Court File and Parties

CITATION: Folkes v. College of Nurses of Ontario, 2024 ONSC 1497

DIVISIONAL COURT FILE NO.: 129/23

DATE: 20240320

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ALYSON FOLKES, Applicant

AND:

COLLEGE OF NURSES OF ONTARIO, Respondent

BEFORE: Sachs, McKelvey, Matheson JJ.

COUNSEL: Self-represented Applicant

Megan Shortreed and Douglas Montgomery, for the Respondent

Rebecca Glass, for the Intervenor Rebecca Young

HEARD at Toronto: March 13, 2024, by video-conference

Endorsement

[1] The applicant nurse applies for judicial review of the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Nurses of Ontario dated December 13, 2022. The ICRC decided to require that the applicant complete a specific continuing education or remediation program (“SCERP”) and to appear before the ICRC to be cautioned. The ICRC did not refer the matter to the College’s Discipline Committee.

[2] The applicant challenges the ICRC decision, submitting that she had ineffective assistance of counsel and the decision is unreasonable. For the reasons set out below, this application is dismissed.

[3] The ICRC decision arises from events in May 2021, when the applicant worked for both Toronto Public Health (“TPH”) and Peel Public Health. The applicant worked for Peel for about two weeks, when also employed by TPH. In a later report to the College, Peel made a number of allegations about the applicant’s work when at Peel. Among other things, Peel alleged that while the applicant was on shift working for Peel, she was also doing work for TPH. Other allegations included the failure to respond to work communications, to attend the entirety of training sessions and to work on and complete COVID-19 assignments in a timely manner.

[4] The Peel report indicated that on May 14, 2021, two mentors noticed that the applicant had not begun to work on a case that had been assigned to her. Looking into it that day, one mentor noticed that the applicant’s name appeared twice in the Ministry of Health’s database, once for Peel and once for TPH. Date and time stamps from the database showed that eight TPH cases had been managed by the person with the same name during the applicant’s work hours for Peel.

[5] According to Peel, the supervisor spoke with the applicant later that day and asked her if she was working for TPH at that time. The applicant did not answer the question and submitted her resignation about an hour later. The supervisor and a manager had also consulted with HR and a letter was prepared putting the applicant on a paid leave of absence pending an investigation, but the applicant resigned before the letter was presented to her.

[6] After receiving the Peel report, the College conducted an investigation. In September 2022, the record of the investigation was provided to the applicant for her response. The applicant retained counsel – the intervener in this application. Counsel submitted a written response on the applicant’s behalf. In that response, all the allegations were denied but one. The written response stated that the applicant “was employed with both TPH and [Peel] for eleven days.” The written response said that the applicant understood that was a conflict and that she ought not to have worked for both employers.

[7] The applicant has also acknowledged, in these court proceedings, that she was employed by both TPH and Peel for that period of time.

[8] The Peel report, record of the investigation and the applicant’s response were considered by the ICRC, which performs a screening function by considering reports about the conduct of College members: Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513 (Div. Ct.), at para. 15. The permitted dispositions are prescribed in s. 26 of the Health Professions Procedural Code, Sch. 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. The ICRC may require a SCERP and a caution, or other action, including a referral to the Discipline Committee.

[9] The ICRC concluded that there was overall support for the concerns put forward by Peel based on the documentation and the applicant’s submissions. With respect to the above admission that the applicant had been working at TPH and Peel at the same time, the ICRC noted that it was without Peel’s knowledge, was dishonest and constituted a conflict. The ICRC expressed significant concern about the applicant performing non-Peel work while on shift with Peel, which the ICRC said was a deliberate act and serious lapse of judgment that called into question her honesty and professional integrity. The ICRC also commented about other concerns raised by Peel and the applicant’s responses.

[10] The ICRC noted the applicant’s acknowledgment of a lapse in judgment and the insight and regret shown in her response. The ICRC concluded that it was consistent with the College’s mandate of public protection to require a SCERP on professional standards, ethics and the College Code of Conduct, and to require that the applicant appear before the ICRC to be cautioned. As found by this Court, “cautions and educational directions are remedial in nature and not sanctions or penalties. They are meant to improve the Member’s practice and benefit the public they serve by avoiding future concerns”: Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (Div. Ct.), at para. 44.

[11] This application for judicial review was then commenced. The applicant submits that the application should be granted because she had ineffective assistance of counsel and because the ICRC decision is unreasonable.

[12] Beginning with ineffective assistance of counsel, to succeed in setting aside the ICRC decision the applicant must show: (1) that there are facts that underpin the claim; (2) that counsel’s representation was incompetent; and, (3) that the incompetent representation caused a miscarriage of justice: North American Financial Group Inc. v. Ontario Securities Commission, 2018 ONSC 136 (Div. Ct.), at para. 119.

[13] The applicant has not demonstrated even the first stage of the threshold that must be met. She put forward a brief affidavit with general assertions and did not put forward any documents showing her communications with her then counsel. Her evidence did not improve on cross-examination. However, her former counsel (now intervenor) provided a detailed affidavit with substantial documentation including extensive email communications with the applicant.

[14] The applicant attests that the admissions made in the written submissions that were provided to the College on her behalf were made “unilaterally” and without her agreement and that the submissions were not sufficiently detailed. However, the documentation put forward by her then counsel shows that the applicant was provided with draft submissions, commented on them in red text, did not remove the admissions about concurrent employment and did not propose the added detail mentioned in oral submissions. The applicant was then given another draft. She asked followup questions and discussed them with counsel before the submissions were finalized. The final submissions were then sent to the College, including the statements about concurrent employment. The other concerns that had been raised by Peel were denied.

[15] Then counsel’s file documentation also contradicts the other allegations made by the applicant regarding subjects such as the advice given on possible outcomes.

[16] In her affidavit and in her oral submissions the applicant said that counsel was coercive and threatening, yet the written communications from counsel were respectful and professional. The applicant said that the inappropriate behaviour took place on the phone, which is disputed in counsel’s affidavit. It is also inconsistent with the documentation. For example, after a phone call regarding the final version of the submissions, which were then sent in to the College, the applicant emailed thanking counsel. She went on to say that she had learned her lesson and hoped that the College could see that she was not a bad person and give her a second chance. Counsel reassured the applicant that “these things happen, this does not make you a bad person” and the applicant replied and thanked counsel for her “kind words”.

[17] Other facts were put forward in oral submissions before this Court that do not appear in the affidavit. For example, in oral submissions, the applicant said that she had told the Peel recruiter that she was working for TPH. She suggested that this was a detail that she was prevented from putting forward. However, this fact does not appear in her affidavit on this application, which was prepared with the assistance of a different lawyer. Further, as noted above, the applicant did provide red-lined comments on the submission to the College and this was not mentioned until the submissions made to this Court.

[18] The submission about the recruiter also does not address the focused concern raised by Peel. Peel reported that the applicant was working for TPH during her shift with Peel. They did not raise a concern about the applicant working for TPH at other times.

[19] Having regard for all the evidence, the applicant has fallen well short of showing a factual basis for her claim of ineffective assistance of counsel. There is therefore no need to include a discussion about the other two requirements to establish that claim, which are also not met. This ground is unsuccessful.

[20] There is then the issue of whether the ICRC decision is unreasonable. As set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 101, the applicant must show a failure of rationality in the reasoning process or show that the decision is untenable in light of the relevant factual and legal constraints that bear on it.

[21] The applicant submits that her job at Peel was not a nursing job, a submission that was not put forward at the ICRC stage. Even if that were the case, this Court has recognized that it is reasonable for the ICRC to be concerned about off-duty conduct that may harm the public trust and confidence in a regulated health profession: Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685 (Div. Ct.), at paras. 51-54.

[22] The applicant again submits that the ICRC did not have all the details of her case due to ineffective assistance of counsel. This has not been substantiated.

[23] It is apparent from the reasons for decision that the ICRC reviewed the applicant’s submissions and the record of investigation and noted areas where the version of events did or did not differ. On the question of overlapping employment, the issue was working for TPH while on shift for Peel. The ICRC was entitled to consider the applicant’s admission and there was an ample record based upon which it was open to the ICRC to reach its conclusions on that issue.

[24] The applicant further submits that the ICRC did not have sufficient evidence to draw conclusions about the other specific concerns raised by Peel. Those concerns included attendance at training session, whether she was offline during her shifts, whether she failed to respond to messages and alleged failures in relation to completing COVID-19 files. The applicant submits that Peel must have had additional records that it did not put forward and that could have assisted her. She further submits that she did not have access to records that she needed to respond because she did not hear of the Peel concerns until almost a year later.

[25] On the subject of delay, the applicant correctly submits that Peel ought to have reported within thirty days and the actual report was made after about six months. Then, the investigation took about six months. Although the issue of delay was not raised at the ICRC, we have taken it into account – it does not render the ICRC decision unreasonable.

[26] The reasonableness of the ICRC decision must be considered in the context of its screening role. It is not required to examine all records and documents, conduct interviews, hear testimony, or make findings of credibility: M.J.S. v. Health Professions Appeal and Review Board, 2022 ONSC 548 (Div. Ct.) at para. 41. It is required to make reasonable efforts to consider relevant materials and decide on the appropriate regulatory response.

[27] In this case, the ICRC did not refer the Peel concerns to be addressed in a discipline hearing. It took the remedial steps of a caution and SCERP. The applicant has not shown that the ICRC decision is untenable in light of the relevant factual and legal constraints that bear on it, including its finding as to the dishonest nature of the applicant’s conduct. Nor is there a failure of rationality – the ICRC decision is transparent, justifiable and intelligible.

[28] This application is therefore dismissed. The applicant shall pay costs to the College fixed at $7,500 and costs to the intervenor fixed at $5,000, all inclusive.

Sachs J.

McKelvey J.

Matheson J.

Date: March 20, 2024