College of Nurses of Ontario v. Christopher Ebite Sanidad, 2023 CanLII 121599

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

Panel

Michael Hogard, RPN Chairperson

Andrea Arkell Public Member

Sylvia Douglas Public Member

Patrycja Nowicka-Bujko, RPN Member

Michael Schroder, NP Member

Parties and Counsel

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) ALYSHA SHORE for

) College of Nurses of Ontario

• and - )

CHRISTOPHER EBITE SANIDAD ) ANTONIO VILLARIN for

Registration No. AF143898 ) Christopher Ebite Sanidad

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: May 3, 2023

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on May 3, 2023, via videoconference.

Publication Ban

College Counsel brought a motion pursuant to s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, for an order preventing public disclosure and banning the publication or broadcasting of the names of the patients and colleagues or any information that could disclose the identities of the patients and colleagues, referred to orally or in any documents presented at the Discipline hearing of Christopher Ebite Sanidad.

The Panel considered the submissions of the College Counsel and Member’s Counsel and decided that there be an order preventing public disclosure and banning the publication or broadcasting of the names of the patients and colleagues, or any information that could disclose the identities of the patients and colleagues, referred to orally or in any documents presented at the Discipline hearing of Christopher Ebite Sanidad.

The Allegations

The allegations against Christopher Ebite Sanidad (the “Member”) as stated in the Amended Notice of Hearing dated February 6, 2023 are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(1) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at Carecor Health Services Ltd. in Toronto, Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as follows:

(i) on, about or between November 2020 to February 2021, you harassed and/or sexually harassed your co-worker [A] when you engaged in behaviour that you knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, including but not limited to the following:

a) hugged and/or kissed her on the cheek;

b) sent her numerous inappropriate messages such as “I love you”, “good night my love”, asked her how much she loved him from a scale of 0 to 10, asked for a hug and/or kiss;

c) said “I love you” to her in person;

d) touched her arm and/or hand unnecessarily;

e) purchased food and/or beverages for her;

f) invaded her personal space; and/or

g) went to her house uninvited;

(ii) on, about or between November 2020 to February 2021, you harassed and/or sexually harassed your co-worker [B] when you engaged in behaviour that you knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, including but not limited to the following:

a) touched her hand unnecessarily when passing documents;

b) whispered in her ear “all I need in my life is you” at work;

c) tugged on her shirt sleeve;

d) invaded her personal space; and/or

e) said “I will take a picture of you someday”;

(iii) on, about or between November 2020 to February 2021, you harassed and/or sexually harassed your co-worker [C] when you engaged in behaviour that you knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, including but not limited to the following:

a) sent her screenshots of her face and back profile from a picture she had shared on Facebook, told her she was beautiful and asked her to come to work in the same outfit from the picture;

b) touched her hand unnecessarily when passing documents or specimen bags; and/or

c) invaded her personal space;

(iv) on, about or between January 2021 to February 2021, you harassed and/or sexually harassed your co-worker [D] when you engaged in behaviour that you knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, including but not limited to the following:

a) sent a message to her asking “do you have shortness of breast?” or something to that effect;

b) told her that you missed her;

c) tried to hold her hand; and/or

d) rubbed her back or shoulders for a few seconds; and/or

(v) on or about December 16, 2020, you disclosed personal health or other confidential information regarding Patients [A], [B], and [C], without the consent of the patients or other authorization, when you took a photograph of their records and sent the photograph to a colleague without clinical or therapeutic purpose;

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(10) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at Carecor Health Services Ltd. in Toronto, Ontario, you gave information about a client to a person other than the client or their authorized representative without consent of the client or their authorized representative or as required or allowed by law, when you took a photograph of the health records of Patients [A], [B] and [C] and sent the photograph to a colleague without clinical or therapeutic purpose; and/or

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(37) of Ontario Regulation 799/93, in that while employed as a Registered Practical Nurse at Carecor Health Services Ltd. in Toronto, Ontario, 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:

(i) on, about or between November 2020 to February 2021, you harassed and/or sexually harassed your co-worker [A] when you engaged in behaviour that you knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, including but not limited to the following:

a) hugged and/or kissed her on the cheek;

b) sent her numerous inappropriate messages such as “I love you”, “good night my love”, asked her how much she loved him from a scale of 0 to 10, asked for a hug and/or kiss;

c) said “I love you” to her in person;

d) touched her arm and/or hand unnecessarily;

e) purchased food and/or beverages for her;

f) invaded her personal space; and/or

g) went to her house uninvited;

(ii) on, about or between November 2020 to February 2021, you harassed and/or sexually harassed your co-worker [B] when you engaged in behaviour that you knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, including but not limited to the following:

a) touched her hand unnecessarily when passing documents;

b) whispered in her ear “all I need in my life is you” at work;

c) tugged on her shirt sleeve;

d) invaded her personal space; and/or

e) said “I will take a picture of you someday”;

(iii) on, about or between November 2020 to February 2021, you harassed and/or sexually harassed your co-worker [C] when you engaged in behaviour that you knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, including but not limited to the following:

a) sent her screenshots of her face and back profile from a picture she had shared on Facebook, told her she was beautiful and asked her to come to work in the same outfit from the picture;

b) touched her hand unnecessarily when passing documents or specimen bags; and/or

c) invaded her personal space;

(iv) on, about or between January 2021 to February 2021, you harassed and/or sexually harassed your co-worker [D] when you engaged in behaviour that you knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, including but not limited to the following:

a) sent a message to her asking “do you have shortness of breast?” or something to that effect;

b) told her that you missed her;

c) tried to hold her hand; and/or

d) rubbed her back or shoulders for a few seconds; and/or

(v) on or about December 16, 2020, you disclosed personal health or other confidential information regarding Patients [A], [B] and [C], without the consent of the patients or other authorization, when you took a photograph of their records and sent the photograph to a colleague without clinical or therapeutic purpose.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c), (d), (v), 2, 3(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c), (d) and (v) in the Amended Notice of Hearing. 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 as amended reads, unedited, as follows:

THE MEMBER

1. Christopher Ebite Sanidad (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on February 29, 2016.

2. The Member was assigned to North York General Hospital’s COVID-19 Screening Clinic in Toronto, Ontario (the “Facility”) by Carecor Health Services (the “Agency”) as a casual RPN from October 22, 2020 until his employment was terminated for cause on February 19, 2021 in relation to the incidents described below.

3. The Member received training about the Agency’s workplace harassment policies during orientation in October 2020.

4. The Member has been employed as a casual RPN at Source Momentum Health Care Solutions since March 1, 2021. Source Momentum is a staffing agency.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Inappropriate Behaviour Toward Co-worker [A]

5. [Co-worker A] (“[ ]”) was employed as a Registered Nurse (“RN”) screener at the Facility during the COVID-19 pandemic.

6. Between November and December 2020, the Member engaged in the following behaviours toward [Co-worker A] at the Facility:

• Approached [Co-worker A] while on shift and gave her a side hug before trying to pull her toward him in a frontal embrace, which [Co-worker A] resisted. Despite pulling away from the hug, the Member kissed [Co-worker A] on the cheek;

• said “I love you” on multiple occasions both privately and in the presence of patients and Facility staff;

• touched [Co-worker A]’s hand at least four times, including caressing her hand and placing his palm over her hand when exchanging paperwork or specimen samples at the Facility;

• touched her forearm with his fingers or palm on multiple occasions while walking past her at the Facility;

• approached [Co-worker A] from behind, said words to the effect of “Let me tie your [PPE] gown for you”, and leaned close enough to [Co-worker A]’s face and neck that she could feel his breath;

• repeatedly asked [Co-worker A] if he could hold her hand or hug her; and

• purchased bubble tea for [Co-worker A] on two or more occasions, for which the Member told [Co-worker A] he would accept a hug as reimbursement.

7. Between November and December 2020, the Member drove [Co-worker A] to her residence in Brampton, Ontario on six occasions.

8. [Co-worker A] initially declined the Member’s offer to drive her home following their shifts on Sundays, but [Co-worker A] permitted the Member to drive her home when he insisted her residence was on his usual route home. At the time, [Co-worker A] did not know that the Member lived in Toronto.

9. [Co-worker A] ’s home in Brampton is in the opposite direction of the Member’s residence and, therefore, not “on [his] way home” as the Member told [Co-worker A].

10. During these commutes, the Member asked [Co-worker A] if she found Filipino men attractive, if he could get a hug before she left the vehicle, and inquired about her personal life.

11. [Co-worker A] was uncomfortable with the Member’s questions and stopped accepting rides home from the Member by January 2021.

12. In December 2020, the Member began sending [Co-worker A] private WhatsApp messages, a sample of which are reproduced below (all messages below reproduce the spelling and capitalization of the original messages):

• I miss you already

• I really miss you now. And I was so sad driving home because I didnt get the hug and the goodbye kiss that you promised me 😥

• Can I still hug you next time? Whats wrong with the kiss?

• I hope you wont change. I dont want to lose you. I want to be friends with you forever.

• Can I have a picture of you [Co-worker A]?

• I just want to look at your beautiful face But can I still have a hug? After work? Dec 25 is so far and Im going to miss you

• while waiting for Dec 25. I cant help it. You’re so beautiful.

13. In mid-December 2020, the Member and [Co-worker A] exchanged several WhatsApp messages in which [Co-worker A] communicated that she did not have a romantic interest in the Member and that she wanted to keep their relationship professional, a sample of which is reproduced below (all messages below reproduce the spelling and capitalization of the original messages):

Member: I like you so much

[Co-worker A]: That’s sweet but I don’t think it would be appropriate

And I am seeing someone right now so I’m not looking for anyone at the moment.

Member: I understand. But it wont stop me from liking you. We can still be friends or special friends, if its okay with you.

[Co-worker A] I think we can be coworker friends

Member: Nothing special?

[Co-worker A]: I have someone special in that way in my life already. I think we can keep things professional and friendly between us.

14. Despite [Co-worker A]’s communication and previous requests that the Member discontinue his inappropriate conduct and romantic advances, the Member did not stop.

15. On December 16, 2020, the Member took a photo of three patient records on his personal cell phone and sent the photo to [Co-worker A] over WhatsApp with the caption, “Always something here that reminds me of you”.

16. The records displayed three patient names, dates of birth and health card numbers.

17. The Member disclosed the health records of three patients who attended the Facility for COVID-19 testing – [Patient A], [Patient B] and [Patient C] – because they share the same last name as [Co-worker A].

18. The Member did not have authorization or consent from the patients to access their records and the Member did not have a clinical purpose for sharing the photograph with [Co-worker A], especially via an unsecure text messaging service.

19. The Member texted [Co-worker A], “Those 2 girls are so cute. I guess all [ ] girls are the cutest in the world 😊”, in reference to [Co-worker A]’s last name.

20. [Co-worker A] responded to the Member that she did not know those people and that the patients were strangers to her from both a personal and a clinical perspective.

21. If [Co-worker A] were to testify, she would state that she was alarmed by the privacy breach. She would explain that she was appalled that the Member had violated patient privacy in such a reckless manner and that he did so as part of his ongoing harassment of her.

22. Following the patient privacy breach incident, [Co-worker A] communicated with the Member less frequently on WhatsApp.

23. Despite her disengagement, the Member persisted. The Member continued to send [Co-worker A] WhatsApp messages, a sample of which are reproduced below (all messages below reproduce the spelling and capitalization of the original messages):

• Im thinking of you every minute every second of the day

• Can I get a hug tomorrow? Good night

• Anything for you. Are you going to sleep now? I miss you already. I was hoping I get a goodbye kiss on your cheek before you left

• I just realized I drove all the way without looking at your face I mean you’re already there but still I didn’t get the chance to stare at your beautiful face

• I miss you. I dont know what you did to my heart

• Missing you Worried that you might forget me And you seem to not care about me anymore

24. The Member’s behaviour shifted and [became] more aggressive and upsetting to [Co-worker A].

25. In late-December 2020, the Member sent [Co-worker A] dozens of messages telling her that he was jealous of her speaking to another male colleague at the Facility and that it was upsetting for him to see her with other men, including [Co-worker A]’s boyfriend.

26. The Member repeatedly suggested that he would “leave” if [Co-worker A] stopped speaking to him, ignored him or was mad at him. Concerned for his mental wellbeing, [Co-worker A] repeatedly reassured the Member that she was not angry with him and that they were friends.

27. The Member and [Co-worker A] also exchanged several WhatsApp messages in which the Member told [Co-worker A] he needed her for his mental health, a sample of which is reproduced below (all messages below reproduce the spelling and capitalization of the original messages):

Member: Im actually booked for the 1st but if you really dont want to see me I can go to the other side

[Co-worker A]: Chris why are you acting like that

Member: Depression? Idk

[Co-worker A]: Maybe you should talk to a professional about it

Member: Why? Are u serious?

[Co-worker A] Because depression can get very bad if you ignore it

Member: You know you’re the only one who can help me

[Co-worker A]: I’m not a psychiatrist

Member: I dont need a psychiatrist I need you

[Co-worker A]: I can’t be that for you Chris

Member: The fear of losing you is what makes me depressed.

28. [Co-worker A] texted the Member shortly following this exchange, “I feel like you have feelings for me And I told you I don’t like you in that way”.

29. The Member did not respect [Co-worker A]’s feelings. He did not stop contacting her.

30. In January 2021, the Member sent [Co-worker A] more inappropriate WhatsApp messages, a sample of which are reproduced below (all messages below reproduce the spelling and capitalization of the original messages):

• Last night I wanted to ask you if you went home safe. I was so worried.

• I love you

• Good night love

• Are you sleeping now my love?

• Im always thinking of you

• Still beautiful?

• I love you [Co-worker A]

• Good night my love

• You’re welcome my love

• My love are you coming with me after work?

• I miss you so much my love. This Sunday shift is no good because I dont get to see you or talk to you or hug you or just kiss you 😭 I even switched with [ ] just to be with you😭

• Can I get a hug before you leave please? Please my love 😥

• I really want to hug you today my love I love you my love [Co-worker A] please

• If I dont get a hug today you wont see me anymore 😭😭😭😭😭

• Bye my love 😥

• You’re just killing me every week and you dont care. You’re breaking my heart.

31. On January 10, 2021, the Member texted [Co-worker A], “I still love you”. In response, [Co-worker A] reminded the Member that he has a wife at home. The Member responded, “I know but still it dont change the thing. Whatever happens I still love you.”

32. Once again, [Co-worker A] repeated, “I want you to know I don’t feel the same unfortunately”.

33. On January 17, 2021, the Member sent [Co-worker A] a WhatsApp message: “I love you [Co-worker A]”. This time, [Co-worker A] did not respond. The following day, the Member sent [Co-worker A] a series of WhatsApp messages: “Good morning [Co-worker A]! How are you? I miss you already. [Co-worker A] pls answer me. I love you [Co-worker A]. I cant wait for Sunday. I love you. [Co-worker A] are you still busy? I want to tell you something. I love you. Can I hug you on Sunday? We used to do it before. Whats wrong with a hug?” [Co-worker A] responded to the Member, “No I don’t think that’s appropriate Chris” and “I am not comfortable with it”.

34. Similar to the Member’s messages from December 2020, the Member replied to [Co-worker A] on January 18, 2021: “Why arent you comfortable with it? Ive been nice to you all this time. I showed you nothing but love. All Im asking for it a hug.”

35. [Co-worker A] continued to reject his advances.

36. The Member remained relentless. He asked [Co-worker A] in the same WhatsApp message thread if he could hold her hand, to which [Co-worker A] responded, “No that’s not a good idea either”. She explained that she did not want to have any physical contact with the Member. Undeterred, the Member advised [Co-worker A] via WhatsApp message that he would find a way to kiss her. The Member texted [Co-worker A] that he loved her at least twice more.

37. On January 23, 2021, the Member attended [Co-worker A]’s residence uninvited and waited outside for approximately 20 minutes. [Co-worker A] was not home at the time.

38. If [Co-worker A] were to testify, she would state that she was scared when she learned that the Member showed up at her residence unannounced and unwelcome. She felt shaken and unsafe.

39. The Member asked [Co-worker A] via WhatsApp how much she loved him on a sale of 0 to 10. [Co-worker A] replied, “Pls stop asking, I’m asking you kindly”. The Member responded, “I love you [Co-worker A]. Is it zero? You don’t wanna hug me?”.

40. The WhatsApp discussion thread continued, a sample of which is reproduced below:

Member: You break my heart every Sunday. I was always nice to you and you know that

[Co-worker A]: Just because I don’t wanna hug you or kiss you does not give you the right to accuse me or make me feel bad about myself

41. When the Facility terminated the Member in February 2021, he asked [Co-worker A] if she would help him get reinstated. She replied that she would not assist him.

42. [Co-worker A] blocked the Member.

Inappropriate Behaviour Toward Co-worker [B]

43. [Co-worker B] (“[ ]”) was employed as an RN screener at the Facility during the COVID-19 pandemic.

44. On October 27, 2020, the Member and [Co-worker B] had their first orientation shift together.

45. Sometime between October 30, 2020 and November 4, 2020, the Member handed [Co-worker B] a patient chart. While passing it to her, the Member took his other hand and slid or glided his entire hand over her hand, from her wrist to her fingertips. [Co-worker B] withdrew her hand.

46. [Co-worker B] did not raise her concerns with the Member at the time because his unwelcome contact occurred in the presence of patients and [Co-worker B] did not want to make them feel uncomfortable if they overheard the nature of the discussion.

47. Later during the same shift, the Member approached [Co-worker B] and whispered in her ear words to the effect of, “All I need in my life is you”.

48. Once again, [Co-worker B] did not confront the Member because she and the Member were in the presence of patients and [Co-worker B] was mindful of drawing attention to the interaction.

49. Following this shift, [Co-worker B] began consciously avoiding the Member during shifts.

50. Despite her efforts, the Member began standing close to [Co-worker B] during group huddles, to the point where their bodies were almost always touching when he stood beside her.

51. [Co-worker B] took further steps to avoid contact with the Member while on shift, including standing at the opposite side of the clinic and only speaking to him in group settings unless she was in the Charge Nurse role and needed to speak with him for clinical purposes.

52. In November 2020, the Member started sending [Co-worker B] private WhatsApp messages.

53. Because she was already alarmed by his inappropriate behaviour, [Co-worker B] deleted the Member’s messages without opening or reading them.

54. Around the same time, the Member sent “❤” to [Co-worker B] via text message.

55. [Co-worker B] deleted the message and blocked the Member.

56. Between December 16 and 23, 2020, a small group of Facility staff were taking photos together.

57. The Member approached [Co-worker B] with his personal cell phone, tugged at her sleeve and asked if he could take her picture.

58. [Co-worker B] told the Member that she did not feel comfortable with him taking a photograph of her or of him having a photograph of her in a group picture.

59. [Co-worker B] took a photograph of her colleagues and declined to participate in the group photo. After [Co-worker B] took the group photo, the Member approached her and said words to the effect of, “I will take a picture of you some day”. [Co-worker B] responded by telling the Member words to the effect of, “You never my have permission to take any pictures of me”.

60. At their next shift together, [Co-worker B] asked if she could speak to him one-on-one, in the presence of a colleague. The Member agreed.

61. [Co-worker B] asked the colleague to record her having a one-on-one discussion with the Member.

62. [Co-worker B] told the Member that his unsolicited touching, invasion of personal space and repeatedly unprofessional communications made her uncomfortable and that, if he did it again, she would report him to Facility management.

63. The Member said that [Co-worker B] was exaggerating and making his actions seem “worse than they are”.

64. [Co-worker B] reiterated how his unwanted attention and unprofessional behaviour made her feel and that she would not permit it to continue. She asked the Member to stop immediately.

65. The Member said that he understood.

Inappropriate Behaviour Toward Co-worker [C]

66. [Co-worker C] (“[ ]”) was employed as an RPN screener at the Facility during the COVID-19 pandemic.

67. [Co-worker C] experienced numerous instances of concerning behaviour by the Member at the Facility between November 2020 and February 2021, including but not limited to the Member repeatedly asking [Co-worker C] about her shift schedule, buying her beverages without her asking, and asking if they could spend their breaks together.

68. The Member asked [Co-worker C] these questions in person while on shift, and would also send her text messages with the same inquiries.

69. By December 2020, the Member began sending [Co-worker C] personal messages on Facebook Messenger.

70. On January 30, 2021, the Member sent screenshots of [Co-worker C]’s face, backside and side profile that he intentionally zoomed and cropped from [Co-worker C]’s appearance on a television show.

71. The Member sent [Co-worker C] a private Facebook message telling her that she looked “beautiful” and asked if she would wear the dress that she was wearing on the television episode to work.

72. [Co-worker C] replied, “thank you for the compliment but I will not be doing that” or words to that effect.

73. Following this exchange, the Member began to initiate unwanted physical contact with [Co-worker C] at the Facility.

74. When the Member and [Co-worker C] passed specimen bags and documents to one another, the Member held and traced his fingers along [Co-worker C]’s hand unnecessarily, stood approximately 2-3 inches from [Co-worker C]’s face and body, and stared at [Co-worker C] while she was collecting samples or printing orders.

75. [Co-worker C] did not readily respond to the Member’s texts from that point onward, and attempted to avoid interacting with him while on shifts together.

76. If [Co-worker C] were to testify, she would state that she became scared of the Member and his unsolicited and unwanted attentions after he sent her the closely cropped photographs of her face and body that the Member had screenshot from the television episode.

77. If [Co-worker C] were to testify, she would state further that the Member made her extremely uncomfortable, but that she was too timid to report him to management because she thought she was the only woman the Member was targeting.

Incident Involving Co-worker [D]

78. [Co-worker D] (“[ ]”) was employed as an RPN screener at the Facility during the COVID-19 pandemic.

79. [Co-worker D] did not work at the Facility in January 2021 because she was isolating due to COVID-19 symptoms.

80. The Member sent a private WhatsApp message to [Co-worker D], “Do you have any shortness of breast?” or words to that effect.

81. The Member screenshot [Co-worker D]’s WhatsApp profile and sent it back to her with the tagline, “Nvm. You don’t have any shortness of breast.”

82. As [Co-worker D] prepared to return to work toward the end of January 2021, she shared her February 2021 schedule with the Member in a private WhatsApp message.

83. The Member responded, “We really are destined for each other. I have shifts on those days 😍”. The Member continued to text [Co-worker D], telling her that he missed her and that he would expect a kiss from her once she returned to work.

84. [Co-worker D] responded, “You’re useless to talk to. Bye.”

85. From this point forward, the Member began sending [Co-worker D] daily WhatsApp messages and texts to her personal cell phone. [Co-worker D] did not respond.

86. On January 29, 2021, [Co-worker D] returned to the Facility. During this shift, the Member tried to hold [Co-worker D]’s hand when they exchanged specimens from COVID-19 tests. The Member then attempted to readjust [Co-worker D]’s PPE gown. [Co-worker D] told him to stop. Instead, the Member approached [Co-worker D] from behind and massaged [Co-worker D]’s shoulders and neck without consent. The encounter lasted a few seconds. [Co-worker D] did not have time to shrug off the Member’s hands or verbally respond.

87. If [Co-worker D] were to testify, she would state that the Member would not leave her alone for the duration of this January 29, 2021 shift and that his physical proximity and touching were both unsolicited and undesired.

CNO STANDARDS OF PRACTICE

88. CNO publishes nursing standards to set out the expectations for the practice of nursing. CNO’s published standards inform nurses of their accountabilities and apply to all nurses regardless of their role, job description or area of practice.

Code of Conduct

89. The Code of Conduct articulates what Ontarians can expect of nurses in all practice settings. It aims to promote public confidence in the nursing profession through a principle-based accountability model.

90. Nurses have a commitment to the nursing profession. Being a member of CNO brings with it the respect and trust of the public. To continue to deserve this respect, nurses have a duty to uphold the standards of the profession by comporting themselves in a manner befitting their role. Nurses must behave in a way that reflects well on the membership and, importantly, must take accountability for their actions when their conduct falls below or contravenes an articulated standard. This is a critical element of self-regulation.

91. Members uphold this standard by ensuring that all collegial interactions are professional and respectful. The Code of Conduct sets out the following expectations:

a. nurses are professional with colleagues and treat them with respect, including on social media; and

b. nurses collaborate and communicate with colleagues in a clear, effective, professional and timely way.

Professional Standards

92. CNO’s Professional Standards provides that each nurse is accountable to the public and responsible for ensuring their conduct meets legislative requirements and the standards of practice of the profession. Nurses demonstrate this standard by role-modelling professional values, beliefs and attributes as well as nurturing positive collegial relationships. This includes creating and promoting a work environment of trust, integrity and respect among all members of the health care team.

Confidentiality and Privacy – Personal Health Information

93. CNO’s Confidentiality and Privacy – Personal Health Information practice standard discusses the expectations and obligations of a nurse under the Personal Health Information Protection Act (“PHIPA”).

94. PHIPA defines “personal health information” as any identifying information about patients that is in verbal, written or electronic form. This includes information collected by nurses during therapeutic nurse-patient relationships.

95. The legislation recognizes that personal health information belongs to patients and is simply being housed in health care facilities, who serve as Health Information Custodians.

96. The Confidentiality and Privacy practice standard provides key indicators nurses can use to ensure they are meeting expectations, including:

a) ensuring that electronic transmission of personal health information is done so securely to protect patient confidentiality;

b) safeguarding the security of computerized, printed or electronically displayed or stored information against theft, loss, unauthorized access or use, disclosure, copying, modification or disposal;

c) maintaining confidentiality of [patients’] personal health information with members of the healthcare team, who are also required to maintain confidentiality, including information that is documented or stored electronically;

d) accessing information for her/his [patients] only and not accessing information for which there is no professional purpose; and,

e) considering if any harm may come to a [patient] as a result of a disclosure.

97. Aside from a narrow set of exceptions, express consent is required from the patient when personal health information is disclosed outside the health care team or is not used to provide health care.

Ethics

98. CNO’s Ethics Standard provides that nurses have a commitment to the nursing profession. Professional status brings with it the respect and trust of the public. Maintaining the respect of the public requires, amongst other things, for nurses to conduct themselves in a manner that reflects well on the profession.

99. CNO identified respecting and upholding privacy and confidentiality as important values in providing nursing care. Specifically, “[patients] have the right to confidentiality and nurses make an implicit promise to maintain confidentiality.”

ADMISSIONS OF PROFESSIONAL MISCONDUCT

100. The Member admits that his conduct with respect to his colleagues [Co-worker A], [Co-worker B], [Co-worker C] and [Co-worker D] breached CNO’s Code of Conduct, Professional Standards, Confidentiality and Privacy and Ethics standards of practice.

101. In particular, the Member admits that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when on, about or between November 2020 and February 2021, he harassed and/or sexually harassed his colleague, [Co-worker A], when he engaged in conduct that he knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, as set out in paragraphs 1(i)(a)-(g) of the Notice of Hearing and as described in paragraphs 5-42, 89-92, and 100 above.

102. In particular, the Member admits that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when on, about or between November 2020 and February 2021, he harassed and/or sexually harassed his colleague, [Co-worker B], when he engaged in conduct that he knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, as set out in paragraphs 1(ii)(a)-(e) of the Notice of Hearing and as described in paragraphs 43-65, 89-92, and 100 above.

103. In particular, the Member admits that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when on, about or between November 2020 and February 2021, he harassed and/or sexually harassed his colleague, [Co-worker C], when he engaged in conduct that he knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, as set out in paragraphs 1(iii)(a)-(c) of the Notice of Hearing and as described in paragraphs 66-77, 89-92, and 100 above.

104. In particular, the Member admits that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when on, about or between November 2020 and February 2021, he harassed and/or sexually harassed his colleague, [Co-worker D], when he engaged in conduct that he knew or ought to have known was unwelcome, offensive, embarrassing, humiliating and/or demeaning, as set out in paragraphs 1(iv)(a)-(d) of the Notice of Hearing and as described in paragraphs 78-87, 89-92, and 100 above.

105. In particular, the Member admits that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when on or about December 16, 2020, he gave information about a client or clients to a person other than the client or their authorized representative without consent or as required or allowed by law when the Member took a photograph of [Patient A], [Patient B] and [Patient C]’s respective health records and sent the photograph to his colleague, [Co-worker A], without a clinical or therapeutic purpose, as alleged in paragraph 1(v) of the Notice of Hearing and described in paragraphs 15-21 and 93-100 above.

106. The Member admits that he gave information about a client or clients to a person other than the client or their authorized representative without consent or as required or allowed by law when the Member took a photograph of [Patient A], [Patient B] and [Patient C]’s respective health records and sent the photograph to his colleague, [Co-worker A], without a clinical or therapeutic purpose, as alleged in paragraphs 2 of the Notice of Hearing and described in paragraphs 15-21 and 93-100 above.

107. The Member admits that he engaged in conduct or performed an act relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional, as alleged in paragraphs 3(i)-(v) of the Notice of Hearing and described in paragraphs 5-106 above.

Submissions on liability were made by College Counsel.

College Counsel asked the Panel to accept the Agreed Statement of Facts as well as the Member’s admissions to all the allegations as set out in paragraphs 100 to 107 of the Agreed Statement of Facts and, on the basis of those facts and admissions, make findings of professional misconduct with respect to the allegations in the Amended Notice of Hearing. College Counsel submitted that the Panel had taken the Member’s plea and conducted a verbal plea inquiry. The Member's plea was voluntary, informed, and made on the advice of experienced Counsel.

College Counsel submitted that allegations #1(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c), (d) and (v) are supported by the Agreed Statement of Facts, which contained evidence of the relevant College standards of practice, as well as the Member’s admissions that those standards were contravened.

With regard to allegations #3(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c), (d) and (v), College Counsel submitted that the parties agreed that the Member’s conduct was relevant to the practice of nursing, as it occurred in the workplace with work colleagues and patient medical information, and was disgraceful, dishonourable and unprofessional.

College Counsel submitted that the Member’s conduct was unprofessional as it demonstrated a disregard for his professional obligations. The Member’s conduct was dishonourable as the Member knew or ought to have known that his conduct fell below the standards of a professional and, by repeatedly harassing co-workers and sharing patients’ health information by text, involved an element of moral failing. The member’s conduct was disgraceful as it brought shame on the Member and the profession.

College Counsel submitted that the agreement, to characterize the conduct as disgraceful, dishonourable and unprofessional, was part of a resolution reached between the College and the Member.

College Counsel submitted the following cases from this Discipline Committee to illustrate that the conduct of harassing co-workers was found to be disgraceful, dishonourable and unprofessional:

CNO v. Crummey (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts. The allegations involved sexual harassment of two colleagues. The member admitted to some of the allegations and denied some of the allegations. The College did not put forth evidence for the allegations that the member did not admit to and there were no findings made for these. On the remaining allegations, the panel found that the member’s conduct of sexually harassing colleagues breached the standards of practice and was disgraceful, dishonourable and unprofessional.

CNO v. Robichaud (Discipline Committee, 2016): This case proceeded by way of an Agreed Statement of Facts. Some of the allegations were withdrawn. The remaining allegations pertained to the member sexually harassing three colleagues. The panel found the member’s conduct to be disgraceful, dishonourable and unprofessional.

The Member’s Counsel was provided an opportunity by the Panel to make submissions on liability but declined to do so.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c), (d), (v), #2, #3(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c), (d) and (v) of the Amended Notice of Hearing. As to allegations 3(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c), (d) and (v), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession 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 Amended Notice of Hearing.

Allegations #1(i)(a), (b), (c), (d), (e), (f) and (g) in the Amended Notice of Hearing are supported by paragraphs 5-42, 89-92 and 100-101 in the Agreed Statement of Facts. The Member admitted that between November and December 2020 while he was assigned to the North York General Hospital (the “Facility”) he interacted with[Co-worker A] in a sexually harassing manner both in person, in front of other colleagues, and by text message. The Member physically harassed [Co-worker A] by giving her a side hug, kissing her on the cheek, invading her personal space and touching her forearm with his finger or palm on multiple occasions. The Member verbally harassed [Co-worker A] by saying “I love you” on multiple occasions. The Member showed up at [Co-worker A]'s house uninvited and purchased bubble tea for her. Despite multiple rejections of the Member’s advances by [Co-worker A], signalling that they were unwelcome, offensive, embarrassing, humiliating and demeaning, the Member persisted with his behaviour.

Allegations #1(ii)(a), (b), (c), (d) and (e) in the Amended Notice of Hearing are supported by paragraphs 43-65, 89-92, 100 and 102 in the Agreed Statement of Facts. The Member admitted that between October and December 2020 while he was assigned at the Facility he interacted with [Co-worker B] in a sexually harassing manner. The Member made several physically and verbally harassing gestures to [Co-worker B] including sliding his hand over her hand in the presence of a patient, invading her personal space and whispering in her ear “All I need in my life is you”. [Co-worker B] provided a clear message to the Member that his conduct made her feel uncomfortable and that she would report him to the Facility if it continued.

Allegations #1(iii)(a), (b) and (c) in the Amended Notice of Hearing are supported by paragraphs 66-77, 89-92, 100 and 103 in the Agreed Statement of Facts. The Member admitted that between November 2020 and February 2021 while he was assigned at the Facility he interacted with [Co-worker C] in a sexually harassing manner. The Member sent her screenshots of her from her appearance on a television show, touched her hand unnecessarily, made remarks that she was “beautiful” and requested that she come to work in the same dress that she was wearing from a picture posted on her Facebook profile. [Co-worker C] felt scared and uncomfortable while working with the Member.

Allegations #1(iv)(a), (b), (c) and (d) in the Amended Notice of Hearing are supported by paragraphs 78-87, 89-92, 100 and 104 in the Agreed Statement of Facts. The Member admitted that in January 2021 while he was assigned to the Facility he interacted with [Co-worker D] in a sexually harassing manner. The Member massaged [Co-worker D]'s shoulders without consent and tried to hold her hand when they exchanged specimens from COVID-19 tests. Through text, the Member told [Co-worker D] that he missed her and asked her “do you have shortness of breast”. The touching was both unsolicited and undesired and persisted despite [Co-worker D] telling the Member to stop.

With respect to allegations #1(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c) and (d), the Code of Conduct provides that “Nurses are professional with colleagues and treat them with respect”. Similarly, the College’s Professional Standards provide that nurses are responsible for “role-modelling positive collegial relationships”. The Member breached the Code of Conduct and the Professional Standards by engaging in persistent sexually harassing behaviour with four separate co-workers. His behaviour was disrespectful and tarnished his working relationships with his co-workers.

Allegations #1(v) and #2 in the Amended Notice of Hearing are supported by paragraphs 15-21, 93-100 and 105-106 in the Agreed Statement of Facts. The Member admitted that on December 16, 2020 while he was assigned to the Facility he took photos using his personal cell phone of [Patient A], [Patient B] and [Patient C]’s health records which included their name, date of birth and health card number. The Member sent the photos to [Co-worker A] using WhatsApp to establish that he was thinking of her given that the patients had the same last name as her. The Member taking and sending the photos of the patients’ health records to [Co-worker A] had no therapeutic or clinical purpose. The College’s Ethics Standard provides that “Clients have the right to confidentiality, and nurses make an implicit promise to maintain confidentiality”. Similarly, the Confidentiality and Privacy – Personal Health Information Standard provides that nurses should not access patient’s personal health information for which there is no professional purpose. The Member clearly breached the Ethics Standard and the Confidentiality and Privacy – Personal Health Information Standard by sending photos of personal health information over an unsecure messaging service for no therapeutic or clinical purpose. The Member taking and sending the photos of the patients’ health records to [Co-worker A] was done without the patients’ consent. Subsection 1(10) of Ontario Regulation 799/93 defines giving information about a client or clients, to a person other than the client or their authorized representative without consent or as required or allowed by law, as professional misconduct. Therefore, the Panel finds that the Member committed 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(10) of Ontario Regulation 799/93.

Allegations #3(i)(a), (b), (c), (d), (e), (f), (g), (ii)(a), (b), (c), (d), (e), (iii)(a), (b), (c), (iv)(a), (b), (c), (d) and (v) in the Amended Notice of Hearing are supported by paragraphs 5-107 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in sexually harassing four co-workers and disclosing three patients’ health records without consent was relevant to the practice of nursing. It was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations as set out in the Code of Conduct, the Professional Standards, the Ethics Standard and the Confidentiality and Privacy - Personal Health Information Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of moral failing when he sexually harassed four co-workers despite their repeated rejections of the Member’s advances and them signalling to him that they were unwelcome, offensive, embarrassing, humiliating and demeaning. Disclosing three patients’ health records without consent and a clinical or therapeutic purpose also showed a moral failing. The Member knew or ought to have known that his conduct was unacceptable and fell below the standards of a professional.

Finally, the Panel finds that the Member’s conduct was disgraceful as it shames the Member and by extension the profession. The Member’s conduct of sexually harassing four co-workers in a persistent manner casts serious doubt on the Member’s 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 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 6 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 a practicing class.

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

a) Within 12 months from the date that this Order becomes final, or a longer timeframe if approved by CNO, the Member shall successfully complete at the Member’s own expense the Improving Inter-Professional Communication virtual seminar program offered through CPEP (Center for Personalized Education for Professionals), and shall provide proof to CNO of passing each portion of the program with a grade of “Good” or higher: https://www.cpepdoc.org/cpep-courses/improving-inter-professional-communication/;

b) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s expense within 6 months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions. All sessions shall be completed within 12 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the following documents:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

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

1. Code of Conduct,

2. Confidentiality and Privacy – Personal Health Information, and,

3. Professional Standards;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

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 patients, 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 their report to CNO, 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 the Member’s 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 the Member’s certificate of registration;

c) For a period of 24 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:

i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;

ii. Ensure that CNO 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;

iii. Provide the Member’s 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;

iv. 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 CNO, in which it will confirm:

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

2. that they agree to notify CNO 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 CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel.

The aggravating factors in this case were:

• The Member’s conduct was very serious;

• The Member repeatedly and aggressively harassed four co-workers in a highly inappropriate manner;

• The Member’s conduct continued despite the co-workers' repeated requests for the conduct to stop;

• The Member breached the confidentiality of three patients by disclosing their health records to others outside of the health care team; and

• The Member’s conduct was disgraceful which brings shame and discredit to the profession at large.

The mitigating factors in the case were:

• The Member has no prior discipline history with the College; and

• The Member has taken responsibility and accountability for his conduct by cooperating throughout the discipline process, by admitting to the allegations and by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College.

The proposed penalty provides for general deterrence through the 6-month suspension of the Member‘s certificate of registration, which will signal to the membership that there are serious consequences for this type of misconduct.

The proposed penalty provides for specific deterrence through the oral reprimand and the 6-month suspension of the Member’s certificate of registration. The oral reprimand will allow the Member to hear how his conduct is perceived by both the public and fellow nurses and, along with the suspension, sends a signal to the Member that his misconduct was unacceptable.

Remediation and rehabilitation are addressed through a minimum of 2 meetings with a Regulatory Expert and completion of the Improving Inter-Professional Communication virtual seminar program offered through the Centre for Personalized Education for Professionals which will allow the Member an opportunity to reflect on his misconduct and alter his practice accordingly.

Overall, the public is protected through the 24 months of employer notification, which will provide a heightened level of employer oversight on the Member’s return to nursing practice.

Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:

CNO v. Crummey (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order and involved allegations of sexual harassment and inappropriate behaviour towards two co-workers. The member admitted only some of the allegations in the Notice of Hearing. The remaining allegations were dismissed. The penalty included an oral reprimand, a 5-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and 12 months of employer notification. College Counsel submitted that in the case before this Panel, the suspension period being proposed was higher as there were four colleagues who were harassed and there was also an added element of patient privacy breaches.

CNO v. Robichaud (Discipline Committee, 2016): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order and involved sexual harassment of three co-workers. Some of the allegations were withdrawn by the College. All three of the interactions occurred in one day. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, two meetings with a Nursing Expert and a 12 months of employer notification. College Counsel submitted that in the case before this Panel, the suspension period being sought was higher as the sexual harassment was persistent over a period of time and there was an added element of patient privacy breaches.

CNO v. Hirtle (Discipline Committee, 2019): This case proceeded by way of a contested hearing and was subsequently appealed by the member. The panel found that some of the allegations were proven. The member was a clinical instructor and the allegations involved making sexual jokes and comments and sending inappropriate text messages to nursing students. The penalty included an oral reprimand, a 5-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert and 18 months of employer notification. The appeal of this decision, CNO v. Hirtle (Divisional Court, 2022) was dismissed.

The Member’s Counsel was provided an opportunity by the Panel to make submissions on Penalty but declined to do so.

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 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 6 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 a practicing class.

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

a) Within 12 months from the date that this Order becomes final, or a longer timeframe if approved by CNO, the Member shall successfully complete at the Member’s own expense the Improving Inter-Professional Communication virtual seminar program offered through CPEP (Center for Personalized Education for Professionals), and shall provide proof to CNO of passing each portion of the program with a grade of “Good” or higher: https://www.cpepdoc.org/cpep-courses/improving-inter-professional-communication/;

b) The Member will attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s expense within 6 months from the date that this Order becomes final. If the Expert determines that a greater number of sessions are required, the Expert will advise CNO regarding the total number of sessions that are required and the length of time required to complete the additional sessions. All sessions shall be completed within 12 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the following documents:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

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

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

1. Code of Conduct,

2. Confidentiality and Privacy – Personal Health Information, and,

3. Professional Standards;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Reflective Questionnaires;

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 patients, 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 their report to CNO, 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 the Member’s 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 the Member’s certificate of registration;

c) For a period of 24 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:

i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;

ii. Ensure that CNO 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;

iii. Provide the Member’s 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;

iv. 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 CNO, in which it will confirm:

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

2. that they agree to notify CNO 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 CNO, 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 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.

The Panel finds that the penalty satisfies the principles of specific and general deterrence, rehabilitation and remediation, and public protection. Specific deterrence is met through the oral reprimand and the 6-month suspension of the Member’s certificate of registration. General deterrence is met through the 6-month suspension of the Member’s certificate of registration, which will illustrate to the membership that there are serious consequences for this type of misconduct. Rehabilitation and remediation are achieved by a minimum of 2 meetings with a Regulatory Expert, review of the College’s publications and completion of the Improving Inter-Professional Communication virtual seminar program, which will help transition the Member back into ethical nursing practice. Public protection is achieved through the 24 months of employer notification, which will provide a heightened level of employer oversight on the Member’s return to practice.

The penalty is also in line with what has been ordered in previous cases in similar circumstances.

I, Michael Hogard, 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.