Court File No: 264/05

Date: 20071019

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

Re: SHANE ANTHONY DUVAL

Appellant

• and -

COLLEGE OF NURSES OF ONTARIO

Respondent

Before: CAPUTO, GANS and SWINTON, JJ.

Counsel: Robert K. Stephenson, for the Appellant

Caroline Zayid, for the Respondent

Heard at Toronto: October 1, 2007

By the Court

ENDORSEMENT

[1] This is an appeal and cross-appeal from a decision of and the imposition of a penalty by a panel of the Discipline Committee of the College of Nurses (“Panel”) in respect of certain findings of professional misconduct made against the Appellant. The events giving rise to the decision arose out of an improper relationship between the Appellant and a former patient of the hospital at which the Appellant was a psychiatric nurse, albeit for a very short time after his graduation from college.

[2] The Appellant argued that the Panel breached a duty of fairness to him by :

a) not providing sufficient reasons for its decision;

b) “cherry-picking” the evidence only in support of a finding of misconduct and not paying sufficient or appropriate attention to the evidence as a whole, and the inconsistencies in the evidence, which were supportive of the Appellant’s position.

[3] It was the College’s position in its cross- appeal that the Panel erred in not finding that the Appellant had had a sexual relationship with his former patient because it required the College to prove those allegations “with absolute certainty”, thereby applying the wrong burden of proof to this set of charges. Put otherwise, it was the College’s position that the Panel failed to apply the well established burden of proof in respect of the subject allegations on clear and cogent evidence, but only on a balance of probabilities (see Re Bernstein and the College of Physicians and Surgeons (1977), 1977 1072 (ON SC), 15 O.R. (2d) 447 (Div. Ct.)).

[4] The standard of review of a decision of a disciplinary body of a self-regulating profession is one of ‘reasonableness’. (See Kalin v. Ontario College Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.)). In this respect, a

…decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable…

(Ryan v. The Law Society of New Brunswick, 2003 SCC 20, [2003] 1 S.C.R. 247 at para. 55).

[5] We note, however, that where a tribunal’s decision is attacked on the basis of a denial of natural justice, it is not necessary for the Court to engage in an assessment of the standard of review (London (City) v. Ayerswood Development Corp., 2002 3225 (ON CA), [2002] O.J. No. 4859 (C.A.) at para. 10). That being said, it is well established that a duty of fairness is a flexible duty that may vary depending on the circumstances. (See Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No 419 (Div. Ct.) at para. 16 and seq.)

Decision on the Merits

[6] We are satisfied that the Panel’s reasons are sufficient, because they adequately disclose why the Appellant was found guilty and permit appellate review of those findings.

[7] We are also satisfied that the Panel made no error in law in assessing credibility. We are of the opinion that there was sufficient cogent and credible evidence to support the Panel’s conclusion that while the Appellant may not have engaged in a sexual intercourse or fellatio with his former patient, his conduct of kissing, hugging and holding hands with her and sleeping with her, albeit fully clothed, constituted a sexual, romantic type of relationship, which amounted to a violation of the established standards in respect of a therapeutic nurse/client relationship and thereby crossed accepted barriers. Put otherwise, we are of the opinion that the conclusion in this regard was reasonable. We are also of the opinion that the Panel’s conclusion about the romantic nature of the relationship was, as well, reasonable and supported in the evidence that the Panel found credible and reliable.

[8] In so far as the cross-appeal is concerned, we do have concerns about the standard of proof of “absolute certainty” that the Panel seems to have applied in respect of the allegation of a sexual relationship We make that observation even though the Reasons for Decision do reference the Bernstein standard. The Panel was, however, live to the correct standard of proof, which it apparently applied in coming to its earlier decision to support the above referenced finding of misconduct. That being said, we are satisfied on the record before the Panel, it could reasonably conclude that proof of sexual misconduct had not been made out on the evidence, applying the Bernstein test, and the decision on that charge was therefore reasonable in the circumstances.

Penalty

[9] We accept the College’s position that the Panel’s decision as to the appropriate penalty is one which demands significant deference. That proposition has recently been reaffirmed by the Court of Appeal in Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321 at para. 105:

The issue of the appropriate penalty for infractions within a profession or industry is one that is uniquely within the experience, expertise and discretion of the relevant disciplinary tribunal and is therefore subject to a high degree of deference. The penalty imposed by the Tribunal, nevertheless, is subject to a reasonableness standard on review. The Tribunal’s reasons, taken as a whole, must stand up to a somewhat probing examination.

[10] The Panel ordered the following penalty: an oral reprimand, an 18 month suspension of the Appellant’s Certificate of Registration, conditions and limitations on his return to practice for 24 months thereafter, including a restriction from engaging in mental health and psychiatric nursing, and additional requirements to work with an expert in the field of nurse-client therapeutic relationships before returning to mental health or psychiatric nursing following the 24 month period.

[11] We are of the view that the Panel was correct in reminding itself that before imposing penalty, it was necessary to insure and consider certain principles of ‘sentencing’, including the protection of the public, general and specific deterrence, and the need to promote a sense of responsibility in the Appellant for his misconduct. However, we are of the opinion that the Panel in arriving at a decision was obliged to insure that the penalty imposed was reasonable having regard to the circumstances of the offender, including his age, past and present conduct, experience and other similar such personal circumstances. In addition, we are also of the view that in so far as it was practicable, the Panel should have had regard to past decisions of the Discipline Committee in similar circumstances in an effort to place the instant case within a range of previously imposed penalties for comparable misconduct.

[12] We are of the opinion that the Panel in imposing a suspension of 18 months meted out a penalty that was beyond the limits of reasonableness in the circumstances of this first-time, young offender, considering the findings of misconduct and having regard to prior penalty decisions of the College to which our attention was directed. While admittedly, most of these decisions arose in circumstances involving a plea of guilty and a joint submission of counsel on behalf of the member and the College, we are of the opinion that the proposed suspension of 18 months is excessive in the circumstances and hence unreasonable.

[13] Pursuant to s. 70(3) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, this court, on an appeal, has all the powers of the panel that dealt with the subject matter of the appeal. Therefore, we would set aside the 18 month suspension and substitute a suspension of six months.

[14] In addition, the further 24 month limitation imposed in respect of the Appellant’s ability to seek and obtain employment as mental health or psychiatric nurse, found at item 3(iii) on page 24 of the decision, is excessive in that it does not appear to accord with the conditions contained in the cases to which we have been directed. While the Panel was concerned to protect the public, it has adequately done so by the other conditions found in paragraph 3, as well as paragraph 4 of its decision, which restrict the Appellant’s re-entry into employment in a mental health or psychiatric facility at the expiration of the period of suspension. Given those conditions, the 24 month restriction on psychiatric nursing is excessive and unreasonable and it is set aside.

[15] The appeal as to penalty is allowed, and the 18 month period of suspension of the Certificate of Registration in paragraph 2 and the 24 month restriction in paragraph 3(iii) are set aside and a six month suspension is substituted in paragraph 2. The cross-appeal is dismissed.

[16] Counsel are in agreement, success having been divided, that there should be no order as to costs of this appeal.

Caputo J.

Gans J.

Swinton J.

Released: October , 2007