’s contact information from his cell phone, went inside the house and returned with his laptop and a hard drive. He left these in the vestibule, went inside the house at about 8:40 a.m., and shut the door.

38After about 5 minutes, JRJ returned to the door, told the investigators he had not been able to contact his lawyer, and said they could enter the house to digitally image or download the electronic data they needed. The investigators went in the house and entered the living room, which was set up like a massage therapy treatment room. As they were setting up their equipment, JRJ went upstairs. The investigators realized they needed passwords from JRJ, called up to him and he provided them.

The evidence about deletion of information

The investigators’ evidence

39The investigators began imaging (copying the contents of) JRJ’s laptop. During this process, they discovered evidence that files were in the process of being deleted, even as they were working with the laptop. They took screenshots of notifications on the laptop showing that dozens of files with a “.jpg” extension were “pending removal” from a OneDrive account. The investigators could not see the contents of the files but the screen showed titles, such as “concentric contraction.jpg,” “ballistic stretch.jpg” and “Contusion vs Concussion.jpg.” These file names are relevant to massage therapy.

40The screenshots of the laptop were taken between 10:39 a.m. and 10:43 a.m. At that time, the notifications stated that the deletions were initiated “2 hours ago.” While the combination of these two pieces of information suggests that the deletion of files was initiated at 8:40 a.m., the investigator testifying about this matter, Mr. Musters, acknowledged that it is only possible to arrive at a rough estimate. He testified that, in theory, the deletion could have been initiated as early as 7:44 a.m., though no later than 9:40 a.m. He also testified that the deletion could have been implemented through a device other than the laptop, since the files were deleted from a OneDrive account that is independent of the laptop.

41The investigators found no evidence that the laptop had been connected to an external hard drive that morning, or that files were transferred from the laptop to an external hard drive.

Vanessa Cui’s evidence

42Vanessa Cui, a student in JRJ’s MCQ exam preparation course, also gave evidence relating to the transfer of information relevant to the investigation. Ms. Cui took the course from February 2021 to July 2022. She wrote the MCQ exam twice, in March 2022 and August 2022, passing in August 2022. She obtained her certificate of registration as a Registered Massage Therapist in March 2024.

43Later on the same day that the investigators visited JRJ and the registrant’s home, Ms. Cui contacted JRJ to tell him that she was unable to access the mock exam questions on the course website. The WeChat history shows that JRJ and Ms. Cui spoke on the phone after this. Ms. Cui testified that JRJ told her that the College was investigating him, the mock exam section on the course website was no longer available, she would have to go to his house to obtain that material, which had been transferred to a USB, and she should keep it secret. Ms. Cui told JRJ that she would go to his home, a 30-minute drive from her home, at 8:30 p.m. that evening.

44According to Ms. Cui, while she was at their home, the registrant told her that two investigators had attended at the home and wanted to examine their computer. The registrant told Ms. Cui, without prompting, that she overheard the investigators speaking about this from the second floor of the home and that when the investigators went up to fetch the computer, she had already removed MCQ practice questions from the computer.

45Ms. Cui testified that the registrant told her she transferred the questions to another computer or an external hard drive. She testified that the registrant stated that, as a result, the computer the investigators obtained had nothing substantial on it. When asked during her examination-in-chief if the registrant talked about “deleting” information, Ms. Cui did not recall such a statement. However, in re-examination, Ms. Cui confirmed in answer to the College’s questions that it was the registrant that told her about deleting information and removing material from the laptop.

The registrant’s evidence

46The registrant testified that when the investigators arrived at the home on the morning of July 24, JRJ answered the door while she remained upstairs in bed. She stated that she had been experiencing discomfort as her pregnancy progressed and at this time was less than a month from her due date. She did not hear the conversation between JRJ and the investigators at the doorstep.

47The registrant described her alarm when JRJ told her the visitors were from the College. She found it improbable that College representatives would appear at their door early on a Sunday morning. She was fearful that the individuals were there under false pretences and intended to commit something nefarious.

48The registrant testified that JRJ had one laptop, which he kept in his second-floor office. She was not aware of how many hard drives he had. She testified that JRJ’s laptop is password-protected and accessible through facial recognition. She stated that she had no access to his laptop, his OneDrive account or his Google Drive account. The registrant denied accessing JRJ’s laptop or OneDrive account on July 24. She denied accessing any external hard drives on that date or deleting any OneDrive files.

49The registrant also denied meeting Ms. Cui on July 24. She said she has never met or interacted with Ms. Cui. She testified that she was feeling ill and was in bed that evening. She could not explain why Ms. Cui testified that she both saw and spoke with her that evening. She denied telling Ms. Cui not to speak with the College’s investigators.

The College did not prove the allegation on a balance of probabilities

50We find it more likely than not that files were deleted from a OneDrive account from inside the registrant’s residence on the morning of July 24. The deletions were likely accomplished while the investigators were in or waiting to be admitted into the home. Further, based on their titles, the files appeared to contain material relevant to the exam cheating investigation.

51It is more likely than not that either the registrant or JRJ were responsible for the deletions. The evidence in support of the conclusion that, of the two, it was the registrant who transferred and deleted the files, is largely circumstantial. The investigators observed JRJ having a discussion with the registrant after they told him of the purpose of their visit but before they were invited to enter the home. JRJ asked the investigators to have time to speak with the registrant before allowing the investigators into the home. The registrant was in the home when the files were deleted and out of the investigators’ sight for most of their visit.

52We find the circumstantial evidence is not, on its own, capable of supporting the inference on a balance of probabilities that the registrant performed the deletions. It is at least equally likely that JRJ performed the deletions. Although the investigators observed JRJ through the open door for most of the time they were waiting outside the residence, there were two time periods when he was not in their vision. First, the investigators permitted JRJ to close the door for about five minutes when he asked to phone his lawyer. Second, JRJ left the investigators on the ground floor with his laptop and went upstairs after they entered the house.

53It is plausible that JRJ could have accomplished the deletion of the files at either of these times. The deletion of OneDrive files could have been accomplished through JRJ’s laptop or any other device connected to the OneDrive account through the cloud. Since the files were in JRJ’s OneDrive account, he was likely familiar with that account and able to quickly find the files and perform actions on them.

Vanessa Cui is not a credible and reliable witness

54The only other evidence that the registrant was responsible for the deletion of the files comes from Ms. Cui’s uncorroborated testimony that the registrant admitted to these actions. We find that Ms. Cui’s testimony lacks credibility. Her evidence was at times evasive and inconsistent. In her interview with the College’s investigator, she stated that she went to JRJ’s home on July 24 because they lived close to each other. This is contradicted by the WeChat messages between Ms. Cui and JRJ earlier that day, in which she told him she was a 30-minute drive away. In a further exchange the next day, Ms. Cui told JRJ that she “lived so far away from you.” When these differences were put to her in cross-examination, her explanation, that her use of the term “lives” was meant to refer to her workplace, is not credible.

55Ms. Cui also did not disclose to the College that the reason she went to JRJ’s home on July 24 was not because they “lived close to each other” but because the MCQ mock questions had been removed from JRJ’s course website and she was anxious to obtain them from him. When this was put to her in cross-examination, Ms. Cui explained that she did not provide this information during her interview because it was contained in the WeChat records. This explanation is not credible, as the College did not obtain those records until after the interview.

56Two days after this visit, Ms. Cui again went to JRJ’s home, after telling him that she had lost everything on her hard drive. She did not disclose this second visit when the College interviewed her.

57Another part of Ms. Cui’s evidence which undermines her credibility involves her explanation regarding a text exchange between her and JRJ in which she provided him with a question from the MCQ exam after she wrote it. Ms. Cui claimed that she was simply sending JRJ one of his own mock questions as she was confused about it. Her explanation is not supported by the timing of the exchange, which occurred days after she wrote the exam and not while she was preparing for it. It is also not supported by the clear meaning of those texts. After Ms. Cui sent the question to JRJ and stated that she “had another question in mind,” JRJ responded “beautiful. Thank you Vanessa for remembering the questions. This really help [sic] me to make another mock exam.” Nothing in the exchange suggests that Ms. Cui was seeking help to understand one of JRJ’s mock questions.

58Ms. Cui’s evidence also contains some inherent improbabilities. Ms. Cui testified that she had no interactions with the registrant while taking JRJ’s course and did not communicate with her by text, WeChat or email. Although she was able to identify her in the hearing room, and accurately described her as heavily pregnant on July 24, we have no evidence of anything more than a passing acquaintance between them. We find it unlikely that the registrant would, without prompting, make an incriminating statement to Ms. Cui, someone she barely knew.

59In addition, Ms. Cui testified that the registrant told her she “overheard” the investigators telling JRJ that they wished to obtain his laptop on the morning of July 24. The undisputed evidence is that the investigators spoke to JRJ about the purpose of their visit while outside the glass vestibule of the house and that the registrant was on the second floor of the house during this conversation. We find it unlikely that the registrant could have overheard the investigators from such a distance, separated by a floor, at least two doorways and a glass vestibule.

60Ms. Cui’s evidence about the removal of information also contained inconsistencies. She testified that the registrant told her she “transferred” files from JRJ’s laptop to an external hard drive. However, the investigators found no evidence of the laptop having been connected to a hard drive on the morning of July 24. As indicated above, the files were deleted from a OneDrive account and not from the laptop. In her examination-in-chief, Ms. Cui did not recall the registrant saying anything about deleting files. However, in re-examination, she agreed with the College that the registrant talked about deleting files.

61Finally, we have some concerns about Ms. Cui’s interests in the matter. As noted above, Ms. Cui shared at least one question from her March 2022 MCQ exam with JRJ, after she wrote it. Although she did not pass the exam on this occasion, she was successful in passing the MCQ exam in August 2022. The College investigator interviewed Ms. Cui about the registrant and JRJ in January 2023, while her registration with the College was pending. Thus, at the time the College interviewed her, she had passed her exams and was awaiting her registration. Ms. Cui was aware that the College was investigating exam cheating and had reason to worry about the possibility of her own involvement coming under scrutiny. We find that these circumstances give rise to a possibility that Ms. Cui was motivated to be helpful to the College and this may have influenced her evidence.

62In assessing the witnesses’ evidence, we acknowledge some misgivings about the credibility of some of the registrant’s evidence. Above, we found her testimony about her role in JZJ Science Academy less than convincing. We considered whether this finding should lead to broader doubts about her credibility. With respect to the events of July 24, we find it possible that, despite her denial, she met Ms. Cui that evening. Ms. Cui’s description of her physical appearance is consistent with the state of the registrant’s pregnancy. However, it is also possible that Ms. Cui only saw the registrant in passing that evening and that the registrant did not remember her. As noted above, apart from this evening, there is no evidence of any meeting or interaction between these two individuals.

63Ultimately, the burden is on the College to prove the allegations and not on the registrant to disprove them. Without determining that the registrant’s evidence is convincing in all aspects, we find Ms. Cui’s evidence insufficiently credible and reliable to be clear, cogent and convincing evidence to establish on a balance of probabilities that the registrant transferred and/or deleted information relevant to the College’s investigation.

The College did not prove that the registrant told Ms. Cui not to cooperate with its investigation

64The only evidence in support of the allegation that the registrant told Ms. Cui not to cooperate with the College’s investigation is Ms. Cui’s testimony. Her testimony at the hearing was itself inconsistent. She stated (through an interpreter) that the registrant told her if anyone from the CMTO called her with questions she “can” refuse to answer. However, she also agreed with counsel for the College that the registrant told her she “should” refuse to answer.

65Ms. Cui’s evidence is less than clear about whether the registrant indeed tried to persuade her not to cooperate with the College’s investigation. But even had we found it clear, we are left with the same doubts as above about Ms. Cui’s credibility. We did not find Ms. Cui a credible and reliable witness in support of the allegation of transfer/deletion of OneDrive files, which is a key issue in this case. Our finding that her evidence about this key issue is not credible also leads us to doubt her evidence about this other allegation.

66This is not a situation in which frailties in a witness’ evidence on minor matters leave their testimony on more substantial issues intact. The reasons for our conclusion about the credibility and reliability of her evidence extend to her testimony in general. As a result, we find we cannot rely on it as proof of the allegation that the registrant tried to interfere in the College’s investigation by telling a potential witness not to cooperate.

We decline to draw an adverse inference

67The College submitted that the Tribunal should draw an adverse inference against the registrant because she did not call JRJ as a witness and infer that if she had called him, his evidence would have been unfavourable. It relies on the decision in College of Massage Therapists of Ontario v. Ewa Tekien, 2017 ONCMTO 24 at page 23.

68In Tekien, the Discipline Committee found the fact that a witness failed to attend for further cross-examination and failed to produce text messages with the registrant that it had ordered to be produced supported an adverse inference against the registrant. It found that the records would likely have demonstrated that the registrant and the witness tailored their evidence in furtherance of the registrant’s defense and undermined the witness’ credibility. In arriving at this finding, the Committee relied on the reasons in BHP Billiton Diamonds Inc. and PSAC (Chalifoux), 2008 CarswellNat 6620 for the following principle:

The general rule on adverse inference is that when a party fails to adduce evidence, either through witness or by documents, which it would naturally be expected to bring before the trier-of-fact, an unfavorable inference may be drawn against the party. The unfavorable or adverse inference which may be drawn from the omission is that if the evidence, if called, would have been injurious to, or at least not supportive of, that party’s case.

69We find an insufficient basis to draw an adverse inference against the registrant based on the failure to call JRJ as a witness. The registrant has denied being responsible for the deletion of the OneDrive files. In the circumstances, the logical conclusion of her evidence is that JRJ deleted the files. Given that JRJ was the subject of a College investigation, it is implausible to expect the registrant to call him to testify against his own interests, potentially admitting to the very misconduct the College was investigating.

70In these circumstances, we do not find this to be a situation in which the registrant would “naturally be expected” to call JRJ as a witness. These facts are different from those in Tekien. Further, the College was equally capable of calling JRJ as a witness if it believed that his evidence would support its case against the registrant.

71The registrant’s decision not to call JRJ as a witness does not lead us to apply an inference that his testimony would have been damaging to her case.

Conclusion

72In conclusion, we find the College has not shown that it is more likely than not that the registrant committed professional misconduct. We make no finding of misconduct.