Ontario Superior Court of Justice – Divisional Court Roberts v. College of Nurses of Ontario
Robert K. Stephenson and Carol A. Stephenson, for the appellant; Linda Rothstein and Karen Jones, for the respondent.
(Court File No. 491/97)
 By the Court: This is an appeal from a decision of the Discipline Committee of the College of Nurses of Ontario dated June 11, 1997, in which the appellant was found guilty of professional misconduct during the period September to December, 1993. The charges related to the administration of narcotics, the documentation of the administration of narcotics and the alleged misappropriation of narcotics.
 The appellant graduated from the Victoria General Hospital School of Nursing in Halifax, Nova Scotia, in 1983. She received her Bachelor of Science degree in nursing in 1993. She was working as a casual part-time nurse at the Toronto Hospital at the time of the incidents giving rise to the allegations against her. According to her manager, she had a good understanding of patient needs, gave good nursing care, and except in the situations relating to the allegations, documented well.
 The hearing before the Discipline Committee commenced on May 29, 1995, before a panel of five persons: Mary Carson (Chair) -- a registered nurse, Donna Weiler -- a registered nurse, Paul Howe -- a registered practical nurse, Rita Luty -- a public member, and Gerald MacDonald -- a public member. Hearings were held on 25 days. The panel gave its decision in June 1997. Mr. Howe had resigned for personal reasons before the April 1996 hearings of the panel and did not participate in the decision.
 Three issues were raised on the appeal:
1. Whether the Discipline Committee lacked jurisdiction under the statute.
2. Whether the decision was void because of actual bias or a reasonable apprehension of bias.
3. Whether the panel misapprehended evidence, failed to consider the whole of the evidence and erred in its application of the onus and burden of proof.
Issue No. 1: Statutory Jurisdiction
 The allegations against the appellant were heard by the panel on a referral from the Executive Committee of the College under s. 36(1) of the Health Professions Procedural Code (the "Code"), being Schedule 2 to the Regulated Health Professions Act, 1991,
S.O. 1991, as amended. Section 36(1) of the Code reads as follows:
"36(1) The Executive Committee may refer a specified allegation of a member's professional misconduct or incompetence to the Discipline Committee."
 The Executive Committee referred three allegations to the Discipline Committee in a decision dated August 11, 1994. The first two allegations referred specifically to the patients and dates to which the allegations related. The first allegation was of professional misconduct in failing to maintain standards of practice of the profession with respect to the administration of narcotics and/or the documentation of the administration of narcotics. The second allegation, which related to the same patients and the same dates, was of engaging in conduct relevant to the performance of nursing services that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional with respect to the administration of narcotics and/or the documentation of the administration of narcotics.
 The incidents giving rise to the first two allegations were alleged to have occurred on six dates in 1993, namely, September 4, October 10, 17 and 20, and December 18 and
 The third allegation referred by the Executive Committee to the Discipline Committee read as follows:
"4. You have committed an act of professional misconduct as provided by s. 85(3)(c) of the Health Disciplines Act, R.S.O. 1990, c. H-4, as amended, and s. 21(h) of Ontario Regulation 549, R.R.O. 1990, in that during the year 1993 and in particular during the period September to December 1993 you misappropriated drugs or other property belonging to your employer."
 Documentation regarding the allegations was enclosed in a letter from the College to counsel for the appellant, dated April 11, 1995, which read:
"Enclosed please find a binder of documentation for the Sherrey Roberts case. Please note that the material located under Tabs 7 through 10 is new information that relates to allegation #3. The charts at the beginning of Tabs 1 through 9 are our schematic representations of information in the patient charts.
"At Tab 13 is the correspondence to our expert, Anne LeGresly, and a copy of her expert report."
 The documentation sent to the appellant included material relating to incidents alleged to have occurred on six additional dates as well as the dates specified in the first
two allegations. The additional dates were October 3, 4, 15, 16, 21 and December 10, 1993. The Discipline Committee heard evidence regarding the additional dates in connection with the Allegation No. 3 and found that the appellant had misappropriated Demerol on three of those dates, namely October 4 and 21 and December 10, 1993.
 The submission of the appellant is that the Discipline Committee lacked jurisdiction to consider allegations of misappropriation on the six additional dates, because there had been no reference from the Executive Committee respecting those dates.
 We are unable to accept that submission.
 Although the allegation of misappropriation does not specify any dates, it is a "specified allegation" within the meaning of s. 36(1) of the Code. The Code does not require specific dates to be given in the allegation. The six additional dates fall within the period mentioned in the allegation, namely, September to December 1993. There was no demand for particulars of the allegation. It is not suggested that the appellant was taken by surprise. In our judgment, the Discipline Committee clearly had jurisdiction to deal with the additional dates.
Issue No. 2: Bias
 The appellant submitted that the decision of the panel was void because members of the panel were actuated by actual bias, or, that there was a reasonable apprehension of bias on the part of the panel. These submissions arose out of the relationship between one of the members of the panel, Rita Luty, and Susan Robinson, the nurse manager in charge of the activities of the Toronto Hospital where the alleged professional misconduct occurred.
 On the first day of the hearing, Ms. Luty disclosed that she was a member of the Toronto Hospital Advisory Committee and was the representative of that Committee on the HIV Immune Deficiency Clinic Subcommittee. She made the disclosure because of the involvement of the Toronto Hospital in the allegations. She was concerned that she might be regarded as having a conflict of interest. Counsel for both parties stated they had no objection to Ms. Luty sitting on the panel.
 In a letter dated June 20, 1996, written at the request of the chair of the panel, after the panel had commenced its deliberations, Mr. Brian Gover, independent counsel to the panel, made the following statements:
"During deliberation days in June, 1996, Ms. Luty disclosed to the other members of the Discipline panel that she had attended meetings of that Subcommittee which were also attended by the witness, Susan Robinson. In my conversation with Ms. Luty this morning, she informed me that Ms. Robinson appeared at a meeting of the Subcommittee approximately nine months ago, in September or October 1995. Ms. Robinson was not a member of the Subcommittee when the hearing commenced in this case. However, since September or October, 1995, Mrs. Robinson has attended almost every meeting of the Subcommittee that has been attended by Ms. Luty.
"Ms. Luty has advised the other panel members and the writer that she and Ms. Robinson never discussed the case, nor did Ms. Robinson approach Ms. Luty about discussing it."
 Susan Robinson played a major role in the case against the appellant. She was the immediate superior of the appellant. She made the investigation which led to the termination of the employment of the appellant by the Toronto Hospital and to the allegations of professional misconduct against the appellant.
 Ms. Robinson was one of the principal witnesses called on behalf of the College. She testified on May 30, June 1, October 2 and October 3, 1995, and on February 6, 1996, in reply. She also prepared summaries of the records relating to the administration of narcotics on which the findings of guilt against the appellant were based. In its decision, dated June 11, 1997, the panel said it believed the evidence of Ms. Robinson and other witnesses called by the College, but did not accept the appellant as a credible witness.
 The issue of the contact between Ms. Luty and Ms. Robinson came to light while the panel was well into their deliberations. The previous day, June 19, 1996, Mr. Gover responded to a question about considering a party's interest in the outcome when assessing credibility. His response was directed specifically to the appellant's interest and her credibility. While Mr. Gover urged the panel not to place undue emphasis on her interest, it is clear that Ms. Luty had already engaged in extensive deliberations with the other panel members and that the evidence of Ms. Robinson and the appellant had been considered.
 In September, 1996, no doubt because of Mr. Gover's letter, the appellant brought a motion to disqualify the panel and for an order staying permanently the proceedings against the appellant. In the alternative, an order was requested disqualifying Rita Luty from continuing to sit as a member of the panel hearing the allegations against the appellant. The grounds for the relief were that Rita Luty's ongoing relationship with Susan Robinson during the course of the hearings either constituted actual bias or gave rise to a reasonable apprehension of bias and was an abuse of process. It was alleged that the continuing participation of Rita Luty tainted all of the panel members and constituted either actual bias on the part of the panel or gave rise to a reasonable apprehension of bias on the part of the panel. It was further alleged that the failure of Rita Luty to disclose her relationship with Susan Robinson until the panel was in the midst of final deliberations, and the failure of the panel to disclose its knowledge of the relationship until that time also constituted actual bias or gave rise to a reasonable apprehension of bias.
 The affidavit of the appellant filed in support of the motion for disqualification contained the following paragraphs:
"33. At various stages throughout the hearing I had noticed Ms. Luty staring at me. Initially I did not pay too much attention to it. Counsel for the College had occasionally engaged in the same conduct. However, as the case progressed Ms. Luty's staring became progressively more intense and towards the end of the hearing her stare was clearly hostile. In fact, during closing arguments the hostility of her staring made me feel so uncomfortable that I was forced to sit back in my chair and push it away from the table in order to avoid eye contact with her. Her conduct puzzled me at the time. In view of the fact that she was attending meetings with Ms. Robinson on a regular basis at the same time she was sitting in judgment of me leads me to believe that she was biased in favour of Susan Robinson and simply was not able to suppress that bias.
"34. On the final day of the hearing, May 7, 1996, my counsel formerly requested to know the reason Paul Howe resigned from the panel. In response to this simple request Ms. Luty angrily stated 'He is not entitled to know that' or words to a similar effect. Again, I was surprised by her reaction, as it did not seem appropriate."
 The appellant also stated it to be her honest belief that Ms. Luty had poisoned the other members of the panel against her with her bias in favour of Ms. Robinson.
 The appellant was not cross-examined on her affidavit. No evidence was given by the respondent on the motion. There is no question that the paragraphs contained some evidence of actual bias.
 Counsel for the appellant requested that the motion for disqualification be heard by another panel. We are satisfied that it was quite proper for this panel to hear the motion. Ms. Luty did not participate in the hearing of the motion.
 In its decision on the motion, dated January 6, 1997, the panel found there was insufficient evidence to support a finding of actual bias, but ruled that Ms. Luty be disqualified from continuing to sit as a member of the panel for the following reason:
"The panel finds that there may well be a reasonable apprehension of bias in relation to Ms. Luty because she did attend three meetings at which Ms. Robinson was also in attendance. The panel further finds that if Ms. Luty were to continue to deliberate as a member of the panel there could be a reasonable apprehension of bias because
Ms. Luty testified on the motion and Ms. Luty has been in attendance in the public gallery hearing the allegations against her."
 The panel went on to say:
"… The remaining members of the panel constitute a quorum and will continue to deliberate on the evidence of the hearing between the College of Nurses and Ms. Roberts.
"In reaching this decision the panel considered the test as set out in, Committee for Justice And Liberty et al. v. National Energy Board (1976), 68 D.L.R.(3d) 716 (S.C.C.), namely, what an informed person would conclude, viewing the matter realistically and practically and having thought the matter through. In addition, the remaining panel members were unaware that Ms. Luty and Ms. Robinson had been in attendance, three times, at the same HIV Committee until June 19, 1996."
 Ms. Luty gave evidence at the hearing of the motion for disqualification. She testified that the first time she and Ms. Robinson were present together at a meeting of the HIV Advisory Group was on January 25, 1996. They were subsequently present together at meetings on February 22, March 28 and April 25, 1996. At that point she "decided that perhaps it would not be wise to be on the committee while this case was going on". Ms. Luty had ascertained the dates of the meetings from an examination of the minutes of the meetings of the Subcommittee. She said she was mistaken in the dates she had given to Mr. Gover, which he had set out in his letter of June 20, 1996.
 Ms. Luty testified that she mentioned to Mr. Gerald Macdonald, a public representative on the panel, that Ms. Robinson had turned up at her committee meeting. She said this occurred in February 1996, after Ms. Robinson had appeared as a witness before the panel, but that she did not inform the chair of the panel, Mary Carson, or the other member, Donna Weiler. Nothing was said by either Mr. Macdonald or Ms. Luty and it was only when Donna Weiler overheard a comment by Ms. Luty that the situation was brought to the attention of Mr. Gover, and through him to counsel for both parties.
 The decision to disqualify Ms. Luty was dated January 6, 1997. We find it troubling that thereafter Ms. Luty continued to attend the hearings of the panel. Mr. Stephenson made the following statement on June 10, 1997:
"… And just before we conclude, I feel it necessary to put on the record that the disqualified member, Ms. Luty, was present yesterday in the coffee room speaking with members of the Committee, both before the commencement of the hearing and after the conclusion of the hearing yesterday, and that Ms. Luty was present in the public gallery throughout the penalty hearings yesterday."
 Although there is some evidence of actual malice, we are not able to find a palpable and overriding error in the decision of the panel that the evidence was insufficient to justify disqualification of the panel on the ground of actual bias.
 The test for reasonable apprehension of bias is stated as follows in the dissenting reasons of de Grandpré, J., in the decision of the Supreme Court of Canada in Committee for Justice and Liberty Foundation et al. v. National Energy Board et al.,  1 S.C.R. 369; 9 N.R. 115; 68 D.L.R.(3d) 716, at p. 394:
"The proper test to be applied in a matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is 'what would an informed person, viewing the matter realistically and practically --and having thought the matter through -- conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly'."
 In our judgment, the failure of Ms. Luty and Mr. MacDonald to disclose the joint participation of Ms. Luty and Ms. Robinson on the HIV Advisory Group, and the other evidence of conduct of Ms. Luty to which we have referred is sufficient to give rise to a reasonable apprehension of bias on the part of Ms. Luty and Mr. MacDonald.
 As to the effect of such reasonable apprehension of bias on the status of the panel, Mr. Stephenson relied on the following passage from the decision of Roth-stein, J., in the Federal Court of Canada (Trial Division) in Sparvier v. Cowessess Indian Band No. 73 et al. (1993), 63 F.T.R. 242; 13 Admin. L.R. 266, at p. 286:
"Mr. Lerat apparently did not participate in the vote of the Appeal Tribunal. That he did not vote, however, does not resolve the matter. In R. v. Ontario (Labour Relations Board) (1963), 39 D.L.R.(2d) 113 (Ont. H.C.), McRuer, C.J.H.C., states at p. 117:
'It is likewise settled that if one member of a Board is shown to be biased the decision of the Board may be quashed on certiorari: The Queen v. Meyer et al. (1875), 1 Q.B.D. 173, and Frome United Breweries Co. v. Keepers of the Peace and Justices for County Borough of Bath,  A.C. 586, at p. 591. The general principles of law to be applied to the case before me can no better be stated than in the language of Viscount Cave in the Frome case. At p. 590 he said:
"My Lords, if there is one principle which forms an integral part of the English law, it is that every member of a body engaged in a judicial proceeding must be able to act judicially; and it has been held over and over again that, if a member of such a body is subject to a bias (whether financial or other) in favour of or against either party to the dispute or is in such a position that a bias must be assumed, he ought not to take part in the decision or even to sit upon the tribunal. This rule has been asserted, not only in the case of courts of justice and other judicial tribunals, but in the case of authorities which, though in no sense to be called courts, have to act as judges of the rights of others. (The italics are mine.)"
'At p. 591 Viscount Cave went on:
"From the above rule it necessarily follows that a member of such a body as I have described cannot be both a party and a judge in the same dispute, and that if he has made himself a party he cannot sit or act as a judge, and if he does so the decision of the whole body will be vitiated."’
"This 'poisoning of the well' rule is summarized by Esson, J.A., in Haight-Smith v. Kamloops School District No. 34 (1988), 51 D.L.R.(4th) 608 (B.C.C.A.), at p. 614:
'What does apply is the rule that, if a person disqualified by bias is present at a hearing and sits or retires with the tribunal, the decision may be set aside notwithstanding that that person took no part in the decision and did not actually influence it.'
In Mullan, Administrative Law (2nd Ed.), at p. 3-131 the learned author states the usual implication succinctly:
'A reasonable apprehension of bias in one member of a tribunal is sufficient to disqualify the whole tribunal, even though that member merely sat at the hearing without taking an active role in either it or subsequent deliberations. Mere presence is generally enough.'
On the evidence before me, it is clear that Mr. Lerat sat with the Appeal Tribunal during the submissions made to it. While the evidence indicates that he stepped down from the Appeal Tribunal because of his admitted bias, it appears that up to this point, he took an active role in the proceedings. I am of the opinion that there can be no other conclusion but that a reasonably informed bystander would perceive bias on the part of the Appeal Tribunal as a result of Mr. Lerat's admitted position to oust the applicant and his participation in the Appeal Tribunal proceedings. This fatally affected the proceedings and the decision of the Appeal Tribunal."
 Applying the authorities cited by Roth-stein, J., to the case at bar, it is our judgment that the decision of the panel must be set aside.
Issue No. 3: Misapprehension Of Evidence, Etc.
 It is unnecessary to consider the third issue raised by the appellant as to whether the panel misapprehended or failed to consider the whole of the evidence. Reference will be made below, however, to certain aspects of the evidence in connection with the relief to be granted.
Disposition Of The Appeal
 These proceedings relate to events that occurred in 1993. The hearings of the Discipline Committee took place over a period of more than two years from May 1995 to June 1997. The evidence is entirely circumstantial. The findings of guilt against the appellant depended largely on conclusions to be drawn from hospital records that were not kept in a clear and satisfactory manner.
 One of the witnesses called by the College, Ms. Tsang, acknowledged that the practice on the entire floor where the appellant was working was "rather sloppy" when it came to narcotics with the sickle cell patients located on that floor.
 Ms. Robinson, the principal witness against the appellant, was the person responsible for the supervision of the nurses and the maintenance of accurate records. The evidence discloses many irregularities including "pre-charting" and rewriting entries in the drug records by other nurses. It was Ms. Robinson, not the appellant, who was responsible for the records and who may have been seen to have an interest in assigning fault to another. This adds to the reasonable apprehension of bias.
 Ms. LeGresley, an expert witness called by the College, agreed it was a fair comment to say that virtually everyone involved in this record did not "meet the standard".
 The suggested motive for the alleged misappropriation of Demerol by the appellant was the treatment of the pain she was experiencing in her jaw from temporal mandibular joint syndrome. But there is no evidence of any impairment of her nursing capabilities.
 We are satisfied in all the circumstances that this case should not be sent back for a rehearing. The appeal is allowed. An order will go quashing the decision of the Discipline Committee and ordering a stay of the proceedings against the appellant. Written submissions on costs may be made within 15 days, if the parties are unable to agree on the disposition and amount of costs.