CITATION: Ontario College of Nurses of Ontario v. Todd 2018 ONSC 1689

DIVISIONAL COURT FILE NO.: 617/16 DATE: 20180405

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

KITELEY, TZIMAS, AND MATHESON JJ.

BETWEEN:

COLLEGE OF NURSES OF ONTARIO Appellant

– and –

EDWARD TODD Respondent

Megan Shortreed and Jean-Claude Killey, for the Appellant Carol Street, for the Respondent

HEARD at Toronto: October 18, 2017

Pursuant to subsections 45(3) and 45(8) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, there is a ban on disclosing the name of the Client or any information likely to identify that person. This judgment complies with this restriction so that it can be published.

Tzimas J.

INTRODUCTION

1The appellant, the College of Nurses of Ontario (the “College”) appeals the decision of the panel of the Discipline Committee, (the “Panel”), dated November 27, 2016 to dismiss allegations of patient abuse against a member of the College, Edward Todd (“Todd”).

2The College is the regulator of the practice of nursing in Ontario. The Discipline Committee is a statutory tribunal of the College and operates independently of the College.

3The specific allegations against Todd were that contrary to subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c.32 as amended and defined in subsection 1(1), (7) and (37) of Ontario Regulation 799/93, while practising as a Registered Nurse at the Centre for Addiction and Mental Health, (“CAMH”), Todd failed to meet the standards of practice of the profession, abused a client and acted in a manner that was disgraceful, dishonourable or unprofessional when on February 1, 2014 he hit C.F., (“the Client”), across the face.

4Following a review of the evidence of five witnesses and a consideration of their respective credibility and reliability, the Panel concluded that on a balance of probabilities it was “unable to find that the incident as alleged was more likely than not to have occurred” and dismissed the allegations. The hearing occurred over five days.

5The College alleges that the decision is flawed because the Panel failed to deal with material evidence, applied none of the criteria for the assessment of credibility that it claimed to have considered, disregarded entirely the evidence of the Client, did not identify the specific inconsistencies in the evidence of two of the key witnesses, Kaia Rannem, (“Rannem”), and Thuy Nguyen, (“Nguyen”), and otherwise misapprehended their evidence and finally relied on irrelevant factors to reach its conclusion on credibility. The College further asserted that the reasons were so seriously flawed that they could not stand.

6The Respondent, Todd, disagrees with the College and submits that the Panel’s decision is supported by the totality of the evidence and that accordingly, the Court should not intervene in the Panel’s credibility and factual findings.

7For the reasons that follow I find the Panel’s decision was reasonable. It falls within a range of possible and acceptable outcomes and is defensible in respect of the facts and law. Having regard for the totality of the evidence, the Panel followed a line of analysis that was available to it. The appeal is accordingly dismissed.

FACTUAL BACKGROUND

8The parties agree that the interactions with the Client that resulted in allegations against Todd occurred within the span of a few minutes in the late afternoon of Saturday, February 1, 2014, on the Complex Mental Health Unit (Unit 2-4, or the “Unit”) at CAMH in Toronto. It is an in-patient unit for clients with high-acuity mental health disorders such as schizophrenia, mood disorders, or forensic involvement.

9The Client had a diagnosis of paranoid schizophrenia and suffered from a significant intellectual challenge. She was known to demonstrate attention-seeking behaviours but prior to the date of the incident she had never made an allegation of having been abused by staff.

10Four witnesses with direct knowledge of at least some aspect of the incident in question testified before the Panel. They were the Client, Rannem, the nurse who purported to witness the incident, Nguyen, the nurse who was assigned to the Client and who was with the client immediately before and after the incident, and Todd.

11The fifth witness, John Spavor was the Manager of the Unit. Although he did not witness the incident, he became involved when Rannem contacted him about the incident. He then undertook his own investigation together with others at CAMH. At the hearing he provided evidence concerning the Client’s particular medical issues. He also testified on the protocols to be followed when incidents of patient abuse occur.

12The weekend of February 1-2 was a difficult weekend for the Client. Although the particular incident occurred in the time period between approximately 4:45 p.m. and 5:30 p.m., on Saturday, February 1, 2014, there were difficulties with the Client both before and after the incident. Prior to the incident, the Client had altercations with two other clients. She was permitted to have her breakfast in her room. After the incident, at around 7 p.m., the Client told Nguyen that she found a pill in the washroom and said that she took it. Nguyen recorded what the Client told her and obtained medical advice from the duty doctor. He told her to watch the Client’s vitals.

13Rannem, Nguyen and Todd agreed that their interaction with the Client unfolded in two or three phases. There was an initial commotion in the dining room during dinnertime, when the Client was prevented from taking her dinner tray to her room. She dropped her tray to the ground, attempted to drink some of the hand sanitizer from a container attached to a wall and went to her room. The Client returned to her room where she barricaded herself and began to undress. Then the incident followed, also in the Client’s room.

14Todd, Rannem and Nguyen had divergent recollections on how the events then unfolded. According to Nguyen, Todd and Nguyen tried to de-escalate the situation. When the Client seemed to calm down, Nguyen offered her PRN medication. She reacted by throwing it on the floor. Nguyen picked up the medication and went to get a second set. Todd, who was also in the room, remained there. As Nguyen exited the room, Rannem came in to assist Todd with the de-escalation.

15According to Rannem, in the few minutes that Nguyen was absent, a struggle ensued between the Client, Todd and Rannem. The Client was banging her head against the wall as she was also lying flat on her back. As she was hitting and kicking, Rannem grabbed her ankles. Todd was able to hold her two wrists in one of his hands. Although she “broke free” momentarily, Todd switched his grip and then, according to Rannem, he slapped the Client across the face with his other hand. The Client then calmed down and stopped fighting. Rannem did not notice when Nguyen re-entered the room but she was fairly certain that by the time Nguyen re-entered the room the Client was calm. Rannem and Todd left and Nguyen gave the Client the replacement medication.

16Nguyen said that she did not see the incident because she was absent from the room. However, she said that she thought she heard a “skin to skin” slapping sound and she also thought she saw the Client’s head swing from one side to the other. She suggested that she made that connection to the incident only on the following day, after the Client told her that Todd slapped her twice across the face.

17Todd denied hitting the Client. He also denied that Rannem was ever in the room with him. He confirmed the initial commotion in the dining room. He also indicated that the Client returned to her room after the tray dropping. Soon thereafter he heard escalating sounds from the Client’s room and went to assist Nguyen. He confirmed that Nguyen offered the Client PRN medication but that the Client threw it on the floor. He said that the Client was then given a meal tray and both he and Nguyen left the room and made their way back to the dining room.

18Before they could get there, Todd said they heard a banging sound and returned to the Client’s room only to see her trying to barricade her door with a chair and was in the process of moving her bed. Todd pushed the door open and moved the bed to the left side of the room. The Client then started to undress. Nguyen got the Client to put her gown back on and then went to obtain a second set of PRN medication.

19Todd testified that while Nguyen was out of the room, the Client sat on her bed and repeatedly banged her head against the wall. Todd attempted to prevent her from injuring herself by putting his hand behind the Client’s head. When he did that, the Client grabbed his forearm and dug her fingernails into his arm. At that point Rannem entered the room and started to talk to Client. Todd said that with Rannem there, he left and returned to the dining room. The video recording of the activities in the hallway showed Todd using a towel to clean up the spill from the tray that the Client had dropped a few minutes earlier.

20The following facts were not contested. First, contrary to CAMH’s policies, Rannem did not report the incident immediately upon its occurrence. By all accounts, once the Client was calm, they returned to their respective responsibilities and activities in the Unit. It was not until the following day in the afternoon, after the Client told Nguyen that a male nurse had slapped her across the face and Nguyen confronted Rannem about the complaint, that Rannem acknowledged the incident. Rannem began to cry and told Nguyen that she saw Todd slap the Client twice. Nguyen asked Rannem why she had not said anything earlier. Rannem said that she did not know what to do, that the situation was new to her since she had only been there for four months, and that she was scared.

21Second, Rannem and Nguyen consulted another colleague for advice on how to proceed and then proceeded to complete independently “SCORE” incident reports, on separate computer terminals. They each asked the other to review their respective reports before submitting them. Neither made any changes as a result of the other reviewing their report.

22Third, Rannem attempted to call her supervisor, John Spavor to report the incident to him directly. She left a message on his phone as it was Sunday night. They spoke extensively on Monday morning, February 3, 2014.

23Finally, Todd was not aware that these reports were filed. He went to work on February 2, 2014 but nobody said anything to him about any incident. It was not until February 7 that he was questioned about the events of February 1. At that time he thought the incident happened during the lunch hour as opposed to the dinner hour.

THE DECISION

24The Panel’s decision is single-spaced and is fourteen pages long. The Panel summarized the evidence of all five witnesses in some detail. The Panel noted the Client’s complaint that “he smacked me across the face” and her recollection that his name was “Edward” as well as the rest of her evidence concerning her understanding of her diagnosis and her inability to recollect whether she had hallucinations during her admissions in 2013 and 2014.

25The Panel then reviewed the position of the parties and also summarized the advice it received from Independent Legal Counsel regarding the standard of proof in discipline cases. Relying on F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, it concluded that the burden to be met was whether the allegations were “more likely than not” to have occurred.

26The Panel concluded that it was unable to find that Todd had committed any acts of professional misconduct as outlined in the Notice of Hearing. The Panel found Rannem and Nguyen not to be credible in a number of ways and was troubled by material inconsistencies in their evidence. With the Client’s testimony, the Panel stated that the evidence could not be “heavily relied upon”. With Todd, although it described some inconsistencies as troubling, the Panel did ultimately find Todd to be credible.

27Beginning with Rannem, the Panel found that although she demonstrated an understanding of the appropriate reporting processes for an incident of physical abuse such as the one alleged, her failure to follow them was problematic. The Panel rejected Rannem’s explanation that she was shocked by the incident and that she worried about the impact her complaint would have on Todd’s professional career because Rannem had never shown such sensitivities on past occasions when she disagreed with Todd and reported him to individuals in positions of authority. In the Panel’s view, Rannem’s failure to report the incident in accordance with the reporting requirements and her explanations for that failure detracted considerably from her credibility.

28The Panel was also troubled by Nguyen’s testimony and found it unbelievable that she had witnessed evidence of a client being hit by a nurse and failed to act on it immediately.

29Regarding the Client, the Panel’s analysis was limited to two sentences. It concluded that: “the nature of the evidence that she was able to provide to the Panel lacked specificity, and could therefore not be heavily relied upon by the Panel”.

30The Panel also scrutinized Todd’s evidence and noted the inconsistencies in his testimony. It concluded that his inconsistencies reflected errors in his recall and stated that Todd’s inconsistencies “did not reflect negatively on the Member’s credibility”, but rather was consistent with the memory that one would have of “an ordinary day”. Dealing specifically with his inconsistencies, i.e., whether the incident occurred at lunch or at dinner, and whether he cleaned up the mess caused by the tray being kicked on the floor before or after the alleged incident, the Panel did not find those details to be significant to their overall assessment of Todd’s credibility.

31Finally, the Panel considered the inconsistencies as between Todd’s testimony and that of Rannem and Nguyen. The Panel noted that it was troubled by the inconsistency over whether Rannem was in the room with Todd. It dismissed Rannem’s and Nguyen’s respective explanations as illogical and implausible and accepted Todd’s evidence as credible. The Panel also held that given Todd’s 33 years of experience, the precipitating events at dinnertime and in the immediate aftermath would not have been provocative enough to lead Todd to strike the client.

32In light of those findings, the Panel concluded on the totality of the evidence that it was unable to find that the incident as alleged was more likely than not to have occurred.

STANDARD OF REVIEW

33The parties agree that the standard of review is reasonableness. The College agrees that the Panel’s credibility assessments are entitled to deference, and their reasons should not be minutely dissected, nor the case retried on appeal.

34In 2008, in Dunsmuir v. New Brunswick, 2008 SCC 9, Bastarache J. and LeBel J. explained:

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.

35It is also noted that the reasons given by a Panel must be read together with the outcome. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, Abella J. noted:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under the reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, at p.391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

ANALYSIS

36The core issue before the Panel was whether or not, on the totality of the evidence before it, and on a balance of probabilities, it was more likely than not that Todd slapped or hit the Client. To answer that question, the Panel undertook a credibility assessment of each witness using the criteria as set out in Re Pitts and Director of Family Benefits Branch of the Ministry of Community & Social Services, 1985 2053 (ON SC). It then considered the evidence of each witness both individually and taken together, with attention to their evidence, explanations for any inconsistencies and the potential impact any inconsistencies would have on their credibility and reliability.

37In many respects, the Panel was presented with a typical clash between two versions of the same events – often referred to as a ‘he said, she said’ or in this case, ‘he said, they said’. The analysis however is complicated by the fact that within the ‘they’, the Panel was presented with three varying versions of how the alleged incident unfolded.

38In my review of the Panel’s decision, I am satisfied that the outcome is reasonable. It falls within a range of possible and acceptable outcomes, defensible in respect of the facts and law. I am also satisfied that the Panel’s reasons, when taken as a whole offer a sufficient analysis in support of the conclusion reached.

39In that analysis, I note that the Panel considered the evidence of each witness both in terms of the individual narratives and the inconsistencies within them and then in their totality so as to reconcile the various inconsistencies. Although it ultimately found Todd’s testimony to be reasonable his denials plausible, the Panel made that finding after a rigorous consideration of the inconsistencies in Todd’s evidence. It concluded that the inconsistencies over the timing of a routine de-escalation, or the timing for the floor cleaning were not significant to undermine Todd’s credibility when he denied hitting the Client. Rather, Todd’s memory failure was consistent with the memory of an ordinary day at work that was no different than the other days. To the Panel Todd’s memory failure was consistent with the passage of time.

40In my review of Todd’s testimony, the Panel’s assessment and conclusions concerning Todd’s testimony were supported by the evidence, including the extensive examination and cross-examination of his testimony.

41In contrast to Todd, the Panel found the inconsistencies in Rannem and Nguyen’s evidence to be highly problematic and that could not be explained or reconciled. I disagree with the College’s submissions that the Panel misapprehended their evidence. The Panel’s explanation for its findings and conclusion must be read in conjunction with its extensive review of the evidence from each of the witnesses.

42It is evident that the Panel treated Rannem’s failure to report the alleged physical abuse immediately as a threshold to their overall assessment of her credibility. Its rejection of Rannem’s explanations for her failure to report as “unconvincing” was based on the evidence that Rannem had not previously demonstrated any concern about Todd’s career when she complained or challenged him and sought the help of others when she disagreed or questioned his directions or advice. Having heard extensive evidence on Rannem’s previous challenges and run-ins with Todd, it was open to the Panel to have concerns about Rannem’s credibility and to use that finding as a threshold measure for Rannem’s overall credibility.

43The Panel did not end its credibility assessment of Rannem with its initial concerns. Later in its analysis the Panel found inconsistencies in Rannem’s testimony. These difficulties reinforced the reservations over Rannem’s credibility.

44The Panel also had very serious reservations with Nguyen’s testimony and in particular with her contradictions as to what she did or did not see. The Panel did not misapprehend Nguyen’s testimony; it is evident from the Panel’s analysis that it had some difficulty understanding Nguyen’s evidence. That is quite understandable since in her cross-examination Ms. Nguyen kept shifting her explanation of the critical events. The Panel members accepted Nguyen’s evidence that she did not witness the alleged incident. But then, the Panel could not reconcile how Nguyen heard the “skin to skin” slap and how she would have seen the Client’s head move from left to right if she were not in the room; the head movement would have had to occur simultaneously with the slap. The Panel’s analysis also reflected its concern that if Nguyen heard a “skin to skin” slapping, she would have had to record that in her evening notes. Having failed to do so, the Panel had all the more reason to doubt Nguyen’s evidence, and rejected her version of events as implausible.

45In light of these difficulties, and contrary to the College’s contention that the Panel misapprehended Nguyen’s evidence, the Panel’s finding that Nguyen’s explanations were implausible was available to the Panel. It reflected the Panel’s response to the inconsistencies contained in Nguyen’s evidence.

46This leaves the Court with the Panel’s treatment of the Client’s evidence. Although the Panel’s brevity in its treatment of the Client’s evidence raises concerns so as to warrant greater scrutiny, it too survives this review. The Panel was succinct in its reasons for doubting the Client’s reliability. But the Panel expressly recorded the Client’s evidence, including the reference to her evidence that “he smacked me across the face”. It also recorded accurately the Client’s inability to recall any other details of the incident, including who was with her when the incident occurred, where the incident occurred, or to whom she reported the incident. When in its reasons the Panel says that the evidence the Client provided lacked specificity, causing the Panel to doubt her reliability, it is evident that the Panel’s reference to “specificity” was its shorthand reference to the Client’s inability to recall anything about the time and place of the incident, who was there at the time, and to whom she complained.

47The Panel’s discussion of the Client’s evidence is brief. However, the College’s own theory of the case was anchored on Rannem and Nguyen’s evidence. The Panel’s consideration of the Client’s evidence was proportionate with this approach. Having regard for the totality of the evidence, I find the Panel’s decision falls within a range of possible and acceptable outcomes and is defensible in respect of the facts and law. The Panel followed a line of analysis that was available to it.

CONCLUSION

48In the result, I conclude that the Panel’s decision is reasonable. It falls within a range of possible and acceptable outcomes that is defensible in respect of the facts and law.

49Accordingly, the appeal by the College is dismissed.

50As Todd is successful, the College shall pay costs fixed at the amount agreed by counsel, namely, $15,000.

Tzimas J.

I agree _______________________________

Kiteley J.

I agree _______________________________

Matheson J.

Date of Reasons for Judgment:

Date of Release:

CITATION: Ontario College of Nurses of Ontario v. Todd 2018 ONSC 1689

DIVISIONAL COURT FILE NO.: 617/16 DATE: 20180405

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

KITELEY, TZIMAS, AND MATHESON JJ.

BETWEEN:

COLLEGE OF NURSES OF ONTARIO Appellant

– and –

EDWARD TODD Respondent

REASONS FOR JUDGMENT

Tzimas J.

Date of Reasons for Judgment: April 05, 2018