COURT FILE NO.: 549/07

DATE: 20080603

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CARNWATH, MOLLOY & LINHARES DE SOUSA JJ.

B E T W E E N:

BRENDA COTTON

Applicant

• and -

COLLEGE OF NURSES OF ONTARIO

Respondent

Kate Hughes & Jo-Anne Pickel, for the Applicant

Glynnis P. Burt, for the Respondent

HEARD: April 16, 2008

APPLICATION UNDER the Judicial Review Procedure Act,

R.S.O. 1990, c. J.1

CARNWATH J.:

1Brenda Cotton applies for judicial review of the order of the Board of Inquiry (“the Board”) of the College of Nurses of Ontario (“the College”), dated November 7, 2007. The Board’s order requires Ms. Cotton to submit to a medical examination to assess her capacity to practice as a nurse.

2The issue to be decided is whether the refusal of the Board of Inquiry to give reasons for its decision is a denial of natural justice to Ms. Cotton, such that the Board’s order must be quashed. We so find and quash the Board’s order.

BACKGROUND

Statutory Context

3The application follows an investigation by the College of Ms. Cotton, pursuant to the Regulated Health Professions Act (“the RHPA”) and the Regulated Health Procedural Code (“the Procedural Code” or “Code”), which is Schedule II to the RHPA.

4In Ontario, regulated health professions, including nursing, are governed by the RHPA and the Procedural Code. The College of Nurses of Ontario is the regulatory body which governs the nursing profession, pursuant to the RHPA, the Procedural Code and the Nursing Act.

5When the College becomes aware of an allegation related to a nurse’s practice, in general, that concern is dealt with through one of two streams: discipline or fitness to practice (incapacity). The incapacity stream is a non-disciplinary process by the College which is normally engaged when a member experiences health problems which may affect her or his practice.

6“Incapacitated” is defined in s. 1(1) of the Procedural Code as follows:

‘incapacitated’ means, in relation to a member, that the member is suffering from a physical or mental condition or disorder that makes it desirable in the interest of the public that the member’s practice be subject to terms, conditions or limitations, or that the member no longer be permitted to practice;

Health Professions Procedural Code, Schedule II of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, s. 1

7In cases where there is a health concern, the College may launch a health investigation, pursuant to s. 57 of Procedural Code. Section 57 of the Procedural Code states as follows:

If the Registrar believes that a member may be incapacitated, the Registrar shall make inquiries he or she considers appropriate and shall report the results of the inquiries to the Executive Committee.

Ibid, s. 57

8The Registrar then reports the results of her or his inquiry to the College’s Executive Committee, which has the authority to appoint a Board of Inquiry.

9The Board’s power to conduct inquiries into a member’s health is governed by s. 59 of the Procedural Code. Section 59(1) provides the Board with a broad power to “make inquiries it considers appropriate”. However, s. 59(2) restricts this power in the case of physical or mental examinations. A Board of Inquiry can order a member to submit to a medical examination only if it has reasonable and probable grounds to believe that the member is incapacitated.

10In those cases where there exist reasonable and probable grounds, a Board has the power to suspend a member’s certificate of registration if she does not submit to a medical examination:

If, after making inquiries, a board of inquiry has reasonable and probable grounds to believe that the member who is the subject of the inquiry is incapacitated, the board may require the member to submit to physical or mental examinations conducted or ordered by a health professional specified by the board and may, subject to section 63, make an order directing the Registrar to suspend the member’s certificate of registration until he or she submits to the examinations.

Ibid, s. 59(2)

11A Board of Inquiry reports to the Executive Committee of the College. The Executive Committee may refer the matter to a hearing of the Fitness to Practice Committee under s. 61 of the Procedural Code. The Fitness to Practice Committee has legislated powers under s. 69 of the Procedural Code. These include powers to revoke, suspend or impose specified terms, conditions or limitations on the member’s certificate after a hearing.

12The requirement that a Board of Inquiry have reasonable and probable grounds to believe that a member is incapacitated before ordering a medical examination was added when the RHPA was enacted in 1991. The requirement was not included in the RHPA’s predecessor statute, the Health Disciplines Act. The version of this section in the repealed statute stated as follows:

The board of inquiry shall make such inquiries as it considers appropriate and may require the member to submit to physical or mental examination by such qualified person as the board designates and if the member refuses or fails to submit to such examination the board may order that his licence be suspended until he complies.

Health Disciplines Act, R.S.O. 1980, c. 196, s. 62(3)

Factual Context

13Ms. Cotton has been a registered nurse since 1989 and for sixteen years worked at the Ottawa Hospital. On August 1, 2007, the College notified Ms. Cotton that it was conducting a health inquiry, pursuant to s. 57 of the Procedural Code. The College indicated it had received information from Ms. Cotton’s employer alleging that she had made a number of errors in the administration and documentation of narcotics. Based on this information, the College alleged that Ms. Cotton might be suffering from an addiction to narcotics.

14Attached to the August 1, 2007 letter to Ms. Cotton was a schedule purporting to document numerous discrepancies in Ms. Cotton’s handling of narcotic medications in the months of August and September 2006. The inconsistencies related to situations where the narcotics register showed a quantity of drugs signed out for a patient, but where the entries on that patient’s chart did not reflect that any or all of the drugs had been administered to the patient, and/or there was no indication on the patient’s chart that the medication was required, and/or there was no record of the drugs having been wasted or returned.

15On August 28, 2007, Ms. Cotton’s legal counsel made submissions to the Executive Committee in response to the allegations set out in the College’s August 1, 2007 letter. In support of her submissions denying the allegations against Ms. Cotton, she forwarded two medical reports: one from Dr. Andrée Côté, Ms. Cotton’s family doctor, and a second report from Dr. Mark Ujjainwalla, a family physician specializing in addiction medicine. Dr. Ujjainwalla was retained specifically to provide his independent expert opinion on whether Ms. Cotton was incapacitated within the meaning of the Procedural Code. Both Dr. Ujjainwalla and Ms. Cotton’s family doctor, Dr. Côté, provided medical opinions that Ms. Cotton was not incapacitated. In addition to the medical reports, Ms. Cotton’s counsel attached to her submissions copies of letters from three of Ms. Cotton’s colleagues indicating that they had not seen any inappropriate behaviour by Ms. Cotton and stating that there was a history of lax narcotic control procedures at the hospital.

16In response to Ms. Cotton’s submissions, the College advised that the Executive Committee intended to appoint a Board of Inquiry. The Executive Committee provided no reasons for its decision, although requested to do so by Ms. Cotton’s counsel.

The Board of Inquiry

17On September 21, 2007, the College advised Ms. Cotton that a Board of Inquiry had been appointed to inquire into whether she was incapacitated. She was further advised that the Board would be meeting on October 16, 2007 and if she wished to provide written information or submissions to the Board, she should file them before October 9, 2007.

18Ms. Cotton’s counsel filed a written submission to the Board on October 5, 2007 and referred the Board as well to its previous written submissions to the Executive Committee (which included the two medical opinions and the statements from three of Ms. Cotton’s nursing colleagues).

19The Board consisted of two nurses and one public member. One of the nurses is employed at an institution that specializes in the treatment of addictions; the other is a staff nurse in an acute care facility providing care to clients with mental health and/or addictive disorders. The Board met on October 16, 2007. The Board had before it all of the submissions provided by counsel on behalf of Ms. Cotton. The Board also had before it a report from an investigator employed by the College of Nurses summarizing interviews conducted with Ms. Cotton’s supervisor and various of her colleagues. The report indicated that some of Ms. Cotton’s co-workers had concerns regarding her narcotic administration practices; some described her as “hyper” and “overly excited”; and one commented that Ms. Cotton seemed to gain more energy as the night shift would go on, whereas most people would become more tired. The material before the Board included the chart provided by Ms. Cotton’s supervisor setting out the discrepancies between the narcotics register and what Ms. Cotton charted for her patients. There was also information with respect to several medication errors made by Ms. Cotton.

20After its October 16, 2007 meeting, the Board ordered Ms. Cotton to attend an appointment with Dr. Morrissette on November 1, 2007 for an examination of her health status. As it turned out, Dr. Morrissette had a conflict and the Board told Ms. Cotton the appointment would be re-scheduled with another physician. The Board issued a second order on November 7, 2007, requiring Ms. Cotton to attend an examination with Dr. Judson on November 28, 2007.

21Ms. Cotton’s counsel wrote the Board saying Ms. Cotton intended to seek judicial review of the Board’s order and requesting the Board to stay its order pending the disposition of the judicial review application. The Board denied her request to stay its order. Ms. Cotton’s motion to stay the Board’s order was heard by Greer J. on November 26, 2007. Greer J. granted Ms. Cotton’s motion and ordered the Board’s decision stayed.

22As part of this application for judicial review, counsel for Ms. Cotton requested a copy of the Board of Inquiry’s record of proceedings. The College refused to provide the record of proceedings or to file one with the Court. The College, however, did file a Responding Application Record in which was included an affidavit of the Board’s administrator attaching all of the material that was before the Board at its October 16, 2007 meeting.

The Form of Medical Examination

23A medical examination performed by a doctor specializing in addictions is extensive and includes the following assessments:

• A full social history: The nurse is required to disclose her family history, her educational background, and her vocational experience. She will be asked questions about past trauma, including childhood or adolescent abuse, marital and relationship history and breakdown, child custody disputes and bereavement;

• A full addiction history: The nurse will provide a full history of all substances used in her lifetime, including possible use of opiates, alcohol, marijuana and sedatives. She is required to provide information regarding any past treatment for addiction. Addiction doctors typically take a full psychiatric history, including past diagnoses of mental illnesses and any treatments for those illnesses. The nurse must disclose her family history (parents, siblings, grandparents, aunts, uncles, etc.) with respect to addiction and mental illness;

• A full legal history: The nurse will be asked to provide a full medical history, including specific details about allergies, medications, previous hospitalizations, past traumas, HIV and hepatitis results and previous major illnesses;

• A functional inquiry: The addiction doctor will perform a thorough functional inquiry of all major physiological systems, including the ear, nose and throat system; the cardiovascular system; the respiratory system; the gastro-intestinal system; the gyneco-uterine system; the endocrine system; the musculo-skeletal system; the neurological system; and skin;

• Laboratory test: The nurse will provide blood, urine and hair samples for analysis;

• Physical examination: The nurse will be asked to undergo a full physical examination, including a chest x-ray and electrocardiogram; and,

• Psychological testing: The nurse will be required to undergo a battery of psychological tests, including the SASSI test (Substance Abuse Subtle Screening Inventory), a screening questionnaire for identifying people with a high probability of having a substance dependence disorder; John Hopkins Drug Assessment; Short Michigan Alcoholism Screening Test and the Jung Depression Scale.

THE STANDARD OF REVIEW

24Following the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, both parties submit the appropriate standard of review is that of “reasonableness”. The reasonableness standard requires an inquiry into the “qualities that make a decision reasonable referring both to the process of articulating the reasons and to outcomes”. (Dunsmuir, supra, para. 47)

25When procedural fairness is called into play, it is not necessary for the Court to engage in an assessment of the standard of review. The question is whether the rules of procedural fairness have been adhered to. Recently, the Divisional Court considered the issue of procedural fairness in Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.):

[9] Every Tribunal is entitled to control its own procedure and will be accorded deference on matters requiring an exercise of discretion, such as matters of scheduling or adjournment requests. However, where there has been a breach of natural justice or procedural unfairness, it is not necessary to engage in an analysis of the appropriate standard of review. Decisions which do not comply with the rules of procedural fairness and natural justice cannot stand: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193; Gismondi v. Ontario (Human Rights Commission), 2003 21371 (ON SCDC), [2003] O.J. No. 419, 169 O.A.C. 62 (Div. Ct.).

The Motion to Strike Dr. Judson’s Affidavit

26In response to Ms. Cotton’s application for judicial review, the College filed the affidavit of Dr. Martyn Judson.

27At the opening of the hearing for judicial review, Ms. Cotton moved to strike the affidavit submitting that it contained evidence that was not before the Board of Inquiry when it made the order that was the subject of the application. Ms. Cotton submitted further that the affidavit was fresh evidence that the College sought to introduce after the application was commenced in order to bolster its legal argument that the Board of Inquiry’s decision was reasonable. She further submitted that the affidavit was opinion evidence that sought to offer an opinion on the ultimate issue that was before the Divisional Court to determine – whether the Board of Inquiry has reasonable and probable grounds for its order.

28Following submissions on Ms. Cotton’s motion, the panel granted the motion on the ground that the affidavit was fresh evidence sought after the application for judicial review was commenced. It was evidence that was not before the Board of Inquiry, whose decision is the subject of this judicial review. The circumstances of the case do not establish that this is one of the “rare” or “very exceptional cases” which would persuade this Court to admit the fresh evidence. (See: Re Keeprite Workers’ Independent Union et al. v. Keeprite Products Ltd. (1980), 1980 1877 (ON CA), 29 O.R. (2d) 513 at 521 (C.A.).

Ms. Cotton’s Right to Bodily Integrity and Medical Privacy

29Individuals have a legal right to bodily integrity and medical privacy. The right is protected through privacy legislation and through an extensive body of case law dealing with circumstances under which an individual can be compelled to submit to medical examinations and other intrusions on bodily integrity.

30In Ontario, several statutes and regulations safeguard the privacy of medical information to ensure that medical information is only disclosed in narrow circumstances. Medical privacy is secured through legislative requirements for consent and strict limitations on the collection, use and disclosure of personal health information:

Personal Health Information Protection Act, S.O. 2004, c. 3 – see ss. 18. 23-24, 29-35 (requirements for consent) and s. 36 (limits on the collection of personal health information)

Regulation under the Public Hospitals Act – Hospital Management, R.R.O. 1990, Reg. 965 – see s. 22 (limits on collection, use and disclosure of personal health information)

Regulation under the Medicine Act, 1991 – Professional Misconduct, Ont. Reg. 856/93 – see s. 1(1) para. 9 (requirement for consent) and para. 10 (limits on disclosure)

Regulation under the Nursing Act, 1991 – Professional Misconduct, Ont. Reg. 799/9 – see s. 1, para. 9 (requirement for consent) and para. 10 (limits on disclosure)

Mental Health Act, R.S.O. 1990, c. M.7 – see ss. 35 – 35.1 (limits on disclosure of personal health information)

31The Divisional Court emphasized the importance of protecting the privacy of an individual’s medical information in Ontario Nurses’ Assn. v. St. Joseph’s Health Centre. As the Court stated:

A psychiatric or psychological examination is a highly intrusive and sensitive procedure and should only be available to employers in cases where the necessity for it has been firmly established.

Ontario Nurses’ Assn. v. St. Joseph’s Health Centre (2005), 2005 24239 (ON SCDC), 76 O.R. (3d) 22 at para. 21 (Div. Ct.)

32Members of regulated health professions are entitled to these protections. As noted earlier in these reasons, the medical examination proposed for Ms. Cotton could involve intrusions into bodily and personal integrity. The intrusiveness of such an examination was recognized by Greer J. and formed one of the grounds for granting a stay of the Board’s order:

Thirdly, the [medical] examination itself, if one chooses to take it, is so intrusive that the Application should be heard first to determine the issue of whether there were reasonable and probable grounds for making the Order.

Cotton v. College of Nurses (unreported decision of Greer J., November 26, 2007) at p. 8

33It must be remembered that Ms. Cotton did not implicitly consent to any and all medical examinations ordered by the Board when she joined the nursing profession. Rather, she consented to be subject to the statutory requirements and standards applicable to her profession. The relevant statutory requirements noted above include the requirement that she submit to a medical examination only if the Board has reasonable and probable grounds to believe she is incapacitated. Absent those reasonable and probable grounds, the Board has no authority to order her to submit to a medical examination.

34It must also be remembered that the statutory scheme provides that should Ms. Cotton refuse to attend for the medical examination, the Executive Committee may suspend her licence. It is the combination of the power to order a medical examination coupled with the power to suspend the licence that requires this Court to examine the Board’s order in the context of procedural fairness.

The Duty of Procedural Fairness

35A duty of fairness applies to an investigating body which is “either going to give a decision affecting ‘the rights, interests, property, privileges or liberties of any person’ or is going to investigate and make a report that may result in a person being ‘subjected to pains or penalties … or in some such way adversely affected by the investigation and report’”.

Abel and Advisory Review Board (1980), 1980 1824 (ON CA), 119 D.L.R. (3d) 101 at 112 (Ont. C.A.)

Cardinal v. Director of Kent Institution (1985), 1985 23 (SCC), 24 D.L.R. (4th) 44 at 51-52 (S.C.C.)

Hammond v. Assn. of British Columbia Professional Foresters (1991), B.C.J. No. 295 at pp. 6-9 (B.C.S.C.)

36The Supreme Court of Canada has enumerated five factors to be considered in determining the content of the duty of fairness. They are:

(a) the nature of the decision being made and the process followed in making it;

(b) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;

(c) the importance of the decision to the individual or individuals affected;

(d) the legitimate expectations of the person challenging the decision (that a certain procedure will be followed); and

(e) the choices of procedure made by the agency, especially where discretion or particular expertise is involved.

Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 at paras. 23-27

37The College submits Ms. Cotton has limited her submissions to only one of the five factors enumerated in Baker, namely, the third factor (the importance of the decision to her). With respect, we disagree that that is the only factor to be taken into account.

38The nature of the decision being made, ((a) above), is that Ms. Cotton has been ordered to attend an intrusive medical examination with the prospect of losing her licence if she fails to attend. The process followed in making the decision is deficient in one significant particular – the Executive Committee gave no reasons for its decision and the ability to review the reasonableness of the decision is circumvented.

39The nature of the statutory scheme and the terms of the statute pursuant to which the body operates, ((b) above), is such that the order to attend for the medical examination can only be made on reasonable and probable grounds that the member is incapacitated.

40The importance of the decision to Ms. Cotton, ((c) above), is critical, given the nature of the examination and the coercive power of the Board to suspend her licence should she fail to attend for the examination.

41The legitimate expectation of Ms. Cotton in challenging the decision we find includes an expectation that the Board would give reasons explaining how it concluded there were reasonable and probable grounds to believe that Ms. Cotton was incapacitated.

42The choices of procedures made by the Board, ((e) above), are not significant as virtually no discretion was available under the statutory scheme.

43We find that an examination of all the Baker factors imposes a high duty of fairness on the College.

44The College submits Ms. Cotton had no reasonable legitimate expectation that the Board would give reasons for its decision. It states it has never been the practice at the College for a Board of Inquiry to provide reasons demonstrating reasonable and probable grounds to require a member to submit to a medical examination. We respectfully suggest that the College might wish to re-examine its practice where a medical examination is ordered.

45The College further submits that a duty to give reasons is inconsistent with the role of the Board, which was performing a purely investigative function rather than an adjudicative one. We recognize that there may be functions of the Board that are investigative and which are not determinative of the rights of any party. However, an order requiring a person to undergo an invasive medical examination, subject to the penalty of suspension or revocation of licence for refusing to comply, is a determination of rights, even though it may be ordered for an investigative purpose. It is in this context that the duty to observe rules of procedural fairness, including the duty to provide reasons, arises.

46We reject the submission that the College’s practice is consistent with the Ontario Divisional Court’s 1982 ruling in Boehler v. College of Nurses of Ontario (1982), 1982 2217 (ON SC), 36 O.R. (2d) 170 (Div. Ct.) at 174. Firstly, there was no requirement in 1982 for the College to find reasonable and probable grounds before requiring a member to submit to a medical examination. Since the “reasonable and probable grounds” condition precedent did not exist in the RHPA’s predecessor statute, the Legislature must have intended to limit the College’s power to order a member to submit to a medical examination. Secondly, the jurisprudence in this area has dramatically changed since 1982 over the intervening twenty-five years. The combination of the decision in Baker and the amendment to the statutory scheme renders Boehler of no assistance in determining the duty of care called for in the matter before us.

47The following two paragraphs from Baker are particularly apt:

The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections that will be mandated. This was expressed, for example, by Dickson J. (as he then was) in Kane v. Board of Governors of the University of British Columbia, 1980 10 (SCC), [1980] 1 S.C.R. 1105 at p. 1113, p. 110 D.L.R. (3d) 311:

A high standard of justice is required when the right to continue in one’s profession or employment is at stake . . . A disciplinary suspension can have grave and permanent consequences upon a professional career.

Baker, above, para. 25

In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. … It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.

Baker, above, at para. 43

48Ms. Cotton submits the Board did not have reasonable and probable grounds to believe that she was incapacitated. The College submits the Board had reasonable and probable grounds to so find. We have no way of knowing if the Board considered the evidence led by Ms. Cotton on that issue. If considered, we have no way of knowing if the Board rejected that evidence. If rejected, we have no way of knowing why. The lack of reasons is fatal to the College’s position on this judicial review. The order of the Board is quashed.

49If the parties are unable to agree on costs, they may make brief written submissions, not exceeding three pages, to be received by the Divisional Court within twenty-one days after the date of these reasons.