A former Barrie dermatologist has won his appeal against the College of Physicians and Surgeons of Ontario, in a case that exacted a toll on the doctor's family, according to the decision.
On Tuesday, the Divisional Court, which oversees appeals for the college, released the reasons for its decision on the appeal in the case of Dr. Rodion Kunynetz.
According to the reasons for decision document, the court upheld its finding that Kunynetz committed an act of professional misconduct by removing patient clothing in the absence of a warning and that he breached the a chaperone order on two occasions.
However, the court quashed the previous ruling of the college that he engaged in professional misconduct by allowing his “abdominal fat pad” to contact the body of patients and in sexual abuse of patients.
“The appellant has been vindicated of all of the serious allegations,” the court wrote in its reasons for decision.
Kunynetz’s lawyers argued, and the court agreed, that while Kunynetz’s touching of patients did amount to misconduct for not following proper procedures for warning patients before touching them or stepping out of the room, the college did not prove that the touching was intended to be sexual.
“The context in which the appellant was charged and in which the hearing took place is important,” reads the decision. “The appellant takes the position that the college had aggressively pursued the theory (which it did not prove) that the appellant was a serial sexual abuser who pressed his genitalia into patients.”
The finding that Kunynetz’s licence be revoked was also quashed.
The appeal was in regards to a 2017 penalty hearing by the discipline committee of the College of Physicians and Surgeons of Ontario against Kunynetz.
On March 21, 2017, the committee determined that Kunynetz had committed acts of professional misconduct when he engaged in the sexual abuse of one patient and disgraceful, dishonourable or unprofessional conduct in regards to three more patients. They also determined he had contravened a term, condition or limitation on his certificate of registration.
"The discipline committee ultimately dismissed most of the allegations of sexual abuse against Dr. Kunynetz, but made one finding of abuse on the basis that Dr. Kunynetz inappropriately touched a patient’s breasts during a skin examination in August 2008," said Ian MacLeod, Kunynetz's lawyer in the college appeal matter. "In April 2018, Justice De Sa acquitted Dr. Kunynetz of a criminal charge of sexual assault based on the same allegation."
Kunynetz was found not guilty of two criminal counts of sexual assault in April 2018. All remaining criminal charges against Kunynetz were dropped in November 2018 due to questions about the reliability of the evidence.
"In his appeal, Dr. Kunynetz alleges that the proceeding before the discipline committee was an abuse of process since there was inordinate delay and the same breast-touching complaint was resolved by the college in early 2009," continued MacLeod. "Dr. Kunynetz also alleges that the reasons for decision of the discipline committee contain significant errors and omissions, and that the penalty imposed by the discipline committee was inappropriate."
He has not practised medicine since his licence was suspended in September 2015.
While the college had one more hearing in the works against Kunynetz, the court determined it would be inappropriate to remit the matter back to the college due to the unique circumstances of this case.
Therefore, the court substituted a penalty of suspension until July 23, when the decision was released. Further, the court ordered that Kunynetz will not be required to pay any costs of the hearing before the college and referenced the toll the proceedings have taken on Kunynetz and his family.
“He and his family ought to be able to see a light at the end of the tunnel,” the court wrote in its decision.
