Court File and Parties

CITATION: Vasudeva v. College of Physiotherapists of Ontario, 2025 ONSC 3000

DIVISIONAL COURT FILE NO.: 791/24

DATE: 2025-05-29

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: VARUN VASUDEVA, Applicant

AND: INQUIRIES, COMPLAINTS AND REPORTS COMMITTEE OF THE COLLEGE OF PHYSIOTHERAPISTS OF ONTARIO and HEALTH PROFESSIONS APPEAL AND REVIEW BOARD and TA, Respondents

BEFORE: Backhouse, Matheson and Shore JJ.

COUNSEL: Jonathan A. Virtue, for the Applicant Joanna Birenbaum, for the College of Physiotherapists of Ontario David P. Jacobs, for the Health Professions Appeal and Review Board TA, Self-Represented

HEARD at Toronto: May 22, 2024

Endorsement

[1] The applicant seeks judicial review of the decision of the Health Professions Appeal and Review Board (HPARB) dated December 3, 2024, which confirmed the decision of the Inquiries, Complaints and Reports Committee (ICRC) dated February 15, 2023. The ICRC declined to refer a complaint against the applicant to a discipline hearing but required that the applicant take certain remedial steps.

[2] A patient of the applicant’s complained about an incident in a May 2021 appointment. The complainant alleged that the applicant did not properly introduce himself and, after discussing her neck and back pain, the applicant put his hands down the back of her sweater and rubbed her upper back, without warning. Further, during a balance test when the complainant had her eyes closed, the complainant alleged that the applicant twice lightly brushed the outside of her breast. The complainant further alleged that her consent to treatment was neither requested nor given. The applicant responded that he had obtained her consent to treatment and he denied the other allegations.

[3] After investigation, the complaint was considered by the ICRC, which is a specialized panel that is responsible for screening complaints that are received from members of the public. The ICRC decides whether or not allegations should be referred to the Discipline Committee, referred to incapacity proceedings, or whether there should be other steps that are less serious for the health professional such as a caution or education. As acknowledged in the ICRC decision in this case, the ICRC, as a screening committee, did not have authority to decide whether the allegations made by the complainant were true.

[4] The ICRC indicated that when there is sufficient evidence it considers taking serious action, including a referral to discipline. However, in this case, the ICRC decided that the evidence was not sufficient to warrant a referral to the Discipline Committee. The ICRC decided to require that the applicant complete a Specified Continuing Education or Remediation Program (SCERP) regarding boundaries, patient-sensitive practices, patient communication, consent and related matters, and that the applicant attend before the Committee for a verbal caution.

[5] The applicant sought a review of the ICRC decision by HPARB. On a review, HPARB’s mandate is to consider the adequacy of the ICRC investigation and/or the reasonableness of the ICRC’s decision. The applicant raised several issues about the ICRC decision that substantially overlap with the issues raised in this application for judicial review.

[6] HPARB confirmed the ICRC decision. In brief, HPARB concluded as follows:

(i) that there was no indication of further information that might reasonably have been expected to have affected the ICRC decision, concluding that the investigation was adequate;

(ii) that isolated sentences from the ICRC decision, noted by the applicant, were not findings of fact – they were references to the statements made by the complainant in the investigation;

(iii) that the applicant and complainant had conflicting perspectives on the interactions between them, both perspectives referenced by the ICRC, and it was reasonable for the ICRC to conclude that it was unable to determine whether the applicant made contact of a sexual nature;

(iv) that while the ICRC did refer to the tone of the applicant’s response to the complaint, the ICRC also referred to its review of all the information before it and properly considered the applicant’s insight into the nature of the complaint;

(v) that the ICRC applied its knowledge and expertise and the expected standards of practice of the profession, reasonably concluding that the SCERP and caution were an appropriate remedial response to improve the applicant’s professionalism; and,

(vi) that, as previously found by this Court, cautions and SCERPs are remedial in nature, not sanctions or penalties.

[7] The applicant then commenced this judicial review application. The standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.

[8] There is a dispute between the parties about what decision is under review. The applicant submits that he seeks to judicially review both the ICRC and HPARB decisions, as set out in his notice of application, while the College submits that only the HPARB decision is the proper subject matter for the Court’s review. We need not resolve this dispute because it does not change the outcome. The applicant’s issues that arise from the ICRC decision are the same issues that he submits also render the HPARB decision unreasonable. They are as follows:

(i) that the ICRC wrongly made findings of fact, which was outside its jurisdiction;

(ii) that the ICRC wrongly took into account the “tone” of the applicant’s response to the complaint;

(iii) that the ICRC failed to provide clear evidentiary support for its findings; and,

(iv) that HPARB failed to adequately review the legal and evidentiary bases for the ICRC decision, as above, and instead merely affirmed that decision.

[9] On the first issue, the applicant submits, again, that certain passages from the ICRC decision amount to findings of fact. The applicant submits that the ICRC should not have acknowledged that the complainant came forward to share her “traumatic experience” or said that she was “sufficiently uncomfortable and concerned” to come forward and appeared to genuinely believe what she alleged.

[10] Like HPARB, we do not conclude that there were unauthorized findings of fact. The reasons for decision must be read as a whole. HPARB reasonably found that the excerpts relied upon by the applicant reflected the complainant’s view and belief in relation to her complaint. The ICRC also recounted the applicant’s response to the complaint, saying that he and clinic staff would have properly greeted the complainant and obtained her consent, and that he did not touch her without consent. The ICRC expressly noted that there were these conflicting accounts of what happened. The ICRC stated that it did not have authority to decide whether the allegations were true and proceeded on that basis.

[11] On the second issue, the applicant again submits that the ICRC erred in referring to the “tone” of his response to the complaint.[^1] The applicant submits that this wrongly penalized him for asserting his innocence. However, the applicant’s response to the complaint was properly before the ICRC and among the materials that it ought to have taken into account. This Court has previously noted that such a response, including its tone, is something that the ICRC could consider: Papazian v Ontario College of Pharmacists, 2015 ONSC 3929. Further, it is apparent from the reasons for decision, read as a whole, that the ICRC was not seeking to punish the applicant for denying the allegations.

[12] Next, the applicant submits that there was an inadequate evidentiary record to justify the requirements for a SCERP and caution. On the contrary, these remedies had a reasonable foundation in the record, including the clinical record. There was no documentation showing that consent was obtained from the complainant – an important foundation for the remedies. The applicant admits that his records regarding the visit at issue were poor. Further, conducting a test that required the complainant to have her eyes closed, which was not disputed, also raises the need for a full appreciation of how to address boundaries and the other subjects to be addressed in the SCERP. This education is within the ICRC’s mandate to protect the public.

[13] A caution arises when the ICRC concludes that a health professional would benefit from a direction provided personally and it is also intended to protect the public interest: Polidoulis v. Health Professions Appeal and Review Board, 2024 ONSC 5262, at para. 16. This Court has repeatedly found that these remedies are not punitive—they provide important guidance for future conduct.

[14] The applicant also raises the potential impact of the remedy on his reputation because of the legislative requirement that decisions requiring a SCERP and a caution be on the public record. The applicant submits that because the ICRC did not decide whether the allegations were true, there should be no public record. We have no cases before us to support these submissions, which do not align with the requirement in s. 23(2) of the Regulated Health Professions Code. Further, this Court has recognized that while this impact is not insignificant, it does not undermine the remedial nature of these remedies: Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513, at para. 18.

[15] Lastly, although the applicant refers generally to HPARB errors, there are none that differ from saying that the HPARB failed to conclude that the ICRC decision was unreasonable as a result of the other issues, above.

[16] We conclude that the applicant has not met his burden on this judicial review. The reasons for the decision below show the requisite degree of justification, intelligibility and transparency. The applicant has not shown that there are sufficiently serious shortcomings to render either decision unreasonable: Vavilov, at paras. 99-101.

[17] The application is therefore dismissed with costs to the College fixed $3,500, all inclusive.

Backhouse J.

Matheson J.

Shore J.

Date: May 29, 2025

[^1]: The applicant did not include his response to the complaint in his application record. He submitted that it would have needed a sealing order but that is not a barrier to putting it before the Court. This Court must therefore rely on what is said in the reasons for decision regarding the content of that response.