College of Nurses of Ontario v. Karolina Gielarowiec, 2023 CanLII 149371

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Carly Gilchrist, RPN Chairperson

Sandra Larmour Public Member

Donna May, RPN Member

Michael Schroder, NP Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) DOUGLAS MONTGOMERY for

) College of Nurses of Ontario

• and - )

KAROLINA GIELAROWIEC ) PHILIP B. ABBINK for

Registration No. 13570209 ) Karolina Gielarowiec

) CHRISTOPHER WIRTH

) Independent Legal Counsel

) Heard: July 27-28, 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”) commencing on July 27, 2023, via videoconference.

The Allegations

The allegations against Karolina Gielarowiec (the “Member”) as stated in the Notice of Hearing dated June 20, 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 denied the allegations set out in paragraphs #1, #2, #3, #4 and #5 in the Notice of Hearing. The hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

At the time of the events, the Member was a Registered Nurse (“RN”) who was employed at Toronto General Hospital (the “Facility”). As part of her employment, the Member had access to an employee group benefit plan (the “Benefit Plan”) which provided coverage for extended healthcare, dental and other insurance benefits. The allegations against the Member as set out in the Notice of Hearing are based on an allegation that on October 31, 2015 and August 6, 2016 she submitted and/or accepted payment for false claims for orthotic shoe modifications to the Benefit Plan that she did not receive. More specifically, the Member is alleged to have obtained non-medical products (shoes) instead of the orthopaedic shoe modifications which were invoiced and reimbursed by the Benefit Plan administrator.

The Member was present and represented by counsel.

The Panel considered 3 exhibits, including a Partial Agreed Statement of Facts and heard evidence from one witness, being the Member.

The issues are as follows:

a) Did the Member submit false claims or allow false claims to be submitted on her behalf to the Benefit Plan?

b) If the Member did commit the acts as alleged, can the acts properly be characterized as professional misconduct as set out in the Notice of Hearing?

The Panel found that the College did not meet its onus of proving the allegations on a balance of probabilities based upon clear, cogent and convincing evidence. The Panel dismissed all the allegations in the Notice of Hearing.

The Evidence

Partial Agreed Statement of Facts

College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced a Partial Agreed Statement of Facts, which reads, unedited, and without including the exhibits referenced therein, as follows:

THE MEMBER

1. Karolina Gielarowiec (the “Member”) initially registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) in the General Class on November 26, 2013. The Member registered in the Extended (Nurse Practitioner) Class on February 6, 2019.

2. At the time of the incidents described below, the Member was employed as an RN on the Nursing Resource Team in the Intensive Care Unit at Toronto General Hospital, located 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”). Sun Life 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. Pursuant to the Collective Agreement between the Facility and the Ontario Nurses’ Association (which represented the Member), the Facility contributed 75% of the billed premiums of nurses. The balance of monthly premiums were paid by the nurses through payroll deductions. The Collective Agreement is attached as Exhibit 1.

5. To submit a benefit claim, members of the Benefit Plan were required to complete and sign a medical expense claim form provided by Sun Life, examples of which are attached below. The medical expense claim form required certain information, including information on the plan member, any dependents, and the nature of the claim.

6. The plan member was required to certify that all goods or services were received as claimed and that “the information provided for this claim is true and complete”. The plan member was required to sign the form certifying the information submitted.

7. The Benefit Plan provides coverage for orthopedic footwear. The University Health Network – Benefit Booklet, which is attached as Exhibit 2, states:

Benefit Maximum: Orthopedic Shoes - $250 per calendar year

Eligible expenses for orthopedic shoes which do not necessarily form part of a brace and orthopedic modifications to shoes, when they are required for the correction of the bones and muscles and provided they are not solely for athletic use. Includes extra width, extra depth, custom made and modifications to stock orthopedic shoes. A prescription from a physician, podiatrist, chiropodist or chiropractor is required.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Claims Submitted by the Member

8. On October 31, 2015, a benefit claim form was submitted to the Benefit Plan on behalf of the Member in respect of products and services received at a service provider in Toronto, Ontario, called Downtown Wellness and Foot Care (“Downtown Wellness”). The invoices attached to the benefit claim form itemizes that the Member received four pairs of compression stockings, one pair of orthotics, modifications, and a chiropody assessment. The Member’s signature appears on the claim form. The October 31, 2015 claim form and supporting documents submitted to the Benefit Plan on behalf of the Member are attached as Exhibit 3.

9. On August 6, 2016, a second benefit claim form was submitted on behalf of the Member in respect of products and services received at Downtown Wellness. The invoices attached to the benefit claim form itemizes that the Member received four pairs of compression stockings, one pair of orthotics, “modifications”, and a chiropody assessment. The Member’s signature appears on the claim form. The August 6, 2016 claim form and supporting documents submitted to the Benefit Plan on behalf of the Member are attached as Exhibit 4.

10. The Member received payments from the Benefit Plan with respect to the amounts claimed on the October 31, 2015 and August 6, 2016 claim forms (collectively, the “Claims”).

11. At the time the Claims were submitted, Richard Pak, the chiropodist who conducted the Member’s assessments at Downtown Wellness, had not been found to have committed professional misconduct by the Discipline Committee of the College of Chiropodists. On November 24, 2020, Mr. Pak entered into an Undertaking with the College of Chiropodists to resign permanently and to surrender his Certificate of Registration. The Decision of the Discipline Committee of the College of Chiropodists of Ontario in relation to Mr. Pak is attached as Exhibit 5.

Investigation Into Member’s Claims

12. 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. Sun Life identified Downtown Wellness as a provider of concern.

13. Sun Life subsequently delisted Downtown Wellness, meaning that Sun Life would no longer reimburse claims for services or products obtained there. At the time the Member submitted the Claims, Downtown Wellness had not been delisted yet.

14. The Facility initiated an internal investigation into the use of the Benefit Plan. On August 9, 2017, an e-mail was sent to all employees at the Facility regarding the investigation. That e-mail asked anyone that may have filed inaccurate claims, or had inaccurate claims filed on their behalf, to come forward. The e-mail dated August 9, 2017, is attached as Exhibit 6. The Member did not respond to that e-mail.

15. In a follow-up e-mail dated October 25, 2017, the Facility notified employees that inappropriate use of the benefits program would not be tolerated. The e-mail dated October 25, 2017, is attached as Exhibit 7. The Member did not respond to that e-mail.

16. As part of its investigation, the Facility identified that the Claims could be fraudulent.

17. The Facility interviewed the Member on July 24, 2018. The Facility’s interview notes from the July 24, 2018 meeting with the Member are attached as Exhibit 8.

18. The invoices submitted with the Claims did not include any claim for running shoes. The Claims contained two claims for “shoe modifications”, which totalled $500, and for which the Member had received payment from the Benefit Plan.

19. The Facility suspended the Member’s employment without pay for five days and required the Member to make restitution in the amount of $500. The disciplinary letter provided to the Member on July 24, 2018, is attached as Exhibit 9.

20. The Member served the suspension, and paid restitution in the amount of $500.

BENEFIT MISUSE CASES

21. To date, at least 80 benefit fraud cases have been referred to the Discipline Committee. The dollar amounts of the claims involved range from under $500 to over $45,000.

CNO STANDARDS

22. The Member acknowledges that as a Member of CNO, she is subject to the following standards and guidelines, which were in force at all relevant times:

(a) CNO’s Professional Standards, Revised 2002 which is attached as Exhibit 10; and

(b) CNO’s Ethics Standard, which is attached as Exhibit 11.

23. The Member denies she has contravened any standard of practice of the profession.

24. CNO published a reference document entitled: Professional Conduct: Professional Misconduct, which is attached as Exhibit 12.

ALLEGATIONS OF PROFESSIONAL MISCONDUCT

25. The Member denies that she committed the acts of professional misconduct as alleged in paragraphs 1, 2, 3, 4, and 5 of the Notice of Hearing.

OTHER EVIDENCE AND SUBMISSIONS

26. The Member and CNO each reserve the right to introduce other evidence regarding the allegations of professional misconduct as long as such evidence does not contradict the facts agreed to herein. They also reserve the right to make submissions regarding what findings should be made with respect to the allegations of professional misconduct which the Member has denied.

The College submitted no further evidence and the Member then testified on her own behalf.

Witness #1 - The Member

The Member testified that she obtained her license as an RN in 2013 and started working at the Facility in 2014 on the Nursing Resource Team and Cardiovascular ICU. She obtained a Master's degree in 2015 and became registered with the College in 2019 as a Nurse Practitioner. Referring to Exhibit #2 to the Partial Agreed Statement of Facts, the Member agreed that she received the University Health Network Benefits Booklet during orientation and that she “skimmed through it”. The Member testified that she had used the Benefit Plan to obtain dental, eye health services (including eye glasses), and pharmaceutical prescriptions. The Member testified that the dentist and pharmacy had historically submitted the claims electronically on her behalf when she presented the Benefit Plan card.

The Member testified that her colleagues referred her to Downtown Wellness to seek assistance for her sore feet. The Member testified that she made an appointment at Downtown Wellness and when she arrived, the store was busy, and she had to wait to see the chiropodist. The Member testified that she was assessed by the chiropodist, Dr. Richard Pak ("Dr. Pak") by way of patient history, feet measurements, physical assessment of feet, walking back and forth across the room and feet impressions in foam. The Member testified that Dr. Pak told her that she had inversion of her feet and that she was flat footed. The Member testified that Dr. Pak prescribed orthotics, orthopedic shoes and compression stockings. The Member testified that she obtained four pairs of size small compression stockings from the showroom wall and was presented with a catalogue of shoes by the assistant, who explained that all of the shoes on the page were orthopedic shoes that could be adjusted. The Member testified that she selected a pair of white “cloud” shoes from the catalogue and that Dr. Pak and the assistant told her that she could put the orthotics in the orthopedic shoes. The Member testified that she was told that she had to wait approximately 3 weeks for the shoes as they had to be “created”. The Member testified that Dr. Pak was not present when she picked up the shoes and that the assistant had her try on the shoes. The Member testified that she felt that the shoes were “hard and heavy” and that the assistant reassured her that orthopedic shoes were not going to be comfortable right away. The Member testified that the assistant told her that the orthopedic shoes sometimes do not work and that she was to make note of the problems and let the assistant know.

Referring to Exhibit #3 to the Partial Agreed Statement of Facts, the claim form, the Member testified that she completed the claim form and signed the form but was unsure whether she wrote the date. Referring to the October 31, 2015 invoice, the Member testified that she did not receive or view the invoice on October 31, 2015 or when she went to pick up the shoes or during the Facility’s investigation. The Member testified that the first time she viewed the invoice was when she received the disclosure documents as part of the investigation from the College. The Member testified that she paid $110.00 and $1,300.00 on October 31, 2015 by Visa and that she was presented with and retained the customer copy Visa slips. The Member could not recall if she saw the prescription for custom orthotics and orthopedic shoes written by Dr. Pak on October 31, 2015.

The Member testified that she made a subsequent appointment on August 6, 2016 at Downtown Wellness in follow-up to the first appointment as she was not satisfied with the “cloud” shoes. The Member testified that during the appointment, she told Dr. Pak that the shoes were too narrow and too heavy. The Member testified that Dr. Pak performed all the assessments again including the foam impressions. The Member testified that she was told by the assistant about a “package” and that she subsequently selected a pair of Asics shoes out of the catalogue and obtained 4 pairs of compression stockings. The Member testified that she had to wait a few weeks to pick up the items as they had to be prepared. The Member testified that when she picked up the shoes, they were 50% better as the shoes were lighter and less painful when worn. Referring to Exhibit #4 to the Partial Agreed Statement of Facts, the August 6, 2016 claim form, the Member testified that she completed the claim form including her signature and the date. The Member testified that she did not see the invoices at the appointments or at the Facility’s investigation meeting. The Member testified that she first saw the invoices during the document disclosure as part of the College’s investigation. The Member testified that she paid $110.00 and $1,300.00 by Visa and retained the Visa receipts.

The Member testified that Downtown Wellness was going to “do everything for me” with respect to submitting the claim to Sun Life and that she received reimbursement for both the October 31, 2015 and the August 6, 2016 claims from Sun Life by direct deposit into her bank account.

Referring to Exhibit #6 to the Partial Agreed Statement of Facts, the Facility’s e-mail of August 9, 2017 to all employees at the Facility regarding the investigation of false benefit claims, the Member testified that she did not view it citing that she thought it did not pertain to her.

Referring to Exhibit #9 to the Partial Agreed Statement of Facts, the disciplinary letter from the Facility to the Member dated July 24, 2018, the Member testified that she paid back the $500.00 to the Facility as she was told by the Facility’s Human Resources (“HR”) representative that she would not be able to work at her job any longer if she failed to pay the funds back.

Referring to Exhibit #3, four pictures of a pair of Asics shoes, the Member testified that the pictures are of the footwear and orthotics that she received from Downtown Wellness from the August 6, 2016 appointment.

Cross-examination by College Counsel

The Member testified that she was reimbursed for the claims in full for both claims by direct deposit. The Member testified that Sun Life maintains a portal and that she did have access to it. The Member denied hearing any workplace conversations about benefit fraud prior to her July 24, 2018 Facility investigation meeting. When referring to the statement in the Facility’s investigation notes “No I just got runners out of the catalogue”, the Member testified that she did not remember saying it that way. The Member testified that she did not recall how she remembered to bring the shoes to the Facility’s investigation meeting, that she only brought the second pair of shoes to the Facility’s investigation meeting and that she left her first pair of footwear at Downtown Wellness during her August 6, 2016 appointment.

Referring to Exhibit #8 to the Partial Agreed Statement of Facts, the Facility’s interview notes, the Member testified that she was offered “SoftMoc” shoes by the assistant at Downtown Wellness. Referring to her earlier testimony about the “package”, the Member testified that the assistant and Dr. Pak recommended the package for nurses consisting of orthotics, orthopedic shoes and compression stockings. The Member testified that she did not hear about the “package” from her colleagues but was aware that her colleagues wore compression stockings as they would reveal the different colours of them during the course of her shifts. The Member testified that Downtown Wellness did not discuss the prices of products with her, nor did she see an itemized breakdown of products. The Member testified that Downtown Wellness did tell her what she was covered for.

Referring to Exhibit #9 to the Partial Agreed Statement of Facts, the Facility’s disciplinary letter, the Member testified that she did not think the letter was accurate as she was led to believe the footwear was orthopedic shoes by both Dr. Pak and the assistant at Downtown Wellness. The Member testified that she agreed with the statement contained in the Facility’s disciplinary letter “you signed the benefits claim forms without completing all the information about the claiming expenses and, as you state, not having seen any invoices or being aware of the medical products being claimed”. The Member testified that during the Facility’s investigation meeting the HR Representative said, “You got played”. The Member testified that she was crying during the Facility’s investigation meeting and that she made no attempt to have the Facility amend the disciplinary letter to correct the parts that she did not agree with. The Member testified that she could not recall calling the footwear “runners” during the meeting and did not ask to see the invoices in the meeting or after the meeting. The Member testified that after the Facility’s investigation, she recalls calling Downtown Wellness to inquire about the discrepancies but was dismissed by Downtown Wellness and was advised that Dr. Pak no longer worked there and that they were no longer providing services.

Referring to Exhibits #6 and #7 to the Partial Agreed Statement of Facts, the Facility’s e-mails regarding benefit claims/audits dated August 9, 2017 and October 25, 2017, the Member testified that she did not see or read the e-mails. The Member testified that had she read the e-mails, this would have prompted her to review her benefit claims and check the list of delisted service providers. The Member testified that she did not get any copies of the benefit claim forms. The Member testified that she agreed that “shoes” did not appear on the invoices. The Member testified that the assistant did not offer to show her the shoes in-person in advance of ordering and she chose the shoe from the catalogue based on what looked nice and what matched her scrubs. The Member testified that she remembered the assistant saying that the footwear would be “made for your feet” and “would take some time” and “could put orthotics in it”. The Member testified that she understood that placing orthotics into an orthopedic shoe is normal based on what the assistant at Downtown Wellness told her. The Member testified that she thought the assistant was working with Dr. Pak in a team format, although she did not know whether the assistant was qualified to read Dr. Pak's prescription. The Member testified that she has had thousands of dollars submitted for dental services through the Benefit Plan without obtaining itemized receipts and that it was “unideal” for her not to have obtained an itemized receipt from Downtown Wellness.

The Member testified that she did not think about or attempt to contact Dr. Pak following her call with Downtown Wellness as she was advised that he no longer worked there. The Member testified that she believed at the time that the assistant was qualified to fit and dispense custom orthotics and orthopedic shoes, that the assistant put her orthotics inside the footwear in the store and she did not receive any packing slips. The Member testified that she did not ask Downtown Wellness for a refund for her first pair of ill-fitting footwear as she had already worn them. The Member testified that she returned to Downtown Wellness for her second pair despite her poor experience the first time as she had a rapport with Downtown Wellness and they had all her records. The Member testified that her intention in returning to Downtown Wellness in August 2016 was for them to modify her existing footwear given that the footwear was not fitting correctly and was heavy. The Member testified that she had a “basic” understanding of her benefit entitlement which included being entitled to orthopedic shoes and requiring a referral from a chiropodist, prior to going to Downtown Wellness in October 2015. In relation to the benefit claim form requesting the Member to keep photocopies of receipts, the Member testified that she thought Downtown Wellness would do it. The Member testified that she signed the benefit claim form prior to receiving the orthotics and orthopedic shoes.

The Member’s Counsel’s Re-examination

Referring to Exhibit #8 to the Partial Agreed Statement of Facts, the Facility’s interview notes, the Member testified that she could not remember whether she used the term “runners” or “shoes”. The Member confirmed had she read the Facility’s e-mails regarding fraudulent benefit claims when received, she would not have thought that the e-mails pertained to her situation. The Member testified that she would not have known the correct shoes required for the purpose of correcting muscle and/or bones. Referring to the maximum allowable value of claims to the Benefit Plan, the Member testified that she did not know whether her dentist used the coverage maximums during her dental visits. The Member testified that as she had been reimbursed for 100% of the claims, there would have been no reason for her to login to Sun Life‘s portal to inquire about them.

College Counsel’s Final Submissions

College Counsel submitted that it is not required for the Member to have intended to commit these acts, nor is motive relevant. College Counsel submitted that given that the Member admitted to receiving shoes and receiving the reimbursement money for the improperly claimed shoe modification, the question becomes whether the Member took all reasonable care to ensure that she did not commit the wrongful act. College Counsel submitted that the Member did not take due diligence and therefore her actions should be found to be professional misconduct. College Counsel submitted that the amount is irrelevant. The issue is whether claims were improper.

With respect to allegation #5, the College sought a finding that the Member’s conduct was unprofessional and dishonourable.

College Counsel submitted the CNO v. Punchard (Discipline Committee, 2022) and CNO v. Vallega (Discipline Committee, 2022) cases to establish that liability is based on whether the claims were improper, and the quantum is attributable to penalty.

College Counsel submitted the Ontario (College of Pharmacists) v. Kothari (Discipline Committee, 2015) case to establish that an investigation can occur well after claims are submitted and paid out using circumstantial evidence rather than direct evidence. The acts can be misconduct even without an improper motive. The principle of strict liability applies.

College Counsel submitted that members of Regulatory Colleges can be found to have committed professional misconduct even without intent, motive or mens rea given that it is a member’s responsibility to ensure that they are always in compliance with their professional obligations. College Counsel submitted the Ghilzon v. Royal College of Dental Surgeons of Ontario (Divisional Court, 1979) case to establish that a member can avoid liability for professional misconduct by taking all reasonable care to avoid committing a prohibited act.

College Counsel submitted the Law Society of Upper Canada v. Mohammedally (Law Society Appeal Panel, 2014) case to establish that being duped by accepting explanations by fraudsters is grounds for professional misconduct based on being careless, inattentive or neglectful of professional responsibilities.

College Counsel submitted the CNO v. Pavlovych (Discipline Committee, 2022) case to establish that the panel made findings of professional misconduct by the member allowing false claims to be submitted by service providers on her behalf through the signing of blank claim forms. In this case, there was no intent by the member.

College Counsel submitted the CNO v. Avena (Discipline Committee, 2023) case to establish that the member took responsibility for allowing the provider to submit benefit claims on his behalf that were higher in price than the products that he had received. College Counsel submitted that there are similarities to the case before this Panel in that the Member did not review or ask to see the claim or supporting documentation prior to the service provider submitting the claim.

College Counsel submitted the City of Toronto v. CUPE Local 79 (Arbitration, 2017) case to establish that a personal care worker’s employment was terminated based on her participation in a fraudulent benefit claim scheme by way of ignoring red flags.

College Counsel submitted that the Member failed to exercise reasonable care and attentiveness through not obtaining an itemized receipt despite the explanation on the claims submission form to keep copies of receipts for your records. Furthermore, there were no order slips or records of assessment that came with the footwear. College Counsel submitted that the Member should have considered whether a $250.00 pair of Asics shoes were actually orthopedic footwear. College Counsel submitted that the Member had access to the Benefit Booklet from Sun Life which self-proclaimed to offer a “clear and concise” explanation of “foot care” benefits to its members. College Counsel reiterated the Member’s testimony that she chose the footwear on the basis that the footwear was soft, lighter, had no laces and minimalist and inferred that the Member should have questioned whether this type of shoe is required to correct muscles and bones and furthermore, the Member should have questioned the fact that the footwear looked like an “off the shelf running shoe”.

College Counsel submitted the Ontario (College of Physicians and Surgeons of Ontario) v. Chandra (Discipline Committee, 2017) case to establish that the “package” or “bundling” offered by Downtown Wellness was an indicator of fraud. College Counsel submitted that benefit maximums were charged and the package/bundle offering is suggestive of it not being medically necessary given that each item should be prescribed and assessed for the uniqueness of the individual. College Counsel submitted that the cost of the items was excessive given the Member’s testimony that she did not think about the cost and that prices were not discussed at Downtown Wellness.

College Counsel submitted that it was not clear how the assistant would have known that the shoes would be responsive to the issues outlined in Dr. Pak’s prescription. The Member chose shoes that were presented to her by the assistant via a catalogue and this should have been a red flag given the custom nature of the footwear.

Citing the factors to be considered when assessing credibility as outlined in Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services (Divisional Court, 1985), College Counsel submitted that the Member’s testimony was sometimes improbable. The Member, despite facing significant employment consequences, did not seek records or documents from Downtown Wellness that may have supported her case. The Member never requested amendments to the employment disciplinary letter or grieved the 5-day suspension with the Facility. The Member did not read the e-mails from her employer marked urgent regarding a benefit audit and in her testimony stated that she did not think the e-mails would have pertained to her.

College Counsel submitted the Ontario (College of Chiropodists of Ontario) v. Chan (Discipline Committee, 2022) case to demonstrate that there would be many documents created for the dispensing of orthotics and orthopedic shoes such as clinical notes and gait assessments and these would outline what the Member was told, what was dispensed, the fitting of the shoe and who Dr. Pak delegated to. Given that the Member’s Counsel was unable to produce these documents, College Counsel submitted that the Panel can draw an adverse inference in that the missing evidence would not support the Member’s case.

College Counsel submitted the cases CNO v. Valasquez (Discipline Committee, 2021) and CNO v. Santiago Discipline Committee, 2022) which both involved Downtown Wellness. The cases illustrate the type of scheme that Downtown Wellness facilitated which involved the members not receiving the medicinal products as claimed, but rather a store credit which was valid for non-medicinal products.

The Member’s Counsel’s Final Submissions

The Member’s Counsel submitted that the Member relied heavily in good faith on a licensed health care provider along with the business that he was involved in. The Member relied on her experience with other health care providers who submitted claims on her behalf.

In regard to the investigation meeting by the Facility, the Member’s Counsel submitted that the Member had brought the pair of footwear to the meeting and therefore it would be reasonable to assume that if she were guilty, the Member would not have brought the footwear to the meeting. Showing up to the meeting with the pair of footwear demonstrates that the Member subjectively understood that the footwear was indeed orthopedic footwear that the Member was entitled to under the Benefit Plan.

The Member’s Counsel submitted that the foundational allegation in the case before the Panel is whether the Member obtained something to which she was not entitled. The Member’s Counsel further submitted that a specific mens rea or dishonest intention is required for a finding of fraud in the context of professional regulation and submitted the Law Society of Upper Canada v. Reiten (Law Society Appeal Panel, 2007) case to support this. With regard to the allegations of professional misconduct which are strict liability offences, there are two defences, due diligence and the honest mistake of fact.

The Member’s Counsel submitted the Watson v. Law Society of Ontario (Law Society Appeal Panel, 2023) case to demonstrate that the definition of misappropriation from Upper Canada v. Reiten was utilized in a decision from the Divisional Court which pertained to professional regulation.

The Member’s Counsel submitted The Law Society of Upper Canada v. Nguyen (Law Society Appeal Panel, 2018) to demonstrate that establishing a mens rea for fraud required proof that the appellant was reckless or willfully blind. As the panel found the appellant had a sincere mistaken belief that there was no problem, a mens rea could not be established.

The Member’s Counsel submitted that the Member did not receive the footwear right away and the Panel can draw the inference that this time was required in order for the footwear to be modified in some way.

Referring to Exhibit #1, the Collective Agreement, the Member’s Counsel submitted that it contained a “sunset clause” whereby discipline would be removed from an employee’s employment record in 18 months should there be no further discipline during this time period.

The Member’s Counsel submitted that the Member relied on the knowledge and experience of the Dr. Pak, a regulated healthcare professional, to determine what needed to be done to correct her feet ailments.

The Member’s Counsel submitted that the Member’s honest mistake of fact pertains to the Member knowing that she received orthopedic shoes when she had in fact received an unmodified regular pair of shoes.

The Member’s Counsel submitted that the prescription for orthotics and orthopaedic shoes is not consistent with the invoice that was generated by Downtown Wellness and Sun Life should have questioned this during the adjudication phase of the benefit claim.

The Member’s Counsel submitted that, in regard to the employer e-mails, a reasonable person would look at the e-mail subject line and based on this, determine whether the e-mail applies to them and should be opened and read. Furthermore, the Member’s Counsel submitted that even if the Member had read the employer benefit misuse e-mails, she would not have taken any action as she would have perceived herself at the time as having used the Benefit Plan appropriately.

With respect to the employer disciplinary letter, the Member’s Counsel submitted that it is reasonable for the Member to have repaid the $500.00 to the Facility given that she found out that she was not entitled to it. Furthermore, it is reasonable for the Member to serve the 5-day suspension given that she had no intention of further discipline in the next 18 months and given that, with the sunset clause, the discipline would then be off the Member’s employment record.

With respect to the actions of Dr. Pak, the Member’s Counsel submitted that the College’s Professional Standards state that “Nurses are not accountable for the decisions or actions of other care providers when there was no way of knowing about those actions”.

Member’s Counsel submitted that the Member believed her employer who told her that the Asics shoes that the Member presented were not orthopaedic shoes and were not covered under the Benefit Plan and that there was no lab requisition available for the shoes. The Member’s Counsel submitted this is rationale why the Member did not personally obtain Dr. Pak’s records.

In reference to the College’s Ethics Standard, the Member’s Counsel submitted that the definition of truthfulness includes acting without intending to deceive and that there was no intention from the Member to deceive the Benefit Plan. Similarly, the Member’s Counsel submitted the Law Society of Upper Canada v. Reiten case to demonstrate that the Law Society of Upper Canada’s definition of misappropriation includes “a deliberate (i.e., knowing) taking with a dishonest intention”.

The Member's Counsel submitted that reasonable care must be determined in the context of the circumstances at the time and must not be judged in hindsight. Furthermore, the concept of hindsight must not be applied to the Member’s state of mind at the time of the events.

College Counsel’s Reply Submissions

College Counsel submitted that the mistake of fact has to be based on reasonable grounds and that the Panel needs to determine whether the Member was operating under a mistake of fact and whether it was reasonable for the Member to be doing so.

College Counsel submitted that it is not determined whether the offering of shoes from the assistant would be considered a representation from a regulated health professional. College Counsel submitted the importance of Dr. Pak’s clinical notes, which were not tendered, for important aspects of the orthotic shoe process, such as, if there was delegation from Dr. Pak to the assistant.

College Counsel submitted that Dr. Pak’s discipline proceeding allegations are just allegations and are not findings of fact as the discipline committee did not adjudicate the allegations.

College Counsel submitted that the Member demonstrated a lack of proper care as she had a lack of knowledge regarding what type of footwear was dispensed by Downtown Wellness.

College Counsel submitted that the credit card receipts are proof that an amount was paid however, the receipts do not outline what was actually received by the Member.

College Counsel submitted that a mistake is enough in a regulated profession to constitute a breach of the standards and the mistake may constitute unprofessional, dishonourable or disgraceful conduct.

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 is unable to find that the Member has committed acts of professional misconduct as alleged in paragraphs #1, #2, #3, #4 and #5 in the Notice of Hearing. Accordingly, the Panel dismisses all of the allegations against the Member.

Reasons for Decision

Assessment of credibility is a key part of the Panel’s function. The Panel approached the issue of credibility using the factors identified in the Re Pitts and Director of Family Benefits Branch of the Ministry of Community and Social Services, 1985 51 O.R. (2d) 302 (Div. Ct.) case. The Panel considered:

• The appearance and demeanour of the witness;

• The witness’ opportunity to observe the matters about which they testify;

• The witness’ capacity to remember the events to which they testified;

• The probability or reasonability of the evidence;

• The inconsistency of a witness’s evidence;

• The external consistency of the evidence (whether the witness information is consistent with other evidence provided in the case); and

• Whether the witness had an interest in the outcome of the case or some other reason to be partial to one side or another.

The Panel found the Member to be credible in her testimony, which was based on her personal observations of the events. Her testimony was forthright and honest as she admitted to not remembering certain events. She did contradict herself by providing two answers as to how she learned about the investigation meeting with the Facility. However, the meeting was approximately 5 years ago. Her testimony was consistent with the exhibits that she was directed to by College Counsel and the Member’s Counsel. The Panel does acknowledge that the Member has a strong interest in the outcome of the case before the Panel, but nonetheless accepted all of the Member’s testimony.

The Member reasonably placed trust in the entire process for obtaining products to relieve her feet ailments at Downtown Wellness as she acknowledged that the trust, knowledge and expertise came by way of the public protection offered through the College of Chiropodists of Ontario’s regulation of chiropodists in Ontario. In the Panel’s view, it is reasonable to conclude that Dr. Pak had some level of control and supervision over his assistant given that the assistant worked at the same location and was tasked with “filling” Dr. Pak's prescriptions and therefore, the trust, knowledge and expertise would, by extension, reasonably be expected to be received from the assistant. Furthermore, the trust, knowledge and expertise should reasonably be expected from Downtown Wellness as a whole given their employment of and involvement of a chiropodist.

The Panel did not accept College Counsel’s submission that the Benefit Booklet offered a clear and concise explanation of eligible orthotics footwear benefits to members. In the Panel’s view, a plan member would reasonably not be expected to know, and therefore have relied on the experience and knowledge of a chiropodist, to interpret and differentiate exactly what is defined by each of the “foot care” coverage terms “orthotics”, “orthopedic shoes”, “stock orthopedic shoes”, “custom made”, “modifications”, “correction of bones and muscles”.

The Panel did not accept College Counsel’s submission that the “package” offered by Downtown Wellness should have raised suspicions by the Member. The Member went into Downtown Wellness with the chief complaint of foot pain while working and it would be reasonably expected that multiple modalities, namely orthotics, footwear and compression stockings would be required to aid in the foot pain. Furthermore, the Member was assessed by a Registered Chiropodist who recommended and prescribed each of the products.

The Panel did not accept College Counsel’s submission regarding the excessive cost of the products being a red flag given that Sun Life reimbursed the Member for the full value of the claimed expenses for each item. Upon Sun Life’s claim approval, it would be reasonable to conclude that each item fell within Sun Life’s reasonable and customary amounts for each of the items.

The Panel did not accept College Counsel’s submission that the Member’s selection of footwear from a catalogue should have been a red flag. The Member had admitted to “skimming” the Benefit Booklet prior to going to Downtown Wellness and may have known that “stock orthopedic shoes” were covered. Furthermore, the assistant had verified that all the shoes on the catalogue page were eligible to be modified and it would be reasonable to expect that the catalogue shoes would be modified according to Dr. Pak's prescription. Furthermore, the 3-week pick-up time is suggestive of the time required to modify the shoes in a custom manner.

The Panel did not accept College Counsel’s submission that it should draw an adverse inference from the Member not obtaining further documents or receipts from Downtown Wellness. In light of the disciplinary action brought against her by the Facility, the Member in her testimony acknowledged making a phone call to Downtown Wellness and was met with resistance in that Dr. Pak no longer worked there and that Downtown Wellness no longer did benefit transactions.

Regarding the Facility’s discipline of the Member, the Panel accepts the submissions of the Member’s Counsel that she did make an attempt to obtain records and documents from Downtown Wellness and that in light of the consequence of losing her job while enrolled in a Masters program if she did not pay the $500.00 back to the Facility, the Member decided to accept the disciplinary consequences placed upon her by the Facility.

Regarding the Facility’s e-mails about Benefit Plan misuse, the Panel accepts the submissions of the Member’s Counsel, that even though the Member acknowledged not having read the e-mails, had she read the e-mails, it is reasonable to conclude that she would have perceived that she had used the Benefit Plan appropriately and not have taken any action.

The Panel did accept College Counsel’s submission that it was reasonable for the Member to have obtained or viewed the invoice with an itemized breakdown of expenses given the significant $1,410.00 total spent at each visit at Downtown Wellness. This invoice, not having mentioned orthopaedic footwear, may have raised suspicions by the Member at the time. In her testimony, the Member admitted that she made a poor decision by not obtaining and/or reviewing the invoice. The Panel concluded that this, by itself, was not enough to find the Member did not exercise due diligence in the transaction.

In regard to allegation #1, consistent with “without intending to deceive” as contained in the College’s Ethics Standard, the Panel agrees that there needed to be an intention present for the Member to have breached the Ethics Standard. The Panel was not satisfied by the evidence presented to it, that the Member intended to deceive the Benefit Plan in her pursuit of obtaining orthopedic shoes as a remedy for her numerous feet ailments. The Panel accepted that the Member made an honest mistake of fact in believing that she had received a pair of modified orthopedic shoes when in fact she had received a regular pair of unmodified shoes. The Panel believes that many shoe modifications would not be blatantly obvious and would rather take a trained eye to observe specific modifications made to shoes and therefore it would not reasonably be expected for the Member to have recognized that the footwear dispensed did not contain modifications. The Member made the honest mistake of fact based on Dr. Pak’s assessment, prescription and dispensing of orthopaedic shoes and orthotics. According to the College’s Professional Standards, the Member is not accountable for the decisions or actions of Dr. Pak as there was, at the time, no way of knowing about Dr. Pak’s unscrupulous actions.

In regard to allegation #2, the Panel finds that the Member did not misappropriate property from the Facility given that the Member did not deliberately take the footwear with a dishonest intention.

In regard to allegations #3 and #4, the Member had completed and signed benefit claim forms for each claim in October 2015 and August 2016. The Panel found that the Member certified a claim form that she believed to be true and complete as she relied on Downtown Wellness to attach the invoice for the goods received. Downtown Wellness submitted the claim form and associated documents to Sun Life in such a manner that the Member was accustomed to at her pharmacy and dentist. Sun Life provided a direct deposit reimbursement to the Member. As well, for the same reason, the Panel finds that the Member did not falsify a record relating to her practice or sign, in her professional capacity, a document that she knew or ought to have known contained a false or misleading statement.

In regard to allegation #5, the Panel finds that the Member did not knowingly submit or accept payment for false claims under the Facility’s Benefit Plan.

The Panel concludes, on the balance of probabilities, that the Member, in obtaining her orthopedic footwear benefit, demonstrated a reasonable level of due diligence by taking reasonable care in the circumstances and therefore, her actions do not amount to professional misconduct. Furthermore, the Panel finds that the Member made an honest mistake of fact concerning the footwear and that when the Member became aware, through her meeting with the Facility, that her footwear was not orthopedic footwear and was not covered by the Benefit Plan as a result of an honest mistake of fact, the Member acknowledged this and took accountability with the Facility by repaying the $500.00.

Therefore, the Member’s conduct would not be regarded by members of the profession to be disgraceful, dishonourable or unprofessional.

With this decision, the Panel feels a need to highlight the disturbing trend of benefit plan misuse to nurses and recommends that nurses exercise extra caution when claiming expenses through employee group benefit plans.

I, Carly Gilchrist, 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.