The applicant nurse was not successful in his application for judicial review relating to the respondent College’s demand that he attend an independent medical examination

Administrative law – Decisions of administrative tribunals – College of Nurses – Investigations – Independent Medical Examination – Charter of Rights and Freedoms – Application to disciplinary proceedings – Nurses – Disciplinary proceedings – Competence – Public interest – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter

Iacovelli v. College of Nurses of Ontario, [2014] O.J. No. 6087, 2014 ONSC 7267, Ontario Superior Court of Justice, December 17, 2014, C.D.A. McKinnon, K.E. Swinton and A.L. Harvison Young JJ.

The Applicant (Mr. Iacovelli) is a nurse registered with the Respondent, the College of Nurses of Ontario. Mr. Iacovelli was working as the team leader of surgical oncology at Sunnybrook Health Sciences Centre (“Sunnybrook”) for several years. In April 2013, a staff member at Sunnybrook discovered narcotic medications in Mr. Iacovelli’s bag. Mr. Iacovelli soon admitted that he had a drug addiction and had previously been attending work while under the influence of opiates. The College learned of this issue and initiated an investigation to determine whether Mr. Iacovelli’s health status warranted conditions or limitations on his registration. The College notified Mr. Iacovelli of this inquiry and asked for health records.

In September 2013, Mr. Iacovelli responded to the College’s inquiry and attached a letter from his treating addiction specialist, Dr. Lisa Lefebvre. In October 2013, the College’s Inquiries, Complaints and Reports Committee (ICRC) advised Mr. Iacovelli that he must attend at an independent medical examination (IME) with an addiction specialist. This type of order is authorized, in certain circumstances, in section 59 of the Health Professions Procedural Code. Mr. Iacovelli initiated an application for judicial review to challenge the College’s demand for an IME.

The Court reviewed the statutory framework that governed the College and the ICRC. The Court confirmed that the ICRC was not an adjudicative committee, but rather it was an investigative committee. The Court held that reasonableness was the appropriate standard of review.

Mr. Iacovelli argued that the ICRC should have considered charter values and tried to exercise its powers in a manner that least restricted his rights. The Court rejected this argument, finding that the “reasonable and probable grounds” test was intended to balance the competing interests of the complainant and the registrant nurse.

Mr. Iacovelli next argued that the report of Dr. LeFebvre was an adequate alternative to attending at an IME. The Court considered the College’s policies relating to reports provided by treating physicians. The Court rejected Mr. Iacovelli’s argument.

The Court dismissed Mr. Iacovelli’s application for judicial review. The Court invited written submissions with respect to the issues of awarding costs.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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