College of Nurses of Ontario v. Bethany Scott, 2024 CanLII 148634

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Mary MacNeil, RN Chairperson Sandra Larmour Public Member Sarah Louwagie, RPN Member Kimberly Wagg, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO EMILY LAWRENCE AND GLYNNIS HAWE for College of Nurses of Ontario

• and -

BETHANY SCOTT Registration No. 15085024 NO REPRESENTATION for Bethany Scott

ELYSE SUNSHINE AND ALISHA KAPUR Amicus Curiae

CHRISTOPHER WIRTH Independent Legal Counsel

DECISION AND REASONS

(College of Nurses of Ontario motion to state a case for contempt)

Overview

The College of Nurses of Ontario (the “College”) has brought a motion seeking an order that this panel of the Discipline Committee (the “Panel”) state a case for contempt to the Divisional Court against Bethany Scott (the “Member”) pursuant to Section 13 of the Statutory Powers Procedure Act (“SPPA”).

The College alleges that the Member contacted its expected witnesses outside the hearing proceedings in breach of orders from the Panel not to do so. Amicus Curiae (“Amicus”) submits that this Panel should not make an order for a stated case for contempt to the Divisional Court.

Summary of Proceedings

The disciplinary proceedings against the Member have had a long procedural history. Multiple pre-hearing conferences were booked for 2022 and 2023. There have been 20 hearing dates scheduled during 2024, the majority of which have been adjourned. As a result, the parties have yet to begin calling evidence on the substance of the allegations which stem from incidents dating back as far as 2015. The allegations as stated in the Notice of Hearing dated February 7, 2024 are set out in Appendix A. What follows is a brief chronology of this proceeding to date.

Pre-Hearing Process (2021-2023)

On December 13, 2021, the College’s Inquiries, Complaints and Reports Committee (“ICRC”) referred multiple allegations of professional misconduct against the Member to the Discipline Committee. The allegations were related to incidents which took place in 2015-2016. The allegations include that the Member made harassing and/or threatening comments to former co-workers. The Member was also charged criminally with multiple offences, including harassment, that the College alleges the Member failed to report.

Multiple attempts to have the Member attend pre-hearing conferences in the fall of 2022 were unsuccessful. In January 2023, the hearing before the Discipline Committee was scheduled for 12 days between June 20, 2023, and August 4, 2023.

The Member appeared at a Case Management Conference (“CMC”) on June 9, 2023, and was self-represented. Following the CMC, the Chair, upon request from the College, issued an endorsement directing the Member:

“Not to harass any of the College’s witnesses listed in the Case Conference Memo”.

After hearing submissions at the CMC on June 9, 2023, the CMC Chair adjourned the June 2023 hearing dates. After hearing submissions at a subsequent CMC on July 4, 2023, the CMC Chair cancelled the August 2023 hearing dates. In mid-August 2023, hearing dates for March 4-7, 18, 22, 26-28, 2024 were booked. A CMC later that month was adjourned.

March 2024: Hearing Begins

The hearing to address the allegations against the Member began on March 4, 2024. At the end of the day on March 5, 2024, the Panel issued a verbal order that included:

“[the Member] will not contact any person on the College witness list by any means, direct or indirect”.

The hearing dates on March 5 and 6, 2024, were adjourned early at the request of the Member for health reasons, including on March 6, 2024, where the Member appeared from a hospital room. As a result, the hearing on March 7, 2024, was also adjourned considering the Member appeared to be admitted to hospital.

On March 15, 2024, the Panel’s verbal order from March 5 was reiterated in writing. The order outlined the steps to follow for an adjournment request as well as the following:

“[The Member] will not contact any person identified on the CNO witness list by any means, directly or indirectly.”

On March 18, 2024, the Member requested an adjournment for medical reasons of the hearing dates scheduled for March 18, 26, 27 and 28, 2024. This was accompanied by a medical note requesting a two-month adjournment. The Panel heard submissions on the adjournment request. College Counsel submitted an affidavit from Carolyn Gora, Director of Professional Conduct at the College in which Ms. Gora attested that the Member had breached earlier CMC endorsements as well as breached the Panel’s March 5, 2024 (verbal) and March 15, 2024 (written) orders not to contact witnesses. The hearing adjourned early at the Member’s request for health reasons. However, at the close of the day, the Chair orally cautioned the Member, reiterating the Panel’s earlier orders:

“If you contact witnesses, directly or indirectly, or anonymously, that the College believes is coming from you, there will be serious consequences, including that the College will ask for an urgent case conference asking the Panel to state a case to the Divisional Court for a contempt charge, the consequences of which could include a fine and/or jail time. This is a very serious order, very seldom used Courtney, so you really need to pay attention to that order, not to contact witnesses.”

To address the adjournment request for March 26, 27 and 28, 2024, the Panel ordered further medical documentation from the Member’s family physician. The order included recourse for the Panel to summon the family physician if documentation was not received. Medical documentation was received on March 20, 2024. The Panel deemed the medical information insufficient to justify a two-month adjournment and issued a summons requiring the Member’s family physician to appear before the Panel. The Panel subsequently adjourned the March 26 hearing to provide the Member time for a medical appointment, although no medical documentation substantiating the appointment had been provided. At a closed hearing on March 27, 2024, [ ]. After considering submissions from the parties, the Panel decided to adjourn the March 28, 2024, hearing date and made an order directing a process to book additional hearing dates.

April-July 2024: Motion to state a case for contempt and appointment of Amicus

A CMC was scheduled for April 3, 2024, but was adjourned at the Member’s request. A CMC took place April 16, 2024, but the Member did not attend despite being sent an email about the CMC by the Hearings Administration team. Following the CMC, the Chair issued an order outlining a timetable for the College’s motion to state a case for contempt to the Divisional Court. Fall hearing dates were also scheduled for October 3-4, 10-11, 21-23 and 28-29, 2024.

On April 29, 2024, the College filed a Notice of Motion requesting that the Panel state a case for contempt against the Member to the Divisional Court. The College also asked the Panel to appoint Amicus for the motion to state a case for contempt and/or the allegations made against the Member.

On May 23, 2024, the Member requested an adjournment of the May 27 hearing date for medical reasons. The adjournment request was denied due to the lateness of the request as well as insufficient medical information. The Panel also considered the motion to appoint an Amicus. The Panel recognized the uniqueness of appointing an Amicus but also witnessed the Member struggle to self-represent. For instance, the Member had not provided any written submissions. Their oral submissions were also difficult to follow. The Member also identified specific difficulties in being self-represented and often requested accommodations and/or the support of legal aid. Considering the Member’s particular circumstances and to support the Panel to ensure that the Member’s position was fairly presented, as well as in the interests of hearing efficiency, the Panel ordered the appointment of Amicus.

On May 27, 2024, Amicus joined the hearing where the Panel heard submissions on the scope of Amicus’s participation in the proceeding as well as how the motion for a stated case would proceed. An official order appointing Amicus and outlining the scope of the role was issued on July 12, 2024.

September - October 2024: Submissions on the Motion to State a Case

On September 20, 2024, the Panel heard oral submissions from the College and Amicus related to the motion for a stated case for contempt against the Member. During the hearing, the Member appeared on camera with a red substance on their neck and arms, purportedly blood. The Panel was unconvinced that the Member was experiencing an urgent medical event related to what appeared to be blood loss. The ‘blood’ patterns on camera appeared inconsistent with blood flow from a wound, the colour was paler, and, in some places, the ‘blood’ appeared rubbed away from their arms without evidence of a visible wound. The Panel also considered that the event could be an attempt by the Member to disrupt the proceedings as their regular pattern of requesting adjournments had cast doubt on the Member’s willingness to have the proceedings continue. Accordingly, the Panel denied the adjournment request.

After a brief recess, College Counsel and Amicus continued with oral submissions on the motion. It was not clear if the Member heard the submissions. They had remained as a ‘participant’ in the video conference but were off camera, which was not uncommon, and made no oral submissions. At the conclusion of the day and to ensure the Member was aware of the submissions, the Panel arranged with the Court Reporter to provide the Member with a transcript of the hearing. The Member was also offered the opportunity to provide responding submissions either in writing before the next hearing date or orally on that date. The transcript from the September 20 hearing was delivered to the Member on September 28, 2024.

On October 3, 2024, the hearing resumed but the Panel was informed by Amicus that the Member had been in hospital, and that they were now home but unable to proceed for medical reasons. The Member had also not joined the hearing. The Panel denied the request to adjourn due to the late notice and the lack of medical documentation, despite an appointment by the Member with their family doctor on the previous day. However, in the interest of hearing fairness and with the College and Amicus’s agreement, the Panel made an order setting a schedule for written reply to submissions from the College related to the motion for the stated case for contempt and written submissions on supplemental affidavits. A 24-hour extension was later provided to the Member after a request for more time to respond to the request to submit supplemental affidavits. Independent Legal Counsel’s (“ILC”) advice was also to be provided to the parties in writing.

Unforeseen circumstances resulted in an adjournment of the hearing dates scheduled for October 10-11, 2024. On October 15, 2024, Amicus and the Member provided medical documentation to support an adjournment request for the remaining hearing dates. On October 21, 2024, the Panel granted the adjournment request and released written reasons shortly thereafter which also included provisions for resumption of the hearing at the first available date after April 1, 2025.

The Motion

The Panel received submissions and evidence from the College as well as from Amicus/the Member on this motion, including the following:

The College’s Evidence and Submissions

• Motion Record dated September 16, 2024, including the affidavits of:
  • Carolyn Gora affirmed May 15, 2024, July 18, 2024, and August 16, 2024;
  • Shani Rowell affirmed April 2, 2024, and August 12, 2024;
  • Sue Machado affirmed April 2, 2024;
  • Matthew Toth affirmed June 5, 2024; and
  • Kimberly Agnew affirmed May 24, 2024;
  • Transcript of the cross-examination of Carolyn Gora on her affidavits conducted on August 23, 2024, and filed September 16, 2024;
• Transcript of the cross-examination of Matthew Toth on his affidavit conducted on August 29, 2024, and filed September 16, 2024;
• Transcript of the cross-examination of Susan Machado on her affidavit conducted on August 30, 2024, and filed September 16, 2024;
• Transcript of the cross-examination of Kim Agnew on her affidavit conducted on August 30, 2024, and filed September 16, 2024;
• Transcript of the cross-examination of Shani Rowell on her affidavits conducted on September 3, 2024, and filed September 19, 2024;
• Supplementary affidavit of Carolyn Gora affirmed September 18, 2024, and filed September 19, 2024;
• Factum dated September 16, 2024, including references to case law;
• Compendium dated September 19, 2024;
• Aide Memoire dated September 19, 2024, cataloguing the phone numbers and email addresses used to contact its expected witnesses at issue in this motion;
• Reply factum dated October 4, 2024;
• Request for the Panel to accept a supplementary affidavit affirmed by Kimberly Agnew on October 2, 2024, and Hawe Affidavit affirmed on October 2, 2024;
• Submissions dated October 8, 2024, in response to the Member’s request for an extension to make submissions; and
• Submissions in response to request from the Member and Amicus to accept the affidavit of Bethany Scott Affidavit received October 21, 2024.

Amicus’s Submissions and Evidence

• The Factum of Amicus on the motion to state a case for contempt filed September 13, 2024, including references to case law;
• Responding motion record dated September 13, 2024, containing the affidavit of Dr. Arash Zohoor sworn July 2, 2024;
• Compendium dated September 17, 2024, including excerpts of the transcript of the March 18, 2024, hearing date.
• Reply submissions to the College’s request to file the Supplementary Agnew Affidavit dated October 4, 2024.
• Reply submissions related to the supplementary affidavits received October 8, 2024.

The Member’s Submissions and Evidence

• On October 7, 2024, the Panel received an extension request for written submissions on the motion by the Member which were due October 8, 2024.
• On October 8, 2024, the Panel received the submission of a medical note from hospital admission and alleged dates for medical testing that conflicted with the booked dates for the hearing.
• The Panel did not receive any submissions or evidence from the Member relevant to this motion.

ILC Advice

On October 4, 2024, the Panel received the advice of ILC. Following the submission of this advice, neither the College, Amicus nor the Member had any comments or submissions on it.

Admission of Supplementary Affidavits

Following the conclusion of the parties’ arguments on the motion, the Panel received requests to admit supplementary affidavits from the College and Amicus/the Member.

The Panel was advised by ILC to consider the Rules of Civil Procedure which govern the late admission into evidence of the affidavits. The Rules provide that the parties are not entitled to file new affidavits after cross-examinations have concluded without leave of the Panel. The leading case is Johnson v. North American Palladium Ltd., 2018 ONSC 4496, which notes that the moving party "has a high threshold to meet" and leave must only be granted "sparingly" (para. 17). The Court highlighted in Johnson that:

It is intrinsically unfair for a plaintiff, applicant, or moving party to add new evidence or new argument after the defendant, respondent, or responding party has completed his or her evidence and argument. Reply evidence is admissible only where the defendant, respondent, or responding party has raised a new matter that could not be reasonably anticipated by the plaintiff, applicant, or moving party or where the reply evidence is in response to an issue enlarged by the opponent in a manner that could not have been reasonably foreseen.

The Panel considered the submissions from both parties and whether to admit the supplementary affidavits from both parties, one party or none of the parties. The College sought to introduce supplementary evidence to demonstrate an alleged continuation of the pattern of the Member’s conduct and the Member’s supplementary affidavit was in response to the supplementary evidence that the College sought to rely on.

To admit some but not all the supplementary affidavits would be prejudicial to the party whose affidavit(s) were not admitted, so this option was dismissed by the Panel.

To admit all the supplementary affidavits and submissions would cause undue delay due to the additional time that would be required for cross-examination of witnesses and would therefore impact the hearing fairness for all parties including the witnesses, the general public, the Member and the College. The Panel discussed that to further delay the process would not be in the interest of the witnesses as it could allow more time for the Member to potentially continue to contact them, which is exactly why the stated case is being sought. A further delay could also threaten the confidence of the public in the Discipline Committee to manage its hearing process. Specifically, there is a risk of the public perceiving that the alleged harassment of witnesses is not being taken seriously by the Panel. Delaying the process would also prejudice the College and Member as both parties have expressed concern about the delay in the proceedings to address the original allegations. For these reasons, avoiding further delay was a high priority as a delay would prejudice the public interest and regulatory process. The prejudice of further delay outweighed the necessity of the supplementary evidence.

Therefore, upon considering the evidence contained in the supplementary affidavits and the submissions of the College and Amicus, the Panel declined to admit the supplementary affidavits.

The Law

SPPA

Section 13 of the SPPA gives the Panel the power to state a case of contempt to the Divisional Court, following which the Divisional Court then inquiries into and decides the matter. The Panel recognized that referring a stated case for contempt is a serious matter and the power to do so should be used sparingly.

In deciding whether to make this order, the Panel considered the language of s. 13 of the SPPA which provides three bases upon which a motion to state a case to the Divisional Court for contempt can be made:

Where any person without lawful excuse,

(a) after being summoned as a witness fails to attend the hearing; or

(b) attends the hearing as a witness but refuses to participate, refuses to take the affirmation or to produce any document of thing in their power or control required by the tribunal to be produced by them or refuses to answer any question to which the tribunal legally requires them to answer; or

(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court.

The College is not alleging that the Member engaged in the first two types of conduct under s. 13. The Panel determined that s. 13(c) of the SPPA was applicable in this case: i.e. did the Member do something that would be contempt of the Panel if the Panel was a court?

Disobeying or failing to comply with an order of a court can be contempt of court and therefore disobeying or failing to comply with an order of the Panel is something that potentially, had it been done in a court of law, could be contempt. It is therefore captured by s. 13(c) of the SPPA.

The Panel considered the two-step test on a motion for a stated case for contempt under s. 13 of the SPPA:

1. At the first stage, the College must establish on a balance of probabilities a prima facie case that the Member engaged in contempt.

2. If a prima facie case is established, the Panel then determines whether it is appropriate to exercise its discretion to state a case for contempt to the Divisional Court.

Step 1: Prima Facie Case

In determining whether the College has demonstrated that there is a prima facie case for contempt as against the Member, the Panel considered the elements of contempt and the evidence provided by the parties.

The Panel understood that its task was not to determine whether the Member engaged in contempt. Rather, the Panel had to determine whether there is some evidence before it which, if accepted by the Divisional Court, could allow it to find beyond a reasonable doubt that the Member is guilty of contempt. If referred, the Divisional Court would then weigh the evidence and make findings as to whether the Member was guilty beyond a reasonable doubt of contempt.

The test for civil contempt was set out by the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79:

1. the order alleged to have been breached must state clearly and unequivocally what should and should not be done;

2. the party alleged to have breached the order must have had actual knowledge of it; and

3. the party allegedly in breach must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

To find a prima facie case of contempt, other tribunals in Ontario have determined that the conduct at issue must be calculated, serious and interfere with proceedings and /or be deliberately and willfully done. Therefore, the Panel focused on whether the Member intended to engage in the conduct alleged to be acts of contempt.

Step 2: Panel Discretion

In deciding whether to exercise its discretion to state a case for contempt once a prima facie case is established, the Panel must determine whether doing so is in the public interest and holds a regulatory purpose including public protection. In this regard, the Panel will have to consider whether the breach was serious enough and had enough of an impact on this tribunal's proceedings. If so, exercising the Panel’s discretion to state a case to the Divisional Court would be appropriate in the circumstances.

Evidence and Analysis

To meet the test for a prima facie case of civil contempt, the Panel considered whether there was some evidence for all three elements of the test, namely: whether the order issued to the Member was clear, whether the Member had actual knowledge of the order and whether the breach was intentional.

The Order was clear, and the Member had knowledge of it

The Panel issued two orders directing the Member to refrain from contacting witnesses. On March 5, 2024, the Panel issued a verbal order and on March 15, 2024, the same order was issued to the Member in writing. The Member was present at the hearing when the Panel made its March 5, 2024, order. The Member received the Panel’s written March 15, 2024, order at the email address which she had used and which she continued to subsequently use for this hearing. As well, on March 18, 2024, the Panel verbally reiterated its earlier orders to the Member.

The Panel reviewed evidence of alleged witness contact after the March 5, 2024, verbal order not to contact witnesses and the March 15, 2024, written order for the same that was issued to the Member. The Panel considered evidence from the Member’s family physician that the Member had cognitive dysfunction and a weakly developed working memory. The family physician suggested that emailing documents to the Member may assist the Member. Submissions from Amicus also suggested the Member may not have fully understood the March 5, 2024, verbal order.

The Panel would ordinarily expect the March 5, 2024, verbal order to be binding and enforceable. However, out of an abundance of caution and in the interest of hearing fairness and considering the gravity of the motion in front of the Panel, the Panel only considered the March 15, 2024, written order that was sent to the Member via email to determine if an order was breached. The Panel’s written order clearly indicated that the Member was not to contact the College’s witnesses. The Member had also demonstrated literacy and proficiency in their written emails, so the Panel was confident that the written order could be understood by the Member. For instance, during the March 5, 2024, hearing on the record, the Member acknowledged making an error in judgment regarding an email written to one of the witnesses. The acknowledgement of an error in judgement by the Member indicates the Member was capable of understanding that contacting witnesses was inappropriate.

Evidence of Breach of the Order

The Panel considered the evidence contained in the affidavits as well as the Aide Memorie tool provided by the College to review all the phone numbers and emails that were allegedly used after March 15, 2024, to contact anticipated witnesses for the College. The Panel reviewed the phone numbers and emails and considered whether they could be linked directly or indirectly to the Member. The Panel was not able to find sufficient evidence based on a balance of probabilities to connect the Member to most of the phone numbers and emails for communications that took place after March 15, 2024. However, the Panel did find that the communication after March 15, 2024, originating from the phone numbers 647-[ ], 807-[ ], 365-[ ] as well as the emails [Address 1], [Address 2], and [Address 3] had, based on the balance of probabilities, more likely than not originated from the Member either directly or indirectly.

The 647-[ ] number included calls on March 25, 28, 29 and April 4, 2024, to expected witnesses for the College, the College’s Counsel and to a former staff member of the College who was an investigator assigned to the Member’s case. In particular, the call made on March 29, 2024, to the College’s investigator provides a strong link between this phone number and the Member. The contact details for the investigator would have been known only to the Member and those involved in the College investigation. Neither the name of the investigator nor their contact details were public knowledge. Therefore, based on a balance of probabilities, it is more likely than not that communication from 647-[ ] to the witnesses from this number on March 25 and April 4 also originated from the Member either directly or indirectly.

On July 26, 2024, the 807-[ ] number contacted expected witnesses for the College, and the context of the message included references to the Member’s previous employer as well as to a talking glucometer which the Member had referred to in an email with the College’s Counsel, as well as on the record in the March 5th hearing. Therefore, based on a balance of probabilities, it is more likely than not that this communication originated from the Member either directly or indirectly.

On July 27, 2024, the 365-[ ] number contacted the same expected witnesses for the College as the 807-[ ] number and contained the same references and contained the same meme and similar verbatim language. These similarities provide a strong link to the Member. Also, the text included additional references to screen captures from a YouTube live stream, such as that used by the College for hearings. The message on July 27, 2024, alluded to the images being distributed of the witnesses providing their expected testimony. The Panel noted a similarity to the experience of the College’s Counsel in this case, whose photograph in the form of a screen capture of the hearings livestream was distributed in an email from [Address 2] to several people involved in this case on March 22, 2024. Therefore, based on a balance of probabilities, it is more likely than not that this communication originated from the Member either directly or indirectly.

On July 31, 2024, the email [Address 1] was used to communicate with the Panel’s ILC, the College’s Counsel and an expected witness for the College. The content of the messages referred to fictitious characters named “Bethy”, a physician with the same name as the College’s investigator who was assigned to the Member’s case and who had previously received a phone communication from the 647-[ ] number described above. It also referenced a racial slur that was used in an email from the address [Address 4], an address Amicus acknowledges belongs to the Member and was purportedly authored by the Member and their spouse. Reference is also made to the “Wettlaufer” case which the Member has referenced in communication several times as well as on the record during the March 5, 2024, hearing. It is unlikely that an email to ILC and College Counsel with direct references to matters heard in this hearing would be made by anyone other than the Member. This email was also used to contact an expected witness for the College on March 16, 2024. Therefore, based on the balance of probabilities, it is more likely than not that the communication on March 16, 2024, to the witness originated from the Member directly or indirectly.

On March 21 and March 22, 2024, the email [Address 2] communicated screen shots from the YouTube livestream of the College’s Counsel on this case during the hearing. It was sent to the College’s Counsel, an expected witness for the College and to the Panel's ILC who was included in pre-hearings for this case. The Panel notes that the identity of pre-hearing participants is not public knowledge and would be limited to those in the meeting or involved in scheduling it. Based on a balance of probabilities, it is more likely than not that this communication originated from the Member either directly or indirectly.

On May 23, 2024, the email [Address 3] communicated with an expected witness for the College. The subject matter referred to content in private documents that only the Member and Amicus would have had access to arising from the College’s disclosure in this case. Therefore, based on a balance of probabilities, it is more likely than not that this communication originated from the Member either directly or indirectly.

Based on the evidence outlined above, the Panel found that based on a balance of probabilities, it is more likely than not that these communications originated from the Member directly or indirectly. The Member did not provide submissions and in the review of the submissions by Amicus, no viable argument for another source for this communication was provided. Amicus suggested the Member’s husband could have been responsible for the emails and /or phone contact but the Panel found that it was unlikely, based on a balance of probabilities, that the Member’s husband would have initiated this contact independently without the Member’s knowledge and support.

The Panel was not able to find any evidence of a connection based on a balance of probabilities to identify the Member as the likely author, within any other communication from the phone numbers or email addresses within submissions provided by the College.

Analysis

With the guidance of the established law, and in consideration of the review of evidence above, the Panel determined that there is a prima facie case of contempt, in that there is some evidence for each element of the test which if accepted, could permit the Divisional Court to find beyond a reasonable doubt that the Member committed contempt. As set out below, the Panel has determined that it is appropriate to exercise its discretion to refer the stated case to the Divisional Court. In making this determination, the Panel considered submissions from all parties and from Amicus.

The March 15, 2024, order was clear, and the Member was expected to understand and follow the order. The Panel also found three emails and three phone numbers, linked directly or indirectly to the Member that were involved in contacting witnesses after the Panel issued an order for the Member not to do so.

The March 15 written order that was delivered to the Member via email was clear in stating that the Member was not to contact the College’s witnesses. The Member has shown sufficient literary proficiency with their written emails to indicate they would understand the written order.

The Member’s family physician suggested the Member may not understand the consequences of disobeying the order, despite the Chair verbally cautioning the Member about the consequences on March 18, 2024. The order on March 15, 2024, was not new. The Panel had issued endorsements and warned the Member numerous times since 2022 to not contact witnesses. They had sufficient time to process and consider why witness contact was not allowed.

Unless a finding of incapacity has been made, participants in a hearing process are expected to respect the judicial or quasi-judicial process such as a regulatory body Discipline Committee and follow orders accordingly. Unless there is an order otherwise, the Panel concludes that the Member has the capacity to participate, follow the proceedings and to comply with any issued orders. The Panel also considered that not understanding the consequences of the order was not the same as the intention to disregard it and the Panel saw intention in the Member’s conduct. The Panel found the March 15, 2024, order was clear and that the Member had knowledge of it and was expected to follow it.

Amicus submitted that the Panel should not exercise its discretion to state a case for contempt to the Divisional Court based on the Member’s health and medical documentation provided by their family doctor. Amicus submitted that the Member had several chronic health conditions, some poorly managed that impacted their day-to-day abilities, as well as elements of cognitive dysfunction, including evidence of focal deficits that may be related to a head injury in February 2021. While the Panel has sympathy for the mental health challenges the Member is experiencing, the Panel was not satisfied that the Member’s mental health conditions rendered their conduct unintentional. The Member is therefore accountable for their actions.

The Panel also found the Member’s actions in contacting witnesses after March 15, 2024, were calculated, willful and deliberate. The Member used multiple texts and emails to reach witnesses on numerous dates, they took screen shots of the proceedings while the hearing was in progress, showing intent as the screen shots were used in later emails and they made calls late at night or in the early morning. The Panel interpreted this as an attempt to harass and/or intimidate the witnesses. Even once the Panel provided the support of Amicus, the Member continued to contact one of the witnesses in late July 2024. In contacting witnesses, the Member showed disrespect for the proceedings and the order issued on March 15, 2024. The Member’s actions also impacted the proceedings as the Panel had to suspend the hearing on the allegations to address the witness contact issues.

Considering that the Member’s alleged misconduct took place in 2015-2016, the delay caused by witness contact is concerning. The Panel has read emails from witnesses who have expressed distress related to the continued contact from the Member. The impact to them personally as well as their ongoing willingness to participate in the hearing is a concern. The Panel also considered the interest of the public and that to not state a case of contempt despite evidence supporting it would send the wrong message. The Panel wants to assure the public that allegations of professional misconduct are taken seriously, and the Discipline Committee can appropriately manage its proceedings to conduct a fair and expeditious hearing, including issues of witness harassment or intimidation.

In reviewing the submissions and evidence on the motion by the College as well as by Amicus, the Panel accepts the College’s submission that the Member should be held accountable for their actions and therefore the Panel should use their discretion in this matter to state a case for contempt to the Divisional Court. The Panel notes, [ ], that the Member has many physical and mental health conditions that do impact the way in which they are able to interact with information in this hearing. However, the Panel was not satisfied that the medical information provided demonstrates that the Member cannot be held responsible for making their own choices nor have they been deemed to lack the capacity to understand the consequences.

Conclusion

The Notice of Hearing outlines the allegations against the Member that the Panel began this proceeding to adjudicate. These allegations stem from conduct dating as far back as October 2015. Following numerous delays and difficulties with the hearing process, the Panel took the steps of issuing orders to the Member, as well as the extraordinary step of assigning Amicus to help support the Panel by ensuring that the Member’s position was fairly presented. Despite these efforts by the Panel, it has found on the balance of probabilities that the Member has been contacting expected witnesses despite a clear order from the Panel to not do so.

The Panel concluded that some but not all of sources of communication at issue were more likely than not authored by the Member directly or indirectly. The Panel found the Member’s contact with witnesses was intentional and in breach of the order.

Accordingly, the Panel finds that there is a prima facie case for contempt by the Member and that it is appropriate for the Panel to exercise its discretion to state a case for contempt to the Divisional Court.

By doing so, the Panel hopes to convey that it is committed to a hearing process that is fair and takes place in an orderly manner.

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

Appendix A

The allegations as against the Member as set out in the Notice of Hearing are as follows:

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, and defined in subsection 1(37) of Ontario Regulation 799/93, in that, while registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse, 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, in that:

a. [Withdrawn];

b. between on or about October 9, 2015, and October 15, 2015, you phoned and sent text messages to a co-worker/manager, K.A., repeatedly and/or made harassing and/or threatening comments to her;

c. on or about October 2015, you told representative(s) of your former employer, Maple Manor Nursing Home, that you intended to report that Maple Manor Nursing Home had engaged in fraud, for the purpose of obtaining a financial settlement;

d. on or about March 2016 to July 2016, you slapped and/or threatened M.T. with a knife;

e. on or about March 2016 to July 2016, you stole M.T.’s insulin pump and/or charged M.T. money to retrieve his belongings from your residence;

f. in respect of a psychoeducational assessment report (“report”) dated August 7, 2015, and prepared by Dr. C.C. regarding M.T.,

i. on or about March 2016 to July 2016, you obtained and took a copy of the report, without M.T.’s consent;

ii. on or about March 2016 to July 2016, you discussed the contents of the report with M.T.’s mother, without M.T.’s consent;

iii. on or about July 27, 2016, you faxed a copy of the report to M.T.’s health providers, without his consent;

iv. on or about July 27, 2016, you impersonated a health professional, Dr. C.C., when you faxed a copy of the report and included commentary about the report to M.T.’s health providers; and/or

v. on or about July 27, 2016, you made derogatory and inappropriate comments in a fax sent to M.T.’s health providers; and/or

g. on or about October 24, 2018, you authored and sent an email to M.T.’s health provider which you represented as being authored by M.T.;

h. on or about January 8, 2020, you submitted an employment application and a resume to Assistance Services Group, A Sykes Company (“ASG”) that contained false information about your employment history and clinical experience, and omitted relevant information about your employment history;

i. between on or about March 10, 2020, to May 13, 2020, you accessed the AGS email accounts of seven of your co-workers/former co-workers, approximately 139 times, without their knowledge or consent and without authorization;

j. on or about April 21, 2020, you accessed ASG’s systems and listened telehealth calls involving approximately eight patients, without authorization and/or accessed the personal health information of these patients without a clinical purpose for doing so and/or without authorization;

k. on or about May 13, 2020, you falsely represented that you were an investigator employed by CNO in a call with a AGS employee and/or you did so for the purpose of obtaining information about a former co-worker;

l. on or about May 14 and 15, 2020, you accessed ASG’s systems and listened telehealth calls involving approximately nine patients without authorization and/or accessed the personal health information of these patients without a clinical purpose for doing so and/or without authorization;

m. on or about May 14 and 15, 2020, you made an audio recording of a telehealth call while accessing ASG’s systems without authorization and/or you sent the audio recording of this telehealth call to AGS by voicemail;

n. on or about May 20 and 21, 2020, you called ASG’s telehealth line on approximately three occasions for purposes other than to obtain medical advice and/or reported medical concerns that you were not experiencing;

o. on or about May 21, 2020, you called a ASG co-worker, S.R. using the spoofed phone number of a second co-worker, K.M., and impersonated a female in distress;

p. between on or about May 21, 2020, and July 27, 2020, you contacted former ASG co-workers by phone, text and voicemail repeatedly in a harassing and/or threatening manner and/or made harassing and/or threatening comments to your co-workers; and/or

q. you failed to report to CNO that you were criminally charged with the following offences:

i. on or about the 17th day of June 2016, at the City of Brantford in the said region you did commit assault on L.T., contrary to Section 266 of the Criminal Code;

ii. on or about the 17th day of June 2016, at the City of Brantford in the said region you did commit assault on M.T. Senior, contrary to Section 266 of the Criminal Code;

iii. on or about the 17th day of June 2016, at the City of Brantford in the said region you did commit assault on M.T. Junior, contrary to Section 266 of the Criminal Code;

iv. on or about the 17th day of June 2016, at the City of Brantford in the said region you without lawful excuse did enter the dwelling house of M.T. in Brantford, with intent to commit an indictable offence therein, contrary to Section 349(1) of the Criminal Code;

v. on or about the 17th day of June, 2016, at the City of Brantford in the said region you did commit mischief by willfully urinating, without legal justification or excuse and without color of right, on property, to wit: the floor of Brantford General Hospital, the value of which did not exceed five thousand dollars, contrary to Section 430(4) of the Criminal Code;

vi. between the 21st day of December in the year 2018 and the 22nd day of December in the year 2018, at the City of Brantford in the said Region, you did with intent to mislead, unlawfully caused a police officer, to enter upon an investigation by reporting false bomb threats, thereby committing public mischief, contrary to Section 140(1)(c) of the Criminal Code;

vii. between the 21st day of December in the year 2018 and the 22nd day of December in the year 2018 at the City of Brantford in the said Region, did, without lawful excuse and with intent to harass the Brantford General Hospital by making repeated telephone calls, to wit approximately three hundred phone calls to the Brantford General Hospital, contrary to Section 372(3) of the Criminal Code;

viii. on or about the 28th day of March in the year 2020 at the Town of Tillsonburg in the said Region, knowing that K.A. is harassed or being reckless as to whether K.A. is harassed, you did without lawful authority repeatedly communicate with K.A., either directly or indirectly thereby causing K.A. to reasonably, in all circumstances, fear for her safety contrary to Section 264(2)(b) of the Criminal Code;

ix. between the 28th day of March in the year 2020 and the 29th day of March in the year 2020, at the Town of Tillsonburg in the said Region, you did commit public mischief in that with intent to mislead she caused a peace officer for the Ontario Provincial Police to enter upon an investigation by reporting that the offence of assault had been committed when it had not been committed contrary to Section 140(1)(c) of the Criminal Code; and/or

x. on or about the 29th day of March in the year 2020 at the Town of Tillsonburg in the said Region, knowing that victim is harassed or being reckless as to whether victim is harassed did without lawful authority repeatedly communicate with victim, either directly or indirectly thereby causing victim to reasonably, in all circumstances, fear for her safety contrary to Section 264(2)(b) of the Criminal Code; and/or;

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, and defined in subsection 1(15) of Ontario Regulation 799/93, in that, while registered with the College of Nurses of Ontario as a Registered Nurse, you signed or issued, in your professional capacity, a document that you knew or ought to have known contained a false or misleading statement, in that

a. you submitted an employment application and a resume to Assistance Services Group, A Sykes Company that contained false information about your employment history and clinical experience, and omitted relevant information about your employment history; and/or

3. 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, and defined in subsection 1(18) of Ontario Regulation 799/93, in that, while registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94, in that you failed to report charges relating to any offence to the Executive Director of CNO, and in particular, that you were charged with the following offences:

a. on or about the 17th day of June 2016, at the City of Brantford in the said region you did commit assault on L.T., contrary to Section 266 of the Criminal Code;

b. on or about the 17th day of June 2016, at the City of Brantford in the said region you did commit assault on M.T. Senior, contrary to Section 266 of the Criminal Code;

c. on or about the 17th day of June 2016, at the City of Brantford in the said region you did commit assault on M.T. Junior, contrary to Section 266 of the Criminal Code;

d. on or about the 17th day of June 2016, at the City of Brantford in the said region you without lawful excuse did enter the dwelling house of M.T. in Brantford, with intent to commit an indictable offence therein, contrary to Section 349(1) of the Criminal Code;

e. on or about the 17th day of June, 2016, at the City of Brantford in the said region you did commit mischief by willfully urinating, without legal justification or excuse and without color of right, on property, to wit: the floor of Brantford General Hospital, the value of which did not exceed five thousand dollars, contrary to Section 430(4) of the Criminal Code;

f. between the 21st day of December in the year 2018 and the 22nd day of December in the year 2018, at the City of Brantford in the said Region, you did with intent to mislead, unlawfully caused a police officer, to enter upon an investigation by reporting false bomb threats, thereby committing public mischief, contrary to Section 140(1)(c) of the Criminal Code;

g. between the 21st day of December in the year 2018 and the 22nd day of December in the year 2018 at the City of Brantford in the said Region, did, without lawful excuse and with intent to harass the Brantford General Hospital by making repeated telephone calls, to wit approximately three hundred phone calls to the Brantford General Hospital, contrary to Section 372(3) of the Criminal Code;

h. on or about the 28th day of March in the year 2020 at the Town of Tillsonburg in the said Region, knowing that K.A. is harassed or being reckless as to whether K.A. is harassed, you did without lawful authority repeatedly communicate with K.A., either directly or indirectly thereby causing K.A. to reasonably, in all circumstances, fear for her safety contrary to Section 264(2)(b) of the Criminal Code;

i. between the 28th day of March in the year 2020 and the 29th day of March in the year 2020, at the Town of Tillsonburg in the said Region, you did commit public mischief in that with intent to mislead she caused a peace officer for the Ontario Provincial Police to enter upon an investigation by reporting that the offence of assault had been committed when it had not been committed contrary to Section 140(1)(c) of the Criminal Code; and/or

j. on or about the 29th day of March in the year 2020 at the Town of Tillsonburg in the said Region, knowing that victim is harassed or being reckless as to whether victim is harassed did without lawful authority repeatedly communicate with victim, either directly or indirectly thereby causing victim to reasonably, in all circumstances, fear for her safety contrary to Section 264(2)(b) of the Criminal Code.