CITATION: Cann v. Ontario College of Teachers, 2022 ONSC 6988

DIVISIONAL COURT FILE NO.: 009/22

DATE: 20221213

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Matheson, Akbarali and Nishikawa JJ.

BETWEEN:

Jonathon Ryan Cann

Appellant

– and –

Ontario College of Teachers

Respondent

Christopher Perri and Kaley Duff, for the Appellant

Eli Mogil and Adam Dobkin, for the Respondent

HEARD at Toronto (by videoconference): November 3, 2022

REASONS FOR DECISION

AKBARALI J.

Overview

[1] The appellant teacher, Jonathon Cann, appeals from the decision of a panel of the Discipline Committee of the respondent, the Ontario College of Teachers (the “Panel”), dated December 7, 2021, in which the Panel found the appellant guilty of professional misconduct including sexual abuse, having exposed his genitals to a minor, and, as a result, revoked his certificate of qualification and registration.

Brief Factual Background

[2] The minor who is the subject of the complaint was never the appellant’s student. However, it is accepted that he fell within the definition of a student for purposes of the professional misconduct allegations. He had become the appellant’s “Little Brother” (and is referred to in these reasons as “LB”) through the Big Brothers/Big Sisters of Canada Program when LB was about six years old. LB and the appellant had a good relationship, and the appellant became like family to LB. LB spent time with the appellant at his home for sleepovers, and they travelled together.

[3] When LB was nearing 13 years of age, he disclosed to his sister and mother that the appellant had begun masturbating in front of him during sleepovers in the appellant’s home when LB was about 10 or 11 years old. He said that the masturbation had continued. LB indicated that he was increasingly uncomfortable with the appellant’s behaviour.

[4] With the support of his mother, LB ended his relationship with the appellant at that time. Together, LB and his mother decided not to report the appellant because they did not want to get him in trouble with the authorities or his employer.

[5] However, an anonymous tip brought the alleged abuse to the attention of the authorities. The appellant was charged criminally. He denied the allegations.

[6] At the criminal trial, LB testified that the masturbation happened during sleepovers, while LB was watching movies or playing video games in the appellant’s basement. There was some confusion in his evidence, particularly with respect to when the alleged masturbation began, and how many times it occurred.

[7] The appellant was acquitted at his criminal trial.

[8] Subsequently, the Panel convened a discipline hearing, at which it heard from LB, who was then 16 years old, LB’s mother, and the appellant. The appellant continued to deny the masturbation allegations. Apart from his denial of the allegations, the appellant’s evidence about his relationship with LB was largely consistent with the evidence of LB and his mother.

[9] Apart from denying the allegations of masturbation, the appellant did not offer an alternate version of events to those alleged by LB. The appellant argued that LB made up the allegations because: (i) LB wanted to end his relationship with the appellant because he had begun to find the appellant to be overbearing and bossy; and (ii) LB was angry with the appellant because the appellant had indicated that he would not buy LB an expensive gift that LB wanted for his birthday.

[10] The appellant also attacked LB’s credibility by pointing to inconsistencies in LB’s evidence, and in particular: (i) inconsistencies as to when the alleged abuse began; (ii) inconsistencies about how often the alleged abuse occurred; (iii) a change in LB’s evidence between the criminal trial and the discipline hearing about whether, when he said he confronted the appellant about the masturbation, he used the word “masturbation”; and (iv) a change in LB’s description of the first alleged incident of masturbation between the criminal trial and the discipline hearing about whether he saw the appellant masturbating when LB came out of the bathroom.

[11] The Panel did not accept the appellant’s arguments that LB had fabricated the allegations. It found most of the inconsistencies to be peripheral, save for the inconsistency about whether the appellant was masturbating when LB came out of the bathroom, which it found to be a core inconsistency. Nevertheless, it accepted explanations for all the inconsistencies, including the explanation that LB’s memory about the first masturbation incident had improved over time. It found LB to be a credible witness, but it made no express finding about the appellant’s credibility. It concluded that the masturbation occurred on at least one occasion. It therefore found that the appellant’s actions constituted professional misconduct, found that the appellant had engaged in sexual abuse as defined in the legislation, and imposed the mandatory penalty of a reprimand and revocation of the appellant’s certification of qualification and registration.

Issues on Appeal

[12] The appellant appeals from the Panel’s decision, and raises five issues on appeal:

a. Did the Panel err by failing to make any findings about the appellant’s credibility?

b. Did the Panel fail to appreciate the significance of the inconsistencies in LB’s evidence, and err in concluding that the inconsistencies related to peripheral or collateral matters rather than core matters?

c. Did the Panel err by misapplying the law with respect to the credibility assessment of child witnesses?

d. Did the Panel erroneously conclude that it required expert evidence with respect to how memory works in order to conclude that memories more often fade rather than improve with time?

e. Did the Panel erroneously place too great an emphasis on LB having no motive to fabricate the allegations and, in so doing, conflate a lack of evidence regarding motive with an affirmative finding that no motive existed?

[13] For the reasons below, I would dismiss the appellant’s appeal in its entirety.

Preliminary Matter – Publication Ban

[14] In the proceedings before the College of Teachers, the Panel ordered a publication ban pursuant to subsection 32.1(3) of the Ontario College of Teachers Act, 1996, S.O. 1996, c. 12, which provides that “no person shall publish the identity of, or any information that could disclose the identity of any person who is under 18 years old and is a witness in a hearing or is the subject of evidence in a hearing.”

[15] At the hearing of the appeal, counsel for both parties indicated that they sought an order extending the publication ban granted by the Panel. However, neither party had given notice to the media of the publication ban request, as is required by section F of Part V of the Superior Court of Justice’s Consolidated Provincial Practice Direction.

[16] The court granted an order extending the publication ban ordered by the Panel. In the circumstances, given the nature of the allegations in this case and the mandatory nature of s. 32.1(3) of the Ontario College of Teachers Act, the court did not require a formal motion record for a publication ban to be brought. However, it ordered the parties to provide notice to the media pursuant to the Practice Direction to ensure the media has been notified of the publication ban should any media outlet wish to take any steps in relation thereto.

Standard of review

[17] Section 35(4) of the Ontario College of Teachers Act provides for a full right of appeal to this court on questions of fact, or law, or both. The parties agree on the appropriate standard of review. Questions of law are reviewed on a correctness standard, while questions of fact, or questions of mixed fact and law (without an extricable question of law) are reviewed for palpable and overriding error: Bradley v. Ontario College of Teachers, 2021 ONSC 2303, at para. 7.

Did the Panel err by failing to make any findings about the appellant’s credibility?

[18] The appellant argues that the Panel’s reasons fail to deal with his evidence at all or make any findings relating to his credibility. Moreover, they fail to identify the evidence that the Panel accepted to find that the appellant had masturbated in front of LB, when the Panel found it occurred, or how many times. He argues that the reasons are insufficient for appellate review, and leave him unable to discern why his evidence was rejected. For example, he argues that if both the appellant and LB were found to be credible, the Panel’s finding would have turned on the burden of proof, which lay with the respondent. The appellant would thus have been entitled to a dismissal of the discipline proceedings against him.

[19] The respondent relies on Supreme Court of Canada jurisprudence to argue that, taken in context, the Panel’s reasons adequately explain its reasoning and lead inexorably to the conclusion that the Panel rejected the appellant’s evidence. It notes that, apart from denying that the masturbation took place, the appellant did not offer a differing account of events for the Panel to grapple with, such that believing LB necessarily meant that the Panel disbelieved the appellant. The respondent also argues that the Panel’s finding of guilt did not have to be more particular than it was, especially in view of the age LB was at the time of the events in question and his understandable inability to provide greater detail in his evidence of the traumatic experience he suffered.

[20] The starting point of the analysis of the Panel’s decision is to consider the proper approach to appellate review, particularly in cases where the sufficiency of the reasons is called into question and the determination turns on a credibility assessment of two divergent accounts of what happened.

Appellate Review where Reasons are Alleged to be Insufficient

[21] Recently, in R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, the Supreme Court of Canada provided guidance on the correct approach to employ on appellate review of trial reasons. At para. 69, the Court reiterated “the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient.” It warned against finely parsing the reasons in search of an error. Rather, the appellate court must “assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review.”

[22] At para. 76, the Court went on to express frustration at the ongoing failure of appellate courts to follow the Court’s clear direction with respect to appellate review, particularly when findings of credibility are challenged:

Despite this Court’s clear guidance in the 19 years since Sheppard to review reasons functionally and contextually, we continue to encounter appellate court decisions that scrutinize the text of trial reasons in a search for error, particularly in sexual assault cases, where safe convictions after fair trials are being overturned not on the basis of legal error but on the basis of parsing imperfect or summary expression on the part of the trial judge. Frequently, it is the findings of credibility that are challenged.

[23] Although the Court’s comments were made in the context of reviews of criminal convictions by trial judges, they apply equally to the Panel’s decision in this case. The Panel’s reasons must be read functionally and contextually to determine whether they explain what the Panel decided in a way that permits appellate review.

[24] G.F. underscores the approach the Supreme Court of Canada articulated in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 to appellate review of reasons in the context of conflicting evidence regarding sexual assault. R.E.M. is also instructive in this case.

[25] In R.E.M., the Court confirmed that a trier of fact’s reasons must be judged in the context of the record, the issues, and submissions of counsel at trial. “The question is whether, viewing the reasons in their entire context, the foundations for the trial judge’s conclusions — the “why” for the verdict — are discernable”: at para. 37.

[26] The Court noted that it is difficult to articulate the basis or process for findings of credibility precisely or completely: R.E.M., at para. 49. See also F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 72, 100; G.F., at para. 81.

[27] In terms of what constitutes sufficient reasons on issues of credibility, the Court held that credibility findings must be made with regard to the other evidence in the case, which “may require at least some reference to the contradictory evidence.” However, “what is required is that the reasons show that the judge has seized the substance of the issue.” A trial judge is not required to enter into a detailed account of the conflicting evidence: R.E.M., at para. 50, citing R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788 at paras. 23, 30. An appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions: R.E.M., at para. 55.

[28] As the Court held in G.F., at para. 82, “under a functional and contextual reading of trial reasons, appellate courts should consider not whether the trial judge specifically used the words ‘credibility’ and ‘reliability’ but whether the trial judge turned their mind to the relevant factors that go to the believability of the evidence in the factual context of the case, including truthfulness and accuracy concerns.”

[29] A trier of fact “is not required to summarize specific findings on credibility by issuing a general statement as to ‘overall’ credibility. It is enough that the trial judge has demonstrated a recognition, where applicable, that the witness’s credibility was a live issue”: R.E.M., at para. 64.

Appellate Review Where There are Divergent Accounts of What Happened

[30] Case law also offers guidance on the correct approach to appellate review of trial reasons when faced with two opposing versions of events.

[31] The steps set out in R. v. W. (D.), 1991 93 (SCC), [1991] 1 S.C.R. 742 — to aid in determining reasonable doubt in the criminal law context where a jury is faced with conflicting testimonial accounts — are not an appropriate tool for evaluating conflicting evidence on the balance of probabilities in civil cases. Rather, “[i]n such cases, believing one party will mean explicitly or implicitly that the other party was not believed on the important issue in the case. That may be especially true where a plaintiff makes allegations that are altogether denied by the defendant”: McDougall, at para. 86. See also Caine v. Ontario College of Teachers, 2022 ONSC 2592 (Div. Ct.), at para. 35.

[32] In R.E.M., the Court, at para. 66, similarly described what is required with respect to credibility findings when the parties’ versions of events conflict:

Finally, the trial judge’s failure to explain why he rejected the accused’s plausible denial of the charges provides no ground for finding the reasons deficient. The trial judge’s reasons made it clear that in general, where the complainant’s evidence and the accused’s evidence conflicted, he accepted the evidence of the complainant. This explains why he rejected the accused’s denial. He gave reasons for accepting the complainant’s evidence, finding her generally truthful and ‘a very credible witness’, and concluding that her testimony on specific events was ‘not seriously challenged’. It followed of necessity that he rejected the accused’s evidence where it conflicted with evidence of the complainant that he accepted. No further explanation for rejecting the accused’s evidence was required. In this context, the convictions themselves raise a reasonable inference that the accused’s denial of the charges failed to raise a reasonable doubt.

Application of Legal Principles to the Facts of this Case

[33] Applying the legal principles set out above, I find that the Panel’s reasons adequately explain its reasoning, and lead inescapably to the conclusion that the Panel rejected the appellant’s denial of the masturbation allegations.

[34] First, I note that at the outset of its analysis, the Panel correctly noted that the respondent College bore the burden of proof in accordance with the standard of proof set out in McDougall, that is, proof on a balance of probabilities. To satisfy the balance of probabilities test, evidence must be sufficiently clear, convincing and cogent: McDougall, para. 46.

[35] In McDougall, the Court noted that, where a trier of fact expressly states the correct standard of proof, it will be presumed that the correct standard was applied unless it can be demonstrated by analysis that it was not: at para. 54. Having identified the correct standard of proof, the Panel is entitled to the presumption that it was applied, unless the contrary can be demonstrated.

[36] The crux of the appellant’s argument is that the Panel did not appropriately grapple with his evidence and make clear findings of credibility and clear findings of fact.

[37] In its reasons, the Panel identified the factors it considered in its reasoning process, indicating that it had “considered the evidence, onus and standards of proof, and the submissions of the parties”, and having done so, found that the appellant engaged in acts of professional misconduct and sexual abuse of LB.

[38] The Panel’s reasons summarized the evidence of all three witnesses. It would have been an error for it to ignore the evidence of the appellant and only concentrate on the evidence submitted by the respondent: McDougall, at para. 90. But the Panel did not ignore the appellant’s evidence in this case.

[39] As the Panel began its analysis, it set out the roadmap for its analytical process, indicating it would comment only on the most relevant evidence. It described the structure of its reasons, explaining that it would first set out its factual findings, then explain why they give rise to a finding of professional misconduct.

[40] Under the heading “Credibility Assessment and Factual Findings”, the Panel, citing Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1986 2053 (ON SC), identified the factors relevant to credibility that it considered. These included the witness’s ability to observe and recall the events, whether the witness has an interest in the outcome of the hearing that may cloud their recollection, the plausibility or reasonability of the evidence and the internal and external consistency or inconsistency of the evidence. It also noted that it was entitled to consider the context of the case, logic, common sense, and its experience in making determinations of credibility.

[41] The Panel applied the credibility markers from Pitts to LB’s evidence, finding that he tried his best to remember and accurately recount the events to which he testified. The Panel noted he had the opportunity to experience and observe the events to which he was testifying, gave clear and measured evidence, and did not embellish his evidence. The Panel concluded LB was honest if he did not remember something and was consistent on cross-examination during the discipline proceeding. It found that his evidence made sense. Moreover, as I explain in greater detail below, the Panel correctly applied the standard required for a child witness in these circumstances.

[42] The Panel also grappled with the inconsistencies in LB’s evidence. I address why the Panel’s treatment of the inconsistencies was not in error in detail in the following section of my analysis.

[43] At this juncture, I note that the Panel was alert to the appellant’s denial of the allegations and observed that “[a]side from his denial about the core allegation in this hearing, the [appellant’s] description of his relationship with [LB] was largely consistent with the testimonies of [LB and LB’s mother].” The Panel thus clearly acknowledged the conflicting versions of events, which, in this case, were limited to a denial of the allegations.

[44] The nature of the conflict between LB’s evidence and the appellant’s evidence is different than the nature of the conflict in Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, where the court was dealing with two conflicting versions of events in the context of sexual abuse allegations against a lawyer. Unlike this case — where the differing versions amount to one party alleging the abuse happened, and the other party denying it — in Neinstein, the conflicting versions were buttressed by many different, objectively verifiable, allegations of fact.

[45] For example, in Neinstein, a client alleged that she had had sex with the lawyer on a couch in his office during business hours at least four times, and did not know that he was married. However, the lawyer, and two other witnesses, testified that there was no couch in his office, people regularly went in and out of the lawyer’s office all day, and his office was full of family photographs including photographs of his wife. The record included many other examples of how the factual underpinnings of the conflicting versions differed in ways that went beyond a “he said/she said” conflict to include objectively verifiable information. Yet the panel in Neinstein did not grapple with those conflicts when it rejected the lawyer’s evidence, and as such, fell into error.

[46] In this case, the only potentially objectively verifiable factual difference in the evidence of the appellant and complainant relates to evidence about the video game, Destiny, that LB testified he was playing at the time of the first masturbation incident. LB originally reported that the first incident of masturbation occurred when he was playing the Destiny at the appellant’s house, when he was about 10 or 11 years old. Because the game had been released in 2014, he was able to identify the timing of the first incident of masturbation. However, at the criminal trial, on cross-examination, he testified that the Destiny video game was not released until 2017. Before the Panel, he testified that he had gotten different versions of the Destiny game mixed up at the criminal trial. He explained that the game released in 2017 was Destiny 2 (an expansion version) and he had been playing the original version of the Destiny game at the time the first masturbation incident occurred. He indicated he was confident that the first incident occurred in 2014.

[47] The appellant, whose evidence was consistent throughout, testified that he purchased Destiny 2 some time after it was released in September or October 2016, and subsequently purchased the earlier version of Destiny a month or two later. He argues that it was thus impossible for LB to have played either version of the game at his house prior to late 2016 or early 2017, and therefore LB’s evidence is not accurate or reliable.

[48] However, the appellant also gave evidence that LB owned the earlier version of the Destiny game and used to play it at his house. The Panel did not specifically avert to this evidence in its reasons, but accepted that LB was confused during cross-examination at the criminal trial regarding the release date of the original game (in 2014) and Destiny 2 (in 2016 or 2017). It thus found there was no material inconsistency with respect to when the first instance of masturbation occurred. To the extent it had to grapple with the different factual underpinnings of the version of events testified to by LB and the appellant in the context of its credibility determinations, it did so.

[49] The Panel also addressed the appellant’s arguments that the allegations were fabricated, and found there was no evidence that LB had an interest in the outcome of the hearing or had motivation to lie.

[50] Having found LB to be a credible witness, having addressed the concerns with the inconsistencies in LB’s evidence, and having addressed the allegations of fabrication, the Panel concluded that the respondent had successfully proven, on a balance of probabilities, the allegation that the appellant exposed his genitals to LB on at least one occasion between 2014 and 2017.

[51] The Panel did not have to explicitly reject the evidence of the appellant to find that he exposed his genitals to LB. In the factual context of this case, the reasons, taken as a whole, lead to the conclusion that in believing LB, the Panel necessarily disbelieved the appellant. While it would have been desirable for the Panel to set out its conclusions more explicitly, its imperfect expression does not amount to an error.

[52] Moreover, the Panel’s failure to clearly explain which particular incident grounded which offence must also be considered in the context of the record as a whole: R.E.M., at para. 63. In R.E.M., an accused was convicted of three offences which found support in the evidence as to a number of the incidents. The Supreme Court of Canada found that the omission to draw a precise link between each count on which the accused was found guilty and the evidence that the trial judge accepted to make the finding did not render the reasons deficient. Rather, there was a reasonable inference that the trial judge accepted some or all of the evidence that grounded the convictions. Similarly, the fact of the conviction itself gave rise to an inference that the accused’s evidence failed to raise a reasonable doubt: R.E.M., at para. 56, 63.

[53] In this case, the Panel’s failure to precisely describe the timing and circumstances of the “at least one occasion” on which the appellant exposed his genitals to LB does not render the reasons deficient. The Panel was limited in its ability to make precise findings by the nature of the evidence given by the child witness. However, the Panel made clear that it was impressed by the consistency of LB’s evidence on the core allegations: where the appellant masturbated (in the basement while sitting on a La-Z-Boy chair); the layout of the basement; what LB was doing during the masturbation (playing video games or watching movies); the description of the La-Z-Boy chair; and the timing of the disclosure to his family.

[54] In conclusion, the Panel preferred the evidence of LB to that of the appellant, and its reasons explain why it reached the conclusions it did. I would dismiss this ground of appeal.

Did the Panel fail to appreciate the significance of the inconsistencies in LB’s evidence?

[55] The appellant alleges that the Panel failed to appreciate the significance of the inconsistencies in LB’s evidence, and erred in concluding that most of them related to peripheral and/or collateral matters rather than core matters. He argues the Panel applied a “less exacting” standard to LB’s testimony and in doing so, committed a palpable and overriding error.

[56] Examining the consistency between what the witness says during examination, and what the witness has said on other occasions, is a valuable means of assessing the credibility of a witness: R. v. G.(M.) 1994 8733 (ON CA), 1994, 93 C.C.C. (3d) 347, 73 O.A.C. 356 (Ont. C.A.), at para. 27; R. v. A.M., 2014 ONCA 769, 123 O.R. (2d) 536, at para. 12.

[57] Where a trial judge demonstrates that they are alive to the inconsistencies in the evidence, but nevertheless concludes that the witness was credible, there is no basis for interference with the trier of fact’s conclusion unless palpable and overriding error can be demonstrated: McDougall, paras. 70-71; Caine, at para. 62. In this case, the Panel addressed each of the alleged inconsistencies. The question is thus whether, in so doing, it made a palpable and overriding error.

[58] As noted above, there were four areas of inconsistency between LB’s early disclosures, his testimony at the appellant’s criminal trial, and his testimony before the Panel:

a. Timeframe – Initially LB disclosed that the first incident of masturbation occurred when he was 10 or 11 years old and continued until his relationship with the appellant ended. At the criminal trial, LB indicated that the masturbation began in 2017.

b. Frequency – In examination at the criminal trial, LB testified that the appellant masturbated in front of him as many as 50 times. Before the Panel, LB gave similar evidence, indicating that the appellant masturbated in front of him every time he slept over, about four times per month. However, during cross-examination at the criminal trial, LB indicated that the sleep overs were only twice a month, and the masturbation happened every other time he slept over, or about once per month, so that in total, it could not have happened more than eight times.

c. Discussions with the appellant – At the criminal trial, LB testified that he confronted the appellant about the masturbation twice, but never used the word “masturbate.” Before the Panel, he indicated that he specifically used the word “masturbate” when confronting the appellant.

d. The first incident of masturbation – At the criminal trial, LB testified that he noticed the appellant masturbating when LB stopped playing the video game Destiny and got up to use the bathroom, but that the appellant had stopped masturbating by the time he came out of the bathroom. Before the Panel, LB testified that he was not sure whether he saw the appellant masturbating as he went into the bathroom, but when he came out of the bathroom, he saw that appellant still had his genitals out and was masturbating.

[59] The Panel concluded that the first three areas of inconsistency were peripheral, and the last went to the substance of the allegations.

[60] To some extent I have already addressed the inconsistencies in my analysis of the Panel’s reasons, above. In particular, I addressed the inconsistency about what video game release LB was playing at the time the masturbation began, and found that, to the extent the Panel had to grapple with the differing factual narratives around the version of the video game to reach its credibility conclusions, it did so.

[61] It is the confusion around the version of the video game LB was playing when he says the first incident of masturbation occurred that underlies the first two inconsistencies described above, that is, the timing and frequency of the abuse.

[62] The Panel made no error in concluding that inconsistencies as to timing, sequence of events, and frequency of events were peripheral. First, considered in light of the explanation regarding the confusion about the Destiny game release date, it is not difficult to understand why a child witness might have gotten confused when under cross-examination at the appellant’s criminal trial. The Panel accepted the explanation for the confusion in its reasons.

[63] Second, on examination, the inconsistency with respect to frequency reveals itself to be minor. LB initially indicated that there had been about 50 incidents of abuse. On cross-examination at the criminal trial, counsel used the later release date of the Destiny video game, and LB’s estimates of how often he slept over at the appellant’s house to conclude that there were eight incidents of abuse, not 50. LB denied that there were only eight incidents, but was not able to explain why the calculation was wrong.

[64] As the Panel noted, LB had been consistent on the core of the allegation: when he slept over at the appellant’s house, he would watch moves or play video games in the basement, and the appellant would masturbate in his La-Z-Boy chair.

[65] Finally, the Panel’s conclusions that these inconsistencies were peripheral was consistent with jurisprudence that has found that peripheral inconsistencies in the context of child abuse include time, location, and sequencing: R. v. W. (R.), 1992 56 (SCC), [1992] 2 S.C.R. 122 p. 134(h); R. v. Pindus, 2018 ONCA 55, at para. 37.

[66] The third alleged inconsistency arose from LB’s evidence that he confronted the appellant about his behaviour twice, during trips to Niagara Falls and Toronto. At the criminal trial, LB confirmed he never used the word “masturbate” when confronting the appellant. At the discipline hearing, LB testified that he specifically used the word “masturbate” during the confrontations. He was not able to explain the inconsistency in his evidence.

[67] The Panel concluded this inconsistency was peripheral. In my view, it made no error in doing so. LB had been consistent throughout that he confronted the appellant twice about his behaviour. Whether he used the word “masturbate” as opposed to other words is not important. On the crux of the issue — whether LB confronted the appellant, and whether the appellant understood LB — LB’s evidence was consistent.

[68] The Panel identified the fourth inconsistency as going to the core of the allegations. At the criminal trial, LB testified that, the first time the appellant masturbated in front of him, LB saw the appellant masturbating when he got up to use the bathroom. The appellant was no longer masturbating when LB returned from the bathroom. However, the fact that the appellant was no longer masturbating when he exited the bathroom caused him to doubt himself. Before the Panel, LB testified that he was initially not sure whether the appellant was masturbating when he went into the bathroom, but his suspicion was confirmed when he exited the bathroom and saw that the appellant had his genitals out and was masturbating.

[69] LB did not have an explanation for the inconsistency in his evidence. The Panel noted in its reasons that LB did not attempt to rationalize the inconsistency.

[70] While acknowledging that it is possible for a witness’s evidence to fade over time, in its reasons, the Panel accepted respondent’s counsel’s submission that it would be reasonable for LB to have remembered more about the incident in question after having thought about it over the course of several years. The Panel concluded that the additional detail about LB seeing the appellant masturbating when he came out of the bathroom was a detail that LB did not remember at the criminal trial, but was sure of at the time of the discipline hearing. It was entitled to draw this conclusion.

[71] Moreover, as the Panel noted, LB’s evidence was consistent that the appellant masturbated in front of him on this occasion and on others, and noted the core elements of the allegations had remained consistent throughout.

[72] The Panel heard the evidence and weighed it, including the inconsistencies, in making its findings. The Panel made no error of law, nor any palpable and overriding error of fact, in addressing the inconsistencies in this case. It was entitled to draw the conclusions it drew. I would dismiss this ground of appeal.

Did the Panel misapply the law regarding credibility assessments of child witnesses?

[73] The appellant argues that the Panel misapplied the law relating to the assessment of credibility of child witnesses by concluding that LB’s evidence must be analyzed in the context of his age at the time of the alleged events.

[74] The appellant relies on W.(R) at p. 134, where the Supreme Court of Canada held that the credibility of an adult testifying about events that occurred when she was a child should be assessed according to criteria applicable to her as an adult witness. However, her evidence pertaining to events that occurred in childhood, and the presence of inconsistencies, particularly regarding peripheral matters, should be considered in the context of the age she was at the time of the events in question. To similar effect is the decision of the Court of Appeal for Ontario in Pindus, at para. 37.

[75] In its reasons, the Panel directed itself to the relevant legal principles from W. (R.). It noted that LB was 10-12 years old at the time of the alleged events, and was 16 years old at the time of the hearing. It indicated that it had analyzed LB’s testimony and the inconsistencies in his testimony in that context. The Panel thus identified and adopted the correct approach to assessing LB’s testimony. I would dismiss this ground of appeal.

Did the Panel wrongly conclude it required expert evidence to conclude that memories often fade with time?

[76] In argument before the Panel, the appellant addressed the change in LB’s testimony about whether he saw the appellant masturbating when he came out of the bathroom. The appellant argued that memories do not improve with time, and suggested LB was careless with the truth. The appellant argues that, in considering his argument on this point, the Panel erred by concluding that it required expert evidence with respect to how memory works in order to accept appellant counsel’s submission that memories fade with time.

[77] In my view, that is not an accurate characterization of the Panel’s reasons.

[78] In closing submissions before the Panel, College counsel referred to the appellant’s argument and contrasted it with LB’s testimony that he was more confident about what happened at the hearing than he had been when he testified at the criminal trial. College counsel then made a comment about memory and trauma. At that point, appellant’s counsel interrupted. He said “… that was a pretty dangerous comment there about how memories work in the absence of any expert evidence on the point.” College counsel responded by noting that the Panel could use its common sense to recognize that memories can fade, and memories can get better, with time.

[79] In disagreeing with the appellant’s submission that it would be impossible for LB to gain a memory over time, the Panel noted in passing that it had heard no expert evidence about the nature of memory. It went on to say that, “[c]ertainly, it is possible for a witness’ memory to fade over time and it is similarly possible for a witness to remember a detail about an incident that he previously could not.” The Panel found it reasonable that LB remembered in 2021 that the appellant was still masturbating when LB returned from the bathroom, but that he was not sure about that detail when he testified in 2018.

[80] The Panel did not wrongly find that it required expert evidence to resolve the evidentiary issue that arose as a result of LB’s resurfaced memory. Rather, it made a determination on the record in front of it to conclude that LB had remembered a detail about the incident. It was open to the Panel to draw that conclusion.

[81] I would dismiss this ground of appeal.

Did the Panel over-emphasize a lack of motive to fabricate, and conflate a lack of evidence of fabrication with a finding of no motive to fabricate?

[82] The appellant argues that the Panel improperly conflated a lack of evidence of motivation to lie on the part of LB with an affirmative conclusion that LB had no motive to lie, and moreover, that the Panel wrongly placed significant weight on that conclusion, contrary to the approach set out in R. v. Sanchez, 2017 ONCA 994, at para. 25. He also submits that the Panel reversed the burden by requiring the appellant to establish a motive for the student to lie, contrary to R. v. Batte, (2000), 2000 5751 (ON CA), 49 O.R. (3d) 321 (C.A.), at para. 121.

[83] In my view, this is not a fair characterization of the Panel’s reasons.

[84] First, the Panel expressly noted that the College bore the burden of proof in accordance with the balance of probabilities, and that the appellant was not required to prove anything in the hearing.

[85] Second, the Panel did not conflate the absence of evidence of motive to lie with evidence of an absence of any such motive. The appellant argued that LB had motive to lie. In its discussion of LB’s credibility, the Panel addressed and rejected the appellant’s arguments about LB’s alleged motives to lie, but it did not conclude from this rejection that LB was necessarily telling the truth. Rather, it considered the absence of evidence of motive to fabricate as one factor among many when assessing LB’s overall credibility, and did not accord it undue significance. It was entitled to do so.

[86] I would dismiss this ground of appeal.

Costs

[87] In accordance with the parties’ agreement on costs, the appellant shall pay the respondent $10,000 in costs, all-inclusive.

Conclusion

[88] In summary, I make the following orders:

a. The appellant’s appeal is dismissed;

b. The appellant shall pay costs of $10,000, all-inclusive, to the respondent.

Akbarali J.

I agree _______________________________

Matheson J.

I agree _______________________________

Nishikawa J.

Released: December 13, 2022