The appeal by a nurse (Tomaszewska) of a decision of the Discipline Committee of the College of Nurses of Ontario finding that she had committed acts of professional misconduct was dismissed where the Court held that Tomaszewska had not been denied procedural fairness in the hearing and the penalty was not patently unreasonable

Administrative law – Decisions of administrative tribunals – Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties and suspensions – Hearings – Disclosure – Judicial review – Procedural requirements and fairness – Fresh evidence – admissibility

Tomaszewska v. College of Nurses of Ontario, [2007] O.J. No. 1731, Ontario Superior Court of Justice, May 3, 2007, S.N. Lederman, K.E. Swinton and M.J. Quigley JJ.

On September 27, 2004, the College of Nurses of Ontario (the “College”) issued a Notice of Hearing alleging that Tomaszewska had engaged in professional misconduct because she had become an attorney under a power of attorney for a 73-year-old psychiatric patient to whom she provided care. The Notice further alleged that Tomaszewska became Executrix, Trustee and beneficiary under the Will of this individual and she used her powers to enrich herself or her husband by approximately $240,000 between April 2000 and April 2001. A hearing date of November 2, 2004 before the Discipline Committee of the College was scheduled. Tomaszewska, acting on the advice of legal counsel, did not appear at the disciplinary hearing on that date. Prior to the scheduled hearing date, Tomaszewska’s counsel informed the Discipline Council for the College that because the College had failed to provide timely disclosure of certain documents, he would not attend the hearing. Tomaszewska’s counsel did not appear on November 2 to raise the issue of disclosure or to seek an adjournment of the proceedings. The Discipline Committee decided to proceed in Tomaszewska’s absence. As a result of the hearing, the Committee determined that Tomaszewska committed an act of professional misconduct relevant to the practice of nursing. The Committee determined that Tomaszewska’s Certificate of Registration should be revoked and that she should be required to pay a fine of $15,000 because of the serious nature of the offence in the absence of any mitigating evidence. Tomaszewska appealed this decision.

At the hearing before the Ontario Superior Court of Justice, Tomaszewska brought a motion to adduce fresh evidence. The Court noted that the test for receipt of fresh evidence on appeal, as set out in R. v. Perlett (2006), 82 O.R. (3d) 89 (C.A.), required the moving party to address the following issues:

1. The evidence was not available at the time of the hearing by the exercise of due diligence.
2. It must be relevant to a potentially decisive issue at first instance.
3. It must be credible.
4. It could, if believed and taken together with the rest of the evidence, reasonably be expected to have affected the initial decision.

In this case, Tomaszewska sought to adduce three categories of documents: correspondence between her counsel and the College investigator; documents from a court application launched by the Public Guardian and Trustee in 2001 to determine the competency of the individual who granted the power of attorney; and disclosure documents comprising letters between her counsel and Discipline Counsel. The motion to adduce fresh evidence was dismissed, as the Court held that Tomaszewska had not met the due diligence test.

Tomaszewska argued that she had been denied procedural fairness because of the late disclosure of information. The Court rejected this submission noting that Tomaszewska or her counsel failed to appear at the hearing to alert the Committee to Tomaszewska’s position on disclosure and ask for adjournment. Tomaszewska did not appear and it was not appropriate for her to now complain that there was a denial of procedural fairness because her position was not put to the Committee as she would have liked. The Court further rejected Tomaszewska’s argument that the Committee erred in accepting banking documents and hospital records without her consent, holding that Tomaszewska was precluded from objecting to their admissibility because of her failure to attend at the hearing.

Tomaszewska also appealed the penalty of revocation and fine arguing that it was too severe and that a reasonable penalty would be a suspension of 12 months. The Court indicated that the penalty imposed by a Disciplinary Committee of a professional college is entitled to great deference, citing Mussani v. College of Physicians and Surgeons (Ontario) (2004), 22 Admin. L.R. (4th) 53 (Ont. C.A.). The Court reviewing the decision on penalty should intervene only if there has been an error in principle or the penalty is clearly unfit: Chuang v. Royal College of Dental Surgeons (Ontario), [2006] O.J. No. 2300 (Div. Ct.). In this case, the Committee gave detailed reasons to explain the penalty imposed, stressing the vulnerability of the patient whom Tomaszewska met while nursing in a psychiatric facility. It found that the nurse had abused her power, characterizing the misconduct as serious in nature. There was no evidence of mitigating circumstances. The Court held that the penalty, including the fine and the award of costs, was not unreasonable in the circumstances of this case.

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