Ontario Superior Court
of Justice – Divisional Court Roberts v. College of Nurses of Ontario
Date: 1999-06-18
Robert K. Stephenson and Carol A. Stephenson, for the appellant; Linda Rothstein and Karen
Jones, for the
respondent.
(Court
File No. 491/97)
[1] 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.
[2] 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.
[3] 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.
[4] 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
[5] 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."
[6] 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.
[7] 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
19.
[8] 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."
[9] 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."
[10] 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.
[11] 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.
[12]
We are unable to accept that submission.
[13] 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
[14] 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.
[15] 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.
[16] 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."
[17] 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.
[18] 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.
[19] 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.
[20] 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.
[21] 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."
[22] 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.
[23] 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.
[24] 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.
[25] 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."
[26]
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."
[27] 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.
[28] 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.
[29] 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."
[30] 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.
[31] 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., [1978] 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'."
[32] 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.
[33] 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, [1926] 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."
[34] 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.
[35] 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
[36] 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.
[37] 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.
[38] 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.
[39] 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".
[40] 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.
[41] 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.
Appeal allowed.
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