CITATION: Schoelly v. College of Massage Therapists of Ontario, 2020 ONSC 1348
DIVISIONAL COURT FILE NO.: 112/19
DATE: 20200302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lococo and Penny JJ
BETWEEN:
Jose Alberto Tena Schoelly
Appellant
– and –
College of Massage Therapists of Ontario
Respondent
COUNSEL:
Richard Parker for Appellant
Erica Richler and Anastasia-Maria Hountalas for Respondent
HEARD at Toronto: February 13, 2020
Reasons for Judgment
Backhouse J.
[1] Mr. Schoelly appeals a decision of a panel of the Discipline Committee of the College of Massage Therapists of Ontario, which found him guilty of sexual abuse of a client and revoked his certificate of registration as a massage therapist.
Court’s Jurisdiction
[2] Under Section 70 of the Health Professions Procedural Code[^1] (HPPC), an appeal lies to the Divisional Court on a question of law or fact or both, and the Court has all the powers of the panel that dealt with the matter.
Background
[3] The Panel found that the appellant, who was a registered massage therapist until his licence was revoked, sexually abused the complainant by touching her genitals during a massage. The Panel also found that the appellant committed professional misconduct by exposing the complainant’s breast during a twisting stretch.
[4] The complainant testified at the hearing. Her husband and her friend both testified for the limited purpose of rebutting the defence’s allegation of recent fabrication. The appellant testified in his own defence. He denied that the conduct complained of had occurred. In its decision, the Panel reviewed the testimony in detail and found the complainant to be credible.
[5] After a penalty hearing, the Panel ordered that the appellant’s licence be revoked and that he pay costs to the College, both for treatment for the complainant and for the College’s legal fees.
Issues Raised on the Appeal
Did the Panel err in concluding that deliberate sexual touching occurred?
Did the Panel’s decision give rise to a reasonable apprehension of bias?
Did the Panel err in its decision on penalty and costs?
Positions of the Parties
Did the Panel err in concluding that deliberate sexual touching occurred?
[6] The appellant argues that he was more credible than the complainant and that the Panel should have accepted his testimony that he did not touch the complainant sexually. He also argues that the Panel failed to consider the possibility that the contact was accidental, and that the complainant said she saw no evidence of sexual gratification on the part of the appellant.
[7] The respondent submits that the appellant has not demonstrated an error in the Panel’s assessment of credibility or its finding that the touch could not have been accidental. It argues that the Panel correctly considered that evidence of sexual gratification is relevant to, but not determinative of, an allegation of sexual abuse.
Did the Panel’s decision give rise to a reasonable apprehension of bias?
[8] The appellant submits that the Panel demonstrated bias by retaining counsel to prosecute him and by believing the complainant’s testimony rather than his. He argues that the Panel was only protecting the College and was not concerned about the registered massage therapist. The appellant submits that the Panel was biased because it awarded costs to the College and therefore had a financial interest in the outcome of the hearing.
[9] The respondent’s position is that the Panel is an adjudicative panel that is required to make findings of credibility in order to discharge its functions. It argues that the College operates to protect the public and the appellant has not demonstrated bias on its part.
Did the College err in its decision on penalty and costs?
[10] The appellant argues that the penalty was disproportionate to the alleged offence, which he maintains was “transient” or “trifling” in nature, and submits that he should not be punished for denying the offence.
[11] The appellant submits that the requirement to post security of $3,000 to reimburse the College for funding provided to the complainant for counselling and $49,750.00 in legal costs was excessive.
[12] The respondent notes that the Panel specifically stated that the appellant’s decision to contest the allegations was not a factor in its penalty decision.
[13] The respondent also notes that the penalty hearing proceeded on the basis that revocation of a licence was mandatory in sexual abuse cases, which it concedes was an error. The 2017 amendments to the legislation to this effect are not retrospective, the incident having occurred in 2014. The respondent submits, however, that the error had no impact in this case. Revocation was available (although not mandatory) prior to the 2017 amendments. The Panel considered the relevant principles which apply to revocation and found that even if revocation had not been mandatory, it would not have been satisfied with any other outcome, given the seriousness of the misconduct in this case. The respondent submits that the penalty is in keeping with the College’s objective of public protection and the general principles of sentencing. The Panel found that it is never appropriate for a massage therapist to touch a client’s genitals. No penalty other than revocation was appropriate, according to the respondent.
Standard of Review
[14] Statutory appeals are to be decided on the appellate standard prescribed in Housen v. Nikolaisen, 2002 SCC 33: see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37. The standard of palpable and overriding error applies to the Panel’s finding that the touching took place as the complainant alleged. Bias is a question of law, but it falls to the party alleging bias to rebut the presumption of impartiality. A correctness standard applies to the interpretation of the relevant law, but deference is afforded to a discretionary decision to set a particular penalty: R. v. Lacasse, 2015 SCC 64 at para. 36.
Analysis
Did the Panel err in concluding that deliberate sexual touching occurred?
[15] There is no merit to the appellant’s submission that the Panel erred in concluding that deliberate sexual touching occurred. In making this submission, the appellant is asking this Court to re-weigh and reassess the evidence. The fact that there is conflicting or contradictory evidence resolved in favour of one party or another does not constitute palpable and overriding error. There was evidence to support the findings of fact made by the Panel. The Panel had the opportunity to see and hear the witnesses in person. Its findings about which evidence to accept and which to reject are not subject to challenge.
Did the Panel’s decision give rise to a reasonable apprehension of bias?
[16] The appellant has not proven that there was a reasonable apprehension of bias. No reasonable apprehension of bias can be inferred from the fact that any party to the proceedings retains counsel. Section 53.1 of the HPPC specifically contemplates that the College may recover its costs, or part of its costs, from a registrant after a finding of professional misconduct is made. This claim is rejected.
Did the Panel err in its decision on penalty and costs?
[17] The Panel gave reasons for finding that this was an appropriate case to order the appellant to post $3,000 security for funding for therapy for the complainant. The College filed evidence to support its request for costs in the amount of $49,745.00. No evidence was filed on behalf of the appellant regarding his inability to pay. There is no basis to interfere with the Panel’s exercise of its discretion in making these orders which it had the authority to make under ss. 51(2) and 53.1 of the HPPC.
[18] The Panel proceeded on the basis that it was mandatory to revoke the appellant’s certificate of registration, having found that the sexual abuse consisted of or included, touching of a sexual nature of the client’s genitals, anus, breasts or buttocks pursuant to amendments made in 2017 to the Code. It was conceded that this was an error. The Panel did not accept the appellant’s submissions on proportionality with respect to the issue of revocation “because of the mandatory nature of the penalty under the Code”. The Panel also found the letters from the appellant’s employer regarding 5000 massages he had performed with no complaints to be irrelevant, given the mandatory revocation. The Panel found that revocation serves the aims of general and specific public deterrence and protects the public by removing the appellant from practice.
[19] I cannot agree with the respondent that proceeding on the erroneous basis that revocation was mandatory had no impact in this case. The Panel gave no consideration to the seriousness of the appellant’s conduct compared to conduct for which mandatory revocation was required prior to 2017. Further, the Panel gave no consideration to whether general and specific public deterrence and protecting the public could be accomplished by a suspension. I am not persuaded that the Panel’s finding that if revocation had not been mandatory, it nevertheless would have imposed the same penalty, was not tainted by its error.
[20] It is only in the rarest and most unusual circumstances that the court will interfere with the decision of the Panel on the question of penalty. Ordinarily it would be appropriate to send the matter back to the Panel to reconsider the penalty on the basis of the law prior to the 2017 amendments. However, in this case the conduct which led to the findings occurred over five years ago. The appellant has been suspended for over two years. The costs consequences of the proceedings have been enormous. To avoid further delay and expense and bring finality to these proceedings, it is appropriate in these unusual circumstances to fix the penalty rather than send it back to the Panel.
[21] The Panel found that the appellant performed a “twisting” stretch on the complainant whereby her chest was lifted off the table exposing her breasts because of inadequate draping. The parties agreed that the stretch was not sexual in nature. The appellant testified that he was on the opposite side of the table and did not see the complainant’s breast which evidence was uncontradicted. The complainant testified that she believed the stretch was entirely therapeutic and returned to the appellant for two additional treatments.
[22] Of greater seriousness, the Panel found that the appellant intentionally touched the complainant’s genitalia during the course of a massage therapy treatment to her inner thigh.
[23] The effect on the complainant was significant.
[24] The appellant’s characterization of the conduct as “transient” or trifling” in nature cannot be sustained.
[25] While in no way intending to minimize the seriousness of the conduct, when one compares the conduct for which mandatory revocation was required prior to the 2017 amendments[^2], the nature of the appellant’s conduct is less serious. For a first-time offender with an otherwise unblemished record, a discretionary penalty of permanent revocation is too harsh and not proportional in all the circumstances.
[26] The appellant’s license as a massage therapist has been suspended since September 27, 2017. Taking away a person’s livelihood for over two years is a significant penalty as is the order that the appellant reimburse the College for funding provided to the complainant ($3,000) and pay $49,745.00 in costs. These significant penalties are sufficient to accomplish the goals of specific and general deterrence, denunciation and protection of the public and maintaining the public’s confidence in the profession’s ability to self-regulate in the public interest.
[27] I conclude that a revocation of the appellant’s Certificate of Registration is unreasonable and that it should be substituted with a suspension of the appellant’s Certificate of Registration which will end upon the date of issuance of this judgment. In all other respects the appeal is dismissed.
Costs
[28] The parties agreed that the successful party would be entitled to costs of $13,000. As success was divided, costs in the amount of $6,500 shall be paid by the College to the appellant.
Backhouse J.
I agree ___________________________
Lococo J.
I agree ___________________________
Penny J.
Date: March 2, 2020
CITATION: Schoelly v. College of Massage Therapists of Ontario, 2020 ONSC 1348
DIVISIONAL COURT FILE NO.: 112/19
DATE: 20200302
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Lococo and Penny JJ
BETWEEN:
Jose Alberto Tena Schoelly
Appellant
– and –
College of Massage Therapists of Ontario
Respondent
REASONS FOR JUDGMENT
Backhouse J.
Date of Release: March 2, 2020
[^1]: Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, S.70.
[^2]: Prior to 2017, mandatory revocation of a member’s certificate of registration was required 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.