PUBLISHED: Communiqué, June 1999, page 36.

PUBLISHED: Communiqué, December 1999, page 43.

(In the June 1999 Communiqué, the Member was not identified because the decision of the Discipline Committee of the College of Nurses of Ontario was under appeal to the Divisional Court of Ontario. The Member’s appeal was dismissed, and this was published in the December 1999 Communiqué.)

Discipline Committee Of The College Of Nurses Of Ontario

The following is a public record of the hearing between the COLLEGE OF NURSES OF ONTARIO and the Member, heard on February 6, 1998

REASONS FOR DECISION

This matter was heard before a panel of the Discipline Committee on February 6, 1998, at the Royal College of Dental Surgeons of Ontario at Toronto. The amended Notice of Hearing dated January 27, 1998, was introduced by counsel for the College and entered as Exhibit #1. It reads as follows:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and paragraph 1(18) of Ontario Regulation 799/93, in that during the period between September 1996 to June 1997 inclusive, while employed as a Registered Nurse by a retirement residence, in the City of Toronto, in the province of Ontario, you contravened a term, condition or limitation on your certificate of registration, and in particular, you contravened one or more of the restrictions placed on your Certificate of Competence by the Discipline Committee of the College of Nurses of Ontario in its decision dated September 11, 1995;

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32, as amended, and paragraph 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Nurse by a retirement residence, in the City of Toronto, in the province of Ontario, you engaged in conduct or performed an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably regarded by members as disgraceful, dishonourable or unprofessional, in that:

a. during the period September 1996 to June 1997 inclusive, you contravened one or more of the restrictions placed on your Certificate of Competence by the Discipline Committee of the College of Nurses of Ontario in its decision dated September 11, 1995; and/or

b. you advised the College of Nurses of Ontario in October 1996 that you were not working in October 1996 and, therefore, could not provide employer performance appraisals when in fact such was not the case.

The panel noted that although the Member was legally notified of the hearing, she did not appear before the panel nor did she provide legal representation for herself and that the panel reached its decision as a result of evidence and testimony provided by the counsel for the College of Nurses.

Two Affidavits of Service by a process server with the Municipality of Peel dated January 21 and 28, 1998, indicated he had served the Member personally with the Notice of Hearing and an amended Notice of Hearing of the proceedings as well as a Notice of Intention regarding the hearing February 6, 1998 at the Royal College of Dental Surgeons. (Exhibit #1)

Prior to witnesses being called, counsel for the College sought a ruling from the panel permitting introduction of evidence pursuant to Subsection 42 (2)of the Health Professions Procedural Code. The panel, at this time, sought advice from the Independent Legal Counsel who indicated that while the issue had been fairly raised, the Member had disclosure of the substance of the documents which the College intended to introduce at the hearing. Therefore, no prejudice to the Member’s ability to know the case against her arose in this situation.

The panel, after consideration of the counsel’s advice, decided to proceed.

As the Member did not appear by 9 a.m., it was noted that an error in the amended Notice of Hearing provided indicated that the hearing was to take place on the fifth floor of the Royal College of Dental Surgeons when in fact, the proceedings were being held on the fourth floor. The panel adjourned the hearing for a half hour and the panel assistant was directed to check the fifth floor and lobby area for the Member or her counsel. Neither the Member nor her counsel were located.

The panel reconvened at 9:31a.m.

EVIDENCE

The basic and underlying cause for this hearing of February 6, 1998, was the alleged breach of the conditions that were imposed upon the Member by a previous discipline panel at a hearing held on July 25-29, 1994, at the College of Nurses of Nurses of Ontario. At that time, the panel found the Member guilty of professional misconduct in that she failed to maintain the standards of practice of the profession.

At that time, the panel imposed the following penalty conditions: (Exhibit #2)

1. The Member be reprimanded.

2. The Member’s Certificate of Registration be restricted such that she only be permitted to engage in the in the practice of nursing upon the following conditions:

a. the Member must provide proof to the panel that she has viewed the CNO’s video “One Is Too Many” and has read the self-directed learning tool accompanying the video and has read the University of Ottawa Curriculum Guide for Nursing: Violence Against Women and Children

b. the Member must ensure that employer performance appraisals are submitted to the CNO Director of Investigations and Hearings every six months for the next two years from the date of receipt of the notice of penalty.

3. The Member’s Certificate of Registration shall be suspended for three months. The suspension shall be suspended if the Member fulfills the conditions set out in Paragraph 2 of the Decision.

The allegations before this panel are that the Member did not fulfill the requirements imposed in this penalty, including but not limited to those set out in paragraph 2(b).

LIST OF EXHIBITS

1. Hearing Notices and Affidavits of Jan. 21 and 28, 1998

2. September 11, 1995, discipline committee decision.

3. Retirement residence Payroll Records for the Member

4. November 7, 1997 letter from College to the Member

5. Letter dated January 8, 1997 from College to the Member.

6. Letter to the Member from College dated May 29, 1996.

7. Performance Appraisal dated April 11, 1996, from retirement residence.

WITNESSES

The College’s first witness was Witness A, general manager of the retirement facility in Toronto, Ontario, for the past five years. He testified that the Member had been employed at the 200-bed retirement facility. Witness A provided the Member’s payroll sheets to the College of Nurses of Ontario (CNO) which the counsel tendered as Exhibit #3. These payroll sheets covered the period February, 1995 to April , 1997. The records indicate that the Member had been employed on a regular basis at the facility, working an average of 40 to 48 hours per two-week period as a part-time employee. He testified that the Member’s employment had been terminated by the company on July 3, 1997, because of a conflict of interest.

Witness A testified that there had been no gaps in the Member’s employment during the period of time under review. Exhibit #3 also indicated the Member had been on vacation leave from July 13, 1996, to August 9, 1996.

(The panel sought the advice of the Independent Legal Counsel concerning the propriety of hearing testimony from witnesses known to members of the panel, i.e., CNO staff ( Witness B, Witness C). Independent Legal Counsel advised that there will inevitably be occasions when CNO staff would be required to provide evidence and, in some cases, would become essential witnesses. Counsel advised that if the credibility of the witness was not in question, then hearing his/her testimony would generally not be of concern to the panel. The panel decided to proceed with hearing the College witnesses.)

The College’s second witness was Witness B , Discpline Committee Co-ordinator at the College for the past four years and an employee of the College for eight years. She testified that a letter dated November 7, 1995, (Exhibit #4) had been sent to the Member introducing herself as the person responsible for monitoring the imposed conditions on her Certificate of Registration as set out in the Discipline Hearing Decision of September 11, 1995.

In the letter (Exhibit #4), the schedule for receipt of performance appraisals was set out as follows: First performance appraisal;

March 11, 1996

September 11, 1996

March 11, 1997

September 11, 1997

Witness B testified that as she was on maternity leave during the Spring of 1996 and, therefore, was not the staff member who received the first performance appraisal from the Member. Her next contact with the Member was by telephone on October 24, 1996. During this contact she requested that the Member send in her performance appraisal for September 11, 1996. The Member said at that time that she was no longer employed and, therefore, could not provide the performance appraisal.

Witness B advised the Member to contact the College in writing when she was re-employed. As part of her job functions, Witness B reviews the annual registration renewal forms of members who have terms or conditions imposed on their Certificate of Competence. In doing so, Witness B observed that the Member’s annual renewal form revealed that she was currently working at the facility.

Witness B said that she sent the Member a letter dated January 8, 1997 (Exhibit #5) inquiring as to when the Member’s employment had commenced in order that the College could continue to receive performance appraisals as per the condition imposed upon the Member in the Decision dated September 11, 1995.

Witness B testified that she received no response to her letter.

Witness C, an administration secretary employed with the College for the past seven and a half years, testified that in the Spring of 1996, she replaced Witness B as acting co-ordinator for the Discipline Committee for a period of six months beginning in the Spring of 1996.

She testified that her first contact with the Member was March 14, 1996, when she requested the performance appraisal during a telephone conversation with the Member. Witness C testified she could not recall all the details of the conversation and as a result needed to refer to notes which she had with her. After referring to her notes, Witness C testified that the Member had said she was working only two days per week during the period of November, 1995 to February, 1996 and was unemployed thereafter. She said she asked the Member to ask her agency to provide a performance appraisal for the previous work period.

It was Witness C’s evidence that the Member said she would contact her previous employer and report back to the College.

Witness C testified she did not receive a return call from the Member. The Member was re-contacted by Witness C on March 21, 1996. Witness C testified that the Member told her the agency would not provide the performance appraisal because from October of 1995 until March of 1996 she was with a new group every other weekend.

Witness C then said she asked the Member for an appraisal up to March 11 and the Member said she would call the College back.

On April 25, 1996, Witness C testified that the Member had called the College and left a message saying she had received a performance appraisal and would mail it to the College.

On contacting the Member on April 30, 1996, as she had not received the performance appraisal, Witness C testified the Member said she had had someone mail it for her and would check it out and call back. During her testimony, Witness C referred to her file notes but could not find any reference to the Member having called back.

Exhibit #6 (a College letter dated May 29, 1996) was entered into evidence and was a notification to the Member that the College had received information regarding her nursing practice and a two-day suspension of her nursing duties with the facility. The letter also informed the Member that the College had received her performance appraisal from the facility and that the information provided indicated her overall performance fell below acceptable standards of practice for a registered nurse. It stated the Member’s next employer report was due September 11, 1997. It also advised that there was an expectation that there would be significant improvement in her practice, and if there was not, the College would consider taking further action in the matter.

Witness C identified Exhibit #7 as the performance appraisal provided to the College by the facility covering the period May of 1995 to April of 1996. This performance appraisal was dated April 11, 1996 and received by the College in May of 1996.

DECISION

Under allegation #1, the panel unanimously found the Member guilty of professional misconduct for contravening a term, condition or limitation placed on her Certificate of Competence by the Discipline Committee of the College of Nurses of Ontario in its Decision dated September 11, 1995.

Under allegation #2(a), the panel unanimously found the Member guilty of professional misconduct in that she engaged in conduct or performed an act relevant to the practice of nursing, that having regard to all the circumstances would reasonably be regarded by members as unprofessional in that: during the period September 1996 to June 1997 inclusive, she contravened one or more of the restrictions placed on her Certificate of

Competence by the Discipline Committee of the College of Nurses of Ontario in its Decision dated September 11, 1995.

Under allegation #2(b), a majority of the panel found the Member, guilty of professional misconduct in that she engaged in conduct or performed an act relevant to the practice of nursing, that having regard to all the circumstances would reasonably be regarded by members as disgraceful in that she advised the College of Nurses of Ontario in October 1996 that she was not working in October 1996 and, therefore, could not provide employer performance appraisals. In fact, such was not the case. She was employed and was therefore under an obligation to provide employer performance appraisals. This obligation was not met.

Under allegation #2(b), the panel unanimously found the Member, guilty of professional misconduct in that she engaged in conduct or performed an act relevant to the practice of nursing, that having regard to all the circumstances would reasonably be regarded by members as dishonorable and unprofessional in that she advised the College of Nurses of Ontario in October 1996 that she was not working in October 1996 and, therefore, could not provide employer performance appraisals. In fact, such was not the case. She was employed and was, therefore, under an obligation to provide employer performance appraisals. This obligation was not met.

APPLICABLE LEGAL PRINCIPLES

In considering the evidence presented, the panel applied the legal standards in regard to onus and standard of proof and the assessment of credibility.

Onus. It was accepted by the panel that the burden of proof lies clearly with the College in establishing that the allegations were committed by the Member.

Standard of Proof. The panel applied the standard of proof as set out in Re Bernstein and the College of Physicians and Surgeons of Ontario (1977), 1977 1072 (ON HCJ), 15 O.R. (2d) 447, 470:

In all cases, before reaching a conclusion of fact, the Tribunal must be reasonably satisfied that the fact occurred, and whether the Tribunal is so satisfied will depend on the totality of the circumstances including the nature and consequences of the fact to be proved, the seriousness of the allegation made and the gravity of the consequences that will flow from a particular finding.

In determining whether or not the onus had been met by the College. This standard requires that the evidence be weighted on the “balance of probabilities” and in relation to the seriousness of the allegations. The panel accepted that the case for the College must be clear and convincing and based upon cogent evidence in order to find that the allegations were proven.

Credibility of Witnesses and Evidence. The panel acknowledged that credibility was a major factor in assessing the weight to be given to evidence. Therefore the panel members carefully assessed the evidence of each witness and methodically based their appraisal upon the specific criteria for credibility. In Re Pitts and Direct of Family Benefits Branch (1985), 1985 2053 (ON HCJ), 51 O.R. (2d) 302 (Div. Ct.), these factors were considered in conjunction with all of the evidence.

In determining the credit to be given to the evidence of a witness, you should use your good commonsense and your knowledge of human nature. You might, in assessing credibility, consider the following:

The appearance and demeanour of the witness, and the nature in which he or she testified. Did the witness appear and conduct himself or herself as an honest and trustworthy person? It may be that he or she is nervous or confused in circumstances in which he or she finds himself or herself in the witness box. Is he a man or is she a woman who has a poor or faulty memory, and may that have some effect on his or her demeanour on the witness stand, or on the other hand, does he or she impress you as a witness who is shifty, evasive and unreliable?

The extent of his or her opportunity to observe the matter about which he testified. What opportunities of observation did he or she in fact have? What are his or her powers of perception? You know that some people are very observant while others are not very observant.

Has the witness any interest in the outcome of the litigation? We all know that humanity is prone to help itself, and the fact as a plaintiff or defendant, may, and often does, quite unconsciously tend to colour or tinge or shade his or her evidence in order to lend support to his or her cause.

Does the witness exhibits any partisanship, any undue leanings towards the side which called him or her a witness? Is he or she a relative, friend, an associate of any of the parties in this case, and if so, has this created a bias or prejudice in his or her mind and consequently affected the value of his or her testimony?

It is always well to bear in mind the probability or improbability of a witness’ story and to weigh it accordingly. That is a sound commonsense test. Did his or her evidence make sense? Was it reasonable? Was it probable? Does the witness show a tendency to exaggerate in his or her testimony?

Was the testimony of the witness contradicted by the evidence of another witness, or witnesses whom you considered more worthy?

Does the fact that the witness has previously given a statement that is inconsistent with part of his or her testimony at

trial affect the reliability or his or her evidence?

After weighing these matters and any other matters that you believe are relevant, you will decide the credibility of truthfulness of the witness and the weight to be given to the evidence of that witness.

REASONS

The panel assessed the evidence in its entirety. In reaching its decision, the panel divided its assessment of the evidence into the following categories: (1) credibility; and (2) factual findings.

Credibility

In reviewing the evidence, the panel considered the credibility of the witnesses on an individual basis. Specifically, the credibility was measured under the following five criteria: demeanor, observations of the witness (ability to recall facts), probability of testimony, inconsistencies of testimony, and the interest in the outcome.

Witness A: The panel found that Witness A was a composed witness who gave his testimony in a straightforward manner without hesitation. He displayed a strong ability to observe in that he had good recollection of the events related to The Member’s employment. He was the general manager at the retirement facility during the time in question. No inconsistency was found in his testimony. The panel concluded that his evidence was believable. Witness A testified that The Member’s employment had been terminated from the facility for just cause. The panel did not perceive that Witness A had an interest in the outcome of this hearing. No grievance proceedings were undertaken as a result of the Member’s dismissal.

Witness B: The panel found that Witness B gave her testimony in a calm, sincere and forthright manner. She had excellent recollection of the events and the panel found no inconsistencies. Her testimony was believable and consistent with the contents of the letters she sent to The Member (Exhibits #4 and #5).

The panel concluded that although this witness is an employee of the College of Nurses of Ontario, she was only fulfilling her job requirements and she had no other interest in the outcome.

Witness C: The panel found that the testimony of Witness C to be delivered in a straightforward manner. She admitted to not being able to recall exactly what she said to The Member during their March 14 phone conversation, but remembered that it was in relation to a performance appraisal that was due. She reviewed notes taken at the time to help her refresh her memory.

Her testimony was considered believable by the panel. The panel concluded that though the witness is an employee of the College of Nurses of Ontario, she was only fulfilling her job requirements and she had no other interest in the outcome.

Overall, the panel found all three witnesses to be credible in their testimony.

Findings of Fact

The panel found there was sufficient evidence presented by the counsel for the College of Nurses of Ontario to prove to the panel that the Member had contravened a term, condition or limitation placed on her Certificate of Competence by the Discipline Committee of the College of Nurses of Ontario in its Decision dated September 11, 1995.

It was clear that the Member had been employed and worked on a regular basis during the time period between February 1995 to July 1997. The Member was required to provide the College with a performance appraisal on September 11, 1996, which she failed to do.

The panel also concluded that the Member was untruthful to the College in indicating that she was not working at the

time in question and was therefore unable to send in the required performance appraisal. In fact, she was employed during the relevant period.

In summation, the panel concluded that the allegations were proven by the College to the standards required.

COLLEGE COUNSEL’S SUBMISSION ON PENALTY

The College counsel presented his submission on penalty orally immediately after the panel had given its oral decision in this case on February 6, 1998.

He recommended to the panel that:

1. The original three-month suspension imposed September 11, 1995, by a previous discipline panel be re-instated for failure to meet the requirement as set out by the panel, i.e., that she submit regular performance appraisals to the College for a period of two years;

2. The Member’s Certificate of Registration be suspended for at least an additional six months for failure to provide employer evaluations to the college as set out in Allegations 1 and 2(a);

3. The Member’s Certificate of Registration be suspended for an additional three-month suspension related to the finding of professional misconduct in relation to Allegation 2(b);

4. Taking all things into account, the Member’s Certificate of Registration be suspended for a minimum total of twelve months;

5. Terms, conditions or limitations should be imposed upon the Member’s Certificate of Registration, in the form of a reporting period to the College at four-month intervals over the course of two years; and

6. An oral reprimand should be administered.

PENALTY

After deliberation, the panel accepted, in total, the penalty as submitted by the College counsel and also recommended that the College arrange for the Member to appear before the panel for an oral reprimand.

In reaching its decision, the panel took into consideration the importance of its mandate in protecting the public interest.