College of Nurses of Ontario v. Yolanda Agustin, 2025 ONCNO 114859

Discipline Committee of the College of Nurses of Ontario

Panel: Sherry Szucsko-Bedard, RN Chairperson Lynda Carpenter Public Member Jeffrey Ko, RN Member Sandra Larmour Public Member Ahamad Mohammed, RPN Member

Between:

College of Nurses of Ontario (Douglas Montgomery for College of Nurses of Ontario)

• and -

Yolanda Agustin, Registration No. 0202580 (Maria L. Capulong for Yolanda Agustin)

Alex Smith, Independent Legal Counsel

Heard: February 4, 2025 and June 12, 2025, via videoconference

Decision and Reasons

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) commencing on February 4, 2025.

The Allegations

The allegations against Yolanda Agustin (the “Member”) as stated in the Notice of Hearing dated September 30, 2024 are as follows:

IT IS ALLEGED THAT:

1You have committed an act of professional misconduct as provided by subsection 51(1)(b.0.1) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, in that, while registered as a Registered Nurse with the College of Nurses, you failed to cooperate with the Quality Assurance Committee or any assessor appointed by that committee, and in particular, you failed to participate after being selected by the Quality Assurance Committee for Quality Assurance assessment in 2021 and/or failed to complete all Quality Assurance assessment requirements in or around 2021 and/or 2022.

2You 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 registered as a Registered Nurse with the College of Nurses, 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 you failed to participate after being selected by the Quality Assurance Committee for Quality Assurance assessment in 2021 and/or failed to complete all Quality Assurance assessment requirements in or around 2021 and/or 2022.

Member’s Plea

The Member admitted the allegations set out in paragraphs #1 and #2 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.

Agreed Statement of Facts

College Counsel and the Member’s Counsel advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited, as follows:

THE MEMBER

1. Yolanda Agustin (the “Member”) registered with the College of Nurses of Ontario (“CNO”) as a Registered Nurse (“RN”) on February 26, 2002.

2. The Member has been employed at Scarborough Health Network – Birchmount Site since 2003.

PRIOR HISTORY

3. The Member has no prior disciplinary findings with CNO.

CNO’s QUALITY ASSURANCE PROGRAM

4. CNO is required by the Health Professions Procedural Code to establish a quality assurance program. CNO’s Quality Assurance Committee (“QA Committee”) is responsible for administering CNO’s Quality Assurance Program (the “QA Program”).

5. The QA Program is a process where nurses are required to reflect on their practice, identify gaps in their knowledge and take action to fill those gaps. Participation in the QA Program is a professional requirement, and nurses must declare they engage in QA Program activities every year when renewing their CNO membership.

6. Each year, CNO randomly selects nurses for Quality Assurance assessment (“QA Assessment”). QA Assessment may involve completion of a set of learning modules focused on the standards of practice and nursing accountability, submission of a learning plan to be reviewed by a CNO-trained Quality Assurance Peer Coach, and other activities.

7. Nurses selected for QA Assessment are informed of their selection by letter sent to their email on file with CNO. Members of CNO are required to ensure that their contact information on-file at CNO is correct and checked on a regular basis.

8. If a nurse chooses not to participate in QA Assessment, the QA Committee may refer the nurse to Inquires, Complaints and Reports Committee if it believes the lack of participation may amount to professional misconduct.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

The Member Failed to Participate in QA Assessment

9. On September 13, 2021, the Member was selected for QA Assessment. The Member was required to submit their 2021 learning plan and the Code of Conduct Practice Activity (the “QA Assessment activities”) to CNO by October 20, 2021.

10. The Member was informed of her selection for QA Assessment by a letter sent to her email address on-file with CNO.

11. The QA Program team sent reminder e-mails to the Member on September 20 and October 13, 2021.

12. The Member did not submit the QA Assessment activities by the deadline.

13. After the October 2021 deadline had passed, a QA Program staff member called the Member and left a voicemail for the Member on October 25, 2021. The Member returned the call and left a voicemail for the QA Program team on November 8, 2021. A QA Program staff member returned the Member’s call on November 9, 2021, and left a voicemail for the Member. The Member did not return this call or make any further calls to CNO regarding the QA Assessment activities.

14. The QA Program team sent another reminder e-mail to the Member on November 10, 2021.

15. On December 14, 2021, the QA Committee provided the Member with a second opportunity to complete the QA Assessment activities by January 17, 2022. The Member was informed of this by letter dated December 16, 2022, but did not complete the QA Assessment activities by the January 17, 2022, deadline.

16. On February 17, 2022, the QA Committee provided the Member with a third opportunity to complete the QA Assessment activities by March 17, 2022. The Member was informed of this by letter dated February 17, 2022.

17. On February 22, 2022, and Advanced Practice Consultant at CNO called and left the Member a voicemail and then followed up with the Member via email to remind her to complete the QA Assessment activities. The Member did not return the Advanced Practice Consultant’s call or complete the QA Assessment activities by the March 17, 2022, deadline.

18. After the March 17, 2022, deadline, the Advanced Practice Consultant reminded the Member by email dated March 21, 2022, to check her email on file with CNO and informed her that she was required to submit documents to CNO that were passed due. The Member did not respond to this email.

19. The letters sent to the Member regarding her selection to participate in the QA Assessment and her outstanding QA Assessment activities included a warning that failure to complete the QA Assessment activities could result in a referral from the QA Committee to the Inquires, Complaints and Reports Committee (“ICRC”) and/or a direction to the Executive Director to impose terms, conditions or limitations on the Member’s certificate.

20. On May 3, 2022, the Member was informed of the QA Committee’s intention to refer them to the ICRC for lack of participation in QA Assessment. The Member was also given until May 17, 2022, to submit her outstanding QA Assessment activities or make written submissions to the QA Committee regarding the decision to refer to the ICRC.

21. The Member did not submit her outstanding QA Assessment activities by the deadline of May 17, 2022.

22. The Member acknowledges that she had a professional obligation to participate in and complete the QA Assessment activities and respond to communications from CNO.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

23. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 1 of the Notice of Hearing in that she failed to cooperate with the QA Committee or any assessor appointed by that Committee, and in particular she failed to participate after being selected by the QA Committee for QA Assessment in 2021 and failed to complete all QA Assessment requirements in 2021 and 2022, as described in paragraphs 4-22 above.

24. The Member admits that she committed the acts of professional misconduct as alleged in paragraph 2 of the Notice of Hearing, and in particular her conduct was unprofessional, as described in paragraphs 4-22 above.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities based upon clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #1 and #2 of the Notice of Hearing. With respect to allegation #2, the Panel finds that the Member’s conduct would reasonably be regarded by members of the profession to be unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #1 in the Notice of Hearing is supported by paragraphs 4 - 23 in the Agreed Statement of Facts. The Member admitted that, after being selected for a Quality Assurance assessment (“QA Assessment”), she failed to complete the required QA Assessment activities despite multiple attempts by the College to engage her participation. The Member admitted that she committed the acts of professional misconduct as alleged by failing to cooperate on multiple occasions with the Quality Assurance Committee (“QA Committee”). The Member’s conduct undermines public confidence in the regulatory system and demonstrates a disregard for her professional accountability. The Panel found that the Member’s failure to comply with a lawful requirement from a statutory committee amounted to a clear breach of her professional obligations.

Allegation #2 in the Notice of Hearing is supported by paragraphs 4 - 22 and 24 in the Agreed Statement of Facts. The Panel finds that the Member’s failure to comply with QA Assessment requirements over an extended period was relevant to the practice of nursing and would reasonably be regarded by members of the profession to be unprofessional. In particular, the Member ignored a formal direction from the College’s statutory committee, despite being provided multiple opportunities to comply. This repeated non-compliance calls into question the Member’s understanding of and commitment to the self-regulatory responsibilities inherent to nursing practice.

Penalty

College Counsel and the Member’s Counsel advised that a Joint Submission on Order had been agreed upon and requested that the Panel make the following order:

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for two 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. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a) The Member will attend two meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date that this Order become 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,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. 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. 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;

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

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;

vi. If the Member does not comply with any one or more of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on the Member’s certificate of registration;

b) The Member shall successfully complete Quality Assurance Program requirements by the dates and deadlines that will be communicated by the Quality Assurance Committee.

4. All documents delivered by the Member to CNO, the Expert will be delivered by verifiable method, the proof of which the Member will retain.

College Submissions on Penalty

College Counsel submitted that the proposed penalty meets the goals of professional discipline, including specific and general deterrence, remediation and rehabilitation, and public protection. College Counsel noted the seriousness of the Member’s conduct and emphasized the importance of maintaining the integrity of the QA process as a cornerstone of professional accountability.

The aggravating factors included the Member’s repeated non-compliance with a statutory direction from the College and her disregard for the regulatory process, despite multiple follow-ups. This raised serious concerns about the Member’s willingness to uphold her professional responsibilities.

The mitigating factors included that the Member cooperated with the College by entering into an Agreed Statement of Facts and a Joint Submission on Order with the College. The Member also has no prior disciplinary history with the College.

College Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:

CNO v. Rubinas (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member failed to participate in the Quality Assurance program despite multiple opportunities to comply. The panel found that the member’s conduct would reasonably be regarded by members of the profession to be unprofessional. The penalty included an oral reprimand, a two-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and participation in the next Quality Assurance program cycle.

CNO v. Davis (Discipline Committee, 2020): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order The member failed to participate in the Quality Assurance program. The penalty included an oral reprimand, a two-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and participation in the next Quality Assurance program cycle. The panel emphasized the need to ensure regulatory accountability.

CNO v. Lualkwane (Discipline Committee, 2024): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member failed to participate in the Quality Assurance program. The penalty included an oral reprimand, a two-month suspension of the member’s certificate of registration, two meetings with a Regulatory Expert and completion of the Quality Assurance program requirements. The panel found that the proposed penalty reflected the seriousness of Quality Assurance non-compliance while accounting for the member’s cooperation and remediation.

College Counsel submitted that the proposed penalty is consistent with previous decisions of this Discipline Committee and promotes public confidence in the College’s ability to regulate the profession.

Member’s Submissions on Penalty

The Member’s Counsel agreed with the College’s submissions and confirmed that the Member accepts full responsibility for her actions. The terms of the Joint Submission on Order reflect the Member’s commitment to remediation and professional accountability. The Member’s Counsel noted that the Member understands the importance of compliance with QA requirements and is prepared to meet all obligations going forward.

Penalty Decision

The Panel accepted the Joint Submission on Order and made the order requested.

Reasons for Penalty Decision

There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Panel concluded that the proposed penalty is not contrary to the public interest and does not bring the administration of justice into disrepute.

The Panel concluded that the proposed penalty is reasonable and in the public interest. It promotes public confidence in the ability of the College to regulate nurses.

The Panel finds that the proposed penalty satisfies the penalty goals of specific and general deterrence, rehabilitation and remediation, and public protection.

The proposed penalty provides for general deterrence through the two-month suspension of the Member’s certificate of registration, which sends a strong message to the profession that failure to engage in the QA process will result in serious regulatory consequences. It upholds the expectation that all nurses will comply with statutory requirements designed to ensure continued competence.

The proposed penalty provides for specific deterrence through the oral reprimand, the two-month suspension of the Member’s certificate of registration and imposing terms designed to directly address the misconduct. This will signal to the Member that participating in the QA Program is a requirement. The Member will be required to participate in the QA Program and to complete education with a Regulatory Expert, all of which promote accountability and help ensure that the behavior is not repeated.

The proposed penalty provides for remediation and rehabilitation through the two meetings with a Regulatory Expert, which includes structured learning and reflection, and through the Member’s participation in the QA Program. These measures are intended to support the Member in regaining her professional footing and understanding her obligations going forward.

Overall, the public is protected by ensuring that the Member is subject to regulatory oversight before re-engaging fully in practice. The QA Program exists to ensure high-quality, competent care, and the Member’s referral to this program helps restore public confidence in her readiness to practise safely and ethically.

The Panel acknowledges that the Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility, which is a mitigating factor.

The penalty is in line with the range of what has been ordered in previous similar cases and appropriately balances public protection with opportunities for remediation.

I, Sherry Szucsko-Bedard, 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.