Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz 2019 ONSC 4300

CITATION: Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz 2019 ONSC 4300

DIVISIONAL COURT FILE NO.: 199/17

DATE: 20190723

NOTICE OF PUBLICATION BAN

In the matter of the College of Physicians and Surgeons of Ontario and Dr. Kunynetz, this is notice that the Discipline Committee ordered that there shall be a ban on the publication, including broadcasting, of the names and identifying information of the complainants and similar fact witnesses, under subsection 47(1) of the Health Professions Procedural Code (“the Code”) which is Schedule 2 to the Regulated Health Professions Act, 1991.

The Discipline Committee also ordered a ban, under subsection 45(3) of the Code, on the publication of the names and identifying information of patients disclosed at the hearing.

Subsection 93(1) of the Code, which is concerned with failure to comply with these orders, reads:

Every person who contravenes an order made under … section 45 or 47… is guilty of an offence and on conviction is liable,

(a) in the case of an individual to a fine of not more than $25,000 for a first offence and not more than $50,000 for a second or subsequent offence; or

(b) in the case of a corporation to a fine of not more than $50,000 for a first offence and not more than $200,000 for a second or subsequent offence.

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KITELEY, DEL FRATE AND RADY J.J.

BETWEEN:

The College of Physicians and Surgeons Of Ontario

Respondent

– and –

Dr. Rodion Kunynetz

Appellant

Elisabeth Widner, for the Respondent

Matthew P. Sammon, Ian MacLeod and S. Jessica Roher, for the Appellant

HEARD at Toronto: January 22 and 23, 2019

REASONS FOR DECISION

THE COURT

[1] This is an appeal pursuant to s. 70(1) of the Health Professions Procedural Code, (the “Code”) which is Schedule 2 of the Regulated Health Professions Act, 1991 (the “RHPA”), S.O. 1991, c. 18 from the Liability Decision dated March 21, 2017[^1] of the Discipline Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario (the “College”), which found that the Appellant had committed sexual abuse and disgraceful, dishonourable or unprofessional conduct and had breached an interim “Chaperone Order”, and an appeal from the Penalty Decision dated February 20, 2018[^2] in which his licence to practice was revoked.

Synopsis

[1] The Appellant was charged with:

(a) sexual abuse and disgraceful, dishonourable or unprofessional conduct

(i) involving Patients A, B and D, in which it was alleged that he failed to leave the room while the patient was undressing, failed to use drapes, and removed clothing without warning;

(ii) involving Patients C and D in which it was alleged that, in the course of an examination, he pressed his genitals against the leg of each of them;

(iii) involving Patient B in which it was alleged that he touched her breasts in a manner that was not consistent with the clinical examination;

(b) breach of an interim Chaperone Order.

[2] The Committee held that the Appellant:

(a) committed an act of professional misconduct in that he moved or removed the clothing of Patients A and D in the absence of adequate warning or explanation that constitutes conduct that would be reasonably be regarded by members as disgraceful, dishonourable or unprofessional;

(b) committed an act of professional misconduct in that he engaged in sexual abuse of Patient B, by touching her breasts in a manner that was not consistent with the clinical examination;

(c) engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional conduct by allowing his abdominal fat pad to contact the body of Patients C and D without warning, apology or excuse;

(d) contravened a term, condition and limitation on his certificate of registration namely he breached the Chaperone Order on two occasions.

[3] Following evidence and submissions on penalty, the Committee held:

(a) the amendments to the Code which were enacted by the Protecting Patients Act, 2017 and came into force on May 30, 2017 had retrospective effect. As a result, revocation was mandatory with respect to the finding of sexual abuse;

(b) even if the amendments did not have retrospective effect, revocation was the appropriate penalty;

(c) the Appellant was required to pay costs in the amount of $145,460.00.

[4] For the reasons that follow, this Court concludes that:

(a) the Liability Decision of the Committee finding that the Appellant committed an act of professional misconduct by moving or removing clothing in the absence of adequate warning or explanation to Patients A and D is reasonable and is sustained;

(b) the Liability Decision finding that the Appellant contravened a term, condition and limitation of his certificate of registration namely, he breached the Chaperone Order on two occasions, is reasonable and is sustained;

(c) the Liability Decision finding that the Appellant engaged in sexual abuse by touching the breasts of Patient B in a manner that was not consistent with the clinical examination is not reasonable and is quashed. The allegations contained in the Notice of Hearing are dismissed;

(d) the Liability Decision finding that the Appellant engaged in professional misconduct by allowing his abdominal fat pad to contact the body of Patients C and D is not reasonable and is quashed. The allegations, not contained in the Notice of Hearing, are nonetheless dismissed;

(e) the Penalty Decision ordering revocation, reprimand, reimbursement pursuant to s. 85.7 and costs is not reasonable and is quashed;

(f) the penalty for the findings in subparagraph (a) and (b) is a period of suspension from October 1, 2015 to the date of release of this decision.

Background

[5] The 37 day liability hearing started on January 6, 2016 and concluded on July 12, 2016. The liability decision was released March 21, 2017. The penalty hearing was a total of five days including four days of hearings in July and August 2017. As a result of the release of the penalty decision in CPSO v. Dr. Beairsto[^3] on October 5, 2017, the Committee received further written submissions. The penalty decision was released February 20, 2018.

Complaints of Patients A, B, C and D and the Investigation

[6] The Appellant and Respondent have each provided a detailed timeline of the investigation and referral of the complaints of Patients A, B, C and D. The key dates are as follows.

[7] On September 13, 1999, Patient A had an appointment with the Appellant. On September 20, 1999, she left a message with the College with a complaint about her appointment. A representative of the College spoke with Patient A and prepared a written memorandum dated September 23, 1999. The complaint was that the Appellant did not provide a gown prior to full body visual examination and lifted the patient’s dress up over her shoulders to expose her lingerie from behind, then moved to the front to pull her “g-string” forward to look down her crotch. Patient A did not pursue the complaint. The Appellant was not advised that Patient A had contacted the College.

[8] On August 5, 2008, Patient B had an appointment with the Appellant and on September 15, 2008, she filed a written complaint with the College, in which, briefly put, she claimed that the Appellant had “fondled” her breasts.

[9] On January 19, 2009, the investigator gave the Appellant written notice of the complaint. Patient B and the Appellant participated in the resolution process and Patient B informed the investigator that her concerns had been addressed. Patient B understood that the Appellant had been given advice about his communication style, and about issues such as draping and the presence of third parties. On March 20, 2009, the file was closed before referral to the Complaints Committee. In a letter dated April 1, 2009, the investigator advised the Appellant that Patient B’s concerns had been successfully resolved.

[10] On August 18, 2011, October 14, 2011 and November 21, 2011 Patient C had appointments with the Appellant. Patient C made a complaint to the College in May 2014, in which she alleged that the Appellant had pressed his penis against the side of her leg while giving an examination.

[11] On December 17, 2013, Patient D had an appointment with the Appellant. On February 26, 2014, Patient D filed a written complaint with the College, also alleging that the Appellant had pressed his penis against her leg during an examination, and that during a procedure he inexplicably pulled her shirt up to her bra.

[12] On March 4, 2014, the College notified the Appellant of Patient D’s complaint.

[13] On May 5, 2014, Patient C filed a written complaint with the College. The Appellant was notified almost immediately.

[14] On May 6, 2014, after more than six years since her contact, the College investigator sent an email to Patient B about her complaint. The investigator spoke with Patient B on May 8, 2014 and inquired whether she was interested in having the investigation re-opened.

[15] On May 13, 2014, almost 15 years after her contact, the College investigator called Patient A. On June 23, 2014, the investigator interviewed Patient A and subsequently obtained a written complaint.

[16] On June 27, 2014 the investigator emailed Patient B asking her to make a request that her complaint be re-opened.

[17] On June 30, 2014 the College notified the Appellant of Patient A’s complaint.

[18] On July 2, 2014, the College re-opened Patient B’s complaint and notified the Appellant.

[19] Between July 2014 and July 2015, the investigation into the four complaints unfolded including requests to the Appellant for responses and his written responses.

Discipline Proceedings

[20] On July 5, 2015, the Inquiries, Complaints and Reports Committee (“ICRC”) considered the complaints and referred them to the Discipline Committee.

[21] The initial Notice of Hearing is dated July 8, 2015 and alleged that the Appellant committed an act of professional misconduct:

1. under clause 51(1)(b.1) of the Health Professions Procedural Code which is schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (the “Code”) in that he engaged in sexual abuse of patients; and

2. under paragraph 1(1)33 of Ontario Regulation 856/93 made under the Medicine Act, 1991 (“O. Reg. 856/93”), in that he has engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.

[22] On August 11, 2015, the ICRC issued an interim order (the “Chaperone Order”) against the Appellant pursuant to s. 37 of the Code that required the Appellant to have a Practice Monitor during any professional encounter with a female patient.

[23] In a letter from his counsel to the College dated September 16, 2015, the Appellant self-reported a breach of the interim order, admitting to examining a female patient without a Practice Monitor on September 3, 2015. He met again with a female patient without a practice monitor on September 17, 2015 and it was again reported to the College. As a result of the admitted breaches, on September 29, 2015 the College issued another Notice of Hearing that alleged that the Appellant committed an act of professional misconduct:

3. under paragraph 1(1)1of O. Reg. 856/93 in that he contravened a term, condition or limitation on his certificate of registration.

[24] Furthermore, the ICRC imposed an order directing the Registrar to suspend his certificate of registration effective October 1, 2015.

[25] On October 23, 2015, the Appellant brought an urgent application for judicial review to the Divisional Court requesting that the interim order suspending his certificate of registration be quashed. On November 4, 2015, the Court dismissed the application, finding that the suspension was reasonable.[^4]

[26] On October 30, 2015 the Appellant was criminally charged with two counts of sexual assault related to two patients, one of whom was Patient B. The Appellant was acquitted on both charges.[^5]

[27] The particulars of the allegations are contained in Schedule A to the Notice of Hearing and the Amended Notice of Hearing as follows:

In or around September, 1999, during a medical appointment, Dr. Kunynetz sexually abused Patient A and engaged in disgraceful, dishonourable or unprofessional conduct by failing to provide her with appropriate privacy and/or a proper covering or gown during the medical appointment, removing her clothing without proper warning and without her consent, and moving her undergarments in order to look at her genital area and breasts.

In or around August, 2008, during a medical appointment, Dr. Kunynetz sexually abused Patient B and engaged in disgraceful, dishonourable or unprofessional conduct by failing to provide her with appropriate privacy and/or a proper covering or gown during the medical appointment and by touching her breasts in an inappropriate and sexual manner.

In or around August to November, 2011, during a medical appointment, Dr. Kunynetz sexually abused Patient C and engaged in disgraceful, dishonourable or unprofessional conduct by rubbing and/or pressing his genitals against the patient.

In or around December, 2013, during a medical appointment, Dr. Kunynetz sexually abused Patient D and engaged in disgraceful, dishonourable or unprofessional conduct by failing to provide her with appropriate privacy and/or a proper covering or gown during the medical appointment, rubbing and/or pressing his genitals against the patient, and trying to lift her shirt without proper warning and without her consent.

Dr. Kunynetz contravened the terms, conditions or limitations on his certificate of registration and engaged in disgraceful, dishonourable or unprofessional conduct by failing to comply with the interim order of the Inquiries, Complaints and Reports Committee of the College, made August 11, 2015, under section 37 of the Health Professions Procedural Code.

Hearing on Liability issues

[28] During the 37 days of hearing that started on January 6, 2016 and ended July 12, 2016, the Committee heard evidence including from the four complainants and in two instances, from companion witnesses (a friend and a spouse); three similar fact witnesses and in relation to each, from a companion witness (a daughter, a friend and a spouse); a number of patients of the Appellant (including the two who were the subject of the alleged breach of an undertaking); the Appellant’s family physician; six patients of the Appellant; and the Appellant.

[29] The Appellant denied all of the allegations. In respect of the touching allegations, the Appellant vehemently denied that his genitalia came into contact with Patients C and D or the three similar fact witnesses. During the period in question (beginning in 1999) the Appellant was obese, weighing between 275 and 305 lbs. The Appellant raised the defence of impossibility on the basis that his large abdominal overhanging panniculus obstructed access to his groin area and because of his overall obesity. He asserted that it was possible that his abdomen brushed against the knees or legs of a patient during the process of conducting a comprehensive “head to toe” examination of the patient so as to ascertain whether the presenting condition was localized or widespread.

[30] At the request of counsel for the Appellant, an expert urologist was retained to conduct an examination of the Appellant and to assess whether it was physically possible or probable that the contact described by Patients C and D could have occurred.That expert performed an examination as well as a “re-enactment” of how the Appellant and a patient would have interacted in the examining room, and wrote a report. The College retained an expert in urology to perform a similar examination and re-enactment and he was called as a witness in reply. A College investigator and a lawyer in the offices of the Appellant’s counsel who observed the second examination, testified.

[31] Prior to and during the course of the hearing the following motions were brought:

(a) Heard November 10, 2015: before the commencement of the hearing the Appellant brought a motion to stay the prosecution of the allegations pertaining to Patients A and B as an abuse of process on the basis that there had been inordinate delay in the investigation and referral of the allegations to the Discipline Committee and significant prejudice to the Appellant. The motions panel of the Discipline Committee, which was differently constituted from the hearing panel, dismissed the motion on November 13, 2015 with reasons to follow. Reasons were dated July 25, 2017, on the eve of the Appellant’s second abuse of process motion at the penalty hearing, where the Appellant raised, among other things, the motions panel’s failure to deliver reasons as a ground of relief. The reasons did not explain the delay of 20 months in the delivery of reasons.

(b) Heard November 20, 2015: motion by the College to adjourn the hearing scheduled to start November 24 so that the College could prepare a responding expert report. The motion was granted and the hearing was subsequently scheduled to start January 6, 2016.

(c) Heard January 19, 20, 25 to 28, 2016 and March 14 to 17, 2016: motion by the College for leave to lead evidence of three similar fact witnesses. Following a ten day hearing on the motion, on March 24, 2016, the Committee released its written order granting the motion with reasons to follow. The reasons were dated July 27, 2017. As a result of the order granting leave, counsel agreed that the evidence need not be repeated in the hearing but was introduced based on the transcripts of the voir dire.

At page 4 of the reasons in the similar fact evidence ruling. the Committee noted that the allegations in the Notice of Hearing included several different forms of misconduct, not all of which applied to every complainant, namely abrupt lifting or movement of clothing (patients A, B and D), failure to provide privacy or covering (patients A and B), “fondling” of the breast (patient B), pressing his penis into the patients’ legs (patients C and D). The Committee noted that the allegations of the similar fact witnesses were: abrupt lifting or movement of clothing (patients SA and SB), failure to provide privacy or covering (patients SA and SC), pressing his penis (in one case his testicles) into the patients’ legs (patients SA, SB and SC).

(d) Heard January 20, 2016: motion by the Appellant for an order that portions of the evidence be heard in camera. Motion was dismissed. The reasons for decision are dated April 2, 2018.

(e) Heard March 15, 2016: motion by the College seeking production of the clinical records of the Appellant’s physician. The order was granted. Reasons for decision are dated April 2, 2018.

(f) Heard March 30 and 31, 2016: motion by the Appellant for a directed verdict or non-suit on the allegation of breach of the interim order. The Committee dismissed the motion on the basis that the Member was required to elect to call no evidence on the other unrelated allegations to succeed on the directed verdict/non-suit. The Committee also gave the College permission to re-open its case. The College elected to call no further evidence but elicited evidence in support of those allegations through cross-examination of the Appellant. The reasons for decision are dated April 2, 2018, delivered after the Appellant delivered his Amended Notice of Appeal.

(g) Heard May 26, 2016: motion by the College asking for an order that the Appellant’s expert be prohibited from giving evidence regarding re-enactments of patient examinations that the expert had conducted and alternative relief. The Committee allowed the re-enactment evidence on conditions. The reasons for decision are dated April 2, 2018.

(h) Heard June 13, 2016: motion by the College asking for production of a document and of photographs and measurements arising from the Appellant’s expert report. The motion was granted. The reasons for decision are dated April 2, 2018.

(i) Heard July 10, 2017: motion by the Appellant requesting an order to re-open the liability hearing with respect to the Committee’s findings regarding Patient B, to permit the Appellant to lead evidence given by her at a preliminary inquiry in a criminal proceeding pertaining to the same allegation of sexual abuse which he contended was inconsistent with her testimony at the hearing. The motion was dismissed. The reasons for decision are dated April 2, 2018.

(j) Heard August 14, 2017: the Appellant brought a second motion to stay the allegations relating only to Patient B as an abuse of process in light of the position taken by the College on June 2, 2017 that the newly expanded mandatory revocation provision applied retrospectively. The Penalty Decision dated February 20, 2018 incorporated the decision to dismiss that motion.

(k) April 2, 2018: release of six decisions referred to above, all of which were signed only by the Chair “on behalf of the Committee”.

Decision of the Committee as to Liability

[32] In the Liability Decision the Committee summarized the evidence and then made the following findings:

(a) alleged failure to provide Patient A, B and D with appropriate privacy: the Committee found that the College failed to prove misconduct;

(b) alleged removal of clothing without due warning or consent: the Committee found that the College failed to prove sexual abuse but did prove disgraceful, dishonourable or unprofessional conduct;

(c) alleged pressing or rubbing genitals against patients C and D: the Committee found that the College failed to prove sexual abuse because it failed to prove that the Appellant rubbed his genitals against patients, but the College did prove disgraceful, dishonourable or unprofessional conduct on the basis that there was contact between the Appellant’s abdominal fat pad, and this contact was not accompanied by any form of warning, apology or excuse;

(d) alleged fondling Patient B’s breasts: the Committee found that the College did establish sexual abuse in that the Appellant fondled Patient B’s breasts;

(e) alleged breach of a term, condition or limitation: the Committee found the allegations had been proven.

[33] In other words, the Committee found that the allegation that the Appellant had fondled Patient B’s breasts had been established on the balance of probabilities but none of the other allegations of sexual abuse had been proven.

Hearing as to Penalty

[34] On May 30, 2017 the legislature passed Bill 87 “An Act to implement health measures and measures relating to seniors by enacting, amending or repealing various statutes” and the Protecting Patients Act, 2017, the short name of Bill 87, came into force. On June 2, 2017, the College advised counsel that it would take the position that the amendments applied retrospectively.

[35] The hearing including written and oral submissions as to whether the amendments that expanded the findings of sexual abuse that result in mandatory revocation to include “touching of a sexual nature of the patient’s… breasts” were retrospective and applied to this case.

[36] The hearing was conducted on July 11 and 27, August 14 and 15, 2017. The Committee heard evidence from the College investigator and the Appellant’s wife. As required under the Code, the Victim Impact Statement of Patient B was read into the record.

[37] On October 5, 2017, the decision of CPSO v. Dr. Beairsto[^6] was released, in which another Committee found that the amendments made to the Code by the Protecting Patients Act, 2017 had retrospective effect. The College filed it with the Committee and counsel for the Appellant made written submissions.

Decision of the Committee as to Penalty

[38] In the Penalty Decision the Committee made orders revoking the Appellant’s certificate of registration; directing the Appellant to appear before the panel to be reprimanded within thirty days of the order becoming final; pursuant to s. 85.7 of the Code, requiring the Appellant to post an irrevocable letter of credit or other security to guarantee payments for counselling in the amount of $16,060 for Patient B; and pay College’s costs in the amount of $145,460.

Jurisdiction

[39] Section 70 of the Code establishes a right of appeal to this Court from a final decision of the Committee. The appeal may engage questions of law and/or facts. Section 70(3) of the Code provides that “the Court has all the powers of the panel that dealt with the matter”.

Standard of Review

[40] The standard of review of a decision of the College Discipline Committee is reasonableness.[^7] The Court must have regard to the following principles:

(1) A decision is reasonable if it falls within a range of possible acceptable outcomes.

(2) A decision is unreasonable only if, considering the reasons as a whole, there is “no line of analysis” in the reasons that could reasonably have led the tribunal to the result.

(3) Reasons must be taken as a whole. If the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within a range of acceptable outcomes, the Dunsmuir criteria are met.

(4) If the tribunal is a specialized body with expertise that the Court does not possess, and if their decisions require the exercise of discretion, it must be shown deference in both with respect to the facts and the law. The Court should not substitute its own reasons, but assess reasonableness on the record.

(5) Deference is owed, especially with respect to sanctions for breaches of professional standards, in that the tribunal has greater experience than the Court.[^8]

(6) In appeals involving challenges to a Committee’s assessment of evidence, the Court owes “heightened deference” to the Committee’s assessment of credibility and reliability.[^9] Findings of credibility may be set aside where a panel made a palpable and overriding error that affected its assessment of the facts.[^10] Wholly inadequate credibility findings may be an error of law that attracts less deference.[^11] Where an appellate court finds the credibility assessment unreasonable, the entire decision will be unreasonable if credibility is of central importance.[^12]

(7) The reasonableness standard, and therefore deference, applies where a tribunal is interpreting its home statute.[^13] However, where the tribunal is engaged in a question of law that is of “central importance to the legal system . . . and outside the . . . specialized area of expertise” of the administrative decision maker, the correctness standard applies.[^14]

(8) Deference requires that the Court refrain from subjecting the tribunal’s reasons to a “painstaking scrutiny”. It would be “counterproductive to dissect” minutely a fact-finder’s reasons so as to undermine the fact-finder’s responsibility for weighing all of the evidence.[^15]

(9) Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. If the reasons and the record allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, and the Dunsmuir criteria are met.[^16]

Issues in the Appeal

[41] From the date of the Notice of Hearing, the proceeding was focused on the sexual abuse allegations. Much of the proceeding, including the motions referred to above, was preoccupied with the allegation that the Appellant had pressed or rubbed his genitals against Patients C and D, as well as the three similar fact evidence witnesses. As counsel for the Appellant pointed out, the College pursued the allegations against the Appellant on a theory that the Appellant had dealt with patients in a “long pattern of sexually opportunistic conduct” and that the Appellant was a serial sexual abuser who had committed multiple acts of “stealth sexual touching” and “stealth attack[s]” for “sexual gratification”. Counsel asserted that the allegations of frotteurism consumed the hearing and, in the end, the College did not produce the evidence to support that theory and all of the allegations of sexual abuse were dismissed except for the allegation involving Patient B.

[42] That context will become relevant below.

[43] In these reasons, the Court will address the following issues:

(a) Was the Liability Decision of the Committee that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by removing clothing of Patients A and D without warning or explanation reasonable?

(b) Was the Liability Decision of the Committee that the Appellant engaged in sexual abuse of Patient B by touching her breasts in a manner not consistent with the clinical examination, reasonable?

(c) Was the Liability Decision of the Committee that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by allowing contact between a portion of the Appellant’s body, namely his abdominal fat pad, with Patients C and D, which contact was not accompanied by any form of warning, apology or excuse, reasonable?

(d) Was the Liability Decision of the Committee that the Appellant contravened a term, condition and limitation on his certificate of registration namely, he breached the Chaperone Order on two occasions, reasonable?

(e) Were the decisions of the Committee dismissing the Appellant’s motions reasonable, namely:

(i) the pre-hearing motion to stay the allegations pertaining to Patients A and B as an abuse of process;

(ii) the in-hearing motion to stay the allegations involving Patient B as an abuse of process;

(iii) the in-hearing motion for a directed verdict/non-suit with respect to the breach of the Chaperone Order?

(iv) the in-hearing motion for leave to re-open the liability phase to allow him to lead Patient B’s evidence at the preliminary inquiry;

(f) Was the decision of the Committee that the Protecting Patients Act, 2017 was retrospective, correct?

(g) Was the decision as to penalty reasonable?

[44] The issue with respect to retrospectivity was also raised in Ontario (College of Physicians and Surgeons of Ontario) v. Lee.[^17]

Preliminary Issue

[45] On January 22, 2019, counsel for the Appellant provided a “Compendium re: Finding of Disgraceful, Dishonourable or Unprofessional Conduct” that included the Appellant’s chart of allegations and dispositions, excerpts from the written and oral closing submissions of the College before the Committee, an excerpt from a textbook and three decisions of the Divisional Court and two decisions of the Alberta Court of Appeal.

[46] At the conclusion of the hearing on January 22, counsel for the Appellant provided a “Compendium of Evidence Re: Patient SC and Steven Wright”. It included an excerpt from the evidence of Patient SC, one of the similar fact witnesses, and about 40 pages of excerpts from the evidence of Steven Wright, the College’s investigator. Counsel for the College objected to the late filing of this Compendium.

[47] During submissions on January 22, 2019 counsel for Appellant submitted a brief of “Evidence and Findings Pertaining to Patient B”. The first item in the brief was a document prepared by counsel for the Appellant entitled “Panel Reasons Re: Patient B with Error or Material Omissions Highlighted”. It is a ten page summary of the excerpts of the Liability Decision on pages 7 to 10 and 36 to 39 with extensive footnotes in which counsel has referred to source evidence such as transcripts or exhibits at the hearing designed to demonstrate inconsistencies and inaccuracies in the evidence that were not acknowledged by the Committee. In her submissions, counsel for the College objected to the late filing of a significant volume of material which she had not had an opportunity to review. Based on her limited review, she asserted that there were important omissions from the ten page summary.

[48] On the morning of January 23, 2019, counsel for the Respondent provided a “Supplementary Compendium and Authorities”. It included an excerpt from the cross-examination of the Appellant, the College’s Policy about Reporting Physicians’ Acts to the Police, excerpts from the examination-in-chief and cross-examination of the College’s investigator and two Divisional Court decisions and one decision of the Committee.[^18] Counsel for the Appellant objected to the late filing of this compendium.

[49] At the conclusion of the hearing on January 23, 2019, counsel made brief submissions about the compendia that each had filed with the Court during the hearing. The Court did not then make a ruling as to the extent to which the Court would rely on the contents. The Court has reviewed the contents of the briefs. Where the Court has considered the contents, there is an indication in the text below.

Liability Issue #1: Was the Liability Decision of the Committee that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by removing clothing of Patients A and D without warning or explanation reasonable?

Decision of the Committee

[50] As indicated in paragraph 2 above, the Appellant was initially charged with sexual abuse and disgraceful, dishonourable or unprofessional conduct involving Patients A, B and D in two respects: first, that he failed to leave the room while the patient was undressing and failed to use drapes; and second that he removed their clothing without warning. The Committee found that the College failed to prove the first. The Committee also found that, with respect to Patients A and D only, the College had not proven that the removal of clothing without warning or explanation was sexual abuse, but had proven that it would reasonably be regarded by members as disgraceful, dishonourable or unprofessional conduct. It is the latter finding that is the subject of the appeal but the analysis by the Committee on both charges is relevant.

Failure to provide proper privacy

[51] At pages 5 and 6 of the Liability Decision, the Committee summarized the evidence of Patient A and the evidence of the Appellant. At pages 12 and 13, the Committee summarized the evidence of Patient D and the evidence of the Appellant. In each case the Committee noted some of the frailties in memory and inconsistencies of the patients. The Committee had noted on page 3 that the Appellant “had no individual memory of the patients’ examinations or consultations and his defence relied upon what he would have done or what his usual practice would be with patients or with patients with that specific condition”.

[52] At page 33 of the Liability Decision, the Committee noted that three of the four complainants said they had been seen by the Appellant without being offered a gown or draping of any sort, and that the Appellant did not leave the room while they were removing outer garments. The Committee pointed out that the Appellant did not contest that, although he said it was the responsibility of the receptionist staff to make patients aware of draping and he pointed out notices in the waiting room and examination room that the patients did not remember having seen. The Appellant testified that it was his practice to leave the room only if patients were undressing in order for a genital examination to be done. Instead, he turned his back while the patient removed clothing. He also said that he saw little value in leaving the room while patients undressed other areas of the body, since he was going to come back into the room only to remove the covering immediately in order to examine the skin.

[53] At page 34, the Committee noted that, after Patient B had made a complaint in 2008 and the College investigator had provided the Appellant with reading material, he had modified his practices for a few weeks. However he said he had contacted colleagues and came to the conclusion that his previous practices had been consistent with those of others, so he did not maintain the changes. He said he thought the reading material was oriented towards the avoidance of a sexual relationship, and did not address specifics such as remaining in the room while patients were undressing.

[54] The Committee reviewed the information that had been provided to the Appellant. At page 35, the Committee held as follows:

The Committee determines on the evidence before it that a physician who remains in the room, with his back turned while a patient undresses, is not engaging in behaviour of a sexual nature and therefore, did not make a finding of sexual abuse with respect to this aspect of Dr. Kunynetz’s behaviour.

Furthermore, although many would consider that Dr. Kunynetz’s preference for the opinions of his colleagues in the profession over the recommendations of a representative of the College to be unwise, the Committee finds that there was insufficient evidence to make a finding that this behaviour, in the context of this case, represents what members would reasonably consider to be disgraceful, dishonourable or unprofessional conduct. The Committee therefore did not make a finding of professional misconduct with respect to Dr. Kunynetz’s practices regarding draping and/or leaving the room while a patient was undressing.

Removal of clothing without due warning or consent

[55] At pages 5 and 6 of the Liability Decision, the Committee summarized the evidence of Patient A. On this issue, her evidence was that after examining the mole, which was the reason for the appointment, the Appellant asked her to turn around. He then lifted her dress saying something like “we might as well look at the rest of you”. He raised the dress up and she raised her arms to allow that to happen. She testified that she was left standing in her underwear wearing shoes with heels. She said that he made her feel extremely embarrassed and she described it as being totally unexpected and a violation.

[56] At page 13 the Committee summarized the evidence of Patient D. Her evidence was that, after he cauterized the hand lesion, she stood up and the Appellant pulled up her shirt as far as her bra strap without providing a reason, or asking her permission to do so.

[57] At page 35, the Committee noted that there were discrepancies between the testimony of the patients and the testimony of the Appellant, and that the evidence of the Appellant consisted of what his usual practice would have been. At page 36, the Committee identified some of the inconsistencies and frailties. At page 37, the Committee concluded that the removal of clothing occurred during the process of a clinical examination and that the Appellant was justified in needing to examine the skin underneath the clothing. On that basis, the Committee concluded that the Appellant’s actions in moving clothing did not constitute behaviour of a sexual nature and was therefore not sexual abuse. However, the Committee held as follows at page 37:

The material that had been provided to Dr. Kunynetz by the College investigator emphasized the importance of explaining to a patient ahead of time the nature and reason for any portion of a physical examination. While this may not constitute formal seeking of consent in the way in which this term is usually used, the process of explanation demands that the physician take reasonable steps to ensure that the patient comprehends why something is being done, particularly if the actions are relevant to, or involve, sensitive parts of the body. This was clearly not done before the shifting of clothing performed by Dr. Kunynetz.

The Committee finds that the absence of adequate warning or explanation to Patients A and D by Dr. Kunynetz before moving or removing their clothing, constitutes conduct that would be reasonably regarded by members as disgraceful, dishonourable or unprofessional.

Positions of the Parties on removal of clothing without due warning or consent

[58] The Appellant takes the position that the finding of professional misconduct is not sustainable.

[59] The Respondent asserts that the finding relative to removal of clothing without warning or consent is based on the evidence and is reasonable.

Analysis

[60] The Committee was aware of the inconsistencies and frailties of the evidence of Patients A and D. But the evidence of the Appellant on the issues of failure to provide proper privacy was relevant to the factual findings on the issue of removal of clothing without due warning or consent. The Appellant agreed that he had routinely removed clothing during the process of a clinical examination in order to examine the skin underneath the clothing in order to assess other parts of the body of the patient. The only issue was the extent to which, if at all, he gave warning or obtained consent. The Appellant gave evidence as to his reaction when a College investigator gave him reading materials in 2009 in response to the complaint of Patient B. He acknowledged that his communication skills had been criticized and he had taken the boundaries course. As quoted above, he had dismissed recommendations of the College in favour of opinions of his colleagues. He demonstrated disdainful behaviour on the subject of remaining in the room and not providing draping or gown for the patient. Given the Appellant’s testimony, there is a basis in the evidence upon which the Committee could come to the conclusion that, in respect of Patients A and D, he removed clothing without warning or consent.

[61] The factual findings made by the Committee are supported by the evidence, including the Appellant’s evidence. The identification of the principles and the analysis of the evidence leading to the findings that the actions did not constitute sexual abuse but did constitute disgraceful, dishonourable or unprofessional conduct are sound. The findings by the Committee in this regard are reasonable.

Liability Issue #2: Was the Liability Decision of the Committee that the Appellant engaged in sexual abuse of Patient B by touching her breasts in the manner not consistent with the clinical examination, reasonable?

Decision of the Committee

[62] At pages 7, 8 and 9, the Committee summarized the evidence of Patient B. Although the event had occurred eight years earlier in August 2008, the Committee noted that she had refreshed her memory after reading the transcript of her earlier interview at the College.

[63] At pages 7 and 8, the Committee noted that Patient B was referred for facial lesions and for an update on a chronic skin condition called urticaria pigmentosa which had been diagnosed, after biopsy, by a dermatologist in another province. According to Patient B, the Appellant began with a review of her complaints and history and then examined the lesions on her leg, which were the lesions about which she was most concerned. She said that in doing so, the Appellant stroked the lesions to ascertain if they responded to light friction, a procedure known as Darier’s sign. Patient B said she told him that her lesions had not reacted positively at the time of initial diagnosis and the Appellant noted there was no reaction on this occasion.

[64] Patient B said that the Appellant asked her to remove her blouse, and when asked why, he said that it was to examine her trunk. At pages 38 and 39, the Committee held as follows:

Patient B alleged that Dr. Kunynetz, in addition to pulling her bra straps out, put his hands inside her bra and “fondled” her breasts. He did so after he had examined her legs and had established that she did not have a wheal in response to stroking (a positive Darier’s sign), and after she had told him that other physicians had failed to elicit such a finding.

Dr. Kunynetz responded, in 2008, after her initial complaint that he had never put his hands inside her bra, and that he merely would have lifted her bra straps to look at the skin underneath. He also said that he might have asked Patient B to lift her breast herself, in order to examine underneath them. He repeated this at the time of his application for judicial review of his interim suspension in 2015. However in testimony at this hearing, he said that he would have stroked each breast, with one hand under her bra, while stabilizing it from beneath with the other hand. His rationale for doing this, he said was to attempt to elicit Darier’s sign.

Patient B had testified that her previous dermatologist had not performed this sort of breast examination and, while she had experience of breast examinations being performed for screening for breast cancer, they were totally unlike the examination performed by Dr. Kunynetz.

No justification was provided for the examination of the breasts in urticaria pigmentosa and there was no mention of it in the patient’s chart. Moreover the Committee noted that there was no mention of Darier’s sign in the chart, and indeed the first time that this was mentioned by Dr. Kunynetz occurred only after reference had been made to it by a report from an expert in 2015; the expert did not testify in this hearing.

The change in explanation by Dr. Kunynetz, with no clinical notes at the time to support it, provided the Committee with serious doubts about his credibility on this issue.

The Committee did not have similar doubts about Patient B’s credibility. She was an experienced and well educated woman who gave her testimony in a very straightforward fashion. Although a less critical decision had been reached by ICRC in 2009, that occurred without the benefit of oral testimony from either party, and without the change in Dr. Kunynetz’s testimony. Patient B was clear that she had only accepted that committee’s decision because she felt that she had no alternative but to do so, and had not been satisfied with the outcome at that time.

There was no evidence of Dr. Kunynetz showing signs of sexual arousal or sexual gratification at any time in the examination of Patient B. The Committee understands that it is not necessary to demonstrate sexual intent, arousal or gratification in order to make a finding of sexual abuse. Touching of a sexual nature of the patient constitutes sexual abuse. Touching of a “sexual nature” does not include touching of a clinical nature appropriate to the services provided. The Committee finds there is no clinical justification for the touching by Dr. Kunynetz of Patient B’s breasts in the manner described by Patient B, which the Committee finds did occur. The Committee does not accept as credible Dr. Kunynetz’s rationalization for doing so in the circumstances of this case.

The Committee therefore finds that Dr. Kunynetz engaged in sexual abuse in his touching of the breasts of Patient B. (Emphasis added)

Positions of the Parties

[65] According to the factum, the Appellant takes the position that the Committee’s finding of sexual abuse cannot stand for these reasons:

(a) the Committee reversed the burden of proof, requiring the Appellant to disprove the allegation;

(b) the Committee made repeated palpable and overriding errors in its assessment of the credibility and reliability of the Appellant and Patient B;

(c) the Committee’s reasons for its credibility findings fail to satisfy the requirements of intelligibility, transparency and justification; and

(d) each of those taken on its own, justifies overturning the decision. The cumulative effect of those errors is that the Appellant has been denied basic fairness in a case that has a profound impact on his reputation and professional life.

[66] The Respondent takes issue with each of those assertions. The Respondent also made two submissions. The first is that the Court is not to conduct a detailed parsing out of the evidence. The second is that, while the reasons for decision with respect to Patient B are “not ideal” and the Committee “could have done better”, the reasons do not rise to the level of not being reasonable.

[67] Based on the positions taken by the parties, we refine the issues as follows:

(a) Was the Committee’s assessment of the evidence of Patient B and of the Appellant reasonable?

(b) Did the Committee reverse the burden of proof, requiring the Appellant to disprove the allegation?

Analysis: assessment of credibility and reliability

[68] Given that this is a finding with respect to sexual abuse, the authorities on how a Committee approaches such issues are relevant.

[69] In F.H. v. McDougall[^19] at paragraph 46, the Supreme Court held as follows:

Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. But again, there is no objective standard to measure sufficiency. In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant. As difficult as the task may be, the judge must make a decision. If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test.

[70] In Karkanis v. College of Physicians and Surgeons, a patient alleged that the physician had sexually abused her during a pelvic examination. The Court described the task of the Discipline Committee as follows:

This case was a typical clash between two versions of the same events. It is a case that is often described as a “she said, he said” type of case. Thus, the Discipline Committee was required to decide between these two competing versions in order to come to their conclusions. In doing so, the Discipline Committee was required to assess the credibility of the appellant and Ms. B. Credibility assessments have two constituent elements. One relates to the honesty of the witness, that is the witness’ willingness to speak the truth as s/he believes it to be. The other relates to the reliability of the witness, that is the witness’ ability to observe, recall and recount the events s/he gives evidence on.[^20]

[71] In this case, the Committee correctly instructed itself as follows, at page 32 of the Liability Decision:

The burden of proving the allegations in a disciplinary hearing rests on the College. The standard of proof required, and accepted by the Committee, is that established by the Supreme Court in F.H. v McDougall; the allegations must be proved on the balance of probabilities, by evidence that is clear, cogent and convincing.

[72] The finding of the Committee is that on one occasion in 2008, the Appellant touched Patient B’s breasts in a manner that was not consistent with the clinical examination. To arrive at that conclusion, the Committee had to accept and rely on the evidence of Patient B and reject the evidence of the Appellant.

[73] As directed by the court in Karkanis, in other decisions of the College Discipline Committee, the Committee has instructed itself on the importance of carefully assessing the credibility of each witness and the reliability of their evidence in cases of sexual abuse allegations. Those Committees go on to list a number of factors to consider in assessing credibility and reliability.[^21] In the decision under appeal, the Committee did not instruct itself in a similar fashion, or at all, as to how to assess credibility and reliability. The Committee did not analyze the evidence of Patient B and of the Appellant by applying the usual criteria for making findings as to credible and reliable evidence.

[74] In this case, in the absence of any analysis by the Committee, we make the following observations.

[75] First, the Committee noted on page 3 that the Appellant had no individual memory of the examination of or consultation with any of the patients who gave evidence and that his defence relied on what he would have done or what his usual practice would be. In summarizing the evidence of the Appellant in comparison with each of the witnesses, the Committee repeated that he had “no specific memory”, that he had given evidence as to what would have happened, and that he had made denials.

[76] That demonstrates that the Committee rejected all of the Appellant’s evidence because he said he had no individual memory of the events at issue. The Committee did not consider whether normative evidence as to what he “would have done” or what “his usual practice would have been” was both credible and reliable. The Appellant became a Fellow of the Royal College of Physicians and Surgeons of Canada (Dermatology) in 1982. At that point he opened a practice in Barrie and the Greater Toronto Area. At the time of the Notice of Hearing in July 2015, he had been practicing as a dermatologist for 33 years. He had seen many thousands of patients. It was reasonable that he would have had no individual memory of events that had occurred with any of the patients, some of whom he saw regularly over several years, let alone a memory of Patient B whom he had seen only once. The Committee erred in rejecting his evidence without considering whether it was credible and reliable.

[77] Second, the Committee noted at page 7 that “although the event was eight years earlier, [Patient B] had refreshed her memory after reading the transcript of her earlier interview at the College”. As a result of her complaint in 2008, documentation was available[^22] that the Appellant had reviewed and about which he testified. The Committee did not acknowledge that, in connection with Patient B, the record included significant documentation on which he too refreshed his memory. The Committee failed to provide an explanation for affording her refreshed memory more credence than his refreshed memory.

[78] Third, the Committee was selective in its consideration of discrepancies and inconsistencies. The Committee noted at pages 7 to 9 that Patient B did not remember some details such as information about covering with a gown or draping, or notices about such coverings, or office layout, or posters on the wall or newspaper clippings. The inference to be drawn is that the Committee did not consider them of any consequence. But there was at least one important aspect of her evidence that was not inconsequential. At page 9, the Committee noted that “Patient B had no memory of Dr. Kunynetz examining her back, although the patient chart refers to lesions in her lumbar area”. The Committee failed to consider her adamant and repeated denial that the Appellant had examined her back, notwithstanding the unchallenged reference to the lumbar examination in the August 5, 2008 reporting letter to her physician. Furthermore, at page 35, the Committee made a generalized observation about the discrepancies between the testimony of the patients, including Patient B, and of Dr. Kunynetz. In that context, the Committee held that all the complainants, including Patient B, were shown to have imperfections or limitations in their memory but “their memories of the events which caused them distress were clear, consistent and persisted in the face of cross-examination”. In other words, Patient B’s clear, consistent and persistent insistence that the Appellant did not examine her lumbar area was proven to be incorrect. The documentary evidence corroborated the Appellant’s evidence and ought to have been assessed as more credible. The Committee failed to consider the impact of her unreliable evidence on other aspects of her evidence.

[79] Fourth, the Committee failed to consider the extent to which the evidence of the Appellant and of Patient B coincided. At page 8 of the Liability Decision, Patient B said that the Appellant turned his back while she removed her blouse. While the Appellant did not remember that specific event, his evidence on the question of failure to provide proper privacy was that he turned his back. Also at page 8 of the Liability Decision Patient B said that the reason he gave for removal of her blouse was that he wanted to examine her trunk. The evidence of Patient B and the Appellant was consistent on that point also. The Committee did not identify such consistencies which were relevant to making findings where inconsistencies occurred, particularly on the key allegation of fondling.

[80] Fifth, the Committee did not explain why it accepted and relied on the evidence of the Appellant yet rejected his evidence in other respects. For example, the Committee accepted his evidence that he turned his back while patients removed clothing and on that basis, dismissed the first allegation. It is reasonable for a fact finder to accept and rely on some evidence of a witness but not other parts of it. But the fact finder is required to explain why.

[81] Sixth, the Committee concluded that, at the hearing, the Appellant had changed his evidence. As indicated in the excerpt from pages 38 and 39 quoted above, the Committee found that when he had responded in 2008, the Appellant said that “he had never put his hands inside her bra and that he merely would have lifted her bra straps to look at the skin underneath.” The Committee observed that he had repeated that in his affidavit in support of his judicial review application of the interim suspension in 2015. According to the Committee, at the hearing, “he said that he would have stroked each breast with one hand under her bra, while stabilizing it from beneath with the other hand. His rationale for doing this, he said, was to attempt to elicit Darier’s sign.” The Committee noted that “no justification was provided for the examination of the breasts in urticaria pigmentosa and there was no mention of it in the patient’s chart.” The Committee held that “the change in explanation by Dr. Kunynetz, with no clinical notes at the time to support it, provided the Committee with serious doubts about his credibility on this issue.”

[82] The Appellant takes the position that he had not changed his evidence and refers to many references in the transcripts in support of that position. Without considering that review of the underlying evidence which might be considered a “detailed parsing out of the evidence”, based on the findings on pages 38 and 39, the apparent inconsistency between what he had said in 2008 and in 2015 on the one hand and what he said at the hearing in 2016 on the other hand, appeared to be more glaring an inconsistency than, for example, whether Patient B told her husband immediately or at some later date. The problem is, however, that of all of the days of testimony by the Appellant, most of which was not mentioned in the reasons for decision, the Committee isolated that single subject and failed to consider the entirety of the Appellant’s evidence. By such isolation and focus, the Committee failed to consider his evidence in an even-handed manner.

[83] Furthermore, after arriving at the conclusion that the Appellant had made a glaring change in his evidence that caused the Committee to have serious doubts about his credibility, the Committee juxtaposed that with the finding that it did not have similar doubts about Patient B’s credibility because “she was an experienced and well educated woman who gave her testimony in a very straightforward fashion”. In other words, the Committee compounded the unfairness by emphasizing Patient B’s demeanour as supportive of her credibility.

[84] The Committee made two references to credibility. The Committee made no reference to reliability of the evidence of Patient B on January 8, 2016 with respect to events that occurred on August 5, 2008. While the Committee articulated the standard of “clear, convincing and cogent” evidence, it failed to assess any of the evidence on this allegation against that standard.

[85] In Stefanov v. College of Massage Therapists of Ontario,[^23] the Panel had found that the appellant had engaged in sexual abuse of a patient. The Divisional Court held as follows:

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. 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. . . .

66. 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 standards. It necessarily follows that the decision was not reasonable.

[86] As indicated in paragraph 40(6) above, in Neinstein the Court of Appeal held that the tribunal’s credibility assessment was so deficient as to constitute an error of law that attracts less deference. At paragraph 92, the Court held that the Tribunal had described what it had decided but had failed to describe why it had made that decision. The same holds true here.

[87] The hearing of evidence started on January 6, 2016. Patient B gave evidence on January 8, 2016. The Appellant testified on March 31, April 1, April 29, May 3, May 4, May 5, May 6, May 9, May 13 and May 16, 2016. The closing submissions were heard on the 37th day of the hearing, on July 12, 2016. The Committee released its decision and reasons on March 21, 2017. Given the hiatus between the evidence of Patient B in January 2016 and of the Appellant in March, April and May, 2016 on the one hand and the decision dated March 21, 2017 on the other hand, the significance of the allegation of sexual abuse of Patient B demanded a far more detailed and rigorous analysis than appears in the decision.

[88] The Respondent conceded that the Committee’s analysis of the evidence is not ideal and could have been better, but submitted that perfection is not required and the Court is to refrain from subjecting the reasons to “painstaking scrutiny”. We agree. But this is not a question of subjecting the tribunal’s reasons to painstaking scrutiny or conducting a minute dissection of the reasons. As indicated above, the failure on the part of the Committee is largely of omission. The foregoing demonstrates the faulty analysis that caused the Committee to arrive at the result; that faulty analysis rose to the threshold of unreasonableness. The reasons do not reveal an intelligible and reasonable line of analysis as to the credibility and reliability of the evidence. The reasons are so deficient as to constitute an error in law. The decision that the Appellant sexually abused Patient B is not reasonable.

Analysis: Did the Committee reverse the burden of proof, requiring the Appellant to disprove the allegation?

[89] As the Committee noted on pages 34 and 35, sexual abuse of a patient is defined in subsection 1(3) of the Code as follows:

“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.

[90] Subsection 1(4) of the Code states that for the purposes of subsection 1(3) “sexual nature” does not include touching of a clinical nature appropriate to the services provided.

[91] As indicated above, the Committee found that there was no clinical justification for the touching of Patient B’s breasts. In coming to that conclusion, the Committee disregarded the evidence of the Appellant that “head to toe examinations” were warranted to determine whether a presenting condition was localized or widespread. The Committee ignored Patient B’s evidence that he told her he wanted to examine her trunk. Furthermore, in dismissing the removal of clothing allegation, the Committee accepted the Appellant’s evidence that removal of clothing was necessary for an examination.

[92] In order to make the finding of sexual abuse, the Committee had to be persuaded on a balance of probabilities that (a) the Appellant touched Patient B’s breasts and (b) the touching lacked a clinical justification. The burden of proving both of those elements fell on the College. The Appellant was not required to lead evidence that there was a clinical justification but he did give such evidence, on which the Committee relied in the removal of clothing allegation. The Committee gave no reason to reject his evidence on the sexual abuse allegation. In any event, the College led no expert evidence on lack of clinical justification. The fact that the Appellant had obtained an expert report, the contents of which were not before the Committee but appear to have been on that issue, is irrelevant.

[93] We agree that in arriving at its finding of sexual abuse of Patient B, the Committee reversed the burden of proof. The decision in that regard is both an error of law and unreasonable.

Liability issue #3: Was the decision of the Committee that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by allowing contact between Patient C and D and a portion of the Appellant’s body, namely his abdominal fat pad, which contact was not accompanied by any form of warning, apology or excuse, reasonable.

Decision of the Committee

[94] As indicated in paragraph 2 above, the Appellant was charged with sexual abuse and disgraceful, dishonourable or unprofessional conduct involving Patients C and D on the basis that, in the course of an examination, he pressed his genitals against the leg of each of them. As indicated in paragraph 3 above, the Committee held that the Appellant had engaged in disgraceful, dishonourable or unprofessional conduct by allowing his abdominal fat pad to contact the body of Patients C and D. To address this issue, it is not necessary to refer in detail to the analysis. Suffice it to say, the Committee concluded that the College had not proven either sexual abuse or disgraceful, dishonourable or unprofessional conduct in relation to pressing his genitals against the leg of the two patients. The issue is whether changing the body part to the abdominal fat pad was reasonable.

Positions of the Parties

[95] The Appellant took the position that there was no reasonable basis for the finding because the patients never alleged any contact with his abdomen and Patient C and D asserted that his abdomen never made contact with their legs; because Patient C recanted her allegation that the Appellant had pressed his genitalia against her leg; because the College never made an allegation involving his abdomen; and because the Committee ignored his evidence that he was unaware that his abdomen had made contact with patients’ legs at the time. The Appellant takes the position that the Committee punished him for being obese.

[96] The Respondent takes the position that allegations in a Notice of Hearing are not like criminal counts and should not be approached in an overly technical or formalistic manner.[^24] The Respondent also submitted that the allegation included physical contact between the Appellant and his patients and it was open to the Committee to make a finding involving another body part and conclude that such contact would be regarded as disgraceful, dishonourable or unprofessional conduct. The Respondent asserted that the finding of professional misconduct would not have been a surprise or unfair to the Appellant and noted that, in his evidence, the Appellant said his abdomen either did or could have made contact with patients. Furthermore, the Appellant called six patients to confirm that they felt his abdomen pressing into their knees.

[97] The Respondent takes the position that it was open to the Committee to make that finding given the evidence of touching and, relying on the criminal case of R. v. Kelly,[^25] the Respondent argues that the Committee is entitled to consider alternate theories of liability.

Analysis

[98] The context in which the Appellant was charged and in which the hearing took place is important. As indicated above in paragraph 41, the Appellant takes the position that the College had aggressively pursued the theory (which it did not prove) that the Appellant was a serial sexual abuser who pressed his genitalia into patients during dermatological examinations. Indeed, that appears to be an accurate characterization of the theory of the College, given the decision and reasons of the ICRC dated September 29, 2015, in which it imposed the interim suspension order on the basis of a stated concern that the Member had engaged in “a pattern of inappropriate, impulsive, opportunistic sexual behaviour” with patients over many years and therefore he would be unable to comply with chaperone conditions.

[99] After the hearing began, the College brought a similar fact evidence motion before the Committee in order to admit the evidence of three patients in addition to Patients C and D, whose complaints made up the allegations in the Notice of Hearing. The motion was granted, and therefore the allegation of sexual abuse by pressing his penis into the leg of patients engaged the evidence of five female patients.

[100] As a result of the Notice of Hearing dated July 8, 2015, the Appellant retained an expert in urology to conduct an examination of the Appellant and to assess whether it was physically possible or probable that the contact described by Patients C and D could have occurred. The College also retained an expert in urology who was retained to perform an examination of the Appellant to determine whether there was anything that would have prevented the actions described by Patients C and D. The Committee summarized that evidence (and the related witnesses) in pages 21 to 28. The analysis is found at pages 39 to 46. As a result of that analysis, the Committee found that

. . . [T]he evidence did not, on a balance of probability, meet this test. The Committee did not find on the evidence that there was intentional touching of Dr. Kunynetz’s genitalia against the body of Patients C and D. Without question such touching, if it occurred, would constitute touching of a sexual nature, and therefore sexual abuse. However, the Committee finds that the allegation of sexual abuse was not proved with respect to contact between Dr. Kunynetz genitalia and the legs of Patients C and D.

However, the Committee remains concerned that there was contact between a portion of Dr. Kunynetz body, in the area of his large abdominal panniculus, or abdominal fat pad, and this contact was not accompanied by any form of warning, apology or excuse. The Committee was of the view that a reasonable physician would make every attempt to ensure that this did not occur, and that failure to make such attempts or to apologize if it occurred accidentally, or incidentally, represented an unacceptable level of insensitivity on the part of Dr. Kunynetz, without care or concern for the patients. The Committee finds that the contact which occurred between Dr. Kunynetz and Patients C and D was conduct that, having regard to all the circumstances, would be reasonably regarded by members as disgraceful, dishonourable or unprofessional.

[101] In our view, the decision to find that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by allowing his fat pad to come into contact with the body of a patient, not accompanied by a warning, apology or excuse, is not reasonable for these reasons.

[102] In Schedule A to the Notice of Hearing, the College alleged that he was engaged in sexual abuse by pressing his genitals against the leg of two patients. The alternative of professional misconduct was referenced, but in the context of pressing his genitals against the leg of two patients. The question of disgraceful, dishonourable or unprofessional conduct by allowing contact between his abdominal fat pad and Patients C and D was never raised in the particulars of the allegations, in cross-examination or in closing submissions. It surfaced only in the reasons for decision dated March 21, 2017. The Appellant met the case as it was alleged. He had no opportunity to meet a significantly different allegation.[^26]

[103] It is the case that, in his evidence, he raised it as a possibility to explain the evidence of Patients C and D as to bodily contact. In that sense, he was not surprised that the issue of contact between his abdomen and a patient would be raised. But there was no expectation or appreciation that such contact would result in a finding of professional liability.

[104] The allegation of sexual abuse by pressing his genitals occupied extensive time and legal effort in the hearing. Several lengthy motions were brought on this allegation, including a ten day hearing on the admissibility of the similar fact evidence.

[105] Having found that the College failed to prove the specified allegations on a balance of probabilities, given the context described in paragraphs 41 and 98 above in which the allegation of sexual abuse was made and pursued, it was incumbent on the Committee to dismiss the allegation. Instead, without warning, the Committee disciplined the Appellant for its finding that another body part touched the complainants. This was not a question of relying on a differing theory of liability because the College had not raised that theory as a possibility. Nor is it a question of finding a different route to liability. According to “A Complete Guide to the Regulated Health Professions Act”[^27] the Notice of Hearing is required to provide the information necessary to ensure that the member can participate effectively in the hearing and, “at the end of the day, the issue is whether the member was taken by surprise”. The Appellant was taken by surprise by the consequences that the Committee attached to touching a patient with a different body part.

[106] It is a fundamental aspect of deference to specialized tribunals that the members have the expertise to identify disgraceful, dishonourable or unprofessional conduct. In this case, the Committee did so in a manifestly unfair and prejudicial manner and it is the responsibility of the Court to rectify it. The finding must be quashed.

Liability issue #4: Were the decisions of the Committee dismissing the Appellant’s motions reasonable, namely:

(i) the pre-hearing motion to stay the allegations pertaining to Patients A and B as an abuse of process; and the in-hearing motion to stay the allegations involving Patient B as an abuse of process;

(ii) the in-hearing motion for a directed verdict/non-suit with respect to the breach of the Chaperone Order;

(iii) the in-hearing motion for leave to re-open the liability phase to allow him to lead Patient B’s evidence at the preliminary inquiry.

[107] The Appellant has challenged those four decisions of the Committee. As a result of the findings made above, it is not necessary that this Court make rulings with respect to each of them and we make only these observations.

[108] The pre-hearing motion to stay the allegations pertaining to Patients A and B as an abuse of process focused on the delay in the College pursuing Patient A’s complaint, first made in 1999 and the delay in re-opening the file by Patient B that the Appellant understood, based on the letter from the College dated April 1, 2009 had been closed. That motion was heard by a pre-hearing panel differently constituted than the Committee and in the context referred to in paragraphs 41 and 98 above, namely the College was pursuing what appeared to be serious sexual offences involving the Appellant. It would have been difficult for the Appellant to persuade this Court that that decision, at an early stage, was unreasonable.

[109] The second motion to stay as an abuse of process was heard after the liability decision had been released, after the College had given notice of intention to rely on the amendments by the Protecting Patients Act, 2017 and was heard as part of the penalty phase. The motion was heard by the panel of the Committee that had heard 37 days of evidence and motions, and that had released its decision on liability dated March 21, 2017. The Committee was fully knowledgeable about the circumstances on which the Appellant and the College relied. In the reasons for decision as to penalty, pages 16 to 21 include a chronology of events, consideration of the three criteria set out in Blencoe v. British Columbia (Human Rights Commission)[^28] and an analysis of each of those criteria in the context of the proceeding. In arriving at the decision to dismiss the motion, the Committee observed that “this experienced Committee regarded the hearing as being one of the most complex that the Committee had heard”.

[110] In the Divisional Court, many appeals or judicial review applications are heard from dozens of professional tribunals. We share the observation of the Committee that this was one of the most complex cases that a College Discipline Committee has heard. The Court has concluded that the circumstances of this case are so unique that addressing the detailed submissions made by both counsel will not serve to inform this tribunal or other professional tribunals as to whether any part of, or the entirety of the proceeding, constituted abuse of process.

[111] The third motion was brought at the conclusion of the College’s case because the Appellant brought a motion on March 30 and 31, 2016 requesting an order for a directed verdict/non-suit with respect to the alleged breach of the interim order on the basis that the College had not led any evidence on that allegation. The motion was dismissed and the hearing resumed with the Appellant testifying. More evidence of the two breaches of the order came out through his evidence.

[112] By the end of March, 2016, the Committee had heard evidence that the Appellant had breached the interim order and the circumstances of the two breaches, and had received the reasons for decision of the Divisional Court dismissing his judicial review of the order of the ICRC decision. The Court observes that rulings applying the law to the facts such as re-opening the hearing are expected and required during hearings. The appellate or reviewing court is required to defer to the decisions made under such circumstances. On the face of it, and without an in-depth analysis, the decision appears to have been reasonable.

[113] The fourth motion was brought by the Appellant after the liability decision dated March 21, 2017, and after the criminal charges involving Patient B had been dismissed in the Superior Court. This too required the Committee to apply the law to the facts and deference is owed. On the face of it, and without an in-depth analysis, the decision appears to have been reasonable.

[114] The liability hearing was conducted in 37 days over six months. Given the need to have five Committee members in attendance, as well as Counsel to the Committee and for the College and for the Appellant, that was a reasonable duration of time. However, irregularities did occur. As indicated above, the Committee dealt with at least ten significant motions, some brought by the College and others by the Appellant. In each case, the five member Committee had to make and did make a decision immediately. However, there was unexplained delay in releasing reasons for decision of those motions. Two of them were released in July 2017, during the penalty phase of the proceeding, namely the first stay motion which was signed by four of the five members of the pre-hearing Committee, and the similar fact motion signed by all of the members of the hearing Committee. Six of them are dated April 2, 2018 and are signed by the Chair “on behalf of the Committee”.[^29] The liability decision was dated March 21, 2017 which was eight months after the conclusion of the hearing. The four day penalty hearing took place in July and August 2017 with further written submissions in October, 2017. The penalty decision is dated February 20, 2018, which was six months after the conclusion of the hearing in August. Thirty one months elapsed from the issuance of the Notice of Hearing to the release of the penalty decision.

[115] With the impact of the amendments that took effect May 30, 2017 it is likely that in cases involving sexual abuse allegations and the prospect of career ending revocation, counsel for the College and for the member will bring complex motions. It would be prudent for those involved in establishing policies and procedures to anticipate that the “minimum penalty” of revocation will attract similar motions to challenge evidence and procedures, and that Committees will be required to pay even greater attention to the essential function of assessing credibility and reliability of witnesses, and to the standard of proof of “clear and convincing and based on cogent evidence”. The College and other professional tribunals affected by the amendments will experience challenges to assemble five member panels of the Discipline Committee who can make themselves available for prolonged and intense proceedings and deliver timely interim and final decisions. It may be prudent to address these scheduling and training issues in advance of such hearings and establish policies and procedures designed to respond.

Conclusion on liability issues

[116] The two key findings of greatest significance to both the College and the Appellant cannot be sustained. The finding that the Appellant engaged in sexual abuse by touching the breasts of Patient B is not reasonable and is quashed. The decision that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by allowing contact between Patient C and D and a portion of his body, is not reasonable and is quashed.

Penalty Issue #1: Was the decision of the Committee that the Protecting Patients Act, 2017 was retrospective, correct?

Decision of the Committee

[117] As indicated above, in July and August 2017, the Committee heard evidence and submissions on penalty and costs. Following the release on October 5, 2017 of Ontario (College of Physicians and Surgeons of Ontario) v. Beairsto,[^30] the Committee called for written submissions. In Beairsto, the Committee held that the amendments brought by the Protecting Patients Act, 2017 were retrospective. While the Committee made reference to Beairsto in the Penalty Decision, it indicated it had conducted its own analysis and had not relied on Beairsto. In any case, the analysis in Beairsto of the retrospective effect of the amendments is limited.

[118] In the Penalty Decision, the Committee considered and quoted from E.A. Driedger in “Statutes: Retroactive Retrospective Reflections”[^31] and from the Supreme Court in Brosseau v. Alberta Securities Commission.[^32] As a result, the Committee was aware:

(a) of the difference between retroactivity and retrospectivity;

(b) of the general presumption that legislation should not be applied in a retrospective manner; and

(c) that the presumption was rebuttable if the primary purpose of the legislation is public protection.

[119] The analysis by the Committee consisted of the following:

The title of the Act, “The Protecting Patients Act, 2017”, which added sexual touching of the breasts to the acts requiring mandatory revocation, makes it clear that it is intended to protect the public. In introducing the Act in the Legislature, the Minister, the Honourable Eric Hoskins, stated:

“This is a bill to fulfill one of the most basic obligations which we have as a government, which is to protect people, keep them healthy and keep them safe”.

The majority of the Committee were in agreement that the Protecting Patients Amendments were made for the purpose of protecting the public. The changes made were not in the nature of penal sanctions. There are no penal consequences in a discipline hearing. The Committee accepted that retrospective imposition of the penalty of mandatory revocation was not subject to the general rule against retrospective application. There was a minority view that is expressed in a dissenting opinion.

Retrospective application of mandatory revocation is most clearly appropriate when the professional misconduct in question pre-dates the change in legislation on penalty and when a hearing occurs after the legislative change has been made.

The Committee further considered whether the new legislation applied in the circumstances when the amendments come into force after a finding has been made, but before a penalty hearing has commenced. Counsel for Dr. Kunynetz submitted that retrospective application of mandatory revocation under these circumstances constituted a violation of Dr. Kunynetz’s vested rights.

None of the authorities and precedent cases support such a proposition in a disciplinary context, where public protection is the objective. The Committee finds that there are no vested rights that are affected in this case.

[120] The Committee went on to consider Dikranian v. Quebec (Attorney General)[^33] and then concluded as follows:

In considering whether Dr. Kunynetz holds a vested right with respect to his ability to argue for a lesser penalty than revocation for the misconduct in question, the Committee notes that the legislation prior to May 30, 2017, allowed for either revocation or a lesser penalty. Although Dr. Kunynetz would have had the right to argue for a lesser penalty, he did not have the right to expect that a particular penalty would, or would not, be imposed. The Committee did not accept that his right to make an argument could be reasonably considered as a tangible and concrete right. It stands in contrast to a property right in the terms of a loan contract, such as interest rates and maturity dates, that were the rights involved in Dikranian.

The majority of the Committee therefore determined that retrospective application of the Protecting Patients Amendments promulgated on May 30, 2017, should be accepted under the public protection exception, and that revocation of Dr. Kunynetz’s certificate of registration is mandatory for the findings of sexual abuse in this case.

[121] In the dissent, the member referred to R. v. Bickford[^34] for the framework within which the temporal operation of a statute must be considered. That member referred to the three rules to be applied in consideration of retrospectivity. He concluded as follows:

To the extent that the amendments provide for a conclusive presumption then they are substantive law and not exclusively procedural. In accordance with well-established principles, the provincial legislature must, therefore, have intended that the amendments have prospective effect only.

Accordingly, for the amendments to the Code to be applicable to this penalty proceeding, the amendments would need to be applied retrospectively. The only basis for retrospective application is for the Committee to make a determination that the amendments were needed for the protection of the public. Further, the need to protect the public must override the vested rights of the individual.

A vested right is one that is tangible, concrete and sufficiently constituted at the time of the enactment of the new provision. I concur that public protection is of paramount importance but am of the opinion there would not be any miscarriage of justice if the vested rights of the member were to be upheld. Fairness and equity to the rights of the physician also have significant consequence in the rule of law and must be balanced.

In my view, the defence strategy had been premised on the legislation in existence at the time of the hearing and the panel had decided that there was sexual abuse based on the legislation in existence at the time of the decision. Importantly, given the status of the proceedings when the legislation was effective on May 30, 2017, i.e., the decision of sexual abuse had been rendered, the legislation should not now be applied retrospectively thereby interfering with the member’s vested right of equity and fairness.

In Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523, it was stated by the Divisional Court:

“Certainly the College has jurisdiction to proceed with complaints against those who are alleged to have been guilty of misconduct prior to 1996, but the College cannot judge that conduct based on 1997 standards. The conduct must be judged in light of what was prohibited conduct at the time. Further, if it is to be punished, the punishment cannot be more severe than the potential punishment to which the perpetrator was liable at the time of the misconduct.”

In this instance, to apply the penalty retrospectively is more severe than what was applicable at the time of the misconduct.

Given the seriousness of the sexual abuse finding, I am of the view for the reasons expressed by the majority that the appropriate penalty in this case is revocation of the member’s certificate of registration, even though I do not find revocation to be mandatory. I am in agreement with the decision and reasons of the majority of the panel in all respects except for the retrospectivity of the statutory amendments to the Code that came into force on May 30, 2017.

Positions of the Parties

[122] The Appellant took the position that the Committee erred in law by applying the mandatory revocation provision in the Code retrospectively. The Committee failed to apply the presumption against the retrospective application of new statutory provisions and failed to apply the modern principle of statutory interpretation.

[123] The Respondent takes the position that the Protecting Patients Act, 2017 made amendments that provided new consequences for past conduct and is retrospective. However, the presumption against retrospective application is rebutted because the primary purpose of the legislation is public protection.

Analysis

[124] The facta, books of authorities and oral submissions by counsel focused considerable attention on the issue of retrospectivity. As indicated above, this Court quashes the finding of the Committee that the Appellant engaged in sexual abuse by touching the breasts of Patient B. As a result, it is not necessary for the Court to conduct an analysis of the legal issues arising from the assertion by the College that the amendments caused by the Protecting Patients Act, 2017 have retrospective effect.

[125] However, the Court has concluded that it will embark on that analysis because it is apparent from the decisions to which counsel have referred that this is a live issue for all concerned. The Court offers the following analysis.

[126] Prior to the amendments, the Committee had the discretion to revoke a member’s certificate of registration for the type of sexual abuse that the Committee found the Appellant committed against Patient B. The amendments make revocation mandatory. To appreciate the significance of the amendments, the prior and current versions must be examined.

[127] Section 51(5) of the Code during the period in which the event involving Patient B occurred was as follows:

If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2):

1. Reprimand the member.

2. Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following,

i. Sexual intercourse,

ii. genital to genital, genital to anal, oral to genital, or oral to anal contact,

iii. masturbation of the member by, or in the presence of, the patient,

iv. masturbation of the patient by the member,

v. encouragement of the patient by the member to masturbate in the presence of the member.

[128] As a result of the Protecting Patients Act, 2017, effective May 30, 2017, the period during which the Committee imposed a penalty for the events involving Patient B, if a physician were found to have sexually abused a patient by touching of a breast without clinical justification, pursuant to s. 51(5) the penalty of revocation changed from optional to mandatory.

[129] Pursuant to s. 51(2) of the Code, which was unchanged by the amendments, the Committee is permitted to revoke a member’s certificate of registration if it found any other type of professional misconduct.

[130] In the normal course, legislation operates from the day it comes into force. Legislation is retrospective if it provides new consequences for past conduct.[^35] The issue was whether the amendment to impose a mandatory penalty had retrospective effect. In order to protect vested interests, there is a presumption against retrospectivity.

[131] In contrast to College of Physicians and Surgeons of Ontario v. Lee,[^36] in this case, the Committee did an analysis to attempt to justify the finding of retrospectivity. However, we conclude that the analysis is faulty and the decision is not correct. We disagree with the College that the standard of review is reasonableness. The question of retrospectivity is a legal issue of central importance to the legal system and outside the specialized area of expertise of the Committee. The standard of review is correctness.

[132] Counsel referred to many of the decisions on the subject of retrospectivity in the criminal area and in the regulatory area.[^37] In our view, the decision of the Supreme Court in Tran v. Canada (Public Safety and Emergency Preparedness)[^38] is the most helpful in that it departs from the notion as to whether the amendment at issue is penal or not.

[133] In that case, Mr. Tran, a permanent resident in Canada was charged with a federal offence under the Controlled Drugs and Substances Act, S.C. 1996, c. 19 (“CDSA”), for which, at the time of the commission of the offence, the maximum penalty was seven years of imprisonment. After he was charged, but prior to his conviction, amendments were made to the CDSA and the maximum penalty for that offence was increased to 14 years of imprisonment. Mr. Tran was convicted of the charge and received a twelve month conditional sentence of imprisonment to be served in the community.

[134] Following his conviction and sentencing, immigration officers prepared a report stating that Mr. Tran was inadmissible to Canada on grounds of serious criminality, under s. 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). That section provided that a permanent resident is inadmissible to Canada for having been convicted in Canada of a federal offence punishable by a maximum term of imprisonment of at least ten years, or of a federal offence for which a term of imprisonment of more than six months had been imposed. As a result of the amendment to the CDSA, after his conviction and sentencing, Mr. Tran became exposed to the consequences of inadmissibility, namely loss of status and removal from Canada.

[135] The report was submitted to a delegate of the Minister of Public Safety and Emergency Preparedness, who adopted it and referred the matter to the Immigration Division of the Immigration and Refugee Board for an admissibility hearing. Mr. Tran applied for judicial review of the delegate’s decision.

[136] The Supreme Court held as follows:

23. The modern principle of statutory interpretation is that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”. . .

24. Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual reading of s. 36(1)(a) supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence. . . . .

25. This interpretation aligns with the purpose of the IRPA, as outlined in s. 3:

3(1) The objectives of this Act with respect to immigration are . . .

(h) to protect public health and safety and to maintain the security of Canadian society; …

(i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; …

40. As stated above, the IRPA aims to permit Canada to obtain the benefits of immigration, while recognizing the need for security and outlining the obligations of permanent residents. . . .

41. The presumption against retrospectivity lends further support to this conclusion. While I agree with the Court of Appeal that s. 11(i) of the Charter does not apply to the decision of the Minister’s delegate because the proceedings were neither criminal nor penal, the presumption against retrospectivity is a rule of statutory interpretation that is available in the instant case. The purpose of this presumption is to protect acquired rights and to prevent a change in the law from “look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction”. The presumption works such that “statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act”.

42. The presumption against retrospectivity engages the rule of law. Lord Diplock explained that the rule of law “requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it”. As this Court explained in Reference re Secession of Quebec, the rule of law “vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs”.

43. The presumption against retrospectivity also bespeaks fairness. For example, sentencing judges are required to consider immigration consequences. It would raise issues of fairness to introduce a new collateral consequence after sentencing that would have been relevant before sentencing. . . .

44. In Brosseau, this Court held that the presumption will not apply if the new prejudicial consequence at issue is designed to protect the public rather than as a punishment for a prior event. The fact that s. 36(1)(a) of the IRPA reflects “an intent to prioritize security” is not, in itself, sufficient to bring it within the “public protection” exception contemplated in Brosseau. To interpret the public protection exception as inclusive of all legislation that can be said to be broadly aimed at public protection would ignore the purpose underlying the presumption against retrospectivity.

45. The presumption is a tool for discerning the intended temporal scope of legislation. In the absence of an indication that Parliament has considered retrospectivity and the potential for it to have unfair effects, the presumption must be that Parliament did not intend them . . .

46. Ordinarily, express language or necessary implication provides this necessary indication that Parliament has turned its mind to the issue of retrospectivity. The “public protection” exception permits protective legislation to operate retrospectively absent express language or necessary implication, provided that legislative intent otherwise supports doing so. But, in accordance with the underlying purpose of the presumption, the exception is only triggered where the design of the penalty itself signals that Parliament has weighed the benefits of retrospectivity against its potential for unfairness. This will be the case where there is a clear nexus between the protective measure and the risks to the public associated with the prior conduct to which it attaches. In such cases, as in Brosseau, the scope of protection is aligned with the specific risks posed by persons who have engaged in specific harmful conduct and is tailored to preventing those risks prospectively. [Citations omitted]

[137] We apply that analysis as follows.

[138] The Committee received a copy of Bill 87 “An Act to implement health measures and measures relating to seniors by enacting, amending or repealing various statutes”. Pursuant to s. 3 of the Act, the short title is the Protecting Patients Act, 2017. Bill 87 attached schedules indicating that six statutes were to be amended: Drug and Pharmacies Regulation Act, Immunization of School Pupils Act, Laboratory and Specimen Collection Centre Licensing Act, Ontario Drug Benefit Act, Regulated Health Professions Act, 1991, and Seniors Active Living Centres Act, 2017. Bill 87 had a large scope, and the short title was not indicative of its contents.

[139] One of the amendments Bill 87 made to the Code was to add the following:

Statement of purpose, sexual abuse provisions

1.1 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 in connection with allegations of sexual abuse by members and, ultimately, to eradicate the sexual abuse of patients by members.

[140] As in Tran, while it is clear that the purpose of the provisions is to protect the public, there is no indication in the statute that the Legislature turned its mind to whether the amendments to the six pieces of legislation were retrospective or not. Nor is there any indication that the Legislature weighed the benefits of retrospective effect with its potential unfairness.

[141] Bill 87 is accompanied by an “Explanatory Note” that states it is written as a reader’s aid and does not form part of the law. In respect of the amendment to the Regulated Health Professions Act, 1991, the explanatory note listed eleven changes including requiring a College to collect information from members; giving the Minister the power to make regulations respecting College committees and panels; expanding the matters a College is required to note in its register; expanding the authority of the ICRC and its panels to make interim suspension orders; requiring members to report to the Registrar if they belong to professional bodies outside Ontario and to report if charged with an offence; expanding the mandatory program for Colleges to provide funding for therapy and counselling for patients who were sexually abused by members and increasing the penalties for failing to report sexual abuse of patients. The following is item seven in that list:

The grounds for mandatory revocation of the certificate of registration of a member who has sexually abused a patient are expanded, and suspension is made mandatory in sexual abuse cases that do not involve conduct requiring mandatory revocation.

[142] The explanatory note cannot be relied on to demonstrate the intention of the Legislature. But even the explanatory note is silent on whether the amendments were intended to operate retrospectively. There is no basis to find that the presumption against retrospectivity has been displaced by any express or implied intention reflected in Bill 87, the accompanying documents, or in the Protecting Patients Act, 2017.

[143] The Respondent provided an excerpt from Hansard on May 27, 2017. In introducing Bill 87, the Hon. Eric Hoskins, Minister of Health and Long-Term Care, said that the proposed legislation would “strengthen and reinforce the zero-tolerance policy that we have as a government and as a province for the sexual abuse of patients by regulated health professionals.”[^39] He made reference to the zero-tolerance policy several times in his remarks and pointed out that the list of acts of sexual abuse that result in mandatory revocation was being expanded. He emphasized that the amendment was “primarily intended to support [his] duty under the RHPA to ensure that health professions are regulated and coordinated fully in the public interest and for the public good.”

[144] There is no question that the excerpts from the Minister and other Members of the Legislature spoke to the policy of zero-tolerance. However, counsel did not point to any of the Hansard transcripts that gave any indication as to whether the zero tolerance policy was intended to affect events in the past. There is no basis to find that the presumption against retrospectivity has been displaced by any express or implied intention by Members of the Legislature.

[145] On the issue of the reasonableness of the penalty, counsel both referred to the decision of the Court of Appeal in College of Physicians and Surgeons of Ontario v. Peirovy.[^40] In that case the retrospectivity issue was not before the Court, but the Court made observations that are relevant to the issue of retrospectivity. The majority of the Court held as follows at paras. 86 and 87:

In 2017, after the decision under appeal, the legislature responded to the College’s 2015 Draft Sexual Abuse Principles. It determined that penalties for sexual abuse should be increased by expanding the application of mandatory revocation. […]

These 2017 legislative amendments do not retroactively validate the Divisional Court’s erroneous application of the deferential standard of review to the Discipline’s Committee’s 2016 decision on penalty for offences occurring in 2009 and 2010. A penalty must reflect the context in which the misconduct occurred: Law Society of Upper Canada v. Neinstein (2007), 2007 8001 (ON SCDC), 85 O.R. (3d) 446 (Div. Ct.), rev’d on other grounds 2010 ONCA 193, 99 O.R. (3d) 1, at para. 104. In accordance with the proper administration of justice and procedural fairness, Dr. Peirovy’s case had to be adjudicated based on the law in force at the time. Any legislative change that followed is irrelevant.

Conclusion on retrospectivity

[146] In a matter that is not within its normal purview and that has broad impact affecting many health professions, the Committee erred in its analysis and in its decision that the amendments brought by the Protecting Patients Act, 2017 had retrospective effect.

Penalty Issue #2: Was the decision as to penalty reasonable?

Decision of the Committee

[147] The Committee found as follows:

(a) the Appellant had committed an act of professional misconduct in that he moved or removed the clothing of Patients A and D in the absence of adequate warning or explanation that constitutes conduct that would be reasonably be regarded by members as disgraceful, dishonourable or unprofessional;

(b) the Appellant had contravened a term, condition and limitation on his certificate of registration, namely he breached the Chaperone Order on two occasions;

(c) the Appellant had committed an act of professional misconduct in that he engaged in sexual abuse of Patient B, by touching her breasts in a manner that was not consistent with the clinical examination;

(d) the Appellant had engaged in conduct or an act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional conduct by allowing his abdominal fat pad to contact the body of Patients C and D;

(e) the Protecting Patients Act, 2017 had retrospective effect and therefore the penalty for the finding of sexual abuse involving Patient B was mandatory revocation;

(f) even if the Act did not have retrospective effect, the Committee would have exercised its discretion and imposed a penalty of mandatory revocation;

(g) the Appellant was ordered to pay costs of the hearing in the amount of $145,460.00.

Analysis

[148] This Court has quashed the findings in (c) and (d), leaving findings of removal of clothing in the absence of adequate warning or explanation and contravening a term, condition and limitation on his certificate of registration on two occasions.

[149] On the basis of having set aside the allegations of sexual abuse and the professional misconduct by touching, the decision as to penalty cannot stand and must be quashed.

Remedy

Positions of the Parties

[150] At the conclusion of the hearing on January 24, 2019, the Court asked counsel to prepare a summary of the remedy each proposed depending on the various findings this court might make. In general, the Appellant took the position that if any of the liability findings were quashed, the Court should not remit but should substitute with a dismissal. If the penalty decision was overturned, the Appellant took the position that the Court should not send it back for further hearing on the basis that the interim suspension exceeded any reasonable penalty. In other words, the Appellant asked that this court substitute with its decisions both on liability and penalty.

[151] Relying on Stefanov, Horri v. The College of Physicians and Surgeons,[^41] and College of Physicians and Surgeons of Ontario v. Petrie,[^42] the Respondent took the position that the Court should remit the matter to a different panel if the Court sets aside either or both of the finding of sexual abuse in respect of Patient B and the finding of disgraceful, dishonourable or unprofessional conduct with respect to physical contact with Patients C and D; and remit to the same panel if the penalty decision was set aside.

Analysis

[152] Section 70 of the Code provides for an appeal to the Divisional Court on questions of law or fact or both. The Court has all the powers of the panel that dealt with the matter.

[153] As indicated above, the Court is dismissing the allegation of sexual abuse of Patient B and dismissing the finding of professional misconduct with respect to Patients C and D. The usual remedy, when an appeal of a decision of an administrative decision maker is granted, is to remit the matter to the decision maker for re-determination of the issue of liability or for re-determination of penalty of the remaining findings. That respects the legislative policy to leave such decisions to the administrative body.[^43]

[154] The following are unique circumstances of this case that warrant the unusual remedy set out below:

(a) The Notice of Hearing originated in July 2015 which is four years ago. Assuming the same five members are available, sending it back for a fresh penalty hearing on the remaining findings will likely take at least six months. Sending it back for a fresh liability hearing before a new panel on the allegations involving Patient B will likely take much longer. The single allegation involving Patient B occurred in August 2008, eleven years ago.

(b) The Appellant, the College, the complainants and the public all share an interest in finality. It would be unfair to the witnesses to have to participate in another hearing on the merits of the allegation of sexual abuse with respect to Patient B, particularly because she made the original complaint in 2008 and since then has been involved in both the College proceedings and the criminal proceedings. The evidence of witnesses has likely deteriorated over that lengthy period and, as a result, the prospects of the College providing “clear, convincing and cogent evidence” are dim.

(c) The Appellant was under suspension from October 1, 2015 to February 20, 2018 when the penalty decision was released. Since then he has been subject to the revocation order. The period of suspension of almost 28 months and the 17 month period of revocation totals 45 months. We consider it unlikely that a penalty greater than 28 months or 45 months will be imposed with respect to the remaining findings of removal of clothing without warning or consent and two breaches of an interim order.

(d) Other than the original complaint from Patient B, the Appellant had no prior record of discipline which is a mitigating factor in assessing penalty.

(e) In her evidence during the hearing as to penalty, the Appellant’s wife described the enormous toll that the proceeding had had on the Appellant personally and professionally as well as on her and their children. She described the press reports as a “constant bombardment of ugliness”. In the end, the Appellant has been vindicated of all of the serious allegations. He and his family ought to be able to see a light at the end of the tunnel.

(f) The College has a vested interest in sustaining the “usual remedy” that matters of liability and penalty are sent back. The outcome of substitution in this case is exceptional.

[155] The Penalty decision also dealt with costs. The College had asked for a total of $189,750.00. The Appellant had submitted that no costs be ordered; alternatively, that the College pay his costs in the amount of $20,760 which he said reflected the amount of time that would have been spent for a hearing based on the findings made by the Committee.

[156] The Committee considered the College tariff of $5,500 per day of hearing and then made reductions to recognize the fact that allegations of sexual abuse were not proven with respect to several witnesses, that one allegation of sexual abuse was proven as well as the fact that in those complaints where sexual abuse was not established, the Appellant’s conduct was found to be disgraceful, dishonourable and unprofessional. In the end the Committee made an award based on the actual utilization of College resources and then reduced it to reflect the hearing days when the complainants and similar fact witnesses testified.

[157] In their written submissions on remedy, the Appellant generally combined “penalty/costs” in his urging that orders of the Committee be set aside and not remitted. The College made no specific submission on costs. Given that the two significant findings are being set aside, the analysis by the Committee of the costs award is no longer justified. Paragraphs 41 and 98 above refer to the context in which the now dismissed allegations occupied the hearing. Given that the Appellant has been successful in his defence of the allegations that attracted the most severe penalty but he was found to have committed an act of professional misconduct and to have contravened a term of his certificate of registration, we see no point in remitting this issue of costs to the Committee to determine the modest amount for which he might still be liable. At the conclusion of the hearing, counsel advised that they had agreed that there would be no costs of the appeal regardless of outcome. Given the success on the appeal, the Appellant would have been entitled to some costs that would have equalled, if not exceeded, any amount for which he might be liable for the proceedings at the College. On that basis, there will be no costs of the hearing before the College.

ORDER TO GO AS FOLLOWS:

[158] The Liability Decision of the Committee finding that the Appellant committed an act of professional misconduct by moving or removing clothing in the absence of adequate warning or explanation to Patients A and D is reasonable and is sustained.

[159] The Liability Decision finding that the Appellant contravened a term, condition and limitation of his certificate of registration namely, he breached the Chaperone Order on two occasions, is reasonable and is sustained.

[160] The Liability Decision finding that the Appellant engaged in sexual abuse by touching the breasts of Patient B in a manner that was not consistent with the clinical examination is not reasonable and is quashed. The allegations contained in the Notice of Hearing are dismissed.

[161] The Liability Decision finding that the Appellant engaged in professional misconduct by allowing his abdominal fat pad to contact the body of Patients C and D without warning, apology or excuse, is not reasonable and is quashed. The allegations, not contained in the Notice of Hearing, are nonetheless dismissed.

[162] The Penalty Decision of revocation, reprimand, reimbursement pursuant to s. 85.7 and costs is not reasonable and is quashed.

[163] The penalty for the findings that the Appellant committed an act of professional misconduct in removing the clothing of Patients A and D and that he twice contravened a term, condition, or limitation on his certificate of registration is a period of suspension from October 1, 2015 to the date of release of this decision.

[164] On consent there shall be no costs of this appeal.

KITELEY J.

DEL FRATE J.

RADY J.

Released: July 23, 2019

[^1]: Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz, 2017 ONCPSD 11. [^2]: Ontario (College of Physicians and Surgeons of Ontario) v. Kunynetz, 2018 ONCPSD 5. [^3]: 2017 ONCPSD 43 [^4]: Kunynetz v. College of Physicians and Surgeons of Ontario, 2015 ONSC 6830. [^5]: R. v. R.K., 2018 ONSC 2590 [^6]: FN 3 [^7]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 55 [^8]: Gutman v. College of Physicians and Surgeons of Ontario, 2018 ONSC 6936 (Div. Ct.), at para. 7 (citations omitted); see also Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981 at paras. 8-9. [^9]: Gale v. College of Physicians and Surgeons, 2015 ONSC 1981 (Div. Ct.), at para. 8. [^10]: Dr. Noriega v. The College of Physicians and Surgeons of Ontario, 2016 ONSC 924 (Div. Ct.) at paras. 6, 59. [^11]: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, at para. 94. [^12]: Neinstein, at para. 94. [^13]: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230, at paras. 27-29. [^14]: Dunsmuir at para. 55. [^15]: Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981 at para. 8(iii). [^16]: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 14-16. [^17]: 2019 ONSC 4294 [^18]: Mast v. College of Nurses of Ontario, 2015 ONSC 5854 (Div. Ct.); Yazdanfar v. College of Physicians and Surgeons of Ontario, 2009 30457 (Ont. Div. Ct.)); Ontario (College of Traditional Chinese Medicine Practitioners & Acupuncturists of Ontario) v. Micu, 2018 ONCTCMPAO 17. [^19]: [2008] 3 S.C.R. 41, 2008 SCC 53 [^20]: 2014 ONSC 7018, at para 52. [^21]: For example, in Ontario (College of Physicians and Surgeons of Ontario) v. Lee, 2017 ONCPSD 2, at p. 22. [^22]: Referral letter dated July 11, 2008 from her physician to the Appellant; reporting letter dated August 5, 2008; registration form Patient B completed on August 5, 2008; written complaint in 2008; memo dated December 19, 2008 by the College investigator; letter dated January 19, 2009 from the College investigator to the Appellant providing notice of Patient B’s letter of complaint; letter dated April 1, 2009 from the College investigator informing Appellant that Patient B’s concerns were resolved; letter dated April 1, 2009 from the College investigator to Patient B informing her as to the meeting with the Appellant on January 19, 2009 and Appellant’s response; transcription of the interview of Patient B conducted by the College on October 28, 2008; Appellant’s counsel’s letter to the College dated March 2, 2015 that was in response to the re-opening of the file. [^23]: 2016 ONSC 848 [^24]: Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819, at paras. 50 -54. [^25]: R. v. Kelly, 2017 ONCA 920, at paras. 30-32. [^26]: Gale v. College of Physicians and Surgeons of Ontario, 2003 30486 (ON SCDC), [2003] O.J. No. 3948, at para. 108. [^27]: Richard Steinecke, (Toronto: Canada Law Book, 2017 at 6:30.10) [^28]: 2000 SCC 4, [2000] 2 S.C.R. 307. [^29]: The failure of four members of the Committee to sign all of the rulings was not raised as an issue in this appeal. However, in another case, that may be important because decisions are not final until the reasons signed by the entire Committee are provided. See Pryor v. OSPCA 2008 ONCA 108. [^30]: FN 3. [^31]: (1978) 56 Can. Bar Rev. 264 and 275. [^32]: 1989 121 (SCC), [1989] 1 S.C.R. 301, at p. 318. [^33]: 2005 SCC 73, [2005] 5 S.C.R. 530 [^34]: 1989 7238 (ON CA), [1989] 51 C.C.C. (3d) 181 (Ont. C.A.), at para. 11 [^35]: Benner v. Canada (Secretary of State), 1997 376 (SCC), [1997] 1 S.C.R. 358, at para. 39. [^36]: Lee, at para. 88 and 90. [^37]: See e.g., Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, 1975 4 (SCC), [1977] 1 S.C.R. 271, Brosseau v. Alberta Securities Commission. [^38]: 2017 SCC 50, [2017] 2 S.C.R. 289. [^39]: Ontario, Legislative Assembly, Official Report of Debates (Hansard), (27 March 2017) at 3109-3111; (29 May 2017) at 4641-4644 (Hon. Eric Hoskins). [^40]: 2018 ONCA 420 [^41]: 2018 ONSC 3193. [^42]: (1989), 1989 4276 (ON SC), 68 O.R. (2d) 100 (Div. Ct.) [^43]: Horri, at para. 82.