InYoung v. College of Nurses of Ontario, two nurses successfully sought judicial review of the decisions of theInquiries, Complaints and Reports Committee (ICRC) of theCollege of Nurses of Ontario (CNO). The two nurses argued that the decisions were unreasonable because the ICRC failed to address theircentral arguments relating to delay and abuse of process. In both cases, the CNO took almost 18 months to notify the nurses of reports of alleged substandard care and a further two years before requesting responding submissions from the nurses. By the time the ICRC rendered a decision, ordering a caution for both and aspecified continuing education or remediation program(SCERP) for one, nearly five years had passed since the index events.
The Divisional Court found that both decisions were unreasonable because they failed to address adequately the nurses’ submissions relating to the delay. A decision-maker’s decision must be justifiable and meaningfully account for the central issues and concerns raised by the parties. In this case, the ICRC needed to articulate and provide a rationale to the nurses because the nurses were being cautioned. In providing reasons, the ICRC must consider the member’s submissions and show, through its reasons, that those submissions were considered.
In this case, both nurses argued that the delayed conduct of the investigations was inordinate and an abuse of process. The delays compromised the nurses’ ability to respond to the allegations as witnesses could not be interviewed, and documents were no longer available. The two nurses also argued that they were prejudiced when the investigator contacted their current employers, causing the nurses distress, anxiety, and stigma. The nurses also raised alternative arguments that, given the extensive delay and because both had been practising without incident in the five years since the index incidents, the only appropriate disposition was for the ICRC to take no further action.
Despite the nurses’ extensive submissions on delay and abuse of process issues, the ICRC’s decisions were silent on these two issues. The decisions addressed only the nurses’ response to the substantive allegations about the incidents that were investigated.
The Divisional Court stated that since the nurses had raised the arguments, the ICRC had to, at thevery least, consider and give reasons as to why, in the circumstances, a caution and a SCERP remained the preferred disposition. The reasons did not assure the nurses that the ICRC heard or considered their central submission.
Decision-makers, like the ICRC, have a duty to act fairly and the power to assess allegedly abusive delay. The Divisional Court rejected the College’s argument that the ICRC could not consider issues of delay or abuse of process because it does not engage in fact-finding. Delay does not require a significant degree of fact-finding as the passage of time between the initial reports and the investigation was readily apparent. The ICRC was, therefore, not precluded from considering the nurses’ submissions on delay and abuse of process as they related to the appropriate disposition.
The Divisional Court held that the ICRC’s decisions were unreasonable because they failed to deal with the issue of delay in any meaningful way. It quashed the decisions and set aside the ICRC’s orders. The matters were remitted to the ICRC for decisions in accordance with the Court’s reasons.
NOTE: a blog post is not a substitute for legal advice tailored to your situation. The team at Wise Health Law has extensive experience in navigating College investigations and pursuing judicial review, where appropriate. Please get in touch with us to see if we can assist you.
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