DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Terry Holland, RPN Chairperson, Discipline Committee
BETWEEN:
COLLEGE OF NURSES OF ONTARIO DENISE COONEY for College of Nurses of Ontario
- and -
MARK RAMOS Registration No.: 0306977 PHILIP ABBINK for Mark Ramos
CHRISTOPHER WIRTH Independent Legal Counsel
DECISION ON MEMBER’S MOTION
(Motion heard in writing)
The Member, Mark Ramos (the “Member”) has brought a motion asking that the hearing of this matter be deferred until in-person hearings resume and that it not proceed by videoconference. The College of Nurses of Ontario (the “College”) opposes this motion.
After careful consideration and a thorough review of all submissions made by the Member’s Counsel, College Counsel and the advice of Independent Legal Counsel, the Member’s motion to defer the hearing is denied. My reasons are set out below.
Background
(a) Referral to Discipline Committee and Hearings During the COVID-19 Pandemic
This matter was referred to the Discipline Committee by the Inquiries, Complaints and Reports Committee (“ICRC”) on November 20, 2019. Sections 13 and 14 of the Discipline Committee’s Guidelines provide that Hearing Dates are to be scheduled within six months of referral to the Discipline Committee and Hearings should commence within nine months of referral. The hearing of this matter was scheduled to be heard on October 5-8, 13, 14 and 19, 2020 by videoconference.
As a result of the COVID-19 pandemic, the College’s offices have been closed since approximately March 16, 2020 and the Discipline Committee has suspended all in-person hearings. It is currently unknown as to when the College’s offices will re-open and in-person hearings of the Discipline Committee will resume. All Discipline Committee hearings since that date have been conducted by teleconference or videoconference. While the Discipline Committee has conducted two “contested” hearings by videoconference (Mancuso – July 31, 2020 and Tugade – September 2, 2020), they were only contested in the sense that the Members did not appear and the panels heard viva voce evidence from witnesses but without any cross-examination. If this hearing were to proceed, it would be the first contested videoconference hearing where the Member appeared and there would be cross-examinations.
The allegations against the Member in this matter are serious. If the Discipline Committee were to make findings of professional misconduct against him, the consequences to the Member could be significant.
(b) Submissions of the Parties
The Member submits that there will be credibility issues between the complainant and himself and that proceeding by a videoconference hearing would prejudice his right to a fair hearing as it would impair the Discipline Committee’s ability to assess the complainant’s credibility and would also impair his counsel’s ability to cross-examine the complainant by way of documents which the complainant had not previously reviewed. The Member has also submitted that he is not currently working as a nurse, although there is no interim order against him made by the ICRC prohibiting him from doing so, and that there will be no prejudice to the College or the public by a delay until an in-person hearing would be available.
In response, the College submitted that there would be no significant prejudice to the member for the hearing to proceed by way of videoconference and that there would be prejudice to the College by a delay in the hearing as the complainant’s health may deteriorate and she may not be available to testify if the hearing was adjourned until in-person hearings resume. As she is the key witness for the College, it submitted that this would prejudice its ability to prosecute the case and as well a delay would be prejudicial to the College’s role in protecting the public interest by resolving complaints with respect to professional misconduct in a timely manner.
(c) Legislation, Rules and Electronic Hearings During COVID-19
Sections 5.2 and 5.2.1 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), provide the statutory basis for the Discipline Committee to conduct electronic hearings. Sections 5.2 and 5.2.1 are as follows:
Electronic hearings
5.2 (1) A tribunal whose rules made under section 25.1 deal with electronic hearings may hold an electronic hearing in a proceeding. 1997, c. 23, s. 13 (7).
Exception
(2) The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.
Different kinds of hearings in one proceeding
5.2.1 A tribunal may, in a proceeding, hold any combination of written, electronic and oral hearings. 1997, c. 23, s. 13 (8).
Further, on March 25, 2020, the Ontario legislature enacted the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020, S.O. 2020, c. 5, Sched. 3 (the “HTPA”) to permit and encourage administrative tribunals to use electronic hearings in an effort to mitigate the effects of the COVID-19 pandemic. The HTPA gives administrative tribunals broad powers to conduct their hearings electronically as the tribunal considers appropriate, as well as to give directions and make rules and orders with respect to the format and conduct of its hearings.
In the event of a conflict between the HTPA and the SPPA, any other Act or regulation, or any rules made by a tribunal under the SPPA, the provisions of the HTPA will prevail. Similarly, any order, direction, or rule made by a tribunal under the HTPA prevails over any other Act, including the SPPA, and any other rules made by the tribunal under any other Act.
The HTPA applies to ongoing proceedings that were commenced before the HTPA came into force, in addition to new proceedings commenced going forward. The enactment of the HTPA evidences an intention by the legislature to encourage and enable tribunals to use electronic hearings.
In July and September 2020 Notices to the Profession, the Ontario Courts advised that they are shifting to electronic hearings in the context of the COVID-19 pandemic. On July 29, 2020, the Ontario Superior Court of Justice announced that commencing August 10, 2020 it would be launching a pilot project to use a cloud-based document sharing program called CaseLines which supports the use of remote hearings.
CaseLines is a document sharing and e-hearing software program that allows parties in legal proceedings to upload and share materials with adjudicators, other parties, and witnesses for use during both remote and in-person hearings. CaseLines also functions as an e-hearing platform, which can be used for document management in conjunction with videoconferencing programs such as Zoom or Microsoft Teams.
On September 2, 2020, the Ontario Superior Court of Justice announced that following a two week test phase, CaseLines would be used for Toronto Civil Cases starting the week of September 21st, and that parties would begin receiving email notifications that CaseLines is to be used in their hearings. Over the coming months, the use of CaseLines will be expanded to other types of cases in Toronto and across Ontario. Parties will be required to register with CaseLines and upload any documents that they file with the Court to CaseLines for use during the hearing. The use of CaseLines demonstrates the Ontario Superior Court of Justice’s commitment to facilitating remote hearings in the context of the COVID-19 pandemic.
The Discipline Committee is currently considering using CaseLines as its e-hearing platform and is in the process of testing it. If adopted by the Discipline Committee, hearing participants will be trained on using it. The hearing dates of October 5-8 were cancelled as CaseLines was not ready to be used for them.
Pursuant to the SPPA, the Discipline Committee has made Rule 5 which addresses electronic hearings. Rule 5 provides as follows:
Discipline Committee Rules
Rule 5—Electronic Hearings
5.0 Pursuant to s. 5.2 of the Act, a Discipline panel may hold all or part of a hearing by telephone conference call, videoconference or any other form of electronic communication.
5.1 The factors to be considered in determining whether to hold all or part of a hearing as an electronic hearing shall include:
(a) in cases where one party objects, whether there is significant prejudice to the objecting party;
(b) in all cases, whether the panel’s ability to hold a fair and adequate hearing will be prejudiced; and
(c) in all cases other than where the only purpose of the hearing is to deal with procedural matters, whether the reasons for requesting an electronic hearing outweigh the desirability that members who are the subject of discipline proceedings should attend discipline hearings in person.
(d) Notice of Facts and Opinions
Section 16 of the SPPA provides as follows:
Notice of facts and opinions
- A tribunal may, in making its decision in any proceeding,
(a) take notice of facts that may be judicially noticed; and
(b) take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. R.S.O. 1990, c. S.22, s. 16.
I have therefore taken notice of the COVID-19 pandemic and the impact it has had on the Discipline Committee’s hearings and how that impact is not static and may change over time depending on the circumstances.
Reasons for Decision
In determining where it is appropriate for the hearing to proceed by videoconference, I have:
(a) considered whether the member has satisfied me that proceeding by videoconference rather than by an oral hearing is likely to cause the member significant prejudice;
(b) considered whether the panel’s ability to hold a fair and adequate hearing will be prejudiced by proceeding with a videoconference rather than an oral hearing; and
(c) determined whether the reasons that a videoconference hearing is being requested outweigh the desirability that members who are subject to disciplinary issues attend hearings in-person.
As noted above, Section 5.2(1) of the SPPA and Rule 5 of the Discipline Committee’s Rules, gives it the authority to proceed with an electronic hearing.
The College of Nurses has been conducting discipline hearings by teleconference since March 2020 and by videoconference since July 2020. The hearings have been going very well and there has been no need to defer any cases until the College is able to hold in-person hearings. Discipline Committee panel members are experienced and professional, and have been well versed and fully trained on the process for virtual hearings.
I understand Mr. Abbink’s concerns with putting documents to witnesses during a contested hearing and the ability to cross-examine; however, this should not be an issue since the College will be using the CaseLines platform. I am aware that training on the program will commence shortly and the College expects that it will be ready to use in advance of the Member’s hearing which was expected to commence on October 13, 2020 but has now been adjourned to October 19, 2020 at the request of the College due to the recent passing of the complainant.
Additionally, the Member’s Counsel has expressed concern that the panel members will not be able to assess a witness’s credibility when observing the witness by video. The College of Nurses uses the Zoom videoconference application for virtual hearings. During such hearings, the panel is able to view each speaker, as well as others in the hearing, in the moment. The Discipline Committee members are experienced in the assessment of witness credibility and have an evaluative tool at their perusal to support their careful examination and observations. I fully expect that panel members will use this tool to support and record their objective observations during the trial, particularly when a witness is being interviewed or cross-examined.
Accordingly, the Member and his Counsel have not satisfied me that the Member will suffer significant prejudice by the hearing proceeding by videoconference.
The Member’s case was referred to the Discipline Committee by the ICRC in November 2019. Under the Committee’s guidelines, discipline hearings should commence within nine months of the date of referral. In the Member’s case, that would have been in August 2020. Deferring this case until the College can hold in-person hearings is not in the public interest, particularly when there is no indication in the foreseeable future of when the College will open up again and in-person hearings can resume.
Finally, the allegations in Mr. Ramos’ case are very serious. To put this hearing off indefinitely is not in the public interest when we have a mechanism in place to fairly hear the matter now.
A discipline panel will proceed with the hearing by way of videoconference starting on October 19, 2020. If, during the course of the hearing, the hearing becomes problematic and the chairperson feels it cannot proceed, the chair has the discretion to determine a solution or temporarily suspend the hearing.
Order
The Member’s motion is denied. The hearing will proceed by videoconference commencing on October 19, 2020.
This order does not preclude the panel which will hear this matter, from revisiting my decision as necessary, if at any point during the hearing, a party demonstrates that the ability to make full answer and defence, or any aspect of hearing fairness is compromised.
As it concerns this motion, an order is made preventing the public disclosure and banning publication or broadcasting of the name, or any information that could identify the identity of the patient.
Terry Holland
Chairperson, Discipline Panel