Court File and Parties

CITATION: Rowe v. College of Nurses of Ontario, 2023 ONSC 3735

COURT FILE NO.: DC-22-2755

DATE: 2023/06/23

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Craig Rowe, Applicant

AND

College of Nurses of Ontario, Respondent

BEFORE: Justice R. Ryan Bell

COUNSEL: Self-represented Applicant

Megan Shortreed and Douglas Montgomery, for the Respondent

HEARD: June 16, 2023

ENDORSEMENT on motion for extension of time

Overview

[1] Mr. Rowe moves for an extension of time to commence an application for judicial review of a decision of the College of Nurses of Ontario’s Inquiries Complaints and Reports Committee (“ICRC”). The College opposes the motion.

[2] There are two issues I must determine:

(i) On what day did the 30-day time limit in s. 5(1) of the Judicial Review Procedure Act[^1] begin to run?

(ii) If Mr. Rowe commenced his application beyond the 30-day time limit, should the court grant an extension of time under s. 5(2) of the JRPA?

[3] For the following reasons, I find that the 30-day time limit in s. 5(1) of the JRPA began to run on June 6, 2022 when Mr. Rowe and his counsel received notice of the ICRC decision. Mr. Rowe commenced his application for judicial review well beyond the 30-day time limit. I am not satisfied that there are apparent grounds for relief and I therefore decline to exercise my discretion to extend the time for filing this application.

Background facts and statutory framework

[4] Mr. Rowe first registered as a member of the College as a registered nurse in October 2000. He is not currently employed as a nurse but he is entitled to practise nursing without restrictions.

[5] The College is the regulatory body for registered nurses, registered practical nurses, and nurse practitioners in Ontario. The Regulated Health Professions Act[^2] (“RHPA”), the Health Professions Procedural Code[^3] (“Code”), and the Nursing Act, 1991[^4] and its regulations set out the College’s regulatory scope. In carrying out its objects, the College “has a duty to serve and protect the public interest”: Code, s. 3(2).

[6] The Code establishes the ICRC: Code, s. 10(1). Among other things, the ICRC investigates complaints and considers reports the College receives about nurses’ conduct.

[7] When the College receives a report, as it did in this case, an intake investigator conducts a preliminary review of the report. The purpose of the preliminary review is to provide a basis for the College’s Executive Director – who fulfills the duties of the “Registrar” within the meaning of the Code – to determine the appropriate regulatory response.[^5] The Executive Director may appoint an investigator under s. 75(1)(a) of the Code if the Executive Director believes on reasonable and probable grounds that a member committed an act of professional misconduct and if the ICRC approves the appointment. An intake investigator does not have the powers of an investigator appointed under s. 75(1)(a) of the Code.

[8] The Executive Director reports the results of an investigation to the ICRC under s. 79(a) of the Code. After considering the results of the investigation and the nurse’s response, if any, the ICRC determines the appropriate response to protect the public interest: Code, s. 26(1). The ICRC may refer specific allegations of professional misconduct or incompetence to the College’s Discipline Committee; the ICRC may also take non-disciplinary remedial measures, including requiring a nurse to appear before a panel of the ICRC to be cautioned: Code, s. 26(1)2 and s. 26(1)3.

[9] In December 2019, the College received a mandatory report from Mr. Rowe’s former employer, the Kemptville District Hospital. The Hospital reported multiple different incidents involving Mr. Rowe’s clinical practice and conduct that led to Mr. Rowe’s employment being terminated.

[10] The College conducted an intake investigation. On May 7, 2021, the College’s Executive Director appointed an investigator under s. 75(1)(a) of the Code. Mr. Rowe was advised of the investigator’s appointment on May 12, 2021. The College was advised on May 20, 2021 that Mr. Rowe was represented by a lawyer at the Ontario Nurses’ Association (“ONA”), Mr. Fong. Mr. Fong was subsequently replaced by another ONA lawyer, Adrienne Anderson.

[11] On January 25, 2022, the College’s investigator provided Mr. Rowe and his counsel with disclosure. On being notified by counsel for Mr. Rowe that it appeared the Hospital had provided an incorrect patient chart, the investigator removed the incorrect chart and provided the corrected disclosure to Mr. Rowe and his counsel on February 3, 2022. Mr. Rowe’s submissions in response to the disclosure were provided on February 24, 2022.

[12] On April 6, 2022, a panel of the ICRC reviewed the investigation report into Mr. Rowe’s nursing practice. The ICRC had before it the Report on Investigation and Mr. Rowe’s submissions. The incorrect patient chart did not form part of the Report on Investigation and was not before the ICRC.

[13] On June 6, 2022, the ICRC decision and its reasons were finalized and emailed to Mr. Rowe and his counsel. The next day, Mr. Rowe requested a hard copy of the decision.

[14] In its decision, the ICRC directed Mr. Rowe to appear before the ICRC to be cautioned. In its reasons, the ICRC reviewed each of the seven clinical issues that formed the basis of the investigation and Mr. Rowe’s submissions on each of the incidents. The ICRC noted that its function was not to assess credibility or to determine conclusively the facts of a situation. Having considered the information obtained through the investigation, the ICRC had concerns about Mr. Rowe’s nursing practice. The ICRC formed the view that it was consistent with the College’s mandate of public protection to caution Mr. Rowe with regard to four College standards.

[15] The caution was initially scheduled for October 4, 2022. To accommodate Mr. Rowe’s work schedule, the date was changed and the caution was ultimately scheduled for November 23, 2022.

[16] Mr. Rowe sought review of the ICRC decision before the Health Professions Appeal and Review Board (“HPARB”) on October 3, 2022. On October 6, 2022, HPARB advised Mr. Rowe that the review requested was beyond both the 30-day deadline and the ultimate 60-deadline for reviews at HPARB.

[17] On November 18, 2022, Mr. Rowe requested correction of alleged factual errors in the ICRC decision. He also indicated he intended to file reports of professional misconduct against the College’s former Executive Director, the intake investigator, the s. 75 investigator, and three members of the ICRC panel who were involved in the decision. On November 22, 2022, Mr. Rowe requested that the three members of the ICRC panel against whom he had filed reports of professional misconduct recuse themselves from the caution.

[18] Mr. Rowe’s caution was carried out on November 23, 2022. The three members of the ICRC panel against whom Mr. Rowe had filed reports of professional misconduct did not participate in the caution meeting.

[19] On November 30, 2022, HPARB notified Mr. Rowe that it lacked jurisdiction to proceed with the review because the ICRC decision was the result of a mandatory report.

[20] Mr. Rowe commenced his application for judicial review on December 21, 2022.

The time limit began to run from June 6, 2022

[21] Section 5 of the JRPA provides:

(1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).

(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.

[22] Mr. Rowe argues that his application for judicial review is not out of time because the ICRC decision was not completed until he received his caution on November 23, 2022. On the plain words of s. 5(1) of the JRPA, Mr. Rowe’s argument fails. Section 5(1) expressly provides that the application shall be made no later than 30 days after “the date the decision or matter…was made or occurred.” The ICRC decision was made or occurred on April 6, 2022 and the reasons were provided to Mr. Rowe and his counsel on June 6, 2022.

[23] I agree with the College that s. 5(1) of the JRPA cannot reasonably support an interpretation that the ICRC decision was only made on the delivery of the caution on November 23, 2022. It would be contrary to the legislative goal in enacting a time limit for commencing judicial review applications if the time could be extended well into the future to allow for the undertaking and completion of a remedial activity.

[24] In support of his position, Mr. Rowe submits that the cover letter enclosing the ICRC decision represented the caution as an opportunity to “discuss the many errors in the Reasons and Caution with the ICRC” and that there was a possibility that he may have obtained relief from the ICRC on November 23, 2022. Mr. Rowe is incorrect. The cover letter states that the caution will be an opportunity to “discuss what insights you have gained” and does not support the interpretation that Mr. Rowe seeks to place on it.

[25] I also agree with the College that Mr. Rowe’s own conduct contradicts his argument that the ICRC decision could not be reviewed until the caution was complete. First, Mr. Rowe sought HPARB review of the ICRC decision in October 2022. Although review by HPARB was not available to Mr. Rowe, Mr. Rowe clearly understood that the ICRC decision could be reviewed before the caution was complete. Second, the day before the caution, in his e-mail request that three members of the ICRC panel recuse themselves from the caution, Mr. Rowe wrote that the “Decision” is “already completed.”

[26] I also reject Mr. Rowe’s alternative argument that the time should start to run on the earlier date of April 6, 2022 and not on the date he and his counsel were provided with notice of the ICRC decision. Mr. Rowe’s alternative argument is antithetical to his primary position. With respect, it is illogical to suggest that the 30-day time limit mandated by the legislature could begin to run prior to the affected party receiving notice of the very decision for which judicial review is sought.

[27] The 30-day time limit began to run from June 6, 2022.

No extension of time under s. 5(2) of the JRPA

[28] Section 5(2) of the JRPA requires that, in exercising its discretion to extend the time for a judicial review, the court be satisfied (i) there are “apparent grounds for relief” and (ii) no substantial prejudice or hardship will result.

[29] As part of the apparent grounds for relief, the court should consider the length of the delay and any explanation offered for it: Unifor and its Local 303 v. Scepter Canada Inc., at paras. 17-18.[^6] The court should also assess the substantive merits of the application for judicial review: Jonker v. Township of West Lincoln, at para. 35.[^7] An applicant need not show that it has a successful application on the merits, but weak grounds for review will weigh against granting an extension: Unifor, at para. 22.

(i) Unexplained delay

[30] In this case, 198 days passed after Mr. Rowe had notice of the ICRC decision before he commenced his application for judicial review on December 21, 2022. The application was commenced 5.5 months after the 30-day time limit set out in s. 5(2) of the JRPA.

[31] The failure of an applicant to explain a delay may be “[f]oremost among the factors” in a court refusing to grant relief: P.P.G. Industries Canada Ltd. v. Canada (Attorney General), at p. 749.[^8] While the absence of an intention to challenge the decision in the relevant time period is not fatal on a motion for an extension of time, the presence of an intention to challenge the decision is an important consideration, unless the explanation for the absence of an intention mitigates its absence: Ontario Securities Commission v. Bluestream Capital Corporation, at para. 9.[^9]

[32] Mr. Rowe has not provided clear evidence of when he first formed the intention to review the ICRC decision. On October 3, 2022, approximately four months after he received notice of the ICRC decision, Mr. Rowe sought review (albeit incorrectly) before HPARB. The admissible evidence does not explain the reason for the four-month delay.

[33] I reject Mr. Rowe’s submission that it is “unfathomable to expect a reasonable person to be reasonably aware that this option [of judicial review] exists.” Mr. Rowe was represented by experienced ONA counsel throughout the investigation, and at the time he received notice of the ICRC decision and thereafter, until at least September 2022. On November 22, 2022, Mr. Rowe wrote the College that he was requesting a judicial review “via [his] Union-appointed lawyer (or via [his] retained independent counsel should the Union refuse to proceed).”

[34] In his submissions, Mr. Rowe stated that his lawyer failed to provide him with any information regarding judicial review and that she suggested he could take up his concerns with the ICRC decision at the caution. There is no admissible evidence to ground these submissions and I place no weight on them.

[35] In his evidence, Mr. Rowe summarizes his mental health challenges. He attributes his mental health crisis to the termination of his employment. He states that the crisis reached its “nadir” on March 2, 2021 and that he entered a “recovery phase” in April 2021. Delay must be specifically and directly attributable to a medical condition, including when depression or anxiety are advanced as grounds for the delay: Belyavsky v. Walsh, at para. 15.[^10] Although Mr. Rowe states that he continues to struggle with significant depression, there is no evidence that he was experiencing symptoms of depression during the period of delay, nor has Mr. Rowe explained how his mental health challenges would have prevented him from instructing his counsel to take steps to challenge the ICRC decision on his behalf. Based on the evidence in the record, I am unable to find that the delay was attributable to any medical condition.

(ii) Application lacks merit

[36] The applicable standard of review of the ICRC decision is reasonableness. To succeed on his application for judicial review of the ICRC decision, Mr. Rowe will be required to show that there are “sufficiently serious shortcomings in the … decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. […] the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable”: Canada (Minister of Citizenship and Immigration) v. Vavilov, at para. 100.[^11]

[37] Mr. Rowe advances numerous grounds of review, many of which are raised for the first time in this court. In my view, all of the grounds are weak.

[38] Mr. Rowe argues that the College acts and has acted outside its statutory authority by using intake investigators to gather information before the appointment of an investigator under s. 75. However, nothing in the Code precludes a less formal investigation. Indeed, in Rak v. Ontario College of Pharmacists, at para. 37,[^12] this court held that health colleges have “implied authority to do an informal investigation where they do not need the powers accompanying a formal appointment to investigate.”

[39] Mr. Rowe argues that the College intentionally violated the Freedom of Information and Protection of Privacy Act[^13] (“FIPPA”) by using investigative powers under s. 76 of the Code which are only available to investigators appointed under s. 75 of the Code. However, FIPPA does not apply to the College: the College is not defined as an “institution” under s. 2, nor is it “a service provider organization within the meaning of section 17.1 of the Ministry of Government Services Act.”[^14] In addition, an intake investigator does not have recourse to s. 76 investigative powers; rather an intake investigator may gather information from sources who provide it voluntarily.

[40] Mr. Rowe argues that the College acted outside its statutory authority through an “intentional misappropriation of the term ‘report.’” Section 26 of the Code requires the ICRC to consider a “report.” Read together with s. 79(a), this can only mean a Registrar’s report following a s. 75(1)(a) investigation. Mandatory reports from employers are not “reports” within the meaning of s. 26. In this case, the College’s Executive Director followed s. 75(1)(a) and s. 79(a) and the ICRC appropriately considered the Registrar’s report as it was required to do under s. 26 of the Code.

[41] Mr. Rowe argues that mandatory reports are, in fact, complaints and the College acted outside its statutory authority by not treating mandatory reports as complaints. Mr. Rowe is incorrect. A mandatory report arises due to a statutory duty to provide information to the College: Code, ss. 85.1, 85.2, 85.4, and 85.5. Complaints and reports take different forms and the process differs. For example, only complaints may be withdrawn and complainants (as opposed to those who report) have delineated procedural rights: Code, ss. 25.3, 27, and 29. In this case, the College received a mandatory report from the Hospital. The correct statutory process was followed.

[42] Mr. Rowe argues that the College acted outside its statutory authority by relying on investigators who are lay persons. There are no statutory requirements that the person appointed as an investigator must possess any particular qualifications. Investigators’ tasks are primarily driven by an information-gathering function, including collecting documents, materials, and other information about possible misconduct: Hooper v. College of Nurses (Ontario), at paras. 34-35.[^15]

[43] Mr. Rowe argues that the College acted outside its statutory authority by appointing ICRC panel members who are lay persons or registered practical nurses. Mr. Rowe is incorrect. A panel of the ICRC must consist of at least three members, at least one of whom is a public member: Code, s. 25(2). The expertise required to screen a complaint does not require expertise in the area of practice: Dr. Rajiv Maini v. HPARB et al, at paras. 46-50.[^16] Contrary to Mr. Rowe’s submission, the Professional Misconduct Regulation does not forbid registered practical nurses from being appointed as members of the ICRC.[^17]

[44] Mr. Rowe alleges that the ICRC misapprehended evidence with regard to “Incident #5”: he argues that the Hospital’s description of the incident was contradicted by the patient’s chart and that the ICRC’s failure to consider the differing factual basis was an error. I agree with the College that there is no basis to suggest the ICRC misapprehended the evidence before it. The ICRC decision discloses the ICRC panel carefully reviewed and considered Mr. Rowe’s submissions. As the ICRC noted, the panel does not make findings of fact or assessments of credibility. This is consistent with the ICRC’s role as a “screening committee” with no authority to make findings of professional misconduct: Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, at para. 31.[^18] It would have been inappropriate for the ICRC to resolve any inconsistencies in the written record.

[45] Mr. Rowe argues that the College erred by failing to provide him with notice of the receipt of the Hospital’s mandatory report within 14 days of receiving it. Mr. Rowe’s argument in this regard is based on a misreading of the Code. A member must be given notice of the report within 14 days of the Registrar filing the report of the investigation with the ICRC, not within 14 days of the Registrar receiving a mandatory report: Geris v. Ontario College of Pharmacists, at para. 24;[^19] Nathalie Xian Yi Yan v. College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, at para. 52.[^20]

[46] Mr. Rowe argues that the investigation was flawed because the Hospital provided the College investigator with an incorrect patient chart. The incorrect patient chart did not form part of the Record of Investigation that was provided to the ICRC. It could not, therefore, have affected the ICRC decision.

[47] Mr. Rowe argues that the ICRC decision was unreasonable by reason of investigative delay: there was a 25-month delay between receipt of the Hospital’s mandatory report in December 2019 and the provision of the investigative report to Mr. Rowe for his response in January 2022. The contextual factors to be considered by the court in determining whether the delay was inordinate include: (i) the nature and purpose of the proceedings; (ii) the length and causes of the delay; and (iii) the complexity of the facts and issues in the case: Law Society of Saskatchewan v. Abrametz, at para. 51.[^21] In my view, the merits of this argument are weak, particularly having regard to the College’s case load and the prioritization of high-risk cases.

[48] Having regard to the unexplained delay and the weakness of the application on the merits, I am not satisfied there are apparent grounds for relief under s. 5(2) of the JRPA. For completeness, I also consider the issue of substantial prejudice or hardship.

(iii) Substantial prejudice or hardship

[49] Prejudice may be presumed in cases where an applicant has not brought an application for judicial review within the stipulated timelines: Yan v. Law Society of Ontario, at para. 9.[^22] I agree with the College that the public has a strong interest in the timely and final resolution of the ICRC process given the possible repercussions of clinical practice or conduct issues on public health in the province of Ontario. Consistent with the public interest in timeliness and finality, under the Code, a request for review of an ICRC decision regarding a complaint must be made to HPARB within 30 days: Code, s. 29(3). HPARB has discretion to extend the time limit for seeking review of an ICRC decision but only up to 60 days: Code, s. 29(4). While ICRC decisions regarding reports are subject to judicial review and not review by HPARB, the time limits set out in the Code inform the court’s analysis of the prejudice to the public interest that would occur if reviews of ICRC decisions are granted extensions of time significantly beyond the Code regime.

[50] It is also important to note that the caution – the only remedial activity ordered by the ICRC – was made “consistent with CNO’s mandate of public protection.” The caution has been administered. Allowing the application for judicial review of the ICRC decision to proceed would serve no practical purpose and would only serve to undermine the College’s public interest mandate.

Conclusion

[51] I find that Mr. Rowe’s application for judicial review of the ICRC decision was commenced beyond the 30-day time limit in s. 5(1) of the JRPA. Because I am not satisfied there are apparent grounds for relief and no substantial prejudice or hardship would result, I am not prepared to extend the time under s. 5(2) of the JRPA. Mr. Rowe’s motion for an extension of time and the application for judicial review of the ICRC decision are dismissed, with costs.

[52] In his notice of motion, Mr. Rowe also requested leave to amend his notice of application for judicial review. The proposed amendments relate to the ICRC decision. Because the application for judicial review of the ICRC decision is dismissed, Mr. Rowe’s motion for leave to amend is moot.

[53] I note that Mr. Rowe’s application also seeks judicial review of a second administrative decision. There is no dispute that, insofar as this second administrative decision is concerned, the application for judicial review was commenced in time and will proceed.

[54] In the event the parties are unable to agree on the costs of the motion and the application for judicial review of the ICRC decision, they may make written submissions limited to a maximum of three pages. If the College intends to rely on any additional costs submissions, they shall be delivered by July 7, 2023.[^23] Regardless of whether the College delivers any additional submissions, Mr. Rowe shall deliver his submissions on costs by July 21, 2023.

Justice R. Ryan Bell

Date: June 23, 2023

CITATION: Rowe v. College of Nurses of Ontario, 2023 ONSC 3735

COURT FILE NO.: DC-22-2755

DATE: 2023/06/23

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: Craig Rowe, Applicant

AND

College of Nurses of Ontario, Respondent

BEFORE: Justice R. Ryan Bell

COUNSEL: Self-represented Applicant

Megan Shortreed and Douglas Montgomery, for the Respondent

ENDORSEMENT ON MOTION FOR EXTENSION OF TIME

Ryan Bell J.

Released: June 23, 2023

[^1]: R.S.O. 1990, c. J.1 (“JRPA”). [^2]: S.O. 1991, c.18. [^3]: Being Schedule 2 to the RHPA. [^4]: S.O. 1991, c.32. [^5]: Nursing Act, s. 1. [^6]: 2022 ONSC 5683 (Div. Ct.). [^7]: 2023 ONSC 1948 (Div. Ct.). [^8]: 1975 204 (SCC), [1976] 2 S.C.R. 739. [^9]: 2020 ONCA 530. [^10]: 2022 ONSC 3135 (Div. Ct.). [^11]: 2019 SCC 65. [^12]: 2022 ONSC 3269 (Div. Ct.), citing Rassouli-Rashti v. College of Physicians and Surgeons of Ontario, 2009 62055 (Ont. Div. Ct.), at para. 41. [^13]: R.S.O. 1990, c. F.31. [^14]: R.S.O. 1990, c. M.25. [^15]: 2006 22656 (Ont. Div. Ct.). [^16]: 2022 ONSC 3326 (Div. Ct.). [^17]: O. Reg. 799/93. [^18]: 2022 ONSC 5513 (Div. Ct.). [^19]: 2020 ONSC 7437 (Div. Ct.). [^20]: 2022 ONSC 5464 (Div. Ct.). [^21]: 2022 SCC 29. [^22]: 2023 ONSC 1290 (Div. Ct.). [^23]: The College has already provided its costs outline.