TRANSCRIPT April 3

TRANSCRIPT April 3, 1998 - College of Nurses of Ontario vs. Marilyn Munro re: Kennedy complaint: Submissions [ADDRESSES] A-0027

2 DISCIPLINE COMMITTEE OF THE

3 COLLEGE OF NURSES OF ONTARIO

10 Panel:

12 Elizabeth Haugh, RN The Chair

13 Shirley Drayton, RN

14 Janice Johnson, RN

15 Yvonne Slivinski, Public Representative

16 Warren Stanton Public Representative

19 _____________________________

24 B E T W E E N:

28 COLLEGE OF NURSES OF ONTARIO,

30 Plaintiff,

33 _ and _

37 MARILYN MUNRO

39 Defendant.

43 APPEARANCES:

45 Nick Coleman for the Plaintiff

47 Perry Brodkin for the Defendant

1 COLLEGE OF NURSES OF ONTARIO

3 DISCIPLINE COMMITTEE

5 Record of Hearing

8 Hearing for: MARILYN MUNRO, RN

9 pursuant to s. 38(1) of the Health

10 Professions Procedural Code of the

11 Nursing Act, 1991, S.O. 1991, c.32,

12 as amended.

15 Held on: April 3, 1998

19 Present: Panel members of the Discipline Committee

20 _ Elizabeth Haugh, RN, Chair

21 _ Shirley Dayton, RN

22 _ Janice Johnson, RN

23 _ Yvonne Slivinski, Public Representative

24 _ Warren Stanton, Public Representative

27 College of Nurses

28 Legal Counsel _ Nick Coleman

30 College of Nurses

31 Staff _ Laryssa Holynsky

34 _ Jackie Jacalan

35 Hearings Administrator

38 Defence Counsel _ Perry Brodkin

40 Independent Legal

41 Counsel _ Paul Le Vay

43 Verbatim Reporter _ Mary Jane Corcoran, CSR

1 TABLE OF CONTENTS

3 INDEX OF SUBMISSIONS:

4 SUBMISSIONS BY MR. BRODKIN: ............... 6

5 SUBMISSIONS BY MR. COLEMAN: .............. 31

6 REPLY SUBMISSIONS BY MR. BRODKIN: ........... 44

7 SUBMISSIONS BY MR. BRODKIN: (Cont'd) ......... 53

TABLE OF CONTENTS (Continued)

INDEX OF EXHIBITS

Page No.

2 EXHIBIT NO. 33: Excerpt from Transcript of

3 Cross_Examination of N. A. Johnston,

4 proceedings of July 23, 1997. ......... 7

6 EXHIBIT NO. 34: Ad, Northern Life, February 22,

7 1998. .................... 16

9 EXHIBIT NO. 35: Letter To Whom It May Concern,

10 from Dr. Brian J. Lynch, March 11,

11 1998. .................... 17

13 EXHIBIT NO. 36: Letter to M. Risk from Marilyn

14 Munro, dated March 24, 1998. ........ 25

16 EXHIBIT NO. 37: Letter to M. Munro from A.

17 Kokolakis, dated March 27, 1998. ...... 25

19 EXHIBIT NO. 38: Professional Regulations. ...... 25

TABLE OF CONTENTS (Continued)

INDEX OF EXHIBITS

Page No.

1 EXHIBIT NO. 39: Ontario Nurses' Association

2 Newsletter, Volume 25. No. 1. ........ 25

4 EXHIBIT NO. 40: Endorsement, Labour Relations

5 Board, March 11, 1998. ........... 29

1 ___Upon commencing at 9:30 a.m.

2 THE CHAIR: Thank you very much. Good

3 morning. Just give us a few minutes to get our notes back

4 in order. I think we are ready to convene.

5 Mr. Brodkin, last time it was December 16th

6 we were together last you were __ you were just beginning

7 your closing arguments when we adjourned, so if you would

8 like to continue on that.

9 MR. BRODKIN: Thank you.

10 SUBMISSIONS BY MR. BRODKIN:

11 Prior to my continuing my closing arguments,

12 we would like at this time to bring what we consider to be

13 a very serious matter to the attention of this Panel. We

14 became aware of this very serious matter, what we consider

15 to be a very serious matter, subsequent to December the

16 16th, 1997, which was the day that I commenced my closing

17 argument. The matter that we consider to be a very serious

18 matter concerns the testimony of one of my friend's

19 witnesses, and our allegation that that witness committed

20 perjury. The witness' name was Ms. Norma Audrey Johnston.

21 Ms. Johnston testified on July the 23rd, 1997. In that

22 regard I have here copies of an excerpt from a transcript

23 of the proceedings from the cross_examination of

24 Ms. Johnston, and I would ask that the Panel receive that

25 excerpt from the transcript at this time.

1 THE CHAIR: Mr. Coleman, you have no

2 objections to the Panel receiving the transcript?

3 MR. COLEMAN: I have. I mean I have an

4 objection to my friend proceeding in this way at all. We

5 had no advance notice that he intended to make this part of

6 this proceedings, although we're aware that Ms. Munro has

7 made a complaint regarding this witness, and I suspect that

8 you are going to need to see this material in order to

9 determine that fact __

10 THE CHAIR: Thank you.

11 MR. COLEMAN: __ so we have no objection.

12 THE CHAIR: Thank you. Jackie __ if you

13 need copies for us __

14 MR. BRODKIN: I have a sufficient number of

15 copies.

16 THE CHAIR: We'll enter this as an exhibit,

17 Exhibit 33.

18 EXHIBIT NO. 33: Excerpt from Transcript of

19 Cross_Examination of N. A. Johnston, proceedings of July

20 23, 1997.

21 THE CHAIR: All right. Please continue,

22 Mr. Brodkin.

23 MR. BRODKIN: Thank you. Turning to page 3

24 of the excerpt of the transcript, the first question and

25 answer on page 3, and I am going to read that question and

1 that answer.

2 "Question: And to your knowledge, does

3 Med_Plus Care have any plans to expand into northern

4 Ontario beyond Thunder Bay?"

5 As you will recall, the previous

6 testimony __ was there had been a merger between Med_Plus

7 Care and Com Care.

8 "Answer: I have. I know that the strategic

9 plan has not been discussed yet, and it is not my knowledge

10 that it is prepared yet. So expansion is not __ and I'm

11 not sure of expansion at this point."

12 That is the answer wherein we allege that

13 perjury was committed. We allege that Ms. Johnston

14 committed perjury when she testified that she knew, and I

15 emphasize the term "knew", that the strategic plan had not

16 been discussed yet. We allege that the strategic plan had

17 been discussed prior to July 23rd, 1997, which is the date

18 that Ms. Johnston testified that she knew that the

19 strategic plan had not been discussed yet. We allege that

20 she knew that the strategic plan had been discussed prior

21 to July the 23rd, 1997.

22 In that regard __ and I guess the first

23 question becomes how did we find out about this? I have

24 here copies of an advertisement that was placed in a

25 newspaper by the name of Northern Life, which is a

1 newspaper in Sudbury. It is the Northern Life edition of

2 February 22nd, 1998, and I would like to introduce this

3 advertisement at this time.

4 MR. COLEMAN: Madame Chair, I must object to

5 this at this point. I don't know where my friend is going

6 with this evidence or what the purpose of making these

7 submissions are at this point. You've heard the evidence

8 from this witness. He had the opportunity to

9 cross_examine. He got the answers that he got on July 23rd

10 of 1997, and I would like to know from Mr. Brodkin what the

11 purpose of the submission is at this point. He is

12 proposing to put before you what is obviously hearsay

13 evidence of some kind to support his position, and I think

14 we should know from him what the purpose of his submission

15 is at this point. You know, what he expects the Panel to

16 do with it, so we might evaluate whether or not __ how we

17 should respond to what he wishes to do.

18 My concern in part is that I have seen __ I

19 believe I've seen the material that he is referring to. It

20 in no way substantiates the position that he is taking that

21 this witness has perjured herself in some way. It looks,

22 more frankly, like a diversionary tactic of some kind by

23 which he is going to impugn a witness who has given

24 evidence and has been cross_examined by him _ she is not

25 here to answer anything _ in the hopes of in some way

1 diverting you from the inquiry that you have at hand.

2 Perhaps if Mr. Brodkin can spell out exactly what it is

3 that he is attempting to do here, the purpose of making the

4 submission, and then we might be in a better position to

5 respond. In fact, we might want to have independent legal

6 counsel involved in this process.

7 But I think the starting point has to be __

8 I mean what is it that Mr. Brodkin __ what does he intend

9 to do with this?

10 THE CHAIR: Mr. Brodkin.

11 MR. BRODKIN: Well, initially I thought that

12 I would merely include this as part of my closing argument,

13 as part of my submission to, of course, deal with the

14 credibility of the witness, to go to whether or not you

15 should believe the witness. That was my initial thought.

16 Then, as it became more and more aware to me of what should

17 take place my position changed somewhat to transposing

18 this, as it were, into a motion for an adjournment. If we

19 can proceed further I believe that you will begin to

20 understand why I have transposed this into a motion for an

21 adjournment.

22 THE CHAIR: Thank you. Mr. Coleman, is

23 that __ does that answer your question about where we're

24 going?

25 MR. COLEMAN: It certainly does, Madame

1 Chair. I can't say that I am reassured but I certainly

2 know where Mr. Brodkin intends to go with this.

3 I think it would be wise for us to have

4 independent legal counsel involved before we proceed any

5 further, which __ with what is now identified as a motion

6 to adjourn this proceeding in the middle of final

7 arguments.

8 Just, if I could comment, it would have been

9 inappropriate for Mr. Brodkin even to do what it was that

10 he was suggesting that he was thinking of doing before he

11 decided to make this motion to adjourn, and that is that he

12 was going to, through the use of newspaper advertisements

13 and other sundry information, none of it properly proved

14 before you, to impugn the credibility of a witness who gave

15 evidence and was cross_examined by him in this proceeding.

16 We certainly would have objected to that strategy as being

17 a strategy that was inappropriate, just as inappropriate as

18 prosecution counsel dredging up unpleasant things about

19 what other parties had to say about the Member and offering

20 them to you the course of making our final submissions to

21 suggest to you that she is this kind of bad actor. Although

22 we didn't prove these, we wish to have you take them into

23 account in assessing her credibility.

24 I would assume that defence counsel and, in

25 fact, each Member of the Panel would have gone ballistic if

1 that's what we had attempted to do. Yet that's exactly

2 what Mr. Brodkin says that he was contemplating doing

3 before he changed his strategy to that of a motion to

4 adjourn.

5 We find this a highly offensive way for him

6 to proceed. But he has moved for an adjournment and I

7 think before we address the issues that __ the grounds for

8 that adjournment, we should involve independent legal

9 counsel so we don't end up having to try to explain it all

10 to him later. I believe that independent legal counsel is

11 available today. Hopefully we can get him up here to

12 assist us. I'm not sure.

13 THE CHAIR: Just before we recess,

14 Mr. Brodkin, the Panel will hear all the evidence you have

15 to present on this motion before we deliberate on the

16 motion. Just trying to think time wise. Can you give us an

17 approximate estimate as to what time it will take to get

18 independent counsel here to deal with this issue?

19 MR. COLEMAN: Approximately one hour.

20 THE CHAIR: We'll try to see if we can get

21 independent legal counsel. Independent legal counsel will

22 expedite it, I think, in terms of not having to repeat it

23 again if the Panel has questions so it would be wise to get

24 him before we hear any more submissions about the motion,

25 so we'll see we can do about that. If time is a factor I

1 think an hour would be a little long to do it by telephone

2 so it would be preferable if we could get someone here.

3 Thank you. We'll just take an adjournment to find out

4 about independent legal counsel, and then you can continue.

5 ___ Recess at 9:46 a.m.

6 ___ Resuming at 10:35 a.m.

7 THE CHAIR: Thank you very much. For the

8 record, just to make note that Mr. Paul Le Vay, independent

9 legal counsel is with us now. Thank you.

10 Mr. Brodkin, you may continue.

11 MR. BRODKIN: Thank you. Should I give

12 Mr. Le Vay a brief summary?

13 THE CHAIR: Perhaps __ I think that would be

14 a good idea. Thank you.

15 MR. BRODKIN: All right. We are requesting

16 an adjournment, making a motion for an adjournment and that

17 arises out of our allegation that one of the college's

18 witnesses at the hearing committed perjury. I have

19 provided everyone here with copies of the excerpt of the

20 transcript that sets out the question and the answer, that

21 we allege the answer is a commission of perjury. That is

22 contained on page 3 of the excerpt, at the top of page 3,

23 the first question and answer.

24 The previous questions were dealing with and

25 were directed towards whether or not the expert witness was

1 the expert witness for the College. The expert witness is

2 employed by a company by the name of Comcare, and Comcare

3 merged with a company by the name of Med_Plus Care. The

4 questions that were being asked of witness were whether or

5 not this merged company had any plans to expand into the,

6 if you want to call it the catchment area of my client's

7 business, because dependent upon what the answers were to

8 those questions there could have been an issue or there may

9 have been an issue of bias, prejudice __ the appearance of

10 deception, bias, prejudice, matters pertaining to the

11 credibility of the witness, whether the Panel should

12 believe the witness, et cetera.

13 We have now gotten to the stage, in my

14 submission, of how it came about that we discovered,

15 subsequent to our last being here on December the 16th,

16 that certain things had taken place which led to our

17 allegation that perjury had been committed.

18 If I can then turn to the advertisement. It

19 was an advertisement in a newspaper in Sudbury. The name

20 of the newspaper is Northern Life. It was the February

21 22nd, 1998 edition of the newspaper that alerted us to the

22 fact that Comcare had plans to expand into Sudbury at the

23 very least prior to February 22nd, 1998.

24 If I could at this time introduce the

25 advertisement.

1 MR. COLEMAN: Madame Chair, I should note

2 for the record that I am not opposed to admitting this

3 evidence for the purpose of Mr. Brodkin making this motion.

4 I note as well that this is not evidence properly

5 admissible before you. It certainly would not be

6 admissible in a court of law in a civil proceeding. But I

7 am prepared to permit Mr. Brodkin to put what he describes

8 as the documents into evidence before you such that he __

9 so that he can make his motion to adjourn, and for

10 absolutely no other __ for no other purpose. Certainly

11 this is not evidence that is evidence of the proof of the

12 contents of these materials, but we're permitting it in so

13 that Mr. Brodkin can make his point as to what has prompted

14 him to make this motion.

15 MR. BRODKIN: If I can read from just a

16 portion of this advertisement, the heading is "Comcare

17 Health Services", and there is then a reference to

18 registered nurses and registered practical nurses. At the

19 bottom of the advertisement it states:

20 "Our rapidly expanding company has positions

21 available in Sudbury and District with a vision for the

22 future."

23 The issue then became whether Comcare had

24 plans to expand into Sudbury prior to July 23rd, 1997,

25 which was the date that Ms. Johnston testified. In that

1 regard I have here copies of a letter, and would like at

2 this time to introduce that letter.

3 THE CHAIR: Same comment, Mr. Coleman?

4 MR. COLEMAN: I have the same comment on all

5 of the documents that Mr. Brodkin is going to provide.

6 THE CHAIR: Thank you.

7 EXHIBIT NO. 34: Ad, Northern Life, February

8 22, 1998.

9 MR. BRODKIN: This is a letter dated March

10 the 11th, 1998, from a Dr. Brian J. Lynch. If I can read

11 from a portion of the letter only. It pertains to a

12 meeting that took place on March the 2nd, 1998. The second

13 sentence of the first paragraph, Dr. Lynch states:

14 "At that time meeting I sat next to Crystal

15 Osmani, who represented Comcare Health Services."

16 The second paragraph:

17 "Following the meeting we engaged in light

18 conversation. As Comcare had only recently come into the

19 Sudbury area, I asked her how long this process had been

20 planned. She responded that she had been asked by Comcare

21 two years ago to work on their plans to expand in the

22 Sudbury area."

23 We submit that the letter clearly indicates

24 that Comcare had strategic plans to expand into Sudbury

25 prior to July 23rd, 1997, the date that Ms. Johnston

1 testified and, in fact, had plans to expand to Sudbury in

2 March of 1996, whereas Ms. Johnston testified that she knew

3 that the strategic plan had not been discussed as of July

4 23rd, 1997. We allege that Ms. Johnston committed perjury.

5 In view of our allegation a complaint has

6 been filed against Ms. Johnston with the College of Nurses

7 of Ontario. The complaint was filed on March the 24th,

8 1998. It will be important, in my submission, that you

9 remember that complaint was filed on March the 24th, 1998.

10 EXHIBIT NO. 35: Letter To Whom It May

11 Concern, from Dr. Brian J. Lynch, March 11, 1998.

12 MR. BRODKIN: I have here copies of the

13 complaint that has been filed. I would only read just a

14 couple of sentences in that complaint. First paragraph:

15 "This letter will serve you with a formal complaint

16 regarding one Mrs. Norma Johnston, RN."

17 Second paragraph:

18 "From the evidence I have received, I can

19 only conclude that Ms. Johnston knowingly committed perjury

20 while giving sworn testimony on behalf of the College of

21 Nurses as an expert witness in a disciplinary hearing in

22 which I am the defendant."

23 I also have here copies of a letter dated

24 March the 27th, 1998, from the College of Nurses of

25 Ontario, acknowledging that the College is in receipt of

1 the complaint concerning Norma Johnston and advising that

2 the complaint will be allocated to a College investigator.

3 In view of the fact that a complaint has

4 been filed against Ms. Johnston, we would request an

5 adjournment of this hearing for a period of 110 days in

6 accordance with subsection 28.1 of the Regulated Health

7 Professions Act Procedure Code, and I have copies of 28.1

8 here.

9 Subsection 28.1, provides that a Panel shall

10 dispose of a complaint within 120 days after the filing of

11 the complaint. The complaint against Ms. Johnston was

12 filed on March the 24th, 1998. Today is April 3rd, 1998.

13 It has now been ten days since the filing of the complaint.

14 The Panel now has 110 days more to dispose of the

15 complaint, hence the request for an adjournment for a

16 period of 110 days.

17 In the alternative, we would request an

18 adjournment of the hearing for a period of thirty days from

19 the date that Ms. Johnston received notice of the complaint

20 from the Registrar pursuant to subsection 25.5 of the Code.

21 In that subsection, 26.1 of the Code provides that

22 Ms. Johnston may make written submissions to Panel within

23 thirty days after receiving notice under subsection 25.5.

24 If Ms. Johnston does not make written submissions to the

25 Panel within thirty days after receiving notice under

1 subsection 25.5, we submit that that would be tantamount to

2 an admission or confession by Ms. Johnston that she did, in

3 fact, commit perjury. In the alternative, Ms. Johnston may

4 make written submissions to the Panel in which she admits

5 or confesses to committing perjury.

6 If Ms. Johnston does not make written

7 submissions or if she admits or confesses to committing

8 perjury, my friend's client __ and I can't speak on behalf

9 of my friend's client, but I would make the submission,

10 that my friend's client may or might cease prosecuting

11 these allegations of misconduct in order that the College's

12 powers not be exercised unfairly.

13 There is a public interest in ensuring that

14 hearings are just and fair, and it is possible for the

15 discipline process at some point in that process to become

16 so unfair to the practitioner that his or her interests

17 outweighs the public interest in disciplining the Member.

18 In addition, if Ms. Johnston does not make

19 written submissions or if she admits or confesses to

20 committing perjury we submit that consideration should be

21 given to the commencement of criminal proceedings, whether

22 those proceedings are commenced by the Panel or by the

23 College of Nurses of Ontario or by my client.

24 In considering whether to grant our request

25 for an adjournment, we would ask the Panel to consider

1 other conduct or actions of Ms. Johnston's employer Comcare

2 as being indicative of whether Ms. Johnston would commit

3 perjury. In that regard, I have here copies of the Ontario

4 Nurses' Association News of January and February of 1998,

5 volume 25, number 1, and would ask that these be presented.

6 MR. COLEMAN: These I do object to, Madame

7 Chair. I gather what Mr. Brodkin is referring to relates

8 to the labour relations problems of Comcare down in the

9 Kingston area. This has nothing to do with this allegation

10 of perjury. There was cross_examination on this point in

11 the course of the hearing. It is hard now, as it was hard

12 then, to discern any relevance in the __ in the labour

13 relations problems faced by Comcare down in Kingston to the

14 expert evidence being given in this case.

15 Now, all Mr. Brodkin is attempting to do __

16 we submit attempting to do with all of his evidence, put

17 matters into evidence that he did not or could not put into

18 evidence at the time. He is not reopening his case, he is

19 trying to slide it in the back door and he is trying to

20 prejudice the College's case by putting these matters

21 before you, so we would object to this. He has raised an

22 issue of a witness committing perjury, a witness who gave

23 evidence in this proceeding committing perjury. We are

24 prepared to consider that complaint, as spurious as it is.

25 We're not prepared to simply open the door and permit

1 Mr. Brodkin to pour in whatever additional evidence that he

2 wants that he says might influence you in your

3 decision_making, although it's not properly entered as

4 evidence and appears not to be relevant. He did raise it

5 with the evidence but now he wants to top that up, as it

6 were, by sliding this under the door and leaving it for

7 your considerations. It is simply not relevant to this

8 motion to adjourn. It is quite improper for him to be

9 doing any of this. Certainly improper to be attempting to

10 slide in additional information about the labour relations

11 problems, so we object to the evidence that he proposes to

12 put forward.

13 THE CHAIR: Thank you.

14 Mr. Brodkin, would you like to respond to

15 Mr. Coleman's objections as to __

16 MR. BRODKIN: Yes.

17 THE CHAIR: __ the relevance of this

18 exhibit?

19 MR. BRODKIN: Yes. My submission would be

20 that the exhibit is relevant, and I'll attempt to explain

21 why I believe that is, that the news __ Nurses' newsletter

22 is relevant, why I believe that other conduct or actions of

23 an employer of a witness is relevant. We're dealing here

24 with a nurse, regulated health professional testifying

25 under oath. I, for one, can't believe __ it is beyond my

1 comprehension that a regulated health professional or any

2 professional would commit perjury testifying under oath.

3 When you start from that premise that you

4 just can't believe that that took place, you have to,

5 starting from that premise, begin to ask yourself why would

6 a professional ever commit perjury ever? There has to be a

7 significant, substantial reason why a professional would

8 ever commit perjury. And I had to set about trying to

9 ascertain, determine, gather information, as it were, as to

10 why a professional would ever commit perjury.

11 In doing so, you start with the premise _

12 well, this professional who testified under oath was an

13 employee of an employer. This was not an independent

14 contractor, this was not an academic, this was an employee

15 of an employer. So you __ in my view, you look at the

16 conduct or actions of the employer. Is the employer a good

17 corporate citizen? If you discover that or ascertain that

18 the employer is not a good corporate citizen then there is

19 that possibility that the employer may have instructed the

20 employee to do something, to do something that would be

21 indicative of what an employer who was not a good corporate

22 citizen would perhaps do. And that is why I submit that it

23 is relevant that the other conduct or actions of the

24 employee's employer is relevant in ascertaining whether or

25 not there is the possibility that the professional did

1 commit perjury.

2 That would be my submission as to the

3 relevance of other conduct or actions of Comcare.

4 THE CHAIR: Thank you Mr. Brodkin.

5 MR. COLEMAN: Brief response. It is clear

6 from Mr. Brodkin's submission there is no relevance to this

7 evidence whatsoever. All he is suggesting is that if this

8 employer does something that he has characterized as being

9 improper in some other sphere of its affairs, that that is

10 evidence that the employer instructed the employee to

11 commit perjury in this proceeding. Quite aside from the

12 issue of perjury of this witness, which is, I think, an

13 entirely spurious allegation, and that is quite apparent

14 from the materials tendered. Quite aside from that there

15 is no connection whatsoever between the evidence that he

16 wishes to adduce and the point that he is trying to make

17 about the perjury of a witness. It is a ridiculous claim,

18 with all due respect, Madame Chair, and this evidence, even

19 on the relaxed rules of evidence that we've agreed to for

20 the purposes of this motion, this additional evidence

21 should not be admitted.

22 THE CHAIR: Thank you Mr. Coleman. Just for

23 the sake of professional __ because we do ask for advice

24 from Mr. Le Vay on this issue, could you refresh our memory

25 about what exact context this was raised, the fact the

1 allegations in Kingston were raised in the

2 cross_examination with Ms. Johnston?

3 MR. COLEMAN: I have misspoken myself,

4 Madame Chair. My assistant, whose memory is better than my

5 own, indicated that this issue was not raised in this

6 proceeding. I don't __ I thought it had been. It has not

7 been. I am told it has not been. There was no

8 cross_examination on labour relations issues.

9 THE CHAIR: Mr. Le Vay, do you have any

10 advice to give the Panel before our ruling on this motion?

11 MR. LE VAY: Yes, Madame Chair, Members of

12 the Panel, the issue on the motion before you, of course,

13 is whether or not the Member should be granted an

14 adjournment, and the objection which Mr. Coleman raises to

15 this evidence, of course, must be taken in that context. Is

16 the evidence which Mr. Brodkin proposes to put before you

17 relevant to your consideration of that issue?

18 I would remind you that you are not deciding

19 the issue this morning of whether or not the Member has

20 committed perjury __ I'm sorry, the expert has committed

21 perjury, but the allegation with respect to perjury is __

22 does form the basis for the request for an adjournment this

23 morning. An allegation of perjury is, of course, personal

24 to the witness and, in my view, you should keep that in

25 mind in asking yourself whether the conduct of that

1 person's employer in a context __ factual context which is

2 removed from the factual context at issue in the hearing is

3 of sufficient relevance for a causal connection to be

4 helpful to you in your decision. If it has a sufficient

5 causal connection to be helpful to you in your decision

6 this morning here with respect to the adjournment then it

7 is of sufficient relevance to be admitted. If you find

8 that it's too remote then it's not relevant and you

9 shouldn't consider it.

10 THE CHAIR: All Right. Thank you.

11 EXHIBIT NO. 36: Letter to M. Risk from

12 Marilyn Munro, dated March 24, 1998.

13 EXHIBIT NO. 37: Letter to M. Munro from A.

14 Kokolakis, dated March 27, 1998.

15 EXHIBIT NO. 38: Professional Regulations.

16 EXHIBIT NO. 39: Ontario Nurses' Association

17 Newsletter, Volume 25. No. 1.

18 THE CHAIR: We'll just take a brief

19 adjournment while we go out to deliberate. Thank you.

20 ___ Recess at 11:07 a.m.

21 ___ Resuming at 11:24 a.m.

22 THE CHAIR: Thank you. The Panel has

23 decided to overrule the College's objection and accept this

24 as an exhibit and we will apply the appropriate weight to

25 it when we receive it. Thank you.

1 MR. BRODKIN: Thank you very much. I have

2 sufficient copies of the newsletter and I would like to

3 read only a couple of paragraphs of the newsletter. The

4 article was entitled, "ONA Blacklists Comcare, Kingston.

5 Nurses' Strike the 'Tip of the Iceberg' As Community Care

6 Battle Takes Shape." I would like to read the first three

7 paragraphs:

8 "The ONA Board of Directors has voted to

9 blacklist Comcare (Canada) Inc., Kingston, the employer for

10 120 striking registered nurses and registered practical

11 nurses who provide home care nursing services to the

12 Kingston community.

13 The RNs and RPNs of ONA Local 146 have been

14 on strike since November 7th, 1997, after failing in their

15 attempts to negotiate a first collective agreement. The

16 Local was certified in November 1996.

17 Comcare Canada is a national private

18 for_profit healthcare agency that contracts with the

19 Kingston Community Care Access Centre to supply

20 professional RNs and RPNs and home support workers for the

21 city's Home Care Program, providing nursing services to

22 clients in their homes."

23 Then the beginning at the fourth paragraph

24 at the bottom of that column:

25 "The Comcare nurses asked the ONA Board to

1 impose the blacklisting because of the agency's

2 stonewalling tactics during the negotiation process. The

3 key issues in dispute are basic working conditions and

4 money as well as the nurses' concerns regarding the

5 provision of safe, quality patient care."

6 The next paragraph:

7 "Blacklisting is a mechanism used by ONA to

8 publicly censure an employer who has dealt with employee

9 relations in an unfair or inappropriate manner."

10 Next paragraph:

11 "When an agency is blacklisted, information

12 is sent across Canada to other nurses' unions and to all

13 community colleges and universities in Ontario with nursing

14 programs, to alert prospective employees about the

15 employer's activities."

16 Turning the page:

17 "ONA urges all registered nurses to refuse

18 employment at the blacklisted agencies until the matters

19 giving rise to the censure have been satisfactorily

20 resolved and the blacklisting lifted."

21 At the bottom of that page __ and it has

22 been cut off unfortunately. I will try to make some sense

23 of it. It's the last paragraph:

24 "Along with this blacklisting ONA has filed

25 unfair practice charges against Comcare. ONA has also

1 filed an Employment Standards Act complaint over what it

2 contends are violations by Comcare. ONA claims Comcare has

3 failed to make any reasonable effort to achieve an

4 agreement by refusing to expand their compensation offer,

5 citing an inability to pay.

6 However, Comcare is paying more than the

7 going rate in Kingston for the use of illegal professional

8 strike breakers during this strike.

9 The striking Comcare nurses claim they have

10 endured intimidation and punishment from Comcare for

11 exercising their rights. For instance, Comcare has issued

12 warning letters to the nurses and refused continuation of

13 their medical insurance. Comcare has also issued records

14 of employment to the nurses, implying they are fired.

15 Despite their obvious attempts at

16 intimidation, we are standing very united in this strike,

17 not only to fight for our basic rights but also in the

18 interests of our patients, said Local 146 Vice_ President

19 Marilyn Dee, RN.

20 Comcare's so_called elect to work model,

21 deprives patients of the continuity of care they need for

22 the appropriate management of their respective needs, and

23 doesn't give us adequate notice to plan our schedules, Dee

24 added.

25 They are essentially keeping us on stand_by

1 status by telling us we can refuse work. Just let them know

2 when we are available, she said.

3 The reality is that we are afraid to refuse

4 work because we know we will be passed over for future

5 cases or even laid off. The employer calls us casual

6 workers but we work full time or greater than full time

7 hours. This way the employer obeys the requirements under

8 the Employment Standards Act. It's an untenable situation

9 for the clients and nurses providing their care."

10 And finally:

11 "Dee said the Local 146 nurses deeply regret

12 having had to take strike action, but that every effort on

13 their part to avert the job action was thwarted by the

14 employer, including their offer of voluntary first contract

15 arbitration through the Ontario Labour Relations Board,

16 which Comcare twice refused."

17 Unless the Panel believe that this article

18 is, in some respects not an accurate depiction of the

19 conduct or actions of Ms. Johnston's employer __ I have

20 here copies of the endorsement of the Ontario Labour

21 Relations Board in the case, referred to in the article.

22 EXHIBIT NO. 40: Endorsement, Labour

23 Relations Board, March 11, 1998.

24 MR. BRODKIN: Now, you will note that this

25 is merely an endorsement. There are, as of yet, no written

1 reasons for the decision of the Vice_Chair of the Ontario

2 Labour Relations Board. However, I would like to read from

3 that endorsement. The decision of the Board, March 9th,

4 1998:

5 "This is an application brought to the Board

6 pursuant to Section 43 of the Labour Relations Act, 1995.

7 I have considered the evidence and argument of the parties.

8 In the circumstances, I am satisfied that the process of

9 collective bargaining has been unsuccessful because of the

10 uncompromising nature of a bargaining position adopted by

11 the responding party without reasonable justification. I,

12 therefore, direct the settlement of a first collective

13 agreement by arbitration in accordance with Section 43(2)

14 of the Act. Full reasons will follow."

15 Lee Shouldice for the Ontario Labour

16 Relations Board.

17 We submit that other conduct or actions of

18 the employer Comcare is indicative or leads to a suspicion

19 or belief that this kind or type of employer could, and we

20 are not saying did, we are saying could, instruct an

21 employee to commit perjury.

22 That concludes my submission as to the

23 reasons why we are of the view that an adjournment should

24 be granted at this time, albeit for a limited period of

25 time only.

1 THE CHAIR: Thank you. Thank you,

2 Mr. Brodkin.

3 Just before we begin, Mr. Coleman __ this

4 specific motion is for an adjournment for 110 days?

5 MR. BRODKIN: In the alternative 110 days or

6 30 days from a specified date.

7 THE CHAIR: Thank you.

8 Mr. Coleman.

9 SUBMISSIONS BY MR. COLEMAN:

10 Madame Chair, members of the Panel, we

11 consider this motion to simply be an outrageous tactic on

12 the part of the defence to delay your decision in this

13 case. They are attempting to do this __ Mr. Brodkin is

14 attempting to do this by impugning a witness after the

15 hearing has been concluded. That is, after the hearing of

16 evidence has been concluded, he is attempting to impugn the

17 credibility of that witness when he could not do so in

18 cross_examination in the course of the hearing. And we

19 submit it's an outrageous tactic because the defence

20 probably have no realistic contemplation that the

21 adjournment will be granted but they are simply hoping that

22 they will have you __ having provided you with this

23 additional information that it might have some prejudicial

24 impact on your assessment of the witness' credibility, the

25 expert witness' credibility and the College's conduct of

1 this case.

2 Had the College attempted a manoeuver of

3 this sort as against the defence we submit the defence and,

4 indeed, the members of the Panel would have been

5 appropriately be outraged by the College's conduct.

6 Mr. Brodkin has __ is asking for an

7 adjournment of 110 days or thirty days, and he has tied the

8 request to adjournment to time frames for processing of the

9 Member's complaint regarding Ms. Johnston under the Code,

10 and unfortunately those time frames don't have any

11 significance for us in terms of yielding some results that

12 would impact on this case and, therefore, there is simply

13 no logic in this request to adjourn.

14 The Complaints Committee was 120 days, now

15 110 days to consider the complaint. But then what? Where

16 are we left? The Complaints Committee is left its

17 deliberation. What is the purpose of delaying this

18 proceeding to go to that point?

19 In the alternative, Mr. Brodkin suggests an

20 adjournment of thirty days to see whether the witness is

21 going to admit to perjury. One only need look at the

22 evidence in support of this allegation of perjury to see

23 how unlike unlikely that is.

24 Mr. Brodkin further suggests that if

25 Ms. Johnston does not respond in writing within the thirty

1 day period of time then we should all assume that she is

2 confessing to her guilt. That is certainly a novel

3 proposition and not a proposition that the defence either

4 that the defence made before. A Member is entitled to

5 respond or not respond as he or she may see fit and it has

6 ever been the law of this province and it is certainly not

7 the law of this district or this committee, that I'm aware

8 of, that if the Member does not respond within writing in

9 thirty days she can then be convicted of professional

10 misconduct.

11 So the thirty day time period does not

12 advance Mr. Brodkin's cause in any event here. So we say

13 there is simply no logic to his request to adjourn. What

14 Mr. Brodkin is really attempting to do, without following

15 the proper procedures is to re_open his case. Mr. Brodkin

16 is saying that additional information has come to light,

17 which is relevant and that he would like to re_open his

18 case in the middle of his final submissions to put that

19 evidence before you. And now he has not requested to

20 reopen his case, because if he made such a request and it

21 were granted of course he would have to supply some real

22 evidence in support of these allegations. His evidence

23 would be tested by way of examination and cross_examination

24 in the proper manner.

25 Mr. Brodkin, and the Member, we submit, see

1 the advantage of not going that route, but instead

2 declaring this to be a request to adjourn because it

3 permits them to shovel in what they call their evidence of

4 these allegations without that evidence being properly

5 tested by way of examination and cross_examination.

6 We say that the motion should be dismissed.

7 We are in the middle of final submissions. In fact, we're

8 in the middle of Mr. Brodkin's final submissions. The case

9 should continue to its completion and there should be no

10 adjournment.

11 Now, we've described this as an outrageous

12 tactic because we see it, frankly, as an attempt to try to

13 color the Panel's view of the College's expert without

14 actually having to confront that witness with proper

15 cross_examination and without providing that witness the

16 opportunity to respond to these allegations.

17 We say that that is no more appropriate than

18 it would be for the College to shovel in before you on some

19 spurious motion evidence of other misconduct committed by

20 Ms. Munro. The defence would be outraged if we attempted

21 to do that, and we submit you would be outraged as well. We

22 submit that's exactly what the defence is trying to do, and

23 nothing could be more apparent or becomes perfectly

24 apparent when we review the allegations and the so_called

25 evidence of those allegations of perjury.

1 I would like to start with Exhibit 36. This

2 is Ms. Munro's complaint of March 24th. In that complaint

3 she alleges that Ms. Johnston, in giving her evidence on

4 July 23rd _ that should be 1997 _ knowingly committed

5 perjury, and she cites the passages from the transcript,

6 and I will come back to it in a moment. She goes on to

7 refer to a conversation between one Crystal Osmani, a

8 representative of Comcare, and Dr. Lynch, a friend and

9 associate of Ms. Munro.

10 On the second page described a conversation

11 between Ms. Osmani and Dr. Lynch. She says at the bottom

12 of that first paragraph on the second page that:

13 "Mrs. Norma Johnston, employed at the time

14 of her perjury by Comcare/Med Care Plus, with their

15 knowledge and permission to do so, as a remunerated expert

16 for the College, knowingly and deliberately gave perjured

17 evidence against me, another Member of the profession, with

18 full knowledge."

19 She goes on to say why she concludes that

20 Ms. Johnston did know and chose to perjure herself and then

21 reviews the evidence, which I'll review in a moment.

22 The relevance of the issue of expansion into

23 the Sudbury area is described in the third paragraph.

24 Ms. Munro says:

25 "I can only conclude that she was in

1 possession of this inside information and was cognizant and

2 informed, well informed of the intent of her employer to

3 open an office in the Sudbury/Manitoulin region, the region

4 in which my company Elite Speciality Nursing Services Inc.

5 carries on business, and the conflict of interest that

6 would have been created and perceived by the Disciplinary

7 Panel if this was to be revealed to them."

8 Now, the Member was certainly entitled to

9 cross_examine on this point but it would be a rare

10 conclusion, indeed, for a Discipline Committee to decide

11 that expert evidence of a witness should not be given

12 weight because she's an employee __ she's employed by an

13 agency other than the agency to which the Member is

14 associated. That often in a business sense there will be a

15 competitive relationship between agencies and surely the

16 fact of that alone would not have much bearing, if any at

17 all, on the credibility of an expert witness.

18 Now, the final paragraphs of Ms. Munro's

19 complaints are quite telling. It is clear that myself, as

20 counsel for the prosecution, prosecuting counsel, may yet

21 be in her sights, as you may be: As of yet I do not know

22 if Mr. Coleman or any Member of the College had prior

23 knowledge of these facts and, nonetheless, I trust the

24 matter will be fully investigated. She goes on to say, "At

25 this time I do not know if Mr. Brodkin will be pressing

1 criminal charges against Ms. Johnston." So we're all on

2 warning.

3 Let's look at Exhibit 35. In Exhibit 35,

4 Dr. Lynch says, "At that meeting I sat next to Crystal

5 Osmani, who represented Comcare Health Services. Following

6 the meeting we engaged in light conversation. As Comcare

7 had only recently come into the Sudbury area I asked her

8 how long this process had been planned. She responded that

9 she had been asked by Comcare two years ago to work on

10 their plans to expand in the Sudbury area."

11 There we are. It is on the basis of this

12 light conversation that Dr. Lynch makes the statement in

13 exhibit 35, which the Member has seized upon as evidence,

14 certain evidence, she says, of perjury.

15 Well, let's have a look at what Ms. Johnston

16 said in cross_examination on July 23rd of 1997. If you

17 look at the third page there, it says __ this is

18 Mr. Brodkin conducting his cross_examination, and as we

19 were aware at the time, and he has made perfectly clear

20 now, the purpose of his cross_examination on this point was

21 to establish whether or not Comcare was a competitor, vis a

22 vis Elite or was planning to become a competitor. So what

23 is said:

24 "Question: And to your knowledge, does

25 Med_Plus Care have any plans to expand into

1 northern

2 Ontario beyond Thunder Bay?"

3 This is Med_Plus Care he is asking about.

4 Doesn't ask about Comcare. The answer:

5 "I have" _ pause _ "I know that the

6 strategic plan has not been discussed yet, and it is not my

7 knowledge that it is prepared yet. So expansion is not __

8 I am not sure of expansion at this point."

9 Now, what's abundantly clear from that

10 answer, for which there's no follow_up, is that expansion

11 plans are under consideration. The answer is not: No,

12 we're not expanding, we're not thinking about it, not under

13 consideration, it's not going to happen and we had no

14 interest in Sudbury. The answer, quite clearly, is that it

15 is under consideration. But she is clearly uncertain about

16 a state of plans with respect to expansion. "I have __ I

17 know that the strategic plan hasn't been discussed yet."

18 She doesn't say it hasn't been prepared yet, she says it

19 hasn't been discussed yet. What does she mean by that?

20 Discussed at what level? Discussed by the clerks who

21 photocopy it at the photocopy machine? Discussed at the

22 highest levels of the organization? There's no follow_up

23 question. And it is not my knowledge that it is prepared

24 yet. That is, the strategic plan for expanding, presumably

25 into northern Ontario: "So expansion is not" _ again a

1 pause _ "I am not sure of expansion at this point."

2 Clearly from that answer it's under review.

3 There is a strategic plan being prepared and Ms. Johnston

4 does not know if the final decision has been made or, if

5 so, what the final decision is. But clearly it is under

6 consideration by Comcare. Certainly I take that from that

7 answer. It is under review. There's a strategic plan in

8 the works. If Mr. Brodkin wanted to know about that all he

9 had to say was: Are there plans under review for expanding

10 into Sudbury by Med_Plus, which is all he is asking about,

11 or by Comcare or by the unified organization or the two

12 organizations together. Is it possible? Is it one of the

13 options being considered? Might you at some point in the

14 future become a competitor for Elite? He was free to ask

15 all of those questions. There is nothing about that answer

16 that suggests that he shouldn't have asked those questions,

17 but he chose not to. So that answer to which Ms. Johnston

18 says, "I am not sure of expansion at this point" __ the

19 Member now says is the foundation for her allegation of

20 perjury.

21 Now, this is a very __ needless to say, a

22 very serious allegation. What she is suggesting is that

23 the witness appeared before you and knowingly lied to you.

24 Knowingly lied and purposely misled you to achieve some

25 result, presumably to her advantage or the advantage of her

1 employer.

2 That is an extremely serious allegation to

3 make against anyone and certainly a most extreme and

4 serious allegation to make against a person whose

5 credibility is, in part, her stock and trade, and who has

6 appeared before the Discipline Committee to give expert

7 evidence. We submit that the allegation tells us more

8 about Ms. Munro than it tells us anything about any perjury

9 on Ms. Johnston's part.

10 Now, what is it that has come to light that

11 makes this statement by Ms. Johnson, to the extent there is

12 a clear statement there at all, some statement she made in

13 that answer, a knowing falsehood, a purposeful lie? Well,

14 that evidence is that some eight months later Comcare

15 appears on the scene in Sudbury. Now, how we can imagine

16 that to be a surprise when we review the answer provided by

17 Ms. Johnston in July of 1997, is quite beyond us. Clearly

18 it is under consideration. Some eight months later Comcare

19 appears on the scene in Sudbury.

20 Dr. Lynch says that in his light

21 conversation with Ms. Osmani, the Comcare representative,

22 she indicated to him that she had been asked by Comcare two

23 years ago to work on their plans to expand in the Sudbury

24 area. And I take it we're asked to conclude from that that

25 a firm decision had been made by Comcare, not even talking

1 about Med_Plus anymore, we're talking about Comcare __

2 Comcare had made a firm and final decision to move into the

3 Sudbury area and had done so effective March of 1996.

4 That's what Mr. Brodkin takes from that statement, that

5 what Ms. Osmani told Mr. Lynch, which Dr. Lynch has written

6 a letter about, Mr. Brodkin has tendered as evidence before

7 you, that Ms. Osmani had been working on this plan for two

8 years. None of that is inconsistent with what Ms. Johnston

9 is saying. Clearly what Ms. Johnston is saying is that

10 there is a strategic plan, that she's not sure of expansion

11 at this point. So we assume from that there was __ in

12 light of the question, that there's a strategic plan

13 dealing with the expansion into northern Ontario. But is

14 that perjury? It's not even an inconsistent answer, much

15 less perjury.

16 We don't know in what capacity Ms. Osmani

17 was working on the plans to expand into Sudbury. Maybe she

18 had information to offer that would be part of the

19 strategic plan and part of the planning process.

20 Now, on that basis alone, on the basis of

21 that evidence which you have before you, Ms. Munro and now

22 Mr. Brodkin in this proceeding, asserts firmly, vigorously,

23 that Ms. Johnston has perjured herself. We say there is no

24 evidence available to even suggest that that should be a

25 concern. There is no contradiction of the evidence to

1 start off with, much less evidence of any conscious and

2 knowing lie for the purpose of misleading the Panel.

3 As we said, the fact that Ms. Munro would

4 make a complaint with such a serious allegation of perjury

5 says more, we submit, about Ms. Munro, than it does about

6 Ms. Johnston for this proceeding.

7 Now, the labour relations materials are

8 entirely spurious and, we submit, simply an effort to

9 foster in the Members of the Panel a negative impression of

10 the agency that Ms. Johnston works for. There is no

11 connection between Comcare's labour relations problems and

12 the statement made in this proceeding in July of 1997.

13 There is no more relevance in that than there is anything

14 else.

15 Is Comcare up on its tax payments to the

16 Federal Government? And if they're not is that evidence of

17 an employer that would direct Ms. Johnston to knowingly

18 commit perjury in this proceeding? There's no connection

19 about that information about labour relation problems in

20 Kingston and the Ontario Nurses' Association assessment of

21 their problems in Kingston and the conclusion by the Labour

22 Board that first contract arbitration should be ordered

23 because the collective bargaining process has broken down

24 due to Comcare's entrenched position __ no connection

25 between that and this allegation of perjury with respect to

1 Ms. Johnston.

2 Now, we say that the allegations of perjury

3 are entirely spurious. It is not for you to decide that

4 complaint but we say that it is something that you can take

5 into account when you make your assessment of this motion

6 to adjourn, that there is absolutely no foundation for this

7 allegation of perjury. It is simply an attempt to impugn

8 Ms. Johnston's credibility with you so that you will take

9 negative thoughts about her into your deliberations about

10 this case.

11 We say that that is the strategy of the

12 defence. It is made obvious by the fact that they have not

13 attempted to re_open this case and to call any proper

14 evidence about this issue, but to simply make the

15 allegation, shovel it before you, for you to have under

16 review, under consideration in the course of your

17 deliberations on the allegations against Ms. Munro. When

18 we say it's an outrageous tactic, there is no basis

19 whatsoever for granting the adjournment requested, and that

20 you should dismiss the motion, recognizing that it is

21 simply an attempt to delay this process and to influence

22 you in some way favourable to the Member and against the

23 College's case. We say it's entirely inappropriate and the

24 motion should be dismissed and we should get on with our

25 final submissions in this case.

1 Thank you, Madame Chair.

2 THE CHAIR: Thank you, Mr. Coleman.

3 Mr. Brodkin, do you have any __ do you have

4 any knowledge how long you would be in reply?

5 MR. COLEMAN: Just a minute or two in reply

6 and that's all.

7 THE CHAIR: Thank you.

8 REPLY SUBMISSIONS BY MR. BRODKIN:

9 In Reply I would merely ask the Panel to

10 review the excerpt of the transcript I have provided, to

11 review the questions and answers that were placed and made

12 prior to the specific question and answer that we have been

13 discussing. Don't look at the question and the answers in

14 isolation. Look at it as a culmination of previous

15 questions and answers that have been placed and have been

16 given. Look at the manner in which the witness answers the

17 questions. Look at the specific question _ Does Med Care

18 have any plans to expand? The answer begins, "I have" __

19 as though the witness were about to say I have no knowledge

20 as to whether Med_Plus Care has any plans to expand into

21 northern Ontario beyond Thunder Bay. But then the witness

22 catches herself up, in my submission, and stops with "I

23 have" and thinks. Thinks about the statement that she is

24 going to make, and having caught herself up, rather than

25 making that statement comes up with an answer which, in my

1 view, she believes will get her __ get her and her employer

2 off the hook, because, in my submission, she knows that if

3 she answers 'I have no knowledge', that I will then ask her

4 who does have the knowledge at her employer. That, in my

5 submission, is the reason why she answers "I have" and then

6 stops.

7 In my submission it's clear that she states,

8 "I know that the strategic plan has not been discussed

9 yet." And, in my submission, the strategic plan had been

10 discussed prior to July the 23rd, 1997. Ms. Johnston is

11 not a junior employee of Comcare, she is a senior employee

12 of Comcare. She is fully knowledgeable about all of the

13 discussions that are taking place at the senior management

14 level of Comcare, and it does my friend no good to say

15 let's make a distinction between Comcare and Med_Plus Care

16 when the previous two pages indicate that they are one and

17 the same. They have merged.

18 I would ask that you take a look

19 specifically at the question asked and the answer given,

20 the phraseology of the answer given, the way that the

21 answer was given, in coming to your consideration as to

22 whether or not an adjournment should be granted for a

23 limited period of time only.

24 That concludes my submissions. Thank you.

25 THE CHAIR: Thank you, Mr. Brodkin. I will

1 ask Mr. Le Vay if he has any questions or Members. Any

2 Member have any questions? Do you need some time?

3 I have a question for some clarification.

4 Mr. Coleman, you made an inference about the

5 last paragraph of Ms. Munro's letter to Margaret Risk

6 talking about we are all on warning. Just for some

7 clarification about the Panel's status in this __ I'm sure

8 you are aware that Panel is completely independent of the

9 College in this matter?

10 MR. COLEMAN: Right. Well, I'm certainly

11 aware of it, Madame Chair.

12 THE CHAIR: It just didn't come across that

13 way so I just wondered if you wanted an opportunity to

14 clarify that.

15 MR. COLEMAN: I'm certainly aware of that.

16 What I was directing your attention to, the comment made my

17 Ms. Munro. I don't know if she's aware of that, and I'm

18 not quite sure exactly what it is that is being suggested

19 here, prior knowledge of perjured evidence that is being

20 suggested and I and other Members of the College __ don't

21 see any reason why the line would be drawn for the Members

22 of the Discipline Committee since you are Members of the

23 College as well, what prior knowledge we have of what she

24 alleges is this perjury.

25 THE CHAIR: Mr. Brodkin, do you have

1 anything to add?

2 MR. BRODKIN: No.

3 THE CHAIR: Okay. Mr. Le Vay.

4 MR. LE VAY: Yes. Madame Chair and Members

5 of the Panel, you are being asked to consider a request for

6 an adjournment by the Member and, of course, at a very

7 general level in any request for an adjournment you must

8 balance fairness to the parties and in this case

9 particularly to the Member, against the interests of the

10 public and of the College proceedings in an efficient

11 running of the hearings.

12 In conducting that balancing exercise, of

13 course, you must consider any requests within the context

14 of a reason relevant to the conduct of a hearing, whether

15 that reason be on the substantive point or on a point of

16 procedure or fairness.

17 The issue which has been raised before you

18 in order to ground the request for an adjournment is the

19 credibility of a College witness, the College's expert. The

20 perjury allegation, which founds that credibility issue, of

21 course, is only __ the allegation of perjury is only

22 relevant in the context of an issue of credibility in the

23 course __ the determination of perjury itself is not a

24 matter for you but for the criminal courts.

25 The credibility of a witness' submission to

1 you must be assessed on the basis of the evidence that is

2 before you and not for the Committee to independently

3 decide what Ms. Johnston may file in response to a

4 complaint in the matter of the complaint filed by

5 Ms. Munro.

6 If the Member had sought an adjournment in

7 order to introduce new evidence before you that would be a

8 different issue, and I might have other things to say to

9 you, but that is not the foundation of the request for an

10 adjournment which has been put before you and so I won't

11 comment further on that matter.

12 So, in conclusion, my advice to you on the

13 basis of the __ taking into consideration the basis put

14 forward by the Member for an adjournment is that it is not

15 relevant to your considerations, in particular not relevant

16 to your consideration of the assessment of the credibility

17 of this witness and, in my view, in my respectful

18 submission to you based upon the submissions that I have

19 heard, serve no hearing purpose.

20 THE CHAIR: Thank you, Mr. Le Vay.

21 Further comments, Mr. Coleman?

22 MR. COLEMAN: No.

23 THE CHAIR: Mr. Brodkin, any comments on

24 Mr. Le Vay's submissions?

25 MR. BRODKIN: The only comment that I would

1 have is that the advice __ is that we take the position

2 that what may or might transpire within the next relatively

3 brief period of time with respect to the complaint that's

4 been filed against Ms. Johnston may very well be relevant

5 to your consideration of the credibility of the witness, of

6 the appearance or perception of bias, prejudice, of

7 fairness, of natural justice. What takes place or what may

8 take place in the next brief period of time pertaining to

9 the complaint filed may or might be of assistance to you in

10 dealing with all of the factors that you must deal with in

11 coming to a conclusion with respect to this particular

12 instance. Again, I submit that we're dealing with the

13 person's livelihood and that when we're dealing with a

14 person's livelihood all of the factors come into play that

15 I have set out previously, and if I could just reiterate

16 them very, very briefly when it comes to matters of this

17 nature.

18 I have spoken of our position that the

19 College's power not be exercised unfairly, that there is

20 the public interest in ensuring that hearings are just and

21 fair, that it's possible for the discipline process at some

22 point to become so unfair to the practitioner that his or

23 her interests outweighs the public's interest in

24 disciplining the Member. All of those matters may come to

25 pass. We don't know if they're going to come to pass on

1 this particular day but we may, in a period of time

2 subsequent to today, and we're asking for that period of

3 time subsequent to today so that the Member can be afforded

4 all of those basic principles of natural justice prior to

5 the Panel rendering its decision in this case.

6 That's all that I would have to say.

7 THE CHAIR: Any further questions from the

8 Panel? No. Okay. Thank you very much for your

9 submissions. We'll __ the Panel will adjourn now to

10 consider the motion. Thank you very much.

11 MR. COLEMAN: It being 12:00, are we

12 breaking for lunch?

13 THE CHAIR: Certainly we'll have lunch

14 during this time.

15 MR. BRODKIN: And returning?

16 THE CHAIR: I don't think we little be

17 returning until we have made a decision.

18 MR. BRODKIN: So should we __

19 THE CHAIR: I really have no idea. I won't

20 know an approximation until we get into it, so __

21 MR. LE VAY: Perhaps, Madame Chair, give

22 people a time they can be away safely until.

23 THE CHAIR: Definitely. Say 12:30 and

24 then __ okay, 2:00. Okay. Thank you.

25 ___ Luncheon Recess at 12:15 p.m.

1 ___ Resuming at 1:46 p.m.

2 THE CHAIR: The Panel has reached a decision

3 on the motion for adjournment and I will read our reasons

4 into the record.

5 The Panel has decided to deny the motion for

6 adjournment, and the reasons are as follows. The

7 allegations of perjury made by defence are only relevant to

8 the Panel's assessment of credibility to the witness.

9 Panels always apply varying degrees of weight to expert

10 testimony. The testimony of the expert witness is only a

11 part of the evidence on which the Panel must reach its

12 decision and the testimony of Ms. Johnston is not essential

13 to the finding in this case. Also, the complaints process

14 of the College of Nurses is completely separate from this

15 process of the Discipline Panel and, therefore, is not

16 relevant to this case.

17 Thank you.

18 Now, Mr. Brodkin, I'm not sure whether

19 you're prepared at this time to go on with your final

20 submissions?

21 MR. BRODKIN: Yes, I am.

22 THE CHAIR: Okay. Just in terms of

23 time_wise, we __ the Panel is not able to site beyond 4:00

24 today so that would be including Mr. Coleman's Reply. I am

25 just trying to do an assessment. How would we be with

1 that?

2 MR. BRODKIN: Well, I think I could do the

3 second part of my submission but there is more after the

4 second part of my submissions so I would suggest that we go

5 to my conclusion of the second part of my submissions.

6 THE CHAIR: All right. And then perhaps we

7 will need an additional day?

8 MR. COLEMAN: Sounds like we will certainly

9 need an additional day.

10 THE CHAIR: Additional day regardless. All

11 right. Well, then we'll break whenever you feel it is

12 appropriate for your __ your submissions and then we will

13 plan an additional day.

14 MR. COLEMAN: Just a point, Madame Chair, if

15 I may, before we proceed with Mr. Brodkin's argument, I

16 would just like to have it noted for the record that the

17 exhibits that were tendered on his motion, which were are

18 exhibits 33 through 40, should and cannot be taken into

19 account in evaluating the evidence at the end of this case.

20 It clearly was not subject to cross_examination and none of

21 it can be assumed to be true, and I make that note now so

22 that we don't run to a problem if Mr. Brodkin wishes to

23 impugn the credibility of a witness with those materials.

24 THE CHAIR: I think the Panel is aware that

25 the motion was separate from this case, the voir dire

1 concept.

2 MR. COLEMAN: Okay.

3 THE CHAIR: So it wouldn't be applicable.

4 MR. COLEMAN: Okay.

5 THE CHAIR: Mr. Brodkin.

6 MR. BRODKIN: Thank you.

7 SUBMISSIONS BY MR. BRODKIN: (Cont'd)

8 It has now been more than three_and_a_half

9 months since I concluded the first part of my submission.

10 You will recall that during the first part of my submission

11 we submitted that the College could seek an amendment which

12 is not minor or clerical in nature but indeed substantive

13 with respect to my friend's submission with respect to

14 fraudulent transaction, and that it could probably be

15 effected by the executive committee which would make a

16 fresh referral to Discipline of the allegations that are

17 not contained in the Notice of Hearing.

18 In that regard, I refer the Panel to

19 subsection 36 sub 1 of the RHPA Procedure Code. It is to

20 be noted, and I would like this placed on the record, that

21 during the more than three_and_a_half month period since I

22 concluded the first part of my submission, to our knowledge

23 the College has not utilized subsection 36 sub 1. That is,

24 the Executive Committee, to our knowledge, has not made a

25 fresh referral to Discipline of the allegations not

1 contained in the first Notice of Hearing. And this despite

2 the fact that in my friend's submission on December 16th,

3 1997, he stated __ just give me a moment until I find

4 the __

5 THE CHAIR: What day are you looking at,

6 Mr. Brodkin?

7 MR. BRODKIN: We're looking at December

8 16th, 1997, and we're looking at my friend's submission and

9 we're looking specifically at page 4 of the transcript.

10 MR. COLEMAN: I don't think that any of us

11 have the transcript, Mr. Brodkin.

12 MR. BRODKIN: I will read my friend's

13 submission into the record. This is my friend's

14 submission:

15 "Of course, Mr. Kennedy's version of the

16 facts is significantly different. He says that there was

17 no valid contract for such services and that the

18 documentation later produced to substantiate such a

19 contract is essentially fraudulent. We take the position

20 that this is clearly the preferred version, the soundest

21 version of the facts."

22 We submit that if my friend and his client

23 on December the 16th, 1997, really and truly and honestly

24 believed that Mr. Kennedy's version of the facts was

25 clearly the preferred version, the soundest version of the

1 facts then ask yourself why my friend and his client have

2 not made a fresh referral in the more than three_and_a_half

3 months that have gone by.

4 We submit that the fact that my friend and

5 his client have not made a __ to our knowledge, have not

6 made a fresh referral in more than three_and_a_half months,

7 is tantamount to an admission by my friend and his client

8 that Mr. Kennedy's version is not the preferred version, is

9 not the soundest version of the facts, that there was a

10 value contract for supportive and assistive services and

11 that the documentation produced can substantiate such a

12 contract is not fraudulent.

13 Now, with regard to the second part of my

14 submissions, I will return to the allegations respecting

15 professional misconduct on my client's part that are

16 contained in the further amended Notice of Hearing dated

17 June the 23rd, 1997. Again, which can be found as Exhibit

18 Number 2, tab number 2.

19 We submit that the allegations __ and in

20 that regard I'm referring to all four allegations, are

21 comprised of what we term components or constituent

22 elements and that the onus of proof with respect to each

23 and every constituent element or component is on the

24 College. It is submitted that one of the components or

25 constituent elements of which the allegations are comprised

1 is the allegation that advocacy services were, in fact,

2 rendered, advocacy services to obtain insurance benefits

3 for nursing services.

4 It is submitted that the onus of proof with

5 respect to this component for a constituent element is on

6 the College. That is, the College must prove that advocacy

7 services were, in fact, rendered to obtain insurance

8 benefits for nursing services. It is submitted that the

9 College has not proven that advocacy services were, in

10 fact, rendered.

11 Prior to turning to the evidence of the

12 witnesses who did testify with respect to the nature of the

13 services rendered by my client, I would first like to make

14 reference to those persons who were not called by the

15 College to testify. It is submitted that if the allegation

16 is that a Member advocated to obtain insurance benefits,

17 who better to know whether the Member did, in fact, do so

18 than the insurance company and the employees of that

19 insurance company, and yet the College did not call any

20 employee of the insurance company to testify.

21 In that regard I will refer you to Exhibit

22 Number 9 at tab number 9. This is list of potential

23 witnesses from the prehearing package. You will recall

24 that the College took the position that this list was more

25 than a mere list of potential witnesses. That is, that it

1 was a list of the witnesses for the purposes of compliance

2 with clause 42.1(c) of the RHPA Procedural Code, and that

3 it was not merely a list of potential witness. That being

4 the case, Ms. Bonnie Schnitzel, Senior Technical Analyst,

5 Manulife Financial, should have been called to testify, and

6 yet, the College did not call Mrs. Schnitzel to testify. It

7 is submit submitted that the College did not do so because

8 the College had a College investigator interview

9 Ms. Schnitzel. It is submitted that 2 nowhere in the

10 course of that interview did Miss Schnitzel state that

11 advocacy services were rendered by my client to obtain

12 insurance benefits for nursing services. Rather, it is

13 submitted, that Ms. Schnitzel stated that advocacy services

14 were rendered by Mr. K. himself. That is, that a challenge

15 was undertaken by Mr. K. against the policy holder for

16 coverage of services to his wife.

17 MR. COLEMAN: Madame Chair, if I may, I am

18 loathe to interrupt my friend's submission but I think he

19 has taken to referring to evidence that is not evidence

20 that is received. I can't sit by while he offers up his

21 evidence, which was not evidence. We didn't hear from

22 these people. It is fair enough for Mr. Brodkin to say

23 this witness was not called but as to what that witness had

24 to say or would say or what evidence that the witness has,

25 Mr. Brodkin can't comment on that. That's not in evidence

1 before this proceeding, and I feel compelled to make that

2 objection now.

3 THE CHAIR: The basis of your objection is

4 that it is not relevant to?

5 MR. COLEMAN: It is not evidence in the

6 proceeding. He is referring to evidence about what this

7 witness apparently said or would say about Mr. K. and his

8 advocacy, but that evidence is not evidence in this

9 proceeding, and so it's not something that we can comment

10 on.

11 THE CHAIR: Mr. Brodkin, can you respond to

12 the objection, please?

13 MR. BRODKIN: I will withdraw the specific

14 reference to the statement made and leave it with the fact

15 that the __ that Ms. Schnitzel was not called.

16 Other persons who were not called by the

17 College to testify include Mr. Bob Kerwin, President of the

18 Ontario English Catholic Teachers' Association. You will

19 recall that Mr. K. testified that it was he and Mr. Kerwin

20 who proved that the insurance contract was changed.

21 Another person who was not called by the

22 College to testify was Mr. Simon Woulette, and I'm not sure

23 if I have got that pronunciation correct but it is the best

24 that I can do, and Mr. Woulette was, Manager, Human

25 Resources of the Sudbury District Roman Catholic Separate

1 School Board. You will recall that Mr. K. testified that

2 Mr. Woulette would have been the individual or one of the

3 three responsible for the million dollar change in

4 insurance benefits, the unlimited change in insurance

5 benefits.

6 Another person who was not called by the

7 College to testify was Ms. Ellen Chicoine, Director of

8 Nursing for Elite Specialty Nursing Services. You will

9 recall that Mr. K. testified that Ms. Chicoine was

10 operating out of the Elite office and was located at

11 Elite's office.

12 It is submitted that Ms. Bonnie Schnitzel,

13 Mr. Bob Kerwin, Mr. Simon Woulette and Mrs. Ellen Chicoine

14 are all persons who may or might have shed some light on

15 the nature of the services rendered by my client, that is,

16 for the services rendered by my client, advocacy services

17 to obtain insurance benefits for nursing services.

18 However, the College did not call any of

19 these persons to testify. It is submitted that the Panel

20 can infer from the fact that the College did not call any

21 of these persons to testify, that the services rendered by

22 my client were not advocacy services at all but were

23 services other than advocacy services. That is, that the

24 nature of the services rendered were not advocacy services

25 but other services. For the essence of advocacy is that an

1 advocate advocates before a person or persons. Here the

2 persons would have been the insurance company, that is,

3 Manulife Financial, the Ontario English Catholic Teachers'

4 Association and the Sudbury District Roman Catholic

5 Separate School Board. In that regard I would refer the

6 Panel to Exhibit Number 6, which is the summary of

7 anticipated evidence by the CNO expert, and specifically to

8 page A __ now this will be at the bottom right hand corner

9 of the page, A_1012.

10 MR. COLEMAN: Sorry, what exhibit number?

11 MR. BRODKIN: Exhibit Number 6, tab number

12 6, after the first page number numbering begins in the

13 bottom right hand corner where it is stated __

14 THE CHAIR: Where is that?

15 MR. BRODKIN: A_1012, which is page 2 of

16 the __ just above it says __ I guess that's the first page

17 of the interview summary.

18 THE CHAIR: We have it, Mr. Brodkin.

19 MR. BRODKIN: Okay. If I could begin with

20 hypothetical situation number 1, in your opinion would the

21 Member's conduct in contracting with and charging the

22 husband of a patient of her nursing agency for advocacy

23 services to obtain insurance benefits for healthcare

24 services provided by her agency amount to practising the

25 profession while in a conflict of interest?

1 The first bullet pertains to advocacy.

2 The second bullet, last sentence:

3 "In these cases the following advocacy

4 components should be considered as part of the routine

5 delivery of care and should not involve additional charges

6 to the patient."

7 Again, the second __ the fourth bullet on

8 that page:

9 "It is not uncommon for a nurse to contact

10 the insurer to gather information."

11 The next bullet:

12 "Documentation should be sent to the

13 insurance company."

14 And the next bullet:

15 "Meetings may be held with the insurance

16 company."

17 All going towards the issue of advocacy.

18 So I would now like to turn to the evidence

19 of the witnesses who did testify with respect to the nature

20 of the services rendered by my client. The only person who

21 was called by the College to testify was Mr. K. And it is

22 submitted that Mr. K. testified that the services rendered

23 by my client were not advocacy services but were services

24 other than advocacy services, that is assistive or

25 supportive services in respect of Mr. Kennedy's own

1 advocacy to obtain insurance benefits.

2 You will recall Mr. K. testifying in his

3 examination_in_chief that on or about the months of August

4 and September of 1994, he was having trouble with Manulife

5 and the School Board and Elite was assisting him with

6 communication letters to Manulife regarding nursing hours

7 and payment of twenty_four hour care. You will recall

8 Mr. K. then testifying that several letters were sent out

9 to the School Board and to Manulife regarding these

10 matters. Mr. K. then testified that these letters were

11 being processed in the Elite office. Mr. K. then testified

12 that he, my client, and an Elite secretary who was

13 preparing the documents would have discussions about what

14 the next letter was going to be, and who it would go to.

15 A document was prepared and Mr. K. would

16 usually sign and it would be sent. It is submitted that

17 Mr. K., in his examination_in_chief, did not testify that

18 either Elite or my client ever signed any letter sent out

19 to the School Board or to Manulife to obtain insurance

20 benefits, and it is submitted that the College did not

21 introduce any written or documentary evidence that would

22 indicate that either Elite or my client ever signed any

23 letter sent out to the School Board or to Manulife to

24 obtain insurance benefits.

25 Turning now to Mr. Kennedy's

1 cross_examination, you will recall that Mr. K. testified

2 with regard to Elite's assisting him with communications to

3 Manulife, that my client was producing most of the

4 documentation in the Elite office, and was being sent out

5 from the Elite office. Mr. K. then testified that Elite's

6 assistance involved photocopying documentation and putting

7 the photocopies into three books. Mr. K. then testified

8 that the assistance that Elite provided to him on his

9 behalf included typing many letters. He then testified

10 that the assistance that Elite provided to him on his

11 behalf included discussing these letters before they were

12 sent out. It is submitted that Mr. K. in his

13 cross_examination did not testify that either Elite or my

14 client ever advocated to obtain insurance benefits. Rather,

15 it is submitted that Mr. Kennedy's testimony on

16 cross_examination can lead to no other conclusion then that

17 Mr. K. was his owned advocate to obtain insurance benefits.

18 You will recall Mr. K. testifying that he

19 may have got a verbal statement from the union at the end

20 of June of 1994, by the President, that this affair was

21 settled and everything was put back into place. He

22 testified under oath and he stated that it would have been

23 a verbal notification to me. In that regard, you will

24 recall Mr. K. testifying that he was given documents in

25 September of 1994 about a June agreement that was supposed

1 to have taken place in June, and that agreement reverted

2 the care back to the 1989 level of unlimited nursing. He

3 then testified that he didn't receive documentation and he

4 didn't see the contract and the settlement of the issue

5 before sometime in September of 1994. He then testified

6 that he was referring to the actual notifications that he

7 got from the lawyers, the details that they signed. He

8 then testified that those documents were not given to him

9 until the Fall of 1994. He then testified that he couldn't

10 get the union in June of 1994. He then testified that he

11 did not have the actual legal documents until a later day.

12 It is submitted that Mr. Kennedy's testimony

13 in cross_examination can lead to no other conclusion then

14 that Mr. K. was his own advocate to obtain insurance

15 benefits and that my client was not his advocate to obtain

16 insurance benefits and, hence, did not provide advocacy

17 services to obtain insurance benefits as alleged in Exhibit

18 Number 2, tab number 2, the further Amended Notice of

19 Hearing.

20 Mr. K., having been the College's only

21 witness __ it is submitted that the College has not proven

22 that advocacy services were, in fact, rendered by my

23 client, rather it is submitted that Mr. K., my client, and

24 Mr. Zvaigzne, all testified that the services rendered by

25 my client were in the nature of assistive or supportive

1 services or office support services. That is, they were

2 services that assisted and supported Mr. K. in his own

3 advocacy to obtain insurance benefits.

4 The assistive or supportive services

5 included the photocopying of documents and the placing of

6 those photocopied documents in binders, the faxing of

7 documents and the receiving of faxes, the preparation of

8 many letters, discussions pertaining to the contents of the

9 letters, the typing and/or word processing of the letters,

10 and the sending of the letters, and in that regard I would

11 refer the Panel to Exhibit Number 14 at tab number 14,

12 where there is a reference on the first page to preparation

13 of letters to obtain background information, and in

14 addition a reference to all other required activities and

15 expenses.

16 I would also refer the Panel to the next

17 page, at the bottom of the page where it is stated:

18 "Dear George, should you feel that you still

19 wish to pursue this matter for the reasons that you

20 originally stated please feel free to contact us so that we

21 may continue to assist."

22 Finally, with regard to the second part of

23 my submission, we again submit that the College can seek an

24 amendment to the Notice of Hearing which is to be found at

25 Exhibit __ as Exhibit Number 2, tab 2, which is not minor

1 or clerical in nature but, indeed, substantive and can

2 probably be effected by the Executive Committee which would

3 make a refresh referral to Discipline of the allegations

4 not contained in the first Notice of Hearing.

5 It is submitted that the allegations not

6 contained in the first Notice of Hearing would be the

7 allegations pertaining to assistive or supportive services

8 as opposed to advocacy services and charging Mr. K. fees

9 for assistive or supportive services as opposed to charging

10 Mr. K. fees for advocacy services to obtain insurance

11 benefits.

12 We would again submit, as we did in the

13 first part of my submission, that the College must utilize

14 subsection 36 sub 1 of the RHPA Procedure Code and have the

15 Executive Committee make a fresh referral to Discipline of

16 the allegations not contained in the first Notice of

17 Hearing because the amendment is not minor or clerical in

18 nature but is, indeed, substantive.

19 To conclude the second part of my

20 submission, I would refer to my friend's submission on

21 December 16th, 1997, and knowing that you don't have a copy

22 of that I will read it in its entirety, where my friend

23 states:

24 "Mr. K. could make the arrangements. Mr. K.

25 could wage the battle to expand the insurance coverage or

1 get additional insurance benefits for additional nursing

2 care or to get the appropriate equipment or to arrange for

3 hospitalization and then return to home since he was the

4 active party in the rehabilitation between SEG."

5 It is my friend himself who stated in his

6 submission that it was Mr. K. who was waging the battle to

7 expand the insurance coverage or get additional insurance

8 benefits for additional nursing care.

9 That would the second part of my submission.

10 Would you like me to move on to the third

11 part? I can move on to the third part or we can take a

12 break?

13 THE CHAIR: I would just like to summarize

14 the second part so that we're all clear about __ does

15 anybody have any other questions?

16 MS. JOHNSON: I have a question.

17 THE CHAIR: Ms. Johnson.

18 MS. JOHNSON: Mr. Brodkin, on tab 2, are you

19 suggesting that rather than putting in our allegations of

20 the advocacy services that we put in assistive and

21 supportive services?

22 MR. BRODKIN: They __

23 MS. JOHNSON: The College?

24 MR. BRODKIN: Right.

25 MS. JOHNSON: Put in assistive and

1 supportive services on number 1 and number 2 and number 3

2 and number 4?

3 MR. BRODKIN: And number 3 and 4.

4 MS. JOHNSON: I see.

5 MR. BRODKIN: I'm saying that once the

6 College makes that determination our allegation is that the

7 nature of the services that were rendered were advocacy

8 services. That's a component or a constituent element of

9 the allegation. You have to prove, in our submission, each

10 and every constituent element and component of the

11 allegations that you make. One of them being advocacy

12 services. We're submitting that the College has not proven

13 that, that constituent element or component of all four

14 allegations, and for that reason the case cannot succeed.

15 MS. JOHNSON: Thank you for your

16 clarification.

17 THE CHAIR: This is your submission. You

18 are not requesting any additional motion regarding this

19 issue?

20 MR. BRODKIN: No.

21 THE CHAIR: Okay. Thank you. We'll take a

22 break and then reconvene. Ten minutes?

23 MR. BRODKIN: Yes.

24 THE CHAIR: Thank you.

25 ___ Recess at 2:34 p.m.

1 ___ Resuming at 2:43 p.m.

2 THE CHAIR: Mr. Brodkin.

3 MR. BRODKIN: Thank you. With regard to the

4 third part of my submissions, I would now like to deal with

5 the reasons why the College should not seek an amendment to

6 the Notice of Hearing to refer to supportive and assistive

7 services as opposed to advocacy service.

8 In that regard I would ask the Panel to

9 again return to Exhibit Number 2, tab number 2, which is

10 the further Amended Notice of Hearing dated June the 23rd,

11 1997, and specifically to allegations number 1 and number

12 2. Both allegations allege that my client had a conflict

13 of interest in that she contracted with Mr. K. and charged

14 him fees for advocacy services to obtain insurance benefits

15 for nursing services.

16 If the College sought an amendment to the

17 Notice of Hearing both allegations would allege that my

18 client had a conflict of interest in that she contracted

19 with Mr. K. and charged him fees for assistive or

20 supportive services. However, it is submitted that the

21 evidence given at the hearing by the College's own expert

22 Ms. Norma Johnston, reveals that my client did not have a

23 conflict of interest when she charged Mr. K. fees for

24 assistive or supportive services.

25 In that regard, you will recall that I

1 presented a hypothetical situation to Mrs. Johnston and

2 placed several questions in respect of that hypothetical

3 situation. The hypothetical situation concerned a

4 regulated health professional who owned a business such as

5 a Kinko's or Mailboxes Etc. These businesses provide the

6 same or similar kinds of assistive or supportive services

7 that were provided by my client to Mr. K. The hypothetical

8 situation that I presented was that the business was

9 situated in close proximity to the regulated health

10 professionals' other business, which was a health care

11 business.

12 The final question, the last question that I

13 asked Ms. Johnston dealt with the hypothetical situation

14 where the regulated health professional declared his or her

15 financial interest in the Kinko's or Mailboxes Etc.

16 business to a health care client.

17 The regulated health professional then asked

18 the health care client not to use the services of the

19 Kinko's or the Mailboxes Etc. business. The health care

20 client then subsequently used the services of the Kinko's

21 or Mailboxes Etc. business for whatever reason.

22 I ask Ms. Johnston whether the regulated

23 health professional was in a conflict of interest, and

24 Ms. Johnston testified that the regulated health

25 professional was not in a conflict of interest provided

1 that the regulated health professional declared his or her

2 financial interest and had to go beyond merely declaring

3 his or her financial business to the extent of asking that

4 the business not be used. If you fulfill both criteria you

5 were not in a conflict of interest, but you had to fulfill

6 both of them.

7 It is submitted that this hypothetical

8 situation is similar, if not identical, to the situation

9 that occurred with regard to my client and Mr. K. It is

10 submitted that the only difference between the hypothetical

11 situation that I presented to Ms. Johnston and the

12 situation that occurred with regard to my client and

13 Mr. K., is that what was in effect a Kinko's or a Mailboxes

14 Etc. business, was not situated in close proximity to the

15 regulated health professional's other business, rather what

16 was in effect a Kinko's or a Mailboxes Etc. business was

17 situated on the same premises as the regulated health

18 professionals' other business. That being the case, it is

19 submitted that it was not necessary for my client to

20 specifically declare her financial interest in what was in

21 effect a Kinko's or Mailboxes Etc. business to Mr. K. It

22 is also submitted that my client ask Mr. K. not to use the

23 services of what was in effect a Kinko's or a Mailboxes

24 Etc. business, but that Mr. K. for reasons known only to

25 Mr. K., chose to use the services.

1 It is submitted that both Exhibit Number 12,

2 which is found at tab 12, and which is a letter dated

3 November 1st, 1993, from my client to Mr. K., and Exhibit

4 number 13, which is a letter dated June 13th, 1994, from my

5 client to Mr. K., were both attempts by my client to have

6 Mr. K. not use the services, albeit unsuccessful attempts.

7 In that regard, I would refer the Panel to

8 Exhibit Number 28, the Guidelines for Professional

9 Behaviour of the College of Nurses of Ontario, and

10 specifically to page 44 under the heading "Conflict of

11 Interest", where it is stated __ these are the examples set

12 out at the top of the second column. For example,

13 recommending to a client that he or she be treated in one

14 facility rather than another because of personal monetary

15 considerations is a conflict of interest. So, too, is an

16 attempt by a nurse to sell a commercial product or a

17 service to a client for direct or indirect personal gain by

18 the nurse.

19 It is submitted in the case before you, the

20 evidence is such that there was no attempt to sell a

21 service, rather it is our submission that there was an

22 attempt not to sell a service followed by Mr. Kennedy's

23 insistence that the assistive or supportive services be

24 provided by my client for whatever reasons Mr. K. had.

25 Q. We submit that is the reason for the

1 answers given by my friend's own expert witness to the

2 hypothetical situation that I presented to her with respect

3 to the two business hypothetical situations. The

4 essence __ the essence of there not being a conflict of

5 interest is that you must do two things. You must declare

6 your financial interest but you must go further than

7 declaring your financial interest, you must say to the

8 person, "Do not use the services of the other business." We

9 submit that, in effect, that is what my client did in this

10 particular situation with respect to Mr. K.

11 Now, my friend, in his submission,

12 identified three types of conflict that arise with respect

13 to the arrangement that is the subject matter of these

14 proceedings. I propose to deal with each of these three

15 types of conflict.

16 The first type of conflict is the conflict

17 between this arrangement and being charged for supportive

18 and assistive services when these sorts of services are

19 expected of the nurse in her role as nurse and as part of

20 the charges the nurse levies for nursing services. In that

21 regard I would ask you to ask yourself whether the quality

22 and the quantity of the supportive and assistive services

23 that Ms. Munro, Mr. Zvaigzne and Mr. K. testified to are

24 the sorts of services expected of the nurse in her role as

25 nurse and as part of the charges the nurse levies for

1 nursing services.

2 We submit that we do not have the kinds of

3 services that a nurse is expected to provide to a client in

4 the course of providing nursing care within the regular

5 charges for nursing care. However, even assuming that we

6 have the kinds of services that a nurse is expected to

7 provide to a client in the course of providing nursing care

8 within the regular charges for nursing care, the evidence

9 of both Ms. Munro and Mr. Zvaigzne was that Ms. Munro was

10 not charging $125 an hour because significantly more than

11 fifteen hours a week of assistive or supportive services

12 were being rendered.

13 In that significantly more than fifteen

14 hours a week of services that were being rendered,

15 Ms. Munro was not charging fees of $125 an hour, rather she

16 was charging fees not significantly more than the regular

17 charges for nursing care. We submit that there is

18 appropriate services for which grossly excessive fees were

19 not being when one considers the testimony of Ms. Munro and

20 Mr. Zvaigzne with regard to the number of hours per week

21 that services were rendered.

22 Turning to the second type of conflict of

23 interest identified by my friend, that is that the nurse is

24 not entitled to use the nurse/client relationship for

25 additional commercial gain, my friend, in his submission,

1 concluded on page 22:

2 "We say that this is a conflict of interest

3 and that Ms. Munro was taking advantage of the nurse/client

4 relationship for this commercial benefit."

5 Note the phraseology "we say", not the

6 College's own expert says, not that Mr. K. says, not that

7 anyone else says, but "we say". If you review what the

8 College's own expert witness says you will discover that

9 she does not say that this is a conflict of interest and

10 that Ms. Munro was taking improper advantage of a

11 nurse/client relationship for this commercial benefit. You

12 will discover that she says that it is not a conflict of

13 interest if you declare your financial interest and advise

14 the client not to use the service and if the client

15 subsequently uses the service and there is a commercial

16 benefit.

17 We submit that what my friend and his client

18 say about conflict of interest is irrelevant. All that is

19 relevant is what an expert says about conflict of interest.

20 Turning to the third type of conflict of

21 interest identified by my friend, that is, the role of the

22 nurse as advocate, I have previously dealt with that in the

23 second part of my submission. Accordingly, we submit that

24 the three somewhat distinctive elements of a conflict of

25 interest do not arise in this case. We submit, as well,

1 that Ms. Munro did not engage in conduct that would

2 reasonably be regarded by members of the profession as

3 disgraceful, dishonourable or unprofessional with respect

4 to this same arrangement for assistive and supportive

5 services.

6 My friend, in his submissions, stated that

7 the evidence required to establish disgraceful or

8 dishonourable or unprofessional conduct is that evidence of

9 the expert with respect to what Members of the profession

10 would reasonably regard as disgraceful, dishonourable or

11 unprofessional. However, in this case we submit that the

12 evidence of the expert was based solely on the written or

13 documentary evidence presented to the expert, and that the

14 evidence of the expert was not based on the viva voce

15 evidence that was given by both Ms. Munro and Mr. Zvaigzne.

16 We submit that had Ms. Johnston been presented with more

17 than merely written or documentary evidence she would have

18 testified that the arrangement negotiated for supportive

19 and assistive services was not inappropriate and would not

20 reasonably be regarded by Members as disgraceful,

21 dishonourable or unprofessional.

22 As stated by my friend in his submission,

23 Ms. Johnston's testimony turns on the basic terms of the

24 arrangement which are set out in Exhibit 12. That is,

25 first of all, an hourly rate of $125 an hour when nursing

1 services are being billed in the range of 25 to $40 an

2 hour. However, the viva voce testimony of both Ms. Munro

3 and Mr. Zvaigzne was to the effect that the hourly rate was

4 significantly less than $125 an hour, taking into account

5 the number of hours per week in which services were

6 rendered.

7 We submit that what we have is office

8 support work of the kind provided by Mailboxes Etc. or

9 Kinko's, charging out at significantly less than $125 an

10 hour, which is not extraordinary, we submit. Not

11 extraordinary in the sense of not being excessive. While

12 my friend and his client may have as well a very real doubt

13 that the Member provided anything in the nature of a kind

14 of service or quantity wise the amount of services that she

15 says that she provided, that of three to seven hours per

16 day each and every day, it is for you to decide whether you

17 believe both Ms. Munro and Mr. Zvaigzne when they testified

18 to that effect or whether you believe Mr. K. Well, Mr. K.

19 was the only witness called by my friend in that regard,

20 and we submit that my friend could have but did not call

21 Mrs. Ellen Chicoine to testify as to whether my client

22 provided anything in the nature of a kind of service

23 quantity wise, the amount of service that she says that she

24 provided, that of three to seven hours per day each and

25 every day. The Panel has observed Mr. Kennedy's conduct

1 and actions over a period of time over a number of days. Is

2 it really that far fetched to think that Ms. Munro was

3 devoting three to seven hours every day for a period in

4 excess of a year attending to Mr. Kennedy's particular

5 needs? Not that far fetched, we would submit, when you

6 observe Mr. Kennedy's conduct and actions over a period of

7 time over a number of days.

8 Now, that would conclude the third part of

9 my submission, and I would ask that rather than going on

10 that we might consider at this time discussing another day

11 because we have some problems with the day that was

12 suggested.

13 THE CHAIR: What is that?

14 MR. BRODKIN: My understanding from my

15 client is that my client doesn't have her journal here with

16 her. We will not know until Monday when she returns so

17 would Monday be appropriate to advise as to the 15th of

18 May?

19 THE CHAIR: I think what the Panel will do

20 is supply Ms. Jacalan with a couple of more days and we can

21 get back to Ms. Jacalan on Monday with that. If that's not

22 acceptable then she will have some more days to propose.

23 MR. COLEMAN: 15th is fine for me.

24 MR. BRODKIN: 15th is fine for me, it is

25 just my client.

1 THE CHAIR: All right. That's fine. We'll

2 cancel the 15th if we confirm it is definitely not okay

3 with Ms. Munro, then we'll give you some other days.

4 MR. COLEMAN: If I might ask Mr. Brodkin,

5 how close we are to the end of the submissions? We are up

6 to part 3. Are there twelve parts or are there four parts?

7 Can he qualify in __

8 MR. BRODKIN: I would be no more than half

9 an hour to an hour more, more likely half an hour more.

10 THE CHAIR: That's fine. All right. So

11 we'll look to the 15th and then see. Okay. Thank you very

12 much.

13 ___Whereupon the hearing was concluded at 3:09 p.m.

I HEREBY CERTIFY THE FOREGOING

to be a true and accurate

transcription of my shorthand notes

to the best of my skill and ability.

M.J. CORCORAN, CSR

Computer_Aided Transcription