Citation and Court Information

Citation: Aboujamra v. College of Physicians and Surgeons of Ontario, 2023 ONSC 3344 Divisional Court File No.: 637/23 Date: 2023-06-16

Ontario Superior Court of Justice Divisional Court

Before: Firestone R.S.J., Backhouse and Matheson JJ.

Between: Dr. Jamal Aboujamra (Appellant)

• and - College of Physicians and Surgeons of Ontario (Respondent)

Counsel: Marie Henein and Mathew Zaia, for the Appellant Morgan Kellythorne, for the Respondent

Heard at Toronto: May 31, 2023

RESTRICTION ON PUBLICATION

BY THE COURT

Reasons for Decision

[1] This is a statutory appeal from the decision and penalty order of the Discipline Tribunal of the College of Physicians and Surgeons of Ontario (the "College"), dated September 20, 2022, holding that the Appellant, Dr. Aboujamra, had committed sexual abuse and disgraceful, dishonourable or unprofessional conduct ("the Decision").

[2] After a seven-day hearing before a panel of the Discipline Tribunal (the "Tribunal"), the Tribunal found that the Appellant had engaged in sexual abuse of a patient, including touching of a sexual nature, and disgraceful, dishonourable or unprofessional conduct. As a result of the sexual abuse finding, the Appellant's licence was revoked.

[3] This case turned on whom the Tribunal believed. With minor exceptions, the Appellant denied the allegations. The Tribunal addressed the credibility issues at length, preferring the evidence of the Patient. The Appellant argued that the Tribunal erred in rejecting exculpatory evidence, misapprehended the concept of "incremental disclosure", misused the Appellant's written response to the complaint, misapprehended the evidence and applied uneven scrutiny to the evidence.

[4] For the reasons set out below, this appeal is dismissed.

Discipline proceedings

[5] The discipline proceedings arose from a complaint made in 2020 by one of the Appellant's patients (the "Patient"). The Appellant was a general and family practitioner who practiced at a medical clinic in Toronto that included a walk-in practice. The Patient saw a few other physicians at the clinic and saw the Appellant for the first time in 2015. She was 21 years old. She and her mother had recently arrived in Canada and applied for refugee status. The Patient had twenty-one appointments with the Appellant over the next three years, for various family medicine issues, after which she moved away from Toronto.

[6] The College investigated the complaint, including interviews and follow-up, and received a written response from the Appellant. These steps give rise to issues on this appeal because of the additional detail from the Patient that arose over time and because of the Tribunal's comments about the Appellant's responding letter to the College, discussed below.

[7] The Appellant disputed the allegations. With one exception, he responded that the alleged events did not take place.

[8] The matter was referred to the Discipline Committee for a hearing to determine whether the Appellant had committed an act of professional misconduct by engaging in sexual abuse of the Patient and by engaging in acts or omissions that would be regarded as disgraceful, dishonourable or unprofessional. The alleged misconduct included the following:

(1) touching of the Patient's breasts, buttocks, thighs and vagina of a sexual or inappropriate nature;

(2) making remarks of a sexual or inappropriate nature;

(3) failing to provide privacy or gowning or draping while the Patient was undressing;

(4) moving or displacing the Patient's clothing without warning or consent; and

(5) making inappropriate or unprofessional comments.

[9] At the hearing, the Tribunal heard testimony from the Patient, the Appellant and three members of the Clinic's staff, as well as receiving documentary evidence.

[10] We recount the evidence below only to the extent needed to address the appeal.

Patient's Evidence

[11] The Patient gave the following testimony at the hearing. There were numerous instances of misconduct over the time she saw the Appellant as her family doctor. He would frequently touch her body, touch her nipples, and touch and fondle her breasts, rub her thighs and legs and squeeze her inner thighs. He would pull her buttocks toward his groin or squeeze them, while commenting on her weight or sex life. The Appellant touched or swiped her vulva on more than one occasion, during or after a Pap smear and would then make comments about how it looked and smelled and how she was so wet. The Appellant would greet her saying she was a "beautiful girl" or "pretty girl". Then, when they were in private, the Appellant would make inappropriate comments and ask inappropriate questions, such as describing her breasts as perky and encouraging her to have more sex when she attended a sex club. The Appellant also questioned her about her sex life, including sex acts, positions and where her partners came on her. She said that the Appellant told her that his brother, who was an artist, wanted to sketch her naked.

[12] The Patient acknowledged that when she had Pap tests, a female member of the Clinic staff would be present for that procedure (a "chaperone"). She testified that the Appellant did not always leave when the chaperone left, and he would make sexual comments. She testified that on some occasions the Appellant would fail to respect her privacy by remaining in the examination room while she was undressing or by pulling up her top to expose her breasts to look at the skin tissue without a chaperone present and without a gown or drape.

[13] The Patient testified that after the abuse began, she took some steps to find another doctor but was unsuccessful and found that challenge overwhelming.

[14] The Patient was cross-examined at length about having provided more details about the alleged abuse over the course of the investigation of her complaint and in her testimony at the hearing. She testified that she found the College process overwhelming and tried her best while reliving the trauma of the abuse. She found it very hard to talk about what had happened, could not recall every detail and may have paraphrased the sexual comments. She testified that she could not recall every single occurrence.

Appellant's Evidence

[15] The Appellant gave the following evidence. He denied the allegations, except that he agreed that he called the Patient a "beautiful girl" or "pretty girl". He testified that those comments were not sexual and he referred to the Patient that way in front of her mother.

[16] He did not recall speaking to the Patient about her weight but said that he might have done so because her weight was an issue. He called her "beautiful" or "pretty" to boost her confidence.

[17] Chaperones were present for all Pap tests and breast examinations. He would not stay in the examining room when the Patient was undressing or dressing. He might have a discussion with a patient after a Pap smear but would do so after the patient dressed.

[18] The Appellant testified about the clinical context for certain topics that the Patient said he spoke to her about. He asked her about risky sexual behaviour given the Patient's symptoms and concerns. He testified that it would have been inappropriate not to ask about her sexual history given that she had abnormal Pap smear test results, vaginal discharge and odour, and had reported that she had been exposed to someone with Chlamydia.

[19] The Appellant testified about the walk-in format of the Clinic and said that it was unusual that the Patient would see only him once she started to see him. However, in cross-examination he accepted that he had her enrolled as his family practice patient after her initial visit with him, he was the main doctor at the Clinic and on a number of occasions he was the only doctor available.

[20] The Appellant described the Patient as loud, expressive and demanding and testified that she was quite open about her "risky sexual adventures". There was only one chart entry related to this topic, without details, when the Patient attended the Clinic for testing after learning that a partner had tested positive for Chlamydia. There were no chart entries reflecting his vivid description of her sexual history as set out in his letter to the College. That letter said that the Patient had told the Appellant that she had "four boyfriends ... one buys her food, one pays her bills, one buys her smokes, and one helps with her rent" and she "had sex with several people at the same time at a downtown sex club" where "men pay for the service and drinks and women don't".

[21] The Appellant testified that the Patient made aggressive demands for him to prescribe marijuana and to support a legal claim after she was hit by a car. The chart did not record aggressive demands. The chart did not record any request for a report in support of a legal claim. It showed that the Appellant had treated the Patient after the car accident and referred the Patient to a marijuana clinic for pain management after the car accident. However, in the Appellant's response to the College, he suggested that his refusal of her demands led to false allegations of sexual abuse.

[22] The Appellant also mentioned the Appellant's drug use in his response to the College. He testified that he mentioned drug use because it showed the Patient was the kind of person that engaged in high risk behaviour and such patients may "accuse others". In his letter to the College, the Appellant said that the Patient had fabricated her allegations. At the hearing, his position was that she was lying and was cavalier or careless with the truth.

Evidence of Staff Members

[23] Three members of the Clinic staff testified about Clinic practices and, to some extent, about the Patient. They confirmed the evidence about the use of chaperones for a Pap smear test. They testified that after a Pap smear the chaperone and the Appellant would leave the examination room while the patient got dressed. One staff member testified that the Patient was nice, in contrast to the Appellant's evidence. Another staff member testified that the Patient would wait to see the Appellant in particular, rather than another doctor at the Clinic.

Discipline Decision

[24] The Tribunal summarized the factual allegations as follows: "[The Appellant] touched areas of the [Patient's] body, including her breasts and vagina, in a sexual manner. He made comments of a sexual and inappropriate nature during medical appointments. The member failed to provide the [Patient] with privacy while she was undressing, and he displaced her clothing without warning and without her consent."

[25] The Tribunal summarized the Appellant's position as follows: "The [Appellant] denies most of the alleged facts, and he strongly denies having acted inappropriately in any way. His position in short is the following. He had sound clinical reasons to perform examinations and procedures relating to [the Patient's] breasts and vagina. While he did discuss her sexual activity, he had a legitimate rationale to do so. He only entered the examination room after [the Patient] was undressed and properly draped, and a female staff member was always present for breast exams and Pap tests."

[26] The Tribunal observed that the case turned almost entirely on a contest of credibility and reliability between the Appellant and the Patient. The Tribunal then did an extensive review of the issues and the evidence. That analysis began with a review of general legal principles, which themselves are not disputed. That review included a discussion of the legal principles that apply to findings of credibility and reliability.

[27] The Tribunal underscored that they "must look at all the evidence to assess the impact of inconsistencies".

[28] The Tribunal addressed the Appellant's submission, also made to this Court, that there were material inconsistencies in the Patient's evidence because most of the details came out after the initial complaint either in subsequent communications with the College or in her evidence at the hearing. This submission was made primarily regarding the allegation that the Appellant swiped the Patient's vagina and in regard to some of the comments the Patient testified that the Appellant made about her breasts and sexual practices.

[29] The Tribunal considered the sequence of events, the Patient and the Appellant's testimony, and jurisprudence about caution regarding myths and stereotypes in the case of victims. The Tribunal concluded that while imprecise at times, the Patient's evidence was credible and reliable in relation to the core allegations of touching her vagina, inner thighs and breasts and about sexual comments.

[30] The Tribunal gave extensive reasons for doing so. They discussed the Patient's confusion about some dates, the sequence of some events and the frequency of some of the alleged conduct. They noted that the Patient readily acknowledged that some of her testimony on this was incorrect and that she made concessions on some minor points. They also noted that the Patient conceded that a female staff member was present for each of her Pap smears. The Tribunal observed that in her testimony, the Patient was emotional, and it was difficult for her.

[31] The Tribunal considered the Patient's explanation for why she provided more details as the College process moved forward. The Patient testified that she had not known that she had to give as much detail at the beginning, that as she talked about the events, she remembered more details, that she found it very hard to even talk about and that she could not remember everything but could say what happened and how it happened. She testified that she had not used the specific language regarding what the Appellant said to her in several instances because she was paraphrasing.

[32] The Tribunal further addressed the Appellant's submissions that the Patient was dishonest and had a motive or plan to mislead the Tribunal, referring to the car accident report and request for marijuana. The Tribunal found no persuasive evidence in this regard.

[33] The Tribunal addressed numerous submissions of the Appellant seeking the conclusion that the Patient should not be believed. Submissions were made about the clinical reasons for some topics of discussion and about the Patient continuing to see the Appellant for approximately three years.

[34] Having considered all the evidence and submissions about the evidence, the Tribunal also considered the jurisprudence that related to the alleged inconsistent statements and details being put forward later on. The Tribunal referred to case law on incremental disclosure. The Tribunal found that the Patient's inconsistencies did not negate the core allegations against the Appellant. They accepted the Patient's explanations, finding that the process was very hard for her, and she was better able to state specifics of what occurred as time passed.

[35] The Tribunal then considered the credibility and reliability of the Appellant's evidence. They concluded that where his evidence conflicted with the Patient's evidence, they preferred the Patient's evidence. They gave detailed reasons for this conclusion, which they summarized as follows: the Appellant's admissions, his refusal to acknowledge facts, the evidence of his own witnesses and several aspects of the Patient's evidence already discussed.

[36] The Tribunal found that the Appellant had a tendency to avoid and deflect attention rather than to squarely address substantive issues. Further, he went out of his way to disparage the Patient in his response to the College and his explanations about troubling aspects of his response, in cross-examination, also damaged his credibility. The Tribunal went through a number of aspects of the response that had not been proved at the hearing. The Tribunal concluded that portions of the letter were at best a sexist description of the Patient, calculated to predispose the College against the Patient.

[37] The Tribunal further considered what was, and was not, in the Appellant's chart, the Appellant's evidence about whether the Patient could have seen another physician, the Appellant's evidence about the Patient being loud and aggressive in contrast to a staff witness saying she was nice, the Appellant's explanation for calling the Patient pretty or beautiful, the Appellant's evidence about the Patient's weight, and other aspects of the evidence.

[38] The Tribunal also referred to the evidence of one staff member, who testified that all examining rooms had locks that were used at times, including when a Pap smear was given with a chaperone present. The Tribunal observed that this supported the Appellant having an opportunity to carry out sexual abuse. However, this evidence came out after both the Patient and the Appellant had testified. The Tribunal found that it would be unfair to describe the Appellant as having a lack of candour for not addressing this in his evidence.

[39] The Tribunal concluded, having taken into account the seriousness of the allegations as well as the inherent probabilities in the evidence, that the College had proved sexual abuse and disgraceful, dishonourable or unprofessional conduct on a balance of probabilities based on clear, convincing and cogent evidence.

Standard of Review and Issues

[40] The appellate standards of review apply to this statutory appeal: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37. As set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, errors of law are reviewed on a correctness standard. For errors of fact, there must be a palpable and overriding error. Errors of mixed fact and law also require a palpable and overriding error unless there is an extricable error of law or principle, which is reviewed on a correctness standard.

[41] The Appellant submits that the Tribunal erred as follows:

(1) by rejecting exculpatory defence evidence using speculative reasoning that was inconsistent with the evidentiary record;

(2) by misapplying the concept of "incremental disclosure" to dismiss substantive and material inconsistencies in the Patient's evidence;

(3) by rejecting the Appellant's evidence because of his written response to the College, which the Tribunal mischaracterized as a personal [sexist] attack on the Patient;

(4) by misapprehending the evidence in other material respects, including regarding inconsistencies, the graphic statements the Patient testified about at the hearing and the relevance of the ability to lock the door;

(5) by applying uneven scrutiny to the evidence of the Patient and that of the Appellant.

Analysis

Issue #1: Whether the Tribunal erred in Rejecting Exculpatory Evidence

[42] The Appellant argued that the Tribunal never reconciled the Patient's evidence that she was inappropriately touched during the Pap tests when, according to her evidence and that of the three staff witnesses, chaperones were always present. The Appellant submits that the Tribunal erred in rejecting the exculpatory evidence of the staff members.

[43] The Appellant relies on the following evidence in support of this argument. The three staff members testified to a standard protocol of chaperones being present for all Pap tests and breast examinations and to the Appellant not remaining when the patient was dressing. This was the protocol followed by the Appellant whether or not the tests were scheduled or unscheduled. They did not witness inappropriate touching or inappropriate comments. The Patient confirmed in her evidence that a female staff member was present for all the Pap tests and breast examinations. The Patient also testified that the inappropriate touching occurred during and after the Pap tests.

[44] The evidence was more nuanced than the evidence relied upon by the Appellant as set out above. The Patient testified that the Appellant's touching of her vulva area was "really fast" or "quick". She did not testify that a chaperone actually saw the touching happen. She testified that the inappropriate touching of this area (as well as other parts of her body) also took place when the Appellant was alone with her in the examination room, including before or after a Pap test, when he would pull himself towards her, or put his hand up her dress. She described him making strikingly inappropriate comments when they were alone, including after a chaperone had left or before one arrived.

[45] The Patient had testified that the more extended abuse (pulling himself towards her, putting his hand under her dress, playing with her breasts, sexual remarks) occurred when there was no chaperone in the room. Staff members had testified that in the case of unscheduled Pap tests, the Appellant was sometimes alone with the patient at the beginning or end of the appointment. The Tribunal also considered that the Patient's chart showed that, of the four Pap tests conducted by the Appellant, only one had been scheduled in advance. They found that this was evidence that the Appellant had the opportunity to touch the Patient improperly when no one else was present.

[46] In considering the evidence of staff members, the Tribunal noted that none of the staff members could recall having attended on the Patient's Pap tests. It accepted that a staff member who witnessed sexual touching would likely remember it. However, the Tribunal found that it was unlikely that the Appellant would touch the patient's thighs and vagina in a chaperone's presence in a manner that would evidently indicate (to the chaperone) a sexual purpose. That is, any touching that occurred during the Pap test in the presence of a chaperone would not have been overtly sexual.

[47] We do not consider this a finding by the Tribunal that none of the clinic staff had been present for the abuse. Rather, the Tribunal found that abuse during a chaperoned Pap test would not have been evident to the chaperone (which is consistent with the Patient's evidence that the touching was "quick") and that the clinic staff's evidence permitted it to find that unscheduled Pap tests provided the Appellant with the opportunity to be alone with and abuse the Patient before and afterwards, as she had testified.

[48] The staff members' evidence cannot properly be described as exculpatory when considered together with all of the evidence. There is no palpable and overriding error. This ground of appeal is rejected.

Issue #2: Whether the Tribunal Misapplied the Concept of "Incremental Disclosure"

[49] The Appellant submits that the Tribunal misapplied the concept of "incremental disclosure" to improperly dismiss the substantive inconsistencies in the Patient's account. The Appellant argues that based on its finding that the Patient's evolving evidence was "fully consistent with the case law about incremental disclosure", the Tribunal failed to meaningfully engage with the inconsistencies in her evidence that emerged at the hearing.

[50] In her original complaint letter and the first interview with College investigators, the Patient did not allege that the Appellant repeatedly touched her vagina. The Patient then emailed the College that she recalled one occasion where the Appellant swiped her vagina. During her testimony, the Patient testified to "more than one occasion" and "frequent" incidents of vaginal touching during and after Pap tests.

[51] The Appellant submitted that the Tribunal focused almost exclusively on an explanation given by the Patient in re-examination which in its view rehabilitated her evidence. The Appellant submitted that the Tribunal failed to carefully assess both the credibility and reliability of the Patient, instead attributing material inconsistencies generically to the concept of incremental disclosure.

[52] The Panel concluded that the Patient was a credible and reliable witness as pertaining to the central allegations of sexual abuse. With respect to her evolving evidence and "incremental disclosure", the Tribunal found:

[56] More directly, on the issue of how frequently Dr. Aboujamra pressed his body up against her, she readily agreed that it might not have been at almost every appointment, as she had suggested earlier. She gave a reasonable explanation of her thought process: 'I have trouble remembering specific appointments. And when you brace yourself for certain interactions and stuff - I can't swear that it was every single time, but it happened enough that I knew that was part of what he does when he touches me.' In our view, a similar principle applies to the "frequency" issue with respect to "swiping." Apart from the issue of incremental disclosure, which we discuss below, in our view it is understandable that Patient A would be unable to specify whether it was 'frequent,' 'a lot,' or 'more than twice,' when the key question for her was whether that 'was part of what he does,' and she would have to 'brace' herself.

[57] There is another reason why numbers of instances are less important than the core allegation, and how Patient A remembers it. She testified that the more she spoke about the events, the more the details came back to her. She said that she was providing examples in her early interviews with the College, and she was not asked for a comprehensive list of occurrences. She told the College: 'he would comment on how my vagina smells and how, uck, all these different things like that.' Indeed, in her email of August 24, 2020, she volunteered additional details that she had thought about in the 10 days after her last College interview.

[58] Patient A was clearly emotional, and her testimony was very difficult for her. She looked down and hesitated at times. We do not regard these aspects of demeanour as persuasive in our assessment of her evidence.

[59] In our view, all the details that Patient A recounted in her evidence about sexual touching and sexual remarks were consistent with and formed the component parts of her account of sexual abuse. She undoubtedly provided more details over time, and at the hearing. She said she was 'reliving the trauma' and 'never hid when memories came back.' She 'blamed herself' and was in a state of disbelief when it happened, and it took her time to come forward and disclose the details. Over time, Patient A gave more details about the same core conduct that was always the subject of her allegations.

[60] In re-examination, Patient A gave a long and detailed explanation of the process of recollection and reporting that she had gone through:

As I talked it out, I remembered more details. And I really - like I said, I didn't know that I had to give as much detail in the beginning when I was initially doing my report. And when I was being interviewed, it was very hard for me to even talk about it. And recalling it made it very hard for me. So I know that in the interviews and in my communications I gave broader descriptions of what happened, but I can't remember every single time and every single thing that happened, every single appointment, but I can tell you what happened and how it happened and what I remember. And I understand it would be better if I remembered everything before and according to all the words, but I can't remember all the words. And as I've been preparing over the past two years, all these details have been coming up, but I guess they some of them did not come up during prep sessions, and some of them did come up in prep sessions or even with the interviewer or with anybody within the CPSO. But when I was being pressed for details, I gave the details. And if I was pressed for more details before, I would have probably gone into it more. But especially earlier on when I was being pressed for details, it was very hard for me to even hear the words come out of my mouth because I couldn't believe that this happened to me. And I blame myself with that's hindsight, right.

And I always usually broke down and we ran out of time, so there's only so much you can do and say with the time you're given. But at the end of the day, I am being honest about what happened to me and my experience with him. And my message has never changed. My bottom line is always been that he - he did sexually assault me. These things did happen, and I didn't appreciate it. And it took me a long time to even start saying no. And I'm sorry that I'm inconsistent about specific details and timelines, but I was scared. And even if I were to try - tell people, even now, I can't even tell people about this. I don't - I don't want to be judged. I don't want people to know.

[53] The Tribunal went on to fairly consider the jurisprudence on inconsistencies and incremental disclosure in sexual abuse cases.

[54] Far from failing to meaningfully engage with the inconsistencies in the Patient's evidence, the Tribunal recognized that the Patient's evidence evolving over time had to be considered carefully in light of her explanation. The Patient was cross-examined extensively about the piecemeal disclosure. The Tribunal considered the specifics of her explanation in detail in relation to the evidence and did not generically dismiss inconsistencies as the result of incremental disclosure by referring to case law. The Tribunal considered and accepted the Patient's explanations for the inconsistencies, which it was entitled to do.

[55] Contrary to the Appellant's submission, the Tribunal did not focus exclusively on the Patient's explanation in re-examination. It is not a fair reading of the Decision that it was their rationale that whatever the inconsistencies, they would rely on a "bottom line" that she had in any case always said the Appellant sexually abused her. The Tribunal engaged in a detailed and nuanced evaluation of her explanations. Among other things, the Tribunal noted that the Patient explained her thought process in her evidence — she had experienced a pattern of misconduct from the Appellant over an extended period of time which felt like 'a lot' and against which she had to 'brace herself', leaving her unable to specify the frequency of its component parts. The Tribunal noted that the Patient had paraphrased and provided examples in her early communications with the College and had volunteered more information as time went on. However, it noted all of the details were consistent with and formed the component parts of her account of sexual abuse. There were "more details about the same core conduct that was always the subject of her allegations" including the nature of the touching, remarks and privacy breaches.

[56] This ground of appeal is rejected.

Issue #3: Whether the Tribunal erred by rejecting the Appellant's Evidence because of his written response to the College

[57] The Appellant submits that the Tribunal mischaracterized his written response to the College as a personal [sexist] attack on the Patient which it focused on significantly in determining that he was not a credible witness.

[58] The Appellant submits that the Tribunal failed to consider that there was a clear reason to discuss the Patient's sexual history in his response which was the reason the Patient was coming for treatment, and which was confirmed by the Patient. Instead, the Tribunal used his response to discredit and scrutinize his viva voce testimony. The Appellant submitted that even if the Tribunal concluded that his response was sexist or misogynistic, it erred in drawing an inference that as a result, he was guilty of sexual misconduct and all his evidence should be rejected.

[59] This submission ignores the Tribunal's extensive reasons for its credibility findings. As stated by the Tribunal, the key reasons for preferring the evidence of the Patient were the Appellant's admissions, the Appellant's refusal to acknowledge facts, the staff evidence and aspects of the Patient's evidence. The Appellant's response to the College formed part of the evidence and was considered along with other evidence, including evidence from the Appellant that he gave at the hearing. The Tribunal found that in several respects, what the Appellant represented to the College in his response was undermined on his cross-examination. For example, the Appellant described the Patient in his response as aggressive and demanding. The Tribunal found that this was not supported by the staff who were present at the time and was at odds with how the Patient presented during the hearing. For another example, in his direct examination the Appellant testified that the clinic was a walk-in clinic. The Appellant represented in his response that the Patient could have seen another physician immediately and instead waited an hour or two to see him. On cross-examination, it became clear that he omitted to mention in his response that he had the Patient fill out an enrolment form which registered the Appellant as her family doctor with OHIP. On cross-examination, he conceded that the doctors at the clinic were never scheduled to overlap and that he was the Patient's main doctor.

[60] The Tribunal gave numerous instances where statements made in the response to the College were not borne out at the hearing and further found that the Appellant went out of his way to disparage the Patient's character, finding that was not the purpose of a response to his regulator. Among the many reasons given, the Tribunal noted that the Appellant described the Patient in these terms:

I still remember Patient A told me that she had four boyfriends. She counted them off with names, and told me that one buys her food, one pays her bills, one buys her smokes, and one helps with her rent.

While this is not specifically recorded in the chart, I also remember that Patient A also told me that she had sex with several people at the same time at a downtown sex club. She explained that men pay for the service and drinks and women don't.

[61] The Tribunal found nothing in the chart to support these multiple accusations and found that the impression of the Patient that the Appellant conveyed to the College was at best a sexist description of a woman who is trading sex for material benefits from four men. The Tribunal found that there was no reliable evidence that any of this was accurate, and it could only be calculated to predispose the College against the Patient.

[62] The reasons for decision include numerous other instances where, upon considering not only the response to the College but also the hearing evidence, the Tribunal had difficulty with the position advanced by the Appellant.

[63] When the Tribunal's Decision is read in its entirety, there is no merit in the argument that it mischaracterized his response to the College and focused on it unfairly in determining that he was not a credible witness. This ground of appeal is dismissed.

Issue #4: Whether the Tribunal Misapprehended the Evidence in other material respects

[64] First, the Appellant submits that the Panel erred in dismissing the Patient's significant inconsistencies by resorting to a finding that her explanations were essentially consistent with her 'bottom line' that sexual assault occurred. The Appellant submits that conversely, the Tribunal focused on the Appellant's comments about the Patient's general behaviour at his office to arrive at a conclusion that he was not a credible witness when a fair review of his evidence illustrates that he was equally consistent in his denial of the allegations throughout.

[65] As described above, this is not a case where the Tribunal gave generic reasons without any explanation for their credibility assessment in the face of a defendant's blanket denial of allegations. The Tribunal carefully and specifically considered the evidence of the Patient and the Appellant, including any inconsistencies or other evidence that it considered material. It is not a fair portrayal of the Tribunal's credibility assessment of the Appellant to say that it was focused on the Appellant's comments about the Patient's general behaviour at his office.

[66] Second, the Appellant submits that the Tribunal erred in concluding that new allegations made at the hearing about sexual comments made to the Patient were immaterial to her credibility. The Tribunal found that the Patient had paraphrased the sexual comments in her disclosure prior to the hearing.

[67] It is not the role of this court to re-weigh the Tribunal's evaluation of the Patient's credibility in light of the fact that she had not disclosed all of the specific language of the Appellant's sexual remarks to her before testifying. The Tribunal expressly addressed the alleged inconsistencies that arose due to the Patient giving more detail over time, as discussed above.

[68] Third, the Appellant submits that the Tribunal misapprehended the evidence by concluding that the presence of locks on examination room doors was evidence that "supports [the Appellant's] opportunity to carry out the sexual abuse that [the Patient] alleges.

[69] The Appellant had testified that one staff member would frequently open a closed examination room without warning which suggested that there was not the opportunity to be alone in the room with and sexually abuse a patient. One of the staff members, Ms. Martin, testified that there were locks on the doors and the Appellant could lock the door while in with a patient. The Tribunal did not conclude that these facts meant that abuse had occurred behind closed door. There was no error in the Tribunal concluding that these facts were evidence that abuse could have occurred, contrary to the impression created by the Appellant's evidence.

[70] This ground of appeal is dismissed.

Issue #5: Whether there was Uneven Scrutiny

[71] The Appellant argues that the Tribunal applied uneven scrutiny to his evidence versus that of the Patient.

[72] Both parties note in their factums that arguments of uneven scrutiny are notoriously difficult to prove and in the absence of palpable and overriding error, an appellate court is disentitled to reassess and reweigh the evidence.

[73] The Appellant submits that there was an imbalance in the way the Tribunal considered the Appellant's and Patient's evidence. First, he submits that the Tribunal found the Patient to have "paraphrased" with respect to her omissions about alleged sexual comments. Conversely, it is submitted, because he admitted to commenting on the Patient's weight and referring to her as a "beautiful girl" in front of her mother, the Tribunal concluded that he must have also made sexual comments to her. He complains that there is not a rational connection on the evidence between the Appellant's concession that he may have commented on the Patient's appearance and a tendency or proclivity to make sexual comments.

[74] This mischaracterizes and oversimplifies the evidence. The Tribunal discussed in detail at least nine areas of evidence that negatively impacted the Appellant's credibility. One such area was his attempts to explain and justify the language that he admitted using. This reinforced the Tribunal's conclusion, based also on the Patient's evidence which it found credible, that the Appellant had made other inappropriate comments about her appearance.

[75] Second, the Appellant submits that the Tribunal applied uneven scrutiny in finding that he failed to answer straight-forward questions and in citing as an example his having prevaricated for pages of transcript before agreeing that he knew his brother sketched patients (as he had initially stated in his response to the College). He submits that the Tribunal ignored what he suggests were deliberately unresponsive oblique answers by the Patient. The Appellant points to a number of instances in the Patient's evidence where she answered in the course of two full days of evidence: "I don't recall". The Tribunal found that she "hesitated at times" in her evidence and that her testimony was "very difficult for her." The Tribunal was entitled to consider and weigh the Appellant's prevarications as it did and consider the impact of the Patient's evidence as it did. It was not required to provide a parallel analysis of the Patient's periodic statements that she could not recall in response to a question.

[76] Third, the Appellant submitted that the Tribunal failed to apply a balanced level of scrutiny. He submits that the Tribunal found that the patient's evidence was credible and reliable because she was always consistent with her "bottom line" that sexual abuse had occurred but failed to make a similar finding in the case of the Appellant who was equally consistent in his denial of the allegations throughout.

[77] Again, this argument ignores the Tribunal's detailed and nuanced credibility findings and amounts to an attempt to re-try the case. There is no merit to the Appellant's submission that a 'balanced level of scrutiny' required the Tribunal to find the balance of probabilities was not met in relation to the allegations.

[78] Fourth, the Appellant submits that the Tribunal never engaged with the Patient's false claim, under cross-examination, that she had previously told the College prosecutors about "frequent" vaginal swiping and that it was "stipulated on the record" that the Patient had not done so.

[79] The College asserts that the evidence was that the Patient said that she believed that she had told the prosecutors about this in preparation for the hearing but that the College's disclosure notes did not reflect this information and that there were many possible explanations.

[80] The Tribunal acknowledged in its decision that the Patient may have misunderstood or misinterpreted whether she had provided this information, before going on to evaluate and consider the overall impact of what the Appellant asserted was the 'evolution' of the Patient's account of his touching of her vaginal/vulvar area.

[81] To demonstrate uneven scrutiny, an appellant must identify something clear in the reasons or the record indicating that a different standard was applied, as well as something sufficiently significant, such as rejecting the appellant's testimony, for speculative reasons, to displace the deference due to the trier's credibility assessments. There is no palpable or overriding error. The Tribunal expressly adverted to the correct legal principles and there is nothing in the record that suggests it did not correctly apply those principles. This ground of appeal is dismissed.

Conclusion

[82] We would therefore dismiss this appeal, with costs to the Respondent in the agreed-on amount of $15,000 all inclusive.

Firestone R.S.J.

Backhouse J.

Matheson J.

Released: June 16, 2023