) ) The College of Physicians v. Surgeons of, 2013 ONSC 1599

CITATION : The College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599 DIVISIONAL COURT FILE NO.: 569/11 DATE: 20130318 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT AT TORONTO MOLLOY, LAX AND HARVISON YOUNG JJ. BETWEEN: ) ) The College of Physicians and Surgeons of Ontario Respondent – and – Allan Beitel Appellant )) )) )) )) )) Vicki White , for the Respondent Jaan E. Lilles and Jon Laxer , for the Appellant ) ) ) HEARD AT TORONTO: February 13, 2013 harvison young j. Reasons for Decision [ 1 ] This appeal was heard on February 13, 2013.

At the end of the hearing, the panel advised counsel that the appeal was allowed for reasons to follow. These are those reasons. [ 2 ] The Appellant, Dr. Allan Beitel, appeals from decisions rendered by the Discipline Committee of the Respondent, College of Physicians and Surgeons of Ontario regarding both the merits of a complaint and the penalty imposed on the merits. [ 3 ] Dr. Beitel is a psychiatrist. The Complainant alleged that during their initial meeting, the Appellant directed him to stand in front of him and expose his genitalia. The Appellant denied that this occurred.

Only the Complainant and Appellant testified at the hearing before the Discipline Committee. [ 4 ] The central question before the Committee was whether the alleged act of sexual abuse in fact took place.

The Committee rendered a decision concluding that “…on the balance of probabilities, based on clear, cogent and convincing evidence” the abuse occurred and accordingly that all of the allegations were proven (Reasons for Decision, p. 21). [ 5 ] The Appellant raised a number of grounds of appeal with respect to the Committee’s conclusion that the complaint had been proved. [ 6 ] First, he submitted that the Committee, in approaching its task as it did, effectively reversed the burden of proof. [ 7 ] Second, he submitted that the Committee relied inappropriately on prior consistent statements in finding that the complaint was substantiated. [ 8 ] Third, he submitted that the Committee should have allowed the Appellant’s request for disclosure of the Complainant’s third party records (the “ O’Connor application”), particularly after the Complainant’s mental and psychological state had been put into

play by the College itself in the course of the hearing. Moreover, the Appellant argued that the Committee, having dismissed theO’Connor application, should not have then relied on the absence of such evidence in finding that the incident took place as alleged bythe Complainant. [9] Fourth, and in the alternative, the Appellant submitted that the reasons given by the Committee are insufficient and thereforefailed to meet the standard of reasonableness: Newfoundland and Labradors Nurses’ Union v.

Newfoundland and Labrador (TreasuryBoard), 2011 SCC 62, [2011] 3 S.C.R. 708. [10] The Appellant also submitted that the Committee made reversible errors in its assessment of the appropriate penalty, both inits first penalty decision dated May 1, 2012 and in its second decision concerning penalty dated July 17, 2012. The Standard of Review [11] The standard of review that applies to the articulation and application of the onus and standard of proof is that ofcorrectness:Stetler v. Ontario Flue-Cured Tobacco Growers' Marketing Board (2005), (ON CA), 76 O.R. (3d) 321at para. 70; Pimparé v.

Canada (Attorney General), 2012 FC 581, [2012] F.C.J. No. 589 at para. 34; Nova Scotia Teachers Union v.Nova Scotia Community College, 2006 NSCA 22 at para. 31; Miners' Memorial Manor v. International Union of Operating Engineers,Local 968B, 2010 NSSC 464 at para. 37. With respect to the sufficiency of the reasons as a whole, the reasons must be read together withthe outcome and reviewed on the reasonableness standard: Newfoundland Nurses; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190 at para. 14.

Did the Committee’s approach to the evidence effectively reverse the onus of proof? [12] The primary ground of appeal raised by Dr. Beitel was that, in approaching the evidence as it did, the Committee misappliedthe onus of proof, and that the structure of its reasons demonstrates this misapplication. [13] The Respondent disagreed with the Appellant’s submission that the structure of the Committee’s approach to the inquiryreversed the onus of proof.

It submits that the Appellant seeks to “divert this Court’s attention from a review of the reasons as a whole,and from the appropriate level of deference to the Discipline Committee’s findings on credibility.” The Committee’s Decision [14] The Committee’s analysis of the evidence may be briefly summarized. [15] Following a

summary of the evidence given at the hearing, the Committee began with the question of when the appointmenttook place and whether the Complainant had brought the referral letter from his doctor with him at that time, or whether it had beenmailed to the Appellant and received by him later. It mentioned that a great deal of time was spent on these issues at the hearing. TheAppellant’s evidence was that the appointment took place on August 14, 2009 and that he had received the letter later in the mail.

TheComplainant’s evidence was that the appointment was on August 18 and that he had brought the letter with him on that date. Thereferral letter was dated August 18. [16] The Committee stated that the debate surrounding the actual date of the appointment was “peripheral to the main issue ofsexual abuse” but given the parties’ view that the matter went to credibility, and the efforts expended on it, the Committee consideredthe competing evidence “in some detail” (Reasons for Decision, p. 13).

Ultimately, the Committee concluded that the appointment hadtaken place on August 18, 2009 and that the Complainant had brought the letter with him, as he had testified.

It did not find credible theAppellant’s proposition that the Complainant, having already left a message for the Appellant on August 14 saying that he would not bereturning for any further sessions, would then have gone to his doctor’s office to procure a referral letter four days later on August 18,2009. [17] It is common ground that the Committee made an express finding of credibility against the Appellant and in favour of theComplainant on this question of the date of the appointment and how the Appellant received the letter.

It is also common ground thatthe Committee properly and reasonably assessed the evidence on this issue. [18] The Committee then continued to consider the Complainant’s allegation in itself. It began by stating that in its view, therewere “four possible alternatives”: (

i) that the Complainant “fantasized the incident”; (ii) that the Complainant “misremembered or misunderstood the incident”; (iii) that the Complainant “deliberately fabricated his account of the incident”; or (iv) that the incident “occurred substantially as [the Complainant] testified” ( Reasons for Decision, p. 16). [19] With respect to the first possibility, the Committee found there was no medical evidence suggesting the Complainant sufferedfrom delusional pathology, or that he was intoxicated on the day of the appointment.

Accordingly, it concluded there was no evidencesupporting the possibility that the abuse was fantasized (Reasons for Decision, p. 16). [20] With respect to the second possibility, the Committee found that there was no evidence of cognitive or memory problems thatwould account for such a “misremembering” or misunderstanding (Reasons for Decision, p. 17). [21] With respect to the third possibility, the Committee stated that it “would be a monstrous act” to fabricate an account of sexual

abuse in this case, and the testimony of the Complainant did not suggest he was capable of this. According to the Committee, thecomplainant was embarrassed rather than vengeful, and only testified reluctantly. There was never an actual diagnosis of borderlinepersonality disorder. Consequently, the Committee found the Complainant did not fabricate the story (Reasons for Decision, p. 17). Having rejected that possibility, the Committee then concluded, “The Committee believed [the Complainant’s testimony and did notaccept as truth the testimony of Dr.

Beitel.” [22] With respect to the fourth possibility, the Committee found that the Complainant maintained the same account of the incidentfrom his first recounting to the nurse through to cross-examination.

The Appellant’s description of a “happy patient, eager to continuethe process” was incongruous with the Complainant leaving a message on the same day as his first appointment saying that he would notreturn. [23] Having concluded that it did not believe the account of the Appellant, and did believe the account of the Complainant, theCommittee found that the incident took place “substantially” as the Complainant described, concluding at p. 18 that: In

summary, the Committee found, on the balance of probabilities, based on clear, cogent and convincing evidence, that the allegationsthat Dr. Beitel sexually abused a patient and that he engaged in conduct relevant to the practice of medicine that, having regard to all thecircumstances, would reasonably be regarded by members as disgraceful, dishonorable or unprofessional, have been proved. Analysis of the Committee’s Decision [24] There is no question that the standard of review with respect to credibility is a very deferential one indeed.

Credibilityfindings are “quintessentially findings of fact” and command a heightened level of deference: see Dr. Q. v. College of Physicians andSurgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 38. [25] The reasons in this case, however, reflect fundamental flaws in the approach to the assessment of the evidence that underminethe conclusions reached.

As the Appellant submits, the presentation and structure of the “alternative approaches” to the evidenceeffectively reverses the burden of proof. [26] The Committee rejected the first two possibilities set out above because “there was no evidence” that the Complainant hadbeen diagnosed with a mental or psychological disorder.

With respect to the third possibility, it rejected the defence submission that theComplainant had been diagnosed with borderline personality disorder saying that it was “in this case, one of a computer-generated list ofpossible diagnoses and that it had not been applied as a diagnosis to [the Complainant]”. [27] The fourth scenario presented was that the incident occurred as described by the Complainant. [28] There are a number of problems with this approach.

First, the first three scenarios were resolved in favour of the Complainanton the basis of the absence of evidence, which suggests that the onus was placed on the Appellant to prove he did not sexually assault theComplainant. [29] Second, the structure of the Committee’s approach leads by way of default from a rejection of the first three scenarios to theconclusion that the fourth scenario had occurred and that the Complainant’s version was established. [30] This structure fails to allow for or consider the possibility that even if the Committee rejected the other three scenarios, thefourth scenario was not established on a balance of probabilities.

As O’Neill J. wrote in Olegario v. Cabaraban [2007] O.J. No. 631(Ont. S.C.) at para. 33: I am not restricted to simply choosing whether I accept the evidence of the plaintiff or the evidence of the defendant. Rejection of onedoes not equate to acceptance of the other. The stark alternative of believing the plaintiff’s evidence or the defence’s evidence excludesthe legitimate possibility of being unable to resolve conflicting evidence.

The issue in this civil trial is not which of the two versionswith respect to Terra Cotta and Grand Valley are true but rather, on the totality of the evidence, viewed as a whole, has the plaintiffproved her case on balance of probabilities. [31] In addition, the Committee did not make express findings of credibility in relation to the allegation at issue. It did, as theRespondent emphasized, make a credibility finding in favour of the Complainant in relation to the issue about the date and the referralletter.

It conducted an appropriate credibility analysis on this point, giving reasons for its acceptance of the Complainant’s evidence onthis issue. However, it described this issue as “peripheral”. The fact that the Committee believed the Complainant on this issue does notexplain, standing alone, why it believed him on everything, particularly in light of its view that this was a peripheral issue.

As juries arealways informed, a trier of fact may accept some, all or none of a witness’s evidence. [32] While we agree with the Respondent that a reviewing court must consider the reasons as a whole, looking at these reasons asa whole does not assist the College in this case because the presentation of the “alternative approaches” dominates or drives the decisionas a whole.

The analysis begins with the four scenarios as set out above, and, as the Appellant submits, proceeds through them byprocess of elimination. [33] Reading the reasons as a whole, the concluding statement that, “on the balance of probabilities, based on clear, cogent andconvincing evidence” the abuse occurred and, accordingly, that all of the allegations were proven was no more than a conclusorystatement that did not flow from the preceding reasons.

Put another way, it is a formulaic statement that is not borne out by thesubstance and structure of the reasons, which, as discussed above, do not clearly consider whether the College has proven the allegationson a balance of probabilities. As the Court of Appeal held in Barrington v. The Institute of Chartered Accountants of Ontario, 2011ONCA 409 at para. 113: The reasons for decision in professional discipline cases must address the major points in issue in the case.

A failure to deal with materialevidence or a failure to provide an adequate explanation for rejecting material evidence precludes effective appellate review: Gray v.Ontario (ON CA), (2002), 59 O.R. (3d) 364 (C.A.), at paras. 22-24; Law Society of Upper Canada v. Neinstein

(2010), 2010 ONCA 193 , 99 O.R. (3d) 1 (C.A.), at paras. 61 and 92. [34] We are of the view that the appeal must be allowed on the basis that the Committee, in approaching the evidence as it did,effectively misapplied or reversed the onus of proof. As we will discuss further below, however, the errors made in this regard arecompounded in this case by the Committee’s treatment of the prior consistent statements and by its reliance on the absence of mentalhealth evidence in the light of its refusal to allow the Appellant’s third party records application.

O’Connor Application [35] The Appellant also appealed on the basis that the Committee, having refused his applications for disclosure of theComplainant’s counseling records, proceeded to rely on the lack of evidence establishing that the Complainant suffered from apsychological or mental disorder as a basis for substantiating the complaint. At para. 55 of his factum, the Appellant submitted asfollows: The Committee’s error in reversing the burden of proof was compounded by its rejection of Dr. Beitel’s third-party records applicationfor [the Complainant’s] counseling records….

As outlined above, the Committee reversed the burden of proof and required that Dr.Beitel prove that [the Complainant] suffered from a psychological or mental disorder. At the same time it refused to grant Dr. Beitelaccess to [the Complainant’s] psychological counseling records which would allow him to meet this burden. This placed Dr. Beitel “inan impossible Catch-22 position”. [36] The Appellant brought an application for disclosure of third party counseling records in advance of the hearing. TheCommittee dismissed the application on the basis of the first stage of the analysis set out in R. v.

O’Connor (SCC),[1995] 4 S.C.R. 411, holding that these records were not “likely relevant”. [37] During the hearing, the Appellant renewed its application after counsel for the College examined the Complainant about hismedical history, including the counseling he had received for post-traumatic stress disorder following a motorcycle accident in which hehad been seriously injured. The Appellant argued that this treatment and any such psychological or mental issues were thus “live” issuesin the case.

The Committee also denied this application on the basis that it was not “likely relevant”. [38] We agree with the Respondent College that the standard of review applicable to the College’s dismissals of the O’Connorapplications is that of reasonableness. On these facts, however, even if it was reasonable for the Committee to dismiss the O’Connorapplications, it was improper and unreasonable for the Committee to then draw inferences in favour of the Complainant on the very basisof the absence of the type of evidence that might have been disclosed through the O’Connor applications.

Doing so further compoundedthe errors set out above with respect to the approach to the evidence and the onus of proof. The Use of Prior Consistent Statements [39] The Appellant also submitted that the Committee improperly relied on prior consistent statements in support of its acceptanceof the bulk of the Complainant’s account of the incident. [40] The Respondent College did not take issue with the legal principles governing the use of prior consistent statements as set outby the Appellant.

It submitted, however, that the Committee did not use these statements inappropriately, but that, even if it did, thisshould not be a basis to set aside the entire decision. [41] The main statements in issue were contained in the accounts that the Complainant had made to the nurse practitioner in hisfamily doctor’s office, and then to his family doctor.

These were admissible to rebut the suggestion that the first time that theComplainant had said that the appointment was on August 14 had been the night before his testimony. [42] College counsel specifically warned the Committee about the restrictions upon the use of that statement, emphasizing that thestatement could not be used as evidence of the date of the appointment but only to rebut the attack on the Complainant’s credibility andto rebut the allegation of recent fabrication. [43] Unfortunately, the Reasons for Decision indicate that the Committee did rely on the content of these statements as it waswarned not to do.

In considering its fourth scenario, that is that the incident occurred as described by the Complainant, it states at p. 17of its Reasons that the Complainant …maintained the substance of his account of the incident to the nurse practitioner, to Dr. Bender, in his letter to the College, in hisinterview with Mr. McNamara and under vigorous cross-examination.

While he admitted the possibility of minor wordinginconsistencies in his evidence, his description of the incident did not vary in any major point and remained unshaken. [44] These comments took place within the discussion of the four scenarios which addressed the substance of the allegations. Itdid not take place within the discussion of the date of the appointment with Dr. Beitel. It is clear from both the wording and the contextthat the Committee relied on these prior consistent statements to bolster the substance of the allegation.

This is precisely what the ruleagainst prior consistent statements is meant to guard against. In the circumstances of this case, the use of the prior consistent statementsfurther compounds the errors in relation to the onus of proof as discussed above, as well as the treatment of the absence of evidence ofany mental or psychological issues in the Committee’s reasons in light of its decisions on the O’Connor applications. It is not necessaryto decide whether, in and of themselves, the appeal would have been allowed on the basis of the reliance on these statements.

Sufficiency of Reasons [45] The Appellant submitted, in the alternative, that the reasons for decision were not sufficient. Given our conclusions on the

central grounds, it will not be necessary to address this submission. The Penalty Decisions [ 46 ] Similarly, on the basis of our conclusion that the appeal as to the finding of professional misconduct must be allowed, it will not be necessary to address the submissions with respect to penalty. Conclusion and Costs [ 47 ] For the foregoing reasons, the appeal is allowed. The parties agreed that the amount of costs should be fixed at $7500.00. Accordingly, costs are payable by the College to Dr. Beitel in the amount of $7500.00. Harvison Young J. Molloy J. Lax J.

Released: March 18, 2013 CITATION : The College of Physicians and Surgeons of Ontario v. Beitel, 2013 ONSC 1599 DIVISIONAL COURT FILE NO.: 569/11 DATE: 20130318 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: The College of Physicians and Surgeons of Ontario Respondent – and – Allan Beitel Appellant REASONS FOR JUDGMENT The Court Released: March 18, 2013