In College of Physiotherapists of Ontario v. Boon, 2018 ONSC 3463, http://canlii.ca/t/hsgbg, the disciplinary tribunal had to assess the credibility of the practitioner for allegations related to the intimate touching of a patient. While the tribunal concluded the touching was not of a sexual nature, it still found the touching to be unprofessional. In making its findings, the tribunal found the practitioner’s evidence lacked plausibility because it was physically difficult to do the procedures the practitioner described in his evidence. In part this lack of plausibility was based on an attempt by the tribunal to re-enact the procedures in the deliberation room.
The primary ground of appeal by the practitioner was that this private re-enactment by the tribunal amounted to the creation of additional evidence in the absence of the parties and was thus a breach of the principles of procedural fairness. The Divisional Court disagreed. It found that the re-enactment was simply a method of assessing the detailed evidence given by the practitioner in his own evidence. There was a basis in the evidence to doubt the plausibility of the practitioner’s evidence without the re-enactment. In addition, the re-enactment was an extension of what counsel for the practitioner had already requested of the tribunal during a break in the hearing: the tribunal was asked to hold a book that the practitioner testified had been shown to the patient without it touching the patient (contrary to the patient’s evidence).
On the issue of sanction, while the Court was troubled by the tribunal listing the lack of remorse by the practitioner as an aggravating factor (rather than being the absence of a mitigating factor), the Court upheld the order as reasonable, particularly where the tribunal had specifically affirmed the practitioner’s right to make full answer and defence.