College of Nurses of Ontario v. Faina Brodsky, 2024 ONCNO 140482

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Grace Fox, NP Chairperson Sylvia Douglas Public Member Samuel Jennings, RPN Member Susan Roger, RN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO DOUGLAS MONTGOMERY for College of Nurses of Ontario

• and -

FAINA BRODSKY Registration No. JI750325 MICHAEL BURY for Faina Brodsky

PATRICIA HARPER Independent Legal Counsel

Heard: September 30, 2024

DECISION AND REASONS ON PENALTY AND COSTS

In its Decision and Reasons released on June 13, 2024, the Panel made findings that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2, 3, 4 and 5 of the Notice of Hearing. As to allegation 5, the Panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

The Panel reconvened on September 30, 2024 via videoconference for the penalty hearing. The Member was present and represented by Counsel. The Panel’s decision and reasons on penalty and costs are set out below.

Penalty Submissions

The Panel received submissions from College Counsel and the Member’s Counsel for consideration related to penalty.

The College’s Submissions

College Counsel proposed an order that included an oral reprimand, a six month suspension of the Member’s certificate of registration and terms, conditions and limitations on the Member's certificate focusing on remedial and rehabilitative elements of penalty. In that regard, two meetings with an Expert and completion of learning documents were sought in conjunction with an 18-month employer notification period following the Member’s return to practice. College Counsel submitted that the penalty proposed was in the public interest and appropriate in light of the Panel’s findings of professional misconduct.

College Counsel reminded the Panel that it had made findings against the Member under five heads of professional misconduct related to making false benefits claims: breach of the standards of practice, and in particular, contravention of the Professional Standards and the Ethics Standard; misappropriation of funds from an employer; falsifying records related to her practice; signing or issuing in her professional capacity a document she knew or ought to have known contained a false or misleading statement; and, unprofessional and dishonourable conduct.

The Member participated in untruthful and deceitful conduct, showing a serious and persistent disregard for her professional obligations. College Counsel submitted that it is the CNO’s mandate to maintain public confidence and protect the public. College Counsel submitted that it was in the public’s interest to ensure that an appropriate penalty order is made related to the findings of professional misconduct and to demonstrate the College’s ability to regulate its members.

College Counsel made submissions on the aggravating and mitigating circumstances, the principles of penalty, and relevant case law.

Aggravating and Mitigating Factors

College Counsel reviewed the aggravating elements of the Member’s conduct. College Counsel submitted that the Member’s misconduct was serious, and it occurred over 12 occasions between November 2016 and September 2018. In addition, the Member included family members in her transgressions. Further, the Member did not display accountability during the Facility investigation. Her actions involved contravention of the CNO’s Professional Standards, and in particular, the requirement that members act with integrity. The Member took advantage of the trust of her employer for her own personal enrichment.

The single mitigating factor submitted by College Counsel was that the Member had no prior disciplinary history with the College.

Principles of Penalty

College Counsel submitted that a suspension and tailored remediation plan including an oral reprimand, six month suspension and specified terms, conditions and limitations meets the direction provided in s. 51(2) of the Health Professional Procedural Code.

Case Law

College Counsel submitted the following cases to the Panel in support of the College’s position that the proposed penalty was appropriate and fair.

In CNO v. Verde Balayo (Discipline Committee, 2021), the quantum of false claims and the scope of misconduct was similar to the case before this Panel. As in Verde Balayo, the College’s proposed penalty before this Panel is rooted in the seriousness of the Member’s actions and the need to demonstrate to the public that members of the nursing profession cannot behave with impunity. The falsification of documentation for personal gain cannot be tolerated and the penalty being sought here communicates that dishonest practice will not be accepted.

CNO v. Valdez (Discipline Committee, 2023) is most factually similar to the case before this Panel in that it proceeded by way of contested hearing, and the misconduct took place over a period of four years with claims for physiotherapy, compression stockings, orthotics and orthopedic shoes. The quantum of false claims in Valdez was $9,655.00. There were 12 claims for similar products, no admission of misconduct or restitution, and with similar aggravating and mitigating factors as in the case before this Panel. While Valdez admitted to the misconduct in meeting with their employer, there was no evidence of remorse in the College’s disciplinary proceedings as the member did not attend the hearing. The member in Valdez received a similar penalty as the one being sought in this case, including a six-month suspension of their certificate of registration and 18 months of employer notification.

College Counsel submitted two additional cases to the Panel: CNO v. Iousoupova (Discipline Committee, 2022) and CNO v. Tubigan (Discipline Committee, 2023). Both cases proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. Despite differences in the quantum of false claims, both members received the same suspension of four months, having accepted responsibility and accountability for their conduct. In CNO v. Tubigan, the quantum was significantly less at $1,250.00 and made on a single claim; however, the panel in that case held that the same misconduct must attract a similar suspension despite the quantum being significantly less.

College Counsel submitted that in this case, the College was proposing a penalty for significantly similar findings of misconduct as in CNO v. Valdez, with that case being most factually similar to the matter before this Panel. College Counsel submitted that the suspension sought is consistent, appropriate and reasonable in this instance.

The Member’s Submissions

Member’s Counsel asked the Panel to order a three-month suspension and generally agreed with the remedial aspects of the penalty as proposed by the College.

Member’s Counsel requested a six-month employer notification period rather than the 18-month period sought by the College as the Member has been with the same employer for many years.

Member’s Counsel submitted two cases in support of this position, which the Panel considered: CNO v. Padillo (Discipline Committee, 2022) and CNO v. Valesquez (Discipline Committee, 2021). These cases proceeded by way of Agreed Statements of Facts and Joint Submissions on Order. Despite the differences in quantum of false claims, both cases resulted in three-month suspensions and 12-month employer notification periods, which was what the Member in this case was seeking.

Member’s Counsel submitted that, in addition to having no disciplinary history with the College, a further mitigating factor is the fact that the Member is now on medical leave due to stress and anxiety in her personal life, including aspects of her daughter’s involvement in a high conflict divorce, the Member’s husband’s medical problems and considerable issues with the Member’s parents in Israel. Member’s Counsel submitted that these factors were contributing to significant personal hardship for the Member.

Member’s Counsel submitted 11 character reference letters on behalf of the Member, which were described as “heartfelt and touching”.

The Panel was reminded that the Member was entitled to exercise her right to a hearing and doing so was not an aggravating factor.

The College’s Reply Submissions

College Counsel submitted that in the Padillo and Valesquez cases, the members proceeded by way of agreement hearings, having paid restitution. In the case before this Panel, there was no explicit evidence of remorse or accountability. In addition, College Counsel argued that the Member’s personal circumstances were not in evidence and not linked to the misconduct, which occurred some time ago. The medical leave letter does not describe the nature of the Member’s medical absence. As to the character references, College Counsel asked the Panel to consider that none of these letters included the Member’s own admission of wrongdoing.

Further Submissions

The Panel asked both parties for submissions related to the commencement of the suspension relative to the Member’s current medical leave. The Panel has discretion to delay the suspension under subsection 51 (2)(3) and (4) of the Code, if deemed appropriate. The College asked the Panel to make an order in which the suspension would take effect when the Order is finalized. Despite the Member’s current medical leave status, it was noted that the Member may return to work at any time. Although the Member’s Counsel made submissions with respect to the Member’s medical leave, the reasons for the medical leave are not in evidence. Both parties agreed there were too many future contingencies to give this matter further consideration and agreed with Independent Legal Counsel’s advice that suspension of the Member's certificate should not be viewed in the same manner as a medical leave from employment.

Penalty Decision

The Panel makes the following order as to penalty:

1. Faina Brodsky (the “Member”) is required to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for 6 months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in a practicing class.

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

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

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

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

1. the Panel’s Order,

2. the Notice of Hearing, and

3. 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 Practice Reflection Worksheets, online learning modules and decision tools (where applicable):

1. Code of Conduct;

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

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s patients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards their report to CNO, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into the Member’s behaviour;

vii. If the Member does not comply with any 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;

b) 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:

1. the Panel’s Order,

2. the Notice of Hearing, and

3. a copy of the Panel’s Decision and Reasons, once available;

iv. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to CNO, in which it will confirm:

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

2. that they agree to notify CNO immediately upon receipt of any information that the Member has breached the standards of practice of the profession.

3. All documents delivered by the Member to CNO, the Expert, or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The Panel concluded that the penalty proposed by the College was reasonable and in the public interest. The Panel was satisfied that the proposed penalty met the objectives of penalty and protected the public.

The Panel was satisfied that the proposed penalty fell within the range of reasonable outcomes ordered by this Discipline Committee, as demonstrated by the caselaw submitted to the Panel by the College and in particular, CNO v. Valdez (Discipline Committee, 2023), which was most factually similar to the case before this Panel. The Valdez case proceeded as a contested hearing with a similar quantum of improper claims and similar aggravating and mitigating factors.

The Panel determined that, in the totality of the circumstances, a six-month suspension was appropriate. The six-month suspension demonstrates to the membership that there are serious consequences for engaging in this type of misconduct. The Panel was deeply concerned by the seriousness of the Member’s misconduct, which included involving her family members. Breaching the trust of her employer and neglecting to display accountability during the facility investigation persuaded the Panel of the Member’s lack of integrity in these circumstances. The Panel recognizes the mitigating factor that the Member has no prior disciplinary history with the College, but in the totality of the circumstances, this did not provide the Panel with any reassurance that the Member understands the gravity of her actions.

The Panel determined that an 18-month employer notification was appropriate. This will provide for employer oversight of the Member’s return to ethical practice and offer the public an additional layer of reassurance of both the Member’s commitment and the College’s ability to regulate nurses.

The Panel reviewed the character reference letters filed by the Member. After careful consideration, the Panel gave little weight to these letters. The similarities of the letters, specifically requesting the Panel “to consider leniency” in most of the letters did not lead the Panel to new or emerging regard for the duration of the suspension or other terms of the penalty. The Panel would have given more weight to references that included information regarding the Member’s acceptance of responsibility and/or any further mitigating factors. The Panel was not swayed by the Member’s current personal circumstances, for which no direct evidence was presented.

The Panel appreciates that the penalty ordered must 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 rehabilitation and remediation.

In this instance, general deterrence is achieved through the six-month suspension of the Member’s certificate of registration, which will demonstrate to the membership the seriousness of this conduct and the consequences of engaging in like behaviour.

Specific deterrence is met through the oral reprimand and the six-month suspension of the Member’s certificate. This reinforces to the Member that this conduct is unacceptable to the membership as a whole, to patients and to the public at large.

Rehabilitation and remediation are achieved through the two meetings with a Regulatory Expert, which will provide the Member with an opportunity to reflect on her actions and to develop a plan to return to ethical nursing practice.

The public is further protected through the 18 months of employer notification, which will enable the Member’s employer to provide a heightened level of oversight on her return to nursing practice.

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

For the reasons set out above, the Panel concluded that the penalty proposed by College Counsel is reasonable and in the public interest.

Submissions on Costs

College Counsel sought costs in the amount of $2,880.00 with respect to certain pre-hearing steps in the proceeding.

College Counsel provided the Panel with an affidavit sworn by Ms. Denise Cooney, who previously acted for the College in this matter, which included a detailed timeline of the proceeding and associated costs incurred by the College. Ms. Cooney’s evidence was that significant delays in bringing this matter before the Discipline Committee were the result of the Member’s conduct prior to the Member securing her current Counsel.

Ms. Cooney summarizes the details in the pre-hearing phase to include:

• Four pre-hearing conferences scheduled (April 1, 2022, August 31, 2022, October 5, 2022 and January 18, 2023). Two of these were adjourned at the Member’s request.

• Multiple hearing dates were set and held in the Discipline Committee calendar (September 20-22, 2022, March 15-17, 2023 and March 28-31, 2023). The hearing proceeded July 10-13, 2023 after 10 other days being adjourned or unused.

• The Member retained or changed counsel three times – on or about March 11, 2022, June 6, 2022 and February 24, 2023.

• Several adjournments were granted - August, October, and November. The Pre-hearing Chair refused further adjournment of the March 2023 dates and met in case conference before amending that decision.

• Independent Legal Counsel became involved and two case conferences were held on December 7, 2022 and March 3, 2023. The first case conference was held without the Member present.

• Ms. Cooney documents at least seven instances, from herself or Hearings Administration, to inquiries of the Member or Member’s Counsel for which there was no reply.

The costs sought by the College were incurred to prepare for pre-hearing conferences that did not occur due to the Member’s repeated adjournment requests, correspondence regarding adjournment requests and rescheduling and, the cost of the first case conference on December 7, 2022. College Counsel submitted that such costs should not be borne by the membership at large. It was further submitted that these costs cover only a fraction of the total unnecessary steps required to conclude this hearing.

College Counsel submitted that costs orders related to protracted pre-hearing steps have been upheld by the Divisional Court, citing Reid v. College of Chiropractors of Ontario (2016 ONSC 1041) and Clokie v. Royal College of Dental Surgeons (2017 ONSC 2773). In CNO v. Anyaegbunam (Discipline Committee, 2022), a panel of the Discipline Committee awarded $4,800.00 in costs associated with a protracted pre-hearing process and delays that were determined to be intentional by the Member.

College Counsel submitted that the request for costs related to unnecessary costs “not greater than 5%” of the total costs actually incurred.

Member’s Counsel argued that the delays in the pre-hearing phase of this matter were triggered by prior counsel and that the Member herself was not the main contributor to any delays.

Decision on Costs

The Panel makes the following Costs Order:

1. The Member is required to pay CNO a portion of its legal costs and expenses incurred in the course of the prosecution in the amount of $2,880.00 within six months of the date of this Order.

Reasons for Decision on Costs

The Panel received evidence of multiple instances, both active and passive, where the Member delayed the pre-hearing process, such that hearing dates were scheduled a total of four times, with the hearing finally proceeding on a peremptory basis in July 2023.

The Panel found that Ms. Cooney’s affidavit clearly outlined the events (or lack thereof) leading to the request for costs.

The Panel was persuaded that the costs sought by the College were limited to the pre-hearing phase. It is the Member’s responsibility to retain counsel and provide instructions and directions as necessary. The Panel considered the volume of requests and correspondence from Hearings Administration and College Counsel. This included correspondence about the Member’s travel arrangements, which the Member made after hearing dates were set and agreed upon, which created an unnecessarily protracted pre-hearing process, including two case conferences. The Panel appreciates that the Member’s current Counsel has brought this matter to hearing in an expeditious manner.

The Panel finds that, in the totality of the circumstances and for the reasons set out above, a costs order of $2,880.00 is reasonable.

I, Grace Fox, NP, sign this decision and reasons for decision on Penalty and Costs as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.