Court File and Parties

CITATION: Szommer v. Ontario College of Nurses, 2021 ONSC 8463

DIVISIONAL COURT FILE NO.: 785/21

DATE: 20211223

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: TANYA SZOMMER and ONTARIO COLLEGE OF NURSES AND HEALTH PROFESSIONS APPEAL AND REVIEW BOARD

BEFORE: D.L. Corbett J.

COUNSEL: Ms. Szommer, self-represented

HEARD: In Chambers, In Writing

ENDORSEMENT

[1] Ms Szommer made a complaint to the Ontario College of Nurses in respect to the respondent nurse respecting events that took place at a fertility clinic in 2009 and 2010. The complaint was made in 2019, roughly a decade after the events in issue.

[2] The essence of the complaint was that the nurse falsely recorded visits and bloodwork undergone by the applicant.

[3] The College investigated and determined that original records were no longer available from so long ago, but that electronic records continue to be available. Those electronic records did not bear out the complaint.

[4] The applicant asserts that the records have been falsified.

[5] The College decided to investigate the complaint no further, based on the time between the events in issue and the complaint, and the fact that the electronic records do not bear out the complainant’s complaint.

[6] The complainant appealed the College’s decision to the HPARB, arguing that the College should have investigated further, given her evidence that the records had been falsified.

[7] HPARB affirmed the College’s decision and relied upon the contemporaneous medical records before it:

The Board notes the Committee’s reliance on the health records contained in the Record. Health records are legal documents which all health professionals are required to make. They provide a contemporaneous record of the interactions with the patient, made by health professionals prior to the commencement of any complaint or legal process. As such, in the absence of compelling information to the contrary, health records are a reliable source of information as to what occurred during patient encounters. (para. 25)

[8] The applicant commenced an application for judicial review to this court from the HPARB decision, alleging the HPARB erred in law and rendered an unreasonable decision in relying on the medical records.

[9] This court directed that a notice pursuant to R.2.1.01 be given to the applicant that the court is considering dismissing the application as frivolous, vexatious and an abuse of process. The court provided the following explanation for this notice:

Justice Corbett directs me to advise you as follows:

The court has directed that notice be given pursuant to R.2.1.01 that the court is considering dismissing this application as frivolous, vexatious and/or an abuse of process in that it fails to raise an arguable basis on which this court could grant judicial review of the HPARB decision.

Ms Szommer's application is based on an argument that a more thorough investigation of her allegations could have led the ICRC to a different conclusion. It is always possible to investigate a matter more thoroughly. On the basis of the investigation that the ICRC did conduct, it found corroboration for the respondent nurse's position and no basis to corroborate the complainant's version. The events in question took place a decade ago, and although it is not stated, it is implicit that the complainant's oral evidence about these events could not be sufficient to displace the existing medical records to justify disciplinary proceedings against the nurse.

The HPARB found that the ICRC's investigation was sufficient and its decision was reasonable. In this court, such a decision is accorded considerable deference. The Legislature has assigned the task for assessing these matters to the ICRC and the HPARB and not to a court. Ms Szommer does not appear to have identified an error of law or an unreasonable finding of fact that could possibly justify this court interfering with the decision below.

Ms Szommer is directed to explain to the court, in her response to the notice pursuant to R.2.1.01, the legal error made by the HPARB, or the finding of fact for which there is no evidentiary basis such that this court could be justifying intervening.

[10] In her submissions, the applicant repeats her arguments about falsification of the medical records and argues that it was an error of law for the HPARB to accept them, given the concerns she has raised about them. She also argued that she should have had more disclosure of the materials that were uncovered during the investigation. She did not address the issue of delay between the events in issue and her complaint and the impact of this delay on any potential investigation and prosecution of the nurse.

[11] There is no arguable error in the Board’s statement of principle respecting the general reliability of medical records, as quoted above. Ms Szommer’s arguments to this court are primarily focused on whether there are “compelling circumstances to the contrary” that should have led the College, and latterly the HPARB, not to rely on the medical records and to have investigated further. The finding of the HPARB that there are no such compelling circumstances is a factual finding rooted in the record before the HPARB. Ms Szommer’s personal recollection of events that took place more than a decade ago was not sufficient to displace the reliance placed on the records by the HPARB.

[12] This is not a private lawsuit. It is a professional disciplinary complaint. In deciding whether to investigate further, the College must be mindful of whether a fair defence of the allegations is possible, given the very long period that has elapsed between the events in issue and the complaint. In such circumstances, reliance on the medical records rather than oral testimony of events going back ten years, is even more compelling.

[13] Rule 2.1.01 is invoked to dismiss a proceeding only in the “clearest of cases”. This is such a case. Given the nature of the complaint, the long delay between the events in issue and the complaint, the contents of the existing medical records, the usual weight placed on those records, and the evidence to the contrary being substantially comprised of the personal recollection of the applicant, there is no argument available to the applicant that the HPARB was unreasonable in finding that there were no “exceptional circumstances” to displace the medical records and that the decision of the College to investigate no further should be upheld.

[14] Further, this case is brought as an application. There is a right of appeal from the HPARB, and this court will not ordinarily entertain an application for judicial review unless an applicant has exhausted her appeal rights. If there appeared to be merit to the underlying case, I would strike the notice of application with leave to deliver a notice of appeal within a reasonable period of time. However, there is no prospect an appeal could succeed. Therefore, the application is dismissed pursuant to R.2.1.01, without costs.

“D.L. Corbett J.”

December 23, 2021