Courts give deference to the credibility findings of discipline panels and will only interfere where there is palpable and overriding error. One form of palpable and overriding error is failing to mention, in the reasons for decision, significant issues with respect to the credibility of the key witnesses relied upon.
In Aslam v Ontario College of Pharmacists, 2023 ONSC 2549 (CanLII) the registrant (a pharmacist) was found to have engaged in sexual harassment, including attempted sexual touching, of an employee. The Court said:
The Committee stated correctly the legal principles involved in assessing the credibility of witnesses. The Committee was entitled to believe all, part or none of the complainant’s evidence. It was not obliged to mention every item of evidence in its reasons. But the Committee made no reference to several important aspects of the evidence that had the potential to weigh heavily on the overall credibility and reliability of the complainant.
In particular, the Court was troubled that the hearing panel had not addressed several concerns about the complainant’s evidence.
Viewed as a whole the complainant’s evidence was self-contradictory and arguably bizarre at times. It was also contradicted by another employee whose evidence was accepted and by video surveillance evidence. She alleged that the [pharmacist] had sexually assaulted another employee, an allegation that the other employee denied occurred. She had a history of making serious allegations against fellow employees, allegations that were never substantiated. Rather than deal with these issues, it appears that the Committee compartmentalized the evidence charge by charge and omitted to consider it as a whole when determining the reliability of the complainant on the charges on which it found misconduct. That was an error. The concerns about the complainant’s reliability were concerns that went to her reliability as a whole, not just to her reliability when it came to one particular incident.
Interestingly, the Court sent the matter back to a differently constituted panel for a rehearing. This disposition indicates that the evidence was not necessarily inconsistent with a finding. Rather, the concern was that the reasons for decision did not adequately address the serious concerns about the credibility of the key witness.
On a separate point, the Court made short shrift of the appeal against the finding of failing to report the related criminal charges.
The appellant testified that he did not report the criminal proceedings because he did not know that he had to do so within 30 days of their institution. He thought that he had until his next annual filing, at which time he did report them. The Committee did not believe him. In any event, his explanation did not amount to a defence. It was his duty to know the rule. His omission amounts to professional misconduct.
However, the global sanction needed to be reconsidered in light of the reversal of the other findings.