Ahmed v College of Registered Nurses Date:, 2017 MBCA 121

Citation: Ahmed v College of Registered Nurses Date: 20171213 of Manitoba, 2017 MBCA 121 Dockets: AI16-30-08637; AI16-30-08705 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice William J. Burnett Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN : TOUSIF AHMED ) M. H. Toews ) for the Appellant ) Appellant ) W. G. Haight and ) J. M.

Katz - and - ) for the Respondent ) COLLEGE OF REGISTERED NURSES OF ) Appeal heard: MANITOBA ) September 25, 2017 ) ) Judgment delivered: Respondent ) December 13, 2017 BURNETT JA [ 1 ] The appellant appeals the decision of a discipline committee (the Discipline Committee) of the respondent (the College). [ 2 ] The Discipline Committee found the appellant guilty of professional misconduct for sexually assaulting a patient (the complainant) in the course of providing registered nursing care. [ 3 ] The Discipline Committee suspended the appellant’s registration for 18 months and imposed conditions on his registration to take effect when he returns to practice. [ 4 ] As explained below, the Discipline Committee erred when it assessed the credibility of the complainant and its decision was unreasonable, with the result that the appeal is allowed.

Background [ 5 ] On January 19, 2014, the complainant attended at the emergency unit of a Winnipeg hospital. She was feeling ill as a result of injuries sustained in a serious domestic assault. The complainant was examined by the appellant and was eventually released after getting x-rays and being seen by an emergency room physician. Later that day she made a complaint to the hospital that the appellant had inappropriately touched her. The complainant was unhappy with the hospital’s response and subsequently contacted the College and the police. [ 6 ] The Discipline Committee conducted a hearing in March 2016.

The complainant and a nursing expert testified, as well as the appellant. Both the complainant and the appellant were cross-examined at length. Significantly, no other witnesses testified at the hearing. [ 7 ] The complainant testified that during the physical examination by the appellant, he cupped her breasts and touched her labia. The nursing expert confirmed that, based on the complainant’s entry complaints, it would not be appropriate for a registered nurse conducting a nursing assessment and examination to touch a patient’s breasts or labia. [ 8 ] The appellant flatly denied any misconduct.

The Discipline Committee’s Decisions [ 9 ] The Discipline Committee issued two sets of reasons, one in relation to the alleged misconduct of the appellant (the conduct decision) and the other in relation to penalty (the penalty decision). [ 10 ] In the conduct decision, the Discipline Committee reviewed the evidence provided at the hearing and assessed the credibility of the complainant and the appellant. [ 11 ] At the beginning of its analysis, the Discipline Committee observed: This is a case where, on the essential issues, there is conflicting testimony.

In this case, the allegations made by [the complainant] are altogether denied by the [appellant]. The [Discipline Committee] must decide whether, on a balance of probabilities, these events occurred.

This requires an assessment of the credibility of both parties. [ 12 ] The Discipline Committee addressed numerous alleged inconsistencies in the complainant’s evidence and, for the most part, it concluded that such inconsistencies were either minor or immaterial: The [Discipline Committee] agrees that [the complainant] clearly had difficulty recalling all of the details of the events in question, and found her reluctance to accept that she could not recall or might be wrong to be somewhat troubling .

However, for all the reasons set out above, the [Discipline Committee] does not find the matters that she could not recall to be material. The [Discipline Committee] finds that [the complainant]’s testimony about the assault was consistent throughout, with only minor or immaterial errors . Further, the [Discipline Committee] finds that although [the complainant] occasionally became emotional during her testimony, she was defending herself under rigorous cross-examination.

The [Discipline Committee] concludes that [the complainant]’s demeanour does not suggest she was being intentionally untruthful . [emphasis added] [ 13 ] The Discipline Committee then made its assessment of the complainant’s credibility: As noted above, the [Discipline Committee] is satisfied that [the complainant] did not intentionally mislead and to the extent that there were inconsistencies in her testimony it is generally satisfied with her explanation.

In considering [the complainant]’s testimony as a whole and the probability that the alleged assault actually occurred, the [Discipline Committee] notes that there was no dispute that [the complainant] reported the alleged assault to her girlfriend on the drive home and phoned the VGH Emergency Unit shortly after she returned home .

She testified as follows: • She asked to speak with the nurse at the front desk • She described the recent examination that she had undergone • She asked if the touching of her breasts and labia were normal procedure This is consistent with [the complainant]’s testimony that she was unfamiliar with proper procedure, she was confused and she was processing the information. [The complainant] further testified that she was referred to the charge nurse who was a male nurse with an accent. [The complainant] was concerned that she had been referred to the [appellant] and asked to speak to the female who was just on the phone.

The phone was handed back to the female who reassured [the complainant] that the charge nurse was someone other than the [appellant]. This supports [the complainant]’s testimony that she had developed a concern about the way in which she had been assessed by the [appellant].

[The complainant] was then referred back to the charge nurse, explained what happened during the assessment by the [appellant] and asked whether that was normal procedure. She was told it was not normal procedure and was given phone numbers for Patient Relations and the Nursing Manager and told she would be contacted in the morning. All of this suggests that something inappropriate occurred during the examination.

The next morning [the complainant] spoke with a representative of Patient Relations and with the Nursing Manager and was not satisfied with the information received from the Nursing Manager. [The complainant] testified that she then contacted the College and the Winnipeg Police Service to report the assault. This evidence as to what happened the morning after the alleged assault was not challenged and is consistent with what one would reasonably expect in the circumstances.

In considering [the complainant]’s evidence as a whole, the [Discipline Committee] finds her to be credible. [emphasis added] [ 14 ] The Discipline Committee then assessed the appellant’s credibility, and, in particular, two aspects of his evidence, namely his statement to police that the complainant was exhibiting symptoms of post-traumatic stress disorder and his inability to recall whether the complainant was wearing a bra.

The Discipline Committee did not accept the appellant’s testimony on either point and was satisfied that the appellant intentionally misled the police respecting the complainant’s psychosocial status. [ 15 ] The Discipline Committee concluded: This is a he-said, she-said situation. There is no corroborating evidence for either [the complainant]’s or the [appellant]’s positions. Accordingly, the decision depends on whether the [Discipline Committee] believes that [the complainant]’s version of the allegations is probably true, or whether the [appellant]’s version is probably true. Both versions cannot be true.

In this case, there were many small inconsistencies in [the complainant]’s testimony. Without recounting them all again, suffice it to say that none of these inconsistencies was material to the matters at issue. Throughout her testimony, [the complainant] was consistent about her allegations of the sexual assault. She reported her concerns within hours of returning home. The [Discipline Committee] is satisfied that [the complainant]’s evidence is credible. On the other hand, the [Discipline Committee] found two significant problems with the [appellant]’s testimony.

The first was his statement to the police that [the complainant] was exhibiting symptoms of post-traumatic stress disorder when he saw her on January 19 th , 2014. The only conclusion one can reach is that the [appellant] was attempting to lead the police to believe that [the complainant] falsely made the allegations against him as a result of her fragile mental state. The second problem with the [appellant]’s evidence is his testimony that he cannot recall whether [the complainant] was wearing a bra during his examination of her.

For the reasons outlined previously, the [Discipline Committee] does not find the [appellant]’s evidence on this point to be credible. The [appellant]’s memory on these two points seems to be very selective, casting doubt on his credibility as a whole.

As a result, the [Discipline Committee] finds that, on the balance of probabilities, the Investigative Committee has met its onus that it is more probable than not that the sexual assault alleged by [the complainant] against the [appellant] occurred, and that the [appellant] is therefore guilty of professional misconduct as alleged. [emphasis added] Issues and Standard of Review

[ 16 ] The appellant raises two issues: 1. Were the credibility findings made by the Discipline Committee reasonable? 2. Was the penalty imposed reasonable? [ 17 ] Given my conclusion regarding the first issue, it is not necessary to consider the second issue and the penalty decision. [ 18 ] The standard of review applicable to the first issue was described by the Court in Stefanov v College of Massage Therapists of Ontario , 2016 ONSC 848 (Div Ct) (at paras 59-61 ): The standard of review on this appeal is reasonableness.

I acknowledge that the findings of the Panel are entitled to a high degree of deference, especially when those findings rest on an assessment of credibility. I also recognize that a reviewing court should not minutely dissect the reasons of a tribunal or retry the case. The question is whether the reasons of the tribunal support the decision after a fair examination. In Law Society of New Brunswick v.

Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247 , the Supreme Court of Canada put the question as follows, where McLachlin C.J.C. said, at para. 47: The content of a standard of review is essentially the question that a court must ask when reviewing an administrative decision. The standard of reasonableness basically involves asking “After a somewhat probing examination, can the reasons given, when taken as a whole, support the decision?” In Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , Bastarache and LeBel JJ. expressed the standard in this way, at para. 47: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

The Appellant’s Position [ 19 ] The appellant argues that the Discipline Committee made findings of credibility that were inconsistent with the evidence, failed to analyse whether the complainant’s evidence was both honest and reliable, and unfairly scrutinized his evidence. [ 20 ] The appellant submits that the complainant’s testimony at the discipline hearing was different than her earlier testimony at the criminal trial, that the complainant’s ability to recollect events improved and faded over time, depending on the issue, and that the numerous inconsistencies and discrepancies in the testimony of the complainant demonstrate a lack of credibility when taken together and considered in context. [ 21 ] The appellant says that the Discipline Committee erred when it relied upon the complainant’s prior consistent statements in making its credibility assessments.

According to the appellant, the complainant’s prior consistent statements were not simply used as part of the narrative of events, but were in fact used by the Discipline Committee to corroborate the complainant’s oral testimony. Relying upon C(

J) v College of Physicians & Surgeons (British Columbia) , 1990 CarswellBC 7 (CA) , the appellant says that the fact that an individual has recounted her story to other individuals is not corroborative of her evidence and cannot be relied upon to confirm its truth. [ 22 ] Finally, the appellant says that the evidence was not sufficiently clear, convincing and cogent to support the finding of professional misconduct.

The Respondent’s Position [ 23 ] The respondent says that the Discipline Committee addressed most, if not all, of the inconsistencies in the complainant’s evidence, it assessed the impact of this evidence on her credibility, and it considered the probability that the alleged assault occurred.

When the Discipline Committee considered the appellant’s credibility, it identified two areas of concern, namely his attempt to discredit the complainant during his police interview and his inability to recall whether the complainant was wearing a bra in light of his ability to accurately recall her symptoms during his police interview. [ 24 ] The respondent submits that decisions of discipline panels which are made up of persons who are not legally trained, ought not to be subject to painstaking scrutiny.

According to the respondent, it is not fatal to a decision that specific mention is not made of certain evidence, nor is it fatal if specific reasons are not given before its rejection.

[25] As to the Discipline Committee’s use of prior consistent statements, the respondent submits that some of the statementsare in fact actions or conduct of the complainant consistent with her allegations. The respondent says that the remaining statements areadmissible as exceptions to the rule against admission of prior consistent statements in that they were highly relevant to an area ofimpeachment advanced by the appellant, they prove the physical, emotional or mental condition of the complainant, or they form part ofthe narrative.

The respondent notes that the Discipline Committee did not find the statements to be corroborative evidence. [26] When assessing the Discipline Committee’s comments that “This supports [the complainant]’s testimony that she haddeveloped a concern about the way in which she had been assessed by the [appellant]” and that “All of this suggests that somethinginappropriate occurred during the examination”, the respondent says that it is important to recall that the appellant put into issue thecomplainant’s reaction to the alleged assault and argued that she did not make an immediate report.

As a result, the complainant’s wordsto and conduct with hospital staff, her friend, the College and the police are relevant. The respondent submits that the DisciplineCommittee’s reference to this evidence was necessary in order to deal with an area of impeachment. In addition, the complainant’sreaction to the male charge nurse was evidence of her mental and emotional condition.

Finally, the respondent argues that the use ofnarrative as an exception to the prior consistent statement rule has been frequently invoked. [27] The respondent says that the Discipline Committee made no error when dealing with the prior consistent statements,and the conduct decision is therefore reasonable and should not be interfered with. In Gale v College of Physicians and Surgeons ofOntario, 2015 ONSC 1981 (Div Ct), the Court summarized the general principles when assessing whether a decision in this context isreasonable.

In particular, the Court noted that reasonableness is a deferential standard; it is concerned with whether the outcome fallswithin a range of possible, acceptable outcomes; a reviewing court should not seize on one or more mistakes or elements of the decisionthat do not affect it as a whole; and a heightened deference is owed to a tribunal’s assessment of credibility. [28] The respondent says that the Discipline Committee carefully considered the credibility of the complainant and theappellant, it did not misapprehend the testimony or fail to consider material parts of the evidence, and it provided cogent reasons for itscredibility findings.

In those circumstances, this Court should not substitute its views for the views of the Discipline Committee. Analysis and Decision [29] The conduct decision, and in particular the finding of professional misconduct, rests on the credibility findings made bythe Discipline Committee.

The Discipline Committee was required to be satisfied that the allegation of professional misconduct wasproved on the balance of probabilities with “clear, convincing and cogent” evidence (see FH v McDougall, 2008 SCC 53 at para 46); itwas not required to assess the evidence in light of the three-step approach discussed in R v W(D), (SCC), [1991] 1 SCR742 (FH at para 86). [30] In assessing credibility, the Discipline Committee was required to pass judgment on both the credibility and reliabilityof the witnesses in relation to the core issue, namely whether a sexual assault occurred (FH at para 58).

The role of the DisciplineCommittee was not simply to decide which version of events was more sincere or whether the appellant was or was not honest in histestimony. [31] The key questions in this appeal are whether the Discipline Committee erred when it assessed the complainant’scredibility and whether its reasons for finding the complainant credible, when subjected to a probing review, satisfy the requirements ofintelligibility, transparency and justification. [32] In my view, the Discipline Committee’s credibility findings were fundamentally flawed in two respects: 1. the Discipline Committee failed to consider the reliability of the complainant’s evidence when it assessed her credibility;and 2. the Discipline Committee used the complainant’s evidence of her prior consistent statements for an improper purpose. [33] The second question was identified after the appeal was heard, and the panel invited the parties to make submissions onthis point.

As was the case in R v Borden, 2017 NSCA 45 (at para 85): [T]he panel decided to follow the protocol set out in R. v. Mian, 2014 SCC 54. It was our unanimous view that, based on a preliminaryreview, there was “good reason to believe” that failure to address these issues would risk an injustice. The record was complete. Noprejudice was identified.

Honesty and Reliability [34] I commence my analysis by emphasizing that credibility findings made by administrative tribunals are entitled tosignificant deference and that, absent error, it is not the function of this Court to reassess such findings. [35] Where there are significant inconsistencies in a witness’s evidence, an administrative tribunal must address both thehonesty and the reliability of that evidence. A failure to do so will undermine the tribunal’s credibility findings and may render thetribunal’s reasons inadequate.

See, for example, K (IF) v College of Physicians and Surgeons of British Columbia (1998), (BC CA), 158 DLR (4th) 330 (BC CA); Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19; Gillis vCouncil for Licensed Practical Nurses, 2004 NLSCTD 96; Venneri v College of Chiropractors (Ontario), 2008 CarswellOnt 3329 (SupCt J (Div Ct)); Law Society of Upper Canada v Neinstein, 2010 ONCA 193; Stefanov; and Dr Noriega v The College of Physicians and

Surgeons of Ontario , 2016 ONSC 924 (Div Ct). [ 36 ] In Karkanis v College of Physicians and Surgeons , 2014 ONSC 7018 (Div Ct), a patient alleged that the appellant physician had sexually abused her during a pelvic examination. The Court described the task of the discipline committee in the following manner (at para 52): This case was a typical clash between two versions of the same events. It is a case that is often referred to as a “she said, he said” type of case. Thus, the Discipline Committee was required to decide between these two competing versions in order to come to their conclusions.

In doing so, the Discipline Committee was required to assess the credibility of the appellant and Ms. B. Credibility assessments have two constituent elements. One relates to the honesty of the witness, that is, the witness’ willingness to speak the truth as s/he believes it to be.

The other relates to the reliability of the witness, that is the witness’ ability to observe, recall and recount the events s/he gives evidence on. [ 37 ] In FH , Rothstein J made it clear that a trier of fact must look to the totality of the evidence to assess the impact of any inconsistencies on the reliability of a witness’s evidence (at paras 57-58): At para. 5 of her reasons, the trial judge had regard for the judgment of Rowles J.A. in R. v.

R.W.B. (1993), 24 B.C.A.C. 1 , at paras. 28- 29 , dealing with the reliability and credibility of witnesses in the case of inconsistencies and an absence of supporting evidence. Although R.W.B. was a criminal case, I, like the trial judge, think the words of Rowles J.A. are apt for the purposes of this case: In this case there were a number of inconsistencies in the complainant’s own evidence and a number of inconsistencies between the complainant’s evidence and the testimony of other witnesses.

While it is true that minor inconsistencies may not diminish the credibility of a witness unduly, a series of inconsistencies may become quite significant and cause the trier of fact to have a reasonable doubt about the reliability of the witness’ evidence. There is no rule as to when, in the face of inconsistency, such doubt may arise but at the least the trier of fact should look to the totality of the inconsistencies in order to assess whether the witness’ evidence is reliable.

This is particularly so when there is no supporting evidence on the central issue , which was the case here. [para. 29] As Rowles J.A. found in the context of the criminal standard of proof, where proof is on a balance of probabilities there is likewise no rule as to when inconsistencies in the evidence of a plaintiff will cause a trial judge to conclude that the plaintiff’s evidence is not credible or reliable.

The trial judge should not consider the plaintiff’s evidence in isolation, but must look at the totality of the evidence to assess the impact of the inconsistencies in that evidence on questions of credibility and reliability pertaining to the core issue in the case. [emphasis added] [ 38 ] In Karkanis , it was argued that the reliability of the complainant’s version of events before a discipline committee was open to very serious question when her evidence was compared to other available evidence, including her own earlier recollections.

The Court agreed, concluding that it did not appear that the discipline committee recognized or properly understood the distinction between honesty and reliability when assessing credibility (at para 53). The Court observed (at para 57): [T]here were a number of contradictions in the evidence that Ms. B. gave before the Discipline Committee and the recollection of the same events that she had earlier given to the respondent along with the independent records.

It is a matter of common sense that, when a witness says one thing at a hearing, but has said something quite different on an earlier occasion, the fact that the witness has given different versions may be important in deciding whether, or how much, to believe of, and rely upon, the witness’ evidence. [ 39 ] In the conduct decision, the Discipline Committee addressed numerous inconsistencies and discrepancies in the complainant’s evidence and concluded that each one was minor or immaterial.

The record reveals that many of the inconsistencies were inconsistencies between what the complainant said at the triage desk, at the criminal trial and/or at the hearing before the Discipline Committee. By way of example, in one instance, relating to her evidence that she wanted her nose x-rayed, there were inconsistencies between what she said on two previous occasions (at triage and at the criminal trial) and in her testimony before the Discipline Committee.

In another instance, relating to whether she took Tylenol on Sunday, the complainant’s evidence at the hearing before the Discipline Committee directly contradicted her evidence at the criminal trial. In yet another instance, relating to the alleged sexual assault, the complainant told the Discipline Committee that the appellant “cupped both my breasts at the same time and then went up to my collarbone.” At the criminal trial the complainant said that he moved to her breasts and “then moved down” and she did not mention the collarbone at all.

When asked if she told the whole truth at the criminal trial, she said “I just didn’t remember it as well as I do now.”

[40] At the hearing before the Discipline Committee the complainant said that her memory had become a lot clearer sincethe criminal trial, that her memory had improved and was getting better with time, and that she had a fabulous memory.

The complainantprovided various reasons as to why she could recall some things better now than at the criminal trial, including that her attention hadbeen drawn to those things during the criminal trial, that she had done nothing but think about the events since the criminal trial, and thatshe was more focussed now than at the criminal trial. [41] It is, of course, one thing to find one or two inconsistencies on peripheral matters to be immaterial; it is quite another tofind a dozen or more inconsistencies to be immaterial without considering whether all of them, taken together, demonstrate an absence ofreliability.

In its conclusion regarding the complainant’s credibility, the Discipline Committee stated that it was “generally satisfied”with the complainant’s explanation about her inconsistencies.

But the Discipline Committee’s assessment of the complainant’scredibility failed to consider all of the inconsistencies and memory problems in light of all the evidence, including the complainant’s veryconcerning evidence about the collarbone. [42] In addition, there is no indication that the Discipline Committee considered the complainant’s capacity and/or ability toform accurate observations at the time of her visit to the hospital, despite a multitude of signs that she may not have been able toaccurately “observe, recall and recount” (Karkanis at para 52) what was occurring.

The evidence established that the complainant: • had suffered injuries in a domestic assault the day before, including a head injury, and was still suffering pain and swelling; • had taken Tylenol 3 earlier in the day; • vomited and felt ill and faint; • was at the hospital for hours; • felt emotionally fragile and traumatized by the events from her domestic assault and said she was still in shock; • believed that her “emotions were a little off that weekend”; • was “emotionally just kind of numb” with what occurred in the domestic assault and she was teary with the triage nurse; • did not recall specifics about the room she was placed in, including the wording or presence of signs; • did not recall many details of her vital signs being taken, or the questions asked of her, or the appellant taking notes in the room; • did not know if the appellant placed his hands under her gown or through her sleeves. [43] The appellant is entitled to know why the Discipline Committee concluded that the complainant’s testimony wasreliable given the numerous deficiencies and contradictions in her evidence and her physical and emotional state on the night inquestion.

To be clear, I take no issue with the Discipline Committee’s ability to find that each deficiency or contradiction was, in itself,insignificant or relating to a peripheral matter. But the conduct decision fails to address why the evidence as a whole did not severelycompromise the complainant’s reliability.

In addition, the Discipline Committee does not appear to turn its mind to the question of thereliability of the complainant’s version of events when there were issues with her ability to accurately “observe, recall and recount” whatoccurred. [44] To the extent that the Discipline Committee’s reasons fail to explain why the complainant’s evidence was reliable, itsanalysis is flawed and incomplete (see Stefanov at para 65).

It is not sufficient to simply say that “In considering [the complainant]’sevidence as a whole, the [Discipline Committee] finds her to be credible.” Such a bald assertion does not provide any explanation anddoes not meet the justification, transparency and intelligibility standard. [45] The Discipline Committee concluded that the complainant’s demeanour did not suggest that she was being“intentionally untruthful”, but it failed to consider whether she may have had an honest but mistaken recollection of the events inquestion.

In Neinstein, the Court observed (at para 66): Bald generalized assertions defy appellate review. Furthermore, while demeanour is a relevant factor in a credibility assessment,demeanour alone is a notoriously unreliable predictor of the accuracy of evidence given by a witness: see R. v. G. (G.), (ON CA), [1997] O.J. No. 1501, 115 C.C.C. (3d) 1 (C.A.), at pp. 6-8 C.C.C.; R. v. P-P. (S.H.), 2003 NSCA 53 , [2003]N.S.J.

No. 171, 176 C.C.C. (3d) 281 (C.A.), at paras. 28-30. [46] Simply put, the conduct decision fails to sufficiently articulate how the reliability concerns were resolved whichprevents meaningful appellate review. Prior Consistent Statements [47] It is generally accepted that a prior consistent statement cannot be used to corroborate in-court testimony or to infer thata witness’s claim is more likely to be credible because the witness has repeated the same story.

See David M Paciocco & Lee Stuesser,The Law of Evidence, 7th ed (Toronto: Irwin Law, 2015) at 527; R v Stirling, 2008 SCC 10 at paras 5, 7; and R v Dinardo, 2008 SCC 24. [48] In their text, Paciocco & Stuesser summarize the law relating to prior consistent statements in the following manner (atp 527):

Evidence that a witness previously made a prior statement consistent with that witness’s evidence will generally be inadmissible. . . . There are exceptions to this general rule that permit some prior consistent statements to be proved for restricted purposes. . . . Regardless of the exception that is being used, it is never permissible to infer that a witness’s claim is more likely to be credible becausethe witness has repeated the same story, or to treat a prior consistent statement as corroborating in-court testimony.

It is essential thatjudges not use admitted prior consistent statements for improper purposes. Paciocco & Stuesser also explain that there are exceptions to the general rule and that (at pp 529-30): These exceptions are rules of restricted admissibility and it is an error of law to use admissible prior consistent statements improperly [R.v. C.(S.R.) (2004), 2004 PESCAD 13 , 188 C.C.C. (3d) 239 (P.E.I.C.A.)]. Unless a hearsay exception applies, a prior consistentstatement “cannot be used for the truth of its contents” [R. v. Crate (2011), 2011 BCCA 506 , 288 C.C.C. (3d) 38 at para. 40(B.C.C.A.)].

They should be used solely for the purposes for which they are admitted. Moreover, there are two prohibited uses for alladmissible prior consistent statements that arise. . . . First, “it is impermissible to assume that because a witness has made the samestatement in the past, he or she is more likely to be telling the truth,” [R. v. Stirling, [2008 SCC 10] at para. 7] and second, even where aprior consistent statement is admitted it is an error to treat the prior consistent statement as corroborating the in court testimony” [R. v.Dinardo, [2008 SCC 24] at para. 40; R. v.

T.(K.) [(2013), 2013 ONCA 257 , 295 C.C.C. (3d) 283] at para. 68 [Ont CA]]. [49] In Stirling, Bastarache J, for the Court, commented on this in terms of the exception relating to recent fabrication (atparas 5-7): It is well established that prior consistent statements are generally inadmissible (R. v. Evans, (SCC), [1993] 2 S.C.R.629; R. v. Simpson, (SCC), [1988] 1 S.C.R. 3; R. v. Béland, (SCC), [1987] 2 S.C.R. 398). This isbecause such statements are usually viewed as lacking probative value and being self-serving (Evans, at p. 643).

There are, however,several exceptions to this general exclusionary rule, and one of these exceptions is that prior consistent statements can be admitted whereit has been suggested that a witness has recently fabricated portions of his or her evidence. . . . However, a prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative valuebeyond showing that the witness’s story did not change as a result of a new motive to fabricate.

Importantly, it is impermissible toassume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admittedprior consistent statements should not be assessed for the truth of their contents. As was noted in R. v. Divitaris (2004), (ON CA), 188 C.C.C. (3d) 390 (Ont. C.A.), at para. 28, “a concocted statement, repeated on more than one occasion, remainsconcocted”; see also J. Sopinka, S. N. Lederman and A. W.

Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 313). [emphasis added] [50] Similarly, in Dinardo, Charron J cautioned that prior consistent statements should not be used “for the impermissiblepurpose of ‘confirm(ing) the truthfulness of the sworn allegation’” (at para 37). [51] While the strict rules of evidence do not apply to administrative tribunals, the rules relating to prior consistentstatements have been routinely applied in disciplinary proceedings.

See Re K and College of Physicians & Surgeons (Sask) (1970), (SK KB), 13 DLR (3rd) 453 (Sask QB); Re College of Physicians & Surgeons and K (1987), (ON CA),36 DLR (4th) 707 (Ont CA); C(J); and Hanif v College of Veterinarians of Ontario, 2017 ONSC 497 (Div Ct). [52] In Hanif, the Court concluded that the discipline committee erred when it determined that the complainant’s credibilitywas enhanced because her testimony was consistent with her letter of complaint to the college (at paras 118-20): The Discipline Committee panel also held that Schilbe was made more credible because she had filed a complaint containing these sameallegations.

It found Schilbe’s credibility to have been bolstered by the consistency of her evidence with the contents of her originalletter of complaint. In my view, it was an error to treat what is essentially a prior consistent statement by Schilbe in her complaint letteras corroboration of her evidence at the hearing. It is fully acknowledged that findings based on the assessment of the credibility of witnesses are entitled to be shown great deference onappeal (see: Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981).

However, given the serious errors made in assessing the credibility of the witnesses in the Schilbe matter and their cumulative effect, the decision of the Discipline Committee panel finding Dr. Hanif guilty based upon this evidence is unreasonable and is thereby rendered unsafe. [ 53 ] In the present case, the Discipline Committee referred to the complainant’s report to her friend and her later telephone call to the hospital “[i]n considering . . . the probability that the alleged assault actually occurred”.

After referring to the complainant’s evidence about her report to her friend and her discussions with the nurse at the front desk and the charge nurse, the Discipline Committee noted that the complainant testified that she “was told it was not normal procedure” and was told she would be contacted.

The Discipline Committee then said that “All of this suggests that something inappropriate occurred during the examination.” [ 54 ] These comments clearly indicate that the Discipline Committee dealt with the complainant’s reports to others as evidence of the truth of those reports. [ 55 ] The respondent argues that the Discipline Committee’s use of the prior consistent statements falls within one of the three exceptions to the rule prohibiting such use, namely that they were relevant to rebut an area of impeachment, they prove the physical, mental or emotional condition of the complainant and/or they form part of the narrative. [ 56 ] To some extent there is merit to the respondent’s submission.

However, a more probing examination of the reasons reveals that when the Discipline Committee used the prior consistent statements to determine “the probability that the alleged assault actually occurred”, and to determine whether “something inappropriate occurred during the examination”, it used the statements for an impermissible purpose, namely as evidence of the truth of the complainant’s in-hearing testimony. [ 57 ] There can be no question that the Discipline Committee’s reliance on the complainant’s prior consistent statements—in particular her evidence concerning her report to her friend and her telephone conversations with hospital staff, the College and police— had a major impact on its decision to find the complainant credible.

In my view, the inappropriate use of the complainant’s prior consistent statements renders the conduct decision, based on this evidence, unreasonable and unsafe (see C(

J) at para 68; and Hanif at para 120 ). Disposition [ 58 ] In Karkanis , the Court was concerned with how the discipline committee treated evidence of after-the-fact conduct of the complainant and whether the discipline committee applied the same scrutiny to the evidence of the complainant as it did to the physician’s evidence. The Court concluded that (at para 72): The concerns that I have identified might not be sufficient, each by itself, to raise doubt regarding the reasonableness of the decision reached.

However, collectively, they do raise a serious issue as to whether the reasoning of the Discipline Committee can sustain the decision reached. If the Discipline Committee had evaluated the evidence on a proper basis, it is not clear that they would have reached the same conclusions as to whose evidence they accepted or what facts they would have found. That conclusion means that the reasons do not meet the justification, transparency and intelligibility standard.

Given the stakes involved for the appellant, i.e. the loss of his licence to practice medicine, the flaws that I have identified in the reasons of the Discipline Committee do not allow for the necessary conclusion that the decision reached by the Discipline Committee is a defensible one. The decision, consequently, cannot be found to be reasonable. [ 59 ] I agree with and adopt the Court’s conclusion in Karkanis for the purposes of this decision. The record discloses significant concerns with the reliability of the complainant’s testimony.

The Discipline Committee should have explained why it found the complainant’s evidence to be reliable in light of the evidence as a whole. In addition, the Discipline Committee should not have used the complainant’s prior consistent statements to support its ultimate finding that the complainant was credible. Whether taken together or on their own, the flaws identified in the reasons of the Discipline Committee do not allow for the necessary conclusion that the conduct decision is a defensible one.

Simply put, the conduct decision was unreasonable. [ 60 ] The appeal is therefore allowed and the conduct decision and the penalty decision are set aside. [ 61 ] The appellant’s registration was suspended on October 27, 2016 for a period of 18 months. As a result, he has not practiced registered nursing for more than 13 months. This will presumably be another consideration in deciding whether to conduct a new hearing. [ 62 ] If there is a new hearing, it should be before a different panel. JA I agree: JA I agree: JA