Of Trees and Forests

Since the decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653, there has been a shift in the way that courts review credibility findings made by discipline hearing panels. While overall there may not have been an increase in the frequency of court interventions (see: Has Vavilov Made a Difference?), courts have indeed focused more closely on the reasons for decision of discipline panels.

A recent example of this is Okafor v. College of Physicians and Surgeons of Ontario, 2023 ONSC 6332 (CanLII), where a physician was found to have engaged in sexual abuse of a patient. As in so many of these cases, the key evidence was given by two witnesses, the patient and the physician. The Court, in some detail, examined both the specific credibility concerns about the testimony of the patient (i.e., the trees) and the overall assessment of credibility of the evidence (i.e., the forest). The Court found no palpable and overriding error because the reasons of the discipline panel addressed all these issues.

In terms of the trees, there were three concerns about the evidence of the patient. The patient was inconsistent as to the location and name of the hotel where the first sexual encounter occurred, the patient said that they had taken a semen sample which was then lost, and the patient said that they had recorded a threatening call by the physician which recording was no longer available. The patient was cross-examined extensively on those issues and their explanations for them. The Court, while finding those issues challenging, held that the discipline panel had specifically addressed them and explained why it largely accepted the patient’s explanations and concluded that they did not materially detract from the evidence on the core issue of whether there was a concurrent sexual and treating relationship.

As for the forest, the Court noted in particular the approach taken by the hearing panel:

The Committee stated that its task was not to simply accept the evidence of Patient A or the Appellant. The Committee’s stated task was to determine “whether, on the totality of the evidence, viewed as a whole, the College has proved its case, or proven a particular fact, on the balance of probabilities based on clear, cogent and convincing evidence.”

The Court also referred to various other pieces of evidence that, overall, were more consistent with the patient’s version of events than that of the physician. For example, there were many phone conversations between them noted in the telephone records, a deleted chart entry at a key time in the narrative that was intentionally not disclosed to the regulator when asked, and apparent attempts to cover up the relationship including investing in the patient’s son’s business venture around the time of the investigation.

The Court downplayed the value of the “uneven scrutiny” critique of credibility findings. Absent obvious cases, this ground of appeal generally is an attempt to invite the Court to reweigh the evidence that the hearing panel has already evaluated. The Court said:

Claims of uneven scrutiny should not be a meritless opportunity to re-try a case. There must be a demonstration of palpable and overriding error. There was nothing in the reasons or the record that made it clear that the Committee had actually applied different standards in assessing the evidence of the Appellant and Patient A.

Discipline panels should, in their reasons for decision in credibility cases, address any specific concerns about the credibility of the witnesses and then explain in a global fashion why it concludes that the allegations, in light of the credibility concerns, have, or have not, been proved.



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