CITATION: Mast v. College of Nurses of Ontario, 2015 ONSC 5854
DIVISIONAL COURT FILE NO.: 481/14 DATE: 20150921
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KRUZICK, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
SONJA MAST Appellant
– and –
COLLEGE OF NURSES OF ONTARIO Respondent
Martha A. Cook, for the Appellant Linda R. Rothstein and Emily C. Lawrence, for the Respondent
HEARD at Toronto: September 21, 2015
SACHS J. (ORALLY)
[1] This is an appeal from the Penalty Order of a panel of the Discipline Committee of the Council of the College of Nurses of Ontario (the “Panel”) dated September 14, 2014 (the “Order”). The appellant requests an order setting aside various terms of the Order. In support of her request she makes a number of arguments. The following endorsement articulates and deals with each of those arguments in turn.
(a) The Panel issued the Order on September 15, 2014. The appellant commenced her appeal of the Order on September 30, 2014. The Panel did not deliver its reasons for the Order until November 22, 2014, almost two months after this appeal was filed. The appellant made two submissions about this course of action. First, she argues that the Panel was functus officio after it issued its Order on September 15, 2014, such that this court cannot consider the reasons it later released. This results in a decision that was not supported by reasons, which in turn is a breach of the duty of procedural fairness. In the alternative, the appellant submits that the Panel’s delay in releasing its reasons would cause a reasonable person to apprehend that the reasons were an after-the-fact justification for the Order rather than an articulation of the reasoning that lead to the Panel’s decision on penalty.
The appellant relies on two decisions from the Supreme Court of Canada in support of her submission that the Panel was functus officio as of the date it imposed the Order - Chandler v. Assn. of Architects (Alberta), [1989] 2 S.C.R. 848 and R. v. Teskey, 2008 SCC 9, [2008] 1 S.C.R. 190. With respect, neither of these cases support the proposition advanced by the appellant. Rather, they both make it clear that the functus doctrine does not encompass a situation where the decision-maker issues a decision “with reasons to follow”. In this case, the Panel did not use the phrase “with reasons to follow” after it issued the Order. However, under s. 54 of the Health Professions Procedural Code, (the “Code”), the Panel was under an obligation to give reasons in writing. In view of this obligation it was unnecessary for the Panel to use the words “with reasons to follow” after it issued the Order. It would have been clear that reasons in writing would follow. Further, one of the central principles that emerges from Chandler is that a statutory tribunal is not considered functus until it has fully discharged its statutory functions. Under its governing statute, one of the Panel’s functions was to issue written reasons for the Order.
With respect to the second part of the appellant’s argument on this point, at paragraph 23 of Teskey, Charron J. (writing for the majority) clearly finds that a delay in writing reasons does not, in and of itself, give rise to an apprehension that the reasons are an after-the-fact justification for the decision. There must be something more. The appellant was clear that she had nothing more.
(b) The appellant submits that the Panel had no jurisdiction to make one part of its penalty order, namely, imposing a requirement that the appellant participate in the respondent’s 2015 Quality Assurance program (or the next available cycle), including, in particular, the practice assessment component and a clinical assessment. According to the appellant, the Quality Assurance Committee (QAC) is the only body that can order that a member undergo a practice assessment and it can only do so under certain conditions. In support of this submission the appellant relies upon the following three considerations: (1) the fact that the section dealing with the Panel’s powers to impose disciplinary remedies (s. 51(2) of the Code) does not expressly give the Panel the power to make orders concerning the quality assurance program; (2) the fact that s. 22 of Ontario Regulation 274/94 General (Nursing Act, 1991) (the “General Regulation”) states that the QAC “shall administer the Quality Assurance program of the College”, a provision that the appellant interprets as granting the QAC sole responsibility for the Quality Assurance program; and (3) the fact that s. 29 of the General Regulation provides that “(1) a member shall undergo a practice assessment, (a) if required to do so by the Committee under s. 26; or (b) if the member’s name is selected in accordance with a process approved by the Council”. Section 29 does not provide that a member shall undergo a practice assessment if ordered to do so by a discipline committee panel. Finally, the appellant submits that recent changes to the Code suggest that the Legislature wanted to create a strict divide between the QAC and the discipline process.
There is no issue that if a member fails to abide by the QAC’s directions regarding participation in a practice assessment (as the appellant did) the QAC’s remedy is to refer the matter to the respondent’s screening committee for all reports and complaints (the “ICRC”). It is then up to the ICRC to decide whether the matter should be referred to a discipline committee. It is also clear that failure to follow the directions of the QAC is an act of professional misconduct. Given this, if the appellant’s submissions were accepted, the effect would be that a member could be disciplined for failing to participate in a practice assessment (an important tool that the respondent has to assess the quality of the practice of members about which it has concerns), but the discipline committee would have no ability to order that the member actually do the thing that gave rise to, and would remedy, the professional misconduct, i.e. undergo a practice assessment.
There is nothing in the governing legislation that would indicate that this was the Legislature’s intention. Section 51(2) of the Code gives the Panel a very broad discretion as to the remedies it can impose, including the right to direct “the Registrar to impose specified terms, conditions and limitations on the member’s certificate of registration for a specified or indefinite period of time.” Section 22 of the General Regulation gives the QAC the obligation to administer the quality assurance program. It does not preclude a discipline committee from ordering that a member participate in the program, including certain aspects of the program. Section 29 of the General Regulation provides for two situations where a member is obligated to undergo a practice assessment. It does not preclude an order by a discipline committee that the member undergo such an assessment. In terms of the recent changes to the Code, it is clear that they were designed to prevent a situation where the ICRC could dispose of a complaint by referring the matter directly to the QAC to remedy any practice concerns. However, this is not what happened here. Rather, the ICRC referred the issue of the appellant’s non-compliance to be dealt with through the discipline process.
I agree with the Panel’s decision that “it would not be consistent with the legislative framework to consider it an act of professional misconduct to fail to participate in the Quality Assurance process without having the ability to enforce participation.” Thus, whatever standard of review is applicable to this aspect of the Panel’s decision, I would not set aside their order.
(c) The appellant argues that one aspect of the Order could result in a potential breach of patient confidentiality. The respondent agrees with this submission and agrees that paras. 3(c) iv and v, should be read as being limited to clients that the Mentor shares with the appellant.
(d) The appellant argues that the penalty, taken as a whole, is disproportionately harsh and exceeds the appropriate range for a member who committed the offences she is alleged to have committed and whose circumstances were the same as hers. In particular, the appellant submits that she should not have received a three month suspension and that the remedial portions of the penalty are undermined by the fact that the people she is supposed to turn to for help (an expert, the collaborating physician and the mentor) are also obligated to do things that could result in further discipline for the appellant. According to the appellant, this will undermine the rehabilitative purpose of these aspects of the Order, something that is unnecessary and unduly harsh.
The penalty under consideration must be assessed for reasonableness in light of the Panel’s statutory mandate, which is to protect the public interest. We note, however, that the Panel also took into consideration the appellant’s personal circumstances, including mitigating factors, as well as the particular acts of professional misconduct.
The law is clear that a professional disciplinary panel is uniquely qualified, by virtue of its knowledge, training and skill, to appreciate the severity of professional misconduct and to impose the appropriate sanctions on their peers. As a result, their penalty decisions, including the particular factors that they take into consideration, are entitled to considerable deference. The issue is not whether we would have imposed the same penalty - it is whether there is any line of analysis that could reasonably lead the panel from the evidence to its conclusions.
Finally, we note that in the College of Nurses v. Desrosiers, a decision of another Discipline Committee of the College, the panel noted as follows, “Nurse practitioners have the most responsibility and autonomy and the least amount of supervision.”
Taking these considerations into account, I find no basis to interfere with the Panel’s decision on penalty. In this regard, the comparisons to other cases are of limited assistance. None of the cases put forward by the appellant demonstrate that the Panel’s finding on penalty was unreasonable. With respect to the argument about the remedial portions of the penalty, again it must be remembered that the Panel’s primary concern has to be to protect the public not only to rehabilitate the appellant. In this regard, I accept the respondent’s argument that the sections of the Order to which the appellant objects are the sections that ensure that the respondent is notified if there are problems with the appellant’s practice standards or compliance with the remedial aspects of the Order. This is information the respondent legitimately needs to meet its obligation to protect the public.
[2] For these reasons the appeal is dismissed.
COSTS
[3] I have endorsed the Record, “This appeal is dismissed for reasons given orally by Sachs J. As agreed, the appellant is to pay the respondent its costs fixed in the amount of $3,000 all inclusive. Thank you both very much for your submissions on this matter.
___________________________ SACHS J.
KRUZICK J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: September 21, 2015
Date of Release: September 24, 2015
CITATION: Mast v. College of Nurses of Ontario, 2015 ONSC 5854
DIVISIONAL COURT FILE NO.: 481/14 DATE: 20150921
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KRUZICK, SACHS AND WILTON-SIEGEL JJ.
BETWEEN:
SONJA MAST Appellant
– and –
COLLEGE OF NURSES OF ONTARIO Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: September 21, 2015
Date of Release: September 24, 2015