Ajao v. College of Nurses of Ontario
CITATION: Ajao v. College of Nurses of Ontario, 2011 ONSC 6061
DIVISIONAL COURT FILE NO.: 130/11
DATE: 20111012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, HOY AND LAUWERS JJ.
BETWEEN:
HELEN AJAO Applicant
– and –
COLLEGE OF NURSES OF ONTARIO and the HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents
In Person
Linda Rothstein and Emily Lawrence, for the Respondent, College of Nurses of Ontario
David P. Jacobs, for the Respondent, Health Professions Appeal and Review Board
HEARD at Toronto: October 12, 2011
ORAL REASONS FOR JUDGMENT
DAMBROT J. (orally)
[1] The applicant is a registered nurse and a member of the College of Nurses. On July 6, 2009 the College received a termination report from the Fairview Nursing Home pursuant to s.85.5 of the Health Professions Procedural Code, relating to the termination of the applicant’s employment as the Director of Care on June 18, 2009, for reasons of professional misconduct. On November 11, 2009, the Registrar appointed an investigator to investigate whether the applicant had committed this misconduct.
[2] As a result of an incident that occurred during her termination, the applicant was charged with mischief and assault. She was found guilty of mischief, but not assault, and was sentenced to a conditional discharge. The Registrar appointed the same investigator to investigate this conduct as well. We note that the conviction for mischief has been set aside on appeal.
[3] The Registrar reported the results of the investigation to the Inquiries Complaints and Reports Committee (“ICRC”). On November 29, 2010, after reviewing the Registrar’s report and other material, the ICRC released a decision. The ICRC did not refer the matter to the Discipline Committee as it might have, which is a reflection of the relative lack of seriousness of the allegations of professional misconduct. Instead, it issued a Letter of Caution and required the applicant to complete a specific continuing education or remediation program. Contrary to the applicant’s impression, no guilt was found by the ICRC and no punishment was imposed by it.
[4] On December 28, 2010, the applicant attempted to appeal the decision of the ICRC to the Health Professions Appeal and Review Board (“HPARB”). On March 4, 2010, the HPARB wrote to the applicant and confirmed that it did not have jurisdiction to review the decision.
[5] On March 18, 2011, the applicant filed an application for judicial review requesting that the decision of the ICRC be quashed, a declaration be made that the HPARB erred in concluding that it did not have jurisdiction to hear the applicant’s appeal and related relief, including damages and costs.
[6] With respect to her request that the decision of the ICRC be quashed, the applicant argues that:
(i) the decision of the ICRC is a nullity because the College can only conduct an investigation of a report of an employer under s.85.5 of the Act if the author of the report had a contractual relationship with the applicant;
(ii) the report was invalid because it was vindictive;
(iii) the College breached its fiduciary obligation to the applicant when it failed to reject the allegations in the report since the report was written by someone who was not her employer;
(iv) the College breached her right to procedural fairness because it relied on the evidence of seven people without informing her of their evidence;
(v) rights under s.11(a) of the Charter were violated because the College failed to advise her which law or regulation she contravened and because it found her guilty without making findings of fact or credibility; and
(vi) the College could not investigate the matters with which she was charged because they were being dealt with by the “Justice System.”
[7] With respect to the request for a declaration, the applicant argues that the HPARB had jurisdiction to hear her appeal because it would be contrary to the public interest if the ICRC were permitted to make decisions that could not be appealed.
[8] The respondent College very fairly concedes that although the ICRC is a screening committee and not a quasi-judicial one, it still had a disclosure obligation to the applicant, albeit a minimal one. It was obliged to provide the applicant with a notice of the Registrar’s report, notice of the substance of the allegations against her and an opportunity to make submissions in respect of the allegations. In this case, the ICRC relied on interviews of several of the applicant’s colleagues in reaching its decision without providing a summary of that information to the applicant or an opportunity to make submissions about that information. As a result, the College agrees that the decision should be quashed and the matter remitted to a differently constituted panel of the ICRC for fresh determination, with directions that the applicant be allowed to make submissions in respect of the seven witness statements.
[9] We agree with this recommendation and commend the College for making it.
[10] Despite this concession, the applicant insisted on advancing her remaining issues. In particular, she says that the decision of the ICRC is a nullity and therefore the ICRC should not be permitted to reconsider the matter because the College could only conduct an investigation of a report of an employer under s.85.5 of the Act if the author of the report had a contractual relationship with the applicant.
[11] There is nothing in s.85.5 that requires the report to be written by a person in a contractual relationship with the applicant. In any event, s.75(1)(a) of the Health Professional Code gives the Registrar the authority to appoint an investigator whenever the Registrar believes on reasonable grounds that the member has committed an act of professional misconduct. There is no merit to this argument.
[12] With respect to the argument that the s.85.5 report was vindictive, we are simply in no position to determine whether or not that was so.
[13] We see no merit in any of the other grounds relating to the decision of the ICRC. In view of the fact that we are setting aside the decision of the ICRC, we do not reach the argument concerning the jurisdiction of the HPARB.
[14] Finally, there is no basis to make an order for damages or costs to the applicant in relation to the actions of the College.
[15] The application is granted, the decision of the ICRC, including the Letter of Caution dated December 9, 2010, is quashed and the matter is remitted to a differently constituted panel of the ICRC for fresh determination, if the College is so advised, with directions that the applicant be allowed to make submissions in respect of the seven witness statements.
[16] We note, as I have already stated, that the applicant’s finding of guilt for mischief has been set aside. We recommend that the College review the reasons of the appeal judge and consider whether it is appropriate in all of the circumstances to proceed again with this matter.
DAMBROT J.
HOY J.
LAUWERS J.
Date of Reasons for Judgment: October 12, 2011
Date of Release: November 22, 2011
CITATION: Ajao v. College of Nurses of Ontario, 2011 ONSC 6061
DIVISIONAL COURT FILE NO.: 130/11
DATE: 20111012
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
DAMBROT, HOY AND LAUWERS JJ.
BETWEEN:
HELEN AJAO Applicant
– and –
COLLEGE OF NURSES OF ONTARIO and the HEALTH PROFESSIONS APPEAL AND REVIEW BOARD Respondents
ORAL REASONS FOR JUDGMENT
DAMBROT J.
Date of Reasons for Judgment: October 12, 2011
Date of Release: November 22, 2011