Saturday, December 19, 2015

Re Roy and College of Nurses of Ontario 27 O.R. (2d) 661: Non Compliance with Statutory Scheme(Health Disciplines Act)

Re Roy and College of Nurses of Ontario 27 O.R. (2d) 661 

 Reid J.

*Released December 20, 1979.

Professions -- Health disciplines -- Complaint as to competence of nurse -- Matter referred to registration committee for hearing and nurse's certificate of competence suspended -- Statutory authority to suspend certificate only after board of inquiry report -- Report of complaints committee not sufficient compliance with statutory requirement -- Suspension of certificate set aside on judicial review -- Health Disciplines Act, 1974 (Ont.), c. 47, s. 85.

[Re Bennett and City of Belleville (1979), 24 O.R. (2d) 121, refd to]

APPLICATION for leave pursuant to the Judicial Review Procedure Act, 1971 (Ont.), c. 48, s. 6(2); APPLICATION for judicial review of an order suspending the applicant's certificate of competence as a nurse.

Barry Swadron, Q.C., for applicant. Gerald Sadvari, for respondent.

REID, J. (orally):-- This is an application for leave pursuant to s. 6(2) of the Judicial Review Procedure Act, 1971 (Ont.), c. 48. The application for judicial review with respect to which this motion for leave is brought was, in fact, initiated in the Divisional Court by a notice dated November 26, 1979.

The matter comes before me in Motions Court by virtue of a notice of motion dated November 28th.

No objection has been made to this procedure even though it amounts to a transfer to Motions Court of a case on the Divisional Court list. My own view is that it is a useful procedure to adopt in urgent cases.

The conditions that must be fulfilled before leave is granted under s. 6(2) are twofold. There must be urgency and the likelihood that the delay in the Divisional Court will involve a failure of justice. The necessity to establish both conditions has been underlined recently in the decision of my brother Anderson in Re Bennett and City of Belleville (1979), 24 O.R. (2d) 121.

The ground upon which leave is sought is essentially the loss by Annette Roy of her certificate of competence as a registered nurse. She had received training and graduated with a nursing degree in June of 1977, completed the Provincial Nursing Examinations thereafter, and in August, 1977, received a certificate of competence from the respondent college. That certificate was renewed (as it must be annually) in 1978.  Thereafter she commenced employment in a hospital in July of 1977, and was employed as a registered nurse there until dismissed from employment in November of 1978.

In the following January she was informed by the investigations co-ordinator of the respondent that there was a complaint about her nursing practice "relating to unsatisfactory nursing care" while employed at that hospital. She was informed that an investigation would be conducted at the hospital.

Text Box: 1979 CanLII 2070 (ON SC)Thereafter, in March, 1979, the investigations officer of the respondent wrote to the applicant, informing her of the specific allegations that had resulted from that investigation. There is before me a letter dated March 15, 1979, in which a very detailed list of these allegations is set out. The letter concludes:

Your response to the allegations within the next 10 days will ensure that all available information is placed before the Complaints Committee at their next meeting on March 29, 1979.

According to the uncontradicted affidavit of the applicant she replied to that letter in writing answering the allegations. Thereafter on April 4, 1979, the director of the respondent wrote to the applicant that the complaints committee "felt that there was some question about her capacity to function as a registered nurse" and that the committee had referred the complaint to the Executive Committee "for possible further action". An exhibit before me is a letter written on April 4, 1979. I set it out in full because something turns on it.

This is to officially notify you of the decision of the Complaints Committee in relation to the complaint about your nursing practice.

The Committee felt that there was some question about your capacity to function as a registered nurse. They have, therefore, referred the complaint to the Executive Committee for possible further action. This is pursuant to Section 85(2) of the Health Disciplines Act, 1974, a copy of which is enclosed.

Should the Executive Committee be of the opinion that you are not incapacitated as defined in the Health Disciplines Act, further action will be taken by the College of Nurses.

We will keep you advised of any further decisions.

On April 25, 1979, the director again wrote to the applicant
Text Box: 1979 CanLII 2070 (ON SC)to inform her that the decision of the Executive Committee was "to refer the matter to the registration committee for a hearing, and to suspend your certificate until the determination of your capacity is final". This was said to be "in accordance with S. 85(4) of The Health Disciplines Act 1974". Applicant was required to submit her current certificate of competence "forthwith".

Applicant complied with that request and delivered her certificate of competence up on or about April 23, 1979. It is obvious from what is said in the affidavit and from the context of these proceedings, that thereafter she was not able to obtain or, for that matter, even seek employment as a registered nurse.

On July 27, 1979, the registrar of the respondent sent a notice of hearing to applicant informing her that the registration committee would be holding a hearing in Toronto on September 20, 1979. That hearing commenced and proceeded on that day but was not concluded. At the commencement of the hearing applicant's counsel asked the registration committee to return the certificate of competence on the ground that the respondent has suspended it without statutory authority. That request was denied. The hearing was adjourned to December 13, 1979.

To come to the nub of the argument, the submission of counsel for the applicant rests on two grounds. The first is that there was no authority in the respondent to suspend the registration. This submission requires an examination of the statute authorizing the respondent. That statute is the Health Disciplines Act, 1974 (Ont.), c. 47. The directly relevant section is s. 85. It provides:

85(1) In this section,

(a)      "board of inquiry" means a board of inquiry appointed by the Executive Committee under subsection 2;

(b)      "incapacitated member" means a member suffering from 
physical or mental condition or disorder of a nature and extent making it desirable in 
the interests of the public or the member that he no longer be permitted to practise or that 
his practice be restricted.

(2)   Text Box: 1979 CanLII 2070 (ON SC)Where the Director receives information leading him to believe that a member may be an incapacitated member, he shall make such inquiry as he considers appropriate and report to the Executive Committee who may, upon notice to the member, appoint a board of inquiry composed of at least two members of the College and one member of the Council appointed thereto by the Lieutenant Governor in Council who shall inquire into the matter.

(3)   The board of inquiry shall make such inquiries as it considers appropriate and may require the member to submit to physical or mental examination by such qualified person as the board designates and if the member refuses or fails to submit to such examination the board may order that his certificate be suspended until he complies.

(4)   The board of inquiry shall report its findings to the Executive Committee and deliver a copy thereof and a copy of any medical report obtained under subsection 3 to the member about whom the report is made and if, in the opinion of the Executive Committee, the evidence so warrants, the Executive Committee shall refer the matter to the Registration Committee to hold a hearing and may suspend the member's certificate until the determination of the question of his capacity becomes final.

(5)   The board of inquiry, the person whose capacity is being investigated and any other person specified by the Registration Committee are parties to the hearing.

Counsel agree that the only authority to suspend a certificate applicable to this case is that found in s-s. (4).

As I read it, neither the power to refer a matter for hearing nor to suspend a certificate exists in the absence of a report by a board of inquiry. The scheme of the subsection creates mandatory obligation on the Executive Committee. It is to consider the report (and findings) of the board of inquiry. This must be done before any hearing or suspension may be ordered. This is a valuable safeguard for a member against hasty or arbitrary action. I cannot regard it as a mere formality. There was here no board of inquiry. Therefore there is no report. None has been considered by the Executive Committee. There was no basis for the reference for hearing nor for the suspension of applicant's certificate.

Mr. Sadvari submits, however, that where a complaint has been investigated by the complaints committee a report of that committee is sufficient to satisfy s. 85(4). Section 82 provides that the complaints committee shall investigate and consider complaints against members. Mr. Sadvari's argument relies particularly on  s-s. (2)(a) which says:

82(2) The Committee in accordance with the information it receives may,

(a)  direct that the matter be referred, in whole or in part, to the Discipline Committee or to the Executive Committee for the purpose of section 85 ...

It is conceded that s. 82(2)(a) was the basis upon which the complaint was referred to the Executive Committee and for the letter of April 4, 1979, previously mentioned. Mr. Sadvari says that s-s. (4) of s. 85 should be read so that the reference to the report of a board of inquiry comprehends a report of the complaints committee. That is to say, if a report of the complaints committee has been received by the Executive Committee, the Executive Committee is entitled to take the action provided for in s-s. (4) of s. 85, notwithstanding the fact that there has been no board of inquiry and hence no report of such a board.

The difficulty with that is that there is no basis in the language to justify that reading. We are here dealing with matters of the most extreme importance to an individual. The right to earn a livelihood is one of gravest importance. It must not be interfered with except in strict accordance with the law. While it may avoid the difficulties imposed upon the respondent by the language of its governing statute to read "board of inquiry report" to mean "or complaints committee report", that is not justification, in my opinion, for doing so. The language is too clearly to the contrary. The report of a board of inquiry is not a direction by the complaints committee under s. 82(2)(a) and cannot be read to mean one.

Thus, in the absence of the report of a board of inquiry, in my opinion, the direction of a complaints committee, even if it can be called a report, does not satisfy the section.

The second ground upon which the application rests again requires a close examination of a section of the statute, namely, s. 8:

8(1) Where a complaints committee has made a disposition of a complaint respecting a member of its College in accordance with the provisions of the applicable Part of this Act governing that College, the Registrar of the College shall send to the member and to the complainant by prepaid first class mail, a copy of the written decision made by the complaints committee and reasons therefor, if any, together with notice advising the complainant of his right of review under subsection 2.

(2) A complainant or the member complained against who is not satisfied with the decision made by a complaints committee disposing of a complaint, except a decision to refer a matter to the discipline committee, may within twenty days of receipt of the written decision request the Board to review the decision and the Board shall require the Registrar of the College to transmit to the Board within fifteen days of the Board's request, a record of the investigation and all such documents and things upon which the decision was based and the Board shall review the decision after giving the complainant an opportunity to state his complaint and the member an opportunity to state his answer thereto, either personally, by his agent or in writing.

There is no doubt in my mind that the complaints committee 

Text Box: 1979 CanLII 2070 (ON SC)has made a "disposition of a complaint" for it has sent the matter on or purported to do so to the Executive Committee. In those circumstances the general words of s. 8(1) govern. Thus the registrar of the college must send to the member a copy of the written decision made by the complaints committee and the reasons therefor, if any.

The affidavit before me states that this has never been done. Mr. Sadvari's response to that is twofold. One is that s. 8 does not govern and the other is that if it does govern then there has been a sufficient compliance by way of the letter of April 4, 1979, ex. C to the affidavit of Annette Roy. In my opinion, s. 8(1) does apply. I am satisfied that the letter does reflect the internal document Mr. Sadvari referred to in the course of his argument showing the action that was taken by the complaints committee. It is important, I think, to note that s. 8(1) does not require reasons to be given. It requires only that reasons if given shall be sent. I think no complaint can be made that no reasons were sent; the explanation that was included in the letter was all that was required. It seems to me that s. 8(1) was otherwise fulfilled by ex. C for it stated the disposition made by the complaints committee. Thus, I do not rest my decision upon any violation of s. 8(1).

The result is that the motion for judicial review succeeds and the relief requested is granted. The college shall restore forthwith the certificate of competence of the applicant. The registration committee is enjoined from proceeding with the hearing that has been embarked upon.

I appreciate that the point was novel in the sense that the exact point has not come up before for interpretation. It seems to me that notwithstanding its novelty costs in this case should follow the event. Thus the applicant shall have her costs against the respondent. Counsel fee shall be as of one motion for the motion and the motion for leave. They were argued as one.

I should add that leave was given on the ground that applicant's livelihood was at stake. That, in my opinion, satisfied both conditions set out in s. 6(2).

Text Box: Application allowed.

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