Stefanov v. College of Massage Therapists (Ont.), 2016 ONSC 848

• Judge: Aitken, Swinton and Horkins, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: January 11, 2016
• Jurisdiction: Ontario
• Citations: 2016 ONSC 848;(2016), 345 O.A.C. 265 (DC)

Stefanov v. College of Massage Therapists (2016), 345 O.A.C. 265 (DC)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. FE.014

Stefan Stefanov (appellant) v. College of Massage Therapists of Ontario (respondent)

(473/14; 2016 ONSC 848)

Indexed As: Stefanov v. College of Massage Therapists (Ont.)

Court of Ontario

Superior Court of Justice

Divisional Court

Aitken, Swinton and Horkins, JJ.

February 10, 2016.

Summary:

A Discipline Committee Panel of the College of Massage Therapists of Ontario found that Stefanov had 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 Panel ordered, among other things, that Stefanov's certificate of registration be suspended for 12 months. Stefanov appealed.

The Ontario Divisional Court held that the Panel's reasons were so flawed that it produced an unreasonable result. The court allowed the appeal and referred the matter back for a new hearing before a differently constituted panel of the Discipline Committee.

Administrative Law - Topic 546

The hearing and decision - Decisions of the tribunal - Reasons for decision - General - [See Administrative Law - Topic 625 ].

Administrative Law - Topic 625

The hearing and decision - Evidence and proof - Credibility - A Discipline Committee Panel of the College of Massage Therapists of Ontario found that Stefanov had 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 - Stefanov appealed - The Ontario Divisional Court held that the Panel's reasons were so flawed that it produced an unreasonable result - The court referred the matter back for a new hearing before a differently constituted panel of the Discipline Committee - The court stated that "This was a classic credibility case. Mr. Stefanov consistently denied DH's allegations against him. The allegations either happened or they did not. The Panel had to be persuaded on a balance of probabilities that the wrongdoing alleged by DH actually occurred. The credibility of DH was critical to the outcome. The Panel found that DH was 'very credible' and Mr. Stefanov was not. They found her version of the events 'to be more probable'. The pathway to this conclusion was incomplete, not transparent and unintelligible. Further, there was minimal consideration of Mr. Stefanov's evidence and an unreasonable explanation given as to why his evidence was rejected. Credibility assessments have two constituent elements: honesty and reliability ... The Panel may have found DH to be honest, but they failed to do a proper analysis as to whether her evidence was reliable. As a result, their credibility assessment of DH was flawed and incomplete. ... The reasons reveal the flawed nature of the Panel's determination that DH was credible and Mr. Stefanov was not. First, the Panel gave sparse consideration to DH's inability to recall details and no consideration to the inconsistencies in her evidence. Second, having rejected two significant allegations (that Mr. Stefanov exposed DH's bikini and vulva areas and that he looked under the sheets at her genitalia), the Panel did not consider the relevance of this rejection in their credibility assessment. Lastly, the Panel gave minimal consideration to Mr. Stefanov's evidence and unfairly characterized and scrutinized his evidence that they did acknowledge." - See paragraphs 62 to 67.

Evidence - Topic 1157

Relevant facts - Relevance and materiality - Facts relevant to the issue - Subsequent conduct - A Discipline Committee Panel of the College of Massage Therapists of Ontario found that Stefanov had 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 Panel ordered, among other things, that Stefanov's certificate of registration be suspended for 12 months - Stefanov appealed - The Ontario Divisional Court allowed the appeal and referred the matter back for a new hearing - The court took issue with the Panel's finding that, because DH was very upset after her massage, this supported her testimony - The court stated that "The Panel failed to appreciate that after-the-fact conduct can only provide circumstantial evidence that an event occurred, where there are no other explanations for the conduct. ... In this case, DH's emotional state could have been explained by her honest, but mistaken belief that her vulva had been exposed through inappropriate draping at which time Mr. Stefanov had massaged her inner thighs - two allegations which the Panel rejected. DH's emotional state could also have been explained by her mistaken perception that Mr. Stefanov had tried to look under the sheets at her genitalia - another allegation which the Panel rejected. In that DH's emotional state could be explained by mistaken perceptions on DH's part, that same emotional state cannot be used, as the Panel did, as proof that other allegations actually happened." - See paragraphs 100 to 102.

Professional Occupations - Topic 213

Boards and tribunals - Domestic tribunals - Reasons for decisions - [See Administrative Law - Topic 625 ].

Professional Occupations - Topic 5466

Physiotherapists and physical or massage therapists - Disciplinary proceedings - Appeals - [See Administrative Law - Topic 625 ].

Professional Occupations - Topic 5468

Physiotherapists and physical or massage therapists - Disciplinary proceedings - Evidence - [See Administrative Law - Topic 625 and Evidence - Topic 1157 ].

Cases Noticed:

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 60].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 61].

F.H. v. McDougall (2008), 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 62].

Bernstein v. College of Physicians and Surgeons (Ont.) (1977), 15 O.R.(2d) 447 (Div. Ct.), refd to. [para. 62].

Karkanis v. College of Physicians and Surgeons (Ont.) (2014), 329 O.A.C. 114; 2014 ONSC 7018 (Div. Ct.), refd to. [para. 65].

R. v. Lindsay (S.P.) et al., [2005] O.T.C. 583 (Sup. Ct.), refd to. [para. 101].

Counsel:

Michael B. Fraleigh and Martine Garland, for the appellant;

Jaan Lilles and Ian MacLeod, for the respondent.

This appeal was heard at Toronto, Ontario, on January 11, 2016, by Aitken, Swinton and Horkins, JJ., of the Ontario Divisional Court. Horkins, J., delivered the following decision for the court on February 10, 2016.