DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO
PANEL: Mary MacNeil, RN Chairperson Grace Fox, NP Member Lalitha Poonasamy Public Member Matthew Secord, RN Member
BETWEEN:
COLLEGE OF NURSES OF ONTARIO JEAN-CLAUDE KILLEY for College of Nurses of Ontario
- and -
MICHAEL TOLIBAS Registration No. 0503243 ANNA LICHTY for Michael Tolibas CHRISTOPHER WIRTH Independent Legal Counsel
Heard: September 18, 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 September 18, 2023, via videoconference.
The Allegations
The allegations against Michael Tolibas (the “Member”) as stated in the Notice of Hearing dated June 12, 2023 are as follows:
IT IS ALLEGED THAT:
- 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 Nurse at Fairview Lodge in Whitby, Ontario (the “Facility”), you contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, and in particular:
(a) on one or more occasions between about October 2020 and December 2020, you engaged in a pattern of behaviour towards Colleague A that was unwanted and inappropriately personal and/or sexual; particulars of that behaviour include:
(i) on several occasions you attempted to kiss Colleague A while at work;
(ii) you played with Colleague A’s hair and told her you loved her;
(iii) you sent Colleague A text messages with inappropriately sexual and/or romantic content;
(iv) on December 20, 2020, you attempted to kiss Colleague A while a passenger in her car;
(v) on December 20, 2020, you bit Colleague A while a passenger in her car;
(vi) on December 20, 2020, you attempted to kiss Colleague A while on the premises of the Facility; and
(vii) on December 20, 2020, you touched Colleague A’s breast(s) while she was attending to a patient;
(b) on December 20, 2020, you engaged in the following conduct toward Colleague A:
(i) while a passenger in Colleague A’s car, you attempted to kiss Colleague A;
(ii) while a passenger in Colleague A’s car, you bit Colleague A;
(iii) while on the premises of the Facility, you attempted to kiss Colleague A;
(iv) while on the premises of the Facility, you touched Colleague A’s breast(s) while she was attending to a patient;
- 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 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:
(a) on one or more occasions between about October 2020 and December 2020, you engaged in a pattern of behaviour towards Colleague A that was unwanted and inappropriately personal and/or sexual; particulars of that behaviour include:
(i) on several occasions you attempted to kiss Colleague A while at work;
(ii) you played with Colleague A’s hair and told her you loved her;
(iii) you sent Colleague A text messages with inappropriately sexual and/or romantic content;
(iv) on December 20, 2020, you attempted to kiss Colleague A while a passenger in her car;
(v) on December 20, 2020, you bit Colleague A while a passenger in her car;
(vi) on December 20, 2020, you attempted to kiss Colleague A while on the premises of the Facility; and
(vii) on December 20, 2020, you touched Colleague A’s breast(s) while she was attending to a patient;
(b) on December 20, 2020, you engaged in the following conduct toward Colleague A:
(i) while a passenger in Colleague A’s car, you attempted to kiss Colleague A;
(ii) while a passenger in Colleague A’s car, you bit Colleague A;
(iii) while on the premises of the Facility, you attempted to kiss Colleague A;
(iv) while on the premises of the Facility, you touched Colleague A’s breast(s) while she was attending to a patient;
Member’s Plea
The Member admitted the allegations set out in paragraphs 1(a)(i), (ii), (iii), (iv), (v), (vi), (vii), (b)(i), (ii), (iii), (iv), 2(a)(i), (ii), (iii), (iv), (v), (vi), (vii) and (b)(i), (ii), (iii) and (iv) 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:
THE MEMBER
Michael Tolibas (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on January 6, 2005. Before working in Ontario, the Member had been practising as a nurse in the Philippines.
The Member was employed as a part-time RN at Fairview Lodge, a 198-bed long-term care facility in Whitby, Ontario (the “Facility”) from April 20, 2020 to June 18, 2021. CNO received a mandatory employer report from the Facility regarding the termination of the Member’s employment on June 30, 2021.
The Member’s certificate of registration is currently suspended pursuant to an interim order of the Inquiries, Complaints, and Reports Committee (“ICRC”), which took effect on September 23, 2021.
On November 24, 2022, the ICRC referred the within allegations to the Discipline Committee
PRIOR HISTORY
On October 28, 2021, the ICRC reviewed a separate investigation regarding the Member’s conduct at a previous employer and decided to refer specified allegations of professional misconduct to the Discipline Committee.
On May 31, 2022, the Discipline Committee found that the Member had committed the alleged acts of professional misconduct. Specifically, the Discipline Committee found that in May 2017, the Member contravened the standards of practice of the profession and engaged in disgraceful, dishonourable, and unprofessional conduct of a sexual nature in front of a colleague.
The Discipline Committee issued an Order requiring the Member to appear before the panel to be reprimanded, suspending the Member’s certificate of registration for 3 months, and imposing terms, conditions, and limitations on the Member’s certificate of registration. This included attending a minimum of two meetings with a Regulatory Expert at the Member’s own expense.
As of November 29, 2022, the Member had attended the requisite meetings with the Regulatory Expert.
INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT
The incidents detailed below relate to the Member engaging in a pattern of unwanted, and inappropriately personal and/or sexual behaviour toward a Registered Practical Nurse (“RPN”) colleague, [Colleague A] from in or around October to December 2020, culminating in an episode on December 20, 2020.
On several occasions during the relevant time period, the Member attempted to kiss [Colleague A] while at work. On one such occasion, [Colleague A] entered a resident’s room to turn off a bed alarm. Mr. Tolibas also entered the room to check the bed alarm. The resident was sleeping and so [Colleague A] left the lights off. The Member asked if he could kiss her on the cheek and attempted to kiss [Colleague A] and in response she informed the Member that she was not interested.
On another occasion, while [Colleague A] was sitting at the nursing station charting, the Member played with her ponytail and commented that she was a great person, that he’d never met anyone like her and that he loved her.
The Member sent [Colleague A] several text messages between October and December 2020 that made her feel uncomfortable. The messages became more flirtatious and forward over time despite [Colleague A] responding with statements indicating that she wanted to keep the relationship professional. In one text, the Member stated that he would come over to [Colleague A]’s home and rub [Colleague A] with hot massage oil. If the Member were to testify, he would say that this was said in a joking manner in response to [Colleague A]’s invitation to come to her home.
On December 20, 2020, [Colleague A] and the Respondent were working together on the same unit. It was a common practice for two employees to go grab coffee or food for the staff, and whoever was available would go.
On this day, [Colleague A] offered to go and subsequently, the Member offered to accompany her. [Colleague A] drove her car and the Member rode in the passenger seat.
While in the parked car outside of the restaurant, the Member leaned in quickly and tried to kiss [Colleague A] on the cheek.
[Colleague A] was surprised by the Member’s actions and leaned back away from him. The Member then leaned over and bit [Colleague A]’s right, upper arm; her deltoid muscle. [Colleague A] recalled that it really hurt and that the skin had been broken a little bit. [Colleague A] took photographs of the injury, which were submitted to the Facility during its investigation and subsequently shared with CNO. The photographs depict a bruise on [Colleague A]’s arm.
On their return to the Facility, [Colleague A] and the Member walked into the building together carrying the items they had picked up on the “food run”. They went up the stairs to the second floor and as the Member went to open the door to the floor, he tried to pull [Colleague A]’s mask down and kiss her on the lips. Their lips did not connect as [Colleague A] backed away and told the Member not to do that.
Later that same day during the shift, [Colleague A] was in a resident’s room performing care with another colleague. She was behind the resident and holding his arms up. The Member came into the resident’s room to assist and stood in front of [Colleague A] with the other colleague standing beside [Colleague A] While assisting [Colleague A] and the other colleague in moving the resident, the Member reached between the resident and [Colleague A] and touched [Colleague A]’s breasts with his hand. [Colleague A] jumped back and switched positions.
If the Member were to testify, he would say that his touching [Colleague A]’s breasts was unintentional.
On the morning of December 21, 2020, the Member sent several texts to [Colleague A], apologizing for biting and hurting her, expressing his concern about others at the Facility learning about the incident and asking [Colleague A] if she wanted him to stay away from her.
[Colleague A] responded to the Member’s text that evening and advised that it would be best to keep a distance. She expressly stated that “the touching and kissing etc is too much”.
The Member replied, “No worries, I will keep a distance and be professional. For the bruise, I really feel bad. Again, I did not do it intentionally to harm you. Thanks for everything.”
Following an internal workplace investigation, the Facility concluded that the Member engaged in a course of conduct that was in violation of the Region of Durham’s Workplace Harassment and Discrimination Policy, which is inclusive of the Ontario Human Rights Code and the Occupational Health & Safety Act and the Employee Code of Conduct.
Following the internal workplace investigation, the Facility terminated the member’s employment.
If the Member were to testify he would state that his conduct was not meant as anything more than friendly. The Member is deeply remorseful for his actions and the impact of his behavior on his colleague and the work environment.
CNO STANDARDS
CNO’s Professional Standards provide that each nurse is accountable to the public and responsible for ensuring her or his practice and conduct meets legislative requirements and the standards of the profession. Nurses are accountable for conducting themselves in ways that promote respect for the profession.
The Professional Standards practice standard sets out an expectation that nurses meet the leadership standard by, among other things, showing integrity and role-modelling professional values, beliefs and attributes.
The Ethics practice standard sets out the ethical standards that apply to nurses. These include a commitment to the nursing profession 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.
The Ethics practice standard also establishes that nurses have a commitment to each other and to other members of the healthcare team. Ethical nurses are concerned about the well-being of nursing colleagues and therefore are respectful toward each other. Establishing and maintaining collegial relationships requires nurses to use a wide range of effective communication strategies and interpersonal skills. Respectful behaviour among nurses contributes to the best possible outcomes for clients.
ADMISSIONS OF PROFESSIONAL MISCONDUCT
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1 (a) and (b) of the Notice of Hearing, as described in paragraphs 9 to 29 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2 (a) and (b) of the Notice of Hearing, and in particular his conduct was dishonourable, disgraceful and unprofessional, as described in paragraphs 9 to 29 above.
College Counsel’s Submissions on Liability
College Counsel asked the Panel to accept the Agreed Statement of Facts, as well as the Member’s admissions to all the allegations set out and make findings of professional misconduct with respect to the allegations in the Notice of Hearing. The admissions and the facts set out in the Agreed Statement of Facts can and ought to provide the Panel with the evidence to find that the Member committed acts of professional misconduct. The membership would find that this conduct would be dishonourable, disgraceful and unprofessional.
The Member’s Counsel’s Submissions on Liability
The Member’s Counsel made no submissions.
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(a)(i), (ii), (iii), (iv), (v), (vi), (vii), (b)(i), (ii), (iii), (iv), 2(a)(i), (ii), (iii), (iv), (v), (vi), (vii) and (b)(i), (ii), (iii) and (iv) of the Notice of Hearing. As to allegations #2(a)(i), (ii), (iii), (iv), (v), (vi), (vii) and (b)(i), (ii), (iii) and (iv), 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 Notice of Hearing.
Allegations #1(a)(i), (ii), (iii), (iv), (v), (vi) and (vii) in the Notice of Hearing are supported by paragraphs 9 to 30 in the Agreed Statement of Facts. The Member admitted that he contravened or failed to meet a standard of practice of the profession when between October and December 2020 while employed as a Registered Nurse (“RN”) at Fairview Lodge (the “Facility”) he engaged in behaviour towards [Colleague A] which was unwanted, inappropriate and of a personal and/or sexual nature. The facts show a pattern of behaviour which did not show respect or integrity for the profession or [Colleague A] The Member attempted to kiss [Colleague A], told her he loved her, played with her ponytail, touched her breast when turning a patient and bit her when his attempt to kiss her was not received. He made [Colleague A] feel uncomfortable when he messaged her flirtatiously. [Colleague A] on numerous occasions made attempts to tell the Member that she was not interested in a personal relationship with him. Two of these incidents took place in patients’ rooms.
The Member breached the Professional Standards by not role-modelling professional values, beliefs and attributes with his unwanted and inappropriate behaviour toward [Colleague A] The Ethics Standard provides that nurses have a commitment to each other and to the health care team and are concerned about the well-being of nursing colleagues and therefore are respectful of each other. The Member’s conduct breached this standard as he was not respectful of [Colleague A] and did not promote effective team building.
Allegations #1(b)(i), (ii), (iii) and (iv) in the Notice of Hearing are supported by paragraphs 13 to 30 in the Agreed Statement of Facts. This allegation deals with the events of December 20, 2020 being the escalation of the Member’s unwanted personal and/or sexual behaviour toward [Colleague A] On this day, the Member accompanied [Colleague A] to get coffee and/or food for the staff and while in [Colleague A]’s parked car outside the restaurant, the Member attempted to kiss her and when unsuccessful, bit her arm. Later that day he attempted to kiss her again and touched her breast while turning a patient. The Member’s conduct demonstrates a lack of professionalism and respect toward [Colleague A] and the profession. The Member did not contribute to the well-being of [Colleague A] or show respectful interpersonal skills with his inappropriate personal and/or sexual behaviour toward [Colleague A].
Allegations #2(a)(i), (ii), (iii), (iv), (v), (vi), (vii) and (b)(i), (ii), (iii) and (iv) in the Notice of Hearing are supported by paragraphs 9 to 29 and 31 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in his attempts at unwanted and inappropriate personal and/or sexual behaviour toward [Colleague A] was clearly relevant to the practice of nursing. The Member’s repeated and escalating unwanted advances towards a colleague, some of which took place at work was inappropriate and predatory in nature. One of the incidents was in front of a patient.
It was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in breaching the College’s Professional Standards and the Ethics Standard. The Member continued to behave inappropriately toward [Colleague A] even though numerous attempts were made by her to dissuade him. On two occasions, the inappropriate conduct events occurred in patient rooms.
The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit when he apologized to [Colleague A] for biting her and expressed concern about others at the Facility learning about the incident. This shows that the Member knew his conduct was inappropriate and wanted to hide his behaviour from others. The Member also attempted to kiss [Colleague A] in a dark patient’s room where the patient was thought to be sleeping. 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 multiple attempts of unwanted and inappropriate personal and/or sexual conduct toward [Colleague A], as well as it being within the workplace, 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:
Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
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.
Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) Within 18 months from the date that this Order becomes final, at the Member’s own expense, the Member will successfully complete the CPEP Improving Inter-professional Communication: Seminar (the “CPEP Seminar”). The Member must pass the CPEP Seminar with a grade of “Good” or higher (“successful completion”). The Member must provide proof of successful completion to CNO;
b) Within 18 months from the date that this Order becomes final, but after the Member has successfully completed the CPEP Seminar and provided proof of successful completion to CNO, the Member will then attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense. 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, but in any event, all sessions shall be completed within 18 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 Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order,
the CPEP Seminar Report and Participant Plan of Action, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):
- Code of Conduct;
iv. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
v. 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:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;
vi. 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 18 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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
College Counsel’s Submissions on Penalty
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 two experienced Counsel and it meets the principles applicable to Joint Submissions on Order.
The reprimand and suspension meet the goals of specific deterrence.
The proposed penalty provides for general deterrence through the 6-month suspension of the Member’s certificate of registration, which will send a signal to other members of the profession that this type of conduct is unacceptable.
Rehabilitation and remediation are provided through the completion of the CPEP Improving Inter-professional Communication: Seminar and a minimum of 2 meetings with a Regulatory Expert.
The public is protected through the 18 months of employer notification, which will guide and supervise the Member when he returns to practice and will minimize opportunities for similar conduct in the future.
College Counsel submitted the following case regarding the Member:
CNO v. Tolibas (Discipline Committee, 2022): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The Member was found to have committed acts of professional misconduct when he exposed his penis and masturbated in front of a colleague on or about May 15, 2017. The matter was brought before a Discipline Panel on May 31, 2022. The penalty included an oral reprimand, a 3-month suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert, the review of the Code of Conduct and the Professional Standards and 18 months of employer notification. This was a single incident and was similar in the unwanted personal attention toward a co-worker as in the case before this Panel. The Member had not completed the required meetings with the Regulatory Expert when the College was notified of the new allegations. The 2022 decision can be viewed as an aggravating factor although not all of the orders had been completed. The Member now has been suspended and unable to practice since September 23, 2021.
College Counsel submitted that this time along with an oral reprimand, the Member’s certificate of registration should be suspended for 6 months. Also within the 18 months that the order takes effect the Member must complete a CPEP Improving Inter-professional Communication: Seminar (“CPEP Seminar”), and attend a minimum of 2 meetings with a Regulatory Expert once the CPEP Seminar has been completed. Employer notification will again be for 18 months and the employer must confirm that they have received the documentation within 14 days of employment.
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. Crummey (Discipline Committee, 2020): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The allegations were for similar conduct of unwanted attention and behaviour of a sexual nature toward a co-worker. The penalty included an oral reprimand, a 5-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert, the review of the Professional Standards and the Code of Conduct and 12 months of employer notification.
CNO v. Hirtle (Discipline Committee, 2019): College Counsel submitted the penalty decision for this case. This hearing proceeded by way of a contested hearing and was subsequently appealed by the member. Most of the allegations in the Notice of Hearing were proven. The member was a clinical instructor and the allegations involved making sexual jokes and comments and sending inappropriate text messages to two nursing students. The penalty included an oral reprimand, a 5-months suspension of the member’s certificate of registration, a minimum of 2 meetings with a Regulatory Expert, the review of the Professional Standards and the Code of Conduct and 18 months of employer notification. The appeal of this decision, CNO v. Hirtle (Divisional Court, 2022) was dismissed.
CNO v. Robichaud (Discipline Committee, 2016): This hearing proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. This case involved sexual harassment of three co-workers on the same date. The member plead to most of the allegations, and some were dismissed. The penalty included an oral reprimand, a four-month suspension of the member’s certificate of registration, two meetings with a Nursing Expert, the review of the Professional Standards and 12 months of employer notification.
The distinguishing factor in the case before this Panel is the addition of the CPEP Seminar and the 18 months instead of 12 months of employer notification as this is the Member’s second time before the Discipline Committee for similar conduct.
The Member’s Counsel’s Submissions on Penalty
The Member’s Counsel agreed with the submissions of College Counsel with regard to a Joint Submission on Order.
The Member’s Counsel submitted the following mitigating factors:
The Member has been suspended since September of 2021 which has put a financial strain on him and his family;
The Member has cooperated with the College by entering an Agreed Statement of Facts and a Joint Submission on Order with the College;
The Member had family and personal circumstances at the time of the conduct; and
The Member is remorseful.
The Panel’s Request for Further Submissions
The Panel requested submissions on the CPEP Seminar and how it relates to sexual conduct, considerations regarding employer monitoring and requested cases related to repeated pattern of misconduct prior to making its decision.
College Counsel’s Further Submissions
College Counsel submitted a flyer which outlines the CPEP Seminar content. The evidence in both hearings is that the Member acknowledged his conduct and did not intend to offend colleagues. The $2,500.00 CPEP Seminar provides insight into the perception of colleagues to his conduct. The content of the CPEP Seminar is serious and rigorous.
College Counsel submitted that the 2 meetings with a Regulatory Expert are a way to ensure that there is reflection regarding the specifics of this case. Employer notification is more amenable to this type of conduct between staff, while monitoring is more important when patient care is involved. It is hoped that awareness of the employer to this past conduct will give the employer heightened vigilance with any reporting from staff of further similar conduct.
The Law Society of British Columbia v. Rowan MacKenzie Davison (Discipline Committee, 2022) case was submitted as the member in that case sexually harassed employees. He had repeated the conduct after an investigation into the first allegations but not after the Discipline decision. The penalty included a four and one-half month suspension.
The Member’s Counsel’s Further Submissions
The Member’s Counsel agreed with College Counsel’s submissions and submitted that in the Davison case the member continued to engage in comments and conduct of a sexual and discriminatory nature once the proceeding started.
The Member’s Counsel submitted that the Member has been suspended for the last 2 years which would in total be a 2.5 year suspension when added with the order.
The Member’s Counsel submitted that the employer monitoring is governed in Ontario by the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 which encompasses Workplace Safety and Harassment Policies to avoid this type of conduct.
The Member’s Counsel submitted that the decisions which are posted on “Find a Nurse” will also promote a higher vigilance with notification of any inappropriate conduct.
Penalty Decision
The Panel accepts the Joint Submission on Order and accordingly orders:
The Member is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.
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.
The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:
a) Within 18 months from the date that this Order becomes final, at the Member’s own expense, the Member will successfully complete the CPEP Improving Inter-professional Communication: Seminar (the “CPEP Seminar”). The Member must pass the CPEP Seminar with a grade of “Good” or higher (“successful completion”). The Member must provide proof of successful completion to CNO;
b) Within 18 months from the date that this Order becomes final, but after the Member has successfully completed the CPEP Seminar and provided proof of successful completion to CNO, the Member will then attend a minimum of 2 meetings with a Regulatory Expert (the “Expert”) at the Member’s own expense. 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, but in any event, all sessions shall be completed within 18 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 Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order,
the CPEP Seminar Report and Participant Plan of Action, and
if available, a copy of the Panel’s Decision and Reasons;
iii. Before the first meeting, the Member reviews the following CNO publications and completes the associated Reflective Questionnaires, online learning modules and decision tools (where applicable):
- Code of Conduct;
iv. The subject of the sessions with the Expert will include:
the acts or omissions for which the Member was found to have committed professional misconduct,
the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,
strategies for preventing the misconduct from recurring,
the publications, questionnaires and modules set out above, and
the development of a learning plan in collaboration with the Expert;
v. 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:
the dates the Member attended the sessions,
that the Expert received the required documents from the Member,
that the Expert reviewed the required documents and subjects with the Member, and
the Expert’s assessment of the Member’s insight into the Member’s behaviour;
vi. 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 18 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:
the Panel’s Order,
the Notice of Hearing,
the Agreed Statement of Facts,
this Joint Submission on Order, and
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:
that they received a copy of the required documents, and
that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.
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 found the Member’s conduct to be very concerning in that the conduct escalated to the Member biting [Colleague A] and was repetitive and predatory in nature. Another concern was that two of the incidents of the Member’s inappropriate conduct happened in patients’ rooms.
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. The proposed penalty provides for general deterrence through the 6-month suspension of the Member’s certificate of registration, which sends a clear message to the membership that such conduct will not be tolerated. The proposed penalty provides for specific deterrence through the oral reprimand and the 6-month suspension of the Member’s certificate of registration, which will allow the Member to reflect on how his conduct is perceived by the profession. The proposed penalty provides for remediation and rehabilitation through the CPEP Seminar, a minimum of 2 meetings with a Regulatory Expert and the review of the Code of Conduct. The Member will have a clearer understanding of his professional obligations and how his conduct has impacted [Colleague A] and the overall team. An effective supportive team leads to better communication and outcomes for patients.
Overall, the public is protected through the 18 months of employer notification, which will provide a heightened vigilance by the employer to observe and guide the Member when he returns to practice.
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.