Ghafur v. College of Nurses of Ontario, 2022 ONSC 6996
DIVISIONAL COURT FILE NOS.: 032/22 and 115/22
DATE: 20221213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M. Edwards R.S.J., Backhouse and Nishikawa JJ.
BETWEEN:
Carrie Young
Applicant
– and –
College of Nurses of Ontario
Respondent
AND BETWEEN:
Nadia Ghafur
Applicant
– and –
College of Nurses of Ontario
Respondent
Niiti Simmonds and Adrienne Anderson, for the Applicant Carrie Young
Dena Smith-Springer and Miriam London, for the Applicant Nadia Ghafur
Megan Shortreed, Denise Cooney and Claire McNevin, for the Respondent
HEARD: September 16, 2022, at Toronto by videoconference
REASONS FOR DECISION
Nishikawa J.
Overview
[1] The Applicants, Carrie Young and Nadia Ghafur, both bring applications for judicial review challenging decisions of the Respondent, College of Nurses for Ontario (the “College”), requiring that both Applicants be cautioned following investigations by the College’s Inquiries, Complaints and Reports Committee (the “ICRC”). In the case of Ms. Ghafur, she was also required to complete a specified continuing education or remediation program (“SCERP”). Both Applicants seek to quash the decisions on the basis that they are unreasonable and that the process lacked procedural fairness.
[2] Based on the overlapping issues in the appeals, they were heard together. These Reasons apply to both applications for judicial review.
[3] For the reasons that follow, both applications for judicial review are granted. The ICRC’s decisions are unreasonable because the ICRC failed to engage with the Applicants’ delay and abuse of process arguments. In the case of Ms. Young, the ICRC also failed to engage with her submissions based on the Ontario Human Rights Code, R.S.O. 1990, c. H.19 (the “Human Rights Code.”)
Factual Background
Ms. Young
[4] Ms. Young is a registered nurse who has been registered in good standing with the College since June 20, 2005. Ms. Young worked at the London Health Sciences Centre as a registered nurse from June 2005 to 2017. From 2015-2017, she worked in the Gynecological Surgical Unit. At the time, Ms. Young was experiencing an exacerbation of her mental health disabilities of anxiety and depression, negatively impacting her professional performance. She took two approved medical leaves: from September 2015 to approximately January 2016 and in March 2016. In March 2016, Ms. Young was removed from providing independent direct patient care. She resigned on February 1, 2017 and moved to a new role in long-term care.
[5] The incidents under review involved concerns about Ms. Young’s documentation, lack of familiarity with new or complicated equipment, and fluid balance calculation errors. More specifically, it was alleged that Ms. Young:
• incorrectly operated equipment to take a particular reading for a patient, causing incorrect readings of the patient’s fluids;
• disconnected a patient from an IV and a patient-controlled analgesia pump while trying to organize IV lines;
• improperly drew blood and failed to document nursing assessments and/or interventions for the patient;
• failed to complete a dressing change;
• inaccurately calculated and documented a patient’s fluid balance; and
• failed to calculate a patient’s fluid intake and output for a 12-hour shift, and/or failed to document those calculations.
[6] After an investigation, on November 17, 2021, the ICRC issued an order requiring that Ms. Young be cautioned in relation to two College standards (professional standards and documentation). The basis for the ICRC’s decision was that there was sufficient information to support the allegation of a “consistent lapse in [Ms. Young’s] practice which exposed patients to significant risk of harm.”
[7] As a result, a caution now appears on the Public Register under Ms. Young’s profile on the College’s website.
Ms. Ghafur
[8] Ms. Ghafur is a registered nurse who has been in good standing with the College since June 2010. She was employed in the Labour and Delivery Unit at Humber Memorial Hospital. In 2015, Ms. Ghafur was relocated to a different site as a result of a hospital merger. Her employment was terminated on April 4, 2017.
[9] On May 25, 2017, the College received a report from the hospital stating that it had terminated the Applicant “for reasons of professional misconduct, incompetence or incapacity.” The report was related to allegations from 2015 and 2017. More specifically, in connection with three incidents, it was alleged that Ms. Ghafur:
• failed to appropriately manage a patient’s labour by not correctly interpreting and/or documenting fetal heartrate, not recognizing tachysytole and/or not stopping to administer oxytocin in response, and not obtaining an OB/GYN consult and/or escalating concerns regarding same to someone else;
• failed to appropriately manage a different patient’s labour by failing to document intrauterine resuscitation efforts, not documenting and/or incorrectly documenting one or more occasions relating to fetal heart rate, and not obtaining an OB/GYN consult and/or not escalating concerns regarding fetal heart rate; and
• failed to conduct or document one or more maternal post-partum checks at the required frequency.
[10] After an investigation, on January 19, 2022, the ICRC issued an order requiring that Ms. Ghafur be cautioned regarding three College practice standards: documentation, medication, and professional standards. Ms. Ghafur was also ordered to complete a SCERP about the same three standards.
[11] A caution and SCERP appear on the Public Register under Ms. Ghafur’s profile on the College’s website.
The Statutory Scheme Under the Health Professions Procedural Code
[12] The College regulates the practice of nursing in Ontario. The College’s primary duty is to serve and protect the public interest: Health Professions Procedural Code, s. 3(2), Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sched. 2 (the “Code”). The Registrar of the College may appoint an investigator to determine whether a member has committed an act of professional misconduct or is incompetent: Code, s. 85. Before appointing an investigator, the Registrar must have reasonable and probable grounds and must obtain the approval of the ICRC, a statutory committee of the College: Code, s. 75(1).
[13] Once an investigation is complete, the Registrar reports the results to a panel of the ICRC for consideration: Code, ss. 25 and 79. The member who is the subject of a report has an opportunity to make written submissions to the ICRC: Code, s. 25.2(1). Under s. 26(1) of the Code, the ICRC is required to consider and take prescribed actions regarding reports and complaints into members’ professional conduct and/or competence. Subsection 26(1) states as follows:
What a panel may do
26 (1) A panel, after investigating a complaint or considering a report, considering the submissions of the member and making reasonable efforts to consider all records and documents it considers relevant to the complaint or the report, may do any one or more of the following:
Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint or the report.
Refer the member to a panel of the Inquiries, Complaints and Reports Committee under section 58 for incapacity proceedings.
Require the member to appear before a panel of the Inquiries, Complaints and Reports Committee to be cautioned.
Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws.
[14] The panel of the ICRC must give the member a copy of its decision and, where the ICRC issues a caution or a SCERP, a copy of its reasons. The College must place a notation of the caution or SCERP on the Public Register: Code, s. 23(2)7. The Register is accessible on the College’s website. The notations remain on the Register indefinitely.
Issues
[15] The applications for judicial review raise the following issues:
(a) Were the ICRC’s decisions unreasonable because they failed to address the Applicants’ submissions relating to delay and abuse of process?
(b) Was the ICRC’s decision regarding Ms. Young unreasonable because it failed to consider her submissions regarding the Human Rights Code?
(c) Were the ICRC’s reasons adequate in light of the issues raised by the Applicants?
(d) Was there inordinate delay and did it cause significant prejudice, resulting in an abuse of process?
Analysis
The Applicable Standard of Review
[16] The parties agree that the standard of review applicable to the decisions is reasonableness. For issues of procedural fairness, the standard of review analysis need not be applied. The court applies the factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 to determine the level of procedural fairness required in the circumstances of the case and whether it was met: Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] S.C.R. 653, 2019 SCC 65, at para. 77.
[17] The reasonableness standard requires that the “reviewing court ask whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision.” Vavilov, at para. 99. Those constraints include the governing statutory scheme, other relevant statutory or common law, the principles of statutory interpretation, the evidence before the decision-maker, the submissions of the parties, the past practices and decisions of the administrative body, and the potential impact of the decision on the individual to whom it applies: Vavilov, at paras. 108-135.
Were the Decisions Unreasonable Because They Did Not Address the Applicants’ Delay and Abuse of Process Arguments?
[18] The Applicants take the position that the decisions are unreasonable because the ICRC failed to address their central arguments relating to delay and abuse of process. In both cases, more than four years passed from the time the Applicant’s employment came to an end in 2017 and their receipt of the investigation documents and request for submissions from the ICRC in 2021.
[19] In Ms. Young’s case, her employer filed a report with the College following her resignation, as required under the Code, on February 27, 2017. Eighteen months later, on September 5, 2018, the ICRC approved the College’s request to appoint an investigator. The College first notified Ms. Young that an investigation had been approved on February 14, 2019, almost two years after her resignation. More than two years later, on June 2, 2021, the College provided Ms. Young with a copy of the investigation documents and requested that she provide a written submission to the ICRC. On November 17, 2021, the ICRC issued the order requiring that Ms. Young appear to be cautioned.
[20] Ms. Ghafur’s former employer filed a report with the College on May 25, 2017. Ms. Ghafur was advised on November 7, 2018 that the ICRC had approved an investigation into her nursing practice. More than two years later, on December 7, 2020, Ms. Ghafur received a letter stating that a new investigator had been appointed. On August 19, 2021, she received a copy of the investigation documents and a request that she provide written submissions. On January 19, 2022, the ICRC issued the order requiring that Ms. Ghafur appear to be cautioned and that she complete a SCERP.
[21] The Respondent submits that the ICRC could not consider the issues of delay and abuse of process because, as a screening body with a non-adjudicative function, it does not have a full record before it and cannot make findings of fact or law. In addition, the ICRC receives submissions from the member only and not from the College, which has no status until the matter is referred to the Discipline Committee. The Respondent further submits that the ICRC lacks statutory authority to hear procedural motions, such as for abuse of process.
[22] In my view, the Decisions are unreasonable because they failed to adequately address the Applicants’ submissions relating to the delay.
[23] In Vavilov, at para. 86, the Supreme Court stated that it is insufficient for the outcome of a decision to be justifiable. “Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies.” (Emphasis in original.) As a result, the principles of justification and transparency require that the decision-maker’s reasons “meaningfully account for the central issues and concerns raised by the parties.”
[24] In addition, s. 27(1) of the Code requires that, if the member is being required to appear before the ICRC to be cautioned, the panel give reasons. Under s. 26(1), the panel may determine the appropriate disposition after, among other things, “considering the submissions of the member[.]” The combination of those provisions of the Code thus support that when ordering a caution, the panel of the ICRC is required to articulate and provide a rationale. In doing so, the ICRC must take the member’s submissions into consideration and show, through its reasons, that those submissions were considered.
[25] In their submissions, both Ms. Young and Ms. Ghafur argued that the delay in the conduct of the investigations was inordinate and that the test for abuse of process was met. Both submitted that their ability to respond to the allegations was compromised because of the delay and gave specific examples of witnesses who could not be interviewed or documents that were no longer available. Both Applicants argued that they were prejudiced by the ICRC contacting their current employers, which caused them distress, anxiety and was stigmatizing to them. The Applicants submitted in the alternative that given the extensive delay, and because they had both been practising without incident in the approximately five years since the incidents at issue, the only appropriate disposition was for the ICRC to take no further action.
[26] Despite the Applicants’ extensive submissions on the delay and abuse of process issues, the decisions are silent on both the issue of delay and abuse of process. Both decisions address only the Applicants’ responses to the substantive allegations regarding the incidents that were investigated.
[27] As noted by the Supreme Court in Vavilov, an administrative decision-maker cannot be expected to respond to every argument or line of possible analysis. “However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.” Vavilov, at para. 128. In the absence of reasons, it cannot be ascertained from a review of the decisions whether the ICRC rejected the Applicants’ submissions relating to delay and abuse of process or whether it failed to consider them. The lack of any mention of the delay issue raises a question as to whether the ICRC was “alert and sensitive to” the Applicants’ submissions and whether those submissions were fully considered.
[28] In this case, the Applicants raised legitimate concerns about the time that had passed since the incidents at issue, their ability to respond to the investigation and the need for remedial action, given that they continued practising without incident for a number of years. Because a caution serves a remedial function, the ICRC’s reasons had to demonstrate that it considered whether a caution was in the public interest given the significant passage of time. While a caution soon after the conduct at issue would be expected to have remedial impact, a caution five years later might no longer be beneficial. At the very least, and given that both Applicants had raised the issue, the ICRC had to at least consider and give reasons as to why, in the circumstances, a caution remained the preferred disposition.
[29] I do not accept the Respondent’s submission that the ICRC was unable to consider the issues of delay and abuse of process because it does not engage in fact-finding. In Reyhanian v. Health Professions Appeal and Review Board, 2013 ONSC 297, at para. 20, this court found as follows:
… the ICRC is entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues (such as, the record of the respondent, special circumstances surrounding the incident, policy concerns, the capacity of the discipline committee, among others.)
[30] As the Supreme Court of Canada held in Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, at para. 38, administrative decision-makers have, as a corollary to their duty to act fairly, the power to assess allegedly abusive delay.
[31] Moreover, unlike the substantive allegations, the issue of delay did not require a significant degree of fact-finding. The amount of time that had passed between the initial reports and the investigation was readily apparent. Similarly, the ICRC would have known which witnesses it was unable to reach and what documents were no longer available. It is the Respondent who characterizes the Applicants’ submissions regarding the delay and abuse of process as a procedural motion outside the ICRC’s statutory authority. Assuming, without deciding, that the ICRC lacked authority to consider the Applicants’ submission that the proceeding should be stayed for abuse of process, the ICRC was not precluded from considering the Applicants’ submissions on those issues as they related to the appropriate disposition.
[32] As held by this court in Scarborough Health Network v. CUPE, Local 5852, 2020 ONSC 4577, at paras. 14-15, reasons must demonstrate some degree of analysis of the concerns and submissions of the parties because it is only through the reasons that a party can be sure that their submissions were considered. In my view, the failure to deal with the issue of delay in any “meaningful way” renders the decisions unreasonable. See: United Food and Commercial Workers Union, Local 175 v. Copper River Inn and Conference Centre, 2021 ONSC 5058 (Div. Ct.), at para. 39.
Was the Decision Pertaining to Ms. Young Unreasonable Because the ICRC Failed to Address Her Submissions Regarding the Ontario Human Rights Code?
[33] For similar reasons, I find that the ICRC’s Decision relating to Ms. Young is unreasonable because the panel of the ICRC did not address Ms. Young’s submissions based on the Human Rights Code.
[34] In her submissions to the ICRC, Ms. Young detailed how her practice at the time of the incidents had been directly and adversely impacted by her mental health disability. Ms. Young submitted medical documentation for the ICRC’s consideration. Ms. Young argued that the Human Rights Code applies to all self-governing professions and in determining the appropriate disposition. She submitted that the circumstances weighed in favour of the ICRC taking no further action.
[35] The Respondent’s position is that Ms. Young’s submissions based on the Human Rights Code were in essence a substantive defence to the allegations of misconduct. The Respondent submits that while the Discipline Committee could consider the legal issue of whether Ms. Young’s mental health disability would exculpate her from a finding of misconduct, the ICRC has no such mandate. The Respondent further submits that applying the Human Rights Code would require that the ICRC make factual findings that Ms. Young suffered from a mental health disability at the time of the incidents and that the disability impacted her work performance such that it excused breaches of her professional obligations.
[36] In addition to the delay and abuse of process issues, Ms. Young’s disability was a central issue raised in her submissions. It is unclear from the reasons whether the ICRC considered Ms. Young’s disability or her submission regarding the Human Rights Code. The reasons refer opaquely to “systemic issues”[^1] that might have impacted Ms. Young’s care of patients, but state that she remained “accountable for [her] actions which fell below the standard of care.” What is clear from the reasons is that the ICRC made no mention of the Human Rights Code and failed to “meaningfully grapple” with Ms. Young’s submissions regarding the impact of her disability on the incidents at issue or the appropriate disposition.
[37] The Human Rights Code is quasi-constitutional legislation and is relevant statutory law that acts as a constraint on how and what an administrative decision-maker can lawfully decide: Vavilov, at para. 106. In S.M. v. R.K.A.E., 2011 ON HPARB 37931, the Board found a decision of the ICRC unreasonable because it failed to analyze the complainant’s allegation of discrimination under the Human Rights Code. Although the Board referred to a policy regarding physicians and the Human Rights Code, it was not clear from the reasons how the policy was applied or that the allegation of discrimination was addressed.
[38] Moreover, in College of Nurses v. Trozzi, 2011 ONSC 4614, at 32, this court held that the College’s Registration Committee was required to apply the Human Rights Code when placing terms, conditions and limitations on a nurse’s certificate of registration. I recognize that the mandate and function of the Registration Committee differs significantly from that of the ICRC. However, I have difficulty with the proposition that the ICRC cannot, by virtue of its limited screening function, consider or apply the Human Rights Code. Leaving aside the question of whether the ICRC could consider Ms. Young’s disability as a substantive defence to the allegations of misconduct, I find that once Ms. Young raised her mental health disability in relation to a matter within the ICRC’s mandate, that is, whether some type of remedial action was required, it was incumbent on the ICRC to consider it.
[39] The decision pertaining to Ms. Young is unreasonable because the ICRC failed to apply and consider and address Ms. Young’s submissions based on her disability and the Human Rights Code.
Did the ICRC Make Capricious Findings of Fact in Relation to Ms. Ghafur?
[40] Based on my findings above, it is not necessary for me to consider Ms. Ghafur’s submission regarding the ICRC’s reliance on capricious findings of fact without any basis in the factual record.
Were the ICRC’s Reasons Adequate in Light of the Issues Raised by the Applicants?
[41] As set out in Vavilov, at paras. 91-96, reasons should be read with due sensitivity to the administrative setting in which they were given. In addition, a reasonableness review is expected to reflect the stakes of the decision to the impacted individual. Where a decision has a particularly harsh consequence to the individual, there is a higher onus on the decision-maker to explain its decision: Vavilov, at para. 133.
[42] The Respondent submits that the ICRC is not an adjudicative body and has no legal expertise. A panel of the ICRC consists of two nurses and a public member. Their expertise is not in the law or issues of procedural fairness, but in nursing standards and the protection of patients and the public. The Respondent further submits that where, as here, a screening committee requires a remedial and educative response to a member’s conduct, a reasonableness review permits less detailed reasons.
[43] While the ICRC is a screening body, its role and function are robust. The majority of investigations (58.2 percent) are disposed of by way of ICRC orders. The ICRC not only screens complaints and reports but has authority to make determinations as to the appropriate disposition. The ICRC is authorized to order cautions, remediation and interim suspensions. Although such orders are seen as remedial, because they remain indefinitely on the Public Register, which is readily accessible on the College’s website, such actions have a significant impact on a nurse’s reputation and livelihood. Moreover, a caution can be considered if the member faces discipline at some point in the future: Code, s. 26(2).
[44] In addition, where the ICRC orders a caution or remediation, the order is final: Code, s. 27(2). As such, the Applicants’ only opportunity to raise the procedural fairness issues of delay and abuse of process was before the ICRC. Therefore, it was incumbent on the ICRC to demonstrate in its reasons that it considered those issues in making the determination to order a caution and, in Ms. Ghafur’s case, remediation.
[45] For the reasons given above, I reject the College’s submission that while the issues of delay, abuse of process and disability might be issues before the Discipline Committee, they were not central issues before the ICRC. As explained above, the reasons do not provide the Applicants with any assurance that their central submissions were heard or considered by the ICRC. The reasons do not address how or why, given the passage of time, the remedial measures remained appropriate. As a result, I find that the reasons, read holistically, are inadequate because they fail to reveal a rational chain of analysis and are not sufficiently justified in relation to the record before the ICRC.
Was there inordinate delay and did it cause significant prejudice, resulting in an abuse of process?
[46] At the hearing, Applicants’ counsel advised that they were no longer seeking to quash the decisions on the basis of abuse of process. As a result, and given my findings above, it is not necessary to address this ground.
Conclusion
[47] Both applications for judicial review are granted. The decisions are quashed and the orders of the ICRC are set aside. The matters are remitted back to the ICRC for decision in accordance with these reasons.
[48] In accordance with the parties’ agreements on costs, the College shall pay costs in the amount of $5,000.00 all-inclusive to Ms. Ghafur and $5,000 all-inclusive to Ms. Young.
“Nishikawa J.”
“M. Edwards R.S.J.”
“Backhouse J.”
Released: December 13, 2022
Ghafur v. College of Nurses of Ontario, 2022 ONSC 6996
DIVISIONAL COURT FILE NOS.: 115/22 and 032/22
DATE: 20221213
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
M. Edwards R.S.J., Backhouse and Nishikawa JJ.
BETWEEN:
CARRIE YOUNG
Applicant
– and –
COLLEGE OF NURSES OF ONTARIO
Respondent
AND BETWEEN:
Nadia Ghafur
Applicant
– and –
COLLEGE OF NURSES OF ONTARIO
Respondent
REASONS FOR DECISION
Nishikawa J.
Released: December 13, 2022
[^1]: The decision pertaining to Ms. Ghafur also refers to “systemic issues.” In her case, because Ms. Ghafur did not raise any Human Rights Code-related issues, “systemic issues” appear to refer to the hospital merger and the change in work environment that Ms. Ghafur faced.