College of Nurses of Ontario v. Rousseau, 2012 ONCNO 98108

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Agnese Bianchi, RN Chairperson

Spencer Dickson, RN Member Samantha Diceman, RPN Member

John Bald Public Member

Debra Mattina Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) NICK COLEMAN for

) College of Nurses of Ontario

• and - )

AMANDA ROUSSEAU ) NO ONE PRESENT for

Registration No. 9681420 ) Amanda Rousseau

) LUISA RITACCA

) Independent Legal Counsel

) Heard: May 15, 16, 17, 18, 2012 and

) July 31, 2012

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 15, 16, 17, 18, 2012 and July 31, 2012 at the College of Nurses of Ontario (“the College”) at Toronto.

As Amanda Rousseau (“the Member”) was not present, the hearing recessed for 20 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was not in attendance.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing [ ] on April 27, 2012. The College demonstrated [ ] that they had made numerous attempts to contact the Member, but these attempts were futile. The panel was satisfied that the Member had received notice and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against Amanda Rousseau (the “Member”) as stated in the Notice of Hearing dated April 27, 2012 are as follows.

IT IS ALLEGED THAT:

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 defined in subsection 1(1) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Facility] in [ ] Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession with respect to misappropriating approximately $25,000 from the workplace in or about April 2007 to March 2009.

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 defined in subsection 1(8) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Facility] in [ ] Ontario, you misappropriated property from the workplace in the amount of approximately $25,000 in or about April 2007 to March 2009.

3. 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 defined in subsection 1(15) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Facility] in [ ] Ontario, you signed or issued, in your professional capacity, documents that you knew or ought to have known contained false or misleading statements with respect to misappropriating approximately $25,000 from the workplace in or about April 2007 to March 2009.

4. 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 defined in subsection 1(37) of Ontario Regulation 799/93, in that, while employed as a Registered Nurse at [the Facility] in [ ] Ontario, you engaged in conduct or performed an act or acts, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional with respect to misappropriating approximately $25,000 from the workplace in or about April 2007 to March 2009.

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations in the Notice of Hearing. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member was initially registered as a Registered Nurse with the College in July 1996. Her certificate of registration was suspended for non-payment of fees in February 2011. From 2000-2009, the Member was employed by the [the Facility] in a series of progressively more responsible positions. These roles included staff nurse (2000-2005), Team Leader [ ] (2005-2006), Operations Coordinator (2006-2007), Manager, Community Health Programs (2007-2009), and Director, Patient Care Services (2009). The relevant time period, as it relates to the allegations, is while the Member was serving in the roles of Manager, Community Health Programs and Director, Patient Care Services covering 2007-2009.

Following identification of financial irregularities, [a firm] was retained by counsel for [the Facility] as Forensic Auditors for the purpose of investigating unusual transactions which had occurred between April 2007 and March 2009. With receipt of the forensic audit report from [the auditors], the Member’s employment was terminated with [the Facility] in July 2009.

The issues are as follows:

1. Did the Member fail to meet the standards of practice and did she commit acts of professional misconduct in the workplace between April 2007 and March 2009 in that she misappropriated approximately $25,000 from the workplace? Did the Member:

i. Deposit into her bank account, cheques for cash advances or reimbursement for expenses, that were made payable to other staff members?

ii. Add her name and deposit into her bank account, cheques payable to [the Facility]?

iii. Deposit into her bank account, cash advances made to the Member by [the Facility] and the Volunteer Association, based upon questionable receipts submitted by the Member?

iv. Deposit into her bank account, cash advances, without providing supporting documentation and/or receipts?

v. Claim and receive payment for miscellaneous expenditures not incurred?

vi. Deposit into her bank account, cheques from external sources, payable to [the Facility]?

2. Did the Member sign or issue in her professional capacity, documents that she knew or ought to have known contained false or misleading statements?

The panel heard evidence from fourteen witnesses and one expert witness and received forty-two exhibits to consider. The panel found the factual allegations against the Member were proven. In particular, the panel found that the Member had misappropriated funds and signed false or misleading documents as alleged in the Notice of Hearing. Based on those facts, the panel found that the Member committed professional misconduct in that she misappropriated funds, signed false or misleading documents, failed to meet the standards of practice, and engaged in conduct that would be regarded by members of the profession to be disgraceful, dishonourable, and unprofessional.

The Evidence

The evidence consisted of forty-two exhibits, oral testimony from thirteen witnesses and an affidavit from one witness, as well as one expert witness.

Member’s Registration

The Member’s initial registration as a Registered Nurse, with the College was November 14, 1996. The Member was suspended for non-payment of fees on February 15, 2011 [ ].

From 2000-2009, the Member was employed by [the Facility], a mental healthcare facility. Her roles included staff nurse (2000-2005), Team Leader [ ] (2005-2006) [ ], Operations Coordinator (2006-2007) [ ], Manager Community Health Programs (2007-2009) [ ], and Director Patient Care Services (2009) [ ]. The Member’s employment with [the Facility] was terminated on July 2, 2009 [ ].

Investigation of Financial Irregularities

[Witness #1], RN, Vice-President Patient Care Services [at the Facility] since 2008, testified to the Member’s employment with the organization [ ]. The [unit] provides mental health community service to [clients] who require monitoring through continued support. When the Member was Manager, there was a level of management between [Witness #1] and the Member, but when the Member became the Director of Patient Care Services, she reported directly to [Witness #1]. In both the Manager and Director roles, the Member was responsible for approving expenses and claims of her staff but was not authorized to approve her own expense claims.

The circumstances related to the allegations first came to the attention of [Witness #1] when a member of the secretarial staff [ ] informed him that an expense claim had been made and paid in her name for an expense she did not make. A request for supplies had been approved but the staff never received the supplies. Upon [Witness #1]’s investigation, nothing definitive was determined. [Witness #1] reviewed with all Directors and Managers the policy regarding the submission of claims to volunteer groups. At this time, no further steps were taken regarding more extensive scrutiny.

The Director of Finance [ ] was approached by [Witness #1] and asked to remind all Directors and Managers about proper procedures. [Witness #1] testified that he heard no further complaints until the forensic audit report from [the auditors] was brought forward. The draft [audit] report identified irregularities relating to the Member. Upon receipt of this draft report, [Witness #1] suspended the Member with pay on June 1, 2009, pending the official outcome of the investigation into the financial irregularities. The Member was subsequently terminated on July 2, 2009 [ ]. The final [audit] report, [ ] verified by [Witness #1], was issued July 28, 2009, [and] the Member was identified as the person responsible for a string of misappropriations over a period of almost two years. [Witness #1] testified that the Member did not bring action for wrongful termination against [the Facility].

[Witness #2], Director of Finance at [the Facility] testified as to the procedures to be followed for the reimbursement of expense claims, cash advances and petty cash payments. These expected procedures included: all requests for reimbursement are to be approved by the individual’s manager, a practice known as “one-over-one”, original receipts must be submitted in support of expense claims, expense reimbursement cheques are to be made payable to one payee only, receipts must be submitted to the Finance department within 30 days of incurring expenses, to substantiate a cash advance, any funds in excess of receipts for a cash advance are to be returned to the Finance department and petty cash funds are administered by two custodians approved by the Finance department.

Ms. Kealey stated that during the year-end financial reconciliation process, a number of discrepancies came to light, particularly in the Member’s department. These discrepancies were outlined in a memorandum to [the] Vice-President of Finance and Chief Financial Officer [ ]. The witness testified that [Witness #10, a social worker at the Facility], enquiring as to why he had not been reimbursed for expenses, approached her. Upon further investigation, it was found that a cheque, which appeared to have been “endorsed” by him, was in fact fraudulently endorsed. This incident triggered the [auditor’s] investigation.

[Witness #3], Forensic Accountant with [the accounting firm] retained by [the Facility], testified regarding his investigation, encompassing the period of April 1, 2007 to March 31, 2009, as to the unusual and suspicious transactions of [the Member]. The scope of the investigation included the identification of potentially missing funds by the employee, investigation of claims that had been made by various parties and preparation of a report outlining [the auditor]’s findings to assist [Facility] management in determining and evaluating further decisions and actions. The report contains copies of all cheques and receipts, as well as interviews with each of the cheque recipients and Ms. Rousseau [(the Member)].

[Witness #3] testified that at the conclusion of the investigation, six categories of misappropriation were identified, totalling approximately $25,000. These categories of misappropriation were as follows:

• Advances or reimbursement for expenses where the cheque was made payable to another staff member but appears to have been deposited into the Member’s bank account

• Cheque reimbursement from the Volunteer Association, initially made payable to [the Facility], but the Member’s name was added to the payee line and the amounts were deposited in what appears to be the Member’s account

• Cash advances made to the Member by [the Facility] and the Volunteer Association, where receipts submitted were photocopies or original receipts previously submitted, or the advances were for the same expense as original receipts previously submitted

• Advances payable to the Member where no documentation has been submitted in support of the advance

• The Member submitted receipts from other staff members as her own and a staff member’s expense report was modified and claimed as her own.

• Numerous cheques made payable to [the Facility] from [a particular group] appear to have been signed and deposited by the Member into her account.

The witness also verified that the bank accounts, into which the cheques in question were deposited, belonged to the Member. The Member signed one of the cheques [ ] in question but the witness was unable to identify the account holder [ ]. The [auditor’s] report states that during the interview with the Member, she confirmed depositing the cheque(s) into her accounts but states she did not sign them.

Witnesses and Exhibits Supporting the findings of the [Auditor’s] Report

[Witness #4] was secretary for [a] Program, where the Member was her manager from 2007-2009. [Witness #4 identified] examples of situations where her name had been endorsed but it was not her signature. Also, the witness testified that some of the expense request forms in question were not in her handwriting, nor expenses incurred by her, and that the forms indicated that the Member was to pick up the cheque.

[Witness #5] had been [a] Program Assistant since 2003 with [the Facility]. [Witness #5] testified that travel expenses, submitted in her name [ ], were for travel she did not make, nor did she prepare or ask anyone to prepare travel expense forms for her. The witness testified that the handwriting on the form was that of the Member. [Witness #5] further testified that she did not prepare, nor ask anyone to prepare, cash advances or reconciliation requests on her behalf [ ] and that she recognized the handwriting as that of the Member in all instances. One of the cheques had been issued to the Member and two of the cheques were issued to the Member and [Witness #5]. All the cheques were deposited into the Member’s account. The Witness testified that she has “never” provided the Member with loose receipts for her to submit claims for reimbursement.

[Witness #6], since 2008, has been the owner and operator of [a restaurant]. A [ ] dinner had been booked for the year 2008 for [Facility staff, clients] and families. Sometime later, the Member went to the restaurant to speak with [Witness #6], “demanding” receipts for the dinner. Although [Witness #6] was unable to locate any record of the dinner having occurred, he issued back-dated receipts at the Member’s insistence and gave them to the Member. Evidence shows that the Member submitted the receipts to substantiate cash advances from both the Volunteer Association and [the Facility].

A sworn affidavit from [Witness #7], accepted by the panel, testified that the [ ] dinner of 2008 was cancelled because of a bus strike [ ]. This was confirmed by the testimony of [Witness #8], Recreational Therapist [ ].

[Witness #9], was a social worker [ ] from 2007-2009. He has been a Team Leader since 2010. He was in charge of the Wellness Group at the time of the alleged offences. In that capacity, he ran up incidental expenses for which he would claim reimbursement.

A cheque was received from the Volunteer Association and endorsed by the witness. It was submitted to the Member by [Witness #9] with the understanding that she would deposit it into a hospital account that he could draw from as needed. The Member confirmed with the witness regarding depositing the cheque in her bank account and indicated that the cash would be available in a lock-box in her office. The lock-box has never been found nor the money recovered. [ ]

[Witness #9] confirms that some of the receipts were legitimate and submitted by him. A number of the receipts, however, he did not recognize as his or those belonging to the Wellness Group. [Witness #3] and the [auditor’s] Report verified those receipts not recognized by [Witness #9] as personal purchases made by the Member and confirmed by her Debit Card number. [ ]

[Witness #10], a Social Worker [ ], worked under the supervision of the Member from 2007-2009 but had been with the program since 1991. Part of his responsibilities included the organization of special events, which were times to get to know clients. The program required that he sign and submit appropriate forms for reimbursement of expenses. [The] witness submitted a claim for $261.84. He testified that this was submitted to the Member but the claim was altered to $726.84. After months of non-payment, with many requests to the Member, [Witness #10] went to the Accounting Department with his issue. He was advised that the cheque had been issued and cashed approximately six months before, endorsed by him. [Witness #10] testified that it was not his signature and no one had been authorised on his behalf to sign the cheque. Accounting then issued him a cheque for $261.84. [Witness #10] testified that in May, 2009, the Member approached him and gave him $262.00 cash. [Witness #10] then returned $262.00 to Accounting. Although the Member states that she did not sign the back of the cheque, she does confirm that she deposited it into her bank account. [ ]

[Witness #11], Program Co-ordinator for the Early Intervention Program, was responsible to the Member during the period in question. He incurred expenses for summer programs with “at risk” students and submitted claims to the Member for reimbursement.

[A] cheque was issued to [Witness #11] in the amount of $1,126.38. He claimed to have never received the cheque though it was endorsed with his name. It had been deposited into the Member’s account [ ]. The request form applicable to this cheque had been altered after the original form had been submitted by [Witness #11] to the Member.

[Witness #11] identified a cash advance for $950.00 in his name but acknowledged that it was not in his handwriting. Financial records show that the money was deposited into the Member’s account.

The receipts used to support the claim [ ] were photocopies of original receipts used in a previous claim [ ]. The photocopies were subsequently reused to make a claim for a cash advance for the Volunteer Association. This [e]ffectively means that three cheques were issued, based on one set of receipts, and all three cheques ended up in the Member’s account. [Witness #11] testified that he did not fill out the related request forms connected to the photocopied receipts.

As part of [Witness #11’s] duties, he spent time with [a particular group]. He noted a delay in receiving reimbursement for events that had occurred in March 2009 and on discussion with the Member regarding this problem, he was told by her that she would reimburse him. He was to pick it up at her residence in her mailbox. It was a personal cheque from the Member made out to him.

[Witness #11] went on to identify other financial irregularities in relation to payments that were to have been paid to him on behalf of the [group]. Further to cheque irregularities with [group] events, [Witness #3] verified that of the 40 cheques issued by the [group], eleven cheques made payable to [the Facility] totalling $11,900.00 were signed and deposited into an account belonging to the Member [ ].

[Witness #12], a volunteer [ ] Secretary and Rental Coordinator [for a camp], testified that upon receiving a phone call from someone at [the Facility], he issued a duplicate receipt for $632.00 for camp rental from September 3-5, 2008.

[Witness #3] expanded upon this irregularity by testifying that the duplicate receipt was used to fraudulently obtain reimbursement at least twice from [the Facility]. One of the cheques related to this event was issued by the Volunteer Association, payable to [the Facility], however the payee line was altered to include the Member’s name. It was signed by the Member and deposited into her account [ ].

[Witness #13] was a volunteer and the Treasurer of the [ ] Volunteer Association from 2007-2009. Her testimony provided the accepted procedure for obtaining funds from the Volunteer Association. She indicated most funding was captured in the annual budgetary process, however, sometimes requests were granted for additional money if it was available. In particular, cash advances could be requested. Cash advances were issued by cheque and original receipts were required to support the claim. The witness testified that it was against policy to add a name to the payee line of a cheque and it is unlikely that authorisation would ever be given by anyone.

[There were three] examples of cheques issued to the Member from the Volunteer Association with no documentation to support the requests. These cheques were cashed by the Member and deposited into her account.

[Witness #14], an R.N. [, ] and [Witness #15], a Dietitian [ ], both testified that they had attended the Team Building event/Spa Day with other members of their team, including the Member. Both stated that they paid for their own treatment and neither had claimed for reimbursement by submitting receipts. However, the Member submitted receipts on behalf of all attendees including the witnesses, totalling $1,000.00 [ ], under the name of [Witness #4] and her own name. [Witness #4], whose testimony is summarized above, denied having any involvement in the event or knowledge of claims for reimbursement in her name. The cheque associated for this cash advance had no endorsement but had been deposited into the Member’s payroll account. [ ]

[The expert] was qualified as an expert witness in Ethics and CNO Standards of Practice by the panel. [ ]

In order to prepare an opinion, the witness was provided with a fact scenario [ ], the [auditor’s] Report, the CNO Professional Standards (Revised 2002), [ ] and CNO Ethics Standards [ ].

Using these documents as her basis, the witness formed an opinion with regard to the Member’s actions. She stated that, in her opinion, the Member had been deceitful, dishonest and abusive in her professional relationships and this is evidenced by her falsification of documents.

The Member was a leader who exploited the position for her own self-interest. She thus put client interests second. She took money from the Health Care system and therefore exploited [clients]. [The expert] opined that nurses must maintain the trust of the public. When they are deceitful, public trust is lost and [client] care is questioned. The Member had compromised the rules of a self-regulated profession and members would be appalled by her behaviour. Her actions definitely were disgraceful, dishonourable and unprofessional.

Final Submissions

College counsel summarized the allegations and the evidence. He stated that the civil standard of proof is the balance of probabilities. The panel must find that it is more likely than not that the Member committed the allegations. The burden of proof rests with the College. The evidence as presented was clear, cogent and convincing, and based on the balance of probabilities, it is more likely than not that the Member committed the offences.

The fact that the Member did not attend must not be the basis of the Panel finding her guilty. Evidence must be the heart of the matter and the College must prove its case as if she had been here and pleaded, ‘Not Guilty’.

None of the evidence was disputed or challenged. The Member was the only person who could have commented on some of the evidence. The Panel must consider the evidence as presented.

Counsel submitted that based on the evidence, the Panel should find the Member guilty of professional misconduct in all four allegations. Also, College counsel submitted that based on the evidence and the Expert witness testimony, the Panel should find the Member guilty of conduct that other members of the profession would find [ ] disgraceful, dishonourable and unprofessional.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities, and based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2, 3 and 4 of the Notice of Hearing. In particular by:

1. failing to meet the standards of practice and by committing acts of professional misconduct in the workplace between April 2007 and March 2009 in the following manner:

i. the Member misappropriated approximately $25,000 from the workplace and deposited money into her personal account,

ii. the Member added her name and deposited to her account cheques payable to [the Facility],

iii. cash advances were made to the Member and money deposited to her account based upon questionable receipts submitted by the Member,

iv. cash advances were made to the Member and deposited to her account, with no documentation,

v. the Member claimed and received payment for miscellaneous expenditures which were not incurred,

vi. the Member deposited to her account cheques from external sources payable to [the Facility].

2. The Member signed and issued in her professional capacity documents that she knew or ought to have known contained false or misleading statements.

In addition, the panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Reasons for Decision

The panel heard evidence from fourteen witnesses and one expert witness and, using the criteria set out in Pitts v Ontario (Ministry of Community and Social Services, Director of Family Benefits Branch), found the evidence of the witnesses to be forthright, credible and consistent with the documentary evidence.

The panel relied on 42 exhibits and the testimony of the witnesses in arriving at its decision.

The panel determined that the Member’s actions were not those that represented the professionalism of a nurse as expected by the public and other members of the profession. There was significant deceit and dishonesty in the Member’s actions and the circumstances of this case have the potential to bring shame to the profession. The repeated nature of the offences and the fact that the Member used the Health Care system as well as two charitable organizations and vulnerable clients for financial gain, represents a significant professional and moral failing. The panel concluded the Member’s actions would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

Penalty Submissions

College counsel submitted that the only appropriate penalty is revocation of the Member’s certificate of registration. He stated that the Member’s conduct was most serious, involving breach of trust from someone in a senior management position. She exhibited profoundly dishonest behaviour, an extensive pattern of conduct involving various devious mechanisms, misappropriation of money and fraudulent dealings with employees, volunteer organizations and the public. Rehabilitation is not an option and the emphasis should be on deterrence. There is no other way to protect the public interest from such predatory, fraudulent behaviour. Such conduct is intolerable and should attract the severest of sanctions.

College counsel submitted two cases on point CNO v. Mary Ellen Janzen (2002) and CNO v. Sharon Edmondson (2001). Both cases provided guidance for the panel’s consideration with regard to penalty.

Penalty Decision

The panel makes an order directing the Executive Director to revoke the Member’s certificate of registration.

Reasons for Penalty Decision

The panel considered as mitigating factors the fact that this was a first offen[c]e for the member and the fact that the offences did not involve [client] physical abuse. However, the panel finds the offen[c]es were so egregious that they overrode any mitigating circumstances. The panel concluded that the Member’s behaviour was premeditated, deliberate, repetitive and dishonest. The panel decided that the penalty of revocation provides specific deterrence to the Member and general deterrence to the membership and, most importantly, protects the public.

I, Agnese Bianchi, sign this decision and reasons for the decision as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel as listed below:

Chairperson Date

Panel Members

Spencer Dickson, RN

Samantha Diceman, RPN

John Bald, Public Member

Debra Mattina, Public Member