CITATION: Stefanov v. College of Massage Therapists of Ontario, 2016 ONSC 848
DIVISIONAL COURT FILE NO.: 473/14 DATE: 20160210
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aitken, Swinton, C. Horkins JJ.
BETWEEN:
STEFAN STEFANOV
Appellant
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
Respondent
Michael B. Fraleigh and Martine Garland, for the Appellant
Jaan Lilles and Ian MacLeod, for the Respondent
HEARD at Toronto: January 11, 2016
C. hORKINS J.
introduction
[1] The appellant, Stefan Stefanov, appeals the decision of the Discipline Committee Panel (the "Panel") of the College of Massage Therapists of Ontario (the “College”) dated May 8, 2014 (“decision”).
[2] The Panel found that Mr. Stefanov breached a standard of practice of the profession, engaged in sexual abuse of a patient and engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[3] Mr. Stefanov also appeals the Panel's penalty decision made on September 19, 2014. The Panel ordered, among other things, that Mr. Stefanov's certificate of registration be suspended for a period of twelve months.
[4] Mr. Stefanov seeks an order that the decision be set aside and a declaration that he is not guilty of professional misconduct and sexual abuse as alleged. In the alternative, he seeks an order that the allegations of professional misconduct and sexual abuse against him be remitted for a new hearing before a differently constituted panel of the Discipline Committee.
[5] Lastly, Mr. Stefanov seeks an order that the Penalty Order be quashed or, in the alternative, reduced and an order for costs of this appeal.
[6] For reasons that are set out below, I conclude that the reasons of the Panel are so flawed that the Panel produced an unreasonable result. The appeal must therefore be allowed and the matter referred back for a new hearing before a differently constituted panel of the Discipline Committee.
overview of the evidence
[7] The events giving rise to the decision occurred on December 12, 2011. On that day, the respondent DH attended at Elmwood Spa ("Spa") for a massage therapy treatment with Mr. Stefanov.
[8] Mr. Stefanov has been registered with the College since September 2009 and has continued to work at the Spa since May 2011. He received his degree in Kinesiology and a Certificate for Reflexology and Sports Massage from the National Sports Academy in Sofia, Bulgaria. He practiced in Bulgaria for several years before moving to Canada and receiving his diploma from the Wellspring College of Massage Therapy and Aesthetics in 2009.
[9] At the time of the hearing, DH was a thirty-eight year old graduate student in clinical developmental psychology. DH has two undergraduate Arts degrees, one with a concentration in theatre and the other with a concentration in psychology. Her evidence was that she had received over one hundred massages in her lifetime.
[10] When DH arrived at the Spa on December 12, 2011, she completed a health history form electronically on a computer in the reception area. DH then went to the ladies change room, where she met her friend, and they went to use the pool facilities. DH and her friend changed into robes and sat in the waiting area for the massage therapy to begin.
[11] Mr. Stefanov introduced himself to DH and then directed DH to the Turquoise Room for her massage therapy treatment. Mr. Stefanov reviewed and discussed the health history with DH. DH specified that she had tension due to stress and that she wanted him to work on her forearms, outer hips and IT bands. DH wanted deep tissue massage in these areas.
[12] Mr. Stefanov left the room. DH then disrobed, laid face down on the massage table and covered herself with the sheets on the table.
[13] Mr. Stefanov's evidence was that the massage rooms at the Spa were set up with two sheets and one duvet blanket. DH could not recall if there were one or two sheets or a duvet cover.
[14] Mr. Stefanov testified that when he returned to the room, he performed the massage of DH according to Spa protocol. While DH was lying face down (“prone position”) he massaged the upper body, including shoulders and back, followed by the legs. After DH turned over to lie face up (“supine position”), he then massaged the upper legs, lower legs and then upper body.
Body Massage in Prone Position
[15] Mr. Stefanov testified that he undraped the sheets from DH's back, covering the lower part of her body from the waist down. He then massaged DH's shoulders, upper back and neck.
[16] According to Mr. Stefanov, after he completed the massage of DH's upper back and shoulder area, he re-draped DH's lower back to the posterior superior iliac spine ("PSIS") level at the end of the lumbar curve, and tucked the drape underneath the outside of the hips so that the border of the drape was at the PSIS level. The positioning of the drape stayed at the same level throughout the lower back massage and always maintained coverage of DH's buttocks.
[17] Mr. Stefanov testified that, during the massage, he asked DH whether she was comfortable and she answered yes.
[18] DH's evidence about this portion of the massage is very different. DH testified that Mr. Stefanov exposed her buttocks and massaged her buttocks with "one hand going counterclockwise and the other hand going clockwise around my butt cheeks". DH went on to testify that "at one point he asked me if I was comfortable". DH replied: “I guessed it was okay".
[19] DH testified that she asked Mr. Stefanov to massage her outer hips and IT band and that when he massaged the outer hip and IT band"he draped the buttock cheek of the side that he wasn't working on".
[20] DH testified that, at this point, Mr. Stefanov fully undraped her buttocks again and massaged her buttocks in a circular motion. He circled around the outside of her butt cheeks and, as he came around the bottom of her buttocks, she felt his thumbs go into the crack of her butt. DH testified that this happened twice and, on the second occasion, she said: "I felt his thumbs go inside the crack and I felt one of his thumbs touch my labia".
[21] Mr. Stefanov denied ever pulling the covers down to expose DH's buttocks. He also stated that he never massaged DH's buttocks in a circular motion and did not touch DH's labia.
[22] Mr. Stefanov testified that DH never expressed any concerns during the massage and her body was quiet. He explained this to mean that, if the body is uncomfortable, the patient would have a visible body reaction, including tremors or muscle contractions, or she may make sounds or request him to stop. Mr. Stefanov stated that none of these signs was present with DH.
Lower Legs in Prone Position
[23] Mr. Stefanov testified that once he completed the massage of DH's lower back, he draped the back and arms to temporarily provide a full body drape. He then moved down to the side of table and undraped the blanket from ankle to knee and from knee to hip area, with the sheet still covering the body. Mr. Stefanov then undraped the sheet from ankle to knee and tucked this into the inside of the leg. He then slightly elevated each leg with his hands and tucked the sheet into the outside of the hip area, creating a diagonal from knee to hamstring.
[24] Mr. Stefanov then massaged DH's legs, one leg at a time, including her hamstrings, calves, ankles and feet. DH's evidence was consistent with that of Mr. Stefanov.
Flipping to Supine Position
[25] Mr. Stefanov testified that he then moved to DH's head and asked: "How do you feel so far?" DH responded "so far so good". At this point, DH then turned onto her back for the second half of the massage. To do so, Mr. Stefanov elevated the sheet and asked DH to slide her body down and turn over, face up. Mr. Stefanov testified that, during this rotation, with the sheet lifted up, he was unable to see DH's face. Every part of her body was covered.
[26] DH similarly stated that her body was fully draped with both arms underneath the covers. She acknowledged that this part of the massage "seemed totally like experiences [she'd] had before, there was nothing unusual about it".
[27] Mr. Stefanov testified that he then placed a small damp towel with lemongrass essential oil over DH's face, eyes and forehead. A pillow was placed under DH's knees.
[28] DH did not recall whether a small towel was over her eyes and did not remember whether there was a pillow under her knees.
Upper Leg Massage While in Supine Position
[29] Mr. Stefanov testified that, after DH was positioned, he worked the lower part of the body. He undraped the blanket and sheet of one leg from ankle to knee and knee to hip area, and he tucked both the sheet and blanket under the hip.
[30] DH testified that Mr. Stefanov massaged each leg individually and that "he removed the draping from the leg that he was working on and tucked it in, in between my legs like right at the very top of my inner thigh and then like outside, on the outside, like really high, high up on my hip …. about an inch of my bikini area was exposed". DH described her bikini line to be "the place that quite often pubic hair grows that might be exposed if you were wearing a swimsuit", and she specified that the exposed portion included part of the vulva. DH stated that Mr. Stefanov massaged up to the very top of her inner thigh.
[31] Mr. Stefanov’s testimony was different. He stated that his leg draping was secure, and it was not possible to uncover the inside of the thighs, including DH's genital area. Mr. Stefanov also testified that at no time during this portion of the massage did he massage DH's upper inner thighs. He explained that the draping he used actually covered this region of DH's thighs that DH alleged he massaged. Further, at no time were DH's vulva and genitals visible to him. The draping did, however, allow him to work the quads and IT bands.
Lower Leg Massage While in Supine Position
[32] According to Mr. Stefanov, after completing both legs, he draped the legs and moved to the end of the table by DH's feet. He then folded the blanket and sheet and rolled them to cover the legs to just above the knees. He then massaged from DH’s ankle to knee several times. After completing this portion of the massage, Mr. Stefanov pulled the drape down to cover the legs and feet.
[33] DH described this part of the massage much differently. She testified that, while her legs were draped to the knee, Mr. Stefanov picked up each of her legs and moved them to the outer edges of the massage table, placing them in a “V” formation.
[34] DH stated that once she was in this position, Mr. Stefanov massaged her legs from ankle to knee. After repeating this motion a couple of times, Mr. Stefanov continued this motion up “as far as [her] thighs go. He didn't touch [her] genitals at that point".
[35] According to DH, Mr. Stefanov then brought his hands to the top of her inner thighs and his thumbs touched her labia and his fingers touched her vulva.
[36] In response to the alleged touching of her labia, DH stated that she "was curious about what he was doing so [she] lifted [her] head up ... and peeped down". She further stated: "it appeared to me that Mr. Stefanov was kind of leaning down in as though he was trying to look between my legs under the covers". DH was of the view that "Mr. Stefanov was crouching down far enough while reaching to [her] thighs in order to look at [her] genitals".
[37] DH testified that she was uncomfortable that somebody had just touched her. When asked how many times she was touched she said:
So I am -- I don’t -- I couldn’t say for sure, at least once. Like I know it happened once and I just kind of freaked out in my head like at that point, I got really tense and really -- like I just stiffened up and like I don’t, I don’t know it was like my brain kind of zapped up and I just didn’t want to believe what was happening.
[38] In contrast, Mr. Stefanov testified that he did not massage DH's inner thighs and he did not move DH's legs. Her legs were in the normal position, with approximately one fist between the legs. At no time, did he pick up her legs to increase the spacing. Further, Mr. Stefanov testified that his hands never went under the drape, nor did he lean over and look under the drape.
Upper Body Massage While in Supine Position
[39] Mr. Stefanov testified that the last part of the massage involved the upper body, including the arms, shoulders and forearms. At that time, he took each of DH's arms out from under the sheet and blanket, one at a time, and placed the arms on top of the blanket. Mr. Stefanov testified that, after massaging DH's arms and shoulders, he finished by massaging the neck area. Once the massage was complete, he removed the compress from DH's eyes.
[40] DH testified that at the end of the massage, Mr. Stefanov moved up to the head of the table and massaged her shoulders and neck. When he was doing that, DH asked him to work on her forearms. "I said to him that I had asked him to work on [my] forearms which he hadn't worked on yet and he, he did. He worked on my forearms really briefly and then the massage was done".
After the Massage
[41] DH testified that after the massage, she met her friend in the women's change room. DH began crying and told her friend about the massage with Mr. Stefanov. DH then spoke with Ms. Yamashita, the duty manager at the Spa. DH told Ms. Yamashita that she was not happy with the massage. She thought Mr. Stefanov was inappropriate, and she was very uncomfortable during the massage, even though she had had a lot of massages before. Ms. Yamashita testified that DH “looked upset. She was almost in tears and I could only tell that she was very upset”.
[42] On December 13, 2011, DH filled out the complaint form from the website of the College and described the massage with Mr. Stefanov (the "complaint form"). She then emailed the complaint form to Ms. Manchisi, one of the managers of the Spa.
[43] Mr. Stefanov testified that on December 13, 2011, he met with Ms. Manchisi and was asked about the massage with DH. Mr. Stefanov was told that DH had made a complaint regarding inappropriate touching and draping. Mr. Stefanov was not provided with a copy of the complaint form at that time. Mr. Stefanov testified that he was asked to complete a note regarding the massage and did so on December 15, 2011.
[44] On March 12, 2012, DH met with Robin Barker, the investigator for the College, and prepared a written statement about the massage (the "written statement").
[45] On April 3, 2012, Mr. Stefanov prepared a written report for the College in response to DH’s statement.
[46] On November 23, 2012, a Notice of Hearing was issued by the College setting out the allegations against Mr. Stefanov. The hearing took place on June 26 and 27, 2013 and September 19 and 20, 2013.
[47] Each party called an expert to testify. On the following key points the experts were in agreement. The practice of draping allows the member to cover the client safely and give access to the area to be massaged. A secure drape prevents a part of the body from being exposed. A drape might be loose yet secure. A drape can become loose if a client moves, due to rhythmic techniques and/or moving the client. Should this happen, the member is to re-secure the drape. Exposure and/or touching of the buttock, genitals and/or the gluteal cleft are not permitted. Similarly, it is not appropriate for the member to place his hands under the drape and massage the body.
the decision and Reasons
[48] On May 8, 2014, the Panel released its “Decision and Reasons” (“reasons”), finding that Mr. Stefanov had contravened a standard of practice of the profession, engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, and engaged in sexual abuse.
[49] The Panel first considered if any of the standards of practice were breached before considering the allegations of sexual abuse. It correctly stated that the burden of proof was on the College to prove its case on a balance of probabilities, based on clear, convincing and cogent evidence.
[50] The outcome of the hearing turned on the Panel’s assessment of credibility. The Panel stated that, when assessing credibility, some of the factors to be considered included:
Opportunity to observe
Common sense
Probability or improbability of the witness’ story
Whether their statements were consistent
Whether there was anything confirming one version of events over another
Whether witnesses were forthright in their evidence
Appearance and demeanour of the witness
[51] The Panel found that the thrust of the College’s case was that Mr. Stefanov failed to maintain the standards by doing the following:
The [un]draping of the buttocks
Exposing all of the gluteal cleft
The draping of the anterior leg which exposed the vulva and massaging the inner thighs without permission
Massaging legs with hands under the sheets and thereby massaging the inner thighs
[52] The Panel found Mr. Stefanov guilty of allegations in 1, 2 and 4 as set out above. They found that allegation 3 was not proven.
[53] Having determined that Mr. Stefanov was guilty of allegations 1, 2 and 4, the Panel turned to consider the allegation of sexual abuse of DH.
[54] Sexual abuse of a patient by a member is defined in subsections 1(3) and 1(4) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 as follows:
- …
(3) In this Code"sexual abuse" of a patient by a member means,
(a) sexual intercourse or other forms of physical sexual relations between the member and the patient,
(b) touching, of a sexual nature, of the patient by the member, or
(c) behaviour or remarks of a sexual nature by the member towards the patient.
(4) For the purposes of subsection (3)"sexual nature" does not include touching, behaviour or remarks of a clinical nature appropriate to the services provided.
[55] Section 1.1 of the Health Professions Procedural Code further clarifies the purpose of the sexual abuse provisions:
The purpose of the provisions of this Code with respect to sexual abuse of patients by members is to encourage the reporting of such abuse, to provide funding for therapy and counselling for patients who have been sexually abused by members and, ultimately, to eradicate the sexual abuse of patients by members.
[56] The College alleged three areas of inappropriate touching as follows:
Simultaneously massaging both buttocks and running a digit up the gluteal cleft and touching the labia
Touching the labia and vulva when massaging the anterior legs under the sheets
Looking under the sheets at DH’s genitalia
[57] The Panel found that the inappropriate touching described in 1 and 2 had occurred, but rejected the third allegation. It found that there was a pattern to Mr. Stefanov’s behavior that suggested the touching was not accidental. The complete undraping of the buttocks was inappropriate and could be viewed in “a sexual light”. This was reinforced by the simultaneous massage of the buttocks and touching of the labia and vulva. Finally, the Panel found that there was no clinical reason for this touching.
[58] Turning to the penalty, the Panel ordered the following sanctions:
Mr. Stefanov's certificate of registration be suspended for a period of twelve months, and that such suspension be remitted for three months if Mr. Stefanov attends counselling in accordance with the terms of the Penalty Order
Mr. Stefanov's certificate be amended to require him to enroll in and complete the College's ProBE course
A public and recorded reprimand
Mr. Stefanov pay costs to the College in the amount of $7,500 and make a further payment of $2,500 for security for funding of counselling for DH
standard of review
[59] The standard of review on this appeal is reasonableness. I acknowledge that the findings of the Panel are entitled to a high degree of deference, especially when those findings rest on an assessment of credibility. I also recognize that a reviewing court should not minutely dissect the reasons of a tribunal or retry the case.
[60] The question is whether the reasons of the tribunal support the decision after a fair examination. In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, the Supreme Court of Canada put the question as follows, where McLachlin C.J.C. said, at para. 47:
The content of a standard of review is essentially the question that a court must ask when reviewing an administrative decision. The standard of reasonableness basically involves asking "After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?"
[61] In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Bastarache and LeBel JJ. expressed the standard in this way, at para. 47:
A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
Analysis - The Decision is Unreasonable
[62] To support a finding of professional misconduct, “the balance of probabilities requires that proof be ‘clear and convincing and based upon cogent evidence’” (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 31). This is particularly important in this case because sexual abuse is one of the most significant and serious findings that the Panel can make against a member. Given the consequences of such a finding, the Panel is required to act with care and caution in assessing and weighing all the evidence. In doing so, the Panel must ensure that the evidence is of such a quality and quantity to justify a finding of sexual abuse (Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON SC), 15 O.R. (2d) 447 (Div. Ct.), at pp. 486-488).
[63] This was a classic credibility case. Mr. Stefanov consistently denied DH’s allegations against him. The allegations either happened or they did not. The Panel had to be persuaded on a balance of probabilities that the wrongdoing alleged by DH actually occurred. The credibility of DH was critical to the outcome.
[64] The Panel found that DH was “very credible” and Mr. Stefanov was not. They found her version of the events “to be more probable”. The pathway to this conclusion was incomplete, not transparent and unintelligible. Further, there was minimal consideration of Mr. Stefanov’s evidence and an unreasonable explanation given as to why his evidence was rejected.
[65] Credibility assessments have two constituent elements: honesty and reliability (see Karkanis v. College of Physicians and Surgeons, 2014 ONSC 7018, 329 O.A.C. 114 (Div. Ct.), at para. 52). The Panel may have found DH to be honest, but they failed to do a proper analysis as to whether her evidence was reliable. As a result, their credibility assessment of DH was flawed and incomplete. I turn now to the analysis that supports this conclusion.
[66] The Panel divided their review of the evidence into four areas:
The undraping of the buttocks and exposure of the gluteal cleft
The anterior leg drape, exposure of the vulva and massage of inner thighs
Massage of inner thighs with hands under the sheets
The inappropriate touching (sexual abuse)
[67] The reasons reveal the flawed nature of the Panel’s determination that DH was credible and Mr. Stefanov was not. First, the Panel gave sparse consideration to DH’s inability to recall details and no consideration to the inconsistencies in her evidence. Second, having rejected two significant allegations (that Mr. Stefanov exposed DH’s bikini and vulva areas and that he looked under the sheets at her genitalia), the Panel did not consider the relevance of this rejection in their credibility assessment. Lastly, the Panel gave minimal consideration to Mr. Stefanov’s evidence and unfairly characterized and scrutinized his evidence that they did acknowledge.
1. Undraping of Buttocks
[68] Dealing first with the exposure of the buttocks, the Panel found that DH was “very credible” and gave the following reasons:
[S]he was very clear that her buttocks were exposed as she could tell when a sheet was on her skin and when it was not. DH’s thought process that ‘she shouldn’t be a prude as this might be the norm for someone trained in Russia’ gave further credibility.… DH had a regular history of having massage therapy, there had been no incidents in the past and she had never met Mr. Stefanov until that day. The hearing was stressful and emotional for DH and, with her educational background in psychology, the Panel could not conceive what motive DH would have for making this up. [Emphasis added.]
[69] As noted above, the Panel found DH to be very clear about her buttocks being exposed. However, DH was not always clear about whether her buttocks were exposed.
[70] On December 13, 2011, DH filled out the complaint form from the College’s website. She then emailed the complaint form to Ms. Manchisi, one of the managers of the Spa. In this complaint form, DH states that Mr. Stefanov “left my right buttock exposed while massaging my upper back”. When DH testified in chief before the Panel, she said that her buttocks were covered during the massage of the upper back. When confronted with this inconsistency during cross-examination, DH acknowledged the discrepancy in her evidence. She “did not know” if her description in the complaint form was correct or not.
[71] The reasons of the Panel do not reveal any consideration of this inconsistency and inability to recall which version was correct. As noted above, the Panel described DH as very credible because she was “very clear that her buttocks were exposed as she could tell when a sheet was on her skin and when it was not”. However, this inconsistency reveals that DH was not always very clear about the exposure of her buttocks. The Panel did not consider this in their credibility assessment of DH.
[72] In her written statement to the College, DH described as follows the massage of her lower legs while she was still prone:
I believe he then began to massage my lower legs and my feet while I was prone. When he worked on my lower legs, Mr. Stefanov covered my upper back. I think he covered my entire buttocks but I couldn’t say for sure. By this point, my feeling was that more than half the time allotted for my massage had gone by.
[73] DH was cross-examined about this evidence. She agreed that, when she was talking to the College investigator, she could not recall if her buttocks were draped or not. The following exchange occurred:
Q. I suggest to you, Ms. H that at certain points in the massage you were unable to perceive where the draping was?
A. You can suggest that all you like.
Q. And you wouldn’t agree with that?
A. I think that when I was laying down I had a pretty good sense of approximately where I was covered and where I wasn’t, yes.
Q. But in this statement here you are unsure?
A. Once again, I do not—at the time that I wrote this statement, I could not recall if I was draped or not.
[74] The reasons of the Panel do not reveal any consideration of the above evidence. Since DH is on her stomach and cannot see her buttocks, her ability to know whether or not her buttocks were draped depended on what she could feel. The Panel did not address in the reasons how DH could be certain about exposure of her buttocks at certain points and yet unsure at other times during the massage.
[75] The Panel acknowledged that Mr. Stefanov consistently denied exposing DH’s buttocks. However, his evidence was rejected because the Panel found DH’s evidence “more probable”. Given this, the Panel found there was no reason to doubt DH. They explained that, since they had “accepted that DH’s buttocks were fully undraped, this means that all of the gluteal cleft was exposed”. This led the Panel to conclude that the standard of practice of the profession in this regard was not met.
[76] The Panel did not explain why DH’s evidence was more probable than Mr. Stefanov’s evidence. This is an important step in assessing credibility because Mr. Stefanov was consistent about draping the buttocks and DH was not.
[77] Mr. Stefanov argued that DH’s “memory lacked clarity”. The Panel acknowledged that DH could not recall the set-up of the massage room. They found that this did not reflect on DH’s credibility because “most clients do not take the time to study the setup of a treatment room”. The Panel does not explain how they would know what most clients take the time to consider during a massage. There was no evidence on this point.
[78] The reasons do not reflect any consideration of the inability of DH to recall many other details of the massage. The transcript shows that when DH entered the massage room she could not recall if music was playing or if the lights were dimmed. She could not recall if she discussed her health history with Mr. Stefanov. DH could not recall if Mr. Stefanov applied light pressure to her back at the start. She could not recall any pressure on her back before the undraping. When DH placed her face down on the table into the horseshoe cradle, she could not recall if there was a cloth or fabric covering on the cradle. DH could not recall if there as a duvet used to cover her. DH could not recall if Mr. Stefanov placed a pillow beneath her lower legs and ankle area at the start of the massage. When she turned over onto her back, DH could not recall if Mr. Stefanov placed a pillow under her knees or a cold compress over her eyes.
2. Anterior Leg Drape
[79] This part of the massage occurred after DH turned over and was lying on her back. DH testified that the anterior leg drape exposed her bikini area and part of the vulva while Mr. Stefanov massaged her inner thighs.
[80] The Panel did not accept DH’s evidence. They found that the “bulk of the sheet and blanket in between the thighs would not allow a lot of access to the inner thigh or expose the vulva”. The leg drape was correct and “the area massaged was not the upper inner thigh but lower down the abductors”.
[81] The Panel states that DH “might have believed this area was exposed” when it was not. This is based on the Panel’s belief that her “skin was sensitive where she shaved (bikini area and upper thigh) and due to that she might have believed this area was exposed”. In trying to explain their rejection of DH’s evidence, the Panel speculated about the sensitivity of DH’s skin.
[82] DH testified that she could tell the bikini area was exposed because she had shaved the bikini area the morning of the massage and the skin in the shaved area felt cooler when exposed. The Panel found that the bikini area was properly draped. Therefore, it was not exposed. There was no evidence to support the Panel’s belief that the skin was sensitive when covered.
[83] The Panel did not consider whether their rejection of DH’s evidence in this area impacted the reliability of the rest of her evidence that the Panel chose to accept. This is an essential element of a credibility assessment.
3. Massage of inner thighs under the sheets
[84] The reasons about this part of the massage are brief. Mr. Stefanov moved to the end of the table. The drape over the legs was rolled up to the knees and Mr. Stefanov states he massaged from the ankles to knees. The Panel notes that the parties “agreed that both legs were draped to just above the knees”.
[85] The Panel accepted DH’s evidence that Mr. Stefanov massaged under the sheets to her inner thighs. Mr. Stefanov denied that this happened. The following brief reasons were given:
The Panel looked at the credibility of both witnesses and found DH more credible for reasons listed above. Also, the Panel found Mr. Stefanov’s testimony to be extremely detailed for an event that took place several years ago and his testimony was more along the lines of what he does in a massage than what happened with DH. Exhibit 17, a letter to the College showed this. The letter was written four months after the massage, yet it was full of very specific information like what massage techniques were used and when and in what order, even what questions he asked of DH and her answers. The Panel finds this degree of detail to be questionable and for those reasons, finds DH to be more credible. [Emphasis added.]
[86] When the Panel refers to the “reasons listed above” for finding DH more credible, there is nothing more in the reasons than the flawed consideration of the evidence that I have already described. Furthermore, the starting point for the Panel was that DH was “very credible”, in great measure because, due to her education in psychology, the Panel could not conceive of what motive she would have for making up her allegations. This conclusory reasoning informed their entire analysis.
[87] To say that Mr. Stefanov’s detailed testimony is a reason for preferring DH’s evidence is illogical. Mr. Stefanov’s account of the events was no more detailed than DH’s testimony and yet she was found credible and he was not.
[88] The Panel had evidence from Mr. Stefanov that was relevant to why a person in his position would recall the events in detail. He was told the day after the massage that DH had made serious allegations against him. There is no indication in the reasons that this evidence, as set out below, was considered by the Panel.
[89] On December 13, 2011, the day after the massage, Mr. Stefanov had a meeting with his manager. The manager told him that “[DH] made a complaint against you for inappropriate touch and inappropriate draping. I was surprised, I was in shock”. The same day, Mr. Stefanov prepared a handwritten, one and half page memorandum for his manager, setting out his recollection of the massage. At this point he did not have a copy of DH’s complaint form. On April 3, 2012, Mr. Stefanov prepared a four and half page handwritten report for the College. This more detailed account was prepared after Mr. Stefanov was given DH’s written statement that she signed on March 12, 2012.
[90] The Panel’s treatment of DH and Mr. Stefanov is this area was very uneven. The stress and emotion that DH experienced was a reason why the Panel “could not conceive what motive DH would have for making this up”. Similarly, the seriousness of the allegations that Mr. Stefanov learned about the day after the massage caused him to be surprised and left him in shock. However, in the reasons, the Panel ignored Mr. Stefanov’s evidence about his reaction to the complaint.
[91] DH prepared a very brief complaint form on December 13, 2011 that consisted of two short handwritten paragraphs about the massage. It was less detailed than Mr. Stefanov’s first statement. Three months later, DH prepared a more detailed statement. The Panel found the level of detail in Mr. Stefanov’s second statement to be questionable, but did not question DH’s detailed second statement.
[92] The Panel did not address why, in regard to the previous allegation, it had rejected DH’s evidence that Mr. Stefanov had massaged her inner thighs but, in regard to this allegation, it unquestionably accepted DH’s allegation that Mr. Stefanov had massaged her inner thighs. In both circumstances, DH had not observed what was happening and was relying on her sense of touch. The Panel found that DH had misunderstood where Mr. Stefanov was massaging her legs in the earlier circumstance, but that she had accurately interpreted her sense of touch in the later circumstance. No meaningful analysis was offered as to why the Panel was so accepting of DH’s evidence based on her feelings of being touched in one circumstance, but was not convinced of her ability in this regard shortly before.
[93] Finally, the Panel rejected Mr. Stefanov’s evidence because “his was more along the lines of what he does in a massage than what happened with DH”. The transcript of Mr. Stefanov’s evidence reveals that he provided considerable evidence about the events on the day in question and, when he spoke about what he typically does, the question often elicited this type of response.
4. Inappropriate touching (sexual abuse)
[94] Three areas of inappropriate touching were considered and the Panel found that Mr. Stefanov committed a “pattern of sexual abuse”. They reached this very serious conclusion without ever considering the reliability of DH’s evidence. The flawed reasoning set out above continued, resulting in a serious finding that was not grounded in evidence that was “sufficiently clear, convincing and cogent” to satisfy the balance of probabilities test (F.H. v. McDougall, at para. 46).
(a) Massaging the exposed buttocks and touching the gluteal cleft and labia
[95] The Panel determined that DH’s buttocks were exposed and simultaneously massaged in a circular motion. They also accepted that, “with this technique there was a greater likelihood that Mr. Stefanov’s thumbs ran up her gluteal cleft and in doing so touched her labia”. Mr. Stefanov denied all of this.
[96] The Panel found Mr. Stefanov’s evidence “not to be convincing”. Once again, they relied on the detailed nature of his written statement as a reason to reject his evidence. In his statement, Mr. Stefanov records that he asked DH during the massage: “[d]o you feel secure?” The Panel found that this was not a typical question that massage therapists are trained to ask clients. The Panel therefore questioned “the likelihood that Mr. Stefanov would have even asked this”.
[97] It is readily apparent from Mr. Stefanov’s transcript and statements, that English is not his first language and that he struggles when expressing himself in written and oral English. This is an obvious possible explanation for using the word “secure” that the Panel never considered in the reasons. Further, the Panel did not give Mr. Stefanov an opportunity to explain his use of the word secure during the hearing.
[98] Otherwise, the Panel simply found that DH was “forthright” in her evidence and her version of events was “clear and concise and more probable”, therefore, Mr. Stefanov’s evidence was not convincing. The Panel gave no consideration to DH’s earlier statement that she had “thought” Mr. Stefanov had “grazed” her labia with his thumb because, considering what she felt, it “made sense” to her that it must have been his thumb.
(b) Touching the labia and vulva when massaging the anterior legs under sheets
[99] The Panel had already found that Mr. Stefanov massaged DH under the sheets. They went on to accept that he touched her labia and vulva. Their reasoning is conclusory as follows: “Given that the Panel has found that Mr. Stefanov has already breached the standard of practice by massaging under the sheets, the Panel concludes his behavior continued”. The Panel does not explain why the behavior would continue. Instead, since they find that Mr. Stefanov massaged her under the sheets, they conclude that he must have touched DH’s labia and vulva. This is impermissible reasoning.
[100] The Panel found that DH was very upset after her massage and that this supported her testimony as follows:
Counsel for Mr. Stefanov suggested that these behaviours didn’t occur as DH didn’t protest or stop the massage. The Panel accepts that a person may freeze when put into difficult circumstances especially when there is touching of sensitive areas. The Panel finds that DH tried to redirect Mr. Stefanov to other less sensitive areas of her body and this was her way of coping. The Panel also heard testimony that DH was very upset after her massage and this supported her testimony. Given this, the Panel found that Mr. Stefanov engaged in the misconduct alleged.
[101] The Panel failed to appreciate that after-the-fact conduct can only provide circumstantial evidence that an event occurred, where there are no other explanations for the conduct. This point is made in R. v. Lindsay, 2005 24240 (ON SC), [2005] O.J. No. 2870 (S.C.) where Fuerst J. said, at para. 159:
It is well-established, however, that evidence of a complainant's emotional state after an alleged offence may constitute circumstantial evidence confirming that the offence occurred, depending on the circumstances of the case, including the temporal nexus to the alleged offence and the existence of alternative explanations for the emotional state.
[102] In this case, DH’s emotional state could have been explained by her honest, but mistaken belief that her vulva had been exposed through inappropriate draping at which time Mr. Stefanov had massaged her inner thighs – two allegations which the Panel rejected. DH’s emotional state could also have been explained by her mistaken perception that Mr. Stefanov had tried to look under the sheets at her genitalia – another allegation which the Panel rejected. In that DH’s emotional state could be explained by mistaken perceptions on DH’s part, that same emotional state cannot be used, as the Panel did, as proof that other allegations actually happened.
(c) Looking under the sheets at DH’s genitalia
[103] DH testified that, while she was lying on her back with her legs spread in a “V” formation, she lifted her head because she was curious about what Mr. Stefanov was doing. She saw him “crouching down far enough while reaching to [her] thighs in order to look at [her] genitals”.
[104] The Panel did not accept this evidence and gave the following reasons:
Regarding the issue of looking under the sheets at DH’s genitalia, the Panel concluded that DH might have thought Mr. Stefanov was looking under the sheets, given his position at the bottom of the table and leaning forward, but the likelihood that he could see under the sheets is unlikely. For these reasons, the Panel finds that Mr. Stefanov did not engage in this particular misconduct alleged.
[105] The allegations that Mr. Stefanov looked under the sheets at DH’s genitalia, exposed DH's bikini area and vulva, and massaged DH's inner thigh, were specifically set out in the Notice of Hearing. These were serious allegations before the Panel that were not proven by the College. The Panel viewed DH as mistaken in what she thought happened. If DH could be mistaken about these serious allegations, could she be mistaken about the rest of the allegations? The Panel never considered this possibility in the reasons. The Panel’s finding that Mr. Stefanov did not commit these particular allegations ought to have been a consideration in the overall reliability of the evidence of DH and Mr. Stefanov, and it was not.
conclusion
[106] In summary, the Panel reached its decision through faulty reasoning. This was a pure credibility case. Given the numerous flaws in the Panel’s approach to assessing credibility, the conclusion does not meet the justification, transparency and intelligibility standard. It necessarily follows that the decision was not reasonable.
[107] In these circumstances, it is not necessary to consider the appeal of the Penalty Order.
[108] The appeal is allowed, and the decisions of the Discipline Committee are set aside. The matter is remitted back to the Discipline Committee for a new hearing before a differently constituted panel of the Discipline Committee.
[109] The respondent shall pay to Mr. Stefanov his costs of the appeal fixed in the amount of $12,500 inclusive of fees, disbursements and HST. This amount was agreed upon between the parties.
___________________________ C. Horkins J.
Aitken J.
Swinton J.
Released: February 10, 2016
CITATION: Stefanov v. College of Massage Therapists of Ontario, 2016 ONSC 848
DIVISIONAL COURT FILE NO.: 473/14 DATE: 20160210
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aitken, Swinton, C. Horkins JJ.
BETWEEN:
STEFAN STEFANOV
Appellant
– and –
COLLEGE OF MASSAGE THERAPISTS OF ONTARIO
Respondent
REASONS FOR JUDGMENT
C. Horkins J.
Released: February 10, 2016