COURT FILE NO.: DC-04-00323-00

DATE: 20060119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

GREER, LAX AND DAMBROT JJ.

B E T W E E N:

DONALDA JOHNSON

Appellant

• and -

COLLEGE OF NURSES OF ONTARIO

Respondent

The Appellant in person

Alan L. Bromstein, for the Respondent

Heard at Toronto: December 20-21, 2005

REASONS FOR JUDGMENT

Dambrot J.

1This is an appeal by Donalda Johnson from the decision of a panel of the of the College of Nurses of Ontario pronounced on February 8, 2004 and released on May 4, 2004. The panel found that by reason of a mental condition or disorder, the appellant was incapacitated within the meaning of s.1(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, and deemed by s.4 of that Act to be a part of the Nursing Act, and suspended the Appellant's Certificate of Registration until such time as she provides evidence satisfactory to a panel of the Committee that her health is such as to permit her to return to the practice of nursing.

2It is the essential position of the appellant that the panel made errors of fact: (1) in reaching its conclusion that she was incapacitated, because it relied on a psychiatric assessment that was based on incorrect information; and (2) in finding the witnesses who provided the incorrect information to be credible. According to the appellant, all of the individuals whose information was relied on by the psychiatrist, with one exception, lied, fabricated evidence, trumped up false allegations against her and otherwise provided him with information that was replete with errors.

BACKGROUND

3The Respondent is the governing body for the profession of nursing in Ontario. It carries out its objects pursuant to the Nursing Act, the Regulated Health Professions Act and the Health Professions Procedural Code. By virtue of s.3 of the Code, the College has a statutory duty to carry out its objects, which include the regulation of the profession of nursing and the governance of its members, in a manner that serves and protects the public interest.

4The profession of nursing is in essence self-governed inasmuch as a majority of the members of its governing board ("Council") are members of the profession. The Fitness to Practise Committee is a statutory committee of the College authorized to hold hearings into allegations of incapacity of its members. The Committee consists of ten persons, five of whom are nurses who were elected to serve on Council committees but who are not members of the Council, two nurses who are elected Council members and three members of Council who are appointed to the Council by the Lieutenant-Governor in Council. Fitness to Practise hearings are held before a panel of the Fitness to Practise Committee, of at least three persons, one of whom must be a person appointed to the Council by the Lieutenant-Governor in Council.

5In early February 2002, the College received a letter from the Chief Nursing Officer, Sunnybrook and Women's College Health Sciences Centre, concerning the appellant. As a result of that letter, pursuant to s.58 of the Code, the Executive Committee of the College appointed a Board of Inquiry to inquire into whether the appellant was incapacitated. In due course, the Board of Inquiry exercised its power pursuant to s.59(2) of the Code to have a member assessed by a health professional specified by the Board of Inquiry where the Board of Inquiry believes on reasonable and probable grounds that the member may be incapacitated. The appellant was assessed by Dr. Joel Sadavoy, Psychiatrist-in-Chief at Mount Sinai Hospital in Toronto and a professor of psychiatry at the University of Toronto, on May 20, 2003. Dr. Sadavoy provided the College with his report on May 22, 2003.

6As a result of the inquiry conducted by the Board of Inquiry, including the report of Dr. Sadavoy, the College referred the appellant to a panel of the Fitness to Practise Committee to determine whether the Appellant was incapacitated as defined by subsection 1(1) of the Code. By virtue of that provision"incapacitated" means that the nurse is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the nurse no longer be permitted to practice or that the nurse's practice be restricted."

7Dr. Sadavoy's assessment was placed in evidence before the panel that determined that the appellant was incapacitated.

THE HEARING

8The Fitness to Practise hearing was held before a panel of the Fitness to Practise Committee composed of four nurses and one public councillor, who acted as Chair. The hearing commenced on October 9, 2003, and continued from time to time for eight days, the last day being January 26, 2004. The panel reconvened on February 6, 2004 to deliver its decision on the issue of incapacity, and to hear submissions respecting the action that it should take as a result of its finding. Upon hearing the decision, the appellant left the hearing room and did not participate further in the proceeding.

9The principal evidence adduced by the College at the hearing was the report of Dr. Sadavoy, who was produced as a witness for cross-examination. Dr. Sadavoy testified that the appellant suffers from a significant clinical disturbance characterized by obsessive-compulsive disorder features together with a poorly differentiated personality disorder that seriously impairs her insight and judgment.

10The College also adduced several other documents in evidence and called two other witnesses. The appellant called a number of other witnesses, and filed numerous documents.

THE DECISION

11In reaching its decision, the panel of the Committee concluded that the appellant had a mental condition or disorder involving the following features:

• her ability to make sound decisions is interfered with by her lack of insight and impaired judgment
• she exhibits an inability to use critical thinking skills in order to be flexible in a variety of situations
• she shows an inability to disengage, or to be redirected when communicating with others
• her judgment was impaired in her choice of responses in her efforts to advocate for clients
• she is unable to follow directions, particularly when the directions differ from her personal agenda
• she demonstrated, during the hearing, an inability to see, hear, recall or interpret evidence and directions

12The panel found that in summary, the appellant's mental condition manifested an extreme rigidity in her thought patterns, including an inability to see the point of view of others or to make clinical judgments considering alternate appropriate approaches to care for clients in diverse settings and contexts and displayed a tendency towards paranoid thoughts about former employers, colleagues and the College. The panel concluded that this condition required the suspension of the appellant's Certificate of Registration until such time as she provides evidence satisfactory to a panel of the Committee that her health is such as to permit her to return to the practice of nursing, because her lack of insight and flexibility may otherwise compromise her patients' safety, comfort and well-being.

13The panel based its decision on: the evidence of witnesses who interacted with the appellant in relation to her nursing, the evidence of Dr. Sadavoy and its own observation of the appellant's behaviour throughout the hearing.

14The panel demonstrated that it understood the position of the appellant that all of the individuals whose information was relied on by the psychiatrist, with one exception, lied, fabricated evidence, trumped up false allegations against her and otherwise provided him with information that was replete with errors. The panel concluded, however, that for the most part the witnesses were credible and that the information that they provided was reliable. There was evidence before the panel to support the findings of credibility and the findings of fact that they made. We are unable to say that any of these findings are unreasonable.

15That is not to say that there were no inaccuracies in the information provided to Dr. Sadavoy. The panel was aware of this, but it concluded, nonetheless, that the opinion of Dr. Sadavoy was reliable. The panel was entitled to reach this conclusion. In this regard, it is important to note that there remained significant information provided to Dr. Sadavoy and significant evidence before the panel that the panel accepted that substantiated the opinion of Dr. Sadavoy. It is also worth noting that Dr. Sadavoy, in his report, cautioned himself against drawing too many conclusions from the data he received because it was sketchy and he did not have all of the details necessary to come to firmer conclusions. He indicated, however, that he relied on an array of information in reaching his diagnostic conclusions, not just single descriptions of behaviour. His overall opinion was based on the totality of the appellant's clinical presentation, the manner in which she conveyed her history, the specific clinical examination as well as the brief of information provided to him by the College. The panel, in turn, accepted that this was the basis of Dr. Sadavoy's opinion, and found him to be a credible and reliable witness.

THE STANDARD OF REVIEW

16Although this Court has broad power to review a decision of a panel of the Fitness to Practise Committee of the College of Nurses of Ontario, it has long refrained from retrying such decisions, and, in particular, has disturbed findings of credibility in only the rarest of cases¹. While the wisdom of past administrative law jurisprudence in reference to professional colleges need not be discarded, the determination of the standard of review that should be applied in a case such as this must be undertaken on the basis of the analytical framework set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 778 (SCC), [1998] 1 S.C.R. 982, re-stated in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19 and recently reaffirmed in Zenner v. Prince Edward Island College of Optometrists, 2005 SCC 77. The factors that must be considered when deciding this issue are: (a) the presence or absence of a privative clause or statutory right of appeal; (b) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (c) the purposes of the legislation and the provision in particular; and (d) the nature of the question.

17In this case, with regard to the first factor, there is no privative clause and there is a statutory right of appeal. The existence of a privative clause, of course, militates in favour of a more deferential posture on review. The absence of a privative clause, however, does not necessarily imply a high standard of scrutiny, where other factors dictate a lower standard. It is necessary to consider the other factors.

18With regard to the second factor, it is apparent that the panel, which included four nurses among its members, is versed in matters relevant to the standards of practice and the implications of deviations from those standards for the well-being of patients, while this Court is not. The panel has greater expertise then this Court in determining whether, as a result of the appellant's mental condition, it is desirable in the interest of the public that the appellant no longer be permitted to practice or that her practice be restricted. This implies that a lower standard of scrutiny is appropriate.

19With respect to the third factor, the purpose of the legislative scheme is to regulate the profession of nursing and the governance of its members, in a manner that serves and protects the public interest. The College has a statutory duty to carry out its objects, which include the regulation of the profession of nursing and the governance of its members, in a manner that serves and protects the public interest. The Fitness to Practise Committee is a statutory committee of the College authorized to hold hearings into allegations of incapacity of its members. The duties and responsibilities assigned to the College and the Committee demand a high level of deference.

20With respect to the fourth factor, the question to be determined by the panel depended almost entirely on factual findings bearing on the question whether the mental condition or disorder suffered by the appellant makes it desirable in the interest of the public that the nurse no longer be permitted to practice or that the nurse's practice be restricted. This suggests a high level of deference. The discrete issue of adjudicating a claim of incapacity by reason of a mental condition or disorder, however, is quasi-judicial in nature, and therefore militates against deference. In the result, neither great deference nor exacting scrutiny is called for.

21Balancing these factors, I am satisfied that the appropriate standard of review is reasonableness simpliciter.

APPLICATION OF THE STANDARD OF REVIEW

22I have already noted the panel's conclusion that, for the most part, the witnesses were credible and the information that they provided was reliable, and in particular that Dr. Sadavoy was credible and his opinion was reliable. There was evidence before the panel to support these findings of credibility and the findings of fact that they made. We are unable to say that any of these findings are unreasonable.

23As for the decision made by the panel, we are of the view that there was cogent evidence that the appellant was incapacitated. The panel's reasons disclose that it properly considered the totality of the evidence in reaching its conclusion. Their decision meets the test of reasonableness, and there is no basis for us to interfere. Similarly, there is no basis for us to interfere with the suspension ordered by the panel, or the terms of that suspension.

DISPOSITION

24The appeal is dismissed. Since the respondent does not ask for costs, we make no order respecting costs.

DAMBROT J.

I agree. ___________________________

GREER J.

I agree. ___________________________

Footnotes

1. 1See Re Singh and College of Nurses of Ontario (1981), 1981 1717 (ON SC), 33 O.R. (2d) 92 at 93 (Div. Ct.), approved in Re College of Physicians and Surgeons of Ontario and K (1987), 1987 4256 (ON CA), 59 O.R. (2d) 1 at 19-20 (C.A.)