College of Nurses of Ontario v. Saint-Louis, 2023 ONCNO 149364

Discipline Committee of the College of Nurses of Ontario

PANEL: Mary MacNeil, RN Chairperson Jean-Laurent Domingue, RN Member Carly Hourigan Public Member Kimberly Wagg, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO JOSEPH BERGER for College of Nurses of Ontario

• and -

ALIANE SAINT-LOUIS Registration No. 9210584 CHRISTOPHER BRYDEN for Aliane Saint-Louis

KIMBERLEY ISHMAEL Independent Legal Counsel

Heard: October 27, 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 October 27, 2023, via videoconference.

The Allegations

The allegations against Aliane Saint-Louis (the “Member”) as stated in the Notice of Hearing dated May 26, 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 working as a Registered Nurse at Toronto General Hospital in Toronto, 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, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

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(8) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General Hospital in Toronto, Ontario (the “Facility”), you misappropriated property from a client or workplace, and in particular, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

3. You 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(14) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General Hospital in Toronto, Ontario (the “Facility”), you falsified a record relating to your practice, and in particular, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

4. You 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(15) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General Hospital in Toronto, Ontario (the “Facility”), you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, and in particular, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

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(37) of Ontario Regulation 799/93, in that while working as a Registered Nurse at Toronto General Hospital in Toronto, Ontario (the “Facility”), you 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 or unprofessional, and in particular, in or around 2015 to 2016, you submitted and/or accepted payment for false claims under the Facility’s employee group benefit plan.

Member’s Plea

The Member admitted the allegations set out in paragraphs 1, 2, 3, 4 and 5 in the 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 reads, unedited, as follows:

MEMBER

1. Aliane Saint-Louis (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse on March 26, 1992.

2. At the time of the incidents described below, the Member was employed at Toronto General Hospital in Toronto, Ontario (the “Facility”).

BENEFIT PLAN

3. The Facility offers its employees a self-insured group insurance policy by which the Facility provides coverage to employees for extended health care, dental, and other insurance benefits (the “Benefit Plan”). SunLife Insurance (“Sun Life”) administers the Benefit Plan on behalf of the Facility. The Facility, however, is the plan sponsor for the Benefit Plan and therefore funds the cost of claims paid out to employees under the plan.

4. To submit a benefit claim, members of the Benefit Plan were required to complete a medical expense claim form provided by Sun Life. The medical expense claim form requires certain information, including information on the plan member, any dependents, and the nature of the claim. The plan member must certify that all goods or services were received as claimed and that “the information provided for this claim is true and complete”, and then sign.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

5. In August 2015 and February 16 2016, the Member submitted two claims totaling $2,605 to the Benefit Plan for compression stockings, custom orthotics, shoe modifications, heel cushions, and a chiropody assessment.

6. In August 2017, Sun Life alerted the Facility that it had identified higher than expected costs in certain benefits categories and had conducted a review of benefits use at the Facility. Sun Life delisted a number of suppliers that it concluded had facilitated fraudulent claims. One of the service providers investigated by Sun Life was Downtown Wellness and Foot Care (“Downtown Wellness”).

7. The Facility initiated an internal investigation which included interviews of staff involved, including the Member, who had submitted claims from Downtown Wellness.

8. On July 9, 2018, the Facility interviewed the Member. During the interview, the Member admitted to having submitted claims for medical products that she did not receive and in return, receiving non-medical brand name products such as UGG boots and sneakers.

9. The Facility required the Member to make restitution in the amount of $2,337.50 and suspended the Member without pay from her employment for five days. The Member paid restitution.

BENEFIT FRAUD CASES

10. To date, at least 82 benefit fraud cases involving substantially similar schemes as the one identified in this case, involving either cash or products not covered by the benefit plan, have been referred to the Discipline Committee. The dollar amounts of the false claims involved range from under $500 to over $45,000.

CNO STANDARDS

Professional Standards

11. CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership and relationships.

12. CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standards of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.

13. CNO’s Professional Standards provides, in relation to the leadership standard, that leadership requires self-knowledge (understanding one’s beliefs and values and being aware of how one’s behaviour affects others), respect, trust, integrity, shared vision, learning, participation, good communication techniques and the ability to be a change facilitator. The leadership expectation is not limited to nurses in formal leadership positions and all nurses, regardless of their position, have opportunities for leadership. Nurses demonstrate this standard by actions such as role-modelling professional values, beliefs and attributes.

Ethics

14. CNO’s Ethics Standard describes ethical values that are important to the nursing profession in Ontario including patient well-being, patient choice, privacy and confidentiality, respect for life, maintaining commitments, truthfulness and fairness.

15. CNO’s Ethics Standard provides, in relation to maintaining commitments, that nurses have a commitment to the nursing profession and being a member of the profession 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, conduct themselves in a manner that reflects well on the profession, and to participate in and promote the growth of the profession.

16. CNO’s Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive.

17. The Member admits and acknowledges that she contravened CNO’s Professional Standards and Ethics Standard.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

18. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that she contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as described in paragraphs 5 to 9 and 11 to 17 above.

19. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing in that she misappropriated property from a workplace, as described in paragraphs 5 to 9 above.

20. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 3 of the Notice of Hearing in that she falsified a record relating to her practice, as described in paragraphs 5 to 9 above.

21. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 4 of the Notice of Hearing in that she signed or issued, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement, as described in paragraphs 5 to 9 above.

22. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 5 of the Notice of Hearing, and in particular her conduct was dishonourable and unprofessional, as described in paragraphs 5 to 9 and 11 to 17 above.

Submissions on Liability

College Counsel’s Submissions

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 18 to 22 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 Notice of Hearing. College Counsel submitted that the Panel has taken the Member’s plea, conducted a verbal plea inquiry, and received a written plea inquiry which confirmed that the plea was voluntary, informed, and made on the advice of experienced Counsel. College Counsel submitted that based on the Agreed Statement of Facts, which specifically describes the facts in relation to the allegations, the Panel has enough evidence to find that the Member committed professional misconduct as set out in all of the allegations in the Notice of Hearing.

College Counsel reviewed allegations #1 and #5 with the Panel. With regard to allegation #1, College Counsel submitted that this allegation is supported by the Agreed Statement of Facts, which contained evidence of the relevant College standards of the profession, as well as the Member’s admissions that those standards were breached.

With regard to allegation #5, College Counsel submitted that the parties agreed that the Member’s conduct is relevant to the practice of nursing and is unprofessional and dishonourable.

The conduct at issue, which is that the Member submitted two false claims totalling $2,605.00 through the Toronto General Hospital’s (the “Facility”) employee group benefit plan (the “Benefit Plan”) in August 2015 and February 2016, is relevant to the practice of nursing and that members of the profession would consider such conduct to be unprofessional and dishonourable. The Member’s admission to allegation #5 was part of a resolution reached with the College. The Member’s conduct is relevant to the practice of nursing as she had access to the Facility’s Benefit Plan by virtue of her employment as a nurse. Without her employment as a nurse, the Member would not have access to the Benefit Plan. The Member’s conduct is unprofessional as submitting false claims to the Facility’s Benefit Plan and accepting non-medical brand name products in relation to those claims demonstrated a failure to act with integrity. The Member’s conduct is dishonourable as it demonstrated an element of dishonesty and deceit. College Counsel submitted that the Member failed to act with the integrity the public expects of nurses and that she brought shame to the nursing profession.

The Member’s Counsel’s Submissions

The Member’s Counsel submitted that the Panel should accept the Member’s admissions of professional misconduct. The Member is very remorseful for her conduct. The Member retired on September 1, 2021, has not worked since her retirement and her certificate of registration is expired. The Member worked for thirty years as a nurse, loved being a nurse and is remorseful that her conduct took place at the end of her career.

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, 3, 4 and 5 of the Notice of Hearing. As to allegation #5, the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be unprofessional and dishonourable.

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 5 to 9 and 11 to 18 in the Agreed Statement of Facts. The Member admitted that she contravened the standards of practice of the profession when she submitted two false claims through the Facility’s Benefit Plan in August 2015 and February 2016 totalling $2,605.00 and accepted non-medical brand name products in relation to those false claims. The College’s Professional Standards, in relation to the accountability standard, states that nurses are accountable to the public and responsible for ensuring their practice and conduct meets the legislative requirements and the standards of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. By submitting false claims to the Facility’s Benefit Plan for compression stockings, custom orthotics, shoe modifications, heel cushions, and a chiropody assessment, and accepting non-medical brand name products for these false claims, the Member contravened the Professional Standards in that she failed to conduct herself in a way that promotes respect for the profession.

The Member also breached the College’s Ethics Standard which provides, in relation to maintaining commitments, that nurses have a commitment to the nursing profession and being a member of the profession brings with it the respect and trust of the public. The Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking or acting without intending to deceive. By submitting false claims to the Facility’s Benefit Plan for compression stockings, custom orthotics, shoe modifications, heel cushions, and a chiropody assessment, and accepting non-medical brand name products for these false claims, the Member contravened the Ethics Standard in that she acted with the intent to deceive. In doing so, the Member breached the trust of the public in the nursing profession.

Allegation #2 in the Notice of Hearing is supported by paragraphs 5 to 9 and 19 in the Agreed Statement of Facts. The Member admitted to misappropriating property from the Facility when she submitted two false claims through the Facility’s Benefit Plan and received non-medical brand name products for those false claims. Receiving non-medical brand name products with respect to false benefit claims constitutes misappropriation of property.

Allegation #3 in the Notice of Hearing is supported by paragraphs 5 to 9 and 20 in the Agreed Statement of Facts. The Member admitted to falsifying a record relating to her practice when she signed and submitted false medical expense claim forms to the Facility’s Benefit Plan. The Member, as an RN employed at the Facility, had access to the Benefit Plan by virtue of her employment as a nursing professional and so her actions were related to her practice as a nurse. Accordingly, the facts support the allegation that the Member falsified a record relating to her practice and did so in the context of her employment as an RN at the Facility.

Allegation #4 in the Notice of Hearing is supported by paragraphs 5 to 9 and 21 in the Agreed Statement of Facts. The Member admitted to signing or issuing, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement. When the Member signed the medical expense claim forms that required her to certify that all goods or services were received as claimed and that “the information provided for this claim is true and complete”, she knew or ought to have known that she was signing a document that contained a false or misleading statement and that it was a false claim under the Facility’s Benefit Plan. As noted above, the Member had access to the Facility’s Benefit Plan by virtue of her employment as a nursing professional. When she signed and submitted claim forms on her behalf, she did so in her capacity as an RN employee of the Facility. Accordingly, the facts support the allegation that the Member signed or issued, in her professional capacity, a document that she knew contained a false or misleading statement.

Allegation # 5 in the Notice of Hearing is supported by paragraphs 5 to 9, 11 to 17 and 22 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in submitting false benefit claims was relevant to the practice of nursing as she had access to the Facility’s Benefit Plan by virtue of her employment as a nurse. It was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in breaching the College’s Professional Standards and the Ethics Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit when she submitted false claims to the Facility’s Benefit Plan that she knew contained false information for her personal gain. The Member knew or ought to have known that her conduct was unacceptable and fell below the standards of a professional.

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.

Penalty Submissions

College Counsel’s Submissions

College Counsel submitted that the Joint Submission on Order also provides in Appendix “A” an undertaking and agreement by the Member for the Member’s permanent resignation as a member of the College, effective October 19, 2023 (the “Undertaking”). Pursuant to this Undertaking, the Member undertakes, acknowledges and agrees to:

a) Permanently resign as a member of the College, effective from the date the Member signs the Undertaking;

b) Not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future;

c) Agree that the public portion of the College’s Register will indefinitely reflect that the Member entered into an Undertaking with the Executive Director to permanently resign as a member of the College as part of an agreed resolution of allegations of professional misconduct;

d) No longer have a right to the issuance or reinstatement of a Certificate of Registration from the College;

e) No longer have a right to use the title “Nurse”, “Registered Nurse”, “Registered Practical Nurse”, “RN”, “RPN” or a variation, an abbreviation or an equivalent in another language;

f) No longer have a right to hold herself out as a Nurse, Registered Nurse, Registered Practical Nurse or as a person who is qualified to practise in Ontario as a Nurse, Registered Nurse or Registered Practical Nurse;

g) No longer have a right to engage in the practice of nursing in any capacity; and

h) Agree the College is authorized to and may, in its sole discretion, provide a copy of the Undertaking and/or its terms to a governing body that regulates nursing in Canada or elsewhere in response to an inquiry or otherwise.

College Counsel submitted that the Panel should accept the Joint Submission on Order and make an order in accordance with its terms as it is a product of negotiations between the College and the Member, who is represented by experienced Counsel. College Counsel submitted that the Panel is generally expected to accept the Joint Submission on Order unless it believes it is contrary to public interest or that it would bring the administration of justice into disrepute. College Counsel submitted that the Joint Submission on Order is appropriate for three reasons: (1) it appropriately reflects the aggravating and mitigating factors of the case; (2) it meets the goals of penalty; and (3) it is consistent with prior decisions of the College’s Discipline Committee.

The aggravating factors in this case were:

• The Member’s conduct involved submitting 2 false claims totalling $2,605.00 which was not an insignificant amount, nor was it a one-time mistake as the conduct was repeated;

• The Member’s conduct contained an element of dishonesty;

• The Member’s conduct was done at the expense of her employer-funded Benefit Plan;

• The Member knew or ought to have known what she was doing was wrong;

• The Member took advantage of the trust placed in her by the Facility and the Benefit Plan; and

• The Member abused the privilege of having an employer-funded Benefit Plan.

The mitigating factors in this case were:

• The Member took responsibility for her conduct by admitting to the allegations and entering into an Agreed Statement of Facts and a Joint Submission on Order with the College;

• The Member demonstrated remorse and saved the College and the Panel time and expenses from having a lengthy and contested hearing;

• The Member made restitution; and

• The Member had no prior discipline history with the College.

College Counsel submitted that the Joint Submission on Order meets the goals of penalty. It protects the public and increases the public’s confidence in the College’s ability to regulate the nursing profession through the Member’s retirement and through the Undertaking she signed with the College.

College Counsel submitted that rehabilitation and remediation for this Member are not relevant considerations because the Member will no longer be practicing nursing.

Specific deterrence is not essential in this case because the Member has already undertaken to permanently resign from the practice of nursing. In such circumstances, the penalty of an oral reprimand is sufficient.

General deterrence is achieved through the oral reprimand and the fact that the findings will be publicly posted indefinitely and sends a clear message to other members of the profession that there are serious consequences for this type of conduct.

Overall, the public is protected by the resignation of the Member’s certificate of registration and the ability of the College to communicate this to any governing body that regulates nursing in Canada. Accordingly, the Panel does not need to impose further conditions in order to achieve protection of the public.

College 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. Zhang (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the Member submitted false claims to her employer-funded benefit plan in the amount of $5,420.00. The Member did not make restitution. The penalty included an oral reprimand and the member signed an undertaking to permanently resign as a member of the College.

CNO v. Kovaleva (Discipline Committee, 2022): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. In this case, the Member submitted false claims to her employer-funded benefit plan in the amount of $11,345.00. The Member did not make restitution. The penalty included an oral reprimand and the member signed an undertaking to permanently resign as a member of the College.

College Counsel submitted that while neither case is binding and no two cases are the same, the Zhang and Kovaleva cases demonstrate that conduct similar to the one the Member engaged in was met with a similar penalty. College Counsel submitted that there have been at least 82 benefit fraud cases referred to the Discipline Committee. The dollar amounts of the claims involved ranged from $500.00 to over $45,000.00. In the Zhang and Kovaleva cases the total value of the false claims was nowhere near the $45,000.00 mark, but nonetheless, in both cases, the members signed undertakings to permanently resign. The penalties given in both cases by the Discipline Committee only contain an oral reprimand as the members had entered into undertakings with the College.

College Counsel submitted that the Joint Submission on Order is consistent with other cases from the College’s Discipline Committee where the member has permanently resigned and entered an undertaking. Adopting this order is not contrary to public interest and it would not bring the administration of justice into disrepute. Therefore, the Panel should accept the Joint Submission on Order.

The Member’s Counsel’s Submissions

The Member’s Counsel agreed with College Counsel’s submissions and asked that the Panel accept the Joint Submission on Order. The Member is remorseful for her conduct, has had a long career as a nurse and has no history of discipline with the College. The Member cooperated with the College by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College.

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.

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. In the normal course, 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.

In this case, because the Member has undertaken to permanently resign, the oral reprimand is a sufficient penalty, and no other specific deterrence is required.

Furthermore, because of the Member’s resignation, it is not necessary to consider remediation and rehabilitation in determining the appropriate penalty.

General deterrence is also addressed as the Panel concluded had the Member’s situation been different and no Undertaking given, the Panel would have ordered a suspension, and terms, conditions and limitations on the Member’s certificate of registration which would have been in line with previous penalties.

Finally, the penalty of a reprimand is appropriate because the public is already protected through the permanent resignation and the Undertaking to not apply for membership with the College as a Registered Nurse or Registered Practical Nurse at any time in the future.

The penalty is also in line with what has been ordered in previous cases in similar circumstances as demonstrated by the cases submitted and referred to by College Counsel.

I, Mary MacNeil, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.