December 14, 2015

Sexual misconduct and interim action

Administrative Law
Inquiry and Investigations
Professional Regulation

The manner in which a screening or investigation committee may decide to take interim action to protect the public from risks, while investigating a complaint, came under sharp focus in a recent case that the B.C. Court of Appeal will address on January 4, 2016.

The case involves a complaint from a female patient that, while she was facedown on a treatment table, a male massage therapist masturbated twice during the session, and twice touched his penis to her wrist, which was covered by a thin draping sheet. Based on her evidence, which did not include visual evidence but which did include evidence of what she heard and felt – such as “unzipping” sounds, and her feeling his penis on her wrist – the inquiry committee found a “prima facie” case, and took “extraordinary action” by requiring that the respondent be chaperoned with female patients during the investigation. A justice of the B.C. Supreme Court reversed the order, however, holding that no reasonable person could have concluded a risk to the public:

  • The justice decided that the female complainant’s account was not plausible, because her complaint was “based on what she thought she heard and felt, not what she saw.”
  • The justice concluded that the evidence was “insufficient” to establish he was masturbating; a reasonable person could only conclude that she imagined it.
  • The justice said she could have “easily have opened her eyes to look to see whether her suspicions as to what the petitioner was doing was correct.”
  • The justice took issue with the Inquiry Committee’s approach that it was not in a position to properly conduct a mini-trial.

This finding is currently under appeal by the College, based on various grounds, including that court improperly re-weighed the evidence; improperly required that the committee weigh the respondent’s version of events; and improperly concluded that sexual misconduct could not be substantiated without visual evidence. In granting the College leave to appeal, a justice of the Court of Appeal noted that the Court of Appeal has not yet had occasion to provide guidance on the interpretation of HPA section 35.

The Court of Appeal has granted intervenor status to West Coast Women’s Legal Education and Action Fund (West Coast LEAF), the College of Physicians and Surgeons of BC, and the Registered Massage Therapists Association of BC. The appeal will be heard by the BC Court of Appeal on January 4, 2016.

Scott v. College of Massage Therapists of British Columbia (April 14, 2015, B.C.S.C. No.  S151065, leave to appeal granted August 27, 2015, B.C.C.A. No. CA42771)

Lisa C. Fong and Michael Ng