College of Nurses of Ontario v. Mark Lenders, 2023 ONCNO 151866 — College of Nurses of Ontario Discipline Committee | minicounsel

PANEL: Lalitha Poonasamy, Public Member, Chairperson Sandra Larmour, Public Member Donna May, RPN Member Emilija Stojsavljevic, RPN Member Michael Schroder, NP Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO JEAN-CLAUDE KILLEY for College of Nurses of Ontario

and -

MARK LENDERS Registration No. 08344053 NIITI SIMMONDS for Mark Lenders CHRISTOPHER WIRTH, Independent Legal Counsel

Heard: December 11, 12, 13, 14 and 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”) commencing on December 11, 2023, via videoconference.

Publication Ban

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

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

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs #1(c) and #2(c) in the Notice of Hearing dated October 30, 2023. The Member’s Counsel did not object and the Panel granted this request. The remaining allegations against Mark Lenders (the “Member”) 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 London Health Sciences Centre in London, Ontario, 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 2017 and 2018, you behaved unprofessionally toward and/or sexually harassed Colleague [A] including without limitation by touching their lower back, shoulders, and/or arms without permission, pinching the back of their arms, sitting on their lap, rubbing your buttocks against them as you walked past, and/or commenting on their appearance;

(b) on one or more occasions between about June 2018 and March 2019, you behaved unprofessionally toward and/or sexually harassed Colleague [B] including without limitation by touching their buttocks with your hand and saying words to the effect of, “wow, I would recognize that ass anywhere”, and/or buckling their knees and/or grabbing them by the waist and saying words to the effect of “that’s the sound you would make while having sex”;

(d) on one or more occasions in or about 2014 and/or 2015, you behaved unprofessionally toward and/or sexually harassed Colleague [C] including without limitation by slapping their buttocks and laughing and/or making sexual remarks;

(e) on the night shift spanning April 3 to 4, 2019, or about those dates, you failed to notify the attending and/or on-call physician that [the Patient]’s urine output was less than 30mL/hour, as required by a physician’s communication order, despite documenting one or multiple measurements of [the Patient]’s urine output that were lower than 30mL/hour; and/or

(f) on the night shift spanning April 3 to 4, 2019, or about those dates, you administered fluid boluses and/or Ringer’s Lactate intravenously to [the Patient] without a physician’s order or other authorizing mechanism.

You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that while employed as a Registered Nurse at London Health Sciences Centre in London, Ontario, 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:

Member’s Plea

The Member admitted the allegations set out in paragraphs #1(e), #1(f), #2(e) and #2(f) 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 admissions were voluntary, informed and unequivocal.

The Member denied the allegations set out in paragraphs #1(a), #1(b), #1(d), #2(a), #2(b) and #2(d) in the Notice of Hearing.

Overview

The Member, a Registered Nurse (“RN”) with the College since 2008, was employed at London Health Sciences Centre (the “Facility”) from 2008 to 2019 in a full-time position as an RN. The Member worked on the Orthopaedic Trauma Unit (the “Unit”) which provided acute care medical services to patients who had sustained orthopaedic traumas.

It was alleged that the Member behaved unprofessionally toward and/or sexually harassed three colleagues between 2014 and 2019. Additionally, it was alleged that the Member failed to notify [the Patient]’s physician of inadequate urine output and administered intravenous fluid boluses to [the Patient] without a physician’s order. The Member’s employment was terminated in 2019 as a result of the findings made in an internal investigation.

The contested allegations before this Panel involved three of the Member's former colleagues, who claimed that he behaved unprofessionally toward and/or sexually harassed them at work. The Member testified in his defence and denied that any of these incidents occurred. Although the harassment allegedly occurred over a long period, the allegations only came to light in April 2019, after one colleague made a disclosure to the Facility. That disclosure sparked an investigation that led to other allegations being made.

The Panel heard from seven witnesses and considered 16 exhibits, including workplace policies, union collective agreements, employee schedules, workplace event photos and the College’s Professional Standards. The issues the Panel was asked to consider are as follows:

Did the Member behave unprofessionally toward or sexually harass one or more of his colleagues as alleged?
Did the Member fail to notify the physician regarding [the Patient]’s inadequate urine output as alleged?
Did the Member administer intravenous fluid boluses to [the Patient] without a physician’s order as alleged?
If so, did the Member’s conduct contravene the standards of practice of the profession?
Further if so, would the Member’s conduct reasonably be regarded by members of the profession as disgraceful, dishonourable and/or unprofessional?

Having considered the evidence and the onus and standard of proof, the Panel found that the Member committed acts of professional misconduct as alleged in paragraphs #1(a), #1(b), #1(e), #1(f), #2(a), #2(b), #2(e) and #2(f) of the Notice of Hearing. With respect to allegations #2(a), #2(b), #2(e) and #2(f), the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession as dishonourable and unprofessional.

The Panel did not find that the Member committed acts of professional misconduct as alleged in paragraphs #1(d) and #2(d) and therefore dismissed these allegations.

Partial Agreed Statement of Facts

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

THE MEMBER

Mark Lenders (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on May 23, 2008.
The Member was employed at London Health Sciences Centre (the “Facility”) from 2008 until 2019. The Member worked on the Ortho Trauma Unit (the “Unit”). The Member worked as a bedside nurse and would act as “in charge person” from time to time when a leader was not present on the Unit.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

On the night shift spanning from April 3 to 4, 2019, the Member was working on the Ortho Trauma Observation Unit (“TOU”) where he provided care to [the Patient]. The usual nurse to patient ratio on the TOU is one nurse per one or two patients. At the time of the incidents, the TOU did not have any active medical directives that would have allowed a nurse to enter orders without consulting a physician.
At or around 20:00 on April 3, 2019, [the Patient] was transferred to the TOU. [The Patient] was 91 years old and had sustained multiple injuries from a motor vehicle accident. [The Patient] had an order that required the physician to be notified if [the Patient]’s urine output was at a rate less than or equal to 30 mL/hour, as well as if values for other vitals dropped or exceeded certain levels.
It was typical practice in the TOU for a transferring nurse to provide the newly assigned nurse with an oral report detailing the status of the transferred patient, reviewing their care plan, discussing next steps, and flagging urgent issues. If the Member were to testify, he would state that he did not receive such a report from the nurse who transferred [the Patient] to the Unit on April 3, 2019.
The Member conducted a head-to-toe assessment of [the Patient] when she first arrived at the TOU. The Member noted that her vital signs and urine output were atypical and in need of repeat monitoring.
The resident attended the TOU after [the Patient] was transferred to the Member’s care. The Member did not specifically notify the resident physician about [the Patient]’s low urine output at this time. If the Member were to testify, he would state that notwithstanding his failure to report, the Member understood and believed that the resident was otherwise aware of [the Patient]’s low urine output as a result of his own bedside assessment of [the Patient] and her chart.
At or around 23:00, 01:00 and 02:00, the Member charted [the Patient]’s urine output, noting that it was at a rate of 15mL/hour. The Member did not call the resident or consultant/most responsible physician (“MRP”) to notify them of [the Patient]’s urine output at these times. There is a consultant/MRP on-call 24/7, and they have residents under them.
At or around 03:00, the Member charted that [the Patient]’s urine output was at a rate of 10mL/hour. The Member did not call the resident or consultant/MRP to notify them of [the Patient]’s urine output at this time.
At around this time, the Member administered a 250mL bolus of Ringer’s Lactate. There is no documentation in [the Patient]’s chart as to why this 250mL bolus was administered. No order was ever entered for the administration of a 250mL bolus of Ringer’s Lactate. The Member later documented this bolus administration in [the Patient]’s chart.
At or around 04:00, the Member charted that [the Patient]’s urine output was now at a rate of 5mL/hour. The Member did not notify the resident or consultant/MRP about [the Patient]’s urine output at this time.
At or around 05:00, the Member charted that [the Patient]’s urine output was at a rate of 10mL/hour. The Member did not notify the resident or consultant/MRP about [the Patient]’s urine output at this time.
Shortly thereafter, at or around 05:00 hours, the Member administered an additional 250mL bolus of Ringer’s Lactate to [the Patient]. The Member documented this bolus administration at the time and also documented the 250ml bolus he administered at or around 03:00. There is no documentation in [the Patient]’s chart as to why the 250mL boluses were administered. The Member did not notify the resident or consultant/MRP that he was going to administer this bolus, nor was any order entered for the administration of a 250mL bolus of Ringer’s Lactate.
At or around 06:00, the Member charted that [the Patient]’s urine output was still at a rate of 10mL/hour. The Member did not notify the resident or consultant/MRP about [the Patient]’s urine output at this time.
At or around 06:30, the Member spoke with a Nurse Practitioner (“NP”) during morning rounds and advised her about [the Patient]’s low urine output and that he had administered two 250mL boluses of Ringer’s Lactate. The NP advised the Member to call the resident or consultant/MRP on call to provide them with updates in the future.
The resident physician who was on-call for TOU at this time advised that the Member had never paged or called him to advise that [the Patient]’s urine output was low. The resident advised after the incident that he would have ordered several 1L boluses to treat Patient J.G and that, as a result of the Member’s failure to notify him of [the Patient]’s low urine output, he was not given an opportunity to assess and treat the patient.
If the Member were to testify, he would explain that he recalls notifying a member of the consultant/MRP team as to [the Patient]’s status and low urine output at the time. The Member acknowledges that he did not document in a manner that shows that actions were taken to escalate [the Patient]’s condition to the consultant/MRP.

CNO STANDARDS

Code of Conduct

CNO’s Code of Conduct is a standard of practice describing the accountabilities all Ontario nurses have to the public. The Code of Conduct consists of six principles including:

Nurses respect the dignity of patients and treat them as individuals;
Nurses work together to promote patient well-being;
Nurses maintain patients’ trust by providing safe and competent care;
Nurses work respectfully with colleagues to best meet patients’ needs;
Nurses act with integrity to maintain patients’ trust; and
Nurses maintain public confidence in the nursing profession.

Regarding the principle requiring nurses to maintain patients’ trust by providing safe and competent care, CNO’s Code of Conduct provides that:

Nurses use appropriate knowledge, skill and judgment when assessing the health needs of patients;
Nurses recognize and work within the limits of their knowledge, skill and judgment and their legal scope of practice;
Nurses seek advice and collaborate with the health care team to uphold safe patient care; and
Nurses are accountable to, and practice under, relevant laws and CNO’s standards of practice.

With respect to the principle requiring nurses to work respectfully with colleagues to best meet patients’ needs, CNO’s Code of Conduct provides that:

Nurses collaborate and communicate with colleagues in a clear, effective, professional and timely way; and
Nurses work together with other health care experts to improve their patients’ care.

Regarding the principle requiring nurses to maintain public confidence in the nursing profession, CNO’s Code of Conduct provides that nurses are accountable for their own actions and decisions.
Attached as Exhibit “A” is a copy of CNO’s Code of Conduct that was in force at the time of the incidents involving [the Patient].

Professional Standards

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.
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:

Ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation;
Seeking assistance appropriately and in a timely manner; and
Taking action in situations in which patient safety and well-being are compromised.

CNO’s Professional Standards further provides, in relation to the ethics standard, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members.
CNO’s Professional Standards provides, in relation to the knowledge standard, that each nurse possesses, through basic education and continuing learning, knowledge relevant to their professional practice. Nurses demonstrate this standard by understanding the knowledge required to meet the needs of complex patients.
CNO’s Professional Standards further provides, in relation to the knowledge application standard, that each nurse continually improves the application of professional knowledge. Nurses demonstrate this standard by:

Identifying/recognizing abnormal or unexpected patient responses and taking action appropriately; and
Recognizing limits of practice and consulting appropriately.

In addition, CNO’s Professional Standards further provides, in relation to the leadership standard, that nurses demonstrate this standard by collaborating with patients and the health care team to provide professional practice that respects the rights of patients.
Attached as Exhibit “B” is a copy of CNO’s Professional Standards that was in force at the time of the incidents involving [the Patient] and has since been retired.

Decisions About Procedures and Authority

CNO’s Decisions About Procedures and Authority Standard outlines the expectations of nurses when determining if they have the authority to perform a procedure, if it is appropriate for them to perform a particular procedure, and if they are competent to perform the procedure. CNO’s Decisions About Procedures and Authority Standard includes four standards statements pertaining to appropriate healthcare provider, authority, competence and managing outcomes.
CNO’s Decisions About Procedures and Authority Standard provides, in relation to the appropriate healthcare provider standard, that nurses must consider each situation to determine if the performance of the procedure promotes safe patient care, and if it is appropriate for a nurse to perform the procedure. Nurses meet this standard by:

Determining whether the procedure fits within a professional nursing role; and
Ensuring that practice setting policies support the nurse in performing the procedure.

CNO’s Decisions About Procedures and Authority Standard further provides, in relation to the authority standard, that nurses ensure they have the proper authority before performing procedures. Nurses meet the standard by:

Knowing the scope of practice of nursing, the legislated authority and what the practice setting has approved as a nurse’s role and responsibilities;
Knowing when specific direction for patient care is required in the form of orders, directives, protocols or recommendations; and
Ensuring that patient records reflect the procedures that were performed.

CNO’s Decisions About Procedures and Authority Standard also provides, in relation to the competence standard, that nurses ensure that they are competent in both the cognitive and technical aspects of a procedure prior to performing it. Nurses meet this standard by:

Consulting when the nurse reaches the limits of their knowledge, skill and judgment; and
Communicating with other health care team members as necessary for safe, effective and ethical patient care.

In addition, CNO’s Decisions About Procedures and Authority Standard provides, in relation to the managing outcomes standard, that prior to performing procedures, nurses ensure that they are able to identify the potential outcomes of procedures, have the authority and competence to manage the outcomes, or have the resources available to manage those outcomes. Nurses meet this standard by:

Identifying the potential risks and outcomes related to performing a procedure;
Determining whether the management of the possible outcomes is within their knowledge, skill, judgment and authority.

Attached as Exhibit “C” is a copy of CNO’s Decisions About Procedures and Authority Standard that was in force at the time of the incidents involving [the Patient] and has since been retired.

Contravention of CNO Standards

The Member admits and acknowledges that he contravened CNO’s Code of Conduct, Professional Standards and Decisions About Procedures and Authority Standard when he:

failed to notify the attending and/or on-call physician that [the Patient]’s urine output was less than 30mL/hour, as required by a physician’s communication order, despite documenting one or multiple measurements of [the Patient]’s urine output that were lower than 30mL/hour; and
administered fluid boluses and/or Ringer’s Lactate intravenously to [the Patient] without a physician’s order or other authorizing mechanism.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 1 (e) and (f) of the Notice of Hearing in that he contravened a standard of practice of the profession or failed to meet the standard of practice of the profession, as described in paragraphs 3 to 36 above.
The Member admits that he committed the acts of professional misconduct as alleged in paragraphs 2 (e) and (f) of the Notice of Hearing, and in particular his conduct was dishonourable and unprofessional, as described in paragraphs 3 to 36 above.

Opening Statement of College Counsel

College Counsel stated that as the Member has denied allegations #1(a), #1(b), #1(d), #2(a), #2(b) and #2(d), a contested hearing will ensue. Each of the allegations alleges similar conduct by the Member towards three different colleagues. The alleged conduct involves the Member behaving unprofessionally and/or sexually harassing each of the three colleagues. The College is calling 5 witnesses to provide evidence.

College Counsel will ask Angeline Sloan, a coordinator of the Unit at the Facility, to testify regarding contextual evidence of the Unit, background evidence on how the alleged conduct of the Member arose, and the Facility’s response.

College Counsel will ask the Member’s three colleagues, [Colleague A], [Colleague B] and [Colleague C] to testify. College Counsel anticipates that the Member’s colleagues will testify that while working on the Unit, they were subject to comments about their appearance or physical attributes or implicated in a sexual joke by the Member. College Counsel anticipates that the Member’s colleagues will testify that they were each subjected to at least one occurrence of deliberate sexual touching of their bodies by the Member.

College Counsel anticipates that the colleagues’ testimony will outline that the Member had authority on the Unit as he would assume the “in charge person” role whereby he made nursing assignments, and he could negatively impact his colleagues’ work environment through reprisal if the colleagues were to complain about his conduct.

College Counsel will ask the Panel to qualify Megan Donohue, a critical care educator at Sunnybrook Health Sciences Centre for over 12 years, as an expert witness in the standards of practice of nursing in a hospital critical care environment. Should the Panel qualify Ms. Donohue as an expert witness, College Counsel expects Ms. Donohue to testify regarding how the standards of practice apply to relations between nursing colleagues.

Opening Statement of the Member’s Counsel

The Member’s Counsel stated that the Member has admitted to allegations 1(e), 1(f), 2(e) and 2(f) as set out in the Notice of Hearing. The Member has taken responsibility in that his nursing care of [the Patient] did not meet the standards of the profession as outlined in the partial Agreed Statement of Facts. As the Member has admitted allegations 1(e), 1(f), 2(e) and 2(f), the Member has saved the College the time and expense needed to prosecute the allegations on a contested basis.

The College has withdrawn allegations 1(c) and 2(c) and will not be calling any evidence with respect to these allegations.

As the Member has denied allegations 1(a), 1(b), 1(d), 2(a), 2(b) and 2(d), the Panel will be tasked with making a determination with respect to these allegations. The College bears the burden of proof by persuading the Panel separately on each of these allegations that it is more likely than not that the events occurred.

Member’s Counsel requests the Panel, in listening to the evidence, to consider whether the evidence is reliable, clear, convincing and cogent. The Member’s Counsel expects that there will be no direct witnesses to the Member’s alleged conduct identified in the evidence. The Member’s Counsel expects the evidence to contain a lack of detail including who was present when the Member’s conduct was alleged to have occurred. The Member’s Counsel anticipates that the Panel will hear that the complainants spoke to each other ahead of time about their evidence. The Member’s Counsel anticipates that the confidentiality of the Facility’s internal investigation process may not have been maintained. Despite the Member’s alleged conduct occurring out in the open in the workplace, the Member’s Counsel will maintain that there is a lack of corroborating evidence. The Member’s Counsel expects that the evidence will contain a theme of a significant delay in reporting of the allegations by the complainants.

The Member’s Counsel anticipates that the evidence will outline that the workplace had a degree of sexual banter and the Member acknowledges the inappropriateness of this. However, his testimony will involve that he joined into the banter that was already occurring and never singled out any colleagues.

The Evidence of the College

The Panel received ten exhibits from the College and heard testimony from four fact witnesses.

The College’s Witnesses

The College’s four fact witnesses included the Member’s former manager and three of his colleagues that accused him of inappropriate behaviour.

Witness #1 - Angeline Sloan (“Witness #1”)

Examination by College Counsel

Witness #1 is an RN and has been the clinical manager for the Unit at the Facility from April 2018 until 2022. She testified that the Unit is comprised of 4 observation orthotics-trauma beds and 36 other beds with a day shift (0700-1900) and a night shift (1900-0700). It had 11 Registered Nurses working per shift. She testified that she was the direct supervisor of the nurses who worked on the Unit and that each shift had an in-charge person who made the upcoming shift assignment and checked-in and supported staff as required. The Unit uses a verbal report model during the shift-to-shift nurse handover. Referring to Exhibit #3, the floor plan of the Unit, she testified to key areas of the Unit. Referring to Exhibit #4, she testified that the Facility had a harassment and discrimination policy which all staff are made aware of through the initial on-boarding hiring process. Referring to Exhibit #5, the Ontario Nurses’ Association Collective Bargaining Agreement, she outlined that this was the collective agreement in force for unionized Registered Nurses. She testified that she initially met the Member when she was hired as the manager of the Unit in 2018. She testified that the Member was terminated from the Facility after an investigation found that he was not compliant with the harassment, bullying and discrimination policy and that she was involved in the investigation pertaining to clinical concerns and sexual harassment of colleagues. She testified that she was not present for the interview of [Colleague A] and that it was [Colleague 1] who originally brought concerns about the Member to the Nurse Educator around April 2019.

Cross-Examination by the Member’s Counsel

Witness #1 testified that there was no dedicated in-charge person for the Unit at the time of the events and agreed that the Member worked as the in-charge person on occasion. She testified that the in-charge person made the assignments for the subsequent shift. However, they had the discretion to change assignments of the current shift based on patient acuity. She testified that she never heard of any concerns regarding the Member making unfair patient assignments. She testified that she had not received any concerns regarding the Member sexually harassing colleagues prior to April 2019 and denied ever having witnessed the Member engage in inappropriate conduct toward his colleagues. She testified that the Unit was a high-stress environment, and the nursing station did become crowded during shift change and referring to Exhibit #3, testified as to the layout of the nurses' station.

Witness #1 testified that she was never approached directly by [Colleague A] or [Colleague C] regarding concerns about the Member. She testified that she was approached by [Colleague B] regarding concerns about the Member after the Facility had initiated the investigation of the Member. She testified that at the time [Colleague B] brought forward concerns about the Member to her, [Colleague B] would not have been aware that the Facility had already started an investigation. She testified that the Nurse Educator informed her of the concerns from [Colleague A] and [Colleague C]. She testified that [Colleague 1] had originally brought forward her concerns to the Nurse Educator and that she was not aware of any friendship between [Colleague 1] and [Colleague A] and [Colleague B]. She testified that she did not recall if [Colleague C] had shared her concerns with [Colleague A] prior to the Facility’s interview on April 23, 2019 and that she did not send a copy of her notes to [Colleague C] to verify after the interview had been completed. Referring to the interview notes, she testified that she was aware that [Colleague B] was aware of the incident with [Colleague A] at the time of the Facility’s interview. She testified that she interviewed the Member on May 31, 2019 and September 17, 2019 and could not recall if she was aware prior to the interview if the Member was previously in a sexual relationship with [Colleague B]. She does not recall if during the interview the Member disclosed his sexual relationship with [Colleague B] in 2011-2012. She testified that no other witnesses were identified beyond the complainants themselves.

Witness #1 testified that in 2019, there were postings for a permanent in-charge person role and that criteria for the position involved seniority, skills and abilities. She testified that [Colleague B] secured one of the positions for the permanent in-charge person role.

Witness #1 testified that prior to the investigation, she was not aware of a culture of sex shop talk on the Unit. However, with what was revealed during the investigation, she then definitely knew this was occurring on the Unit.

The Panel found Witness #1 to be credible as she was forthright and honest in her testimony citing first-hand evidence and readily admitted when she could not recall facts. She did not have an opportunity to observe the Member as he primarily worked night shifts. However, she had opportunities to observe through her involvement in the investigation. She had an interest in the outcome of the hearing as she is still invested through her current employment with the Facility.

Witness #2 - [Colleague A] (“Witness #2”)

Examination by College Counsel

Witness #2 testified that she had been an RN since March 2016 and that she worked on the Unit for a 3-year period commencing March 2016. She testified that the Member acted in ways that upset her by making comments about her appearance and inappropriately touching her and that the inappropriate comments began 5-6 months into her career at the Facility. She testified that the Member would look her up and down and say, “you are looking good today”, that this would happen at shift change in the hallway and that she recalled no witnesses being around. She testified that the Member pinched her upper to lower back at least 6 times over the course of a year and it was witnessed once by [Colleague 2]. She testified that there was a time during shift change, the Member came by and sat on her lap which happened in front of many people and that she recalls being uncomfortable at the time. She testified that she did not say anything to the Member about his conduct being unwelcome. She testified about a time which occurred in the nursing station when the Member was trying to get by her and a chair and he purposely stuck his buttocks out and rubbed it across her front area and that there were other people around but she could not name anyone specifically. When asked why she did not say anything to the Member afterwards, she testified that she was “afraid of him” as he was intimidating and that she did not report it as she was afraid of retaliation in the form of unfair patient assignments from the Member. She testified that she felt “on edge” at work as a result of the inappropriate comments and touching by the Member. She testified that she recalled discussing the inappropriate behaviour with colleagues [Colleague 2], [Colleague 1], [Colleague 3], [Colleague 4], [Colleague B] and [Colleague C] but that she did not report the behaviour to management. She testified that she was approached by management about the inappropriate behaviour.

Witness #2 testified that she saw the Member outside of work twice including while having a beer with the Member amongst other colleagues and going skiing in Collingwood with him and one other colleague.

Cross-Examination by the Member’s Counsel

Witness #2 testified that the events of the Member rubbing his buttocks against her front area, sitting on her lap and his comment “you’re looking good today” while looking her up and down occurred some time between March 2016 and March 2017 and that she did not know the month, date or time of day in which they occurred. She testified that when the Member rubbed his buttocks against her, he had tried to get past her with his back facing her and a chair in the way in the nursing station during shift change with 18 other nurses present. She testified that she did not know of any witnesses to the inappropriate comments incident or the rubbing his buttocks against her incident. She testified that she was immediately upset and did not talk to the Member about it and that she was aware of the sexual harassment policy and the collective agreement which prohibited sexual harassment in the workplace. She testified that she did not report it to management, the in-charge person or Human Resources (“HR”) despite knowing that she could do this confidentially. She testified that she could not produce any text messages or diary entries pertaining to this event.

Witness #2 testified that the Member pinched her upper and lower back and that he did so using two fingers. She testified that the Member did this in the nursing station and hallways where others could have observed it.

Witness #2 testified that she has no proof of receiving an unfair patient assignment from the Member when he was the in-charge person. She testified that the Member, when acting as the in-charge person was supportive when she needed assistance with clinical issues during her shifts. She testified that she “did her best” to avoid the Member at work during the first year of her employment.

Witness #2 testified that she “was afraid of him” and uncomfortable around the Member as a result of the events.

Referring to Exhibit #7, Witness #2 testified that she went on a ski trip to Blue Mountain Ski Resort in Collingwood, Ontario with the Member and [Colleague 5] and that the ski trip took place on March 20, 2017, which is the date on the photo. She testified that she took a selfie of her, the Member and [Colleague 5] and that she was smiling and happy in the picture. She testified that it was possible that she had asked to come along on the ski trip with the Member and [Colleague 5]. She testified that the trip to Collingwood from London was 3 hours one-way and that [Colleague 5] drove her and the Member. She testified that she rode the ski lift and had lunch with the Member and [Colleague 5] during the day. When asked if she truly experienced the events from the Member, she would have chosen not to go skiing with him, she responded “sure”.

Witness #2 testified that she was friends with [Colleague B] and [Colleague C] while working at the Facility and that she had spoken to [Colleague C] and [Colleague B] about their experiences with the Member prior to the Facility’s investigation. She testified that she told [Colleague C] that she had been interviewed by the Facility prior to [Colleague C]’s interview with the Facility.

Referring to Exhibit #9, Witness #2 testified that she was hanging out with [Colleague B] outside of work.

College Counsel’s Re-examination

Witness #2 testified that she was afraid of receiving an unfair patient assignment in retaliation from the Member had she reported the incidents. She testified that she was afraid because she did not want the added stressors of a heavy patient assignment given that she was a novice nurse.

Witness #2 testified that she did not let the Member's past behaviour stop her from going on the ski trip because the behaviour had stopped and that she was in the company of a close friend, [Colleague 5], while on the ski trip.

The Panel found Witness #2 to be honest in her recall. She had a good recall of the events citing personal observations; however, she was uncertain around the timelines of the events. She was clear when she could not recall certain details and was consistent with her answers. She lacked internal consistency when she testified that she was afraid of the Member and subsequently went on a full day ski trip with him. The Panel acknowledges that she has little interest in the outcome as she no longer works at the Facility and has no contact with the Member.

Witness #3 - [Colleague B] (“Witness #3”)

Examination by College Counsel

Witness #3 has been an RN since 2008 and has worked at the Facility on the Unit from 2008 to the present. She testified that she has been one of the permanent in-charge persons since 2020. She testified that she had been friends with the Member both at work and outside of work but never dated and that the personal relationship ended in approximately 2012. She testified that her work relationship changed to being only professional when the personal relationship ended. She testified that the Member grabbed her buttocks with his full hand in the corridor at work one time between 2014-2015. She testified that there were no witnesses to the event, she never spoke to the Member about the event, never spoke to any of her colleagues about the event and did not immediately report the event to the Facility. She testified that she disclosed the event to the Facility in 2019. She testified that the Member would make comments about the size of her buttocks to other colleagues with her present and that the other colleagues included [Colleague 6], [Colleague 7] and Colleague 8]. She testified that she avoided working with the Member after these events. She testified that she did not report the inappropriate comments to the Facility. She testified that she reported the Member to management for comments the Member made regarding her accommodation due to a workplace injury and making comments to other staff about her at least 6 times. She testified that she reported the buttocks grab and inappropriate comments to management during the HR interview in 2019. She testified that in response to her concerns, management told her there was a file being built on the Member and that there was not enough to address her concerns. She testified that her personal relationship with the Member involved a sexual component consisting of foreplay.

Witness #3 testified that the meeting she had in 2019 with HR was initiated by her having a “meltdown” at work where “everything came out”. She testified that she did not initially disclose the inappropriate remarks and touching to the Facility as she was never supported with her previous reports to management for other issues. She testified that she was stressed, anxious and “on edge” at work and avoided working shifts with the Member by calling in sick or switching shifts with colleagues.

Cross-Examination by the Member’s Counsel

Witness #3 testified that she took a cross-border shopping trip in the same vehicle with the Member but could not recall the date. She testified that she could not recall the date, month or year that the Member grabbed her buttocks, that it happened only once and that she was in shock after it happened. She testified that she was aware of the Facility’s policy on harassment and the collective agreement which speaks to workplace harassment and was aware the conduct was in violation of these policies. She testified that she did not initially raise the buttocks grab incident with the Facility citing vulnerability, intimidation, personal stress and anxiety. She testified that she had started a new relationship with another male prior to the Member having grabbed her buttocks. She testified that she started to avoid the Member at work after the Member had grabbed her buttocks. She testified that the Member’s comment about her buttocks involved it being round and large and that the Member looked at her while [Colleague 6] was present, but she could not recall the date or month when the Member’s comment was made. She testified that some of her colleagues on the Unit participated in sexual banter and she admitted to participating in the sexual banter but never initiated it. She testified that the consensual sexual relationship with the Member in 2011-2012 included cuddling, sleeping in each others bed and the Member “going down” on her once and she denied ever asking the Member to be in an exclusive relationship with her. She testified that she did go to some outside of work events where the Member was present. Referring to Exhibit #10, she testified that she attended a colleagues’ retirement party on June 30, 2015, but was not certain whether she conversed with the Member at that event. She testified that she did not feel comfortable approaching the Member regarding the events due to her anxiety, stress and shock. She denied ever participating in a conversation in the break room in 2019-2020 regarding how the Member got such pretty women and her saying that he is good in bed and has a big dick. She denied ever leaning into the Member’s shoulder while talking to him in 2016. She also denied ever discussing the incident with [Colleague A]. She testified that she was work friends with [Colleague A] which included hanging out with her in a group setting. Referring to Exhibit #8, she indicated that she went on a wine tour with [Colleague A] amongst a group. She admitted to having a “break-down” at work and that she shared the details of the events with Angela Sloan and HR. She testified that when she brought forward her concerns to HR, the Facility was building a file against the Member. She did not share with [Colleague C] that she disclosed the events to the Facility. She testified that the Facility began talking about a permanent in-charge person in 2018 and that she was interested in the position. She testified that while discussing the Member she denied saying “you don’t have to worry, we like you” to [Colleague 6].

College Counsel’s Re-examination

Witness #3 testified that she did not organize the event or invite guests to Marg Smith’s retirement party or [Colleague 1]’s Christmas party.

The Panel found Witness #3 to be not credible in her testimony. She had poor recall regarding the year in which it was alleged that the Member touched her buttocks. The Panel found that she lacked external consistency as she stated that she avoided the Member, going as far as to call in sick when the Member was scheduled to work the same shift, following the events which is in contrast to Witness #6’s testimony that she was observed physically close to the Member and interjecting herself in the Member’s conversations. Witness #3 lacked external consistency as she testified that she did not initiate any discussions or sexual banter regarding the Member. However, Witness #7’s testimony revealed that she offered to a group that the Member must be “well-endowed” and “good in bed” in response to the question that was posed as to how the Member gets women out of his league. She has a strong interest in the outcome given her continued employment on the Unit and her leadership status on the Unit stemming from her permanent in-charge person role.

Witness #4 - [Colleague C] (“Witness #4”)

Examination by College Counsel

Witness #4 testified that she has been an RN since the Summer of 2018 and had worked on the Unit from August 2018-February 2019. She testified that the Member was working at a workstation in the hallway and that he made the comment “Wow, I’d recognize that ass anywhere” but that she could not recall when this happened or if others were present. She testified that she likely responded with a “nervous giggle” and she never discussed the event with the Member. She testified that she was leaving her shift and was walking toward the service elevators and the Member jogged past her from behind and hit her buttocks and continued running and looked behind and gave her a smirk but that she could not recall if there were witnesses present. She testified that she felt “jostled” at the time and recalls feeling upset with herself once she got to her car for not doing anything about it. She testified that she was at the nursing station giving report and someone came up behind her and buckled her at the knees and the Member made the comment “I bet you make that sound when you cum”. She testified that she could not recall who buckled her knees or who the other nurses were who were around at the time. She testified that she was disappointed in herself for not addressing it and feeling “sick to my stomach” once she got in her car. She testified that she did not report it to the Facility as she only had about a month until she was leaving her employment at the Facility. She testified that she shared the events with some colleagues including [Colleague A]. She testified that after hearing the comment, [Colleague 6] was upset and wanted to talk to the Member about it. She testified that she avoided the Member after the events as she knew she was leaving the Facility and she wanted to keep a good relationship with the Member as he was a good clinical resource if she encountered difficulties with a patient or a patient’s family. She denied discussing the events after she left with [Colleague A] or [Colleague B].

Cross-Examination by the Member’s Counsel

Referring to Exhibit #1, Witness #4 denied that the Member ever grabbed her waist or buckled her knees. She testified that she remembered the word “cum” as this was the word that made her feel disgusted. She testified that there are no witnesses identified or no witnesses who intervened when the Member said, “I bet you make that sound when you cum”. She testified that she was aware of the Facility’s policy and the collective agreement which prohibited sexual harassment in the workplace. She testified that she does not recall anyone else in the hallway when the Member made the comment “I’d recognize that ass anywhere”. She testified that she had her back to the Member when he touched her on the buttocks and that the Member “brushed” his hand on her buttocks and that it would not have been accidental given that she was wearing a backpack. However, she admitted that something other than the Member’s hand may have come in contact with her buttocks. She testified that there was generally a presence of sexual banter amongst the nurses on the Unit. She testified that she did participate in sexual jokes on the Unit and may have made a sexual innuendo to [Colleague 6] about the size of [Colleague 6]’s hands.

The Panel found Witness #4’s testimony to be forthright and honest. She provided circumstantial details when recounting the events. Witness #4 had only worked on the Unit for a 6-month period at the start of her career which was favourable to her credibility as this enhanced her ability to recall timelines and circumstantial details. Witness #4 had no interest in the outcome of the hearing as she has since resigned from the Facility and had no contact with the Member.

College Counsel’s Submissions of the College’s Standards

College Counsel sought to qualify Meghan Donohue as an expert witness on the standards of practice. Ms. Donohue, referring to her Curriculum Vitae (“C.V.”), testified that she earned a Baccalaureate in Nursing degree in 2000 and a Masters in Nursing degree in 2020. Ms. Donohue testified that she has been an RN since 2000 and has worked in a level 3 neonatal critical care environment at Sunnybrook Health Sciences Centre since 2001, the last 13 years being in a clinical educator role. Ms. Donohue testified that the neonatal intensive care unit is an example of a critical care environment. College Counsel asked the Panel to qualify Ms. Donohue as an expert in the standards of practice of nursing applicable in a context of a hospital critical care environment.

Response by Member’s Counsel

Referring to her C.V., Ms. Donohue acknowledged that she did not possess expertise in human rights, human rights law or sexual harassment. Ms. Donohue acknowledged that she has never been certified as an expert in another legal proceeding. The Member’s Counsel asked that should the Panel qualify Ms. Donohue as an expert, that her expertise be limited to the identification of the College standards and not the application of the standards to the critical care environment.

The Panel deliberated and agreed to qualify Ms. Donohue as an expert in the standards of practice of the College and how they generally relate to the critical care nursing environment. The Panel did not qualify Ms. Donohue as an expert in sexual harassment or Human Resources and directed that Ms. Donohue’s evidence should be restricted in this regard.

The parties subsequently agreed to have College Counsel mark as exhibits the relevant College standards, thereby eliminating the need for Ms. Donohue to testify.

As agreed by the parties, College Counsel submitted Exhibit #14, the Professional Standards, Revised 2002 updated August 2013, Exhibit #15, the Professional Standards, Revised 2002 updated May 2015 and Exhibit #16, the Professional Standards, Revised 2002 updated August 2018 as evidence of the standards of practice of the profession at the relevant times.

This concluded the College’s evidence.

The Evidence of the Member

The Panel received four exhibits from the Member and heard testimony from three fact witnesses.

The Member’s Witnesses

The Member’s three fact witnesses included the Member and two former colleagues of the Member.

Witness #5 - Mark Lenders (the “Member”)

Examination by the Member’s Counsel

The Member testified that he has been an RN since 2008 and had been employed at the Facility on the Unit since 2008. The Member testified that he had meetings with management at the Facility for a “mask violation”, a missed co-signature of a drug wastage and a privacy violation involving a picture of a patient with no patient identifiers that was used for teaching purposes. The Member testified that he started to have occasional shifts as the in-charge person beginning in 2009. The Member testified that the shift-to-shift report occurred at the nursing station with up to 18 nurses and clerks present. The Member testified that he was terminated from the Facility in October 2019 and that he grieved the termination and it was subsequently converted to a resignation. The Member testified that the Unit had a culture of sexual banter and there were cliques comprised of colleagues working the same shift line. The Member testified that he did partake in the sexual banter but would not initiate it. The Member testified that he never saw that anyone was uncomfortable or offended by his sexual banter comments. The Member testified that he may touch a colleague while maneuvering tight spaces on the Unit for the purposes of not connecting with a person’s private areas. The Member indicated that a friendship developed between himself and [Colleague B] once they started working together on the Unit in 2008, that he had an intimate relationship with her for a few months duration which commenced in October 2011 and that the relationship dissolved after she requested an exclusive relationship with him which he denied. The Member denied touching or grabbing or making comments about [Colleague B]’s buttocks in or around 2014-2015. The Member testified that he observed [Colleague B] get grabbed from behind at a bar and that she turned around and told the person that she did not like that. The Member testified that the Facility started to discuss the permanent in-charge person role in 2018 which did not have a patient assignment and that he expressed to Angela Sloan that he was interested in the role. Referring to Exhibit #7, the Member testified that he went on a ski trip on March 17, 2017, with [Colleague A] after she asked to come with him and [Colleague 5]. The Member testified that he travelled in [Colleague 5]’s car along with [Colleague A] for the 3-hour one way trip. The Member testified that he rode the chairlift and had lunch with [Colleague A] and [Colleague 5]. The Member testified that he never sat on [Colleague A]’s lap, never intentionally brushed up with his pelvic area against [Colleague A], never looked [Colleague A] up and down and made a comment on her appearance and he denies pinching or touching [Colleague A]’s upper back.

The Member testified that he did not make the comment “I bet that’s the sound you make when you cum” to [Colleague C] and denied making the comment “I’d recognize that ass anywhere” to her. The Member testified that he denies touching [Colleague C]’s backside or buttocks. The Member testified that he recalls being asked once by a coordinator, regarding clinical issues, to be mindful of his tone, wording and posture when interacting with people.

The Member testified that he, along with 4 other nurses were moving a patient with a hip fracture, when a younger female nurse accused the Member of grabbing her buttocks. The Member testified that subsequently, [Colleague 9], one of the nurses, apologized to the younger nurse for accidentally touching her buttocks.

The Member testified that he briefly sat on [Colleague 10]’s lap during a staff meeting whom he had a “brother-sister relationship” with. The Member testified that Angela Sloan was present at that staff meeting.

The Member testified that he was on paid leave following the investigation meeting from April 2019 until October 2019 and that this was a difficult period for him where he went off on medical leave due to being diagnosed with depression and anxiety, being prescribed medication and was seeing a therapist.

The Member testified that he relived being sexually abused by another male in 2008. The Member testified that he felt violated, shameful and emasculated and that he would not have wanted anyone else to feel the same way. The Member testified that he felt “singled out” for the toxic sexual culture that was prevalent on the Unit.

Cross-Examination by College Counsel

The Member testified that he was disciplined 3 times for not wearing a mask at work citing that he felt it was a violation of his personal privacy and medical confidentiality to be identified as choosing not to have an influenza vaccine. The Member testified that he was aware of the mask policy at the Facility and went against this by not wearing a mask.

The Member testified that he was a mentor to junior nurses and was occasionally the in-charge person and had a position of leadership on the Unit. The Member testified that he often used humour to alleviate stress at work given the physically and mentally challenging conditions on the Unit. The Member testified that the humour sometimes involved a sexual theme. Referring to Exhibit #14, the Member testified that, in hindsight, he can see how some of his comments that he made on the Unit could be interpreted as inappropriate. The Member testified that in hindsight, he failed in his responsibility to role model professional behaviour and to be aware of how his behaviour affects others by participating in the sexual banter conversations.

The Member testified that he is friends with [Colleague 6] citing that they go golfing together and that he was in his wedding party. The Member testified that he never discussed the allegations with [Colleague 6].

The Member’s Counsel’s Re-examination

The Member testified that [Colleague 6] reached out to him to provide moral and emotional support after the Member was placed on paid-leave by the Facility.

The Panel found that the Member was not credible. The Member was not forthcoming in his testimony as evidenced by only volunteering that he was disciplined by the Facility once for not wearing a mask when he later admitted that he was disciplined by the Facility for 3 occurrences of not wearing a mask. The Panel found that the Member downplayed his participation in the sexual banter on the Unit. Although a member’s interest in the outcome of the hearing will not always be a factor which calls into questions their credibility, the Panel finds it to be a factor in this case given the other credibility issues it has noted.

Issue of whether the collateral fact rule applies to the testimony of [Colleague 9]

College Counsel objected to [Colleague 9]’s evidence, submitting that the fact or issue of whether or not [Colleague B] was close or rubbed shoulders with the Member is a collateral issue. College Counsel outlined this does not assist with resolving the allegations of this hearing. College Counsel stated that the only purpose of this evidence is regarding the credibility of [Colleague B]. College Counsel outlined the collateral fact rule which prohibits calling evidence to contradict a witness on a collateral fact.

The Member’s Counsel submitted that the collateral fact rule prevents an attack on a witness’s credibility through diversionary exploration. The Member’s Counsel outlined that the proposed evidence is closely related to the truth of the allegation of whether the Member touched [Colleague B] through exploring whether she distanced herself from the Member following being touched by the Member. Given the closeness of the expected evidence to the allegation, it would not violate the collateral fact rule. The Member’s Counsel submitted that the Member is owed a duty of fairness in the proceeding which includes being able to lead evidence about material facts in this case.

Independent Legal Counsel (“ILC”) advised that the Panel is required to determine whether this issue is collateral by determining whether the issue is purely one to disprove credibility or whether the evidence is sufficiently connected to an allegation in the case.

The Panel deliberated and agreed with the Member’s Counsel that the Member is owed a duty of fairness in the proceeding. The Panel determined that the issue of whether [Colleague B] was close or rubbed shoulders with the Member is not a collateral issue but rather, has sufficient connection to the core allegations in the case. Therefore, the Panel permitted the evidence that was introduced through the testimony of [Colleague 9].

Witness #6 – [Colleague 9] (“Witness #6”)

Examination by the Member’s Counsel

Witness #6 testified that she has been an RN since 1986, worked on the Unit from 1987-2018 and worked approximately 50% of her scheduled shifts together with the Member. She testified that she never saw the Member touch any colleagues or make any inappropriate comments toward colleagues.

Witness #6 testified that on one occasion, she was talking with the Member about a patient and [Colleague B] came over and squeezed her out of the conversation and got really physically close to the Member. She testified that she often saw [Colleague B] get physically close to the Member in conversation and that she pulled the Member aside and said she had a bad feeling that [Colleague B] may charge him with sexual harassment.

Witness #6 testified that on a night shift in 2018, in room 218, she transferred a spine patient into bed with 6 nurses assisting and when she pushed the stretcher out of the room, she accidentally touched the buttocks of [ ].

Cross-Examination by College Counsel

Witness #6 testified that the Member called her in 2019 regarding the allegations.

Witness #6 testified that in 2016, the Member disclosed to her that he had dated [Colleague B] previously and this is when she cautioned him that she had a bad feeling that [Colleague B] may charge him with sexual harassment.

Witness #6 testified that she had a professional and respectful relationship with [Colleague B] and has no issues with her.

The Member’s Counsel’s Re-examination

Witness #6 denied any animosity toward [Colleague B].

The Panel found Witness #6 to be forthright and honest in her testimony. She recounted first-hand knowledge about her observations she made while she worked on the Unit. Her testimony was not consistent with Witness #3’s testimony that she avoided contact with and spoke to the Member at work following the events. Witness #6 does not have an interest in the outcome given that she no longer works on the Unit.

Witness #7 – [Colleague 6] (“Witness #7”)

Examination by the Member’s Counsel

Witness #7 testified that he has been an RN since 2011 and has worked on the Unit from 2011-February 2020. He testified that he was off work for 6 months in 2016 and 3 months in 2019 due to personal health issues.

Witness #7 testified that he observed that the Member and [Colleague B] had a professional and cordial working relationship. He denied ever hearing the Member make any comment about [Colleague B]’s buttocks and denied ever hearing a conversation involving [Colleague C] and [Colleague A] whereby [Colleague C] disclosed that she was the recipient of unwelcome conduct from the Member.

Witness #7 testified that he, while in the break room in 2018, recalled [Colleague B] saying she heard it is because the Member is “well endowed” and is “good in bed” when talking about a conversation on how the Member gets women out of his league.

Witness #7 testified that there was a culture of inappropriate joking and flirting amongst colleagues on the Unit. He recounted jokes involving “that’s what she said”. He recounts a nurse twisting his nipples and he recalls stopping the nurse immediately citing that it was not appropriate. He testified that he was in the nursing station and he asked [Colleague B] regarding the Member’s whereabouts given that he was not on the Unit, and [Colleague B] responded, “You don’t have to worry [ ] because we like you” and subsequently laughed.

Cross-Examination by College Counsel

Witness #7 testified that his friendship with the Member was stronger after he had left the Facility in 2020. He testified that sexual innuendos were used on a daily basis on the Unit and that he participated in the sexual banter.

The Panel found Witness #7’s testimony to be forthright and honest. The Panel acknowledges that he has an interest in the outcome of the hearing given his ongoing friendship with the Member.

Final Submissions

College Counsel’s Submissions

College Counsel submitted that the Panel would need to make an assessment of credibility of the witnesses to determine whether the evidence, on the balance of probabilities, demonstrates that, it is more likely than not that the conduct described was engaged in by the Member.

College Counsel provided the Panel with excerpts from the Complete Guide to the Regulated Health Professions Act for criteria which the Panel may use to determine credibility of the witnesses.

College Counsel also provided the Panel with Springer v. Aird & Berlis LLP (Ontario Superior Court of Justice, 2009), which states credibility should not side with the best performance in the witness-box, but rather how the witnesses’ testimony is in harmony with other details in the case. College Counsel submitted that perfection should not be expected in a witnesses’ testimony to make favourable findings of credibility.

College Counsel further provided the Panel with R. v. Steele (Court of Appeal for Ontario, 2021) to explain that a common error made for victims of sexual assault is the expectation of how a witness should behave comparatively when assessing behaviour, plausibility and consistency.

College Counsel submitted that the Panel may find themselves asking the question what motive would three Registered Nurses have to concoct these allegations against the Member. College Counsel submitted that there was no motive revealed in this case for the three Registered Nurses to have done so. College Counsel submitted that the case is a bit “fuzzier” with [Colleague B] given her dislike for the Member, which was present in her testimony. However, this was not a strong enough motive to fabricate, especially since this case involved two other witnesses who do not have the same romantic and sexual history with the Member and who described similar conduct, in similar circumstances.

College Counsel submitted that none of the Registered Nurses brought the allegations forward to the Facility to initiate a complaint until they were asked by the Facility and that the three Registered Nurses provided credible explanations on why they chose not to report the allegations to the Facility until asked.

College Counsel submitted that although there was a culture of sexual banter on the Unit, the allegations go well beyond the level of sexual banter, especially since all three Registered Nurses allege they had experienced at least one episode of physical touching.

College Counsel submitted that the expectation that nurses who experienced sexual harassment pursue all avenues available to them to seek resolution or risk being found non-credible is not desirable.

College Counsel submitted that the Member was evasive, had difficulty conceding obvious points and described evidence that was implausible with other evidence in his testimony. The Member testified that he only made general comments directed at the group when participating in sexual banter which is implausible given the certainty that he maintained. The Member had difficulty acknowledging that participating in the sexual banter was inappropriate. The Member was not forthcoming when initially asked about being disciplined regarding not wearing a mask while being non-immunized against influenza.

College Counsel submitted that the three Registered Nurses in their testimony were not argumentative and had no trouble conceding propositions put to them on the evidence.

College Counsel submitted that [Colleague 6]’s testimony was credible in that he displayed awareness of the limits of his memory and a willingness to stop at the limits of his memory. However, College Counsel submitted that he did not offer a lot of evidence relevant to the allegations.

College Counsel submitted that [Colleague 9]’s testimony had no evidence related to the allegations and that her testimony revealed bias as she had already concluded that [Colleague B] would have concocted allegations of sexual harassment before any misconduct allegations arose against the Member.

College Counsel further submitted CNO v. Phillips (Discipline Committee, 2016), CNO v. Gesembe (Discipline Committee, 2013), and the ONA Central Collective Agreement to the Panel for the definitions of sexual harassment.

College Counsel submitted that, assuming the Panel finds the conduct occurred, the Panel has evidence as to the standards of practice of the profession and that the conduct would be both inappropriate and therefore contrary to the standards of practice and amount to sexual harassment.

The Member’s Counsel’s Submissions

The Member’s Counsel submitted that the burden of proof rests on the College. The Member’s Counsel submitted that the legal threshold and standard of proof is on the balance of probabilities. In order to satisfy the balance of probabilities, the evidence must be clear, cogent and convincing. The Member’s Counsel submitted that the case is not a credibility contest as the Member is not required to prove anything given that the burden of proof rests with the College.

Referring to R. v. Handy (Court of Appeal for Ontario, 2002), the Member’s Counsel submitted that the Panel cannot use the evidence of one complainant to bolster the evidence or findings of another complainant.

Regarding allegation #1(a), the Member’s Counsel submitted that the College only led evidence that the Member pinched the upper and lower back area of a colleague, and no other evidence was led regarding other touching.

Regarding Allegations #1(b) and #2(b), the Member’s Counsel submitted that there was no evidence led that the Member buckled a colleague’s knees or grabbed her waist. Witness #4 acknowledged in her testimony that it was another colleague who had grabbed her waist and buckled her knees. Therefore, the Panel cannot make a finding on that allegation.

The Member’s Counsel submitted that the Panel should have concerns about the sincerity and reliability of the complaints evidence given that there exists inability to recall details of the events including time frame.

The Member’s Counsel submitted that [Colleague B] is not truthful in her evidence and her evidence is inconsistent. [Colleague B] testified that she “did not converse in any regard” with the Member which is directly contradicted by the testimony of [Colleague 9] who testified that [Colleague B] would get physically close to the Member and interject herself into the Member’s conversations. The Member’s Counsel submitted that [Colleague B]’s denial of her involvement in sexual banter about the Member was implausible given [Colleague 6]’s testimony that [Colleague B] volunteered the answer of the size of the Member’s penis being how the Member got women out of his league, while a group was talking about how the Member got women out of his league.

The Member’s Counsel submitted that it should concern the Panel that [Colleague B] could not specify the date of the alleged grabbing of her buttocks by the Member. Additionally, the Member’s Counsel submitted that [Colleague B] reported the Member on 6 occasions for his negative attitude but did not come forward to report the Member for the alleged touching of her buttocks. The Member’s Counsel submitted that the Panel should be concerned given that [Colleague B] testified that she became aware, through her nursing coordinator, that the Facility was building a file against the Member but did not bring forward that the Member had touched her buttocks. The Member’s Counsel submitted that [Colleague B]’s evidence, as a whole, should be viewed as improbable, not making sense, lacking cogency, not internally consistent and therefore not credible.

The Member’s Counsel submitted that [Colleague A]’s inability to specify internally consistent timeframes of her evidence should suggest that her evidence is not clear, cogent and convincing. The Member’s Counsel submitted that there was no evidence led about the Member touching other than [Colleague A]'s testimony that the Member pinched her “back-fat”. The Member’s Counsel submitted that the Panel should draw an adverse inference as [Colleague A] testified that [Colleague 2] witnessed the Member pinch her back; however, [Colleague 2] was not called as a witness in this proceeding and she was not identified as a witness in the Facility’s investigation. The Member’s Counsel submitted that the Panel should draw an adverse inference as [Colleague A] stated in her testimony that nurse [ ] witnessed the Member sitting on her lap and nurse [ ] was not called as a witness in this proceeding and nurse [ ] was not identified in the Facility’s investigation. The Member’s Counsel submitted that the Panel should infer that [Colleague A]’s testimony that she was afraid of the Member is not internally consistent with her willingness to go on the ski trip with the Member in March 2017.

College Counsel’s Reply

College Counsel submitted that the Panel is not in a position to draw adverse inferences in the circumstances that were suggested to by the Member’s Counsel as it may have not been in the College’s power to call the witnesses and therefore the Panel cannot make an adverse inference from the absence of the witnesses.

ILC

ILC advised the Panel that there is no clear evidence as to whether any party had control over the witnesses (nurse [ ] and [Colleague 2]) and therefore the Panel should not draw any adverse inference in regard to either College Counsel or the Member’s Counsel’s decisions on whether or not to call the witnesses to testify before the Panel.

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 found that the Member committed acts of professional misconduct as alleged in paragraphs #1(a), #1(b), #1(e), #1(f), #2(a), #2(b), #2(e) and #2(f) of the Notice of Hearing. As to allegations #2(a), #2(b), #2(e) and #2(f), the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

The Panel did not find that the Member committed acts of professional misconduct as alleged in paragraphs #1(d) and #2(d) and therefore dismissed these allegations.

Reasons for Decision

Admitted Allegations

The Panel considered the Partial Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in allegations #1(e), #1(f), #2(e) and #2(f) in the Notice of Hearing.

Allegations #1(e) and #1(f) in the Notice of Hearing are supported by paragraphs 3-37 in the Partial Agreed Statement of Facts. The Member admitted that he contravened a standard of practice of the profession or failed to meet the standards of practice of the profession when he failed to notify a physician that [the Patient]’s urine output was less than or equal to 30mL per hour, as required by a physician’s order. On April 3 to 4, 2019, the Member recorded hourly urine outputs for [the Patient] that were below 30mL per hour and failed to notify the resident or most responsible physician as per the order. On April 4, 2019, the Member administered to [the Patient] a 250mL bolus of Ringer’s Lactate at 03:00 and again at 05:00 even though there was no order for [the Patient] which would have authorized the Member to have administered the two 250mL fluid boluses. Furthermore, there was no documented reason on why the Member had administered the two 250mL fluid boluses.

As admitted by the Member, the Panel finds his conduct, as set out in the above mentioned allegations and supported by the cited paragraphs in the Partial Agreed Statement of Facts, contravened or failed to meet the standards of practice of the profession, namely, the College’s Code of Conduct, the Professional Standards and the Decisions About Procedures and Authority Standard.

Allegations #2(e) and #2(f) in the Notice of Hearing are supported by paragraphs 3-36 and 38 in the Partial Agreed Statement of Facts. The Panel finds that the Member’s conduct in not reporting [the Patient]’s low urine output despite an order indicating to do so and administering boluses of intravenous fluids without an order was clearly relevant to the practice of nursing. The Member’s conduct was unprofessional as it demonstrated a serious and persistent disregard for his professional obligations in contravening the College’s Code of Conduct, the Professional Standards and the Decisions About Procedures and Authority Standard.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty and deceit through predisposing [the Patient] to potential harm by not escalating [the Patient]’s low urine output to a physician and by administering intravenous fluid boluses for which he did not have the authority to administer. The Member knew or ought to have known that his conduct was unacceptable and fell below the standards of a professional.

Contested Allegations

This was not a case of similar fact evidence, and the Panel considered the evidence of each of the three complainants separately. The Panel did not rely on the evidence of any one complainant to bolster the claims of other complainants. The evidence in respect of each allegation was considered separately.

In assessing the credibility of witnesses, the Panel considered the following factors from the decision of the Divisional Court in Re Pitts v. Director of Family Benefits Branch of the Ministry of Community & Social Services, where relevant:

(a) the witness’s appearance and demeanor;

(b) the witness’s opportunity to observe;

(d) the probability or reasonability of the evidence;

(e) the internal consistency or inconsistency of the evidence;

(f) the external consistency or inconsistency of the evidence; and

(g) the witness’s interest in the outcome of the case.

The Panel also understood that it can accept all, part or none of a witness’s testimony and that minor discrepancies between the evidence of different witnesses does not necessarily discredit their evidence.

Sexual Harassment

The Panel considered whether its factual findings met the definition of “sexual harassment”. The Panel considered the definitions of sexual harassment contained in CNO v. Phillips, CNO v. Gesembe, the Ontario Nurses’ Association Collective Agreement and the Facility’s Workplace Harassment and Discrimination Policy. The Panel utilized the definition of sexual harassment that was set out in the Facility’s Workplace Harassment and Discrimination Policy as it was found to offer the strongest governance of nurses working on the Unit given that all nurses were exposed to the definition during the Facility’s orientation. The Facility’s policy defined “workplace sexual harassment” as follows:

Workplace Sexual Harassment, in accordance with the Occupational Health and Safety Act, means:

Engaging in a course of vexatious comment or conduct against a worker in a workplace because of sex, sexual orientation, gender identity or gender expression, where the course of comment or conduct is known or ought reasonably to be known to be unwelcome, or
Making a sexual solicitation or advance where the person making the solicitation or advance is in a position to confer, grant or deny a benefit or advancement to the worker and the person knows or ought reasonably to know that the solicitation or advance is unwelcome.

The Panel’s findings with respect to each allegation are set out below:

Allegation #1(a)

The Panel did not receive any evidence that the Member pinched the back of Witness #2’s arms. The Panel heard evidence from Witness #2 that the Member rubbed his buttocks against her when he walked by her in the nursing station. The Panel also heard evidence from Witness #1 that the Unit was a high-stress environment and the nursing station did become crowded during shift change. Witness #2 also testified that the Member was trying to get through a narrow space between her and a chair. The Panel could not conclude on a balance of probabilities that the Member intentionally rubbed his buttocks against Witness #2 when he walked by her. The Panel heard evidence from Witness #2 that the Member touched her lower back without permission, commented on her appearance and sat on her lap. The Panel found Witness #2 to be credible in her testimony and the Panel preferred the evidence of Witness #2 over the evidence of the Member, who denied that the events occurred. The Panel considered the definition of sexual harassment as set out in the Facility’s Workplace Harassment and Discrimination Policy and determined that the Member’s conduct was unprofessional but did not amount to sexual harassment. The Member, in his testimony, admitted that he had failed in his responsibility to role-model professional behaviour. The College’s Professional Standards outlines that “professional relationships are based on trust and respect, and result in improved client care”. The Member failed to meet the standards of practice of the profession as his unprofessional conduct towards Witness #2 eroded trust and respect which manifested as an antagonistic collegial relationship.

Allegation #1(b)

The Panel did not receive any evidence that the Member buckled Witness #4’s knees or grabbed her by the waist. The Panel noted that Witness #4 did not agree fully with allegations #1(b) and #2(b) in the Notice of Hearing which supports that she was not fabricating evidence. Witness #4 testified that she was at the elevator wearing a backpack and ready to leave after her shift when she felt the Member touch her buttocks, that when she got to her car, she was upset and that she did not say anything to the Member about it. However, in Witness #4’s testimony, she did admit that her back was toward the Member and that something other than the Member’s hand could have come in contact with her buttocks. Given the probability of something other than the Member’s hand coming into contact with her buttock, the Panel could not conclude, on the balance of probabilities, that the Member had touched her buttocks. The Panel agreed with the rationale provided by Witness #4 as to why she did not report the event given that she had already tendered her resignation. The testimony of Witness #4 included that she disclosed the Member’s comment of “that’s the sound you would make when you cum” with [Colleague A] which is consistent with the testimony from Witness #2. The Panel found Witness #4 to be credible in her testimony and the Panel preferred the evidence of Witness #4 over the evidence of the Member, who denied that the events occurred. The Panel considered the definition of sexual harassment as outlined in the Facility’s Workplace Harassment and Discrimination Policy and determined that the conduct was unprofessional as it contravened the standards of practice of the profession but did not amount to sexual harassment. The Member failed to meet the standards of practice of the profession as he failed to role model positive collegial relationships as outlined in the College’s Professional Standards.

Allegations #1(d) and #2(d)

With respect to Witness #3, the Panel found that the evidence was not sufficiently clear, cogent and convincing to discharge the burden of proof on the College. The Panel heard testimony from Witness #3 that she had reported the Member at least 6 times to management for his attitude and/or tone which indicated that she was comfortable approaching management regarding concerns about the Member. The Panel also heard Witness #3’s testimony that she became aware that the Facility was building a file against the Member, and she subsequently disclosed the events which occurred years earlier to the Facility. The Panel heard Witness #7’s testimony that when he inquired as to the reason that the Member was off work, Witness #3 said “You don’t have to worry, we like you” which the Panel inferred that Witness #3 brought forward the events to the Facility out of hatred toward the Member. The Panel heard Witness #3’s testimony that she refrained from having contact with the Member at work, going as far as to call in sick for her shifts when she was scheduled to work with the Member. This is in stark contrast to Witness #6’s testimony that Witness #3 would be physically close to the Member and interject herself into the Member’s conversations at work. The Panel concluded that Witness #3’s testimony was too uncertain and internally inconsistent to meet the standard of clear, cogent and convincing so as to prove allegation #1(d) on the balance of probabilities. Given that allegation #1(d) was not proven, the Panel found that the College also did not prove allegation #2(d).

Dishonourable and Unprofessional

The final issue for the Panel to consider was whether the Member’s conduct would reasonably be regarded by members of the profession to be disgraceful, dishonourable or unprofessional. The Panel considered whether the Member’s conduct in allegations #2(a) and #2(b) would reasonably be regarded by members of the profession to be disgraceful, dishonourable and unprofessional. The Member’s conduct was clearly unprofessional as it falls below the expectations of appropriate workplace conduct. The Member’s conduct is dishonourable as there was an element of moral failing. The Member ought to have known that his unprofessional conduct was not in keeping with the expectation of role-modelling positive collegial relationships as outlined in the College’s Professional Standards. The Panel opined that the Member’s conduct did not amount to casting serious doubt on his moral fitness and his ability to discharge the higher obligations the public expects professionals to meet, and, as such, his conduct is not considered disgraceful.

Resumption of Hearing for Penalty

Given the Panel’s determinations in this Decision, the Hearings Administrator will contact the parties to schedule a date on which the hearing will resume to address the issue of penalty.

I, Lalitha Poonasamy, Public Member, sign this decision and reasons on liability as Chairperson of this Discipline panel and on behalf of the members of the Discipline panel.