College of Nurses of Ontario v. Scott Marr, 2019 CanLII 129291

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: David Edwards, RPN Chairperson Renate Davidson Public Member Linda Marie Pacheco, RN Member Tania Perlin Public Member George Rudanycz, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

• and - )

SCOTT MARR ) GRANT FERGUSON for Registration No.: AB822671 ) Scott Marr

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: June 18, 2019

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) on June 18, 2019 at the College of Nurses of Ontario (the “College”) at Toronto.

The Allegations

The allegations against Scott Marr (the “Member”) as stated in the Notice of Hearing dated May 8, 2019 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that, on October 18, 2017, in the Ontario Court of Justice in St. Catharines, Ontario, you were found guilty of an offence relevant to your suitability to practise, and in particular, you were found guilty of knowingly uttering a threat to cause death to [Co-worker A], contrary to s. 264.1(2) of the Criminal Code.

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at the Hotel Dieu Shaver Health and Rehabilitation Centre in St. Catharines, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, and in particular, between January 2017 and June 2017, you harassed and/or sexually harassed and/or threatened your co-worker, [Co-worker A], in that you:

a. made an obscene comment to [Co-worker A] in the workplace and then sent her an obscene text message stating “C U next Tuesday”, with the letters “C.U.N.T.” listed down the left side, and the words “CU next Tuesday” written next to each corresponding letter; and/or

b. made threatening comments about [Co-worker A] to co-workers, including telling co-workers that:

i. if you and [Co-worker A] had children and [Co-worker A] kept those children from you, you would kill [Co-worker A]; and/or

ii. if you ever lost your job because of [Co-worker A], you would slit [Co-worker A]’s throat; and/or

c. made threatening and/or harassing comments to [Co-worker A] directly and/or engaged in threatening and/or harassing conduct towards [Co-worker A] in the workplace, including:

i. telling [Co-worker A] that if she ever jeopardized your job, you would slit her throat in the street; and/or

ii. sitting in your vehicle in the workplace parking lot near [Co-worker A]’s vehicle at a time when [Co-worker A] was expected to be exiting the workplace and at a time when you should have been inside the workplace but had called in late to your shift; and/or

iii. aggressively confronting [Co-worker A] in the coatroom and parking lot of the workplace about repairs to your truck and personal property; and/or

iv. leaving voicemail messages for [Co-worker A] stating that you could take steps that would result in [Co-worker A] losing her job.

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(18) of Ontario Regulation 799/93, in that you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.i. of Ontario Regulation 275/94, in that you failed to report findings of guilt to the Executive Director of the College of Nurses (the “College”), and in particular:

a. on or around January 26, 2017, in the Ontario Court of Justice P.O.A. Office in Welland, Ontario, you were found guilty of the provincial offence of “enter premises when entry prohibited”, under the Trespass to Property Act, section 2(1)(a)(i), which you did not report; and/or

b. on October 18, 2017, in the Ontario Court of Justice in St. Catharines, Ontario, you were found guilty of knowingly uttering a threat to cause death to [Co-worker A], contrary to s. 264.1(2) of the Criminal Code, which you did not report.

4. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(18) of Ontario Regulation 799/93, in that you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94, in that you failed to report charges relating to any offence to the Executive Director of the College, and in particular:

a. on December 11, 2016, you were charged with the provincial offence of “enter premises when entry prohibited”, under the Trespass to Property Act, section 2(1)(a)(i), which you did not report; and/or

b. on June 30, 2017, you were charged with knowingly uttering a threat to cause death to [Co-worker A], contrary to s. 264.1(2) of the Criminal Code, which you did not report in a timely fashion.

5. 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(19) of Ontario Regulation 799/93, in that you contravened a provision of the Nursing Act, 1991, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or the regulations under either of those Acts, and in particular, section 85.6.1 of the Health Professions Procedural Code, in that you failed to report findings of guilt to the Registrar (being the Executive Director) of the College, and in particular:

a. on or around January 26, 2017, in the Ontario Court of Justice P.O.A. Office in Welland, Ontario, you were found guilty of the provincial offence of “enter premises when entry prohibited”, under the Trespass to Property Act, section 2(1)(a)(i), which you did not report; and/or

b. on October 18, 2017, in the Ontario Court of Justice in St. Catharines, Ontario, you were found guilty of knowingly uttering a threat to cause death to [Co-worker A], contrary to s. 264.1(2) of the Criminal Code, which you did not report.

6. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at the Facility, 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. between January 2017 and June 2017, you harassed and/or sexually harassed and/or threatened your co-worker, [Co-worker A], in that you:

i. made an obscene comment to [Co-worker A] in the workplace and then sent her an obscene text message stating “C U next Tuesday”, with the letters “C.U.N.T.” listed down the left side, and the words “CU next Tuesday” written next to each corresponding letter; and/or

ii. made threatening comments about [Co-worker A] to co-workers, including telling co-workers that:

a. if you and [Co-worker A] had children and [Co-worker A] kept those children from you, you would kill her; and/or

b. if you ever lost your job because of [Co-worker A], you would slit [Co-worker A]’s throat; and/or

iii. made threatening and/or harassing comments to [Co-worker A] directly and/or engaged in threatening and/or harassing conduct towards [Co-worker A] in the workplace, including:

a. telling [Co-worker A] that if she ever jeopardized your job, you would slit her throat in the street; and/or

b. sitting in your vehicle in the workplace parking lot near [Co-worker A]’s vehicle at a time when [Co-worker A] was expected to be exiting the workplace and at a time when you should have been inside the workplace but had called in late to your shift; and/or

c. aggressively confronting [Co-worker A] about repairs to your truck and personal property in the coatroom and parking lot of the workplace; and/or

d. leaving voicemail messages for [Co-worker A] stating that you could take steps that would result in [Co-worker A] losing her job.

b. failed to report charges and/or findings of guilt to the Executive Director of the College, as follows:

i. on December 11, 2016, you were charged with the provincial offence of “enter premises when entry prohibited”, under the Trespass to Property Act, section 2(1)(a)(i), which you did not report; and/or

ii. on or around January 26, 2017, in the Ontario Court of Justice P.O.A. Office in Welland, Ontario, you were found guilty of the provincial offence of “enter premises when entry prohibited”, under the Trespass to Property Act, section 2(1)(a)(i), which you did not report; and/or

iii. on June 30, 2017, you were charged with knowingly uttering a threat to cause death to [Co-worker A], contrary to s. 264.1(2) of the Criminal Code, which you did not report in a timely fashion; and/or

iv. on October 18, 2017, in the Ontario Court of Justice in St. Catharines, Ontario, you were found guilty of knowingly uttering a threat to cause death to [Co-worker A], contrary to s. 264.1(2) of the Criminal Code, which you did not report.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2, 3, 4, 5, and 6 in the Notice of Hearing in their entirety. The Panel received a written plea inquiry which was signed by the Member. The Panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:

THE MEMBER

1. Scott Marr (the “Member”) obtained a diploma in nursing from Mohawk College in 2011.

2. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) in the Temporary Class on January 30, 2012. The Member’s registration in the Temporary Class expired on February 21, 2012. The Member was registered as a RPN in the General Class on June 28, 2012.

3. The Member was employed at Hotel Dieu Shaver Health and Rehabilitation Centre (the “Facility”) from February 1, 2012 to August 1, 2017, when his employment ended.

THE FACILITY

4. The Facility is a 134-bed rehabilitation centre and is located in St. Catharines, Ontario.

5. The Member worked as a part-time staff nurse on the day, evening and night shift.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Background and Facility Investigation

6. [Co-worker A] is an RPN. She has worked at the Facility since 2013. The Member and [Co-worker A] met as co-workers at the Facility, although they worked on different units.

7. The Member and [Co-worker A] had a romantic relationship that ended in or around November 2015. The relationship has been described as “tumultuous”, “toxic” and “unhealthy” for both parties.

8. In April 2016, the Facility put dual "Safety Plans" in place to limit the communication and interaction between the Member and [Co-worker A]. However, the Member and [Co-worker A] agreed those Safety Plans could be discontinued in July 2016. If the Member were to testify, he would state that the relationship resumed around this point, and finally ended in approximately June 2017.

9. In June 2017, [Co-worker A] reported to the Facility that the Member had engaged in inappropriate conduct towards her in the workplace, including from January to June 2017. The Facility conducted a workplace investigation, including interviewing the Member on June 27, 2017 and instructing him not to contact [Co-worker A].

10. The Member subsequently contacted [Co-worker A], and the Facility suspended his employment as a result. His employment was terminated on August 1, 2017. The termination was later converted to a resignation through the grievance process.

Harassment of and Threatening Conduct and Comments towards [Co-worker A] between January and June 2017

11. In January 2017, the Member admits that he stated to two of his co-workers, [Co-worker B] and [Co-worker C], that if he and [Co-worker A] had kids, and if she kept them from him, the Member would kill [Co-worker A]. This was in the context of the Member’s view that [Co-worker A] was restricting his access to their dog, their house and the Member’s possessions. The Member further stated that if he did kill [Co-worker A], he would likely only go to jail for five years.

12. On March 20, 2017, [Co-worker A] was in the dining room at the Facility. Within earshot of patients, the Member admits that he walked up to the [Co-worker A] and said "see you next Tuesday", which is a derogatory phrase that means "cunt." Later that evening, the Member texted an image to [Co-worker A] with the letters "C.U.N.T." listed down the left side, and the words "C.U. next Tuesday" written next to each corresponding letter.

13. On another occasion in around March or April 2017, when [Co-worker A] and the Member were at work together, the Member admits that he whispered the word "cunt" in her ear.

14. On May 18 or 19, 2017, the Member admits that he made comments to one of his co-workers, [Co-worker D], that if he ever lost his job because of [Co-worker A], he would kill [Co-worker A] by slitting her throat.

15. The Member was later criminally charged, pled guilty and was found guilty of uttering a threat to cause the death of [Co-worker A] for the comment that he made to [Co-worker D], as described in more detail below.

16. The Member also admits that at some point between April to June 2017, he advised [Co-worker A] of his earlier statement made to [Co-worker D] that if [Co-worker A] ever jeopardized his job, he would slit [Co-worker A]’s throat in the street. He said this to [Co-worker A] in person, and he also made threatening voicemail messages that [Co-worker A] played for another co-worker, [Co-worker E].

17. On June 4, 2017, the Member admits that he called in late for his scheduled shift, in order to confront [Co-worker A]. At approximately 1900, when [Co-worker A] normally finished her shift, and when the Member was supposed to have reported to work, he waited in his truck in the Facility’s parking lot, within close proximity to [Co-worker A]’s vehicle. On this day, [Co-worker A] was staying late to work overtime and did not leave the Facility at her usual departure time. The Member was observed by a co-worker in his truck.

18. On June 21, 2017, the Member admits that he confronted [Co-worker A] in an aggressive manner about repairs to his truck and personal property. In particular, after [Co-worker A] arrived at the Facility, the Member followed her into the staff coatroom, and thrust papers with a quote from an auto repair shop at [Co-worker A] and claimed that [Co-worker A] had damaged his vehicle. The Member told [Co-worker A] that he could have had the police charge her, he could have cost [Co-worker A] her job, and that she "better deal with this" (the cost of the repairs), and then left the coatroom. Another co-worker observed this interaction in the coatroom but patients did not.

19. [Co-worker A] went to her car. In the parking lot, the Member confronted her again. The Member spoke loudly, waving his hands and was standing close to [Co-worker A], telling her that, "it won't stop until I get my stuff back.” If [Co-worker A] were to testify, she would state that she interpreted this comment to mean that the Member would not stop contacting her and leaving her voicemails alleging that she had his property. The Member admits that he had left [Co-worker A] voicemails in which he stated that he could have cost [Co-worker A] her job had he pursued charges.

20. [Co-worker A] walked quickly away from him. The Member admits that he was angry and aggressive during this confrontation. Another co-worker observed this interaction, and if she were to testify, she would state that the Member’s conduct was scary.

CNO Standards regarding Interactions with Co-workers

21. CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring her or his practice and conduct meets legislative requirements and the standards of practice of the profession.

22. CNO’s Professional Standards further provides that professional relationships are based on trust and respect, and result in improved client care. A nurse demonstrates this standard by actions such as:

• role-modelling positive collegial relationships; and

• demonstrating effective conflict-resolution skills.

23. The Member admits that he harassed and threatened [Co-worker A], through his comments and conduct set out above. He also admits that he made threatening comments to coworkers as alleged.

24. The Member admits and acknowledges that his conduct towards and regarding [Co-worker A] was inappropriate and fell below the Professionalism standards of practice. If he were to testify, he would state that this conduct arose from his personal relationship with [Co-worker A], and did not affect his clinical practice with patients. However, the Member acknowledges that this conduct occurred in the workplace, within proximity to patients, and involved his co-workers.

Criminal Charges and Findings of Guilt

25. The Member admits and acknowledges that he was charged with and found guilty of two offences.

26. First, on December 11, 2016, the Member was charged with the provincial offence of “enter premises when entry prohibited”, under section 2(1)(a)(i) of the Trespass to Property Act, in relation to an incident when he attended at [Co-worker A]’s home on December 11, 2016. He was found guilty of that offence on January 26, 2017 and ordered to pay a fine.

27. Second, on June 30, 2017, the Member was charged with the criminal offence of uttering a threat to cause death, contrary to s. 264.1(2) of the Criminal Code of Canada. [Co-worker A] was the subject of this threat.

28. The Member admitted the following agreed-upon facts before the court:

• Between May 14, 2017 and the first week of June 2017, the Member advised a co-worker that he would slit [Co-worker A]’s throat if she jeopardized his job.

• The Member also made utterances that he could make the incident look like an accident and that [Co-worker A] did not know who she was messing with.

• The Member's statements were conveyed to [Co-worker A] who became fearful for her safety.

29. The Member was pled guilty and was found guilty of this criminal offence on October 18, 2017. The Member admits that this finding of guilt is relevant to his suitability to practice.

30. The Member received a conditional discharge with one year of probation.

Failure to Report to CNO

31. The Member was required to report any charges and findings of guilt to CNO as a condition of his certificate of registration, in accordance with sections 1.5(1)(i) and (ii) of Ontario Regulation 275/94, made under the Nursing Act, 1991. The obligation for members to report findings of guilt is also set out in section 85.6.1 of the Health Professions Procedural Code.

32. The Member failed to report to CNO both the charge and finding of guilt for the provincial offence of "enter premises when entry prohibited" under section 2(1)(a)(i) of the Trespass to Property Act. If the Member were to testify, he would state that he did not realize that he was obliged to report this type of offence. However, he acknowledges that he had an obligation to do so and failed to meet that obligation.

33. The Member failed to report to CNO that he had been charged with uttering a threat to cause death, in a timely way. The Member acknowledges that he was obliged to report this charge within 30 days and that he failed to do so. He reported the charge which was laid on June 30, 2017, on August 16, 2017.

34. The Member failed to report to CNO that he was found guilty of the charge for the criminal offence of uttering a threat to cause death, contrary to s. 264.1(2) of the Criminal Code of Canada on October 18, 2017. If the Member were to testify, he would state that he contacted the CNO by telephone, but acknowledges that he failed to report the finding in writing as required.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

35. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that he was found guilty of an offence relevant to his suitability to practice, as described in paragraphs 27 to 30 above.

36. The Member admits that he committed the acts of professional misconduct as alleged in paragraph 2 (a) to (c) and 6 (a) of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he harassed and threatened [Co-worker A] between January 2017 and June 2017, and that this conduct was disgraceful, dishonourable and unprofessional, as described as described in paragraphs 11 to 20 above.

37. The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 3 (a) and (b), 4 (a) and (b), 5 (a) and (b), and 6 (b) of the Notice of Hearing in that he failed to report charges and findings of guilt to the Executive Director of CNO, and that this conduct was disgraceful, dishonourable and unprofessional, as described in paragraphs 31 to 34 above.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1; 2(a), 2(b)(i),(ii), 2(c)(i),(ii),(iii),(iv); 3(a), 3(b); 4(a), 4(b); and 5(a), 5(b) of the Notice of Hearing. As to Allegations #6(a)(i),(ii)(a)(b),(iii)(a)(b)(c)(d) and 6(b)(i),(ii),(iii),(iv), the Panel finds that the Member engaged in conduct that would reasonably be considered by members to be disgraceful, dishonourable and unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1 in the Notice of Hearing is supported by paragraphs 25, 27, 28 29 and 35 in the Agreed Statement of Facts. The Member was found guilty of an offence relevant to his suitability to practice when he knowingly uttered a threat to cause death to [Co-worker A]. The Member told a co-worker that he would slit [Co-worker A]’s throat if she jeopardized his job. He also made utterances that he could make the incident look like an accident. These statements were conveyed to [Co-worker A] who became fearful for her safety.

With respect to Allegation #2, as stated in paragraph 21 in the Agreed Statement of Facts, the College’s Professional Standards provide that each nurse is accountable to the public and responsible for ensuring her or his practice and conduct meets legislative requirements and the standards of practice of the profession. Paragraph 22 further states that professional relationships are based on trust and respect, and result in improved client care. A nurse demonstrates this standard by actions such as: “Role-modelling positive collegial relationships; and demonstrating effective conflict-resolution skills.”

Allegation #2(a) in the Notice of Hearing is supported by paragraphs 12, 13 and 21 in the Agreed Statement of Facts. The Member contravened the College’s Professional Standards when he harassed and made threatening comments towards [Co-worker A] in the dining room at the Facility within earshot of patients.

Allegation #2(b)(i),(ii) in the Notice of Hearing is supported by paragraphs 11, 20, 21, 22 and 28 in the Agreed Statements of Facts. The Member contravened the College’s Professional Standards when he stated to two co-workers at the facility that he would kill [Co-worker A] if she ever restricted his access to their home and possessions, or if he lost his job because of [Co-worker A].

Allegation #2(c)(i),(ii),(iii),(iv) in the Notice of Hearing is supported by paragraphs 14, 15, 16, 17, 18, 19, 20, 21, 22 and 28 in the Agreed Statement of Facts. The Member contravened the College’s Professional Standards (i) when he made comments to one of his co-workers [Co-worker D] that if he ever lost his job because of [Co-worker A], he would kill [Co-worker A] by slitting her throat; (ii) when he waited in his vehicle on June 4, 2017 in the facility’s parking lot within close proximity to [Co-worker A]’s vehicle to confront her; (iii) when he confronted [Co-worker A] about repairs to his truck on June 21, 2017 after following her into the staff coatroom; (iv) when he left [Co-worker A] voicemails in which he stated that he could cost [Co-worker A] her job.

Allegations #3(a) and (b) in the Notice of Hearing are supported by paragraphs 26, 27, 31, 32, 33 and 34 in the Agreed Statement of Facts. On or around January 26, 2017, the Member was found guilty of the provincial offence of “enter premises when entry prohibited” under the Trespass to Property Act; and on October 18, 2017 found guilty of the charge for the criminal offence of uttering a threat to cause death, contrary to s. 264.1(2) of the Criminal Code of Canada. The Member contravened a term, condition or limitation on his certificate of registration when he failed to report these findings of guilt to the Executive Director of the College.

Allegations #4(a) and (b) and 5(a) and (b) in the Notice of Hearing are supported by paragraphs 31, 32, 33 and 34 in the Agreed Statement of Facts. As a condition of his certificate of registration, the Member was required but failed to report to the College both the charge and finding of guilt for the provincial offence of “enter premises when entry prohibited” under section 2(1)(a)(i) of the Trespass to Property Act. The Member also failed to report to the College, in a timely way, that he had been charged with uttering a threat to cause death. He reported the charge that was laid on June 30, 2017, on August 16, 2017, whereas this charge should have been reported within 30 days. The Member failed to report to the College that he was found guilty of the criminal offence of uttering a threat to cause death, contrary to s.264.1(2) of the Criminal Code of Canada on October 18, 2017.

Allegations #6(a)(i),(ii)(a)(b),(iii)(a)(b)(c)(d) and 6(b)(i),(ii),(iii),(iv) in the Notice of Hearing are supported by paragraphs 35, 36 and 37 in the Agreed Statement of Facts. The Member has admitted, and the Panel finds, that his conduct was disgraceful, dishonourable and unprofessional. The Member had a toxic romantic relationship with [Co-worker A] that encroached into the facility at which they both worked. The Member’s conduct involved both criminal proceedings, findings of guilt as well as violations of College standards and regulations. The Member’s conduct casts a serious doubt on his moral fitness and inherent ability to discharge the higher obligations the public expects professionals to meet.

Penalty

College Counsel and the Member’s Counsel advised the Panel that a Joint Submission on Order had been agreed upon. The Joint Submission on Order requests that this Panel make an order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for seven months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two meetings with a Regulatory Expert (the “Expert”), at his own expense and within six months from the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Code of Conduct,

3. Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses

iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, and online participation forms;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into his behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;

b) For a period of 24 months from the date this Order becomes final, the Member will notify his employers of the decision. To comply, the Member is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide his employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

College Counsel submitted that the mitigating factors in this case were that the Member had no history of discipline with the College, and that he has taken responsibility for his conduct both in the criminal proceedings and the College proceedings. This was a process of lengthy negotiations and resulted in an Agreed Statement of Facts and Joint Submission on Order that reduced the hearing time to a one day hearing.

The aggravating factors in this case were that the Member’s conduct was extremely serious and involved a personal relationship that encroached into the workplace. The conduct involved threats and harassment of a co-worker, was aggressive, suggested violent behaviour and was well outside of what one would expect of a nurse. The behaviour occurred over a period of six months, even after the Member was warned not to contact [Co-worker A] in the future. The conduct was serious because it occurred in their combined workplace facility and its parking lot.

The Member’s failure to report the findings of the criminal proceedings to the College was very serious misconduct as this obligation is a necessary part of the College’s ability to regulate its members and to engage in proper administration of self-regulation of the profession.

The suspension and oral reprimand act as both specific and general deterrents, sending a message to the Member and the profession as a whole that threats will not be tolerated. The proposed penalty provides elements of rehabilitation by requiring the Member to meet with a regulatory expert and by the 24-month period of employer notification. The ultimate goal of protection of the public and public confidence is met through all the components of the proposed penalty.

College Counsel submitted cases to the Panel to demonstrate how other panels of the Discipline Committee dealt with similar cases.

CNO v Kent (Discipline Committee, 2015) is a case in which the member failed to report the findings of guilt to the College for two assaults, i.e. an altercation with a personal support worker and the member in a hospital setting and an assault of the member’s child. The penalty in this case was a suspension of three months, a reprimand, two meetings with a nursing expert, and employer notification of the College’s decision for a period of twelve months from the time the member returned to the practice of nursing.

CNO v Bass (Discipline Committee, 2010) is a case that has some of the elements of the case at hand. In this case, the member was found guilty of an offence relevant to his suitability to practice in that he was found guilty of criminal charges of having made death threats to co-workers in the workplace. The member received a suspension of three months, a reprimand, a meeting with the Director of Professional Conduct and employer notification of the College’s decision for a period of twelve months from the time the member returned to the practice of nursing.

College Counsel submitted that the case at hand, has the additional allegations of the interactions with [Co-worker A] that are a breach of the professional standards, as well as the obscene comments in the workplace to co-workers regarding [Co-worker A], and the confrontation in the workplace parking lot. College Counsel submitted that when adding those components to this case, a penalty with a seven month suspension is appropriate.

Member’s Counsel indicated that he agreed with College Counsel’s submissions and reiterated the very serious nature of the allegations. He submitted that the Panel should accept all aspects of the penalty submission, unless the proposed penalty put the administration of justice into disrepute or is contrary to the public interest, which he submitted was not the case. The Member has admitted to all elements of the allegations, including that his conduct was disgraceful, dishonourable, and unprofessional. The Member has no disciplinary history with the College and has co-operated with the College in reaching an agreement. This case sends a strong signal to the membership in that the seven month suspension reflects the seriousness of the allegations.

Penalty Decision

The Panel accepts the Joint Submission on Order and accordingly orders:

1. The Member is required to appear before the Panel to be reprimanded within three months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for seven months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two meetings with a Regulatory Expert (the “Expert”), at his own expense and within six months from the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires, online learning modules, decision tools and online participation forms (where applicable):

1. Professional Standards,

2. Code of Conduct,

3. Mandatory Reporting: A Process Guide for Employers, Facility Operators and Nurses

iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires, and online participation forms;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into his behaviour;

vii. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;

b) For a period of 24 months from the date this Order becomes final, the Member will notify his employers of the decision. To comply, the Member is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide his employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The Panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and, where appropriate, rehabilitation and remediation. The Panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The Panel finds that the penalty meets the goals of general and specific deterrence and sends a message to the Member and the profession at large that harassment and threatening comments within the workplace will not be tolerated. It also sends the message to the Member and the membership that failure to report charges and findings of guilt in a criminal proceeding to the College is very serious misconduct as this obligation is essential to the College’s ability to regulate its members.

The Member’s conduct casts serious doubt about his judgment, self-control and suitability to the nursing profession. The reprimand, seven month suspension and twenty-four month employer notification provide specific and general deterrence. The employer notification period and educational review with a nursing expert provide for public protection by ensuring the Member is monitored and supported following his return to practice.

The Panel notes that given the circumstances in this case, the Member should be cognizant of the need to address his anger management issues. Meetings with the nursing expert, standards review, and online learning modules provide the Member the opportunity for remediation and support safe return to practice for the Member and the public.

The Panel concluded that the proposed penalty is reasonable and in the public interest. The Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for his actions.

The Panel recognized that the previous cases submitted had some of the aspects of this case; however, as this case had additional components a more significant penalty was warranted.

I, David Edwards, 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.