COURT FILE NO.: 342/03

DATE: 20040511

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MATLOW AND JENNINGS JJ.

B E T W E E N:

SUSAN GEORGE

Appellant

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COLLEGE OF NURSES OF ONTARIO

Respondent

David P. Lees, for the Appellant

Caroline Zayid, for the Respondent

HEARD: May 11, 2004

O’DRISCOLL J.: (Orally)

1The appellant, a registered practical nurse, appeals to this Court under s.70(1) of the Health Professions Procedural Code, Schedule 2 to The Regulated Health Professions Act, 1991, S.O. 1991, c.18. Under s.70(2) of the Code, an appeal lies to this court on questions of law or fact or both.

2On April 22, 2003, the Discipline Committee of the College of Nurses of Ontario found that Ms. George had committed an act of professional misconduct. There is no appeal from the penalty imposed by the Committee. The operative portion of the Discipline Committee’s decision and reasons is found at p. 6:

“Having considered the evidence and the onus and standard of proof, the panel finds that the Member committed an act of professional misconduct as alleged in paragraph 3 of the Amended Notice of Hearing. The panel makes a finding 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 paragraph 1.37 of the Ontario Regulation 799/93 in that on or about June 7, 2000, while employed as a Personal Service Provider and/or Personal Support Worker at the Riverdale Hospital and while holding the designation of RPN, the Member engaged in conduct or performed an act or acts relevant to the practice of nursing that having regard to all of the circumstances would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, in that the Member yelled at a cognitively impaired client, R.G. in a rude and loud voice, commanding her to clean up her own faeces at which time she also held R.G. by the hand and/or back of the neck in an effort to force her to clean up her own faeces.”

3The basic issue before the Discipline Committee was one of credibility. The Committee, for valid reasons, based on the evidence, stated that they preferred the evidence of Ms. Olivia Lewis and Ms. Vern Leach to that of Ms. George, who denied doing what Ms. Lewis and Ms. Leach testified that they saw and heard her do.

4In Fletcher v. Manitoba Public Insurance Company 1990 59 (SCC), [1990] 3 S.C.R. 191, 203, Wilson J. said:

“These authorities, in my view, make crystal clear the test for determining when it is appropriate for an appellate court to depart from a trial judge’s findings of fact: appellate courts should only interfere where the trial judge has made a “palpable and overriding error which affected his assessment of the facts”. The very structure of our judicial system requires as deference to the trier of fact. Substantial resources are allocated to the process of adducing evidence at first instance and we entrust the crucial task of sorting through and weighing that evidence to the person best placed to accomplish it. As this Court and the House of Lords have repeatedly emphasized, it is the trial judge who is in the best position to assess the credibility of testimony. An appellate court should not depart from the trial judge’s conclusions concerning the evidence “merely on the result of their own comparisons and criticisms of the witnesses.”

5In a decision of the Court of Appeal for Ontario, the same principle was stated in Re College of Physicians and Surgeons of Ontario and K. (1987), 1987 4256 (ON CA), 59 O.R. (2d) 1, 19-20. In giving the judgment of the Court, Dubin J.A. said:

“In the absence of any errors disclosed in the reasons of the discipline committee, findings of credibility ought not to be interfered with on such an appeal. It is only in the rarest cases that an appellate court can disturb findings of credibility. In my respectful opinion, there is no basis for doing so in this case.

With respect, I think the appropriate approach for the Divisional Court on such an appeal is properly stated in Re Singh and College of Nurses of Ontario (1981), 1981 1717 (ON SC), 33 O.R. (2d) 92, 123 D.L.R. (3d) 713, where Mr. Justice Reid made the following comment at p. 93 O.R., p. 714 D.L.R.:

Thus, I think that as a general rule we should not attempt to weigh the evidence upon which various conclusions were clearly based by the Committee where no error is suggested other than that the Committee should have reached a different conclusion. Where there was no evidence, or where the evidence was contrary to the conclusion, that would, of course, be a different matter.”

6Ms. George brought a motion for an adjournment and to re-open the hearing after the Committee had made it findings of professional misconduct. On the second day of the hearing, October 18, 2002, at the close of the College’s case, the appellant’s counsel, Mr. H. K. Juriansz requested an adjournment on the basis that he had had some difficulties contacting and/or serving summonses on the two witnesses in addition to the appellant that he planned to call on behalf of the defence; the College did not oppose the request. The panel adjourned the hearing to January 6, 2003, a date agreed upon by both parties. This gave the defence approximately two and a half months to summons its witnesses. The hearing resumed and was completed on January 6, 2003. The defence called the appellant as its only witness. There was no further request for an adjournment nor was there any objection by the appellant who was present to the closing of the case on her behalf without the calling of additional evidence. We know that the decision was released on April 22, 2003.

7The Committee sought the legal opinion of independent legal counsel and at p. 8 of their reasons we find the following:

“On re-convening the hearing, Independent Legal Counsel, by teleconference, informed the parties what advice she had given to the panel. In summary, it was Independent Legal Counsel’s advice that re-opening the liability phase of a hearing should only occur in extraordinary circumstances, such as the discovery of evidence that could not have been discovered earlier.

The panel dismissed the motion to re-open this hearing.”

8The basic issue in these proceedings was one of credibility. Unfortunately for Ms. George, she was found not to be a credible witness. We see no error of mixed fact and law or of law or of fact on this record. The appeal is dismissed.

9I have endorsed the back of the Appeal Book and Compendium as follows: “This appeal is dismissed for the oral reasons of even date which have been recorded. Costs of this appeal are

fixed in the sum of $3,000.00, payable forthwith by the appellant to the respondent.”

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O’DRISCOLL J.

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MATLOW J.

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JENNINGS J.

Date of Reasons for Judgment: May 11, 2004

Date of Release: June 23, 2004

COURT FILE NO.: 342/03

DATE: 20040511

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MATLOW AND JENNINGS JJ.

B E T W E E N:

SUSAN GEORGE

Appellant

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