CITATION: Volochay v. College of Massage Therapist, 2019 ONSC 5718

DIVISIONAL COURT FILE NO.: 18-2434

DATE: 20191002

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Bale and Favreau JJ.

B E T W E E N :

OLEG VOLOCHAY

Appellant

– and –

COLLEGE OF MASSAGE THERAPISTS

Respondent

Gary G. Boyd

for the appellant

Erica Richler and Maya Pearlston

for the respondent

HEARD: September 9, 2019

FAVREAU J.:

Overview

[1] The appellant, Oleg Volochay, appeals a decision dated August 9, 2017 and a penalty order dated July 19, 2018 of the Discipline Committee of the College of Massage Therapists of Ontario. The Discipline Committee found that Mr. Volochay committed a number of acts of professional misconduct, including sexual abuse of a patient, which resulted in the automatic revocation of his certificate of registration.

[2] Mr. Volochay argues that the Discipline Committee's order and decision should be set aside because the College's investigation was procedurally unfair, there was undue delay in the proceedings and the Discipline Committee committed several errors in its assessment of his witnesses' evidence.

[3] For the reasons that follow, the appeal is dismissed.

Relevant Statutory scheme

[4] Under section 51(1)(b.1) of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c.18 (the “Code”), it is professional misconduct for health professionals, including massage therapists, to have sexual relations with a patient. If the sexual relations include sexual intercourse, section 51(5)3 of the Code provides for the mandatory revocation of the health professional's certificate of registration for at least five years.

[5] As confirmed by the Court of Appeal in Leering v. College of Chiropractors of Ontario, 2010 ONCA 87, at para. 29, consent is not a defence; if there is a concurrent sexual and treating relationship, this amounts to sexual abuse.

[6] The Code sets out the procedure Colleges are to follow when they receive a complaint. A screening committee decides whether to refer the complaint for a hearing by the Discipline Committee. Prior to June 2009, the screening committee was referred to as the Complaints Committee, after which the name was changed to the Inquiries, Complaints and Reports Committee ("ICRC"). At the screening stage, section 25(6) of the Code requires the College to provide members with notice of the complaint, and in accordance with section 25.2, members are entitled to make submissions to the screening committee before it makes a decision about how to deal with the complaint.

[7] Pursuant to section 29 of the Code, a member of the College can request that the Health Professions Appeal and Review Board (the “HPARB”) review a decision of the screening committee, except a decision referring the complaint to the Discipline Committee.

[8] If a complaint is referred to the Discipline Committee, the Committee is required to hold a hearing.

[9] Pursuant to section 70(2) of the Code, an appeal from a decision of the Discipline Committee lies to the Divisional Court on a question of law or fact or both.

History of the proceedings

[10] Mr. Volochay is a massage therapist.

[11] In July of 2008, S.D. made a complaint to the College, alleging that she and Mr. Volochay had a sexual relationship between August 2005 and July 2006 while Mr. Volochay was also her treating massage therapist. S.D. also alleged that Mr. Volochay threatened her verbally.

[12] The College's Complaints Committee started investigating the complaint in September 2008. On September 17, 2008, the Complaints Committee notified Mr. Volochay that he was the subject of a complaint, but the Committee did not identify the complainant or the nature of the allegations.

[13] S.D. withdrew her complaint on September 21, 2008.

[14] On September 23, 2008, the College notifed Mr. Volochay that the complaint had recently been withdrawn. The College also advised Mr. Volochay that it would notify him once the Complaints Committee had reviewed the withdrawal of the complaint.

[15] In April 2009, the Complaints Committee notified Mr. Volochay that it was not referring the complaint to the Discipline Committee at that time, but that the matter was being sent to the Executive Committee to consider an investigation of his whole practice.

[16] During this time period, the College did not identify the complainant or give Mr. Volochay notice of the substance of the allegations.

[17] On May 20, 2009, Mr. Volochay requested that the HPARB review the Complaints Committee's decision to refer the complaint to the Executive Committee. Mr. Volochay withdrew his review request before the scheduled hearing date.

[18] Soon after withdrawing his review request to the HPARB, Mr. Volochay asked the College to dismiss the complaint. In November 2010, the ICRC rejected the request, and the College appointed an investigator to investigate Mr. Volochay’s whole practice. He was notified of this decision on November 30, 2010.

[19] Mr. Volochay then brought an urgent application for judicial review to the Divisional Court. In a decision reported as Volochay v. College of Massage Therapists of Ontario, 2011 ONSC 2225 (Div. Ct.), the Court granted the application on the basis that, by failing to follow the statutorily mandated procedure, the College had lost jurisdiction. In a decision reported at 2012 ONCA 541, the Court of Appeal overturned that decision, finding that the application was premature. In the course of its reasons, the Court did find that the College had breached Mr. Volochay's statutory right to notice of the investigation, but stated that this defect could have been cured through a request for review to the HPARB.

[20] Following the Court of Appeal's decision, the College reactivated its investigation. As part of the investigation, the College interviewed S.D. and Mr. Volochay. Mr. Volochay was interviewed under oath in the presence of his counsel on November 15, 2013. He was also given an opportunity to make submissions.

[21] On November 28, 2014, the ICRC directed that the following issues be referred for a hearing by the Discipline Committee:

a. Whether Mr. Volochay sexually abused a patient;

b. Whether Mr. Volochay abused a client verbally;

c. Whether Mr. Volochay engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all circumstances, would reasonably be regarded by registrants as disgraceful, dishonourable or unprofessional; and

d. Whether Mr. Volochay engaged in conduct that would reasonably be regarded by registrants as conduct unbecoming a Massage Therapist.

[22] On February 18, 2015, the Discipline Committee issued a Notice of Hearing.

Hearing and Decision by the Discipline Committee

[23] While Mr. Volochay was represented by counsel throughout the investigation and the proceedings before the Divisional Court and the Court of Appeal, he represented himself at the hearing before the Discipline Committee. However, for the purposes of the hearing, the Discipline Committee appointed amicus curiae to conduct S.D.'s cross-examination.

[24] At the beginning of the hearing, there were a number of motions, including a motion by Mr. Volochay to dismiss the proceeding in its entirely on the basis of the Court of Appeal's earlier finding that the Complaints Committee had failed to meet its statutory obligations during the initial investigation of the complaint. The Discipline Committee dismissed Mr. Volochay's motion.

[25] The hearing lasted eight days.

[26] The only witness called by the College was S.D.. She testified that she and Mr. Volochay had a sexual relationship between August 2005 and July 2006, and that she was his patient at that time and for two years following their sexual relationship. S.D. testified that her sexual encounters with Mr. Volochay occurred after massage therapy sessions and also outside of the clinical setting. She testified that they traveled together to Montreal in January 2006, where they stayed at the Ritz-Carlton. She also said that they traveled together to Kiev, Ukraine in July 2006. She testified that they had sexual intercourse on at least 9 occasions. She also testified that Mr. Volochay threatened her verbally at the end of the relationship, and again on another occasion after the relationship had been over for some time.

[27] Mr. Volochay testified on his own behalf. While he admitted to having some personal dealings with S.D., he denied that they had a sexual relationship. He also denied that that they ever met in Montreal or Kiev. Besides testifying on his own behalf, Mr. Volochay called four witnesses. N.R. and Y.B. testified in support of Mr. Volochay's evidence that he never met S.D. in Montreal. B.B. testified in support of Mr. Volochay's evidence that he did not meet S.D. in Kiev. The fourth witness was one of the College’s investigators.

[28] The Discipline Committee released its decision on August 9, 2017. The Committee accepted S.D.'s evidence that she and Mr. Volochay had sexual intercourse while she was his patient. As part of its analysis, the Discipline Committee found that S.D.’s evidence was generally credible and that Mr. Volochay's evidence was not credible.

[29] Based on its assessment of the evidence, the Discipline Committee concluded that the appellant committed the following acts of professional misconduct:

a. Sexual abuse of a client;

b. Failure to maintain a standard of practice of the profession;

c. Verbal abuse of a client; and

d. Engaging in conduct that would reasonably be regarded by registrants as conduct unbecoming a massage therapist.

[30] Based on these findings, on July 19, 2018, the Discipline Committee made an order imposing the following penalties on the appellant:

a. That he appear before the Discipline Committee Panel to be reprimanded;

b. That his certificate of registration is revoked; and

c. That he is to pay costs to the College in the amount of $75,000.

Issues raised on the appeal

[31] Mr. Volochay argues that his appeal should be allowed on the following grounds:

a. The investigative process breached his right to procedural fairness;

b. There was undue delay in the proceeding; and

c. The Discipline Committee's assessment of his witnesses and their credibility was unreasonable.

Application for fresh evidence

[32] At the beginning of the hearing, the panel heard Mr. Volochay's motion to introduce fresh evidence. The panel dismissed the motion with reasons to follow. This section of the decision sets out the reasons for rejecting the fresh evidence.

[33] Mr. Volochay swore an affidavit for the purpose of the motion, to which are attached the two following documents he sought to introduce as fresh evidence on the appeal:

a. Two emails dated October 15, 2017, between Mr. Volochay and the Ritz-Carlton in Montreal; and

b. A document addressed "To Whom It May Concern", addressing Mr. Volochay's participation at a conference in Lviv, Ukraine.

[34] The following test from the Supreme Court of Canada’s decision in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, applies to the admission of fresh evidence:

a. The evidence could not have been adduced at trial by due diligence;

b. The evidence is relevant in that it bears on a decisive or potentially decisive issue;

c. The evidence must be credible in the sense that it is otherwise capable of belief; and

d. The evidence, if believed, taken with other evidence, could be expected to affect the result.

[35] The College concedes, and I agree, that the proposed evidence meets the second criteria of relevance. However, the documents do not meet the balance of the criteria.

[36] With respect to the two emails between Mr. Volochay and the Ritz-Carlton:

a. There is no evidence that Mr. Volochay could not have obtained this evidence prior to the hearing before the Discipline Committee. In his affidavit, Mr. Volochay does not explain why he did not request this information prior to the hearing. At the hearing before us, his lawyer argued that Mr. Volochay could not have known that the College would not have any documentary evidence in support of the contention that he and S.D. stayed at the Ritz-Carlton in Montreal on the relevant date. However, Mr. Volochay would have known that there was no such evidence given the College's disclosure obligations. More importantly, he was informed of the allegation that he and S.D. had a sexual encounter while staying at the Ritz-Carlton, and therefore the need to present evidence on this issue should have been evident.

b. The proposed evidence would not be admissible at the hearing. On its face, the document's authenticity is dubious. It consists of two emails that do not appear in the order in which emails are normally printed and they appear to be cut and pasted together. While the email from the Ritz states that the Ritz has no record of "any reservations having been made under the names on January 27th 2006 as mentioned below", the Ritz's email does not state which names the Ritz was asked to search. It is only the email above, and not below, that purports to be from Mr. Volochay, that makes reference to his name and S.D.'s name. Even if we were satisfied with the authenticity of the document, the evidence from the Ritz Carlton is impermissible hearsay. Section 49 of the Code provides that no evidence is admissible at a hearing before the Discipline Committee unless it would be admissible in a civil action.

c. Even if the evidence were believed, it is not evident that it would have affected the result. Again, it is not clear from the sequence of emails which names the Ritz-Carlton was asked to search. In any event, the room at the Ritz could have been booked under a different name.

[37] With respect to the document about the conference in the Ukraine, Mr. Volochay did seek to admit this evidence at the hearing before the Discipline Committee, and therefore it is not “fresh evidence” as that term is generally understood. His lawyer explained that he sought to have it admitted as fresh evidence before this Court because it was not marked as an exhibit at the hearing. In my view, this does not make the document the subject of a motion for fresh evidence. Notably, such a motion would fail on the first criteria because the appellant was able to obtain it for the first hearing. The real issue is whether the Board committed an error in refusing to admit the document. There was no such error. Its admission would be contrary to section 49 of the Code unless it fit within one of the exceptions to the hearsay rule. Mr. Volochay's lawyer described it as receipt for the conference, suggesting that it is a business record. But Mr. Volochay does not describe it as a “receipt” in his affidavit, and on its face it is not described as a receipt.

[38] Accordingly, neither document meets the criteria for the admission of fresh evidence.

Standard of review

[39] The first two issues raised by Mr. Volochay are issues of procedural fairness. No standard of review applies to issues of procedural fairness: Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420 (Div. Ct.), at para. 19.

[40] The other issues raised involve the Discipline Committee's assessment of evidence and credibility. There is no dispute between the parties that reasonableness is the standard of review applicable to these matters: Gale v. College of Physicians and Surgeons of Ontario (Div. Ct.), 2015 ONSC 1981, at para. 6.

Issue 1 - Whether the decision was procedurally unfair

[41] Mr. Volochay relies on the 2012 finding of the Court of Appeal that the investigation was procedurally unfair to argue that the proceedings leading to the revocation of his certificate of registration were procedurally unfair and should be quashed.

[42] The College argues that the proceedings following the Court of Appeal's decision cured any procedural unfairness identified by the Court of Appeal.

[43] I agree with the College that any procedural defects prior to the Court of Appeal decision were subsequently cured.

[44] The Court of Appeal and this Court have consistently held that a breach of procedural fairness can be cured by giving the affected party a later opportunity to be heard and to make submissions: McNamara v. Ontario (Racing Commission) (1988), 1998 7144 (ON CA), 111 OAC 375 (C.A.), at para. 28; Seniorscare Operations (HCL) LP v. Director, Performance Improvement and Compliance Branch, 2015 1964 (Div. Ct.), at para. 11; and LSBF Canada Inc. v. Scott, 2013 ONSC 4772 (Div. Ct.), at para. 19.

[45] In its decision, the Court of Appeal held that Mr. Volochay's application for judicial review was procedurally unfair because, contrary to the requirements in the Code, he was not given proper notice of the complaint and an opportunity to respond before the referral to the Executive Committee. In the course of its reasons, the Court of Appeal found that the application for judicial review was premature because Mr. Volochay had an adequate alternative remedy; he could appeal the referral to the Health Professions and Review Board, which in turn would have the authority to ensure that Mr. Volochay received notice of the complaint and an opportunity to make submissions:

[75] Under s. 35(1)3 of the Code, the HPARB could have required the ICRC to reconsider the S.D. complaint, but this time after ensuring that Volochay had notice of the complaint and an opportunity to make written submissions. In other words, the HPARB could have ordered the ICRC to give Volochay his procedural rights during the reconsideration.

[76] What the HPARB could not have done was give Volochay the remedy he sought, and that was granted, in the Divisional Court: an order quashing the decision of the Complaints Committee and the later decision appointing an investigator. However, in my opinion, a reconsideration of the investigation after giving Volochay notice of the complaint and the opportunity to make submissions would be an adequate alternative remedy. We must assume that the ICRC would conduct the reconsideration fairly and with an open mind. The HPARB would, therefore, be capable of curing the initial failure of the Complaints Committee to treat Volochay fairly.

[46] In making this finding, it is evident that the Court of Appeal was satisfied that the procedural defects it had identified could be cured.

[47] In fact, following the Court of Appeal’s decision, as reviewed above, the College did ensure that Mr. Volochay was given notice of the complaint and an opportunity to be make submissions before the matter was referred to the Discipline Committee. Mr. Volochay was interviewed in the presence of his counsel and he also made submissions to the ICRC about the complaint.

[48] Notably, Mr. Volochay raised this issue before the Discipline Committee on a motion at the beginning the hearing, and again in his closing submissions at the hearing. In both instances, he did not identify any procedural defects that had arisen since the Court of Appeal's decision. The Discipline Committee rejected his arguments. In its decision dated December 14, 2015 dealing with Mr. Volochay’s preliminary motion, the Discipline Committee dismissed Mr. Volochay’s argument that the proceedings were an abuse of process on the following basis:

The Member used the decision in Volochay v. CMTO (2012) (paragraphs 79 and 82 specifically) as evidence that there had been an abuse of process. While Justice Laskin did assert that the Member was “entitled to better from his governing body”, the Panel feels strongly that any prejudice that existed has been rectified through the relief previously granted to the Member. The allegations referred to this Panel of the Discipline Committee do not include the Member’s entire practice, rather these allegations relate specifically to the complaint and the Member’s involvement with SD. For these reasons, this ground to stay the proceedings has not been established.

[49] In its August 7, 2017 decision, while the Discipline Committee may have gone a bit too far in suggesting that the whole course of dealings with Mr. Volochay was procedurally fair, it is evident from the December 14, 2015 ruling that the Discipline Committee was aware of the Court of Appeal's earlier finding and that it was satisfied that any procedural unfairness had been cured.

[50] I agree. The College cured any procedural unfairness identified by the Court of Appeal, and this ground of appeal is therefore rejected.

Issue 2 - Whether there was an abuse of process due to delay

[51] At the hearing before us, Mr. Volochay argued that the disciplinary proceedings were an abuse of process because of the delays between the release of the Court of Appeal decision and the referral of the matter to the Disciplinary Committee.

[52] Undue delay can form the basis for a finding of procedural unfairness or abuse of process in administrative proceedings, however the law is clear that the affected party must establish significant prejudice. In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, the Supreme Court emphasized the need for evidence of real and significant prejudice to the hearing fairness or significant psychological or reputational harm:

102 There is no doubt that the principles of natural justice and the duty of fairness are part of every administrative proceeding. Where delay impairs a party’s ability to answer the complaint against him or her, because, for example, memories have faded, essential witnesses have died or are unavailable, or evidence has been lost, then administrative delay may be invoked to impugn the validity of the administrative proceedings and provide a remedy (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 9-67; W. Wade and C. Forsyth, Administrative Law (7th ed. 1994), at pp. 435-36). It is thus accepted that the principles of natural justice and the duty of fairness include the right to a fair hearing and that undue delay in the processing of an administrative proceeding that impairs the fairness of the hearing can be remedied (see, for example, J. M. Evans, H. N. Janisch and D. J. Mullan, Administrative Law: Cases, Text, and Materials (4th ed. 1995), at p. 256; Wade and Forsyth, supra, at pp. 435-36; Nisbett, supra, at p. 756; Canadian Airlines, supra; Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (1995), 1995 7431 (ON SC), 24 C.H.R.R. D/464 (Ont. Div. Ct.); Freedman v. College of Physicians & Surgeons (New Brunswick) (1996), 1996 4828 (NB QB), 41 Admin. L.R. (2d) 196 (N.B.Q.B.)).

115 I would be prepared to recognize that unacceptable delay may amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where inordinate delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the human rights system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process. The doctrine of abuse of process is not limited to acts giving rise to an unfair hearing; there may be cases of abuse of process for other than evidentiary reasons brought about by delay. It must however be emphasized that few lengthy delays will meet this threshold. I caution that in cases where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to amount to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the human rights system into disrepute…

[53] In this case, there is no evidence of prejudice. Mr. Volochay complains that there was a 30 month delay between the Court of Appeal decision and the issuance of the Notice of Hearing by the Discipline Committee. He did not raise this issue before the Discipline Committee, and therefore neither he nor the College provided any evidence at the hearing about the cause of the delay or the impact of the delay. In addition, he did not bring a motion to put forward any fresh evidence of prejudice for the purpose of the appeal.

[54] I note that any argument of inherent prejudice advanced my Mr. Volochay’s lawyer before us is greatly diminished given that Mr. Volochay was able to continue practicing as a massage therapist throughout the investigation and until the Discipline Committee issued its decision.

[55] Accordingly, I find that any delay in the investigation did not amount to procedural unfairness or an abuse of process.

Issue 3 - Whether the Discipline Committee's assessment of the evidence was unreasonable

[56] Mr. Volochay argues that the Discipline Committee’s assessment of his witnesses’ evidence was unreasonable. In particular, he argues that:

a. The Discipline Committee found that the evidence of N.R. and Y.B. was not credible without conducting a proper review of their evidence;

b. The Discipline Committee did not assess or take into account B.B.’s evidence at all;

c. The Discipline Committee decided that Mr. Volochay’s evidence was not credible without providing any explanation for this conclusion; and

d. The Disciplinary Committee failed to address the frailties in S.D.’s evidence.

[57] As reviewed above, the standard of review on this issue is reasonableness. In Gale, at paras. 8-9, this Court emphasized a number of principles that apply to the Court’s role in reviewing a tribunal’s credibility assessment:

8 The guiding principles in this fact-driven appeal are well established by this Court and by the Supreme Court of Canada. They may be summarized as follows:

(iv)The task of the reviewing court is not to posit alternative interpretations of the evidence, or engage in a reassessment of the evidence. The powers of the appeal court do not amount to a general warrant to retry the case decided by the tribunal. Rather, the task of the reviewing court is to determine whether the Committee's decision is reasonable and that it had "some basis in the evidence." The reviewing court's review of the evidence is "beside the point." (College of Physicians and Surgeons of British Columbia v. Dr. Q., [2003] S.C.C. 19 (), at para. 41; R. v. C.(T.), 2005 371 (ON CA), [2005] O.J. No. 24 (C.A.) at para. 45)

(v)Heightened deference is owed to tribunals' assessments of credibility. (College of Physicians and Surgeons of British Columbia v. Dr. Q., supra at para. 38; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, supra at para. 72; Muhammad v. College of Physicians and Surgeons of Ontario, [2014] O.J. No. 3154 (Div. Ct.) at paras. 4, 6-8)

(vi)An appellate court should not interfere with a trial judge's assessment of a complainant's evidence simply because it would have arrived at a different result. (Dissenting reasons of Laskin J.A. in R. v. Sanichar, 2012 ONCA 117, 2012 CarswellOnt 1914 (C.A.) at para. 72 (aff'd in R. v. Sanichar, 2013 SCC 4, [2013] S.C.J. No. 4)

(vii)Where credibility and reliability are an issue, and the trial judge demonstrates she is alive to inconsistencies but accepts the evidence of the witness nonetheless, in the absence of a palpable and overriding error, there is no basis for interference. That is,

Where the trial judge refers to the inconsistencies and deals expressly with a number of them, it must be assumed that she took them into account in assessing the balance of probabilities.

(F.H. v. McDougall, supra at para. 70)

9 The Supreme Court of Canada cautions that assessing credibility is a difficult and delicate matter and does not always lend itself to precise and complete verbalization. The reviewing court must be cognizant of the deference owed to finders of fact with respect to the assessment of credibility. As noted by the Court in F.H. v. McDougall:

With respect, I cannot interpret the reasons of the majority of the Court of Appeal other than that it disagreed with the trial judge's credibility assessment of F.H. in light of the inconsistencies in his evidence and the lack of support from the surrounding circumstances. Assessing credibility is clearly in the bailiwick of the trial judge and thus heightened deference must be accorded to the trial judge on matters of credibility.

[58] In this case, as explained below, I am satisfied that the Discipline Committee’s reasons for accepting S.D.’s evidence and rejecting the evidence of Mr. Volochay and his witnesses are sufficiently complete, transparent and intelligible.

Evidence of N.R. and Y.B.

[59] N.R. and Y.B. both provided evidence that they were with Mr. Volochay at the time S.D. claimed she was in Montreal with him.

[60] With respect to Y.B., the College summarized his evidence that he had spent the evening of January 27, 2006, with Mr. Volochay and his wife to celebrate his daughter and mother-in-law’s Name Day. In conducting its credibility assessment, the Discipline Committee provided the following rationale for finding that his evidence was not credible:

YB also gave evidence in this matter. He testified that from 6-9 pm on January 27, 2006 his family and the Registrant’s were together to celebrate Name Day in Ottawa. The Panel noted that although YB would have the opportunity to observe the events that he was giving evidence about, he was a close personal friend of the Registrant. The Panel finds that as such, he would have an inherent bias in the proceedings before us. He was evasive under cross-examination when asked about the specific reasons why his mother-in-law and daughter, the two people whose Name Day they were celebrating, were not present. The Panel unanimously rejected YB’s evidence in its entirety because it seemed improbable, there were too many inconsistencies, and in general he was less clear and forthright in the delivery of his evidence…

[61] In this analysis of the Y.B.’s credibility, the Discipline Committee had regard to a number of factors, most notably the improbability of his evidence that he and Mr. Volochay were celebrating the Name Day for his daughter and mother-in-law in their absence. In isolation, relying solely on Y.B.’s demeanour or his friendship with Mr. Volochay may have been insufficient, but I am satisfied that the Discipline Committee’s rejection of Y.B.’s evidence is intelligible and sufficiently supported.

[62] With respect to N.R.’s evidence, her evidence was that she and her family were with Mr. Volochay and his family on the morning of January 28, 2006, while S.D. claimed that she and Mr. Volochay were in Montreal. The Discipline Committee rejected N.R.’s evidence on the following basis:

… NR was hostile at times during her testimony and especially while under cross-examination. She changed her testimony concerning whether or not the Registrant had spoken to her about her evidence in advance of the hearing. She also changed her evidence about the weather that day, finally admitting under cross-examination that she didn’t have a clear recollection. She had an impeccably clear memory of the events of January 28, 2006 but then was inconsistent on cross-examination. Generally, the Panel found her to be inconsistent and not forthright in giving her evidence. When the Panel applied common sense to her testimony, we found it to be incredible and not plausible. For these reasons, the Panel dismissed her evidence in its entirety as being not plausible. The Panel instead accepted SD’s version of events, that she and the Registrant had been together during the dates in question and that sexual abuse had occurred.

[63] The Discipline Committee provided an explanation for rejecting N.R.’s evidence, including the identification of some inconsistencies during cross-examination. I am again satisfied that the Committee’s explanation is sufficiently intelligible and supported by the record.

[64] Implicit in the Discipline Committee’s rejection of N.R. and Y.B.’s evidence is Committee’s assessment of S.D.’s credibility and its acceptance of her evidence that she was with Mr. Volochay on the relevant dates. In its decision, the Discipline Committee found that S.D. was generally credible, stating that her evidence was “grounded in logic”, that it was “likely accurate, given the circumstances and surrounding events and that she was able to provide supporting documents to corroborate her statements”, that her “evidence was also clear and consistent”, and that “she never wavered on material evidence, even under a lengthy cross-examination”. The Discipline Committee also made findings based on a ticket stub and an email exchange provided by S.D. that corroborated her evidence about the trip to Montreal.

[65] As reviewed above, this Court owes significant deference to the Discipline Committee’s assessments of credibility. In my view, the Committee gave a sufficient explanation for rejecting Y.B. and N.R.’s evidence.

Evidence of B.B.

[66] During the course of the hearing before the Discipline Committee, B.B. gave evidence that he was with S.D. in Kiev at the time she claims she was there with Mr. Volochay. Mr. Volochay relied on B.B.’s evidence to support his contention that he was never in Kiev at the time, but rather was attending a conference in Lviv.

[67] Mr. Volochay argues that the Discipline Committee disregarded B.B.’s evidence, without conducting any assessment of his credibility.

[68] In its decision, the Discipline Committee described B.B.’s evidence that he had been with S.D. in Kiev at the relevant time, but the Committee did not explicitly explain why it rejected his evidence in favour of S.D.’s evidence.

[69] However, in its analysis of the trip to Kiev, the Committee did explain why it accepted S.D.’s evidence that she and Mr. Volochay had met in Kiev. In doing so, the Committee had regard to its assessment of S.D.’s credibility, notes in S.D.’s journal, a hotel receipt and an email exchange with Mr. Volochay. Accordingly, while the Committee did not explicitly deal with B.B.’s evidence, the decision does provide an explanation for the acceptance of S.D.’s evidence that she met Mr. Volochay in Kiev, which implicitly rejects B.B.’s evidence.

[70] I adopt the reasoning in Ontario (College of Physicians and Surgeons of Ontario) v. Lee, 2019 ONSC 4294, at paras. 74-75, where this Court was faced with an argument that a tribunal failed to explain its reasons for rejecting a witness’s evidence:

74 In this case, the pathway to the Committee's conclusions was complete, transparent and intelligible. The findings as to credibility and reliability of Patient A and Patient C were not conclusory or generic. A finding that one party is credible may be conclusive where the other party's evidence is irreconcilable with the evidence of the party found to be credible. [footnote omitted] The Committee took into account the denials of the Appellant, not in isolation, but in contrast to the strength and cogency of the evidence of Patient A and Patient C.

75 In a perfect world, the Committee might have specifically found that the Appellant's evidence was neither credible nor reliable. Committees such as this one do not exist in a perfect world. As the Supreme Court held in Canada Post Corp. v. Public Service Alliance of Canada,18 "perfection is not the standard". The basis upon which the Committee rejected the evidence of the Appellant is apparent.

[71] Similarly, in this case, in an ideal world, the Tribunal would have explained why it rejected B.B.’s evidence. But the decision as a whole provides an explanation for the Committee’s acceptance of S.D.’s evidence over Mr. Volochay’s evidence.

Mr. Volochay’s evidence

[72] Mr. Volochay argues that the Discipline Committee’s finding that he was not a credible witness was conclusory and was not based on a proper analysis of his evidence. In making this argument, he points to the following paragraph in the decision:

With respect to the credibility of the Registrant, the Panel found that he also had the opportunity to observe the events in question, as he was one of the two primary parties involved. However, when the Panel viewed the Registrant’s evidence using a lens of common sense, we found that it did not accord with common experience. There were too many inconsistencies in the Registrant’s evidence, too many coincidences, and too many times where the Panel found the Registrant’s evidence to be improbable given the circumstances and nature of the surrounding events. In this particular case, the Panel took guidance from the Divisional Court’s ruling in Heath v. College of Physicians and Surgeons of Ontario, 1997, where the Court held that the demeanor of the witnesses may not be solely relied upon. The Panel noted that the Registrant was not as forthright in giving his evidence and often seemed evasive, however we did not solely rely on this demeanor when assessing his credibility; we also examined other key criteria as noted above.

[73] Contrary to appellant’s assertion that the Committee reached this conclusion on his credibility without supporting the findings of inconsistency and implausibility, there were several findings throughout the decision that supported this conclusion. For example, the Committee stated that Mr. Volochay relied heavily on a written chronology he prepared in 2013, finding that he did not have an independent contemporaneous recollection of the events at issue. As another example, Mr. Volochay argued that some of the emails on which the Committee relied were fabricated, but the Committee found that he offered no evidence in support of this contention. There are a number of other examples throughout the decision.

[74] As held by the Supreme Court of Canada in FH v. McDougall, 2008 SCC 53, at para. 100, “[w]here findings of credibility must be made, it must be recognized that it may be very difficult for the trial judge to put into words the process by which the decision is arrived at … But that does not make the reasons inadequate.” In this case, in my view, the Disciplinary Committee sufficiently explained and supported its reasons for rejecting Mr. Volochay’s evidence as not credible.

S.D.’s evidence

[75] Finally, Mr. Volochay complains that the Discipline Committee did not have sufficient regard to the frailties in S.D.’s evidence.

[76] As reviewed above, the Discipline Committee did provide an explanation for finding S.D.’s evidence credible. The Committee did not just have regard to her demeanour, but also supported its findings by reference to corroborating evidence, including emails from Mr. Volochay.

Conclusion on reasonableness of decision

[77] As identified by the Disciplinary Committee, this case turned entirely on an assessment of the witnesses’ credibility. S.D.’s account of what occurred was in direct conflict with Mr. Volochay’s account.

[78] As reviewed above, this Court owes significant deference to the Disciplinary Committee’s assessment of evidence and the credibility of witnesses. In my view, the Discipline Committee’s findings are justified based on the evidence, and the reasons are intelligible and transparent. The decision falls within a range of reasonable outcomes and is therefore reasonable.

Costs

[79] Given that the College was successful in responding to the appeal, it is entitled to its costs.

[80] The College seeks $21,475.46 on a partial indemnity basis. In our view, this amount is fair and reasonable, especially given that the bill of costs of the appellant's counsel is significantly higher.

[81] Accordingly, the College is entitled to its costs in the amount of $21,475.46.

Conclusion

[82] For the reasons above, the appeal is dismissed with costs to the College in the amount of $21,475.46.

FAVREAU J.

I agree _______________________________

ASTON J.

I agree _______________________________

BALE J.

RELEASED: October 2, 2019

CITATION: Volochay v. College of Massage Therapist, 2019 ONSC 5718

DIVISIONAL COURT FILE NO.: 18-2434

DATE: 20191002

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Aston, Bale and Favreau JJ.

B E T W E E N :

OLEG VOLOCHAY

Appellant

– and –

COLLEGE OF MASSAGE THERAPISTS

Respondent

REASONS FOR JUDGMENT

FAVREAU J.

RELEASED: October 2, 2019