Court File No.: 653/04

Released: 20070503

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, SWINTON and M.G.J. QUIGLEY JJ.

B E T W E E N:

BARBARA TOMASZEWSKA, RN

Appellant

• and -

COLLEGE OF NURSES OF ONTARIO

Respondent

Marek Z. Tufman for the Appellant

Linda Rothstein and Robert A. Centa for the Respondent

HEARD at Toronto: April 5, 2007

SWINTON J.:

1The Appellant appeals, pursuant to s. 70(1) of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the Code”), from orders of the Discipline Committee of the College of Nurses of Ontario dated November 10, 2004 and December 1, 2004. The Committee found that she had committed acts of professional misconduct and ordered the revocation of her certificate of registration, payment of a fine of $15,000.00 and payment of costs of $51,474.95.

Background Facts

2In a Notice of Hearing issued September 27, 2004, the College of Nurses alleged that the Appellant had engaged in professional misconduct because she had become an attorney under a power of attorney for a 73-year old psychiatric patient to whom she had provided care; that she became executrix, trustee and beneficiary under the will of this individual; and that she had used her powers to enrich herself or her husband by approximately $240,000.00 between April 2000 and April 2001. The Notice of Hearing set the date of November 2, 2004 for a hearing to commence before the Discipline Committee of the College. The Appellant, acting on the advice of legal counsel, did not appear at the disciplinary hearing on that date.

3Prior to the day of the scheduled hearing, the Appellant’s counsel informed Discipline Counsel for the College that because the College had failed to provide timely disclosure of certain documents, he would not attend the hearing. He did not appear on November 2 to raise the issue of disclosure or seek an adjournment of the proceedings, despite a brief adjournment by the Discipline Committee that morning to allow Discipline Counsel to contact him.

4The Discipline Committee decided to proceed in the Appellant’s absence and held a hearing over the course of five days before making the following findings:

Having considered the evidence and the onus and standard of proof, the panel finds that the Member contravened and failed to meet a Standard of Practice of the Profession with respect to the following as alleged in paragraphs 1 a, b, c, of the Notice of Hearing:

• In particular, the Member became Power of Attorney for property for a patient, Ms. W.T. on or about February 14, 2000 and or February 21, 2001.

• The Member became executrix, trustee and beneficiary of the Last Will and Testament of a patient, Ms. W.T., on or about March 20, 2000.

• The Member made payments to herself and her husband or to her benefit from the account of patient, Ms. W.T., in the amount of approximately $240,000.00 during the period in or about April 2000 to April 2001.

The Committee further held that the member committed an act of professional misconduct relevant to the practice of nursing based on the same three grounds (Reasons, p. 10).

5The Committee determined that the Appellant’s certificate of registration should be revoked and that she should be required to pay a fine of $15,000.00 to the Minister of Finance because of the serious nature of the offence and the absence of any mitigating evidence. In particular, the Committee was concerned because the Appellant had exploited a very vulnerable client who was suffering from a serious psychiatric illness. The Committee concluded that the Appellant had abused her power as a nurse, because her relationship with the client had been built while the client was hospitalized. That relationship was later exploited by the Appellant (Reasons, p. 12). The Panel also ordered that costs be paid.

6In the view of the Committee, the penalty would protect the public interest and act as a general deterrent. At p. 13 of the Reasons, the Committee stated,

The nurse needs to know the requirements of and recognize her/his accountability for maintaining professional behaviour. It is the responsibility of the nurse to set and maintain the appropriate boundaries for the duration of the relationship regardless of the wishes of a client or the setting in which the relationship occurs. The intent of the nurse is not the factor in determining whether her/his act or behaviour is abusive or unprofessional.

According to the Standard of the Therapeutic Nurse-Client Relationship (Exhibit #29, Volume V, Tab. 1pg. 14), under Financial Issues; “the nurse must not take advantage of the power in the nurse/client relationship to engage in activities that could result in either monetary, personal or other material benefit, gain or profit to the nurse or monetary or personal loss to the client.” One of the points is the abuse of trusteeship, bank accounts, power of attorney or guardianship.” [sic]

7The Appellant appealed and, at the hearing before this Court, brought a motion to adduce fresh evidence.

The Fresh Evidence Motion

8The test for receipt of fresh evidence on appeal is well established. The moving party who seeks to adduce fresh evidence that addresses a factual issue must show:

(i) the evidence was not available at the time of the hearing by the exercise of due diligence;

(ii) it must be relevant to a potentially decisive issue at first instance;

(iii) it must be credible; and

(iv) it could, if believed and taken together with the rest of the evidence, reasonably be expected to have affected the initial decision (R. v. Perlett (2006), 2006 29983 (ON CA), 82 O.R. (3d) 89 (C.A.) at p. 123).

9The Appellant seeks to introduce three categories of documents: correspondence between her counsel and the College investigator in 2003; documents from a court application launched by the Public Guardian and Trustee in 2001 to determine the competency of W.T., the individual who granted the power of attorney; and disclosure documents that comprise letters between her counsel and Discipline Counsel between August and November 2, 2004.

10The motion to adduce fresh evidence is dismissed, as the Appellant has not met the due diligence test. The material that she seeks to introduce was available at the time of the hearing. While counsel for the Appellant submits that late disclosure effectively prevented him from using some of this material, nevertheless he had the material at the time of the hearing. If he felt that he was prevented from using it effectively, he should have appeared before the Discipline Committee and asked for an adjournment.

11The Court of Appeal in Perlett stated that the failure to exercise due diligence is not fatal in a case where the interests of justice require the admission of the fresh evidence (at p. 123). This is not a case where the interests of justice call for the admission of the fresh evidence, as the material could not be expected to influence the Discipline Committee’s decision. While the Appellant states that the material would show that she was not the primary nurse of W.T., that would not change the Committee’s decision, as there is uncontradicted evidence that the Appellant was in a nurse-patient relationship with W.T. The material relating to the court proceedings concerning W.T.’s competency are irrelevant, as the Court’s ruling did not address the issue before the Committee – whether the Appellant engaged in professional misconduct. Finally, the disclosure documents are irrelevant to whether the Appellant committed professional misconduct.

The Issues on the Appeal

12The Appellant raised four issues on this appeal:

1. Was the Appellant denied procedural fairness because of late disclosure?

2. Was there a denial of procedural fairness because of prosecutorial misconduct?

3. Did the Discipline Committee err in accepting banking documents and hospital records of W.T.?

4. Was the penalty unreasonable?

Issue No. 1: Was the Appellant denied procedural fairness because of late disclosure?

13The Appellant claims that she was denied procedural fairness because of late disclosure of some of the College’s documents. She submits that Discipline Counsel for the College should have disclosed her position with respect to late disclosure, and the Committee should have inquired more deeply into the matter of disclosure.

14The College submits that the Appellant waived any possible breaches of procedural fairness by failing to appear at the hearing. In Violette v. Dental Society (New Brunswick) (2004), 2004 NBCA 1, 10 Admin. L.R. (4th) 1, the New Brunswick Court of Appeal held that the Appellant, having made an informed decision not to participate in a disciplinary hearing, waived possible breaches of procedural fairness that could have been raised during the hearing (at para. 80). The Court noted, however, that waiver did not apply to jurisdictional defects, unless a party could reasonably have anticipated such defects at the time of the decision to abandon the hearing (at para. 78).

15I would not give effect to this ground of appeal. When the Appellant’s counsel did not appear for the hearing, the Committee granted a short adjournment to allow Discipline Counsel to contact him to determine whether he would appear. Had counsel appeared, he could have made known the Appellant’s position on disclosure and asked for an adjournment. He chose not to do so, and the Appellant cannot now complain that there was a denial of procedural fairness because her position was not put to the Committee as she would have liked. As this Court stated in Ontario Taxi Association, Local 1688 v. Windsor Airline Limousine Services Ltd. (1980), 1980 1897 (ON SC), 30 O.R. (2d) 732 at 739:

It has for some time been made plain in a number of decisions that one who chooses to leave on the ground that a tribunal is incompetent runs the risk of being foreclosed from any later complaint…

See, also, McGill v. Brantford (City) (1980), 1980 1741 (ON SC), 28 O.R. (2d) 721 (Div. Ct.) at paras. 53-56.

Issue No. 2: Was there a denial of procedural fairness because of prosecutorial misconduct?

16The Appellant submits there was prosecutorial misconduct because of the alleged failure of Discipline Counsel to put forward the substantive and procedural defences that her counsel would have made, if present.

17There is no merit to this submission. The Appellant has failed to show any impropriety in the conduct of Discipline Counsel. The latter had no obligation to make her argument for an adjournment on the basis of the timing of disclosure. Indeed, he was not in a position to do so, as he opposed the adjournment and took the position that disclosure was not late.

18Moreover, he had no obligation to lead evidence about the outcome of the competency hearing in the courts, as he took the position that the outcome was irrelevant. A reading of the expert evidence presented by the College and the submissions of Discipline Counsel makes it clear that the issue from the College’s perspective was the vulnerability of W.T. and the abuse of the nurse’s position, not the competency of W.T.

19In any event, the hypothetical given to the expert and drawn to the Discipline Committee’s attention by Discipline Counsel stated that the patient had been found competent in court proceedings.

Issue No. 3: Did the Discipline Committee err in accepting banking documents and hospital records of W.T.?

20The Appellant submits that W.T.’s banking records and hospital records could not be admitted in evidence without her consent.

21Section 33 of the Evidence Act, R.S.O. 1990, c. E.23 does not require consent to admission of bank records from the person to whom the documents pertain. Subsection 33(2) provides:

Subject to this section, a copy of an entry in a book or record kept in a bank is in any action to which the bank is not a party proof in the absence of evidence to the contrary of such entry and of the matters, transactions and accounts therein recorded.

That subsection governs the admissibility of copies of entries in books and records kept in financial institutions. Absent evidence to the contrary, admission of the copies of the entries is proof of the entry and the matters, transactions and accounts recorded. The requirements for admissibility of copies of bank records are set out in s. 33(3), and they do not include the consent of any individual.

22The Appellant also objects to the introduction of W.T.’s hospital records, relying on s. 35(9) of the Mental Health Act, R.S.0. 1990, c. M.7, which prevents disclosure of information in respect of a patient obtained in the course of assessing or treating the patient, or in the course of assisting in his or her treatment or assessment, or in the course of employment in a psychiatric facility except with the consent of the patient or the appropriate representative or a court order. The College submits that s. 35(4) applies, which permits disclosure of clinical records pursuant to a summons to the officer in charge of a psychiatric facility.

23We need not determine the interaction of the various subsections in s. 35 in order to dispose of this appeal. Assuming, without deciding, that the Appellant has standing to challenge the production of the records based upon W.T.’s rights under that Act, the Appellant is precluded from objecting to their admissibility because of her failure to attend the hearing. Having decided not to appear at the proceeding, she cannot now make objections with regard to the admissibility of evidence. By choosing not to attend, she has waived the right to object to the admissibility of these documents.

Issue No. 4: Was the penalty unreasonable?

24The penalty imposed by a disciplinary committee of a professional college is entitled to great deference (Mussani v. College of Physicians and Surgeons (Ontario) (2004), 2004 48653 (ON CA), 22 Admin. L. R. (4th) 53 (Ont. C.A.) at p. 85). A court reviewing the decision on penalty should intervene only if there has been an error in principle or the penalty is clearly unfit (Chuang v. Royal College of Dental Surgeons (Ontario), 2006 CarswellOnt 3489 (Div. Ct.) at para. 18.)

25The Appellant submits that the penalty of revocation and a fine was too severe, and that a reasonable penalty would be a suspension of 12 months. She also takes issue with the quantum of the costs awarded and the fine.

26In submissions to the Discipline Committee, Discipline Counsel stated that this was an appropriate case for a fine or an order for costs, given that the member had not turned up to defend the charge of professional misconduct, and she had put the College to the cost of proving the case. However, he further explained that the College was not seeking a fine or costs for fear that payment would come from W.T.’s funds, as the Appellant still had power of attorney (Transcript, pp. 60-61).

27The Discipline Committee has the authority to order a fine of not more than $35,000.00 (the Code, s. 51(2)5). It also has the authority to order a member who has been found to have committed professional misconduct or is found to be incompetent to pay the College’s legal costs and expenses, the costs and expenses of the investigation and/or the costs and expenses incurred in conducting the hearing (the Code, s. 53.1).

28The Committee gave detailed reasons to explain the penalty imposed, stressing the vulnerability of the patient, whom the Appellant met while nursing in a psychiatric facility. It found that the nurse had abused her power, characterizing the misconduct as serious in nature. There was no evidence of mitigating circumstances.

29It cannot be said that the penalty, including the fine and the award of costs, was unreasonable in the circumstances of this case.

Conclusion

30The appeal is dismissed. If the parties cannot agree on the costs of the appeal, the motion to adduce fresh evidence and the other motions, they may make written submissions within 30 days of the release of this decision.

Swinton J.

Lederman J.

M.G.J. Quigley J.