CITATION: Outram v. College of Massage Therapists of Ontario, 2025 ONSC 4201

DIVISIONAL COURT FILE NO.: DC-23-00000496-00JR

DATE: 2025-07-16

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Colin Outram, Appellant AND: College of Massage Therapists of Ontario, Respondent

BEFORE: ACJ McWatt, Sachs and Faieta JJ.

COUNSEL: Taufiq Hashmani and Nick Kandel, for the Appellant Anastasia-Maria Hountalas and Enniael Stair, for the Respondent

HEARD at Toronto: June 19, 2025, in person

This Court orders that the publication ban ordered by the Discipline Committee is continued by this Court. It is ordered that no person shall publish, broadcast or otherwise disclose the name of the client referred to during the hearing or in documents filed at the hearing, or any information that would disclose the identity of the client. This order was made pursuant to subsection 45(3) and section 47 of the Health Professions Procedural Code (the “Code”) being Schedule 2 to the Regulated Health Professions Act, 1991. Subsection 93(1) of the Code, which is concerned with failure to comply with these orders, provides that: Every person who contravenes an order made under section 45 or section 47 is guilty of an offence and on conviction is liable, (a) in the case of an individual to a fine of not more than $25,000 for a first offence and not more than $50,000 for a second or subsequent offence; or (b) in the case of a corporation to a fine of not more than $50,000 for a first offence and not more than $200,000 for a second or subsequent offence.

DATE: June 19, 2025

REASONS FOR DECISION

McWATT A.C.J.

[1] Colin Outram (the “appellant”) brings a statutory appeal from the Decision of the Discipline Committee of the College of Massage Therapists of Ontario dated March 8, 2023 (the “Committee/Panel”). In that decision, the Panel found he had committed acts of professional misconduct in contravention of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the Code”). The appellant asks that the finding of misconduct be overturned. Alternatively, he asks that this Court remit the matter for re-determination by a differently constituted Discipline Committee. The respondent requests that this appeal be dismissed.

[2] Mr. Outram was a registered member of the College of Massage Therapists of Ontario (the “College”) and practiced massage therapy at a clinic. He had been a registered massage therapist for 22 years.

[3] The client /complainant has been receiving massage therapy for approximately 20 years. She had attended the clinic twice before but on December 8, 2020, she received her first massage from the appellant.

[4] In a discussion prior to the treatment, the client told the appellant that she had tight hip flexors, glutes, and calves and that she preferred medium pressure. She asked for a brief upper body massage (back, neck and shoulders) before her leg massage, and stretch therapy if there was time. In a voice note after the session, she told a friend that she asked the appellant to focus on her glutes. The appellant testified that the client did not ask for a gluteal or upper thigh massage. She only told him that her hip, calves, quadriceps and hamstrings were tight. He discussed a plan for the therapy based on that information and she agreed. He denied touching her glutes, upper inner thighs, vagina and underwear. The client did not sign a consent form for the therapy.

[5] At the end of the session, the complainant left the clinic without complaint. However, in the voice note to a friend after the treatment, she commented on how the appellant manipulated her clothing and how he conducted the massage of her glutes and inner thighs.

[6] On December 9, 2020, the complainant contacted the College of Massage Therapists and claimed that the appellant had sexually assaulted her during the massage therapy treatment on the previous day. The following day, she submitted a written complaint to the College detailing her allegations.

[7] The complainant alleged that, during the massage therapy session, the appellant moved her underwear into her gluteal cleft, massaged her glutes, and massaged her hamstrings, coming close to her vagina and gluteal cleft. She also claimed that after the massage treatment, she was stretched by the appellant, and during one of the stretches, one side of her leg was undraped, exposing her vaginal area, and it was possible that her vagina was “hanging out”. While in this position, the appellant massaged her inner thighs, and she felt that his hands came close to her vagina. This process was repeated with the other leg. In this initial statement, the complainant did not say that the appellant had touched her vagina.

[8] On December 11, 2020, the complainant went to the Toronto Police. She told the interviewing officer that the appellant never touched her vagina, but she believed that her vagina was exposed during the treatment, although she was not sure about that fact. On February 19, 2021, after investigating the allegations, the police chose not to lay any criminal charges.

[9] The College’s investigator was appointed on December 16, 2020, but interviewed the complainant on March 2, 2021, after the police had refused to lay charges. For the first time, the complainant alleged that during the stretch portion of the treatment, the appellant grazed the “top part” of her vagina, “on top of where the opening is”, over her underwear.

[10] Over the next several months the complainant also made various posts on social media and on various websites and contacted several people known to the appellant about her allegations. The posts suggested that the clinic owner was complicit in the sexual assault and was part of a larger sexual assault scheme with the appellant. During her testimony at the hearing, the complainant explained that she posted the messages to inform and protect the public but conceded that she never reported these allegations to the police.

Procedural Background

Evidence and Credibility Assessment

[11] The Panel heard testimony from two witnesses for the College – the client and DM, a College investigator. Five witnesses testified for the defence – the appellant: TM, the Clinic owner; and AV, CM and AD, clients of the Registrant.

[12] The evidence before the Committee included the client’s clinical records; a transcript of a police interview with the client; the client’s voice note, correspondence with the Clinic owner, and social media posts; the appellant’s certification in fascial stretch therapy (“FST”); and the appellant’s Metis Nation of Ontario citizenship card.

[13] The Panel recognized that the case turned on credibility assessments and correctly set out the factors enumerated in Stefanov v College of Massage Therapists of Ontario, 2016 ONSC 848 to help them do the assessments.

[14] The Panel found that the client was generally a reliable witness and the only significant exception to this was with respect to her evidence on the alleged grazing of her genitals. The Panel agreed the complainant’s evidence about this allegation had internal inconsistencies and was implausible. As a result, it concluded that the client’s evidence on that issue was unreliable.

[15] The Panel also found that the inconsistencies between the appellant and the client’s retelling of the events “were minor in nature and did not relate to a central issue.” The main inconsistency was whether the appellant told the client “to undress to her comfort level.” The Committee accepted the appellant’s evidence that there had been some discussion about attire. It went on to find that differences in their evidence on this issue were not significant.

[16] The Committee placed very little weight on the evidence of the appellant’s three clients and the Clinic owner, who testified for the defence.

[17] The Committee accepted the College investigator’s evidence with respect to the investigation she conducted.

Findings of Fact

[18] The Discipline Committee found that it was more likely than not that the appellant moved the client’s underwear to her gluteal cleft without consent, touched the client’s buttocks without consent and/or without having her complete the Consent to Treat Sensitive Areas consent form, and touched the client’s inner thighs without consent and/or without having her complete the consent form. The Committee found that the appellant did not expose or touch the client’s genitals.

Findings of Professional Misconduct

[19] As a result of its findings, the Committee found the appellant to have engaged in sexual abuse of the client through behaviour and touching of a sexual nature, under clause 51(1)(b.1) of the Code. Specifically, the Chair held that moving the underwear, and touching the complainant’s buttocks and upper thigh was not clinical in nature appropriate to the service provided.

[20] The Panel found that the non-consensual touching that led to a finding of sexual abuse also led to a finding of physical abuse, an act of misconduct under s. 26, paragraph 8 of the Massage Therapy Regulation.

[21] Last, the Committee found that the appellant’s conduct breached three published standards: the preventing sexual abuse standard, the consent standard, and the treatment protocol standard. It made a finding of professional misconduct under s. 26, paragraph 44 of the Massage Therapy Regulation and found the appellant liable for professional misconduct under s. 51(1)(b.1) of the Code. The Committee then made an order immediately suspending the appellant’s licence to practice massage therapy under s. 51(4.2)(c) of the Code.

GROUNDS OF THE APPEAL

[22] The appellant contends that the Panel:

i. erred by assessing the complainant’s credibility without properly factoring in significant negative credibility findings they made against her.

ii. misapprehended the evidence about whether the complainant requested a glute massage.

iii. delivered inadequate reasons for its decision.

COURT’S JURISDICTION and STANDARD OF REVIEW

[23] The Divisional Court has jurisdiction to hear appeals on both questions of law and fact made from decisions of a panel of the College of Massage Therapists of Ontario Discipline Committee under s. 70 of the Health Professions Procedural Code.

[24] The standard of review for a finding of fact or a finding of mixed fact and law is “palpable and overriding error”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, at paras. 10 and 29.

i. Credibility Determinations

[25] When making findings of fact in a workplace investigation, it is crucial for fact finders to assess the credibility of witnesses in the context of the evidence as a whole. Importantly, a finding of a lack of credibility in one aspect of a witness’s testimony does not automatically render the entirety of their evidence as non-credible. However, where a witness’ testimony is found to contain significant negative credibility markers, that evidence, assessed in light of all the other evidence in the case, may not render clear, convincing, and cogent evidence -enough to satisfy proof on a balance of probabilities.

[26] In Aslam v Ontario College of Pharmacists 2023 ONSC 2549 [Aslam], the Ontario Divisional Court (the “Court”) overturned a finding of professional misconduct against a pharmacist, stating that the assessment of the complainant’s credibility was flawed.

[27] The appellant appealed the decision from the Discipline Committee of the Ontario College of Pharmacists which found him guilty of professional misconduct. The complainant had alleged that the appellant sexually harassed and assaulted her.

[28] The Committee accepted parts of the complainant’s evidence and found the appellant guilty of misconduct in relation to two of seven alleged incidents:

• an incident where the appellant attempted to grab the complainant’s breast, reach into her pants and shirt, and placed her hand on his groin area; and
• unwelcome touching and advances towards the complainant on various occasions.

[29] The Committee dismissed the remaining allegations because the complainant’s evidence was not found reliable enough to support a finding of guilt. It also found inconsistencies in the complainant’s testimony regarding certain allegations, noting that she had previously made unsubstantiated allegations of sexual misconduct against other employees at the store where she worked.

[30] The decision was challenged on several grounds, including that the Committee’s assessment of the complainant’s credibility and reliability.

[31] The Court agreed and held that, although the Committee correctly stated the legal principles for assessing the credibility of witnesses, it failed to consider important pieces of evidence that could significantly impact the overall credibility and reliability of the complainant. The Court noted, at para. 14, that the Committee compartmentalized the evidence charge by charge and failed to consider it as a whole when assessing the complainant’s reliability regarding the charges of misconduct. The Court emphasized that any concerns about the complainant’s reliability should have been viewed in the context of her reliability as a whole, rather than being limited to one particular incident at a time.

[32] That is what has happened here.

[33] The civil standard of proof is a balance of probabilities: F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, at para. 40. This means that when reaching a factual conclusion in a civil case one must “decide whether it is more likely than not that the event occurred” (para. 44). This standard applies at the trial/merits level.

[34] In F.H., the Supreme Court concluded, at para. 46, that “… evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test”. It further noted, at para. 31.), that

In Ontario Professional Discipline cases, the balance of probabilities requires that proof be “clear and convincing and based upon cogent evidence” (see Heath v. College of Physicians & Surgeons (Ontario) (1997), 6 Admin. L.R. (3d) 304 (Ont. Ct. (Gen. Div.)), at para. 53).

[35] In Stefanov v College of Massage Therapists of Ontario, 2016 ONSC 848 (Div. Ct.), a massage therapist was found to have breached a standard of practice of the profession, engaged in sexual abuse of a patient and engaged in conduct or performed an act relevant to the practice of the profession that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional. The Divisional Court held that, in cases like this, the clear, convincing, and cogent evidence requirement is:

particularly important in this case because sexual abuse is one of the most significant and serious findings that the Panel can make against a member. Given the consequences of such a finding, the Panel is required to act with care and caution in assessing and weighing all the evidence. In doing so, the Panel must ensure that the evidence is of such a quality and quantity to justify a finding of sexual abuse (Re Bernstein and College of Physicians and Surgeons of Ontario (1977), 15 O.R. (2d) 447 (Div. Ct.), at pp. 486-488) [emphasis added].

[36] Stefanov was decided on the reasonableness standard, not on appellate standards of review. However, the case still discusses the applicable approach to weighing evidence in the same context as this case.

[37] The standard of review for a finding of fact or a finding of mixed fact and law in a statutory appeal is “palpable and overriding error” (Housen , at paras. 10 and 29). This is a deferential standard. Where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent a palpable and overriding error (para. 36).

ANALYSIS

[38] The evidence in this case, on which the Tribunal applied the balance of probabilities standard, did not meet the clear, convincing, and based upon cogent evidence standard. The Tribunal relied on the complainant’s evidence and found it credible despite their significant negative credibility findings against her in relation to the “added complaints” she made to the Tribunal Investigator after the police refused to charge the appellant with her original allegations. And even though the Panel found that her evidence was not of a “quality and quantity to justify a finding of sexual abuse” for those added allegations, they failed to go further and assess her credibility as a whole in relation to all the allegations against the appellant.

[39] Where a trier of fact finds significant inconsistencies in the evidence of a witness and rejects the witness’s evidence on an issue, it is incumbent upon it to consider how the inconsistencies and rejection affect the witness’s overall credibility and reliability (Stefanov at para. 67). The trier must not place evidence on each allegation in separate silos; it must consider the totality of the evidence in light of any inconsistencies (F.H. v. McDougall at para. 58).

[40] The Panel found that the complainant’s testimony about whether the appellant touched her vagina was inconsistent with several prior statements and found her evidence on this issue to be unreliable and not credible. The complainant attempted to explain the inconsistencies by stating that she did not inform the police that the appellant touched her vagina because “[t]his was, is a very traumatic time and my brain must have blocked out this piece of -- the part where he touched my vagina during the initial stages of reporting.” It had only been when the College investigator asked the complainant very detailed and specific questions that she recalled that the appellant touched her vagina, even though she had also been asked by the interviewing police officer whether Mr. Outram had touched her vagina.

[41] The Panel rejected that explanation. They found her evidence unreliable because she had not claimed that the appellant touched her vagina in her voice note to her friend, her statement to police, and in her initial complaint to the College. The Panel found her evidence was not credible because it was implausible. Due to these serious issues, the Panel dismissed the allegation about whether the appellant touched the complainant’s vagina.

[42] Despite finding the evidence inconsistent and implausible, the Panel did not then properly go on to consider how these adverse findings affected the complainant’s overall honesty and reliability. Rather, they merely used the finding to determine that the two added allegations that the appellant exposed the client’s genitals, and/or touched her genitals were not made out.

[43] This Court found that the Discipline Committee of the College of Massage Therapists of Ontario made the same error in Stefanov. It found that the Discipline Committee should have considered the impact of the evidence they did not accept on the complainant’s overall reliability when it wrote, at para. 105:

These were serious allegations before the Panel that were not proven by the College. The Panel viewed DH as mistaken in what she thought happened. If DH could be mistaken about these serious allegations, could she be mistaken about the rest of the allegations? The Panel never considered this possibility in the reasons. The Panel’s finding that Mr. Stefanov did not commit these particular allegations ought to have been a consideration in the overall reliability of the evidence of DH and Mr. Stefanov, and it was not.

[44] The Court found the Discipline Committee’s analysis of the complainant’s evidence was “flawed and incomplete”, and that they failed to do a proper analysis of the complainant’s reliability (para. 83).

[45] Similarly, this Court found, in Karkanis v. The College of Physicians and Surgeons of Ontario, 2014 ONSC 7018 (Div, Ct.) at para 57, that the Discipline Committee had erred by not considering how the inconsistencies in the complainant’s evidence affected whether to believe the rest of her evidence. The Divisional Court set out that: “[i]t is a matter of common sense that, when a witness says one thing at a hearing, but has said something quite different on an earlier occasion, the fact that the witness has given different versions may be important in deciding whether, or how much, to believe of, and rely upon, the witness’ evidence”.

[46] Here, the Panel rejected the allegations that the appellant touched the complainant’s vagina on the basis that her evidence on the issue was unreliable and not credible but did not consider how that impacted her overall reliability and credibility. Rather, they only addressed how the inconsistency affected the complainant’s credibility about the individual allegation that the appellant touched her vagina.

[47] The Committee was alive to the fact that the central issue in the case was the credibility and reliability of the witnesses but accepted the flawed evidence of the complainant. It failed to address how a major inconsistency and implausibility affected her overall credibility and reliability, This is a palpable and overriding error.

[48] The problems in the complainant’s testimony were material to her evidence and related to all of the allegations in the Notice of Hearing. Given that the Panel accepted the allegations because they found the complainant credible, they erred. A correct analysis of the complainant’s credibility in this matter would have shown her to be significantly less credible and far from giving clear, convincing and cogent evidence.

[49] As a result of their error, their findings of misconduct were wrong, and the decision cannot be supported.

[50] It is not necessary for this Court to deal with the second and third grounds of appeal. In fact, they involve the same issue of unsupportable findings of fact by the Tribunal which led it into error.

DISPOSITION

[51] The appeal is granted, and the Committee’s decision is set aside.

[52] In Pourshian v. Walt Disney Co., 2021 ONSC 4840 (Div. Ct.), at para. 38, citing Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634, at para. 92, the Divisional Court outlined the factors to consider when deciding not to remit a case for re-hearing. Specifically:

… in circumstances where the appellate court has a complete record, the final resolution of the dispute has already been delayed and there is no special advantage in remitting the matter back to the court in first instance, it will be appropriate for the appellate court to finally determine the issues between the parties…

[53] This Court has a complete record to make a final determination. This discipline process has been going on for over two years, with the incident at issue occurring nearly five years ago. There is no special advantage in remitting the matter to the Tribunal, especially since the conclusion of any re-hearing should be the same disposition as set out here.

COSTS

[54] Upon agreement of the parties, the Respondent shall pay costs to the Appellant in the amount of $8,000 inclusive of disbursements, forthwith.

McWatt A.C.J.S.C.

Sachs J.

Faieta J.

Released: July 16, 2025