CITATION: Cabot v. College of Nurses of Ontario, 2023 ONSC 2977
DIVISIONAL COURT FILE NO.: 802/21
DATE: 20230519
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, J. LEIPER and K. MUSZYNSKI, JJ.
BETWEEN:
ISABELLE CABOT
Appellant
– and –
COLLEGE OF NURSES OF ONTARIO
Respondent
COUNSEL:
Andrew Faith and Brookelyn Kirkham, for the Appellant
Jean-Claude Killey, for the Respondent
HEARD at Toronto by videoconference, May 15, 2023
REASONS FOR DECISION
Leiper, J.
I. Overview
[1] The Appellant, Isabelle Cabot appeals a 10-month suspension penalty imposed by a panel of the Discipline Committee of the College of Nurses (the “Panel”).
[2] The conduct in question involved an inappropriate intimate relationship between the Appellant and her former patient C.R.L. which began as his marriage to C.L. was ending. As the Appellant became personally involved with C.R.L., she also provided mental health treatment to C.L. It was in this context that the Appellant admitted she failed to meet the standards of practice in failing to maintain the boundaries of the nurse-patient relationship with C.R.L. and C.L.
[3] At the penalty hearing before the Panel the Appellant sought a suspension in the range of 2-3 months. The College sought a suspension of 12-14 months.
[4] The Appellant submits on appeal that the Panel imposed an unfit penalty and gave inadequate weight to the context of the misconduct: an emotionally abusive dynamic in which the Appellant was dominated and manipulated by her former patient. Psychological evidence filed with the Panel opined that she was not a future risk to the public and had herself been traumatized by her former partner. Further, difficult personal circumstances in the Appellant’s life led her to be vulnerable to becoming involved with C.R.L. and all of the suffering which arose from that relationship.
[5] The College responds that the Panel carefully considered the context and the abuse suffered by the Appellant, along with the other factors relevant to imposing a penalty on a regulated professional. It reduced what could have been a more severe penalty and reduced the period of suspension as a result of the mitigating evidence tendered on penalty. The College submits that the Panel neither erred in principle nor imposed a clearly unfit penalty.
II. Background Facts
[6] The appellant has been a registered nurse since 2006. In November 2016 she registered as a nurse practitioner. At the time of the events that brought her before the College, she worked full time as a nurse practitioner in a clinic in Eastern Ontario. The Appellant had no prior discipline history at the time of the hearing. She had a history of good character and providing care to underserved communities. She had recently separated and was raising her child on her own.
[7] In January 2017, the Appellant began treating C.R.L. and in February of 2017, C.R.L.’s spouse C.L. became her patient.
[8] In March of 2017 C.L. and C.R.L. attended the Clinic to seek treatment for C.R.L.’s severe tooth pain. The Appellant advised them to go to the hospital immediately. At their request, the Appellant gave them her personal phone number so they could contact her about C.R.L.’s condition.
[9] Between June and July 2017, the Appellant and C.R.L. began exchanging text messages about their personal lives. The Appellant continued to provide in-person treatment for both C.R.L. and C.L.
[10] On July 11, 2017, the Appellant texted C.R.L. that their “relationship/friendship needs to remain on a professional level […] until a more appropriate time in [their] lives.” She explained that she could not continue a personal relationship with C.R.L. as “at the end of the day [she] need[ed] to respect [her] career”. C.R.L. responded that he was “heartbroken”, “shocked”, and “hurt” but that he would “be OK”. C.R.L. texted that he thought it was best if he and C.L. found a new medical provider, and that he would call the Clinic to be taken off the Appellant’s patient roster.
[11] C.R.L. and C.L. stayed on the Appellant’s patient roster. By August of 2017, the Appellant and C.R.L. exchanged text messages which included expressions of affection. On August 18, C.L. confronted the Appellant at her home, and accused her of ruining her marriage. The Appellant threatened to call the police to persuade C.L. to leave. Later that day, C.R.L. called the Clinic and asked to be removed from the Appellant’s roster of patients. The Appellant asked another practitioner to take over both C.L. and C.R.L. as patients.
[12] The Appellant explained to her colleague that C.R.L. was interested in a relationship outside the therapeutic boundaries. She sent an email to her colleague which confirmed her request to transfer the care of C.L. and C.R.L.
[13] However, the Appellant continued to treat C.L. even after the confrontation at her home, documenting on August 22, 2017, that C.L. was “going through a separation” and assisted her with an agreement for long term opioid therapy. Apparently, this was at C.R.L.’s insistence and with C.L.’s agreement.
[14] In September of 2017 C.R.L. and the Appellant moved in together and began an intimate personal relationship. C.R.L. was no longer her patient, but C.L. continued in treatment with the Appellant until September 28, 2017.
[15] On October 1, 2017, C.L. texted the Appellant:
U ruined my family thanks
How do you live with yourself
Good bye
Im.not seeing you on the 24th I want that new doctor u said
Its funny u think chris likes u Awell Not my business Bye
[16] C.L. transferred care providers on October 11, 2017. In 2018, both C.L. and C.R.L. complained to the College about the Appellant’s conduct.
III. The Penalty Hearing and Decision on Penalty
[17] At the penalty hearing, the Appellant tendered evidence of the psychological and emotionally traumatizing aspects of her relationship with C.R.L. which ended after he was charged with trafficking in restricted substances. He is currently serving a lengthy penitentiary sentence.
[18] At the penalty hearing, counsel tendered certain communications from C.R.L. to the Appellant after his arrest in which he is abusive, profane and threatening. Expert psychological evidence tendered on the Appellant’s behalf found that she had been vulnerable to an isolated instance of unprofessionalism with her former patient owing to her own personal circumstances at the time. It concluded that she was a victim of domestic violence and was affected by post-traumatic stress disorder because of the relationship.
[19] In addition, the Panel received numerous letters of good character in support of the Appellant, as well as letters describing the value of her nursing services to her community. The Panel received evidence that she had engaged in counselling at the recommendation of the psychologist who had assessed her for the penalty hearing.
[20] Several aspects of the penalty were the product of a joint submission, except for the length of the suspension. The Appellant sought a suspension of 2-3 months, and counsel for the College sought a 12 to 14-month suspension rather than revocation, due to the mitigating circumstances which were unique to this case and not present in any of the comparative cases filed before the Panel.
IV. The Issue on Appeal
[21] Was the 10-month suspension imposed by the Panel an unfit penalty or the product of an error in principle?
V. Standard of Review
[22] The standard of review on an appeal to this court from an administrative tribunal are the appellate standards of review. Errors of law are subject to a correctness standard. Questions of fact are determined on a reasonableness standard, as are questions of mixed fact and law, unless there is an extricable error of law: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 37 citing Housen v Nikolaisen, 2002 SCC 33 at paras 10, 19, 26-37.
[23] On an appeal from a sanction imposed by a regulated professions tribunal, the court will interfere will a tribunal’s penalty decision only if the penalty reflects an error in law, an error in principle, or if the penalty is “clearly unfit”: Budarick, 2022 ONSC 640 at para 40.
VI. Analysis
a) Did the Panel Err in Principle in Imposing a 10-month Suspension?
[24] The Appellant submits that the suspension imposed was unreasonable because it failed to consider her personal circumstances at the time of the conduct and the unique circumstances of this case. Although the Panel found that C.R.L was persistently abusive and manipulative towards the Appellant, which contributed toward the Appellant allowing the boundaries of the nurse-client relationship to be breached, counsel submitted that the Panel focused on the more usual power-dynamics between nurses and patients without recognizing the harm experienced by the Appellant inflicted on her by C.R.L. Counsel argues that the Appellant was denied the full mitigating impact of her circumstances because unlike the usual nurse-patient dynamic, here the Appellant had less “power” in this relationship and did not exploit her professional power relative to C.R.L.
[25] The Appellant submits that the Panel’s reasoning error in this regard can be seen in what counsel described as the “egregious conclusion that “[d]espite Patient C.R.L.’s persistent abusive and manipulative behaviour towards the Member, Patient C.R.L. was still entitled to benefit from the protections that therapeutic nurse-client relationship affords with respect to maintaining boundaries” (Emphasis added). The Appellant submits it was an error for the Panel to focus on the need to hold her accountable for her actions and to demonstrate to other members of the College that serious sanctions will be imposed for breaches of boundaries.
[26] I would not give effect to this submission. First, it is clear from the detailed reasons given by the Panel that it understood and considered the circumstances of the relationship, including the harm experienced by the Appellant. The Agreed Statement of Facts included detailed descriptions of the abusive and threatening communications from C.R.L. to the Appellant in the aftermath of his arrest for drug trafficking, and the birth of their child. The Panel found that there had been “considerable abusive conduct” by C.R.L. towards the Appellant. It considered and accepted key features of the psychological assessment conducted by Dr. Jaffe and wrote:
The Member was assessed by Dr. Jaffe using a lengthy interview and psychological testing. Dr. Jaffe opined that this case was an isolated incident and that the Member is not at risk to reoffend. Furthermore, Dr. Jaffe reported that a negative power dynamic existed between Patient C.R.L. and the Member and this caused psychological harm to the Member. The Member currently suffers from PTSD as a result of the abuse that she endured from her relationship with Patient C.R.
[27] The argument made before the Panel, and repeated in this appeal, was that C.R.L. pursued the Appellant and was the aggressor in the relationship. The Panel noted this submission and considered that the Appellant was at a vulnerable point in her personal life, having recently separated and moved into a new community. The Panel connected these submissions to the Appellant’s submission that a shorter suspension, in the range of 2-3 months was responsive to the conduct and the mitigating features.
[28] In its reasons for penalty, the Panel adverted to the psychological evidence, the trauma suffered by the Appellant and the principles involved in assessing penalty. The Panel did not make any error in principle in observing that C.R.L. himself, as a patient, was entitled to the benefit of the professional boundaries which the Appellant, as a registered nurse-practitioner, was bound to enforce. The Panel understood that while the Appellant did not actively prey on her patient, her acceptance of the attentions of her former patient and role in his leaving his marriage to her other patient, meant that her failure to uphold her professional boundaries was a harmful breach. All patients are entitled to the benefit of professional boundaries, even those who actively strive to cross those boundaries. Further and in any event, of course, the Appellant’s misconduct was a harmful breach in relation to her patient C.L.
[29] I find that the Panel made no error in principle in its approach to the evidence tendered on penalty and did not misapprehend the nature of the relationship dynamics, the psychological evidence of harm to the Appellant or the responsibilities of members in upholding professional boundaries in its approach to imposing a penalty in this matter.
VII. Did the Panel Err in its Application of Similar Penalty Cases to the Circumstances?
[30] The second component to the Appellant’s submission is that a 10-month suspension was outside the range imposed in similar cases. The Panel had before it cases that ranged from three months suspension to revocation, and the reasons for penalty summarize those cases in the section describing the submissions of the College and the Appellant.
[31] The Appellant submits that, in particular, the Panel placed inappropriate weight on two decisions involving vulnerable patients: College of Nurses of Ontario v Trzop and College of Nurses of Ontario v Hawil.
[32] I disagree. The Panel summarized the cases and was clearly alive to the range of penalties for boundary violations by nurses in a variety of relationships with patients, former patients and family members of patients. The first important point, which the Panel noted, is that there are no “perfectly similar historical cases” to the case at bar. This explains the range in available penalty, which counsel for the Appellant conceded during submissions. In this case, the College sought a 12-14 month penalty noting that, but for the mitigating features, it would have sought revocation.
[33] The Appellant, who sought a lower suspension of 2-3 months, provided four prior decisions in which the Panel had imposed three-month suspensions.
[34] The Panel emphasized the seriousness of the conduct and the impact on both patients, C.R.L. and C.L. It referred to elements in common, with the decisions in Trzop and Hawil, of boundary violations involving sexual relationships which affected vulnerable patients.
[35] Trzop involved a 90-year-old client to whom the member provided in-home palliative care. The member initiated a personal and sexual relationship with the patient’s grandson while in the patient’s home. The member offered and obtained controlled substances for the patient’s daughter that were not prescribed to her. The member also moved into the patient’s home and engaged in a financial relationship with the patient’s daughter by agreeing to pay her rent. The Panel ordered a 12-month suspension which was the result of a joint submission.
[36] Hawil involved an extremely vulnerable patient who was admitted to a psychiatric unit following a suicide attempt. Six weeks after the patient was discharged, the member called the patient and took her out for lunch. The member then took the patient to a motel to have sex, driving her home after and giving her money to buy cigarettes. The patient reported the incident to the hospital a year later, fearing that if she needed hospitalization again, the member might be her nurse. The parties presented a Joint Submission for an Order revoking the member’s certificate. The member resigned prior to the hearing.
[37] The Appellant submits the Panel ought to have discussed and applied the penalty decisions such as College of Nurses of Ontario v. Seymour and College of Nurses of Ontario v. Baker, which involved shorter suspensions.
[38] Seymour involved a boundary violation in which the Member initiated a personal relationship with a patient that became intimate following the patient’s discharge from care. The patient divorced his spouse because of the relationship with the Member. They eventually married. A three-month suspension was imposed because of a joint submission.
[39] In Baker the Member provided care to a client who suffered from Alzheimer’s Disease. While providing care to the client, the Member initiated a relationship with the client’s husband and concealed the relationship from her client and the facility. The Panel imposed a three-month suspension here, again based on a joint submission.
[40] The Appellant submits that both Seymour and Baker have more in common with her circumstances because they involve intimate relationships with spouses of patients, but without the exceptional mitigating factors in her case, including the abuse by the patient toward the member and the impact on the member of that abuse.
[41] Counsel for the College argued, and I accept, that there are no prior decisions that align significantly with the facts here, although the boundary issues involving two patients who were spouses is an element found in one of the cases that was put before the Panel. In College of Nurses of Ontario v Riehl, in which a Nurse Practitioner was providing primary care healthcare to a husband and wife and began a sexual relationship with the husband while continuing to provide care to both.
[42] The key distinguishing feature of Riehl is that the member’s sexual relationship with her patient took place during the nurse-patient relationship (unlike in the Appellant’s case, where C.R.L. had ceased to be a patient a few weeks after sexual contact occurred). Because this amounted to sexual abuse under the Health Professions Procedural Code, O. Reg. 262/18, this conduct attracted the mandatory penalty of revocation.
[43] The Panel demonstrated that it was aware of the range of penalties and circumstances of the cases that formed part of the submissions on penalty. While it did not discuss in great detail its approach to all of the cases put before it, the Panel summarized the cases which revealed a relatively broad spectrum of available periods of suspension for boundary violations. The Panel considered the seriousness of the conduct, which included boundary violations of both a current and former patient and took into account the unique mitigating factors. Read as a whole, the Panel’s reasons demonstrate that it was aware of the principles, the available range and implicitly found that a longer suspension was warranted, even after controlling for the mitigating features in the evidence. The reasons adequately explained why the Panel imposed the penalty that it did. If C.L. had not been a patient of the Appellant, the appropriate penalty might well have been in the range suggested by the Appellant. But C.L. was and continued to be a patient of the Appellant, and this aspect of the case justifies the Panel’s decision on sanction: but for the mitigating circumstances, revocation could have been the appropriate disposition.
[44] Imposing penalty is a highly individualized process. There is no one “correct” penalty in any given case, and while different panels might impose different penalties, on appeal, it is not the task of the court to substitute the penalty that we might prefer. Rather, returning to the standard of review, we must discern whether the penalty was fit in the circumstances, whether the Panel considered adequately the aggravating and mitigating circumstances and prior decisions and communicated its reasons for doing so sufficiently. This Panel did so. I would not interfere with the result.
VIII. Conclusion
[45] I would dismiss the appeal. As agreed by the parties there shall be no order as to costs.
J. Leiper J.
I agree:
D.L. Corbett J.
I agree:
K. Muszynski J.
Released: 19 May 2023
CITATION: Cabot v. College of Nurses of Ontario, 2023 ONSC 2977
DIVISIONAL COURT FILE NO.: 802/21
DATE: 20230519
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. CORBETT, J. LEIPER and K. MUSZYNSKI JJ.
BETWEEN:
ISABELLE CABOT Applicant
-and-
COLLEGE OF NURSES OF ONTARIO Respondent
REASONS FOR DECISION
Leiper J.
Date of Release: 19 May 2023