Executive Summary: Key Legal and Evidentiary Issues

• Central dispute focused on the credibility of the complainant and the appellant regarding allegations of sexual abuse during a massage therapy session.

• The admissibility and use of prior consistent statements by the complainant played a pivotal role in the Panel’s findings.

• The Panel’s reliance on the consistency of out-of-court statements to bolster the complainant’s credibility was found to be a legal error.

• Procedural fairness issues were raised, including denial of adjournment requests and allegations of abuse of process, but only the treatment of prior consistent statements was determinative on appeal.

• The appellant’s admitted record-keeping misconduct was not appealed and remains undisputed.

• The matter was remitted for a new hearing before a differently constituted panel due to the legal error in the original decision.

Facts of the case

Dominic Carrasco, a massage therapist with over thirty years of experience, practiced at a clinic in Burlington, Ontario. His registration was revoked following a finding by the Discipline Committee of the College of Massage Therapists of Ontario that he had engaged in sexual abuse of a client, referred to as W.R., during a massage therapy appointment on February 24, 2020. The incident involved allegations that Mr. Carrasco reached under the draping and touched W.R.’s nipples in an aggressive manner. W.R. testified to these events, while Mr. Carrasco denied any inappropriate conduct, stating he applied a deep pressure technique known as “cross-frictions” to the chest wall, but never treated the complainant underneath the draping. The case also involved a record-keeping issue, as Mr. Carrasco admitted to offering W.R. a cash discount and failing to properly record the reduced fee and its reason.

Panel’s decision and evidentiary issues

The Panel found credibility to be the central issue, ultimately preferring W.R.’s evidence over Mr. Carrasco’s. The Panel rejected the defence theory that the allegations were fabricated due to bruising observed by W.R.’s husband, and found no evidence of bias or animus from W.R. or her husband. The Panel accepted W.R.’s testimony as credible and forthright, noting her emotional demeanor and the lasting impact of the incident. Conversely, the Panel found inconsistencies in Mr. Carrasco’s testimony and noted he had not provided accurate information to the College investigator. The Panel concluded that Mr. Carrasco committed professional misconduct under the Health Professions Procedural Code.

Appeal and legal analysis

On appeal, Mr. Carrasco raised several grounds, including procedural fairness and abuse of process, but the Divisional Court focused on the Panel’s treatment of prior consistent statements made by W.R. The Court found that the Panel erred in law by using the consistency of W.R.’s out-of-court statements to various individuals as a basis to support her credibility, contrary to established legal principles. While prior consistent statements may be admissible in limited circumstances (such as to rebut recent fabrication), the Court found that the statements in question did not meet the criteria and should not have been used to bolster credibility. The Court also clarified that the respondent’s submissions and the Panel’s reasoning may have inadvertently led to this error.

Policy terms and relevant clauses

The case was governed by the Health Professions Procedural Code, which sets out the standards for professional misconduct and the procedures for discipline within regulated health professions in Ontario. The relevant clause at issue was s. 51(1)(b.1) of the Code, relating to sexual abuse by a health professional. The Code also provides for limited circumstances under which costs may be awarded, which was briefly addressed in the judgment.

Outcome and ruling

The Divisional Court allowed the appeal, finding that the Panel’s reliance on prior consistent statements constituted a significant legal error. The matter was remitted to the Discipline Committee for a rehearing before a differently constituted panel. The appellant’s admitted record-keeping misconduct remains undisputed and will be addressed by the new panel. The Court declined to order costs, finding that the commencement of proceedings was warranted given the admitted misconduct and the need to assess the sexual abuse allegation based on credibility. No specific monetary award or costs were granted at this stage, as the issue of costs was left for further submissions or agreement between the parties. The successful party on appeal was Dominic Carrasco, whose appeal was allowed and whose case will be reheard.