CITATION: Schwarz v. The College of Physicians and Surgeons of Ontario, 2021 ONSC 3313

DIVISIONAL COURT FILE NO.: 735/19

DATE: 2021/05/05

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Molloy, Sachs and Bloom JJ.

BETWEEN:

Dr. Peter Schwarz

Appellant

– and –

The College of Physicians and Surgeons of Ontario

Respondent

Graham Ragan and Darren Blimkie, for Dr. Schwarz

Morgana Kellythorne, for the Respondent

HEARD by videoconference: March 16, 2021

Publication Ban Notification

In the College of Physicians and Surgeons of Ontario and Dr. Peter Schwarz, this is notice that the Discipline Committee ordered that no person shall publish or broadcast the names or any information that could disclose the identity of witnesses or others referred to during the hearing, whose names have been identified to the parties, referred to orally or in the exhibits filed at the hearing under subsection 45(3) of the Health Professions Procedural Code (the "Code"), which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended. The Committee also made an order under subsection 47(1) of the Code that no person shall publish or broadcast the name or any information that could identify Patient A, Nurse A, Nurse B, or Nurse C.

Sachs J.

Overview

[1] The Discipline Committee (the “Committee”) of the College of Physicians and Surgeons of Ontario (the “College”) found that Dr. Schwarz sexually abused a patient (“Patient A”) and behaved towards three nurses in a way that constituted unprofessional misconduct (the “Liability Decision”). Dr. Schwarz admitted to his misconduct in relation to the three nurses, but contested Patient A’s allegations that he sexually abused her. In a separate decision, (the “Penalty Decision”) the Committee revoked Dr. Schwarz’s certificate of registration. This is an appeal from those decisions.

[2] With respect to the Liability Decision, Dr. Schwarz submits that the Committee erred in holding his evidence to a higher level of scrutiny than Patient A’s evidence. Regarding the Penalty Decision, Dr. Schwarz argues that the Committee erred by citing aggravating factors that did not exist, made findings regarding insight, governability and public protection that were unsupported by the evidence and imposed a penalty that represented an unjustified and significant departure from penalties imposed in prior, similar cases.

[3] For the reasons that follow, I would dismiss the appeal. Dr. Schwarz’s arguments respecting the Liability Decision do not meet the threshold necessary to set aside a decision on the basis of uneven scrutiny. Further, the Committee made no error in principle in its Penalty Decision, nor was the penalty imposed clearly unfit. The penalty of revocation did not fall outside the range of reasonableness for conduct of a similar nature, especially when committed by a doctor who the Committee found was not capable of being rehabilitated.

Factual Background

[4] Dr. Schwarz was subject to two misconduct allegations before the Discipline Committee. First, the College alleged that Dr. Schwarz engaged in disgraceful, dishonourable, or unprofessional conduct with respect to Nurses A, B, and C by engaging in behaviour and making remarks of a sexual nature. Second, the College alleged that Dr. Schwarz engaged in disgraceful, dishonourable, or unprofessional conduct and/or sexual abuse with respect to Patient A.

The Nurses’ Allegations

[5] Dr. Schwarz signed an Agreed Statement of Facts with respect to the allegations by the nurses. In the Nurse A incident, Dr. Schwarz pulled down the nurse’s scrub pants to view her lower back tattoo. In the Nurse B incident, Dr. Schwarz slapped the nurse on the buttocks and then on another occasion, massaged her shoulders. In the Nurse C incident, he commented that the nurse’s lower back tattoo was “sexy,” and then on another occasion, massaged her shoulders. Dr. Schwarz admitted the facts in the allegations, and thus admitted that he committed professional misconduct by engaging in an act or omission relevant to the practice of medicine that would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional.

Patient A’s Allegations

[6] Patient A had been Dr. Schwarz’s patient since 2009. Sometime in 2015, she learned that she had an HPV infection. She was concerned that the infection may also be in her mouth, so she visited her dentist on September 14, 2015 and asked him to check for HPV-related lesions in her mouth. She told her dentist that she was concerned about the presence of HPV in her mouth because she enjoyed giving oral sex. She testified that he became embarrassed when she said this and that she found his embarrassment amusing.

[7] Patient A testified that she had an appointment with Dr. Schwarz, her family physician, on October 2, 2015. At that appointment she told Dr. Schwarz about her HPV diagnosis and about her dental visit and that she found it amusing that the dentist was embarrassed when she said she enjoyed giving oral sex. According to Patient A, Dr. Schwarz said, “[I]t’s funny he was embarrassed and it’s funny that you like doing that.” As Patient A was leaving the examination room and was in the hallway, she testified that she replied, “Not anymore and you are lucky I have self-control.”

[8] Dr. Schwarz, on the other hand, testified that the discussion about the dentist and oral sex occurred on October 16, 2015 and that as Patient A was in the hallway, she said, “[Y]ou’re lucky I have self-control because I’m dreaming of giving you a blowjob.” Witness D, Dr. Schwarz’s secretary, testified that she overheard Patient A say something about “dreaming” and “blowjob.” She testified that this was on October 16 because she had been on vacation on October 2. Patient A testified that she does not use the term “blowjob” and that she uses the term “suck dick” to refer to oral sex.

[9] The parties agree that Patient A also attended at Dr. Schwarz’s office on October 16, 2015. According to Patient A, she received a phone call on October 15 asking her to come in for a follow-up appointment on October 20. Dr. Schwarz said that the appointment was intended as a follow up to a specialist report he had received about Patient A’s HPV, while Patient A believed that it was regarding her recent blood work. Patient A was concerned that something was wrong and came to the office for a walk-in appointment the following day, on October 16.

[10] Patient A testified that on October 16, Dr. Schwarz greeted her, rubbed her back and said “Don’t joke like that in the hallway. Somebody might hear you,” referring to the “oral sex” joke she had made at the previous appointment. The parties then discussed a few medical issues, including Patient A’s cholesterol and weight loss. She advised Dr. Schwarz that she needed to gain some weight back. He asked “Where?” and she responded by saying “right here” and grabbed her abdomen. Then, according to Patient A, Dr. Schwarz said the fat didn’t go there and grabbed her breasts and said it didn’t go there either. He then told her to stand up, put both of his arms around her from the front, placed his hands on her buttocks, rubbed the area, and said, “The fat didn’t go there either.” Patient A testified that she phoned her sister, Witness G, immediately after the appointment and told her that she was very upset. On the advice of her sister (a paralegal), Patient A made a video of herself recounting the events of that day, which was admitted into evidence. Dr. Schwarz denied touching Patient A inappropriately.

[11] Patient A attended another appointment with Dr. Schwarz on December 4. She testified that she confronted him about the earlier incidents and asked, “Do you like me or do you just want to fuck?” She also asked what he was doing because they were both married with kids, and he was a doctor and she only had a Grade 10 education. He responded that she “turned him on” and said, “When two people like each other, nothing like that matters.” Patient A told Dr. Schwarz that she was not interested in sexual activities and alleged that when she left, he grabbed her buttocks. She reported the incidents to a doctor at the local hospital and to the police. Dr. Schwarz denied that any of these interactions had occurred.

[12] The College began investigating Patient A’s allegations and an Interim Order was made that, pending the hearing of the allegations against him, a practice monitor had to be present in the examining room when Dr. Schwarz was seeing a female patient. Dr. Schwarz administered a tuberculosis skin test to one of the monitors (who was female) and did so without another monitor present. Witness D, the secretary, asked the other monitor to sign off on the chart to indicate that she was present, even though she was not. The other monitor signed the chart.

[13] While monitoring Dr. Schwarz’s compliance with the practice monitor term, a College investigator noticed that practice monitor initials were missing on the charts of two patients. The investigator stepped out of the office and told Dr. Schwartz and the practice monitor not to do anything with the charts while he was gone. Contrary to these instructions, the practice monitor initialled the charts in question. Dr. Schwarz was present while she did so and did not take any steps to prevent her actions.

The Liability Decision

[14] The Committee found that Dr. Schwarz engaged in disgraceful, dishonourable, or unprofessional conduct in relation to the three nurses, given his admission of the events in the Agreed Statement of Facts.

[15] Whether Dr. Schwarz sexually abused Patient A turned on the Committee’s evaluation of the witnesses’ credibility. The Committee found that Patient A and Witness G (Patient A’s sister) were credible witnesses and that Dr. Schwarz and Witness D (the secretary) were not. Thus, the Committee accepted Patient A’s version of events and concluded that Dr. Schwarz engaged in sexual abuse by touching her breasts and buttocks during the October 16 and December 4 visits. Further, Dr. Schwarz’s comments, such as those indicating that he was turned on by Patient A, were inappropriate and constituted sexual abuse. Accordingly, the Committee found that Dr. Schwarz 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.

The Penalty Decision

[16] The Committee revoked Dr. Schwarz’s certificate of registration. It determined that revocation was appropriate taking into account the aggravating factors, including that: he took advantage of a vulnerable patient; his abuse was planned and deliberate; and he attempted to shift the blame and discredit the patient by suggesting that her cannabis use was troubling and that she suffered from mania and depression. The Committee also considered the incidents with the nurses as an aggravating factor, finding that they indicated repeated violations of personal boundaries in a sexual manner over a long period of time.

[17] The Committee found that Dr. Schwarz lacked the potential for rehabilitation and that he was ungovernable. First, Dr. Schwarz’s history did not indicate that remedial programs generated lasting change in behaviour, given that he completed an ethics course in 2001 at the request of his Chief of Staff and a workshop on boundaries issues in 2008 in response to sexually inappropriate behaviour toward two hospital colleagues. Further, the Committee was concerned about Dr. Schwarz’s failure to comply with the practice monitor regime when he treated one of the female monitors without another monitor present, and then allowed the records to be altered by the other practice monitor.

[18] Finally, the Committee considered past cases and determined that revocation, while on the high end of penalties imposed in similar cases, was within the range of prior penalties imposed in cases like this. The Committee also found that even if revocation was a marked departure from the range of penalties imposed in prior cases, the facts of this case, changing societal values and the need for greater denunciation justified such a departure.

Issues

[19] This appeal raises the following issues:

i. Did the Committee err in its assessment of credibility and thus err in finding Dr. Schwarz committed sexual abuse of a patient?

ii. Did the Committee err in ordering the penalty of revocation?

Jurisdiction

[20] Section 70(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, provides that a party to a proceeding before a panel of the Discipline Committee has a statutory right of appeal to the Divisional Court.

Standard of Review

[21] The parties agree that as a statutory appeal, this matter is to be decided on the appellate standards of review, i.e. correctness on questions of law, and palpable and overriding error on questions of fact and on findings of mixed fact and law (absent an extricable question of law): Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37.

[22] The parties also agree that a penalty imposed by a regulatory tribunal cannot be overturned unless the tribunal has made an error in principle or the penalty is “clearly unfit.” A “clearly unfit” penalty falls outside the range of reasonableness. A reasonable penalty will be guided by proportionality and an assessment of the range of appropriate penalties according to the facts of the case and the penalties imposed in other cases: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at paras. 56 and 57.

The Liability Decision – Did the Committee Err in its Assessment of Credibility?

[23] The first issue concerns whether the Committee erred in its assessment of credibility. Specifically, Dr. Schwarz argues that the Committee over-scrutinized his and his secretary’s evidence, and under-scrutinized that of Patient A and her sister. To put this argument in some context, I will first review the Committee’s decision and its assessment of the different witness’ credibility.

The Committee’s Decision on Credibility

[24] To assist in understanding the Committee’s assessment of Patient A’s evidence, I will highlight some of the significant aspects of the dispute between the parties as to what occurred at the appointments in issue.

[25] One of the key differences between the evidence of Patient A and Dr. Schwarz was what day Patient A told Dr. Schwarz about her visit with her dentist. Both agree that the conversation about the dentist happened on the same day as the hallway exchange. According to Dr. Schwarz, the dentist conversation occurred on October 16 and preceded Patient A’s comment to him in the hallway that she was dreaming of giving him a blow job. His secretary, Witness D, was present on that day and she testified that she heard Patient A saying the words “dreaming” and “blow job.” Patient A stated that she told Dr. Schwarz about the dentist appointment on October 2, a day when Witness D was not present, and that her hallway comment said nothing about “blow job,” which is a term she would not use to describe oral sex.

[26] With respect to the appointment on October 16, both parties agree that Patient A came on October 16 when she had been given an appointment for October 20. Dr. Schwarz testified that the reason for the October 20 appointment was to follow up on the recommendations of a specialist that Patient A get an HPV vaccine. The College maintained that there was no real medical reason for the October 20 appointment, as Dr. Schwarz had received the specialist report before Patient A’s October 2 appointment, during which the parties discussed her HPV diagnosis.

[27] Patient A testified that the reason for the December 4 appointment was to get an eczema cream prescription and to confront Dr. Schwarz about his behaviour towards her on October 16. Dr. Schwarz testified that the December 4 appointment was to follow up with Patient A after a recent hospitalization.

[28] Patient A testified that the sexual misconduct between herself and Dr. Schwarz occurred on October 16, 2015 and December 4, 2015. Dr. Schwarz denied any such misconduct. To support his evidence about what occurred or didn’t occur at the appointments in question, he relied on his medical records and the testimony of Witness D. To support her version, Patient A offered post offence demeanour evidence in the form of her sister’s testimony and a video.

Committee’s Assessment of Patient A’s Evidence

[29] In its Liability Decision, the Committee found that it believed Patient A that she told Dr. Schwarz about her visit to the dentist on October 2. It did so because “[t]he clearly documented visit to her dentist on September 14, 2015 would logically have resulted in her recounting that encounter to her physician on the next possible occasion, namely October 2, 2015”: Liability Decision, at p. 17.

[30] The Committee also found that Patient A’s evidence about making a joke to Dr. Schwarz about having self control was consistent with her relationship with Dr. Schwarz. Both parties described this relationship as a familiar one where they discussed many personal topics, including Dr. Schwarz’s family.

[31] The Committee found that Patient A’s description of the events of October 16 was consistent with Witness G’s evidence and the video evidence, both of which confirmed that she was extremely upset on that date. As put by the Committee, “Post assault demeanour may be considered as evidence supporting a complainant’s account; in this case, the Committee noted that it was consistent with Patient A’s evidence, although it was not determinative. R. v. Chatta, 1997 CarswellOnt 361, at para. 3-4”: Liability Decision, at p. 18.

[32] The Committee found that Patient A testified about the three appointments in issue in a “consistent, logical manner and her testimony, including her chronology of events, withstood vigorous cross-examination.” According to the Committee, Patient A’s memory of what occurred on those dates was consistent with the medical records. “In short, Patient A’s evidence about the key events made sense, and was consistent with the rest of the evidentiary record”: Liability Decision, at p. 18.

[33] The Committee found that Patient A had no apparent motive to fabricate her allegations. She was not seeking civil damages and “she demonstrated no apparent animus towards Dr. Schwarz.” The Committee did not accept Dr. Schwarz’s suggestion that Patient A made up the allegations because he rejected her sexual advances. In doing so, the Committee accepted Patient A’s evidence that she was not sexually attracted to Dr. Schwarz and felt that they were incompatible because of the large differences in their education and social status: Liability Decision, at p. 18.

[34] The Committee considered two prior untruthful statements that Patient A had made and found that they did not affect her credibility with respect to the events at issue. The first untruthful statement concerned making up an excuse for not attending a volunteer activity that she was supposed to attend in the days following the assault. The Committee accepted that Patient A might not want to tell the people at that activity about the sexual assault. The second alleged untruthful statement was Patient A’s statement to Dr. Schwarz after the first incident that she would not report him to police. The Committee accepted Patient A’s evidence that Patient A decided to go to the police after the second incident of sexual assault on December 4, because at that point she became concerned that Dr. Schwarz might engage in the same behaviour with other patients.

[35] The Committee acknowledged that at certain times during her testimony, Patient A became defensive and that she appeared to lack a filter as her sister had suggested. However, it found that this did not impair her credibility. Rather, the Committee understood her defensiveness in light of the fact that she was being cross-examined about being a liar, a person whose credibility was impaired by excessive marijuana use, and someone who was mentally unstable.

[36] The Committee found that Patient A’s evidence was both credible and reliable.

Committee’s Assessment of Dr. Schwarz’s Evidence

[37] The Committee rejected Dr. Schwarz’s evidence that the conversation about the dentist and the joke in the hallway occurred on October 16, when his secretary was present. First, it reiterated that October 2 was the first time Patient A saw Dr. Schwarz after the dental appointment in question and that Dr. Schwarz’s notes about that visit included four references to HPV.

[38] Second, Dr. Schwarz testified that the day when these events occurred was a “memorable” one. Yet, in his written reply to the College on May 20, 2016, he stated that these events occurred on December 4, not October 16. Dr. Schwarz explained this inconsistency saying that he was rushed in his reply to the College. The College did not accept this explanation, given that he knew he was replying to serious allegations that could result in revocation, that the police had attended at his premises, and that he had sought legal advice before drafting the reply. Thus, the Committee found that this inconsistency impaired Dr. Schwarz’s credibility.

[39] Dr. Schwarz testified that he recalled Patient A for another appointment in October to discuss her having an HPV vaccination. Patient A testified that she thought that she was being recalled because something had come up in her blood work that had been done on October 2. Her appointment was scheduled for October 20, but she was anxious, so she went on October 16. She testified that there was no reason for the follow up appointment. Dr. Schwarz testified that the reason for the recall was to discuss the HPV vaccine. The Committee did not accept Dr. Schwarz’s explanation for why he needed a second appointment with Patient A in October. It did so because, by the time of the October 2 appointment, Dr. Schwarz already had a report from Patient A’s specialist that recommended that Patient A have the HPV vaccine. The report was in the form of a short one-page letter. Dr. Schwarz testified that he read the report before the October 2 appointment, but missed the vaccine recommendation. He only picked that information up when he received a second report from the specialist after the October 2 appointment. The Committee rejected this evidence, given that the first specialist report was short and concise.

[40] The Committee also found that Dr. Schwarz’s statements to the College investigator about Patient A undermined his credibility. Dr. Schwarz stated in his letter to the investigator that Patient A’s cannabis use was troubling and that she was sometimes in a state of mania and depression. Yet at no point in his medical records does he ever record any concern with Patient A’s marijuana use or any concern about her psychological or psychiatric state. The Committee found that Dr. Schwarz’s assertions in this regard were “self-serving attempts by Dr. Schwarz to discredit Patient A”: Liability Decision, at p. 22.

[41] The Committee found that Dr. Schwarz’s medical records undermined, rather than enhanced his credibility. Dr. Schwarz testified that lines or tick marks on those records indicated that he had performed various physical examinations (examinations that Patient A said had not been conducted). The Committee did not accept that the tick marks on the medical records indicated that an examination had been done. The Committee contrasted the tick marks with the written note about an abdominal examination in the record for the December 4 appointment. That note stated that the abdomen was soft and not tender. According to the Committee, “[G]iven this one notation, contrasted with the presence of simple lines elsewhere, Dr. Schwarz’s evidence that he had examined other areas without any other notations to support it was not credible”: Liability Decision, at p. 23.

[42] The Committee found that Dr. Schwarz’s failure to note his conversation with Patient A about oral sex in his medical records undermined his credibility. Dr. Schwarz acknowledged that he knew that this exchange constituted a potential boundary violation which should be recorded in the notes as it was the physician’s role to maintain boundaries. Dr Schwarz testified to a concern about putting negative comments about patients in medical records because of a fear that future insurance claims may be jeopardized. The Committee did not accept Dr. Schwarz’s explanation for not recording the conversation.

Committee’s Assessment of Witness D’s Evidence

[43] The Committee acknowledged that Witness D, Dr. Schwarz’s full-time office manager and secretary, “gave evidence in a straightforward manner and much of her evidence was consistent with the documentary record”: Liability Decision, at p. 23. However, it found that Witness D’s evidence about the hallway interactions between Dr. Schwarz and Patient A were not credible “due to her longstanding close relationship with Dr. Schwarz, which resulted in at least one instance when she lied to the College about matters related to Dr. Schwarz”: Liability Decision, at p. 23.

[44] The lie that the Committee was referring to concerned the incident when Dr. Schwarz gave a tuberculosis test to one practice monitor (who was female) without having another monitor in the room. Witness D admitted at the hearing that she later asked the other monitor to sign off on the chart. However, when the College compliance officer made inquiries about this, Witness D told the College that she had no idea how this had happened.

Committee’s Assessment of Witness G’s Evidence

[45] The Committee found that Witness G also gave evidence in a straightforward manner. It accepted her evidence, finding that her evidence about Patient A’s demeanour was consistent with Patient A’s demeanour on the video and that Witness G had no interest in the outcome of the proceedings. The Committee also noted her honesty about Patient A being “without a filter”: Liability Decision, at p. 17.

The Applicable Legal Principles

[46] Dr. Schwarz submits that the Committee over-scrutinized the details of his evidence and failed to resolve errors and inconsistencies in Patient A’s evidence. It is an error of law for a trier of fact to use a higher degree of scrutiny in assessing the credibility or reliability of evidence adduced by one party over that adduced by another party. Where this happens, a party is denied a fair hearing: Miller v. College of Optometrists of Ontario, 2020 ONSC 2573, at para. 30.

[47] In assessing Dr. Schwarz’s submissions about uneven scrutiny, it is important to keep in mind the following:

i. To succeed on such an argument, it is not enough to show that a different trier could have assessed credibility in a different way. Nor it is enough to demonstrate that a trier failed to say something that they could have said in assessing the respective credibility of a complainant and a defendant. Dr. Schwarz must point to something in the reasons or the record that makes it clear that the trier has actually applied different standards in assessing the evidence of both parties: R. v. Howe (2005) 2005 253 (ON CA), 192 C.C.C. (3d) 480, at para. 59 (Ont. C.A.); R. v. Radcliffe, 2017 ONCA 176, 247 C.C.C. (3d) 3, at para. 25; R. v. T.C., 2020 ONCA 469, at para. 27.

ii. Appellate courts are not entitled to reweigh and reassess evidence unless the tribunal below has committed a palpable and overriding error. Appeals on the basis of uneven scrutiny of evidence can often be disguised as attempts to engage in precisely this exercise. As put by the Court of Appeal in Radcliffe, at para. 23:

[A]ppellate courts invariably view this argument with skepticism, seeing it as little more and nothing less than a thinly-veneered invitation to re-assess the trial judge’s credibility determinations and to re-try the case on an arid, printed record.

iii. It is within the discretion of the trier of fact to determine what areas of the evidence should be included in their reasons and a trier is not obligated to deal with every frailty in a witness’ evidence: T.C., at para. 25. As long as a trier has grappled with the substance of the issues, failure to mention some aspects of the evidence does not constitute an error: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 64.

Dr. Schwarz’s Submissions on Uneven Scrutiny

[48] Dr. Schwarz alleges that the following aspects of Patient A’s evidence were under- scrutinized:

i. Denial of Physical Examinations on October 2: Patient A testified that her thyroid condition was the primary reason for her attendance on October 2, 2015 and that Dr. Schwarz ordered bloodwork to check on the status of her condition. She denied that Dr. Schwarz conducted any physical examinations on that date. She also denied that her thyroid specialist examined her head and neck. Dr. Schwarz, on the other hand, testified that the October 2, 2015 appointment was billed as Patient A’s annual checkup and, given that she was a patient with several conditions, he conducted a number of physical examinations on that date. According to Dr. Schwarz, his medical records, which were seized by the police at the same time that he learned of Patient A’s allegations (and that he therefore had no opportunity to alter), confirmed that he had conducted examinations of Patient A’s head and neck, lungs, heart, abdomen, and limbs. Given Patient A’s medical conditions, which included asthma, a thyroid condition, a family history of high blood pressure and heart attack, and a gastrointestinal condition that required her to be hospitalized every six months, it only makes sense that he would conduct these examinations at an annual checkup. Further, Patient A’s statement that her thyroid specialist never examined her head and neck was contradicted by the specialist’s report, which made it clear that he did conduct these examinations. According to Dr. Schwarz, the Committee failed to adequately scrutinize Patient A’s denial that he conducted physical examinations during her annual checkup – a denial that was both inconsistent with the contemporaneous medical records and with common sense. Dr. Schwarz also alleges that the Committee failed to address Patient A’s clearly erroneous assertion that her thyroid specialist did not examine her head or neck.

ii. Discussion of Sexual History on October 2: The October 2, 2015 medical records include a notation that Patient A’s recent HPV diagnosis was discussed and that Patient A advised that she had only been with two men in the past 20 years. Patient A agreed that her HPV diagnosis was discussed on that date, but disagreed that there was any discussion of her previous sexual history. According to Patient A, that discussion occurred during a previous appointment. Patient A’s previous appointment was in April of 2015. According to Dr. Schwarz, for Patient A’s version to be true, Dr. Schwarz would have had to remember the discussion that had occurred six months ago and decide to note it in her records six months later. Dr. Schwarz submits that this makes no sense and the Committee failed to address this weakness in Patient A’s evidence.

iii. Denial of Physical Examinations on October 16: Patient A testified that, as noted in her chart, she and Dr. Schwarz discussed her recent weight loss, improving cholesterol levels and quitting smoking on October 16. However, she denied that Dr. Schwarz listened to her lungs or heart with a stethoscope that day. According to Dr. Schwarz, his records make it clear that these examinations did occur, and the Committee failed to adequately scrutinize Patient A’s evidence that they did not.

iv. Secretary’s Absence: Dr. Schwarz’s secretary, Witness D, testified that she did not work on October 2, but did work on October 16. Patient A testified that Witness D was not working on October 16. According to Dr. Schwarz, this discrepancy in Patient A’s evidence indicated her clear inability to distinguish between the events of October 2 and October 16, and yet this discrepancy was never addressed by the Committee.

v. Denial of Physical Examination on December 4: The December 4 appointment occurred after Patient A had been hospitalized for her gastrointestinal condition. An October 24, 2015 hospital consultation report stated that abdominal, respiratory and cardiovascular examinations had been conducted to investigate Patient A’s stomach pain and vomiting. Dr Schwarz testified that on December 4, he performed abdominal, respiratory and cardiovascular examinations on Patient A and that these examinations are documented in his records. Patient A denied that her hospitalization was discussed on December 4 or that any physical examinations were conducted that day. The Committee never scrutinized this aspect of Patient A’s evidence.

vi. Failure to Scrutinize Patient A’s Proposed Timeline in Light of Other Medical Records: Both Patient A and Dr. Schwarz agree that Patient A discussed her dental visit where her dentist was embarrassed on the same day that she made her oral sex “joke” to Dr. Schwarz in the hallway. They differ as to when that joke occurred. According to Dr. Schwarz, there was no discussion regarding oral or anal HPV transmission of HPV on October 2; that occurred on October 16. The Committee accepted Patient A’s evidence that the joke occurred on October 2 since this was the first time that she saw Dr. Schwarz after the dental visit in question. According to Dr. Schwarz, in accepting this timeline, the Committee failed to take into account Dr. G.’s records (Patient A’s gynecologist), which showed that even though Dr. G. documented that Patient A was worried about oral and anal transmission on September 10, Patient A did not ask for a test to rule out anal HPV until her appointment with Dr. G. on October 8 (even though she had also seen Dr. G. on September 17 and September 24). Thus, if she did not take the first opportunity with Dr. G. to request a test to rule out anal HPV, she may not have taken the first opportunity with Dr. Schwarz to discuss oral transmission of HPV.

vii. Failure to Examine the Logical Consistency of Patient A’s Evidence About the Joke: Patient A testified that the joke in the hallway occurred on October 2 and it consisted of saying to Dr. Schwarz, “not anymore and you’re lucky I have self-control.” She also stated that she did not use the term “blow job” or any similar term in the hallway. She testified that when she saw Dr. Schwarz on October 16, he told her not to talk like that in the hallway, referring to the “self-control joke” she had told on October 2. In contrast, both Dr. Schwarz and his secretary, Witness D, testified that after Patient A used the term “blow job” in the office hallway, Dr. Schwarz admonished Patient A for speaking like that in public. According to Dr. Schwarz, the Committee failed to recognize that his version of events made much more logical sense than Patient A’s. A comment about “self-control” would not warrant an admonishment; a reference to “blow job” would.

[49] Dr. Schwarz argues that, in contrast to the Committee’s treatment of Patient A’s evidence, his evidence was over-scrutinized in the following ways:

i. Medical Records: Dr. Schwarz testified that he used an anatomical stamp to facilitate his recording of medical examinations. This stamp divides the body into six types of examinations – head/neck, respiratory, cardiovascular, abdominal, limbs and pelvic. When he conducts a physical examination, he simply puts a “tick” or “check” mark beside the appropriate area of the stamp. Dr. Schwarz’s medical records do contain a stamp and a number of tick marks, which Dr. Schwarz referred to in support of his evidence that he conducted physical examinations on the key dates (October 2 and 16, and December 4) that Patient A denied he conducted. The Committee did not accept this evidence because on December 4, beside the “tick” mark for abdominal exam, the notation “soft, non-tender” appears. Thus, the Committee found that when an examination was actually conducted, specific notations were made. It did this in spite of Dr. Schwarz’s testimony that routine examinations were documented with a “tick” mark and notes were made when a detailed examination was made. According to Dr. Schwarz, since Patient A had recently been hospitalized for abdominal pain and vomiting, he conducted a more detailed examination of her abdomen on December 4.

ii. Fabrication of Marijuana Use, Signs of Mania/Depression: The Committee found that Dr. Schwarz’s credibility was undermined because he referenced Patient A’s marijuana use as “troubling” in his response to the College about the complaints at issue without ever documenting in his notes that he was concerned about her marijuana use. According to Dr. Schwarz, this was unfair because both he and Patient A testified that they did discuss her marijuana use (she had a prescription for same), and Patient A testified that she was prescribed 15 grams of marijuana a day and that she used it every day. The Committee also found that Dr. Schwarz’s credibility was undermined because in the same response to the College, he indicated that Patient A sometimes appeared to be in a state of mania, while at other times she appeared depressed. Again, there was no reference to any psychiatric concerns about Patient A in any of his charts. Dr. Schwarz testified that he used the word “mania” to reference the fact that Patient A would come to his office and be very talkative, bubbly and giggly. It did not mean that she needed to see a psychiatrist. Dr. Schwarz also pointed to Witness G’s evidence that Patient A lacked a filter when she spoke.

iii. Unequal Treatment of Witness D and Witness G’s Evidence: The Committee found that it believed Witness G about her phone call with her sister on October 16 after her appointment with Dr. Schwarz, but that it disbelieved the evidence of Witness D about the remarks that she heard Patient A make to Dr. Schwarz on October 16. One of the reasons it disbelieved Witness D was because of her close relationship with Dr. Schwarz. Yet, it never expressed a concern about Witness G because of her close relationship with Patient A. In addition, according to Dr. Schwarz, the Committee did not properly address Witness G’s evidence about how Patient A refers to oral sex. Initially, she testified that Patient A’s preferred term was “blow job,” which would corroborate Dr. Schwarz’s and Witness D’s testimony about what she said that day and undermine Patient A’s evidence on the same subject. According to Patient A, the phrase she uses to describe oral sex is “suck dick.” It was only later that Witness G changed her evidence and stated that Patient A’s preferred terminology was “suck dick.”

Analysis

[50] A number of the concerns raised by Dr. Schwarz deal with the Committee’s treatment of his medical records and, in particular, its failure to recognize that the tick marks on those records did indicate that physical examinations were conducted. According to him, this objective evidence significantly undermined Patient A’s credibility because she testified that no such physical examinations took place.

[51] The Committee’s finding about whether the tick marks did signify that a medical examination had taken place was a finding of fact. Furthermore, it was a finding that it was entitled to make and that it justified by its reference to the notation on December 4. It is not for this court to interfere with such a finding, unless it can be described as a “palpable and overriding error.”

[52] Palpable and overriding error is a deferential standard that recognizes the expertise and competence of the original trier of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 12-13. In this case, aside from having usual expertise that comes from trying a case, the triers consisted of other people in the medical profession with expertise in the keeping of medical records.

[53] “An error is palpable if it is plainly seen and if all the evidence need not be reconsidered to identify it, and is overriding if it has affected the result.” It is not in the nature of a “needle in the haystack, but of a beam in the eye”: Hydro-Québec v. Matta, 2020 SCC 37, at para. 33. The evidence in question does not reach this threshold. Apart from anything else, it deals with an issue that is peripheral to the central issue in this case – namely whether Patient A was sexually abused by Dr. Schwarz.

[54] On this central issue, the Committee found that the medical records supported Patient A’s version of events. For example, Patient A’s testimony that the exchange regarding her dental appointment occurred on October 2 was consistent with the fact that this was the first appointment with Dr. Schwarz after her dental appointment and that, in that appointment, they discussed HPV and her HPV-related stress and anxiety. Patient A said that she attended the October 2 appointment for a blood requisition and Dr. Schwarz agreed he issued such a requisition. Patient A testified as to her confusion about why Dr. Schwarz called her back for another appointment on October 20 as she had already discussed the HPV vaccine with her specialist. The report from the specialist, which Dr. Schwarz received prior to the October 2 appointment, makes it clear that this is true. Patient A testified that one of the reasons she sought an appointment with Dr. Schwarz on December 4 was to get a prescription for eczema cream, and the record shows that she did get such a prescription on that date.

[55] Of more significance to the central issue is the Committee’s findings regarding Dr. Schwarz’s failure to record the boundary violation in his records for the visit of October 16. According to his version of events, Patient A stated that she was dreaming of giving him a blow job and she did this in a hallway where the remarks could be heard by others. The Committee found that if this occurred, it was a boundary violation and that it should have been recorded in Dr. Schwarz’s notes. It did not accept Dr. Schwarz’s explanation for why he did not record it. This finding does go to the central issue in the case.

[56] The other finding that was central to the Committee on the issue of whether the alleged interactions about oral sex occurred on October 2 or October 16 was the fact that Dr. Schwarz, after testifying that the interaction was a “memorable” one that he would never forget, told the College that the interaction occurred on December 4. This prior inconsistent statement significantly undermined his credibility on the issue of when the interaction that appears to have precipitated the abuse occurred.

[57] Dr. Schwarz maintains that the Committee’s finding that the oral sex interactions occurred on October 2 ignored the evidence of other medical records, particularly records from Dr. G., which according to him, demonstrate that Patient A did not always take the first opportunity to tell her doctors about things. Having reviewed the records at issue, Dr. Schwarz’s point on this issue is far from clear. There is no parallel to be drawn between when Patient A may have asked Dr. G. for an HPV test of her anus and when she would have told Dr. Schwarz about her visit with her dentist.

[58] Dr. Schwarz’s complaints about the Committee’s failure to deal with the dispute between Dr. Schwarz and Patient A about when she told him about her prior sexual history is an example of a dispute that was very peripheral to the issues that the Committee had to decide. A trier of fact is not obligated to deal with every alleged frailty in a witness’s evidence. The same is true of Patient A’s failure to remember whether Witness D was present on October 16.

[59] Dr. Schwarz argues that the Committee failed to fairly scrutinize Patient A’s evidence in light of her sister’s testimony that Patient A refers to oral sex as “blow job,” not “suck dick.” In this regard, it is important to note that Witness G offered an immediate clarification of her answer, stating that while “blow job” is a phrase she would use, it is not the phrase Patient A uses. Witness G also testified that she never discussed with Patient A that the terms used were an issue at the hearing. Thus, the Committee was entitled consider this aspect of Witness G’s evidence to be sufficiently minor that it was not necessary to deal with it in examining Patient A’s evidence.

[60] Dr. Schwarz alleges that the Committee unevenly scrutinized the evidence of Witness D and Witness G. It is true that the Committee, in disbelieving Witness D, commented on her close relationship with Dr. Schwarz, but never referred to the fact that Witness G was Patient A’s sister. This argument ignores the significant aspects of both witnesses’ evidence that drove the Committee’s findings on credibility. Witness D, who was close to Dr. Schwarz, had already lied once to the College to protect Dr. Schwarz. In contrast, Witness G had never lied. The focus of her testimony was Patient A’s distress when she called her on October 16 – a distress that was consistent with her demeanour in the video.

[61] During oral argument, Dr. Schwarz alleged that the Committee erred in its treatment of the video evidence. As the Committee noted, post offence demeanour may be used to support a complainant’s account in a sexual assault case: R. v. Chattha, 1997 606 (ON CA), 97 O.A.C. 316. However, it is not determinative and it is of no weight if there is another possible explanation for the complainant’s upset. In this case, Dr. Schwarz attempted to put forth another explanation for Patient A’s upset, but the Committee did not accept that explanation. Therefore, contrary to Dr. Schwarz’s submission, it was entitled to consider the post assault demeanour evidence: R. v. J.A.A., 2011 SCC 17, 202 SCC 17, [2011] 1 S.C.R. 628 at paras. 40-41.

[62] Dr. Schwarz alleges that the Committee failed to scrutinize the logical consistency of Patient A’s evidence about the hallway “joke.” According to Dr. Schwarz, Patient A agreed that Dr. Schwarz admonished her on October 16 for her hallway joke. He submits that it would not make sense for him to admonish her for talking about “self-control.” However, Patient A’s evidence was not that Dr. Schwarz was admonishing her, but that his comment “not to talk like that in the hallway” preceded the assaults on October 16 and signalled to her that he had viewed her joke on October 2 as suggesting that she would be receptive to his sexual advances.

[63] Finally, Dr. Schwarz argues the Committee unfairly scrutinized his evidence when it found that his responses to the Committee undermined his credibility. Specifically, he objected to the finding that he intended to mislead the College when, in response to the complaint, he suggested that Patient A’s marijuana use was troubling and that sometimes she appeared to be in a state of mania and other times she was depressed. Dr. Schwarz justified his use of the word “mania” by the fact that Patient A was sometimes talkative, bubbly and giggly and that she had no filter. The Committee found, as they were entitled to do, that this behaviour was not a justification for using the terms “mania” and “depression.” Mania and depression suggest a mental disorder, yet Dr. Schwarz agreed at the hearing that he had never found that Patient A had a mental disorder, nor had he ever documented any concern about her marijuana use. The Committee’s concluded that suggesting otherwise to the College demonstrated that Dr. Schwarz was prepared to mislead to serve his own ends. That conclusion was not unfair; it was an entirely reasonable based on the evidence before the Committee.

Conclusion

[64] The Committee found more inconsistencies in Dr. Schwarz’s evidence than in the evidence of Patient A. The Committee also set out a number of specific issues it had with Dr. Schwarz’s truthfulness. The fact that the Committee had more difficulty accepting Dr. Schwarz’s evidence is not an indication that it applied an uneven level of scrutiny to the evidence of one side versus the other. The Committee did an exhaustive review of the evidence and provided detailed reasons for why it did not accept the evidence presented by Dr. Schwarz and why it found the complainant to be credible. The record before us and the reasons of the Committee do not support the appellant’s submission that the Committee applied an uneven level of scrutiny. On the contrary, I find the Committee to have been fair and even-handed in its assessment of all of the evidence. The theme underlying Dr. Schwarz’s arguments on this issue is that he fundamentally disagrees with the credibility assessments made by the Committee. The fact that the Committee’s reasons did not specifically address every single issue raised by Dr. Schwarz does not mean that it applied an uneven level of scrutiny. The Committee is not required to rebut every point made. It is merely required to justify its decision, which it did. The fact that an argument could be made for a different credibility assessment is not the issue on an appeal such as this. The onus is on the appellant to show an uneven level of scrutiny resulting in an unfair hearing. Nothing of that sort took place here. The appellant’s argument is essentially an invitation to us to retry the case, something that is antithetical to an appellate court’s role. There is no merit to this ground of appeal.

The Penalty Decision – Did the Committee Err in Imposing Revocation?

[65] At the penalty phase of the hearing, the College requested revocation and Dr. Schwarz sought a 5-month suspension followed by ongoing remediation and monitoring of all his encounters with female patients. Dr. Schwarz argues that the Committee erred in imposing the penalty of revocation. To contextualize his argument, I will first review the Committee’s reasons for imposing the penalty that it did.

The Committee’s Reasons for Revoking Dr. Schwarz’s Certificate of Registration

[66] In addition to the evidence that I have already set out, the Committee had evidence at the Penalty hearing in the form of an Agreed Statement of Facts, which included the following:

1. In September 2008, the Inquiries, Complaints and Reports Committee of the College (the “ICRC”) received a report that Dr. Schwarz had engaged in sexually inappropriate behaviour towards two female colleagues at the hospital. The ICRC conducted an investigation and in 2011, issued an in-person caution to Dr. Schwarz on the issue of unprofessional conduct towards colleagues;

2. During the College investigation into the above allegations, Dr. Schwarz completed a two-day Boundary Issues Workshop in April 2009, which he told investigators he found “quite helpful”:

3. In 2001, at the request of the hospital Chief of Staff, Dr. Schwarz completed a medical ethics course.

Aggravating Factors

[67] The Committee considered the following factors to be aggravating:

i. The Nature of the Misconduct Towards Patient A: The Committee found that Dr. Schwarz took advantage of a vulnerable patient “by putting his own sexual desires above the best interests of his patient”: Penalty Decision, at p. 9. It found that the sexual abuse was planned and deliberate as there was no reason to call Patient A back for a second appointment in October and that Dr. Schwarz concocted a reason to do so because he was intrigued by her joke about oral sex. The Committee also found that Dr. Schwarz’s conduct towards Patient A on December 4 was “particularly shameful” because that was the occasion when she was trying to set things straight by confronting Dr. Schwarz.

ii. Blaming the Patient and Improper Attempts to Discredit Her: The Committee found that Dr. Schwarz tried to assert that it was Patient A who committed a boundary violation and at the penalty hearing, his counsel made a submission that, but for Patient A’s joke, the sexual assault would not have occurred. The Committee found that these attempts to blame Patient A “for his misconduct demonstrates more than a lack of insight (which is not an aggravating factor) – it demonstrates a deliberate attempt to shift blame to a vulnerable patient and reinforce damaging sexual abuse myths that some complainants are the authors of their own misfortune. There is no place in our profession for this type of victim-blaming narrative”: Penalty Decision, at p. 11. The Committee also found it an aggravating factor that Dr. Schwarz tried to mislead the College by “portraying Patient A as a person who should not be believed due to mania, depression and cannabis use”: Penalty Decision, at p. 12. Finally, the Committee found that Dr. Schwarz created misleading medical records to cover up his abuse. In particular, it found that, to cover up the fact that the exchange about oral sex and the dentist occurred on October 2, “Dr. Schwarz transcribed his handwritten notes from that date to say that the patient was worried about HPV ‘of cervix’, even though there was no reference to cervix in the handwritten notes”: Penalty Decision, at pp. 11-12.

iii. Impact on Patient A: The Committee found that the impact of the abuse on Patient A has been long lasting. She has lost her trust in the medical profession and no longer wants to seek medical care in spite of her many ongoing health issues. She is constantly afraid of encountering Dr. Schwarz in the community and she limits her activities to avoid doing so. She suffers from physical symptoms of panic and her marriage and her relationship with her children have suffered.

iv. Nature of the Misconduct Towards the Nurses: The Committee found the nature of the misconduct towards the nurses to be an aggravating factor as it involved six separate incidents of inappropriate conduct towards three different nurses over a two-year period from 2010 to 2012. As a result of the misconduct, all three nurses had to take proactive steps to avoid feeling uncomfortable in their workplace. The Committee also found that the nature of the misconduct towards the nurses was sexual.

v. Scope of the Misconduct: The Committee found it an aggravating factor that the misconduct occurred over many years and was directed at both colleagues and a patient. It was also troubled by the fact that the misconduct occurred after Dr. Schwarz took his boundary violation workshop in 2009 and completed an ethics course in 2001. He also continued to engage in sexual misconduct after being cautioned by the College in 2011.

Mitigating Factors

[68] The Committee considered the fact that Dr. Schwarz admitted the allegations involving the nurses, but found that these admissions were not “sufficient to mitigate in favour of a lesser penalty”: Penalty Decision, at p. 14.

[69] The Committee placed little weight on the letters of support from other patients of Dr. Schwarz. Many of those letters expressed concern about the lack of medical services in their community, but the Committee found that physicians in underserviced areas must be held to the same standards as all physicians in the province. The Committee also found that the evidence of good care that Dr. Schwarz had provided to many of his patients was not relevant to the issue of what penalty should be imposed for the misconduct at issue.

Lack of Potential for Rehabilitation and Concerns About Governability

[70] The Committee found that the fact that Dr. Schwarz engaged in misconduct towards colleagues in 2010 to 2012, just around the time when he received a caution from the College regarding boundary violations and just after he had taken a course on the subject, which he said he found helpful, indicated that there was little hope that Dr. Schwarz was capable of learning from his experiences and ceasing the behaviour in question. This concern was only exacerbated by the fact that he then went on in 2015 to engage in sexual misconduct with a vulnerable patient. The Committee also noted that Dr. Schwarz had also taken an ethics course in 2001.

[71] The Committee concluded that Dr. Schwarz was ungovernable. It came to this conclusion because of Dr. Schwarz’s failure to heed a prior caution, his efforts to discredit Patient A to the College, his attempt to cover up his behaviour, the fact that Dr. Schwarz allowed his records to be altered by the practice monitor after the investigator had told them both not to alter the records, and the fact that Dr. Schwarz treated a female practice monitor without having another monitor present.

[72] The Committee considered whether imposing conditions or limitations on Dr. Schwarz’s ability to practice would offer sufficient public protection. It found that it would not, given his failure to remediate his behaviour towards women after the caution and prior course. Further, the Committee was given no evidence that Dr. Schwarz could be remediated or had taken any steps towards remediation.

[73] The Committee rejected Dr. Schwarz’s suggestion that he be permitted to practice with a practice monitor for female patients for a number of reasons. These included the fact that gender-based restrictions suggest to the public that their safety is not at risk because the public trust was only violated with part of the population. This reasoning led the Legislature to prohibit such restrictions in 2017. Further, the Committee found that Dr. Schwarz could not be trusted to abide by the restriction given the violation that occurred while he was under a similar restriction pending his hearing. In addition, part of Dr. Schwarz’s misconduct occurred towards female colleagues and the proposed restriction would not provide them with protection.

Penalty Principles

[74] In coming to its decision, the Committee considered each of the relevant penalty principles and came to the following conclusions.

[75] With respect to protection of the public, the Committee decided that in view of Dr. Schwarz’s lack of insight into his misconduct and his lack of a plan for rehabilitation, the only way the public could be protected was through revoking his certificate.

[76] In dealing with general deterrence, the Committee acknowledged that as of 2017, revocation is the mandatory penalty for sexual misconduct. Since the misconduct in question took place before 2017, revocation was not mandatory. However, the principle of general deterrence supported such a penalty in Dr. Schwarz’s case as it reinforced the fact that sexual abuse will not be tolerated in the medical profession. The Committee agreed with the statement by the 2015 Task Force that led to the imposition of a mandatory penalty of revocation. At page 77 of its Report, the Task Force states “Decisions and penalties imposed by colleges that do not uphold the zero tolerance standard minimize the severity of the behaviour and its significant impact on the patient.”

[77] With respect to specific deterrence, the Committee found that in view of Dr. Schwarz’s history, there was nothing short of revocation that would deter him from engaging in such conduct in the future. The Committee also considered the principle of rehabilitation of the member and found that Dr. Schwarz could not be rehabilitated.

[78] The Committee also concluded that revocation was necessary to uphold the integrity of the profession and maintain the public’s confidence in the College’s ability to regulate the profession in the public interest. Finally, the Committee found that revocation was necessary to satisfy the principle of denunciation.

Proportionality and Prior Decisions

[79] The Committee recognized the principle of proportionality and the role that prior decisions can play in satisfying that principle because “it is a principle of fairness that cases of a similar nature should result in similar penalty orders.”: Penalty Decision, at p. 20. It reviewed all of the cases put forward by the parties and concluded as follows, at p. 24:

The Committee recognizes that revocation of Dr. Schwarz’s certificate of registration is at the higher end of the range of penalties previously ordered by the Committee for similar professional misconduct. The Committee is of the view, however, that revocation is proportionate and appropriate given the specific facts of this case, including the aggravating factors, the absence of evidence of potential for remediation, and the application of the penalty principles as set out above.

[80] The Committee went on to state that even if revocation was a departure from the range imposed in prior decisions (which it did not find), such a departure was justified by the facts of this case, changing societal values and the need for greater denunciation. The Committee referred to the decision of the Court of Appeal in Peirovy, where the Court found that the Discipline Committee of the College was in the best position to decide whether a change was needed to the range of penalties imposed for a particular type of misconduct. In this regard, the Committee found, at p. 25:

To the extent the penalty of revocation marks a departure from previous penalties, the Committee considers this to be an appropriate case to depart from the previous penalty range. First, it is required by the facts of the case, since here (as in Beairsto, supra), the Committee finds that revocation is the only penalty that will protect the public. It is also the penalty that best fulfills the well-established penalty principles as set out above; it would be inconsistent with the penalty principles to permit this physician, who engaged in the deliberate and targeted sexual abuse of a patient, and then the subsequent re-victimization of that patient through his efforts to discredit her, to remain in practice in any capacity.

Second, societal values regarding sexual assault have been changing over decades. This is best exemplified in the 2015 Task Force Report, which was released in the same year as Dr. Schwarz’s sexual abuse of Patient A. The 2015 Task Force Report speaks to the failure of previous discipline decisions to inspire public confidence and the legislative changes which have emphasized decreased societal tolerance for certain acts. Relying on the comments in the 2015 Task Force Report does not constitute retroactive application of societal values because the Report was contemporaneous with the abuse.

Finally, given the clear direction from the Court of Appeal that it is the role of the Discipline Committee to fashion penalties that will favour the goal of eradicating sexual abuse, greater denunciation is needed here than allowing Dr. Schwarz to return to practice, in light of his conduct as described in this decision and in the liability decision.

Dr. Schwarz’s Position

[81] Dr. Schwarz maintains that the Committee made the following errors in its Penalty Decision:

i. Non-Existent Aggravating Factors: The Committee relied on non-existent aggravating factors including the fact that: (a) Dr. Schwarz concocted a false medical history regarding Patient A in his reply to the College by painting her as a person who abuses marijuana and suffers from mania and depression; and (b) the misconduct with the nurses was sexual in nature when Dr. Schwarz made no such admission.

ii. Protection of the Public Not Possible with a Practice Monitor: The Committee’s conclusion that protection of the public could not be achieved with a practice monitor condition ignored the evidence that Dr. Schwarz had had a practice monitor for 24 months prior to the Liability Decision, had approximately 6000 encounters with female patients during that time, was subject to eight surprise inspections and no problem was found other than one encounter with a practice monitor. Further, the Committee’s conclusion ignored the fact that Patient A was the only patient Dr. Schwarz was found to have abused during his 25-year career.

iii. Unsupported Findings: Dr. Schwarz alleges that the Committee’s findings that he was ungovernable and that he lacked insight and had no plan for rehabilitation were unsupported by the evidence. With respect to ungovernability, Dr. Schwarz challenges the Committee’s finding that he falsely claimed that Patient A had a marijuana use disorder and showed signs of mania and depression. He also disputes the Committee’s finding that he “covered” up his conduct by putting inaccurate information in his medical records. Finally, he argues that the one minor breach of his practice monitoring condition (which the College did not prosecute him for) was far less important when it came to assessing governability than the 6000 patients he saw in compliance with the condition. He also questions the College’s finding that he was somehow responsible for the practice monitor putting her initials on a record when she had been told not to. In this regard, Dr. Schwarz alleges that he was not in a position to stop the monitor from doing what she did. With respect to the finding of lack of insight, Dr. Schwarz alleges that he showed insight when he admitted to the allegations against the nurses. He also states that his proposal for continued practice monitoring constituted a plan for rehabilitation.

iv. Revocation an Unjustified Departure From the Previous Cases: Dr. Schwarz argues that the Committee only conducted a cursory analysis of the 10 cases he submitted and that it erred in principle in dismissing some of those cases because they were decided prior to the release of the 2015 Task Force Report. He also submits that it erred in rejecting the criterion of consistency on the basis that some of the cases were out of step with current societal values. According to Dr. Schwarz, he presented three cases that were more relevant than the four cases presented by the College that the Committee relied on to support its penalty of revocation. Each of the four College cases involved a physician with a prior history of College conduct issues or a physician who had been found to have committed multiple incidents of sexual misconduct, neither of which was true for Dr. Schwarz.

Analysis

[82] As already discussed in these reasons, the College made a factual finding that Dr. Schwarz lied to the College when he told it in his written reply that Patient A abused marijuana and displayed signs of mania and depression. There was an evidentiary basis for this conclusion (the lack of any notation in the medical records regarding any of these issues) and the finding cannot be overturned by this court on an appeal of a penalty decision. With respect to the sexual nature of the allegations against the nurses, the Committee was entitled to find that pulling down a nurse’s pants to view a tattoo above her buttocks, slapping her buttocks and calling another nurse’s tattoo (which was also located above her buttocks) “sexy,” was conduct that was sexual in nature. The fact that Dr. Schwarz did not admit to the sexual nature of the allegations does not mean that the Committee cannot take its own look at the uncontested facts and come to its own conclusions about what those facts reveal. Thus, there is no basis for the argument that the Committee relied on non-existent aggravating factors in coming to its conclusion regarding penalty.

[83] With respect to the argument that the Committee erred in failing to accept that a practice monitor condition would protect the public because Dr. Schwarz had abided by such a condition for two years with only one problem, the Committee was entitled to find that this breach did cause them concern. However, more importantly, Dr. Schwarz’s submission on this point ignores the fact that the Committee agreed with a statement in the 2015 Task Force Report that gender-based restrictions are not an appropriate means of protecting the public when it comes to sexual abuse cases. Agreeing with this statement was not an error in principle. In this regard, as discussed further below, I do not accept Dr. Schwarz’s argument that the Committee was not entitled to take into account changing societal values in its Penalty Decision.

[84] Dr. Schwarz’s submission with respect to the Committee’s conclusion regarding ungovernability again challenges the Committee’s findings of fact with respect to various issues (the Committee’s finding with respect to Dr. Schwarz’s attempt to paint Patient A as unreliable and the Committee’s rejection of Dr. Schwarz’s evidence that the ticks in his records represented physical examinations that he actually conducted). As has already been discussed in these reasons, these findings of fact are entitled to deference. With respect to lack of insight, the Committee acknowledged that Dr. Schwarz had admitted to the behaviour against the nurses, but gave this factor little weight (as it was entitled to do). Of more concern to the Committee on the question of insight was Dr. Schwarz’s engaging in the behaviour he did after he had been formally cautioned by the College about such behaviour and had taken a course designed to ensure that this type of behaviour did not occur again. Given this pattern, the Committee found that there was little hope that Dr. Schwarz was capable of learning from his mistakes. Certainly, Dr. Schwarz led no evidence to suggest that something had changed since the last time he was given a chance to remediate his behaviour. Suggesting the implementation of a practice monitor is not a plan for rehabilitation. It is a measure (which the Committee found unacceptable in this case) that is put in place when the College is not satisfied that the doctor in question has been rehabilitated.

[85] I reject Dr. Schwarz’s submission that revocation was a marked departure from the range of penalties in the case law. As the College’s cases demonstrated, revocation is within the range of penalties that can be imposed for sexual misconduct by a doctor. In this case, while Dr. Schwarz’s misconduct may not have been as serious as some, it did persist over a number of years (2010 to 2012 and again in 2015); it did involve multiple occasions with 4 different people, one of whom was a vulnerable patient; and, most importantly, there was evidence to support the finding that Dr. Schwarz was not capable of being rehabilitated.

[86] Furthermore, as the Committee found, the decision of the Ontario Court of Appeal in Peirovy does allow a College tribunal to take into account changing societal norms to justify a penalty that may be a departure from the range of penalties imposed in the past. In Peirovy, the Court was clear that it was not up to the Court to “change the penalty range for an entire category of behaviour.” This was “not to suggest that penalty ranges cannot change”, but that “[t]he Discipline Committee was in the best position to assess whether a deviation from the range of penalties previously imposed for similar misconduct or a wholesale change was required”: Peirovy, at para. 83. The evidence of the change in societal norms that the Committee used was a task force report on sexual abuse in the medical profession that was released in the same year that Dr. Schwarz’s sexual misconduct towards Patient A occurred (2015). Thus, the norms were in place at the time that Dr. Schwarz committed the most serious offences that led to the revocation of his certificate.

[87] For these reasons, I find that there is no basis to interfere with the penalty imposed by the Committee.

Conclusion

[88] The appeal is dismissed. As agreed by the parties, Dr. Schwarz is to pay the College its costs of the appeal, fixed in the amount of $9000.00.

Sachs J.

I agree _______________________________

Molloy J.

I agree _______________________________

Bloom J.

Released: May 5, 2021