COURT FILE NO.: 662/03
DATE: 200401026
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
THEN, MEEHAN and SWINTON JJ.
B E T W E E N:
COLLEGE OF CHIROPRACTORS OF ONTARIO
Appellant
- and -
DR. GHEZA KOVACS
Respondent
Chris Paliare, for the Appellant
Gary S. Farb, for the Respondent
HEARD at Toronto: May 25 and 26, 2004
Swinton J:
[1] The College of Chiropractors of Ontario (“the College”) appeals from the decision of a panel of the Discipline Committee dated September 29, 2003 whereby the majority determined that the Respondent Dr. Geza Kovacs did not commit any acts of professional misconduct.
Factual Background
[2] The College brought discipline proceedings against the Respondent as a result of complaints made against him by a young woman, who asserted that she was the victim of sexual assault on two occasions while under the care of the Respondent.
[3] The Complainant was 21 years old in November, 2001. She had been working for approximately one year as a registered nurse. On November 7, 2001, she first attended on the Respondent for treatment of low back pain, having been referred to him by her father, who was a patient. The Respondent was 58 years old and had been practising chiropracty for three years. He had been trained as a medical doctor and practised medicine in Rumania and Hungary before immigrating to Canada. He trained as a chiropractor in Ontario.
[4] The Complainant received treatments on November 7, 8, 9 and 12, 2001. She testified that the Respondent spoke to her on November 9 about a treatment called lymphatic drainage, in which he would massage the areas of the lymph nodes to help get rid of toxins and fats from the lymph system. She testified that he showed her a diagram showing the location of the lymph nodes on the body.
[5] The Respondent admitted that on her first visit, he discussed the lymph system with her. He confirmed that the lymph nodes are located in the facial area, temple, neck, underarm, breast area and groin and genital areas. In re-examination, he produced a diagram that he said had been shown to her, which was a diagram of the back of the knee area. This diagram was not put to the Complainant for identification. He denied showing her a diagram of the lymph system.
[6] The Complainant testified that on November 9, during the course of the treatment, the Respondent massaged around her head, temples, underarms and arms. He then massaged around the tops and sides of her breasts, through the gown and bra which she was wearing. He also massaged her bare stomach, abdomen, and upper groin area. She testified that she thought that this was all part of the lymphatic drainage procedure.
[7] The Respondent denied that this occurred, or that she was on her back that day. His treatment notes for the day show that he applied “more soft tissue therapy”.
[8] The Complainant testified that when she returned on November 12 for treatment, the Respondent reviewed the lymphatic drainage system. This time, the Respondent had her remove her bra, and he pulled down her gown and massaged her breasts. He then pulled down her underwear and massaged the groin and pelvic area. Then he began to massage her labia and the outer parts of her vagina and the top of her thighs. At this point, he removed her underwear and continued to massage her labia minor and clitoris. The Respondent then licked or spat on his fingers and inserted his ungloved fingers into her vagina, where he continued to massage her internally and externally.
[9] She testified that he then had her roll onto her stomach, and he massaged her buttocks and then inserted his fingers into her vagina and massaged her for about three minutes. Thereafter, he moved to the top of her body and massaged her temples, forehead and neck and performed some spinal adjustments.
[10] The Respondent denied that this occurred and testified that the Complainant was never on her back that day. His notes state, “She is feeling much better after more soft tissue …”.
[11] There was conflicting evidence as to whether there was another patient in the waiting room when the Complainant left that day. The Complainant said that no one was there, and while they were in the reception area, the Respondent said, “I didn’t take advantage of you. I’m a professional. I don’t think that way.” Another patient of the Respondent testified that she was in the waiting room, but heard no conversation between the Complainant and the Respondent.
[12] The Complainant testified that she was upset and after she left the office, she spoke to her boyfriend, a police officer. She reported the events to the police the following day and gave a written statement. Subsequently, on November 15, she underwent a videotaped interview with the police.
[13] The Complainant also went to the Sexual Assault Centre at Women’s College Hospital on November 14, on the advice of the police and a nurse at the Centre whom she knew. She testified that she and the nurse agreed that a medical examination was not needed, as the Complainant felt that she had suffered no injury, and time had passed since the assault. As well, she testified that she knew the risk of contracting sexually transmitted diseases (“STD’s”) was very low, given that what had occurred was digital penetration. However, she took antibiotics to combat the risk of STD’s.
[14] The Complainant also made a written complaint to the College, which led to the disciplinary proceedings.
The Decision of the Discipline Committee
[15] The decision of the Discipline Committee was not unanimous. The two person majority concluded that the College had not proven its case. They stated that a third member of the panel agreed with the result, but died before the reasons were written. Those reasons deal only with events on November 12, 2001, although the Complainant had complained about events on November 9, 2001 as well.
[16] The majority stated that the case turned on an assessment of the relative credibility of the Complainant and Respondent. They determined that none of the allegations of professional misconduct against the Respondent had been proven in accordance with the requisite standard of proof. That standard of proof was set out in Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON SC), 76 D.L.R. (3d) 38 (Ont. Div. Ct.) at p. 61 and subsequent cases as proof that is “clear and convincing and based upon cogent evidence which is accepted by the tribunal” (p. 5 of the reasons). More specifically, they were unable to find that the Respondent had sexually abused the Complainant.
[17] The majority found that the Complainant’s “credibility when testifying about the actual sexual abuse allegations was inconsistent and changeable” (at p. 10). They mentioned a number of inconsistencies pertaining to the “crucial” areas of evidence that “severely reduced” her credibility: whether the Respondent spat on or licked his fingers; whether the Respondent had difficulty in penetrating her; and the number of times that digital penetration occurred. They stated that they had given “substantial weight” to the fact that her video statement to police was “inconsistent with much of her oral evidence” (pp. 10-11).
[18] The majority also stated that they drew upon their common sense, concluding that the following did not make common sense:
(i) for a nurse to allow someone to insert an ungloved finger(s) into her vagina without protest;
(ii) that the Complainant, having been trained as a nurse, was not more concerned about sexually transmitted diseases and did not have a medical examination;
(iii) that if the Respondent committed the abuse, he would have said, in front of another patient, “I didn’t take advantage of you. I know you are uncomfortable but I am a professional and I don’t think that way”; and
(iv) that she became emotional when confronted with inconsistencies between her testimony and the videotaped statement which she gave to police.
[19] The majority also considered certain factors that, in their view, tended to disprove the College’s case:
(i) the lack of a history of complaints against the Respondent;
(ii) the fact that the Complainant was an unlikely victim because she was educated and her father was a patient; and
(iii) the fact that no other victims came forward despite publicity.
They also assessed the Respondent’s credibility, finding that language barriers may have accounted for hesitations on his part in testifying. They thought it “highly unreasonable” that an individual like the Respondent would risk losing everything by engaging in the alleged misconduct (p. 15).
[20] In contrast, the sole dissenter made completely different findings of credibility, concluding that the Complainant’s testimony was credible and her account of what took place in the Respondent’s office was “clear, detailed and convincing.” She concluded that the Respondent’s denial of virtually everything that the Complainant said was not believable and did not make common sense.
[21] The College appeals on the grounds that the majority erred in their assessment of the Complainant’s credibility and erred in law by making findings of fact and/or drawing inferences that were unsupported by the evidence in order to make their findings of credibility.
The Standard of Review
[22] Pursuant to s. 70(2) of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, S.O. 1991, c. 18, an appeal from a decision of a Discipline Committee may be made to the Divisional Court on questions of law or fact or both. The parties agree that the standard of review on an appeal from a decision of a panel of the Discipline Committee is one of reasonableness (Ressel v. College of Chiropractors of Ontario, [2003] O.J. No. 3032 (Div. Ct.) at para. 10).
[23] In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, the Supreme Court described the standard of reasonableness at para. 55:
A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, supra, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this is not one that the reviewing court finds compelling (see Southam, supra, at para. 79).
Iacobucci J. emphasized that the reviewing court must look at the reasons as a whole to determine whether they are tenable to support the decision.
[24] In this case, the Discipline Committee made findings of credibility after hearing the witnesses over the course of a four day hearing. Therefore, deference is normally owed to their findings of credibility, as they have had the opportunity to observe the witnesses. As stated by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 38:
Finally, however, the need for deference is greatly heightened by the nature of the problem – a finding of credibility. Assessments of credibility are quintessentially questions of fact. The relative advantage enjoyed by the Committee, who heard the viva voce evidence, must be respected.
[25] Moreover, a court reviewing the decisions of a lay tribunal should not be overly critical of the words used by the panel, which is composed of lay people. As noted in Re Del Core and Ontario College of Pharmacists (1985), 1985 119 (ON CA), 51 O.R. (2d) 1 (C.A.) at p. 8 (Quicklaw), “courts should not be overly critical of the language employed by such bodies and seize on a few words as being destructive of the entire disciplinary process”.
[26] Nevertheless, the College submits that this is a case similar to College of Nurses of Ontario v. Quiogue (1993), 1993 8683 (ON SC), 13 O.R. (3d) 325. There, the Divisional Court stated that it must not interfere with findings of credibility made by a discipline committee unless there was no evidence to support the conclusion, or the evidence was contrary to the conclusion reached (at pp. 4-5 Quicklaw). There, the cumulative effect of a number of errors made by the discipline committee in assessing credibility led the Court to allow the appeal and order a rehearing.
Analysis of This Case
[27] In my view, the decision of the majority of the Discipline Committee here is unreasonable. In reaching its decision, there were a number of errors made by the majority of the committee in assessing the evidence that cumulatively are so serious that the decision must be set aside, and a new hearing must be held.
The Treatment of Inconsistencies in the Complainant’s Evidence
[28] The majority commented on four areas of inconsistency between the Complainant’s oral evidence at the hearing and a videotaped interview which she gave to police on November 15, 2001 with respect to the events of November 12. The majority stated that these inconsistencies severely reduced the Complainant’s credibility. However, on examination of these inconsistencies, it appears that either the evidence does not support the conclusions reached or any inconsistency is minor.
[29] On a number of occasions during cross-examination, parts of the video statement were played, and questions were asked of the Complainant. As the majority found significant contradictions between the Complainant’s oral evidence and the video, it is useful to quote the passage in sequence that gives rise to the findings of inconsistency. At pp. 197 to 201 of the transcript, one of the more complete excerpts is found. I note, however, that there are some differences in this transcription from the one found at p. 316. I have substituted the letter C for the Complainant’s initials.
C:… the groin and I thought okay as long as he’s doing that, that’s fine --- my pubic area. He wasn’t actually touching anything yet. He did this for about maybe five, 10 minutes and then slowly started getting closer and closer to labia and --- and then he --- and he kept telling me relax, okay just relax. I wasn’t fighting him, but my muscles were tense and I wasn’t used to you know the doctor pulling my legs apart. Then he actually inserted his fingers --- to my vagina and started massaging, and I guess he had trouble so I kind of looked up. At this point I thought what is he doing.
Detective Reid: Before that were you just laying on your back with your eyes closed?
C: I was laying on my back with my eyes closed and I kind of, every once in a while I would peak upwards.
Detective Reid: Is both hands in the groin area?
C: No, he had one hand, I didn’t see exactly where both hands were going because I was lying backwards and I couldn’t directly see, but he had both hands moving and massaging at all times.
Detective Reid: Mm-hmm.
C: Then when I looked up and I really took a look, I just wanted to peak to see what he was doing and I peaked up and he licked his fingers and then inserted his fingers into my vagina again and without gloves on. That sort of surprised me and I don’t know why I didn’t say anything. I probably should have said something and sat up and --- but I figured okay ---
Detective Reid: He licked his fingers and those are the fingers that he put down between your legs?
C: Mm-hmm.
Detective Reid: Then did you feel him insert his fingers inside the vagina?
C: Yes. He inserted his fingers into the vagina and started massaging --- almost like a bimanual examination the gynecologist normally does. You put, I don’t know how many fingers, one, two inside the vagina and then you put your other hand on top of the pelvic area and you kind of do this kind of motion. It felt like he was doing that and I kind of peaked and I could see that he was sort of doing the motion, and then he was massaging other areas, one hand would be outside, the other inside and massaging the labia majora, labia minora, the clitoris, in around that area, and you know down under my legs and he did this for about 10 minutes and I think I was more in shock than anything, thinking why is he doing this? Okay he’s the doctor, maybe he’s trained to do this, I don’t know. I still felt very weird about it. Then he said, okay roll over onto your stomach. I rolled over on my stomach. I still don’t have any underwear on, no bra on. When I rolled onto my stomach the whole gown of course came off my back so I couldn’t tie.
Detective Reid: Tie.
C: Didn’t have any ties on it, and I rolled over onto my back and then he went from doing all this with his fingers in my vagina area and he came up and started adjusting my neck. He worked his way down, my arms, adjusted my back a bit, massaged all the way down my back, the muscles in my back, and then he started rubbing my buttocks --- that area, massaging around that area and again --- he didn’t insert his fingers anymore in, I thought he was going to. I said okay, if he does this one more time, I’m definitely going to sit up and say something, but he didn’t. He just massaged my buttocks, back of my thighs, all the way down to my feet, and he told me to roll back onto my stomach and started rubbing my back again. He kind of massaged my head a bit, my neck…
[30] According to the majority, the Complainant was inconsistent in describing whether the Respondent spat on his fingers or licked them before inserting them in her vagina. Two of the references to the transcript to support their reasons contain incorrect page references. If one reads the testimony at the hearing, including the Complainant’s explanation, and compares it to the videotaped statement, the statements do not seem to be inconsistent. Her words from the video statement are transcribed at p. 316 as “he kind of licked his fingers”, while the transcription at p. 199 is “he licked his fingers.” During her examination in chief, she said that he spat on his fingers (p. 133). In cross-examination, in answer to a question whether he licked or spit on his hand, she states that it was more like a spit and explained what she meant (p. 307). Even if there is some inconsistency here, it is minor in nature. Consistently, through all her statements, she indicated that the Respondent lubricated his fingers and then inserted them in her vagina.
[31] The majority also seems to speak disapprovingly of the Complainant with respect to this issue, stating that she “volunteered” in chief that the Respondent spit, but did not speak of this to defense counsel until asked (p. 10). With respect, the majority appears to have failed to appreciate the difference in the types of questions in chief and in cross-examination and, more specifically, failed to understand the closed nature of questions on cross-examination.
[32] The second area of inconsistency, according to the majority, was with respect to the issue whether the Respondent had trouble when inserting his fingers, and whether penetration was for one continuous period of time while she was on her back. In the video, she says, in part, “Then he actually inserted his fingers … to my vagina and started massaging, and I guess he had trouble so I kind of looked up. At this point I thought what is he doing…”. After an interruption by the police officer, she continued, “Then when I looked up and I really took a look, I just wanted to peak to see what he was doing and I peaked up and he licked his fingers and then inserted his fingers into my vagina again and without gloves on…” (transcript at pp. 197-99, emphasis added). She did answer yes to the question on cross-examination, “You were mistaken on the video when you said he had trouble?”
[33] The majority finds an inconsistency, saying that she testified at the hearing that the Respondent had no trouble penetrating her. However, a careful reading of her video statement indicates that she guessed that he had trouble, and then she saw him lubricate his fingers. This is further explained at p. 322 of the transcript. The majority makes no reference to her explanation.
[34] As to the continuous nature of the penetration, the majority fails to consider the explanation given by the Complainant with respect to penetration – namely, that the Respondent massaged her labia minor and then lubricated his fingers and then put them in her vagina. If her explanation is considered, there was no inconsistency. In any event, the central issue in the case was whether penetration occurred, and on this issue the Complainant was consistent throughout.
[35] The third area of inconsistency cited by the majority was with respect to the number of times penetration occurred. The majority states (at p. 11),
Her oral evidence was that he penetrated her twice while on her stomach, yet in her video statement, the Complainant said “I rolled over onto my back… he didn’t insert his fingers anymore in. I thought he was going to but he didn’t” .
The majority has erred in its recital of her evidence. In fact, her oral evidence was that she was penetrated once while on her back and once while on her stomach. Moreover, when the full cross-examination is read, it is apparent that there was some confusion about her statement on the video with respect to what happened when she rolled over onto her stomach. This was due to a misstatement in the video which caused confusion at the hearing. After clarification of the content of the video, it was accepted that the reference to her back in the quote above was a misstatement, and that she was referring to her stomach (see transcript, pp. 346, 348). Moreover, parts of the video statement have been left out in the committee’s quote above - importantly that part where she stated that the Respondent then moved from her vaginal area to her head. Following that, she made the comment that she would say something if he did it again (see the quote in para. 29 above of these reasons).
[36] The majority appears to have misconstrued the evidence with respect to the number of penetrations, both in the testimony at the hearing and in the video. The Complainant testified at the hearing that there was penetration when she was her on back and then again when she was on her stomach. There does not appear to be any inconsistency between the video or her other statements and her testimony as to the number of penetrations, if the clarification of the video is considered.
[37] Finally, the majority states, “The fact that her video statement was inconsistent with much of her oral evidence was given substantial weight by the majority.” No further details were given. In fact, the video statement appears quite consistent with her oral testimony. The one area where there appeared to be a possibly significant change between the video statement and the oral testimony was with respect to the duration of the penetrations. However, this was not mentioned by the majority, and so this must not have given them concern. The dissenting member accepted the Complainant’s explanation for the change in her estimates of time.
[38] In sum, the majority described the Complainant’s testimony as “inconsistent and changeable” with respect to the allegations of sexual abuse on November 12. However, the transcript shows that she gave explanations for the differences between the videotape and the testimony at the hearing, and that there were no material inconsistencies. The majority appears to have misconstrued certain parts of the evidence and failed to consider the Complainant’s explanations. Therefore, the majority’s assessment of her credibility based on inconsistencies is flawed.
The Use of Stereotypes
[39] The majority commented that the Complainant was an unlikely person for the Respondent to prey upon, given that she was educated and would know appropriate boundary restrictions, and her father was a patient. They also commented that with her training as a nurse, it did not make common sense to them that she would have allowed someone to put an ungloved finger in her vagina, would not be more concerned about STD’s and would not have had a medical examination. As well, the majority thought it unreasonable that a person like the Respondent would risk everything by engaging in this type of conduct, treating this and the lack of other complaints as factors tending to disprove the College’s case.
[40] The majority’s reasons rest on stereotypes about both possible victims of sexual assault and possible perpetrators. They have assumed that a woman, especially a nurse, would have responded in a particular way to sexual assault, without considering other factors in the situation, such as the age of the Complainant, the fact that she was alone in the office with the Respondent, the fact that he had explained the lymphatic system and massage therapy to her, and the fact that, in her words, she was “shocked”. With respect to the risk of STD’s, they failed to address her evidence that she believed that the risk was very low, and she took the antibiotics for peace of mind (at p. 388 of the transcript). She also explained that she saw no reason for a medical examination, given that she did not feel any injury, and time had gone by since the assault.
[41] Moreover, the majority assumed that a person in the Respondent’s position would be unlikely to commit the alleged acts. As egregious as the alleged acts are, there are many examples of individuals in a position of power who have sexually abused others, whether patients, students or other vulnerable individuals. The majority should not have treated this as a factor tending to disprove the College’s case.
[42] The majority also commented on the lack of previous or other complaints against the Respondent, despite the publicity about the criminal charges against the Respondent, saying that this, too, tended to disprove the College’s case. They stated (at p. 15),
Further, as Ms. Freeman argued, if [the Respondent] is a ‘sexual predator’, as the College contends, it would have been reasonable to expect at least one more victim to step forward with a complaint, given the media attention to the criminal charge laid in this case. However, no further complainant(s) came forward, and we are left with the Complainant’s unconfirmed evidence.
[43] While this suggests that there was extensive publicity, the only evidence of publicity is a small clip in the Toronto Sun. More importantly, the majority appear to have relied on the lack of other complaints as a factor that diminished the Complainant’s credibility. That is an error. The fact that there were no previous or other complaints against the Respondent does not confirm his version of events, nor damage the Complainant’s credibility. It is an error in law to suggest that is the case.
[44] Rather than focus on the testimony of the parties before it, the majority appears to have used myths and stereotypes about sexual assault victims and perpetrators which have influenced their decision in a manner which does not appear fair to all the interested parties.
The Failure to Consider Relevant Evidence
[45] The majority looked closely at the Complainant’s evidence and found inconsistencies which, in their view, damaged her credibility. In contrast, the majority does not appear to have looked closely at the inconsistencies in the Respondent’s testimony; rather, they appeared to look at inconsistencies in his evidence and excuse them – for example, by commenting on his difficulty with English.
[46] Moreover, the majority failed to consider some of his evidence which could be seen as supportive of the Complainant’s version of events and which may call into question the Respondent’s denial that he touched her inappropriately. For example, when the Complainant marked a diagram showing her pain level and unusual feelings on her first visit, all her marks were placed on the back side of her body. The Respondent then placed marks on diagrams in the chiropractic examination form both on the front of the body, in the breast area and groin area, and on the back of the body. He testified that this was because of problems relating to the sternum (the breast area) and the results of a psoas test showing problems in the groin area. However, his diagnosis notes do not indicate either area as problematic, and he testified that on November 9 and 12, he was never in the breast or groin area for treatment purposes, despite having marked these as areas of pain. He also denied that she was ever on her back those days, even though he marked these areas of the front of her body as pain areas. As well, some of the diagrams of treatment shown to her in cross-examination show the patient on her back. In my view, it is substantially confirmatory of the Complainant’s evidence that the Respondent would provide treatment in areas where he had identified problems, and where she had testified that treatment occurred.
[47] Moreover, his medical notes show that he gave treatment for soft tissue therapy on November 9 and apparently on November 12, although he agreed that chiropractors do not normally do soft tissue therapy. He also testified that he spoke to her about the lymph system, although he testified that this was on November 7, not November 9. While the majority commented on this in relation to his credibility, they never assessed this in considering the Complainant’s credibility.
[48] The Appellant also argues that the majority erred in stating that the Respondent would have undergone a screening process before being registered as a chiropractor in Ontario. There was no evidence to that effect.
Conclusion
[49] It is very rare for an appellate court to interfere with a tribunal’s findings of credibility. However, this is a case where there were a series of errors by the majority in considering the evidence and assessing credibility that, considered cumulatively, lead to the conclusion that the decision of the majority is unreasonable. Therefore, the appeal is allowed. As the majority and the dissenting member agreed that the College had not proven charges 2 and 4 in the Notice of Hearing, the decision of the panel is set aside only with respect to grounds 1, 3, 5, and 6, and the complaint is referred back for a rehearing of those charges before another panel.
[50] The College does not seek costs of the appeal, and none are awarded.
Swinton J.
Then J.
Released: