Cartier v. College of Nurses of Ontario, 2019 ONSC 2289
CITATION: Cartier v. College of Nurses of Ontario, 2019 ONSC 2289
DIVISIONAL COURT FILE NO.: 314/18
DATE: 20190408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, WILTON-SIEGEL and SHEARD JJ.
BETWEEN:
LOUISE MARIE P. CARTIER Appellant/Respondent on Cross-Appeal
– and –
COLLEGE OF NURSES OF ONTARIO Respondent/Cross-Appellant
COUNSEL:
Ian McLean, for Appellant/Respondent on Cross-Appeal
Megan Shortreed, for the Respondent/Cross-Appellant
HEARD at Toronto: March 14, 2019
Reasons for Decision
Swinton J.:
Overview
[1] Louise Cartier (the “Appellant”) appeals from an order of the Discipline Committee (the “DC”) of the College of Nurses of Ontario (the “College”) dated May 17, 2018. In reasons dated July 13, 2018, the DC found that the Appellant had committed professional misconduct by failing to comply with an order of the Inquiries, Complaints and Reports Committee (the “ICRC”) dated September 7, 2016 that required her to complete a remediation program. The DC imposed a sanction that included a suspension of two months, in addition to completion of the remediation program. The Appellant argues that she was denied natural justice by the DC, because it refused to consider whether the allegations giving rise to the proceeding before the ICRC were well-founded.
[2] The College has brought a cross-appeal, arguing that the DC’s decision was unreasonable, because it gave too narrow an interpretation to s. 1(37) of the Professional Misconduct regulation under the Nursing Act, 1991, S.O. 1991, c. 32 (O. Reg. 799/93) (the “Regulation”), and because the sanction of a two-month suspension was inconsistent with the four-month suspension imposed in similar cases and was not adequately justified in the DC’s reasons.
[3] For the reasons that follow, I would dismiss both the appeal and the cross-appeal. There was no denial of natural justice, and the DC’s decision on the merits and penalty was reasonable.
Background
[4] The Appellant is a registered practical nurse. She has been registered with the College since 1981. When her employment was terminated in June, 2015, her former employer made a report to the College, as required by s. 85.5(1) of the Health Professions Procedural Code (Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c.18) (the “Code”).
[5] The ICRC conducted an investigation pursuant to ss. 25 and 75 of the Code. The Appellant was notified pursuant to s. 25(6), and she made written submissions through her legal counsel. The ICRC issued a decision on September 7, 2016 in which it concluded that public protection could be achieved by requiring the Appellant to complete a Specified Continuing Education or Remediation Program (“SCERP”) within three months of the decision.
[6] The Appellant believes she was denied natural justice in respect of the ICRC proceedings. However, she did not seek judicial review of the ICRC decision, the route available to her where an ICRC investigation and decision have resulted from a report (see Ren v. The College of Massage Therapists of Ontario, 2014 ONSC 2758 (Div. Ct.) at paras. 4-5).
[7] The College sent a number of letters reminding the Appellant of her obligation to complete the SCERP. Through counsel, she advised that she disputed the allegations against her and did not feel compelled to engage in the SCERP. In January, 2017, the Appellant was advised that she was in breach of the ICRC order, and the matter was being transferred to the Reports and Prosecution team. A Notice of Hearing was issued on April 23, 2018, alleging that the Appellant had committed professional misconduct pursuant to s. 1(37) of the Regulation because of her failure to complete the SCERP ordered by the ICRC.
[8] According to s. 1(37), the “basket clause” of the Regulation, the following is an act of professional misconduct:
Engaging in conduct or performing an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[9] After hearing testimony from the Monitoring Coordinator at the College and from the Appellant, the DC found that the Appellant had received the letters from the College directing her to complete the SCERP, and she had ample notice of the deadline for completion. However, she chose not to comply with the order of the ICRC.
[10] Before the DC, the Appellant sought to argue that, before imposing any discipline, the DC ought first to determine whether there was a factual basis to support the ICRC order. The DC did not accept this argument. It concluded that the Appellant, in refusing to comply with the ICRC order, was “effectively denying the importance of the self-regulatory governance model and the integrity of the standards of the profession,” which “would reasonably be regarded by members of the profession as unprofessional.” The DC did not find sufficient evidence to support a finding that the Appellant’s conduct would reasonably be regarded as “dishonourable” as, in its view, that finding “should involve some level of dishonesty or deceit and/or has an element of moral failing.”
[11] The DC imposed a penalty with a number of elements, including a requirement that the Appellant appear before the DC to be reprimanded and a suspension of the Appellant’s certificate of registration for two months.
The Appeal
[12] The Appellant argues that she was denied natural justice by the DC because there was no hearing into the merits of the allegations that led to the ICRC order. In her view, the allegations of misconduct against her that led to the ICRC order were never proven or tested, and she was denied the basic principles of natural justice and fairness because she was not permitted to examine, contest or in any way answer the allegations.
[13] This argument is a collateral attack on the ICRC order. However, neither the DC nor this Court on this appeal have the jurisdiction to review the ICRC order.
[14] The DC’s jurisdiction to deal with disciplinary matters is found in s. 38(1) of the Code. That provision allows the DC to hold a hearing with respect to the allegations of a member’s professional misconduct or incompetence that have been referred to the DC by the ICRC. In this case, the allegation referred to the DC was the failure of the Appellant to comply with the ICRC order. The DC does not sit on appeal from the ICRC, and it had no authority to go behind the order made by the ICRC.
[15] In the appeal before this Court, the Appellant again argues that there was a denial of natural justice by the DC, because she was not able to challenge the allegations underpinning the order of the ICRC. However, this Court has no jurisdiction to review the ICRC’s order on this appeal from the order of the DC.
[16] The Appellant had a fair hearing before the DC. She testified, and her counsel cross-examined the College’s witness. She had a full opportunity to present her case before the DC with respect to the allegation the DC was tasked with adjudicating – that is, whether she committed professional misconduct because of her failure to comply with the ICRC order.
[17] As there was no denial of natural justice by the DC, the appeal is dismissed.
The Cross-Appeal
[18] The College cross-appeals the finding of professional misconduct by the DC and the penalty imposed. The College submits that the DC ought to have found the Appellant’s conduct to have been both “unprofessional” and “dishonourable”, not just unprofessional. In particular, the College submits that the DC failed to properly interpret the statutory term “dishonourable” and failed to provide adequate reasons for its decision as a result. The College submits that the decision is inconsistent with any reasonable legal interpretation of the term “dishonourable” and with prior decisions in similar cases and seeks “judicial guidance” in the interpretation of the language of the basket clause.
[19] The College also appeals the DC’s determination on penalty. It submits that a four-month suspension was warranted, given the penalty in similar cases, and that the DC failed to provide adequate reasons to justify the two-month suspension.
[20] The College states that the standard of review with respect to these issues is reasonableness, and I agree.
The finding of professional misconduct
[21] The DC found that the Appellant’s conduct was unprofessional, but not dishonourable. To find conduct dishonourable, the DC opined, there must be deceit, dishonesty or moral failing. It concluded that there was no evidence to support such a finding here.
[22] The College submits that this is too narrow a reading of the term “dishonourable”. Professional misconduct is a failure to meet the standards of the profession, whereas dishonourable conduct is something more. It is conduct that “brings shame upon the profession and the Member” (factum, para. 78). In particular, the College suggests that deliberate, knowing or reckless disregard for professional obligations is what distinguishes disgraceful and dishonourable conduct from merely unprofessional conduct (factum, para. 89). In other words, the College argues that intentional non-compliance with a professional standard of conduct – here, the order of the ICRC – is dishonourable conduct.
[23] In my view, it is not appropriate for this Court to set out a definition of these three words – dishonourable, disgraceful and unprofessional - and to fill what the College describes as a “jurisprudential vacuum.” Similar language is found in the regulations applying to 26 colleges governed by the Code, as well as in legislation regulating the professions of accounting and engineering.
[24] The task for this Court is to determine whether the DC’s decision in this case was reasonable. I note that the approach of the DC here, requiring that there be some element of moral failure or dishonesty in order for the conduct to be characterized as disgraceful or dishonourable, is consistent with the decisions of the Divisional Court in White v. Association of Professional Engineers of Ontario, 2006 CarswellOnt 3203 (Div. Ct.) (see paras. 25, 60) and Association of Professional Engineers (Ontario) v. Caskanette, 2009 CarswellOnt 5390 (Div. Ct.) at para. 40. I note as well that the source of this description of dishonourable conduct appears to be the advice given by Independent Legal Counsel to the DC at the end of the hearing (see Transcript, pp. 107-108). The College did not object to the content of his advice (Transcript, p. 112).
[25] The College now argues that the DC decision is unreasonable because in three other cases, deliberate disobedience of an ICRC order to attend a SCERP has been found to be dishonourable and unprofessional. However, I note that in none of those cases did the member appear before the DC or give evidence (College of Nurses of Ontario v. Cornelius, 2014 CarswellOnt 19275; College of Nurses of Ontario v. Singh, 2016 CarswellOnt 21744; College of Nurses v. Kouxova, 2016 CarswellOnt 21750). In Cornelius, the DC stated that “the member’s persistent failure to meet her professional obligations by choosing not to comply with the ICRC order and to thumb her nose at the process amounts to dishonourable conduct” (at para. 26).
[26] In contrast to those cases, the Appellant did appear before the DC. She gave evidence, as well, explaining why she did not comply with the ICRC order. The Appellant may have been misguided in her procedural approach, but there is no doubt that she sincerely believes that she is innocent of the allegations upon which the ICRC based its decision, and she attempted to put forward this position before the DC. That is an important difference between these cases.
[27] The determination of whether conduct is dishonourable and/or unprofessional must be made on the basis of the evidence before the DC, and the DC’s assessment as to whether members of the profession would reasonably regard that conduct to be dishonourable and/or unprofessional. The DC here, having heard the evidence, concluded that the Appellant’s refusal to comply with the ICRC order was not dishonourable. The DC could reasonably find in the present circumstances that there was an absence of the necessary moral turpitude to support a finding that the conduct was dishonourable. Its decision was, therefore, a reasonable outcome, supported by the evidence. Accordingly, there is no basis for this Court to interfere with the finding of professional misconduct.
The penalty decision
[28] The College argues that the two-month suspension was unreasonable, because it was outside the range of sanctions for deliberate non-compliance with an order to take a SCERP. The College submits that the appropriate suspension would be four months. The College also submits that the reasons were inadequate, because the DC failed to consider the usual principles of sentencing and focussed only on its characterization of the conduct as unprofessional.
[29] I will start with the second argument. The reasons of the DC are brief, but they do make reference to the principles of sentencing. In addition to its characterization of the misconduct, the DC considered both special and general deterrence, as well as rehabilitation, remediation and the protection of the public.
[30] While the College suggests that there are three similar cases, it appears from a closer reading that there were different factors that led to the penalty decision in each of those cases. For example, in Cornelius, where the DC imposed a four-month suspension, the panel considered that the “close proximity of the previous discipline order and the ICRC order, the persistent nature of the Member’s disregard for the order of the ICRC, and the prior discipline history involving dishonest behaviour were all aggravating factors” (at para. 35).
[31] It is also significant that in the three cases which the College identifies as relevant, the DC found that the member’s actions were not only unprofessional, but also dishonourable on the basis of the distinction set out above. Because that distinction was reasonable in the present circumstances on the issue of liability, it is also reasonable to take that distinction into consideration in the determination of the penalty.
[32] With respect to a range, it appears that the range is not a four-month suspension, as suggested by the College. In Singh, the panel reviewed the cases and noted that penalties ranged from two to four months (at para. 28). A chart in the College’s factum suggests that the range might well be one to four months. Indeed, cases cited in Kouxova suggested a range of one to four months. In Cornelius, the College cited cases imposing a one or two month suspension and argued that they were distinguishable because of the facts of the case. Thus, it is evident that the penalty applied by the DC in this case was within the range of penalties for this type of misconduct.
[33] This Court must give deference to the decision of a DC on penalty and cannot substitute its decision for that of the panel. Here, the DC considered the proper principles for determining a penalty, and its penalty decision was reasonable, given the facts and the range of penalties for similar misconduct. Accordingly, the cross-appeal should be dismissed.
Conclusion
[34] For these reasons, the appeal and the cross-appeal are dismissed. Given that both parties were unsuccessful on their appeals, there will be no order as to costs.
Swinton J.
I agree _______________________________
Wilton-Siegel J.
I agree _______________________________
Sheard J.
Released: April 8, 2019
CITATION: Cartier v. College of Nurses of Ontario, 2019 ONSC 2289
DIVISIONAL COURT FILE NO.: 314/18
DATE: 20190408
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SWINTON, WILTON-SIEGEL AND SHEARD JJ.
BETWEEN:
LOUISE MARIE P. CARTIER Appellant/Respondent on Cross-Appeal
– and –
COLLEGE OF NURSES OF ONTARIO Respondent/Cross-Appellant
REASONS FOR DECISION
Swinton J.
Released: April 8, 2019