College of Nurses of Ontario v. Paul Gesembe, 2013 CanLII 97342

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Tammy Hedge, RPN Chairperson

Sue Roger, RN Member April Plumton, RPN Member Cathy Egerton Public Member

Abdul Patel Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) MEGAN SHORTREED for

) College of Nurses of Ontario

• and - )

PAUL GESEMBE ) LINDSAY DAVIAU for

Registration No. JE00983 ) Paul Gesembe

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: November 11-13, 2013

) November 26-29, 2013

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on November 11 – 13, 2013, and November 26 – 29, 2013, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The original Notice of Hearing contained allegations that the Member sexually harassed six women at his former place of employment. One of those women did not attend this hearing to testify. The College therefore requested leave to withdraw the allegation concerning her, which was allegation 1(a). The Member did not object and the panel granted this request. The remaining allegations against Paul Gesembe (the “Member”) as stated in the Notice of Hearing dated November 4, 2013, 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(37) of Ontario Regulation 799/93, in that you engaged in conduct relevant to the practice of nursing that would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, as follows:

a) withdrawn;

b) in or around 2008, you sexually harassed [Co-worker ] by making comments to her about her breasts, and/or attempting to touch her breasts;

c) in or around 2008 and 2009, you sexually harassed [Co-worker B] by:

i) asking her on a date and asking if she had a boyfriend;

ii) attempting to place her name tag on her chest;

iii) touching her on her shoulder and thigh; and/or

iv) blocking her from exiting the medication room;

d) between about January 2009 to April 2009, you sexually harassed [Co-worker C] by brushing your body up against hers in the medication room, and/or placing your arms around her and wrestling with her;

e) in or around February 2009, you sexually harassed [Co-worker D] by asking her if she wanted a massage, and/or touching her on her shoulders and/or breasts; and/or

f) in or around 2008 and 2009, you sexually harassed [Co-worker E] by touching her several times on the shoulder.

Member’s Plea

The Member denied the allegations set out in the Notice of Hearing.

Overview

The Member, a Registered Practical Nurse (“RPN”) with the College since January 21, 2005, was employed at [the Facility]. [The Facility] had 237 beds on 4 different floors with 60 to 64 residents each. It provided long-term care to residents. The Member was employed there from February 22, 2005 to March 4, 2009 in a casual position as an RPN.

It was alleged that the Member sexually harassed co-workers at [the Facility] between January 2008 and February 2009. His employment was terminated as a result of findings made in an internal investigation. There was a criminal proceeding. Some witnesses were cross-examined on statements they made during the police investigation and criminal trial. The parties agreed that the panel did not require further facts about the criminal proceeding, or its end result, in order to determine the allegations of professional misconduct set out in the Notice of Hearing.

The allegations before this panel involved five of the Member’s former co-workers, who claimed that he sexually harassed them at work. The Member testified in his defence and denied that any of these incidents occurred. Although the harassment allegedly occurred over a period lasting more than a year, the allegations only came to light in February 2009, after one co-worker – [Co-worker F] – made a report. That report sparked an investigation that led to other allegations being made.

The panel heard from twelve witnesses and considered 35 exhibits, including administration records, workplace policies, information from the Member’s personnel file, employee schedules, College standards and a brief Agreed Statement of Facts. The issues the panel was asked to consider are as follows:

1. Did the Member sexually harass one or more of his co-workers as alleged?

2. If so, would the Member’s conduct reasonably be regarded by members of his profession as disgraceful, dishonourable and/or unprofessional?

Having considered the evidence and the onus and standard of proof, the panel found that the Member committed acts of professional misconduct as alleged in paragraphs 1 (c) (i), (ii), (iii), (iv), (d), (e), and (f) in the Notice of Hearing. The Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional in that he sexually harassed four co-workers while employed at Highbourne Lifecare Centre between October 2008 and February 2009.

The panel did not find that the Member had sexually harassed [Co-worker A], and so the panel makes no finding of misconduct with respect to paragraph 1 (b) of the Notice of Hearing.

The Evidence

Background – The Member

Paul Gesembe (the “Member”) came to Canada from Kenya in 2001 to study nursing. He graduated from the Registered Practical Nursing Diploma Program [ ] in 2004, allowing him to register as a Registered Practical Nurse with the College of Nurses of Ontario on January 21, 2005.

In February 2005, he gained full-time employment on the night shift on unit three at [the Facility] in [ ] Ontario. In 2007, Mr. Gesembe went to a casual position working as an RPN on the day shift, on units two, three, four and five, so that he could attend [a] Bridging to Registered Nurse Program [ ].

The Member testified that he’d had no charges against him [ ] and this is the first time that he has become before a discipline panel at this College. He is a member of [a church]. He explained that his duties included administration of medications, assessments, treatments, dealing with family issues, physicians, pharmacy and supervising the Personal Support Workers (“PSWs”).

Apart from the matters that gave rise to these allegations, there were no concerns with the Member’s employment or his competence as a nurse.

Background – The Centre

The panel heard evidence from [ ] the administrator of [the Facility], who has been a Registered Nurse since 1974 and has a Masters degree in Adult Education Administration. She was responsible for five departments within human resources that also included the nursing department.

[The administrator] identified various workplace policies and guidelines that included Job Performance Expectations, Abuse and Aggression policies, Standards of Conduct, and the Workplace Harassment and Discrimination Policy. The Workplace Harassment and Discrimination Policy was revised in 2009, but was consistent throughout the relevant time period in terms of its prohibition and definition of sexual harassment.

[The administrator] identified various documents showing that the Member was familiar with the policies of [the Facility], such as:

• an Employee Letter of Understanding signed by the Member on February 22, 2005, in which the Member acknowledged that he had received and understood the facility’s Standards of Employee Conduct;

• a further signed acknowledgement by the Member dated July 24, 2005 that he had reviewed and agreed to abide by the Standards of Employee Conduct;

• a Performance Evaluation Checklist signed by the member on January 1, 2007, confirming that he had reviewed the Standards of Employee Conduct;

• a sign-in sheet for an educational in-service entitled “Abuse: Reporting and Investigating” dated September 12, 2008, where the Member’s name was checked off as an attendee; and

• the attendance record for a mandatory educational in-service, Workplace Violence Prevention Program, dated December 2008 and signed by the Member.

In his evidence, the Member himself testified that he was familiar with [the Facility]’s policies with respect to harassment and sexual harassment, and there is no dispute that they applied to his employment. He testified in cross-examination that he understood that the policy against sexual harassment could cover:

1. unwanted physical contact;

2. unwanted attention;

3. unwanted questions or comments about one’s own private life;

4. asking someone on a date;

5. inappropriate comments about clothing, physical characteristics or activities;

6. inappropriate comments about someone’s marital or family status; and

7. solicitation.

In terms of the layout of [the Facility], [the administrator] identified a document showing the Typical Floor Plan for the resident floors of [the Facility]. Each resident floor was considered a separate Unit. The Typical Floor Plan showed the location of areas that [were] central to the allegations, including the medication room and the nurses’ station. She testified that only registered staff was allowed access to the medication room. [The administrator] also said that there was a medication cart in the medication room and one in the hallway, as there were two RPNs working every shift. Her evidence was that if anyone was at the nursing station, they wouldn’t be able to see past the staff washroom and down into the hallway. They would not be able to see into the medication room.

[The administrator]’s evidence about the physical layout of [the Facility] was confirmed by [ ], a Registered Nurse and Director of Care [(DOC)] at [the Facility]. [The DOC] has worked there for the past twenty years. She is responsible for the Registered Nurses, RPNs, PSWs and nursing clerks. She testified that she supervised the Member from 2005 until he was terminated in 2009.

[The DOC] testified that she set the schedule for the Member for the period of October 1, 2008 to February 15, 2009. She also set the schedule during the relevant time period for many of the other witnesses. These schedules were entered as exhibits, and allowed the panel to see when each staff member worked with the Member and worked with one another.

Incident # 1

[Co-worker A] is 35 years old and now works as a full-time PSW at [the Facility]. In 2008 and 2009 she worked the day shift. She probably worked with the Member twice every two weeks, [].

[Co-worker A] testified she began having problems with the Member in 2008, beginning in the summer or early fall. She said whenever she worked with him, he would approach her, talking about her breasts, about how her breasts looked, and trying to look down her clothes. When asked for specifics about what the Member said, she testified that the Member’s comments included remarks like, “Why do my breasts look like that today, is it because of the brassiere I am wearing,” and “They look bigger.” She said he did this every time they worked together. She would tell him to stop and he would just laugh.

In terms of looking down her clothes, [Co-worker A] testified that she wore v-neck scrubs. The Member would come up beside her and try to peek down the v-neck. She would say, “What are you doing?” and he would stop. She said this happened every time she worked with him.

[Co-worker A] said that the Member would sometimes follow her to resident rooms when he had no reason to do so. She would place the linen cart between herself and the Member in order to keep him away. Once she picked up a lotion bottle and told him [s]he would hit him with it.

She said that the Member once tried to touch her inappropriately. They were in the main dining room and she was feeding a resident. The Member tried to grab the side of her breast. She saw his hand coming close to her breast and stopped him before he could touch her.

According to [Co-worker A], the Member’s inappropriate conduct stopped once [Co-worker F] came to work on the Unit. She said she saw the Member trying to touch [Co-worker F], and thought that was the reason he had stopped trying to touch her. She believed this was in the fall of 2008.

She did not report this to her employer because she didn’t want the Member to get into trouble, and thought that he would learn to stop and take his job seriously. She did discuss this with [Co-worker F] and with another complainant, [Co-worker E]. They worked on the same side of the Unit as [Co-worker A]. [Co-worker A] said she told both [Co-worker F] and [Co-worker E] exactly what the Member was saying and what he was trying to do.

In cross-examination, [Co-worker A] agreed that the day shifts (when she worked with the Member and the misconduct allegedly occurred) were busy shifts. There would be 60-63 residents on the floor, and – depending on whether it was a weekday or a weekend – 9-10 nurses and PSWs. There might also be dieticians, maintenance staff, cleaning staff and visitors.

After [Co-worker F] made her initial report to [the Facility], “everyone” was talking about it. [Co-worker A] was interviewed by the police on February 25, 2009. She did not tell the police that the Member had tried to touch her breast. She said she didn’t remember at the time. [Co-worker A] testified at a criminal trial about these matters. At that trial, she said that the Member “always wants to touch my breasts.”

In his evidence, the Member denied that he ever said anything to [Co-worker A] about her breasts, ever tried to look down her top, ever tried to follow her into a room when he had no business to be there, or ever tried to touch her breasts. He said he’d worked with [Co-worker A] occasionally. Once, as her supervising RPN, he’d told her that she had taken a longer break than she was supposed to take. She agreed with him that her break had been too long. Otherwise, he believed they had a normal working relationship.

Incident # 2

[Co-worker B] is an RPN who has worked full-time at [the Facility] for the past eight years, two of them with the Member. [Co-worker B] testified that she saw the Member outside of the hours of work, as she was interested in doing the Registered Nurse Program [ ] and he was already doing it. They went to [the educational institution] once together so that she could see about the program. She took rides to the subway with him and sometimes went with the Member to get coffee for the staff.

[Co-worker B] testified that she had problems with the Member’s conduct. Before Valentine’s Day in 2009, the Member allegedly asked her, “Do you have a boyfriend?” and “Do you want to go on a date with me?” She said the Member asked her out several times and she told him she was not interested. One day while [Co-worker B] was in the medication room, the Member grabbed her by the shoulders, facing her, blocking her from leaving. He said to her, “Why are you scared of me?” and “Why won’t you go on a date with me?” She said she replied by stating, “Stop, remove your hands.” He stopped.

[Co-worker B] testified that at another time her name tag fell on the floor, the Member picked it up and tried to put it back on her shirt. [Co-worker B] said, “What are you doing? Stop it.” The Member stopped and [Co-worker B] put the name tag back on herself.

The last incident that concerned her took place while she was charting at the nurse’s station. She said the Member touched her thigh, she told him to stop it, as it is unprofessional and making her uncomfortable.

She testified that she did not officially report these incidents to the administration because she didn’t want to make it more uncomfortable th[a]n she had to, as she had to work with the Member on the same floor. However, she did report concerns about the Member to [Dr. A], the medical director of the facility. [The administrator] testified that on February 27, 2009, [Dr. A] reported to the administration that [Co-worker B] had confided in him about the Member and he thought [Co-worker B] should come forward on her own.

The Member testified that he never asked [Co-worker B] if she had a boyfriend and never asked her on a date. He testified he never wanted to go on a date with her. He said that he had a girlfriend at the time. He was not romantically interested in [Co-worker B]. He denied ever trying to pin her name tag on to her chest, or that he blocked her from exiting the medication room. He said he and [Co-worker B] had a normal, friendly relationship.

Incident # 3

[Co-worker C] is a Registered Practical Nurse (“RPN”) who has worked at [the Facility] for approximately ten years. In 2008 and 2009, she worked there full-time. She came to Canada in 1981 as a Registered Midwife [ ]. She received her RPN training [ ] and registered with the College of Nurses of Ontario on June 28, 1999.

[Co-worker C] testified that on a Saturday between January 2008 and April 2008, she was in the medication room. It was early in the morning. The Member said, “Hello” to her, and then he went inside the medication room and said to her, “You have a nice figure.” With that, he got closer to her and brushed his body against hers. [Co-worker C] moved farther away from him, he still kept coming closer and then he put his arms on her shoulders from behind. She moved closer

to the fridge in the medication room and he moved closer again. [Co-worker C] then told him, “If you don’t stop, I will wrestle you.” She told him, “I know Karate.” She said the Member then said, “Prove it,” and they began to wrestle.” [Co-worker C] testified that she was thinking, “I know martial arts and I am stronger than him.” [Co-worker C] also stated, “I didn’t take him seriously as I figured I could handle it.”

[Co-worker C] testified that they had their hands together and were pushing back and forth. The medication room was very narrow. They were going back and forth and ended up in the corner. Her arms were crossed in front of her chest and the Member was behind her. He held her by her upper arms and back. At one point, the Member touched [Co-worker C]’s breasts. When they first started wrestling, she thought he was joking. She was trying to stop him. She became sore and didn’t think it was a joke.

[Co-worker C] testified that when she and the Member were wrestling in the medication room, [Co-worker B] walked by. The Member was holding [Co-worker C] by the upper arms. [Co-worker C] said that [Co-worker B] yelled, “What’s going on?” [Co-worker C] ran out of the medication room to the nurses’ station. She was sore from wrestling the Member.

She told the panel that [Co-worker B] saw a bruise on her upper right arm the next day at 7:00 a.m. [Co-worker C] said she showed the bruise to the Member and said, “See what you did?” She testified that the Member said he was sorry.

[Co-worker C] testified that she didn’t report it because she was abused before and based on her experience she didn’t think reporting it would do any good.

[Co-worker B]’s evidence on this issue was somewhat different than [Co-worker C]’s. She recalled seeing the Member and [Co-worker C], but said they were outside the medication room, not inside. She recalled that she herself was the one inside the medication room and when she came out and walked by the Member and [Co-worker C], the Member had a hold of [Co-worker C]’s hands behind her back, and they were wrestling. She recalled that the next day, [Co-worker C] told her that she had a bruise from the incident, but did not show it to her.

The Member denied that the wrestling incident ever occurred. He said he had a professional relationship with [Co-worker C], that they were both RPNs and that they worked together quite often. He testified that he never joked around with her, never touched her, never wrestled with her, and never made any comments about her appearance. He denied that [Co-worker C] had ever shown him a bruise on her body.

Incident # 4

[Co-worker D] testified through a Spanish language interpreter. She is a PSW and has worked part-time at [the Facility] since 2005. [Co-worker D] said that she worked with the Member approximately one or two days a week [ ].

On a day in February 2009, [Co-worker D] was preparing the juice cart in the [ ] dining room. The Member approached her and asked her to apply cream to a [client] who did not like to be treated by men. [Co-worker D] agreed, and took a break from the juice to apply the cream. She then went back to the dining room to finish preparing the juice. Her back was to the door. The Member approached [Co-worker D] from behind and asked if she’d put the cream on the [client]. She said, “Yes,” pulled the cream from her pocket and returned it to him. She thought he had left the dining room, but the Member then put his hand on [Co-worker D]’s shoulders and offered to give her a massage. She said, “No need for you to do that.” She was holding a jug of juice in one hand and a glass in the other. The Member then put his hands on her breasts, with that she pushed them away with her elbows. As she was testifying to this, [Co-worker D] made a gesture by putting both her hands on her breasts and demonstrated how she pushed the Member’s hands away with her elbows.

There were some residents in the dining room when the Member touched her breasts. [Co-worker D] testified that they had Alzheimer’s or mental illness. She did not know if any of the residents saw what happened. She said there was no other staff present at the time.

[Co-worker D] testified that she later told [ ], a co-worker, about the Member touching her breasts. A nurse [ ] was in the room at the same time, and [Co-worker D] thought she may have overheard the conversation but she didn’t think she was paying attention. [Co-worker D] said, “It was one of them that reported it.”

[Co-worker D] only reported this incident to [the administrator] and [the DOC] after she was called into the office at the end of February, 2009. She testified that she didn’t report it to the administration at the time it happened because she was from [a place] where people raped and killed and no one cared. She testified that she wasn’t aware of any other incidents until the day the police came to [the Facility] on February 25, 2009, and she gave them her statement. At that point, she became aware that [Co-worker F] had made a complaint about the Member.

There was an inconsistency between her evidence at this hearing and her evidence at the criminal trial. In her testimony at this hearing, [Co-worker D] admitted that she had talked with [Co-worker F] the day she gave her report to the police. She did not mention that in the criminal proceeding. Defence Counsel asked [Co-worker D] why she didn’t mention that she had spoken to [Co-worker F] about this incident the day she gave testimony in court. [Co-worker D] replied, “I forgot that I had to tell that I spoke with [Co-worker F]. At that time I was feeling nervous, as I had never been in court. I didn’t remember in court that I had spoken with [Co-worker F].”

The Member denied that any of these events occurred. He agreed that there had been a [client] who didn’t like to be treated by men, but said that he would never have asked [Co-worker D] to apply cream to a [client], since she is a PSW and not registered and as such cannot apply “treatments” because it is not within her scope of practice. He never asked [Co-worker D] if she wanted a massage. He never touched [Co-worker D]’s breasts. He said he’d always had a normal, professional relationship with [Co-worker D].

The Member also testified that the [ ] dining room is very busy at meal time. RNs, RPNs, the dietitian, the dietitian’s aide, kitchen staff and maybe family members would be there. There would also be residents, many of whom, he said, were cognitively intact. He said if the residents were not cognitively intact, they would be on the locked down unit and not Unit 5.

Incident # 5

[Co-worker E] is 52 years old and has worked for 23 years full-time as a PSW at [the Facility]. In 2009 she worked with the Member two to three times a week [ ]. She testified that the Member touched her on the right shoulder while they were talking. She said she told him, “Just talk, don’t touch me.” He just smiled and walked away. She stated that, “He continued to touch me until I warned him.” She testified that she told the Member, “I would [k]ick him down and call an ambulance to pick him up.” He stopped after that. She said the touching had been “irritating” and that she wasn’t comfortable with it. She testified, “I don’t like a guy touching me in my workplace. It was an inappropriate way for a co-worker to touch me.”

[Co-worker E] testified that she didn’t report the Member because she said she could handle him herself. She was called to meet with [the administrator] after [Co-worker F] made her allegations. [Co-worker E] then told [the administrator] about what had happened. She testified that she told [the administrator], “I told him to stop.”

[Co-worker E] went on to testify that [Co-worker F] had told her that she was having problems with the Member, but [Co-worker E] didn’t tell [Co-worker F] about the Member touching her. [Co-worker E] told the panel that she and [Co-worker F] worked together for two years on the day shift [ ] in 2008 –2009, but didn’t see each other outside of work. [Co-worker E] agreed she wanted to be supportive of [Co-worker F], but denied that [Co-worker F] had told her what to say.

The Member denied that he ever touched [Co-worker E]. He denied that [Co-worker E] had ever warned him to stop touching her, or said anything to let him know that he had made her feel uncomfortable. He said they had a normal, professional relationship.

The Investigation

[The DOC] testified that on February 23, 2009, she received a letter from [Co-worker F], asking her to stop the Member from sexually harassing her (the letter was apparently dated February 25, but this was likely an error). [The DOC] brought the letter to [the administrator]’s attention and called [ ] the union steward. [The DOC] and [the administrator] met the Member at the start of the day shift at 7:00 a.m. on February 24, 2009, and asked him to go home and come back at 10:00 a.m. for a meeting.

The Member met with [the DOC] and [the union steward] at 10:00 a.m. [The steward] asked the Member about the allegations made in the letter. The Member denied the allegations, stating that [Co-worker F] made these comments because some of the PSWs had been insubordinate. He suggested there was a rift between the RPNs and the PSWs. At the end of the meeting on

February 24, the Member was suspended with pay, pending the disposition of [the Facility]’s investigation into the allegations made regarding his behaviour. Later that same day, the Member sent a brief letter of resignation to [the Facility].

The very next day, February 25, 2009 he wrote another letter to [the Facility], stating that he wrote the resignation letter under great stress and disappointment and would like to withdraw it and request that he maintain his position as a casual RPN. He went to [the Facility] to deliver the letter. The police was there and questioned him. He was arrested and read his rights.

Although [the Facility]’s investigation began with the allegations from [Co-worker F] (who did not testify at this hearing), [Co-worker F] gave the administration names of people whom she stated had relevant evidence to give. These women were called in for interviews. Some of them claimed to have relevant information, others said they did not. Other names came forward as the investigation progressed. For example, [Co-worker B]’s name first came up when [Dr. A] reported on February 27, 2009, that [Co-worker B] had confided in him.

[The Facility]’s internal investigation was completed by March 4, 2009. The Member’s employment was terminated for cause and [the DOC] filed a mandatory report with this College. [The administrator] testified that the Member had grieved his termination and the matter had yet to be determined.

The evidence surrounding the investigation at [the Facility] was not seriously contested except for one point. [The administrator] was present when the police interviewed the Member on February 25, 2009. She said the Member denied all the allegations, and at some point told the police that he was joking. In giving this evidence, [the administrator] was relying on notes to refresh her memory. The Member denies ever saying that he had been joking.

Under cross-examination, [the administrator] admitted that the summary of her interview with the College dated March 5, 2009, did not indicate that [the administrator] heard the Member tell the police he had been joking. She also admitted that the summary of her interview with the College dated January 11, 2010, did not indicate that [the administrator] heard the Member tell the police he had been joking. It wasn’t until [the administrator] had her final interview with the College on August 16, 2013, that the summary of the interview indicates [the administrator] recalled that the Member told the police he was joking and some colleagues took it the wrong way. When pressed on her memory of this, [the administrator] testified, “It’s hard to remember from so long ago, I believe if I said it then, then I must have believed it.”

The panel found [the administrator] to be a credible witness whose evidence mostly went to issues that were not controversial, such as [the Facility]’s workplace policies and the Member’s knowledge of them. On this issue of whether the Member told the police that he had been joking, the panel finds that the evidence is not sufficiently clear, cogent and convincing. The panel finds that the Member did not tell the police that he had been joking.

Evidence of Paul Gesembe on all Alleged Incidents

The Member denied speaking sexually to his co-workers, massaging, play wrestling or touching their arms or legs. When asked by Defence counsel if he had a problem with the physical appearance of co-workers, he replied, “No.”

He did not take the position that these were innocent gestures or comments that were misinterpreted, or that there was touching but it was only accidental. He said that no touching or massaging ever occurred, and that he never said the inappropriate things he was alleged to have said. He testified that he could not think of anything he had ever done that might make a co-worker feel as though he had acted inappropriately.

The Member testified that he was shocked when he learned of [Co-worker F’s] allegations at the meeting on February 24. He said that he had a professional relationship with [Co-worker F]. As an RPN, part of his role was to give duties to the PSWs. He said he’d had a few issues with [Co-worker F]. He had to speak to her on four occasions about taking personal phone calls while at work, using a [client]’s fridge for her personal food, asking a resident’s sitter for assistance, and failing to help once in the dining room. In each case, [Co-worker F] appeared to respond well to his corrections.

When asked about his feelings at the time of arrest, the Member said, “I was shocked as I didn’t have a problem with any of these women before.”

The Member gave general evidence about some PSWs not getting along with RPNs and [not liking] being supervised by RPNs. He stated that [he] believed his relationship with the five women who had testified against him had been good.

Evidence of the Member’s Good Character

The panel heard evidence from four witnesses called by the defense on the issue of the Member’s good character.

[Witness #1]

[Witness #1] is 45 years old. She is employed at [the Facility] and has been for the last 15 years as an RPN. [Witness #1] confirmed the roles and responsibilities of an RPN at [the Facility], and described the atmosphere and dynamics when an RPN has to correct the behavior or actions of a PSW. She described the situation as a “power struggle.” She thought it might be challenging for the Member because he is male and young. Older, female PSWs might not like being ordered to do things a young man could do, like lift heavy things. On cross-examination, [Witness #1] agreed that she sometimes spoke to the Member about general issues and dynamics at [the Facility] between RPNs and PSWs, but that they never discussed names or any specific issues the Member had with PSWs.

[Witness #1] has known the Member since 2005. The only time they worked side-by-side was during orientation in 2005. Since then, they would see each other at work when the Member went to the floor where [Witness #1] worked to borrow supplies and equipment, and on breaks. In 2008 and 2009 she did not see the Member interact with PSWs or other RPNs during his shift.

[Witness #1] spent time alone with the Member on breaks and had some opportunities to observe him with female staff. [Witness #1] denied that the Member had a habit of touching people while speaking to them. She testified that the Member had never made comments to her about her body or appearance, had never touched her inappropriately, and had never made sexually inappropriate comments. [Witness #1] had never witnessed the Member exhibit any of these behaviours with anyone else. [Witness #1] described the Member as humble, generous, kind and hardworking. She said that the Member had a good reputation prior to the alleged incidents and was considered to be a good nurse and very professional.

In 2009, other staff members at [the Facility] were talking about the allegations. [Witness #1] was shocked when she heard them.

[Witness #1] also gave evidence about the connections between [Co-worker F] and the College’s witnesses. She was not sure if [Co-worker F] and [Co-worker D] were friends, but she knew they worked on the same floor. Based on her observations, she thought both [Co-worker E] and [Co-worker A] were friends with [Co-worker F]. She believed but wasn’t sure that [Co-worker F] knew both [Co-worker C] and [Co-worker B].

[Witness #2]

[Witness #2] is an RPN who has been employed at [the Facility] since 2003. [Witness #2] echoed the description of [Witness #1] in describing a “power struggle” within [the Facility] between RPNs and PSWs.

She denied that she had spoken with [Witness #1] about this. [Witness #2] said the power struggle was especially hard for younger RPNs who were supervising older PSWs. She and the Member discussed these issues, but she had no specific information about power struggles with the people involved in this hearing.

From 2005 to some time in 2007, [Witness #2] and the Member worked the same shift but different floors. She gave evidence that she had taken rides home after work from the Member. She would wait at the main entrance for the Member where they would meet after work and he would drive her home. She would also see the Member at education sessions and on breaks. She stopped taking rides home from the Member when he switched from the night shift to the day shift, since they no longer worked the same shifts. She and the Member became close friends and he supported her through some personal issues. She agreed that she wanted to support the Member, but she said she would not lie for him.

[Witness #2] testified that when she was alone with the Member he had never touched her or made her feel uncomfortable or seemed to have a problem with personal space. [Witness #2] described the Member as caring, giving, compassionate, supportive, helpful and encouraging. She had some, but limited, opportunity to observe him at work with other female staff. She never saw anything inappropriate.

[Witness #2] went on maternity leave in 2008 and returned to work at the facility in 2009, after the Member’s dismissal and arrest. She testified that upon her return to work, people were talking about the Member. She said it had been difficult for her to come to the hearing and give evidence, because she was concerned that the management of [the Facility] would use it against her. She said people were scared to say what they knew. She admitted that she had been disciplined at work in 2012 in what she describes as a bullying tactic by [the Facility], after she complained about an unfair workload situation. The witness denied that this had influenced her testimony.

[Witness #3]

[Witness #3] has been employed at [the Facility] since 2006 as a PSW. [Witness #3] testified that she knows the Member through her employment, and in fact he had been her supervisor often. [Witness #3] also testified that she often got a ride home from the Member after work, and that the rides would last about 30 minutes. Sometimes she would be in the car alone with him, and sometimes others would be present.

[Witness #3] testified that she has had the opportunity to observe the Member interact with female staff at [the Facility] and that in her view he never acted inappropriately, either with herself or other female staff members. She described the Member as helpful, hardworking, disciplined and [said] that he follows the rules. He was not in the habit of fooling around at work. She said that some PSWs don’t like that the Member is younger than they are. [Witness #3] testified during cross-examination that she heard nothing about the sexual harassment allegations until management asked people with information to come forward. She said she had spoken with the Member about his case before the criminal trial and before her testimony at this hearing. However, she also stated that the Member did not say anything to her that would influence her testimony at this hearing. Similarly, she stated that the Member did not ask her to lie on his behalf.

[Witness #4]

The final character witness to testify was [a priest]. He entered into the priesthood in 2003 and became ordained in 2012. The witness has known the Member since 2001.

This witness gave evidence that the Member had an excellent reputation in the community. [Witness #4] testified that he had plenty of opportunity to observe the Member interact with female members at the church and never saw the Member demonstrate any personal space issues. In fact, the witness described the Member as reserved by nature and suggested that this may be in part due to his culture and [ ] heritage. [Witness #4] described the Member as honest, hardworking, generous and humble.

On cross-examination, the witness agreed that he had been out of the country during the time period surrounding the allegations. He does not work at [the Facility], and does not know any of the alleged victims. He has had no opportunity to observe the Member at work.

Final Submissions

College Counsel submitted that this case comes down to credibility, including the issues of collusion and fabrication raised by the defence. College Counsel submitted that the panel should rely on its own [judgment] to come to a conclusion. This is a simple case where five complainants allege sexual harassment by the Member.

To assist the panel in analyzing credibility, College Counsel submitted cases setting out the relevant principles: Springer v Aird and Berlis LLP, (2009) 2009 15661 (ON SC), 96 O.R. (3d) 325 (S.C.J.) and College of Nurses v. Quiogue, (1993) 1993 8683 (ON CTGD), 13 O.R. (3d) 325 (Div. Ct.). Counsel submitted that the complainants have no interest in the outcome of this hearing and gave evidence that was credible.

In contrast to the complainants, College Counsel submitted the Member was not credible. He did not deny that there was the opportunity for these incidents to occur, but made blanket denials. In fact, he could not even admit to small parts of events that were witnessed by others. College Counsel also submitted that the Member’s evidence that PSWs were insubordinate was inconsistent with his evidence that he had no problems with the PSWs who testified for the College. College Counsel submitted the Member’s evidence was overly categorical and this makes it unlikely and difficult to believe.

Counsel for the Member agreed that the case is about credibility. The Member testified to his credit, and denies all allegations. Each allegation must be considered separately and the panel must be satisfied that the evidence for each count is clear, cogent and convincing.

The Member’s Counsel agreed with the case law submitted by College Counsel with respect to determining credibility. She submitted that there need not be a dramatic event to find a witness not credible. The Member naturally has an interest in the outcome of the hearing but that does not mean that his evidence should be automatically rejected. In response to the submission that the Member was argumentative during his testimony, the Member’s Counsel submitted that the Member was subjected to an aggressive cross-examination. During this process, the Member did not move in his position. He did not exaggerate or guess during his testimony and was a careful, thoughtful witness, fighting for his livelihood. He was completely honest.

The Member’s Counsel submitted that the Member completed two nursing programs, with mostly women as classmates, and there had been no complaints of sexual aggression made against him. If he really was the kind of person who would act this way, we should expect that it would have come out before now. The Member’s Counsel submitted that each of the complainants who came forward are friends. Some of the College witnesses are lying; some are remembering innocent interactions and painting them in a sinister light. The first complaint from [Co-worker F] was a catalyst, and others then came forward to support her.

College Counsel replied that the burden of proof is a balance of probabilities, so 51% certainty is all the panel needs. College Counsel also submitted that there is always going to be a first time for an event involving sexual aggression. It does not make sense to say that because the Member hadn’t sexually harassed anyone before, he didn’t sexually harass anyone now. She described the events testified to by the College’s witnesses as escalating -- once the Member got away with sexually harassing [Co-worker C], he moved on to the others.

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 found that the Member committed acts of professional misconduct as alleged in paragraphs 1 (c) (i), (ii), (iii), (iv); (d); (e); and (f) in the Notice of Hearing. In particular, that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional in that he sexually harassed four co-workers while employed at [the Facility] in [ ] Ontario between October 2008 and February 2009.

The panel did not find that the Member committed acts of professional misconduct as alleged in paragraph 1 (b) of the Notice of Hearing.

Reasons for Decision

This was not a case of similar fact evidence, and the panel considered the evidence of each of the five complainants separately. The panel considered the evidence of all complainants together in analyzing the issue of potential collusion between them and to consider how inconsistencies in their evidence about what they discussed with one another affected their credibility and reliability. However, the panel did not rely on the evidence of any one complainant to bolster the claims of other complainants. The evidence in respect of each allegation was considered separately.

It was the unanimous decision of the panel that the evidence was clear, convincing and sufficient to prove that it was more likely than not that the misconduct occurred as alleged with respect to all of the allegations except for those relating to [Co-worker A].

Credibility Findings and the Potential for Collusion

As discussed below, the panel did have concerns with the quality of evidence from [Co-worker A]. However, it found the evidence of each of the other complainants was clear, cogent and convincing.

The panel disbelieved the Member’s denials. The panel found the Member’s manner during testimony to be polite, but when he was submitted to an aggressive cross-examination the Member became argumentative. He did not [waver] on his position. The Member, a confident, careful, thoughtful, quiet spoken witness, did not exaggerate or guess during his testimony. However, his blanket denials did not ring true. With respect to the “wrestling” incident involving [Co-worker B], this was witnessed not just by one witness but by two witnesses. The Member denied that anything like this ever happened. This cast significant doubt on the Member’s credibility.

Because of the Member’s blanket denials, this is not a case where witnesses might just have different memories of events or different interpretations of events. The Member’s position was that the allegations were made up. The panel had to ask itself why these women would make up these allegations.

Counsel for the Member submitted that the allegations were brought against the Member by [Co-worker F] and “a small clutch” of women connected to her. It was suggested that the witnesses either fabricated evidence entirely, or put a sinister spin on innocent interactions, in order to support their friend and colleague [Co-worker F]. The panel considered this possibility but was not persuaded that the evidence was fabricated or exaggerated. It was clear that some of the College’s witnesses spoke to each other and to others about what was happening with the Member, especially when the investigation began after February 23, 2009. There were discrepancies in the evidence about how often this happened, and who [ ] spoke to whom and when. However, the panel finds that it would be natural for there to be some conversations at work about these incidents, especially once the Member was arrested while he was at [the Facility].

The differences in the witnesses’ recollections about who they spoke to and when, suggest some memory and recall issues, but not fabrication.

[Co-worker B] made it clear that she had something of a friendly relationship with the Member outside of [the Facility] (taking rides from him, getting advice about the RN program). There was no evidence that her bond with [Co-worker F] was so strong that she would invent testimony against someone she had been friendly with. The evidence that each witness gave was different enough from the evidence of other witnesses that it made the possibility of collusion unlikely. Mainly, the panel finds the possibility of collusion not likely because it was only when [Co-worker F] gave names to the administration that any of these events came to light. None of these witnesses came forward on their own, and likely would not have come forward had [the Facility] and/or the police not asked to speak with them.

The panel also considered the Member’s evidence that some of the PSWs did not work well with the RPNs and did not like taking instructions and corrections from RPNs. However, there was no evidence that any of the PSWs who testified had problems with the Member. In fact, the evidence of the Member was that he had good, professional relationships with them.

Character Evidence

After careful consideration of each of the character witnesses, the panel determined that it would not put much weight on this evidence. These witnesses had the opportunity to observe the Member interact with members of the opposite sex without exhibiting any inappropriate behavior. The panel accepts that the Member never acted inappropriately with, or in front of, any of the witnesses who testified about the Member’s good character. However, the panel finds that these witnesses were more than just the Member’s co-workers. They were also his friends. The Member would not have wanted to jeopardize his friendships or standing in his church community by acting inappropriately in front of these witnesses.

Finally, a number of the character witnesses gave strikingly similar, almost identical descriptions of the Member. The panel questioned whether their evidence was rehearsed. The witnesses’ description of the Member did not exactly match the observations of the panel during the Member’s testimony. While generally he was quiet and soft spoken during his examination in chief, the Member was not as quiet and cooperative during cross-examination.

Sexual Harassment

The panel considered whether its factual findings met the definition of “sexual harassment.” Counsel for both parties agreed that the definition of sexual harassment was set out in the Workplace Harassment and Discrimination Policy of [the Facility]. That policy defined “sexual harassment” as follows.

SEXUAL HARASSMENT – means engaging in a course of conduct of a gender-related or sexual nature that is known or might reasonably be known to

be unwelcome/unwanted, offensive, intimidating, hostile or inappropriate. Depending on its severity, one action may constitute sexual harassment.

This may include, but is not limited to: demeaning gestures, remarks and jokes; slurs, taunting, innuendo based on gender or sexual orientation; unwanted physical contact; leering; inappropriate comments about clothing, physical characteristics or activities; unwanted questions or comments about one’s private life, sexual orientation, marital or family status; the display of sexually offensive material; solicitation; unwanted attention; implied or express promise of reward or benefit in return for sexual favours; implied or expressed threat or act of reprisal if sexual favours are not given; or sexual assault (Criminal Code offense).

The panel’s findings with respect to each allegation are set out below.

Allegation 1(b)

With respect to [Co-worker A] (allegation 1(b)), the panel found that the evidence was not sufficiently clear, cogent and convincing to discharge the burden of proof on the College. She testified the Member made repeated comments about her breasts, tried to look down her shirt, and tried to touch her breasts once. He never actually touched her. She said she discussed the Member with [Co-worker F] and [Co-worker E]. She testified she did not report the Member at the time of the incidents to her employer because she didn’t want to get him into trouble and she thought she could handle it. The panel found that this was understandable. However, once the investigation was under way, [Co-worker A] did not tell the police when they interviewed her in February 2008 that the Member had tried to touch her breasts. She testified this was because she didn’t remember it at the time. She said that she forgot about it until after she’d spoken to the police. This was an issue for the panel, because it seemed like a pretty significant event to forget to tell the police, who was specifically investigating the Member on related allegations.

Further, [Co-worker A]’s evidence at this hearing was different on a key issue than her evidence at the criminal trial. In this hearing, she testified that the Member tried to touch her breast once. At the criminal trial, she testified that the Member “always wants to touch my breasts”. Although [Co-worker A] tried to explain that this was not an inconsistency, the panel concluded that her evidence was too uncertain to meet the standard of clear, cogent and convincing so as to prove the case on the balance of probabilities.

Allegation 1(c)

The panel preferred the evidence of [Co-worker B], who testified in detail about the four particulars of this allegation, over the evidence of the Member, who denied that they ever occurred.

Although [Dr. A] did not testify, the evidence was clear that [Co-worker B] had reported concerns about the Member to [Dr. A] in advance of [the Facility]’s investigation. There was no motive for [Co-worker B] to lie. She had no personal gain or interest in the outcome. She was candid as she reported that she had taken rides from the Member and gone on breaks with him. She did not overstate her evidence, and agreed in cross-examination that she did not feel some of the interactions were sexual as the Member stopped his advancements when she told him to stop and she was not afraid of him.

Accordingly, the panel finds that the Member repeatedly asked [Co-worker B] on a date and asked her if she had a boyfriend, attempted to place her name tag on her chest, touched her on her thigh while at the nurses’ station, and blocked her from exiting the medication room by placing his hands on her shoulders and saying, “Why are you scared of me?” and, “Why won’t you go on a date with me?”

The panel found that the total effect of this behaviour constituted sexual harassment. It was unwanted, uncomfortable and offensive to [Co-worker B]. The Member did not try to say that he did not know such behaviour would be unwanted. [Co-worker B] said in cross-examination that she did not view some of this conduct as sexual. Nevertheless, the panel finds that the conduct was of a sexual nature because the definition of “sexual harassment” is an objective definition.

Unwanted comments and questions about one’s private life, unwanted attempts to touch a woman’s chest, unwanted touching on someone’s thigh, and asking a co-worker out on a date when they have already said no and the question is accompanied by unwanted touching, meets the definition of sexual harassment. The Member by his own admission was a “by the book” nurse. He knew or ought to have known that his actions went against the clear language of the workplace policy which set out the definition of sexual harassment.

Allegation 1(d)

The panel preferred the evidence of [Co-worker C], who gave detailed testimony about the wrestling incident, over the evidence of the Member, who denied that anything like it ever occurred. The panel found [Co-worker C] to be a credible witness as her testimony seemed honest, reasonable and truthful. She was very emotional as she gave her testimony. She had no vested interest in the outcome of the hearing.

[Co-worker B] corroborated one key element of [Co-worker C]’s evidence. She saw the Member and [Co-worker C] wrestling. The Member had grabbed [Co-worker C]’s wrists from behind her. [Co-worker B] then said that [Co-worker C] said they were joking.

Despite this evidence from two witnesses, the Member denied there was any sort of incident involving joking, wrestling or touching between him and [Co-worker C]. The panel disbelieves the Member. If [Co-worker C] and [Co-worker B] had conspired with each other to lie about this event, the panel would have expected their stories to match. Their versions of this incident were slightly different, but similar enough in substance. The panel believes this is a case of two witnesses telling versions of what they recall, not a case of two witnesses concocting a story.

There were some internal and external inconsistencies with [Co-worker C]’s evidence. For example:

• [Co-worker C] said that [Co-worker B] noticed a bruise that [Co-worker C] had after wrestling with the Member. [Co-worker B] denied ever seeing a bruise.

• [Co-worker B] said that [Co-worker C] told her she and the Member were joking. [Co-worker C] denied this.

• [Co-worker C] said that she spoke to [Co-worker A] about the Member. [Co-worker A] denied speaking with [Co-worker C].

• At this hearing, [Co-worker C] testified that she talked to [Co-worker A] on the same day that she talked to the police and to [Co-worker D] on a different day, after she had talked to the police. At the criminal trial, she testified that she had spoken to [Co-worker A] and [Co-worker D] on the same day.

Overall, the inconsistencies in the testimony of [Co-worker C] did not diminish the reliability of [Co-worker C]’s evidence on the key issue of whether this wrestling event took place. The inconsistencies suggest that some of the witnesses, including [Co-worker C], have slightly different recollections of events. That is normal. The story in itself made sense. The panel finds that it is more likely than not the wrestling took place, as it was witnessed.

The panel concludes, on the balance of probabilities, that the wrestling incident happened as described by [Co-worker C], and that the Member approached [Co-worker C] in the medication room, came up behind her and put his hands on [Co-worker C]’s shoulders. Once [Co-worker C] was cornered, she said she would wrestle with the Member.

The panel further finds that this conduct is sexual harassment. Sexual harassment by definition as agreed to by the parties includes unwanted physical contact of a sexual nature and comments about one’s body. The Member approached [Co-worker C] in the medication room and brushed up against her. He made a comment about her having a nice figure. She moved away and he still tried to get closer to her. They were in a small room. She told him to stop. [Co-worker C] testified that she wanted to scare the Member. The panel finds she did not want the attention that the Member was giving her, and the Member knew or ought to have known this.

Allegation 1(e)

The findings on allegation 1(e) were supported by the evidence of [Co-worker D]. She testified that the Member approached her from behind, put his hand on her shoulders and offered to give her a massage. She told him there was no need for him to do that and then he put his hands on both her breasts. She pushed them away with her elbows. The panel finds this incident occurred as she alleged.

[Co-worker D] appeared genuine and believable, even though she was nervous and admitted to forgetting details because of it. Her testimony was full of vivid and specific detail that the panel finds was unlikely to be fabricated. She had no interest in the outcome of the case. She knew [Co-worker F] but was not friends with her, just a co-worker. The panel accepted that the inconsistency between her evidence at this hearing and the evidence at the criminal trial – about

whether she spoke with [Co-worker F] after speaking with the police – did not affect the overall reliability of [Co-worker D]’ evidence. The panel found her to be a credible witness.

On the issue of whether the factual findings reach the level of sexual harassment, the panel finds that placing both hands on a co-worker’s breasts is a form sexual harassment, even if it only happens once and is not a “course” of conduct.

Allegation 1(f)

With respect to the findings on allegation 1(f), they were supported by the evidence given by [Co-worker E]. The panel preferred the evidence of [Co-worker E] over the evidence of the Member. [Co-worker E] was genuine and confident in her testimony. The panel accepted that the reason she didn’t report the Member was that she believed she would look after it herself. The panel found her to be a credible witness with no vested interest in the outcome of the hearing. The panel accepted that [Co-worker E] discussed the Member with others involved in the case, including [Co-worker F] and [Co-worker A]. However, the panel did not find that this undermined the credibility of [Co-worker E]’s evidence.

[Co-worker E] testified that the Member touched her on the right shoulder, and she told him not to touch her. He continued to touch her until she warned him that she would “[k]ick him down and call an ambulance.” Only then did he stop.

The Member’s Counsel submitted that this conduct did not rise to the level of sexual harassment. The panel disagrees. The witness asked the Member to stop touching her shoulder. He did not stop. This gave rise to the witness feeling like she needed to threaten physical action if he didn’t stop. This was a serious threat, as workplace violence would also be in violation of workplace policies. The panel doubts that someone would make a threat of this nature if she didn’t feel threatened. In all the circumstances, the panel finds this was repeated touching of a sexual nature that the Member knew or ought to have known was unwanted.

Disgraceful, Dishonourable and Unprofessional

The final issue for the panel was to consider whether the Member’s sexual harassment of his co-workers would reasonably be considered by members to be disgraceful, dishonourable or unprofessional. The panel finds it is all three of those. It is clearly unprofessional, as this sort of conduct falls below members’ expectations of appropriate workplace conduct. It is dishonourable because there is a definite element of moral failing. The Member ought to have known that his conduct was unwanted and made the complainants uncomfortable. They showed this through their actions and certainly by telling him to stop. Finally, it is disgraceful because sexual harassment has a significant element of moral failing and is shameful to the Member and, by extension, the profession. Nurses are held to a high standard of conduct, not only towards their [clients] but towards their coworkers as well. Sexual harassment falls well below the expectations of the profession and the public.

I, Tammy Hedge, RPN, 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:

Sue Roger, RN

April Plumton, RPN

Abdul Patel, Public Member

Cathy Egerton, Public Member