DISCIPLINE COMMITTEE

OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Margaret Tuomi

Public Member, Chairperson

Karen Laforet, RN

Member

April Plumton, RPN

Member

George Rudanycz, RN

Member

BETWEEN:

Chuck Williams

Public Member

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for

) College of Nurses of Ontario

• and - )

[The Member] ) ROBERT STEPHENSON for

Reg. No. [ ] ) [The Member]

) JOHANNA BRADEN

) Independent Legal Counsel

) Heard: April 18-19, 2016

DECISION AND REASONS ON MOTION

This was a pre-hearing motion brought by [ ] (“the Member”), seeking an order staying or dismissing the within proceeding, due to delay and/or abuse of process. The motion was heard by a Panel of the Discipline Committee on April 18, and 19, 2016, at the College of Nurses of Ontario (“the College”) at Toronto.

Briefly, the position of the Member was to seek relief arising from the manner in which he has been investigated and prosecuted, including a failure to prosecute expeditiously in light of the imposition of a lengthy interim suspension.

The position of the College was a stay of proceedings is an extremely rare and highly discretionary administrative remedy, and is not warranted in this case, and the delay was not unreasonable and inordinate. The motion should be dismissed.

The Evidence on the Motion

The evidence on this motion consisted of four affidavits. The first affidavit is that of Carol Stephenson dated April 4, 2016 [ ]. The second affidavit is that of the Member dated April 4, 2016 [ ]. The third affidavit is that of [the College’s staff] dated April 12, 2016, [ ] and the fourth is the reply affidavit of Carol Stephenson dated April 14, 2016 [ ].

In the first affidavit, Ms Stephenson describes how the Member came to be charged with professional misconduct, including sexual abuse, of two [clients]. Although the allegations happened at two different times, at two different [facilities], involving two different [clients], the Member was eventually charged with all allegations of professional misconduct in one Notice of Hearing. The [clients] are identified as [Client A] and [Client B]. Ms Stephenson’s affidavit includes the following information.

• The College learned of the [Client A] allegations on June 29, 2012, and of the [Client B] allegations on July 26, 2012. The College also learned that the Member had been charged criminally with sexually assaulting [Client A] (but was not charged criminally with respect to [Client B]). On July 4, 2012, the College asked for an undertaking from the Member that he would not practise as a nurse while the criminal charges were pending. On July 24, 2012, the Member refused to give that undertaking. The College’s investigation continued for more than a year and a half.

• On December 16, 2013, the Member was notified that a panel of the ICRC had reviewed the [Client A] complaint, but no decision was made. On March 19, 2014, the ICRC reviewed the allegations with respect to both [Client A] and [Client B] and rendered its decision, referring both sets of allegations to the Discipline Committee. On March 21, 2014, the ICRC issued a notice of intention to suspend the Member’s certificate of registration. The Member was suspended on an interim basis on April 10, 2014, and has been suspended ever since.

• The Member initially asked for an immediate hearing date. The Member then indicated he wished to bring a motion to sever the allegations, so that the allegations about [Client A] would be heard by a different panel than the allegations about [Client B]. The College opposed this motion.

• On July 15, 2014, the Member was acquitted of the criminal charges relating to [Client A].

• The Member then successfully brought a motion at the College to sever the hearing of the [Client A] allegations from the [Client B] allegations. This motion took some months to be determined, and was not decided until September 10, 2015. A panel of the Discipline Committee ordered that there be two separate hearings, not one joint hearing.

• On October 8, 2015, the College wrote to the Member and advised that [Client B] had passed away. Ms Stephenson’s affidavit says it appears [Client B] passed away in March

of 2015. At that point, no hearing dates had been set for either the [Client A] hearing or the [Client B] hearing.

• In light of [Client B]’s death, the allegations regarding [Client B] were withdrawn by the Discipline Committee, with the consent of both the College and the Member.

• That means the College intends to proceed with only the [Client A] allegations.

The second affidavit is the Member’s. He describes his professional background, and outlines the allegations that have been made against him by [Client A] and that had been made by the now deceased [Client B]. He denies all allegations of sexual abuse, or of any professional misconduct. He states that he refused to enter an undertaking to not practise nursing pending the outcome of the criminal trial regarding the [Client A] charges, that the ICRC delayed its decision to refer either the [Client A] or the [Client B] charges to a hearing until March 19, 2014, that the two separate allegations were referred at the same time, and that his certificate of registration was suspended shortly after ICRC referred the allegations to the Discipline Committee. He says he has now been suspended for a period that would exceed anything that would be imposed, even if he was found guilty of the allegations regarding [Client A]. He describes the effects this has had on him, including the emotional and financial impact, and that he is worried he might exceed the three year practice requirement to remain in the practising class. The Member also referred to the public shame, both professional and personal, and the stigma attached to these allegations. The affidavit outlines and emphasises the delays in time from first reports of the incidents, investigation process and finally to the Discipline Committee [ ].

The third affidavit is that of [staff] on behalf of the College. [Staff] states that she has reviewed the investigative file of the Member. [Staff] indicated that the Member was a member of the College since 2006 and had worked at [Facility A] from July 2010 to July 2012, at which time he was placed on unpaid leave because of a report of inappropriate sexual touching. The Member was also employed at [Facility B] from January 2012 to June 2012. In June 2012, the College received a report from [Facility B] that the Member had been dismissed on June 27, 2012. The College received a complaint letter from [Client A] in February 2013, alleging inappropriate sexual touching by the Member. The College initiated an investigation in November 2012, in the course of which it learned that the Member had been charged with sexual assault and that his criminal trial was pending. The ICRC referred the allegations of professional misconduct against the Member on March 19, 2014. The referral included the alleged sexual abuse of [Client A] and [Client B]. Then on April 10, 2014, the ICRC made an interim order directing the Executive Director to suspend the Member’s certificate of registration. [Staff]’s affidavit also outlines the procedural pre-hearing steps that have been taken since the matters were referred to the Discipline Committee.

The fourth affidavit is the reply affidavit of Carol Stephenson dated April 14, 2016, and serves as Ms Stephenson’s response to the [staff] Affidavit. Ms Stephenson begins by stating that [the staff] is not and was not the College investigator assigned to the [Client A] and [Client B] files but rather [the College investigator] was the assigned investigator in this case. Ms Stephenson outlines the documentation received by the College from the facilities ([Facility A] and [Facility B]) related to this case and goes on to describe the witness interviews conducted by the College

investigator and their corresponding dates. She also identifies the three reports made by the College’s Executive Director to the ICRC stating that she has appointed an investigator to investigate the conduct or actions of the Member at three separate times ([this College investigator] is the appointed investigator in all three reports).

Submissions of the Parties

Both parties are largely in agreement on the facts related to this case. A chronology of the facts is appended to these reasons. There was disagreement on what inferences should be drawn from these facts.

Both parties submitted written factums and books of authorities, which the panel read and relied upon. As this motion needs to be decided quickly, these reasons will summarize the parties’ submissions briefly.

Mr. Stephenson, counsel for the Member, submitted that the facts reveal the College took a lazy, casual attitude toward the investigation of both the [Client A] matter and the [Client B] matter. He says the College chose to wait, hoping the police would do the College’s job and that the Member would be charged and found guilty of a criminal offence relating to [Client A]. Mr.

Stephenson reviewed the steps taken by the College to investigate the facts of the [Client A] allegation and the [Client B] allegation. He described that the investigations were not of a complex nature. He said the slow pace of the investigation compromised the evidence and the Member’s ability to defend himself.

Mr. Stephenson then focused on the interim suspension of the Member on April 10, 2014, and described it as taking place almost two years after the initial report of misconduct was filed with the College. Mr. Stephenson pointed out that the Member was working as a nurse during this time period, and the College made no efforts to complete the investigation quickly. In fact, the College did not complete its investigation of [Client A]’s complaint within the timelines specified by section 28 of the Code. The ICRC deferred its consideration of the [Client A] report and complaint without giving a reason why. No further investigation was conducted with respect to the [Client A] matter after this time. Mr. Stephenson said the panel should conclude that the [Client A] matter was deferred because the College wanted to refer the [Client A] matter with the [Client B] matter so that both matters would be dealt with in one hearing (subject to the Member successfully bringing a motion to sever, which the Member did).

After a thorough review of the events in chronological order Mr. Stephenson moved on to the issue of prejudice toward the Member and prejudice to the administration of justice and abuse of the College’s process. He cited case law to support his claim. Mr. Stephenson submitted that the most important case was the Supreme Court of Canada’s decision in the case of Blencoe v.

British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”). He specifically relied on paragraphs 154, 156, and 159. Although these were from the minority decision, Mr.

Stephenson said they were good law. He quoted: “One must approach matters with some common sense and ask whether a lengthy delay that profoundly harms an individual’s life is really justified in circumstances of a given case.”

Counsel for the Member argued that a stay of the proceedings was warranted in these circumstances. He made submissions on what he described as prejudice to the Member and the abuse of process. He relied on the duration of time between the initial report made to the College in June 29, 2012, and the potential (not yet finally set) hearing date in June 2016. He also relied on the College’s conduct in cooperating with the police and other examples of what he termed abusive conduct.

Counsel for the College, Ms Lawrence, submitted that the Member’s request for a stay of the [Client A] hearing would be considered an extreme remedy and should only be granted in the case of a shocking abuse of the process. She submitted that if the Member’s motion was granted, this would result in the Member not being held to account for his alleged behaviour of professional misconduct. She suggested that the complainant should be allowed to have the satisfaction of a hearing being held and having [their] story heard by the Discipline Committee of the College. Ms Lawrence said that the community standards of fair play and decency would be offended if a stay motion was granted, and would not be offended if the hearing went ahead.

Ms Lawrence asked the Panel to infer that there was no undue delay in the investigation of this matter, and that the steps taken by the investigator were prudent and reasonable. She submitted that any delay since the matters were referred to Discipline was due, at least in part, to the procedural choices made by the Member, and that it was unfair to blame the College for much of the delay.

Counsel for the College also referred to the Blencoe case. College Counsel referred specifically to paragraph 101, stating there must be proof of significant prejudice resulting from an unacceptable delay. She said there was neither significant prejudice nor unacceptable delay in this case. She referred to paragraphs 105 and 106, which require the College to comply with natural justice and the principles of fairness, and that allegations of abuse of process as well as abuse of discretion must be considered as part of the College’s duty to act fairly. She submitted that this case falls within the realm of “the community’s sense of fairness”. Ms Lawrence also relied on paragraph 122 of Blencoe to support her claim that this case does not meet the definition of inordinate and unreasonable delay. Ms Lawrence went on to say, with reference to paragraph 104 of the Blencoe case, that there must be substantial prejudice presented to give rise to a stay of proceedings. There should be proof of sufficient magnitude to impact on the fairness of the hearing. College counsel said this is not the case and the request for a stay of proceedings should be denied.

Both counsel referred to numerous other cases, which mostly applied the Blencoe principles to different factual scenarios.

Decision

Having considered the evidence, the submissions and the onus and standard of proof, the Panel allows the motion and orders a stay of the proceedings.

Reasons for Decision

The Panel, after reviewing all of the submissions and evidence provided by both the Counsel and College Counsel, allows the motion and orders a stay of the proceedings.

The Panel took into consideration the case law, particularly Blencoe and the various illustrations of how Blencoe has been applied in other cases involving allegations of delay, inordinate delay, abuse of process, prejudice to members and prejudice to the administration of justice.

The Panel understood Blencoe to mean that:

• Administrative tribunals (such as the Discipline Committee) can stay proceedings that are unduly delayed. Delay, without more, will not generally warrant a stay of proceedings as an abuse of process at common law. There must be proof of significant prejudice which results from an unacceptable delay. The prejudice must be proven and must be of sufficient magnitude to impact on the fairness of the hearing.

• Unacceptable delay may also amount to an abuse of process in certain circumstances even where the fairness of the hearing has not been compromised. Where there is no prejudice to hearing fairness, the delay must be clearly unacceptable and have directly caused a significant prejudice to the administration of justice that it amounts to an abuse of process. It must be a delay that would, in the circumstances of the case, bring the College’s discipline system into disrepute. The proceedings must be contrary to the interests of justice.

• There may also be abuse of process where conduct is oppressive.

• A member asking for a stay bears a heavy burden.

The Panel felt that in this case the Member endured unnecessary delay in the process, with the College first allowing the Member to continue working as a nurse for almost two years without restrictions and with no apparent concern for the general mandate to protect the public, and then imposing an interim suspension of the Member’s certificate without the timely opportunity of a hearing. There were significant, unexplained delays that led to an abuse of process and abuse of the fundamental principles of justice and fair play.

The attached chronology illustrates the delays that were evident in the investigative process, as well as the setting of appropriate hearing dates. The Member submitted a thorough chronology of events and the College did not explain many of the gaps. The College received a report from [Facility B] on June 29, 2012, alleging that the Member had sexually abused [Client A] on June 24, 2012, and on July 26, 2012, the College received a report from [Facility A] of allegations of sexual abuse of [Client B] that allegedly occurred on May 25, 2012. The College did not seem to investigate these allegations expeditiously. There was no evidence from the College explaining the investigative choices. The Executive Director reported to the ICRC that [the College investigator] was appointed as investigator to investigate allegations of the Member’s professional misconduct in respect of “interactions with clients” in November of 2012, yet the

investigation still seemed to proceed slowly. The College knew in July of 2012 that the Member would not give an undertaking to not practise pending the outcome of his criminal trial. That did not seem to speed the process. The Member was allowed to continue working as a nurse with no restrictions for almost two years, until April 10, 2014, when the ICRC made an interim order directing the Executive Director to suspend the Members certificate of registration. In the time lag of one year and 9 months from the original reports by the [clients] to the interim suspension of the Member’s certificate of registration, during which the Member was allowed to practise, there were no reported incidents of concern.

The Panel relied on the fact that the investigation did not seem to be a complex one, there were two complainants, under 100 pages of notes collected and it was a “[they] said, [they] said” kind of case. It was not explained why the College took such a long time with its investigations, including why the initial ICRC consideration of the [Client A] matter was postponed. If there were reasons for the pace of the investigation, they were not presented to the Panel.

In May of 2014, after the interim order directing the Executive Director to suspend the Member’s certificate of registration, the Member wrote to the College waiving his right to a prehearing and asking to proceed directly to a hearing within a month. There was a variety of correspondence between the Member and the College, including pre-hearing motions brought by the Member, which continued until the hearing date for this motion to stay the [Client A] proceedings on April 18 and 19, 2016.

The Panel also relied on the evidence presented that the College had not even interviewed [Client B] until February of 2014, having made a few attempts through [Facility A] to find [Client B], and then lost contact with [them] again. The Member’s motion to sever the allegations was heard on June 29 and July 7, 2015. On October 8, 2015, College advised the Member that [Client B] had passed away in March of 2015, which was 3 months’ prior to the motion hearing. As [Client B] had passed away, that motion to sever was completely unnecessary. There was no explanation offered for why the College did not learn of [Client B]’s death earlier.

The Panel took into consideration that the Member has been under suspension for two years now and his matter still has not been clearly scheduled for a hearing. This is the case even though the College learned that [Client B] had passed away in October of 2015.

The Panel is aware that the allegations against the Member are extremely serious. However, the Panel determined that should the proceedings go ahead, the fundamental principles of justice which underlie the community’s sense of decency and fair play would be damaged more than that of the public interest in having the [Client A] allegations decided.

The Panel considered the College’s argument that the College was not responsible for the delay since the matters were referred to Discipline by ICRC, since the Member had brought a series of motions at different times. The Panel accepts that some of the delay is due to the Member’s own procedural choices. However, the Panel notes that the Member’s main motion – the motion to sever – was in fact successful. The panel that heard that motion agreed with the Member that it would be unfair to have the allegations regarding [Client A] heard at the same time as the allegations regarding [Client B]. The Member should not be blamed for bringing a motion to

help ensure the fairness of the hearings. The Panel also notes, again, that this motion could have been avoided if the College had been aware of [Client B]’s death.

When the Panel reviewed the chronological order of events from the original report to the current time, it concluded that a member of the public would find the process to be unfair and an abuse of the process for the Member. While there was some evidence of prejudice to the Member personally, the Panel was mostly concerned about the prejudice to the administration of justice at the College.

The Panel considered the College’s casual approach to the investigation of the [Client A] matter and to the contacting of [Client B]. Without an explanation for why there was so much investigative delay, especially with the [Client A] matter, and then to suspend the Member without the chance for a quick hearing, the Panel found this to be an abuse of the process. The Panel also took into consideration that the College knew the Member would not agree to not practise, let him practise while they took many unexplained months to investigate, seemed to hold off referring the [Client A] matter because of the [Client B] allegation (although this was not explained by the College), rushed to suspend the Member after he’d been permitted to practise for more than a year, and then forced the Member through a severance motion that was entirely unnecessary.

I, Margaret Tuomi, Public Member, 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:

Panel Members:

Karen Laforet, RN April Plumton, RPN George Rudanycz, RN

Chuck Williams, Public Member

APPENDIX CHRONOLOGY OF EVENTS

PRE-REFERRAL TO DISCIPLINE COMMITTEE

DATE

EVENT

COMMENTS

May 25, 2012

[Client B] advises [Facility A] that [they were] sexually abused by the Member. The College is not advised of this until July 26, 2012.

June 24, 2012

[Client A] advises [Facility B] that [they were] sexually abused by the Member.

June 29, 2012

College receives Employer’s Report from [Facility B] regarding the allegation of sexual assault made by [Client A] against the Member.

College’s Executive Director appoints investigator [ ] under ss. 75(2) of the Code in respect of the charge of sexual assault, alleged to have been committed against a [client] at [Facility B] ([Client A]).

In oral submissions, Member’s counsel said that the College was advised of the sexual assault charge the day before, on June 28, 2012, as a result of the phone call. This was not in the evidentiary record before the Panel.

July 4, 2012

College asks Member to agree to undertaking to not practise while criminal trial regarding [Client A]’s allegations are under way.

July 13, 2012

As part of its investigation, the College receives 5 pages of notes from [Facility B] of its fact-finding investigation into [Client A]’s allegations.

July 24, 2012

Member refuses to sign the undertaking to not practise.

July 26, 2012

College receives Employer’s Report

from [Facility A] regarding the

No investigator is

appointed to investigate

allegation of sexual abuse made by [Client B] against the Member.

this report until November 8, 2012. No explanation given for this gap.

November 1, 2012

[The College investigator] interviews the Director of Nursing at [Facility A] regarding the [Client B] allegation.

November 8, 2012

College’s Executive Director appoints investigator [ ] to investigate the Member’s “interactions with clients.”

November 13, 2012

College notifies Member that it has received the Employer’s Report in respect of the [Client B] allegations.

November 13, 2012

[The College investigator] requests documents from [Facility A] regarding [Client B] allegation.

These are delivered to [the College investigator] on December 5, 2012.

[The College investigator] also sends a letter to [Facility A], asking [Facility A] to forward that letter to [Client B]. The letter asks [Client B] to contact [the College investigator].

December 5, 2012

[The College investigator] receives information from [Facility A] that was requested on November 13, 2012, regarding [Client B] allegation. It consists of 39 pages.

December 13, 2012

[The College investigator] interviews one witness (a nurse) at [Facility A] regarding [Client B] allegation.

February 5, 2013

[The College investigator] speaks with a representative of [Facility A] about contacting [Client B]. [The College investigator] is advised that: the College’s letter to [Client B] had

been sent to a shelter address; the

GP had called [Client B]’s father; [Facility A] had unsuccessfully tried to contact [Client B] two weeks earlier.

[The College investigator] requests that her name and telephone number be posted on the shelter bulletin board.

March 4, 2013

College receives a written complaint from [Client A] (through [their] lawyer). The subject of the complaint is the same as the report that triggered the investigation commenced on June 29, 2012.

Having received a “complaint” (rather than a “report”), s. 28 of the Code is now triggered. It sets out various timeframes for response. Section 28 contemplates that investigations of complaints are intended to be concluded within 150 days, failing which certain procedural steps are required. In fact, it took the College more than a year to dispose of the complaint (which it did by referring the allegations to the Discipline Committee on March 19, 2014).

March 7, 2013

[Client A]’s lawyer speaks to College. Discussion included a comment that if the Member was convicted criminally, [Client A] might not need to provide statements

March 8, 2013

College notifies Member that it has received [Client A]’s complaint.

April 15, 2013

[The College investigator] interviews [Client A] for the first time.

May 7, 2013

[The College investigator] requests

information from [Facility B] regarding [Client A]. She receives

this information between May 21 and June 1, 2013.

May 29, 2013

College requests a copy of a note from [Client A]’s lawyer, who provides it the next day.

May 30, 2013

[The College investigator] interviews [Client A] for the second time.

June 27, 2013

[The College investigator] requests and receives additional information from [Facility B] regarding the [Client A] allegation.

July 2, 2013

College appoints investigator [ ] to investigate [Client A]’s written complaint.

September 18, 2013, to

October 11, 2013

[The College investigator] interviews 7 employees of [Facility B], including [Nurse A] regarding the [Client A] allegation.

September 20, 2013, to

October 18, 2013

[The College investigator] interviews 4 employees at [Facility A] regarding the [Client B] allegation.

September 24, 2013, to

October 2, 2013

[The College investigator] requests additional information from [Facility B] regarding [Client A] allegation.

The information is provided. [The College investigator] asks to arrange a site visit.

September 25, 2013

College first interviews [Nurse A], a witness with respect to the [Client A] allegation.

The Member received an interview summary in respect of this interview, and he says it shows that [Nurse A]’s memory is already fading, 15 months after the fact. Member

states in affidavit he does

not know the whereabouts of [Nurse A].

October 9, 2013

[The College investigator] requests additional information from [Facility A] regarding the [Client B] allegation.

October 10, 2013

[The College investigator] advises [Facility B] (re [Client A] allegation) that she had viewed the surveillance video provided. She advises that she thinks she requires the video for the next available time period (1930h onwards) and asks if it is available.

October 11, 2013

[The College investigator] receives some of the information requested from the [Facility A] on October 9, 2013, regarding the [Client B] allegation.

October 15, 2013

[Facility B] (regarding the [Client A] allegation) advises that it is unable to provide the video for the time period requested (1930h onwards) because video surveillance stays on the camera system for approximately 60 days and if it is not archived prior to the 60 day mark it is overwritten.

October 18, 2013

College advises Member that ICRC will not complete its investigation of [Client A]’s complaint within 210 days because it is in the process of obtaining witness information.

October 23, 2013

Partial disclosure with respect to [Client A] allegation and [Client B] allegation is provided to the Member. This apparently consists of 97 pages of documents and a surveillance video.

December 2, 2013

[Facility A] notifies College it is taking no further action in respect of [Client B]’s allegation because they were unable to contact [Client B].

December 2, 2013

[The College investigator] interviews a doctor at [Facility A] regarding the [Client B] allegation.

December 16, 2013

ICRC meets to review the [Client A] complaint. ICRC defers its final disposition so that the matter could be assessed for the possibility of referral to the Discipline Committee.

January 23, 2014

[The College investigator] requests contact information for [Client B] or his family from [Facility A], which she receives on February 11, 2014.

Feb 11, 2014

[The College investigator] receives from [Facility A] contact information for [Client B] and/or [their] family.

Feb 13 and 25, 2014

College [investigator] interviews [Client B] for first time.

According to the Member’s affidavit [ ], [Client B] showed signs of a “faulty memory” in that [they] could not remember some aspects of their interaction.

March 19, 2014

ICRC refers [Client A] allegations and [Client B] allegations to the Discipline Committee.

POST-REFERRAL TO DISCIPLINE COMMITTEE

March 21, 2014

ICRC issues Notice of Intention to Suspend the Member’s certificate of registration on an interim basis.

◼ Subsection 37(1) of the Health Professions Procedural Code allows the ICRC to make an interim order suspending a member’s certificate of registration if, (a) an allegation is referred to the Discipline Committee, and (b) the ICRC is of the opinion that the member’s conduct exposes or is likely to expose his or her [clients] to harm or injury.

◼ Subsection 37(2) states that if such an order is made, then (a) the College shall prosecute the matter expeditiously; and (b) the Discipline Committee shall give precedence to the matter.

April 8, 2014

Member (through counsel) responds to the Notice of Intention to Suspend, submitting there is no evidence to warrant an interim suspension.

April 10, 2014

ICRC orders an interim suspension of the Member’s certificate of registration.

April 17, 2014

Member (through Counsel) writes to College requesting hearing dates for the month of May, 2014.

April 25, 2014

Member (through Counsel) follows up on his letter of April 17, 2014, indicating that the Member is entitled to and is requesting an expedited hearing date.

April 25, 2014

Toronto Police Services (“TPS”) writes to College, requesting “all information in your possession pertaining to any investigation about [the Member].”

Letter is addressed to [ ], Manager, Complaints, Professional Conduct Department [ ].

May 1, 2014

College provides the Member with pre-hearing disclosure relating to [Client A] allegation and [Client B] allegation.

May 1, 2014

Member writes to College confirming receipt of the pre-hearing disclosure, and indicates that the Member wishes to waive the pre- hearing conference and proceed directly to a hearing this month.

May 7, 2014

The College’s Manager of Prosecutions and Monitoring responds to the request for information from the TPS sent to the College on April 25, 2014. The cover letter indicates that the College is making this disclosure under s. 36(1)(e) of the Regulated Health Professions Act, 1991. The cover letter also indicates that the College is disclosing (among other things) “all information in our possession pertaining to any investigation about [the Member] to aid you in an investigation undertaken with a view to a law

enforcement proceeding or from

There is nothing in the record to show exactly what was disclosed to the TPS at this time.

This letter and enclosures was not disclosed to the Member as part of the College’s disclosure, however, it appears it was disclosed to the Member’s criminal counsel as part of the disclosure in the criminal proceeding regarding the [Client A] allegations.

which a law enforcement proceeding is likely to result.

May 7, 2014

Member requests further disclosure from the College.

The Member also requests a date for a motion to sever the [Client B] allegations from the [Client A] allegations.

The College responds to the request for disclosure on June 2, 2014.

May 13, 2014

The TPS serves a summons on the College, requiring production of “all documents and information in your possession, not yet provided to the [TPS], pertaining to any investigation involving” the Member.

May 15, 2014

Further to the summons received on May 13, 2014, the College sends to the TPS a copy of the disclosure binder which contains the College’s investigation materials in respect of the Member and clients [Client A] and [Client B]. The cover letter indicates that the binder produced to the TPS is an identical copy of the documents disclosed to the Member in the College’s disciplinary process.

May 16, 2014

The College’s Hearings Administrator writes to the parties, seeking to schedule dates for the hearing.

In response, College Counsel writes to Member’s Counsel, indicating, “I understand that you intend to bring a motion to sever. I suggest we arrange a quick call to discuss this before responding to [the Hearings Administrator] to book the motion date, and hearing dates as necessary.”

May 16, 2014

Member’s criminal counsel, Mr. White, writes to College Counsel indicating that he is now aware that the College had produced some of its investigation record to the TPS on May 9, 2014, unbeknownst to Mr. White.

College Counsel advises Mr. White that the College has made production of the investigative file to the TPS. Mr. White and College Counsel communicate about how Mr. White can obtain College’s investigative file.

Mr. White serves a summons on the College, requesting production of the College’s investigative file.

May 20, 2014

Further to the summons received on May 16, 2014, the College sends a copy of the disclosure binder to the Member’s criminal counsel, Mr.

White.

The cover letter indicates that the disclosure binder is an identical copy of the documents disclosed to the Member in the College’s disciplinary process.

June 1, 2014

Following discussions between counsel, the parties begin communications with the Hearings Administrator to set a date for the Member’s motion to sever the [Client B] allegations from the [Client A] allegations. The parties are agreed that the hearing dates cannot be set until the motion to sever is determined.

June 2, 2014

Additional disclosure provided to Member.

June 3, 2014

The motion to sever the [Client B] allegations from the [Client A] allegations is scheduled to take place on July 21, 2014.

June 9, 2014

Additional disclosure provided to Member.

June 23, 2014

Member’s counsel indicates that in addition to the motion for severance (scheduled for July 21, 2014), he intends to bring a motion to stay the proceedings against the Member.

He indicates the motion will be “based upon the College’s conduct with the police in the criminal matter.”

The Hearings Administrator offers the date of July 22, 2014. Member’s counsel indicates this is too soon to allow him time to prepare the necessary materials, and asks for dates in September 2014.

June 25, 2014

In communications between counsel about scheduling motion dates, College asks the Member to waive any future argument about the delay of prosecution as a result of the motion to stay and the scheduling of it. The Member refuses, on the basis that the motions are caused by the actions of the College.

July 8, 2014

Severance motion scheduled for July 21, 2014, is cancelled, as Member instead wishes to proceed with a motion to stay the proceedings based on the College’s conduct with the police in the criminal matter, and the parties are agreed that the stay motion should be heard before the severance motion.

Counsel for the Member indicates that he cannot have his materials ready for the stay motion for July 21, 2014, or July 22, 2014. The

parties consider dates in September and October 2014.

July 15, 2014

Member is acquitted of criminal charges relating to [Client A].

July 31, 2014

Motion to sever the [Client A] allegations from the [Client B] allegations is re-scheduled for October 30, 2014.

August 29, 2014

Additional disclosure provided to Member.

October 23, 2014

College serves its motion material, including reference to 2011 Prior Decision.

Member requests those references to be removed. College refuses, indicates Member will have to bring a motion to strike if Member wants them removed.

October 27, 2014

Member serves motion to strike references to 2011 Prior Decision from all of the College’s materials on the motion to sever.

October 30, 2014

Hearing of the severance motion, converted into motion to strike references to 2011 Prior Decision.

At end of day, panel adjourns motion to obtain advice in writing from ILC.

November 24, 2014

ILC provides legal advice about motion to strike in writing, as requested by panel. ILC’s written advice also gives advice about motion to sever and invites the panel

to decide the motion to sever

although the motion to sever had not been argued. At the request of counsel for the parties, ILC then amends written legal advice to include advice only about motion to strike.

December 4, 2014

ILC’s revised written advice, containing advice only about the motion to strike, is delivered to the parties and the panel.

Feb 25, 2015

Panel reconvenes to hear comments from the parties about the advice from ILC. Member had declined opportunity to provide these comments in writing, and requested oral hearing to give his comments on the advice the panel received from ILC.

May 13, 2015

Panel issues decision on motion to strike, denying the motion.

June 29, 2015

Panel hears motion to sever. Motion is not completed within one day.

July 7, 2015

Second day of motion to sever. Motion concludes, panel reserves decision.

September 10, 2015

Panel releases its decision, grants motion to sever.

October 8, 2015

College advises Member that [Client B] passed away in March of 2015.

College indicates it intends to withdraw [Client B] allegation. Record indicates that College did not know this when motion to sever was argued. Other than that, nothing in record indicates precisely when College knew [Client B] passed away, or indicates what steps if any College took to stay in touch with [Client B] through this time period.

December 20, 2015

Order is made by the Discipline Committee granting leave to the College to withdraw the [Client B] allegation.

April 18 and 19, 2016

The motion to dismiss this proceeding for delay and abuse of process is heard.