Reasons for Decision Save the Day

Disciplinary tribunals are often hesitant to give extensive reasons, especially for credibility findings. Reasons are difficult to write at the best of times, especially for tribunal members who are not legally trained. Tribunal members may worry that an errant phrase could create a ground of appeal. However, brief reasons often heighten scrutiny by appellate courts. Also, detailed reasons, even though they offer more to criticize, can reassure a reviewing court that deference ought to be extended to the tribunal. Aboujamra v College of Physicians and Surgeons of Ontario, 2023 ONSC 3344 (CanLII) is such a case.

In that case a patient complained that the registrant, a physician, had made sexual comments and engaged in inappropriate sexual touching over a three-year period. The registrant denied the conduct, with one less serious exception (calling the patient “pretty” or “beautiful” in the waiting area). The registrant challenged the findings against him on many grounds including that: the patient had made incremental disclosure, the tribunal rejected his explanation using speculative reasoning, the tribunal characterized his written response to the regulator as a sexist personal attack on the patient, the tribunal misapprehended certain evidence, and the tribunal applied uneven scrutiny to the evidence of the registrant as compared to its review of the evidence of the patient.

The Court began by reviewing and summarizing the reasons of the disciplinary tribunal. It noted that the reasons were detailed, addressed concerns about the patient’s evidence (e.g., inconsistencies, incremental disclosure) and the arguments raised by the registrant (e.g., the patient not going to another physician, the patient’s allegedly aggressive demeanour during visits). The Court also noted that the disciplinary tribunal gave detailed reasons why it found the patient to be credible on the core allegations and gave nine reasons why it did not find the registrant to be credible.

In particular, the Court found:

  • The reasons explained why the registrant’s explanations (e.g., chaperone being present for some procedures, medical indications for touching the patient’s breasts and genitals) were not accepted.
  • The reasons explained in detail why the patient’s incremental disclosure and inconsistencies, while of concern, did not fundamentally undermine her credibility.
  • The reasons did not mischaracterize the registrant’s response to the regulator as calculated to predispose the regulator against the patient.
  • The Court said: “… this is not a case where the Tribunal gave generic reasons without any explanation for their credibility assessment in the face of a defendant’s blanket denial of allegations. The Tribunal carefully and specifically considered the evidence of the Patient and the Appellant, including any inconsistencies or other evidence that it considered material. It is not a fair portrayal of the Tribunal’s credibility assessment of the Appellant to say that it was focused on the Appellant’s comments about the Patient’s general behaviour at his office.”
  • In terms of uneven scrutiny of the evidence of the patient compared to the registrant, the Court found that this argument ignored the detailed and nuanced credibility findings made by the disciplinary tribunal. The Court accepted that uneven scrutiny is “notoriously difficult to prove”. The Court also said: “To demonstrate uneven scrutiny, an appellant must identify something clear in the reasons or the record indicating that a different standard was applied, as well as something sufficiently significant, such as rejecting the appellant’s testimony, for speculative reasons, to displace the deference due to the trier’s credibility assessments. There is no palpable or overriding error. The Tribunal expressly adverted to the correct legal principles and there is nothing in the record that suggests it did not correctly apply those principles.”

The outcome might well have been different if the disciplinary tribunal had given only brief and generic reasons for its findings.

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