Oct 16, 2020

The Divisional Court described the case of Ontario (College of Physicians and Surgeons of Ontario) v Kunynetz, 2019 ONSC 4300, <http://canlii.ca/t/j1m2m> as one of the most complex discipline cases it has ever reviewed. The Court also observed that with the 2017 expansion of the scope of mandatory revocation for sexual abuse, motions and challenges to evidence are likely to become more frequent in such cases. The Court suggested that regulators should develop policies and procedures for hearing panel selection and scheduling of hearings to ensure that they do not extend unduly over a period of years, like this case did.

The Court undertook a detailed review of the credibility findings of the discipline panel on the main finding of sexual abuse. The Court held that the credibility findings of the discipline panel did not provide “an intelligible and reasonable line of analysis as to the credibility and reliability of the evidence” because of a number of omissions including:

1. Failing to explain why the practitioner’s evidence of what he would have done was rejected (the practitioner acknowledged he had no individual recollection of the incident).

2. Treating the practitioner and complainant differently regarding the way they refreshed their memories from previous statements without explaining why.

3. Being inconsistent in its consideration of discrepancies and inconsistencies of the practitioner and the complainant in discrepancies of comparable significance.

4. Failing to give sufficient weight to the credibility of the practitioner even though his evidence coincided in relevant ways with that of the complainant.

5. Failing to explain why the panel accepted some of the practitioner’s evidence but rejected other aspects of it.

6. Focussing on one example where the practitioner changed his testimony without placing that in the context of his days of testimony on other matters without panel comment.

The Divisional Court also found that the regulator had reversed the burden of proof by failing to establish (by expert evidence, it was suggested) that there was no clinical justification for the touching of the patient’s breasts.

The Court also found that “the decision to find that the Appellant engaged in disgraceful, dishonourable or unprofessional conduct by allowing his fat pad to come into contact with the body of a patient, not accompanied by a warning, apology or excuse, is not reasonable” because he was caught by surprise by that allegation. It had not been part of the notice of hearing, particulars, cross-examination at the hearing or even closing argument.

The Court provided its non-binding view on the retrospectivity of new grounds for the mandatory revocation of a certificate of registration. In particular, prior to the May 30, 2017 amendments, touching a patient’s breasts without a clinical basis had no mandatory minimum penalty. On or after May 30, 2017, revocation was mandatory for such touching. The discipline panel concluded that given the public interest purposes of the amendment, the mandatory penalty applied to such touching that occurred before the amendments. The Court held that this issue was one of general law, and that deference should not be awarded to the interpretation of the amendments by the discipline panel. If the Court had not set aside the finding in respect of the practitioner’s touching of the patient’s breasts, it would have held that the mandatory revocation amendments did not apply to this case.

The Court substituted the decision on penalty for the two less serious allegations that were upheld by ordering a retroactive suspension, which the practitioner served from the date of an earlier interim order up to the date of the Court’s order.

In a footnote the Divisional Court also raised concerns about some of the rulings not being signed by all of the panel members. The Court suggested that this could create an issue in future cases as a decision is not final until signed by all participating panel members.