TRANSCRIPT February 2

TRANSCRIPT February 2, 1998 - College of Nurses of Ontario vs. Marilyn Munro re: Terrick complaint: Witness - Norma Johnston [ADDRESSES] A-0027

2 DISCIPLINE COMMITTEE OF THE

3 COLLEGE OF NURSES OF ONTARIO

9 Panel:

11 Elizabeth Haugh, RN The Chair

12 Shirley Drayton, RN

13 Janice Johnson, RN

14 Yvonne Slivinski, Public Representative

15 Warren Stanton, Public Representative

19 _____________________________

23 B E T W E E N:

27 COLLEGE OF NURSES OF ONTARIO,

29 Plaintiff,

32 _ and _

36 MARILYN MUNRO

38 Defendant.

42 APPEARANCES:

44 Nick Coleman for the Plaintiff

46 Mr. Longstreet 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: February 2, 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 _ Mr. Longstreet

40 Independent Legal

41 Counsel _ Paul Le Vay

43 Verbatim Reporter _ Vicki Webster, CSR

1 TABLE OF CONTENTS

3 INDEX OF EXAMINATIONS:

4 NORMA AUDREY JOHNSTON; Sworn. ............. 7

5 EXAMINATION IN CHIEF BY MR. COLEMAN: ......... 7

6 CROSS_EXAMINATION BY MR. LONGSTREET: ......... 35

TABLE OF CONTENTS (Continued)

INDEX OF EXHIBITS

Page No.

2 EXHIBIT NO. 7: Curriculum Vitae of Norma ....... 8

1 ___ Proceedings commenced at 9:00 a.m.

2 THE CHAIRPERSON: This hearing between the

3 College of Nurses of the Discipline Committee will resume,

4 and I believe that the counsel for the college is

5 presenting another witness.

6 MR. COLEMAN: Indeed, Madam Chairperson,

7 members of the panel, our next witness is a witness that

8 we put forward as an expert in nursing practices. So that

9 you know, her name is Norma Johnston, and we will be

10 following the usual two step process that we go through

11 there with respect to witnesses, expert witnesses.

12 The first stage, of course, is to have the

13 witness speak to her qualifications so that you may be

14 satisfied that she is an expert in nursing practices. She

15 can provide to you a useful opinion regarding the

16 practices in question in this particular case. So the

17 first step will be to have her qualified as an expert by

18 having her speak to her qualifications.

19 When we've completed the first step,

20 counsel for the defence will have the opportunity to

21 cross_examine the witness that's been put forward as an

22 expert with respect to her qualifications if he intends to

23 take issue with her expertise.

24 Once we've completed that process, if there

25 is a dispute, there will be submissions as to whether or

1 not the expert should be qualified or is qualified as an

2 expert and should be recognized as such by you, and once

3 the __ she has been accepted by __ as an expert, we'll

4 then ask her to address the issues that we say arise on

5 the facts of this case.

6 And again, as you know, we have the witness

7 address a series of hypothetical scenarios. She has not

8 been here to hear the evidence as provided by the

9 witnesses and nor is it her role to evaluate evidence that

10 has been given by the witnesses. Ultimately, that's for

11 you to do. But what we have the expert do is address a

12 number of hypothetical scenarios, which, of course, have

13 their __ or should have their foundation in the factual

14 evidence of the case.

15 And in that second of the two steps, we

16 will have Miss Johnston address the hypothetical scenarios

17 so as to provide you with her expert opinion regarding the

18 matters in dispute in this case.

19 So with that introduction, I'd like to have

20 Miss Johnston brought on board so we may have her __ speak

21 to her qualifications.

22 THE CHAIRPERSON: Good morning. My name is

23 Elsie Norris, and I'm the chairperson of this discipline

24 hearing. Your evidence will be recorded, so it's

25 important that you speak loud enough so that everyone in

1 the hearing room can hear you. You will be examined or

2 asked questions by the lawyer for the college and by the

3 lawyer for the member, as well as possibly by members of

4 the panel before you. Do you understand the procedure?

5 THE WITNESS: Yes, I do.

6 THE CHAIRPERSON: Do you wish to be sworn

7 on the Bible or do you wish to be affirmed?

8 THE WITNESS: On the Bible, please.

9 THE CHAIRPERSON: Please state your name in

10 full for the record.

11 THE WITNESS: Norma Audrey Johnston.

12 THE CHAIRPERSON: Place your hand on the

13 Bible. Do you, Norma Audrey Johnston, solemnly swear that

14 the evidence to be given by you in this matter of the

15 College of Nurses and Marilyn Munro shall be the truth,

16 the whole truth, and nothing but the truth so help you

17 God?

18 THE WITNESS: Yes, I do.

19 NORMA AUDREY JOHNSTON; Sworn.

20 THE CHAIRPERSON: Thank you. Mr. Coleman.

21 MR. COLEMAN: Thank you, Madam Chairperson.

22 EXAMINATION IN CHIEF BY MR. COLEMAN:

23 Q. Miss Johnston, I'd like to ask you

24 some questions about your qualifications first, your

25 employment, and educational experience.

1 The first stage of the proceeding with

2 respect to an expert witness is, of course, to establish

3 her qualifications as an expert before we ask you to

4 address the hypothetical scenarios.

5 So starting with your qualifications, I

6 wonder if we might have Ms. Johnston's CV for defence and

7 members of the panel. Now, Ms. Johnston, this document

8 that's been placed before you, I take it that is a

9 curriculum vitae that you have prepared to reflect your

10 employment and educational background; is that correct?

11 A. Yes.

12 MR. COLEMAN: If we might have that marked

13 as an exhibit, Madam Chairperson.

14 THE CHAIRPERSON: Okay. The curriculum

15 vitae of Norma Audrey Johnston will be exhibit number 7.

16 EXHIBIT NO. 7: Curriculum Vitae of Norma

17 Audrey Johnston.

18 BY MR. COLEMAN:

19 Q. Now, starting first, Miss Johnston,

20 with your employment background, I see that you've been

21 employed by Comcare (Canada) Ltd. since 1992; is that

22 correct?

23 A. Since 1987.

24 Q. Since 1987. I wonder if you could

25 provide us with a capsule, description of Comcare.

1 A. Comcare (Canada) Ltd. is a nursing and

2 home health company that provides a variety of services,

3 which includes nursing, both registered nurses, registered

4 practical nurses, rehabilitation services, which include

5 physiotherapists, occupational therapists, social work,

6 and other types of rehabilitation staff. Home health as

7 far as home support workers, health care aids. We provide

8 services in the community as well as in long term care

9 facilities, acute care facilities, and also for the

10 penitentiary systems.

11 Q. Now, you refer to community services.

12 Does that include care for clients in their home settings?

13 A. That's correct.

14 Q. Now, I see on your CV there is

15 reference to 32 branch offices of Comcare across Canada;

16 is that correct?

17 A. That actually has changed. Comcare

18 last year merged with another company called Med Plus

19 Care. There is now __ the number at this date is 43

20 branches across Canada, encompassing six provinces, with

21 the majority of our operation in Ontario.

22 Q. Now, I take it that Comcare is a

23 private company, is it, it's not a government agency?

24 A. No, it is a private, for profit

25 company.

1 Q. Now, I wonder if I can __ if you can

2 describe for us the positions you've had and the

3 responsibilities you've had with Comcare. Perhaps working

4 backwards. I see that from September 1995 to the present,

5 you have been the corporate quality management director;

6 is that correct?

7 A. That's __ that is correct.

8 Q. And is that for all of Canada?

9 A. That's correct.

10 Q. And in addition to that, you have been

11 the Eastern Ontario and Nova Scotia region manager; is

12 that right?

13 A. The Eastern Ontario regional manager is

14 still accurate. The Nova Scotia region management has

15 been taken over by another individual because of the

16 responsibilities I have with the other two roles.

17 Q. Now, what __ can you tell us what the

18 responsibilities are of the corporate quality management

19 director for Comcare?

20 A. As the director of quality management,

21 corporately, my responsibilities encompass looking at the

22 aspects of quality that impact the client and impact the

23 organization. It's working very closely with the front

24 line staff, with management staff, and the board in

25 recommending and identifying areas where we need

1 improvement in quality.

2 It is also a position that encompasses in

3 our organization being the chair of the professional

4 advisory committee, which is an interdisciplinary

5 committee involving front line staff, as well as

6 management staff from the various disciplines that work in

7 Comcare, recommending and addressing professional issues

8 and practice issues as they __ they relate to the services

9 we render and the individuals rendering them.

10 Q. I think you've touched on this, but

11 does quality management include issues of professional

12 responsibility, professional conduct, and professional

13 guidelines for nursing staff, amongst others?

14 A. Yes, it does.

15 Q. Now, do you have any responsibilities

16 for developing policies, guidelines, and procedures with

17 respect to professional standards issues at Comcare?

18 A. Yes, from my position as I started in

19 1992 as the quality management coordinator, part of the

20 responsibility as the coordinator was to write the

21 policies and to forward them to our medical adviser and

22 our board. Those policies had to do with both operations

23 as well as service delivery.

24 Q. And again, do those policies,

25 guidelines, and procedures touch on issues of professional

1 standards for nursing staff employed by Comcare?

2 A. We have a complete nursing policy

3 manual that touches on both of the __ the professional and

4 procedural issues for nursing.

5 Q. Now, what about educational sessions

6 and presentations, what __ do you have any responsibility

7 for that?

8 A. Yes, I do. I'm responsible for doing

9 both the presentation of educational sessions, as well as

10 recommending areas for staff development and sessions to

11 be delivered related to quality aspects, including

12 professional issues.

13 Some examples of sessions that I've given

14 involve the quality assurance program for the College of

15 Nurses of Ontario, the supervision in in home health care,

16 such other aspects as human resource recruitment and

17 interviewing and screening of candidates for Comcare,

18 proposal writing, and how to look at standards and

19 indicate how we would meet those standards. I've also

20 done sessions on elder abuse. I don't know whether you

21 want me to elaborate further on the specifics.

22 Q. That was with respect to Comcare staff

23 only or is that for __

24 A. No, that was for a larger community

25 group where I was the chair of the Elder Abuse Task Force.

1 Q. Okay. I think we'll reach that when we

2 get to volunteer activities, so for the moment, let's

3 focus on your responsibilities with and to Comcare. Now,

4 I see that you've held the position of corporate quality

5 management director since September of 1995; is that

6 right?

7 A. Yes. Prior to that, I was the quality

8 management coordinator.

9 Q. And do you still hold the position of

10 corporate quality management director for Comcare?

11 A. Yes, I do.

12 Q. And just to be clear on that, I take it

13 that the __ as the corporate quality management director,

14 you're responsible for that with respect to all of Comcare

15 in Canada, is that right, and not just in the Eastern

16 Ontario region?

17 A. That's correct.

18 Q. Now, as you've indicated on your CV, we

19 see that it is moved down there, from March of '92 to

20 September of '95, you were director for Comcare (Canada)

21 Ltd. in Kingston?

22 A. Yes, it was actually a position that I

23 held at the same time that I was holding the quality

24 management position, and as the director of Comcare, I was

25 responsible for the day_to_day operations of the Kingston

1 branch as well.

2 Q. And how many staff were employed at the

3 Kingston branch when you were director there?

4 A. Direct care staff, there would be

5 approximately 450, and administrative support staff, there

6 were, I think, around 13.

7 Q. And I take it that the direct care

8 staff would include registered nurses?

9 A. Yes, there was approximately 100

10 registered nurses and registered practical nurses.

11 Q. And as a director of the Kingston

12 branch, were you called upon from time to time to address

13 professional standards issues with respect to your staff?

14 A. Yes.

15 Q. Now, for the same period of time, I see

16 the next heading, March 1992 to the present, quality

17 management coordinator for Comcare Kingston. Is that the

18 same position as management __ or quality management

19 director, is that just a change of title or is that a

20 change of responsibility as well?

21 A. It was a change of title and

22 responsibility.

23 Q. All right.

24 A. It encompassed bringing a department

25 under my responsibility with additional staff to support

1 the quality management activities nationally.

2 Q. I take it, then, when you became the

3 quality management director, a department was formed for

4 you to direct; is that correct?

5 A. That's correct.

6 Q. For the period that you were quality

7 management coordinator, were you responsible for quality

8 management again corporation wide?

9 A. Yes, I was.

10 Q. But I take it you didn't have a

11 subordinate __ or a department set aside for you to

12 direct?

13 A. That's correct.

14 Q. And were your duties as a coordinator

15 for quality management substantively the same as they have

16 been for you as the quality management director?

17 A. The major difference would be that a

18 lot of the activities that I was doing from '92 onward

19 were hands on, you know, not only was I making the

20 recommendations but following through on the

21 recommendations. My responsibility as director is still

22 to do that but to delegate as well and be accountable for

23 the actions of those people in my department.

24 Q. Now, I see that for the period 1987 to

25 1992, you were the office manager and regional supervisor

1 for Comcare for Kingston and Brockville; is that right?

2 A. That's correct.

3 Q. And I take it that you were responsible

4 for branch offices in those locations; is that right?

5 A. Yes, for Kingston and Brockville.

6 Q. Now, your CV indicates that you were

7 responsible for quality assurance and in service training

8 and education. Did those responsibilities include

9 responsibilities for professional standards and

10 guidelines, issues and training?

11 A. As an office manager and regional

12 supervisor, you were responsible for anything that was

13 part of the operations, including the direct care __ or

14 sorry, the direct delivery of service. As a regional __

15 or a regional supervisor and an office manager, I would be

16 responsible for not only organizing the in services for

17 staff, but also for providing it. I would be doing direct

18 supervision of staff and certainly looking at performance

19 management of the staff and dealing with professional

20 issues as they arose.

21 Q. And did professional issues arise while

22 you were office manager and director in Kingston and

23 Brockville that you were required to address?

24 A. Oh, yes.

25 Q. Now, I see as well from the __ for the

1 period August of 1997 to April of 1990, you also worked at

2 Kingston General Hospital; is that right?

3 A. From August of '87 to '90, yes. I

4 maintained myself as a casual part_time employee with

5 Kingston General Hospital to maintain my clinical skills.

6 Q. And I see as well on the second page

7 that, in fact, you were employed on a full_time basis as a

8 staff nurse at Kingston General Hospital for the period

9 September of 1981 to June of 1987; is that right?

10 A. That's correct.

11 Q. Now, if we can go to your educational

12 background, perhaps working from the bottom up there, I

13 see that you graduated from high school in June of 1979;

14 is that right?

15 A. That's correct.

16 Q. And did you complete the diploma

17 nursing program at St. Lawrence College in Kingston?

18 A. Yes, I did.

19 Q. And that was __ you completed the

20 diploma program in August of '81; is that right?

21 A. That's correct.

22 Q. Now, I see here as well that you have

23 the nursing unit administration diploma, correspondence,

24 from the Ontario Hospital Association in conjunction with

25 the Ottawa University. Can you tell us what that __

1 A. It's actually a diploma certificate.

2 It's a __ it was a program, a correspondence program, that

3 was ran each year, and in the case of myself going into

4 this, it had to be approved by your employer, and you had

5 to be selected to attend this particular program.

6 I was selected by Kingston General Hospital

7 at the time to attend with I think there was nine other

8 members that were selected from KGH, and it was, as I

9 said, a one year program that introduced you and

10 familiarized you with the administration of nursing in a

11 hospital and community setting.

12 Q. That was in a hospital and a community

13 setting or in a hospital?

14 A. Generally overall administration in

15 nursing.

16 Q. And I see you obtained that diploma

17 certificate __

18 A. Certificate.

19 Q. __ in August of 1985; is that right?

20 A. That's correct.

21 Q. Now, you've listed a number of other

22 items under educational background for the period November

23 1992 to the present. I wonder if you might review those

24 with us in summary form.

25 A. Sure. Paths to Quality in Home Care

1 was put on by the Ontario Home Care Providers Association.

2 It's a conference that occurs annually that deals with the

3 quality aspects of home care. It is something that __ the

4 subjects vary from year to year, but it touches on areas

5 of administration quality and the aspects of service

6 delivery in home health.

7 Owning the Future was a conference by the

8 CQI Network and the University of Toronto.

9 Q. What is the CQI Network?

10 A. Continuous Quality Improvement

11 committee or network. It is __ it was an ongoing

12 education session and conference that introduced members

13 of the CQI network to the continuous quality improvement

14 processes.

15 The Canadian Home Care Conference in

16 Fredericton, New Brunswick, was again one of a few that I

17 attended. Again, it's a national annual conference that

18 occurs dealing with __ on various aspects of home care,

19 both operations and service delivery.

20 Quality Management in Action is again a

21 conference that goes on that __ the titles change from

22 year to year, but it's an annual conference dealing with

23 the aspects of quality management. This encompasses both

24 community and hospital.

25 The Introduction to Continuous Quality

1 Improvement in Health Care was a workshop that was held by

2 the University of Toronto and again was an introduction to

3 continuous quality improvement.

4 Q. Now, I see that you've been involved in

5 a number of volunteer activities that you've listed for

6 the period September of 1987 to October of 1993. I see

7 for a period you were volunteer nurse for Hospice Kingston

8 in Kingston?

9 A. That's correct.

10 Q. And can you tell us what that entailed.

11 A. Sure. My responsibilities as a

12 volunteer nurse was mainly to be on call for weekends and

13 evenings to accept calls from clients and to deal with the

14 client care issues, to visit the clients as they needed

15 and to certainly act as a member of the care team to

16 ensure the well_being of the client.

17 Q. And this was a __ Hospice Kingston, was

18 that for terminally ill patients?

19 A. That's correct. For palliative care.

20 Q. And the next item you have on your CV

21 under volunteer activities, March of 1992. I take it by

22 that time, you had responsibilities for quality management

23 at Comcare; is that right?

24 A. That's when I was just getting involved

25 in it, yes.

1 Q. And March of 1992, Conference Planning

2 Committee for Making It Tomorrow. Were you involved in

3 that __

4 A. I was.

5 Q. __ that conference?

6 A. Yes, I was co_chair of that conference

7 and was involved as a facilitator for that conference. I

8 was the member __ I was a member of the St. Lawrence

9 College Health and Nursing Advisory Committee, and myself

10 and a staff member from the committee __ sorry, a staff

11 member from the college was asked to put together a

12 conference dealing with palliative care to determine

13 whether there was a need to run a palliative care course

14 through St. Lawrence College in Kingston.

15 Q. And I see the next item listed here is

16 June of 1993, Conference Planning Committee for Elder

17 Abuse. Can you describe that conference for us and your

18 involvement in it.

19 A. Sure. The Elder Abuse Conference was

20 __ it was sort of a spearhead to our Elder Abuse Task

21 Force. We had started out as a small group of community

22 providers who were quite concerned about elder abuse, and

23 there wasn't any formal means or protocols in place

24 related to elder abuse.

25 Q. Now, when you refer to "we," are you

1 referring to employees of Comcare only or __

2 A. No, it was a community network where we

3 were called the coordinators of continuing care, and at

4 that time, I was the chair of the education committee.

5 Q. And who else __ what other types of

6 individuals were involved, who else got involved in that?

7 A. At the neophyte stages, there would

8 have been Paramed, there was the Kingston Psychiatric

9 Hospital, Kingston General Hospital, Hotel Deux Hospital

10 [ph], Placement Coordination Services, Saint Mary's of the

11 Lake Hospital, and the Victorian Order of Nurses.

12 Q. All right.

13 A. That was the initial group, but it

14 expands, then, to the police departments and other groups

15 as we evolved and became more known. This conference was

16 to develop an awareness in the community of elder abuse

17 and was a public conference for anyone who wanted to

18 attend.

19 And we brought in individuals to speak on

20 the subject of elder abuse, and part of my responsibility

21 was to talk about elder abuse and what our plans were for

22 the Kingston community in setting up protocols for

23 community providers on what to do in identifying,

24 addressing, managing elder abuse.

25 Q. Now, the next item on your CV, March

1 1996 ongoing, Steering Committee for Development of Core

2 National Standards for Home Care. I wonder if you could

3 describe __

4 A. This __

5 Q. __ what that is and what your

6 involvement is.

7 A. Sure. This committee now has evolved

8 to what we call the AIM Committee. It originally was a

9 committee to look at standards across Canada for home care

10 service providers as well as agencies that purchase

11 services from service purchasers, such as home care or

12 what we would call the community care access centre now.

13 Basically, what we were responsible to do

14 was to identify the areas or standards that needed to be

15 in place for service providers and then to develop the

16 criteria and measurement for an accreditation process.

17 This was done through the Canadian Council for Health

18 Services Accreditation, and the standards are now in place

19 and the accreditation process is ongoing.

20 The AIM project, which is the evolution

21 from this particular project, is to look at care

22 development for the home care standards, and this

23 committee meets quarterly, and we've met once, and it will

24 be looking at what it is that the organizations need to

25 use as indicators to determine how well they're doing, I

1 guess, the standards, and what they need to have in place

2 to meet the standards.

3 Q. And the standards you're referring to

4 are those core national standards that you were involved

5 in developing?

6 A. That's correct.

7 Q. And in the course of your work on the

8 core national standards and then subsequently on the AIM

9 Committee, did you ever have occasion to address a

10 professional standards issue with respect to nursing

11 staff?

12 A. One of the components under serving the

13 client, which is one of the titles, is the professional __

14 the professionalism and the components of what is a

15 professional and the requirements that we must have under

16 that.

17 Q. Now, the next item you've listed there

18 is May 1995 and ongoing, Standards Committee for

19 Development of Provincial Standards for Ontario Home

20 Health Care Providers. Can you describe that for us and

21 your involvement in that __

22 A. Yes, I'm the chair of the standards

23 committee for the Ontario Home Health Care Providers

24 Association. Provincial standards have been established.

25 The Ontario Home Health Care Providers Association is an

1 association that is for private sector agencies that looks

2 at how we deliver care and was actually set up to develop

3 and maintain standards for that sector within the

4 community. The standards were __ was an evolution that

5 occurred over probably about three years and was completed

6 in '95, '96.

7 Q. And again, do you __ does the Standards

8 Committee for Development of Provincial Standards, do you

9 touch on professional standards issues for nurses in the

10 home care setting?

11 A. There is a section on professional

12 services within the standards.

13 Q. And I take it that you are involved in

14 the steering committee or were involved in the steering

15 committee for development of core national standards and

16 the AIM Committee and the Standards Committee for the

17 Development of Provincial Standards as a representative of

18 Comcare; is that correct?

19 A. I was a member of the AIM __ I am a

20 member of the AIM Committee and of the Canadian Core

21 National Standards as a member of the OHHCPA, which is the

22 Ontario Home Health Care Providers Association, standards

23 chair.

24 Q. Okay. I take it you're in the Ontario

25 Home Health Care Providers organization as a

1 representative of Comcare __

2 A. I was.

3 Q. __ or Comcare is a member of that

4 organization?

5 A. That's correct.

6 Q. Now, on the next page of your CV, I see

7 under current memberships, I think you've already

8 indicated to us St. Lawrence College Health and Nursing

9 Advisory Committee. Are you still a member of that

10 committee?

11 A. I'm a member of that committee;

12 however, I do delegate those meetings to other people if I

13 can't attend.

14 Q. And what sort of issues does the Health

15 and Nursing Advisory Committee address?

16 A. We look at the aspects of community and

17 health care facilities that have nurses or nursing

18 students there, for such things as student placement. We

19 also look at any identified educational gaps or

20 redundancies and where members of the public who work in

21 the industry that recommended to St. Lawrence College.

22 This particular committee is also evolving through the

23 quality initiatives that have been taken on by the college

24 itself.

25 Q. By this or __

1 A. No.

2 Q. By St. Lawrence?

3 A. By St. Lawrence College.

4 Q. And in the course of your membership on

5 the Health and Nursing Advisory Committee, has the

6 committee addressed professional standards issues?

7 A. We have addressed some of the

8 professional standards issues. As I said, elder abuse was

9 one of the things that we felt needed to be addressed.

10 Again, although it came under the coordinators of

11 continuing care, it was very much linked into the health

12 and nursing advisory committee. A lot of these committees

13 locally are interrelated.

14 Q. Now, the next bullet point under

15 current memberships, Coordinators of Continuing Care

16 Committee, can you tell us what that committee is and what

17 your involvement is?

18 A. That committee is a combination of all

19 care providers within the Kingston region. It encompassed

20 both Lennox and Addington and Frontenac counties, and

21 includes acute care facilities, long term care facilities,

22 home care, and home health care providers.

23 Q. And what sort of issues do you address

24 in that committee?

25 A. We address, through subcommittee work

1 and committee work, various aspects of health care within

2 the local area. Again, the elder abuse was something from

3 an education point of view that we felt needed to be

4 addressed.

5 We've also addressed such things as

6 placement of __ placement of clients, short beds __

7 shortage of beds, we've looked at such things as the

8 impact of the long term care reform. It is a lobbying

9 group as well, where all members sit down at one table

10 once a month to brief each other on what's happening in

11 their sector.

12 Q. Now, I see as well that you're a member

13 of the Registered Nursing Association of Ontario?

14 A. Yes.

15 Q. And member of the College of Nurses of

16 Ontario?

17 A. Yes.

18 Q. And I think you've described for us the

19 elder abuse task force steering committee?

20 A. M_hm.

21 Q. Is that the committee you described for

22 us previously?

23 A. Yes, it was.

24 Q. And you're a member of the Canadian

25 Intravenous Nurses Association?

1 A. I'm no longer a member of the Canadian

2 Intravenous Nurses Association. If you can see, this was

3 a resume that was __ is starting to age. I was a member

4 of the Intravenous Nurses Association and was an active

5 member in developing policies and procedures and attending

6 their association sessions in the Kingston chapter as well

7 as in their national chapter prior to letting my

8 membership go because of my responsibilities in quality

9 management.

10 Q. Now, the Canadian Association for

11 Quality in Health Care and the Toronto Association for

12 Quality in Health Care, are those different organizations

13 than you've already described for us?

14 A. Yes, the Toronto association is now

15 defunct. The Canadian association is one that I spoke

16 about earlier, but the Toronto association has become

17 defunct because of lack of interest in the membership.

18 Q. Now, the Canadian Association for

19 Quality in Health Care, is that the organization working

20 on the core national standards?

21 A. It was one of the partner groups __

22 sorry, no, it wasn't. The Canadian Association for

23 Quality in Health Care was one of the __ one of the

24 partners that the Canadian Council for Health Services

25 Accreditation has moved some of their care development to.

1 They are a member of the AIM steering committee at this

2 point.

3 Q. Okay. And I don't know if you told us

4 exactly what AIM stands for, of the AIM steering

5 committee?

6 A. It's basically __ I can't remember the

7 words for the acronym, but it's care development related

8 to the standards for core national __ or for the core

9 national standards.

10 Q. And I think you've described for us the

11 Ontario Home Health Care Providers Association?

12 A. Yes, I have.

13 Q. I see that you were a vice_president at

14 one time; is that correct?

15 A. I was a vice_president until Comcare

16 and Med Care merged and I had to relinquish my seat

17 because our new president is a member and also an officer

18 with that group.

19 Q. And have you described for us the

20 Canadian Home Care Association?

21 A. The Canadian Home Care Association is a

22 national association dealing with home care issues. It

23 was one of the partners involved in the development of the

24 core national standards.

25 Q. Right. And Home Support Canada?

1 A. Home Support Canada has changed its

2 title. It's now the Canadian Community Support

3 Association, and it __ it's a membership that I held

4 because I was an employee of Comcare. It was also a

5 partner for the core national standards.

6 Q. Now, you have some past memberships

7 listed here. One is as the clinical preceptor of the

8 preceptorship program of Queen's University, School of

9 Nursing. First of all, what is a preceptorship program?

10 A. A preceptorship program was where I was

11 a member along with other nurses who would have a student

12 who was assigned to me and I would mentor the student

13 through their nursing practice in fourth year nursing.

14 Q. And what would the mentoring involve?

15 A. It would involve direct care of the

16 client and allowing the individual to experience a

17 caseload under my direction and to help __ guide them

18 through decision making and the actual care delivery.

19 Q. And this was for a fourth year nursing

20 student in the degree program at Queen's University School

21 of Nursing; is that right?

22 A. That's correct.

23 Q. And as a clinical preceptor, did you

24 have occasion to review with the student nurses

25 professional standards issues?

1 A. As they arose, yes.

2 Q. Now, the Total Patient Care Education

3 Committee of Kingston General Hospital, you were a member

4 of that committee; is that correct?

5 A. That's correct.

6 Q. Before we move on to that, for what

7 period of time were you a clinical preceptor?

8 A. I'm trying to think back. It was while

9 I was at Kingston General Hospital, and it was for two

10 rotations.

11 Q. Two rotations. Two rotations would be

12 of what duration?

13 A. I think I had the students for a month

14 at a time, so it would be for a total of eight weeks per

15 se. That particular program we've now __ because of my

16 relationship with Queen's University, have moved it out

17 into Comcare as well, and we have one student in

18 leadership come to us per session, and that would be

19 basically twice per year.

20 Q. Okay. But I take it in view of your

21 responsibilities with Comcare, you are no longer the

22 direct mentor of the student who comes to Comcare; is that

23 right?

24 A. That's correct.

25 Q. Now, the Total Patient Care Education

1 Committee, I see that you were a member of that committee.

2 What issues did you deal with as a member of that

3 committee?

4 A. When Kingston General Hospital was

5 wanting to introduce total patient care, they recruited

6 members that were direct care providers to assist them in

7 educating other staff in the total patient care model. My

8 responsibility was to work side by side with the nursing

9 staff on various units to introduce them to the model,

10 work with them, and allow them to understand what many of

11 the issues were, to bring the issues back to the table,

12 and for the larger committee to deal with them.

13 Q. What is total patient care, what is

14 that concept of total patient care?

15 A. Total patient care is aware __ rather

16 than a task oriented type of care, the nurses assigned to

17 the clients were responsible for the total care of the

18 client, more or less like a primary model. They were

19 ultimately responsible for all service.

20 Q. And at what point or at what period

21 were you a member of the Total Patient Care Education

22 Committee; do you recall?

23 A. It was again while I was at KGH. I'm

24 trying to think. I think it was around '80 __ somewhere

25 between '85 and '87. I think closer to '85.

1 Q. And I see as well that you were

2 president of the Kingston Nurses Alumni of St. Lawrence

3 College. You're no longer the president of that

4 organization?

5 A. That's correct.

6 Q. Little too busy for that, are you? Now,

7 Ms. Johnston, I've asked you about your involvement

8 generally with professional standards issues, and just to

9 make sure I've got the full picture there, when we talk

10 about professional standards, and you describe your

11 involvement with respect to the standards issues, does

12 that include ethical issues that may face nurses?

13 A. Yes, it does.

14 Q. Has that included __ have you been

15 called upon to address the issues, in particular, of

16 appropriate boundaries, appropriate relationships between

17 nursing staff and clients and others in their care?

18 A. Yes, I have, in both my role as an

19 office manager, as a regional manager, and as the director

20 of quality management.

21 Q. And I understand as well that you have

22 been qualified as an expert to give expert evidence in

23 another College of Nurses discipline proceeding; is that

24 correct?

25 A. Yes, it is correct.

1 MR. COLEMAN: I would at this point, then,

2 ask that Miss Johnston be recognized as an expert who can

3 give expert evidence regarding nursing practices,

4 particularly in the home care setting. I don't know if my

5 friend wishes to cross_examine on that point, but I put

6 the proposal forward.

7 THE CHAIRPERSON: Okay, Mr. Longstreet, do

8 you wish to cross_examine __

9 MR. LONGSTREET: Thank you.

10 THE CHAIRPERSON: __ at this time?

11 CROSS_EXAMINATION BY MR. LONGSTREET:

12 Q. Your role in Comcare must keep you

13 fairly busy?

14 A. Yes, it does.

15 Q. How many hours a week do you spend with

16 Comcare?

17 A. It varies, maybe 60.

18 Q. And I take it as of late, and pretty

19 well I think since last October, you've been excessively

20 busy?

21 A. Yes.

22 Q. As a matter of fact, we were here to

23 proceed in October, you were present, and you were called

24 away?

25 A. That's correct.

1 Q. What was that about?

2 A. That was related to a labour action

3 that was occurring at the Kingston branch.

4 Q. And that was with the Kingston branch

5 of Comcare. How many nurses involved?

6 A. 120.

7 Q. How many nurses do you have altogether

8 in your organization?

9 A. Nationally?

10 Q. Yes.

11 A. I can't tell you an accurate figure. I

12 can go by what I know from office to office generally, and

13 I would suggest that we probably have close to a thousand.

14 Q. One of the objectives, no doubt, in

15 your directorship is to keep your nurses happy, keep them

16 on the job, keep them positive with Comcare in attitude?

17 A. My responsibility is to work with the

18 board and the direct __ those staff that are managing the

19 direct care staff in quality aspects.

20 Q. So you're not on the board?

21 A. I'm not on the board.

22 Q. And you're not front line?

23 A. No, I'm not.

24 Q. So basically, your position is 60 hours

25 a week mentoring the board no doubt about what you __ the

1 supervisors under are telling you about what's happening

2 down in the trenches; is that fair?

3 A. Informing the board of what's happening

4 and dealing with any aspects that come to me that I have

5 to report to the board.

6 Q. And you have been getting, as Comcare,

7 some press lately?

8 A. That's correct.

9 Q. And it's my understanding that Comcare,

10 from the board through to you through to your supervisors,

11 basically is seeking to take the nurses away from their

12 long term benefits that were afforded to them and have

13 them basically on call type individuals?

14 A. The issues of the labour dispute within

15 Comcare is not something that we are discussing publicly.

16 The Ontario Nurses Association has took it upon themselves

17 to say their side. Comcare has agreed not to make a

18 public media battle of the issues related to the labour

19 dispute in Kingston branch.

20 Q. Would you answer the question, please.

21 MR. COLEMAN: If I may raise an objection

22 at this point. I have difficulty __ in fact, to be blunt

23 about it, I see no relevance of this witness's

24 qualifications as an expert the details of the particular

25 labour dispute between the organization that she is

1 employed by and the staff involved in a labour dispute.

2 If Mr. Longstreet can make that clear to

3 me, I may withdraw the objection, but as to the details of

4 the dispute between Comcare and nursing staff represented,

5 that would appear to have no relevance as to her

6 qualifications as an expert in this proceeding.

7 THE CHAIRPERSON: Mr. Longstreet?

8 MR. LONGSTREET: Well, this lady is coming

9 here to be accredited hopefully by this panel as an

10 expert, and there is a whole lot of stuff in her

11 curriculum vitae and part of her curriculum vitae

12 basically is designated towards, in effect, the health and

13 welfare of individuals such as you and I, and what is very

14 near and dear to that is no doubt what the ordinary RN or

15 RNA is required to do in the field.

16 And we now hear what this lady's occupation

17 is, and in order to qualify her as an expert, I believe

18 that this is wide open cross_examination. It is the care

19 and the ethics within the care that we're here to judge.

20 This lady is coming here to ask, through Mr. Coleman, to

21 be classified as an expert. Maybe we should hear what

22 Comcare is doing with respect to its position that is now

23 taken against their help, their every day help in the

24 trenches, and I have a few more questions to ask in this

25 area. I think it's quite germane. If this lady is here

1 to opine on ethics and conduct, well, maybe we should hear

2 about their ethics, their conduct.

3 THE CHAIRPERSON: Mr. Coleman?

4 MR. COLEMAN: Mr. Longstreet has failed, in

5 my submission, to identify any relevant ground for this

6 line of inquiry. All he said is that it's wide open.

7 Well, Madam Chairperson, members of the

8 panel, it's wide open to the point of relevance. But it's

9 not wide open to the extent that he's permitted to conduct

10 an inquiry into clearly and obviously irrelevant matters

11 for the purpose of making some impression on the witness

12 or on you as members of the panel.

13 The question before you at this point is

14 the qualifications of Ms. Johnston as an expert with

15 respect to nursing practices, professional standards,

16 including ethical issues.

17 What may be in dispute between Comcare and

18 nursing staff in Kingston regarding terms and conditions

19 of employment, long term benefits, or rates of pay that

20 may be paid cannot possibly be relevant to any inquiry

21 into Ms. Johnston's level of expertise with respect to

22 nursing practices, standards, and ethical issues, and

23 nothing that Mr. Longstreet has said to us has indicated

24 that there is any tie_in whatsoever between his line of

25 inquiry regarding Comcare's labour dispute in the Kingston

1 area and Ms. Johnston's qualifications.

2 And so we would ask that the question not

3 be allowed. This is not a forum for inquiry into these

4 difficult issues that are unrelated to this proceeding,

5 for either personal interest or for mud slinging purposes.

6 Unless the inquiry has to do with Miss Johnston's

7 expertise, we say the question should not be permitted.

8 THE CHAIRPERSON: Thank you. The panel

9 wish to take a few minutes to consider this objection.

10 Perhaps we could break for __ perhaps we could break for

11 15 minutes and be back at 20 after ten. Thank you.

12 ___ Proceedings Adjourned

13 ___ Proceedings Resumed

14 THE CHAIRPERSON: The panel disallows the

15 objection, but cautions Mr. Longstreet that the details of

16 the labour dispute in Kingston are not relevant to this

17 proceeding.

18 BY MR. LONGSTREET:

19 Q. One of the critical aspects of taking

20 care of an ill human being is to have a health care

21 provider, nurse to be there with a positive mind and a

22 mind addressed to the assistance of that patient; is that

23 not correct?

24 A. That is correct.

25 Q. And that's because the nurse has to

1 take a role of __ in some instances almost like being a

2 mother to an ill and distraught patient, is that not fair?

3 A. I have some concerns about the role of

4 a mother. I would suggest that the nurse must have a

5 therapeutic relationship with the client that ensures the

6 well_being of the client.

7 Q. Well, part of that, though, there is

8 the mental approach, you know, the holding of the hands,

9 to make your patient feel better, albeit maybe they're

10 physically not better but psychologically to help them __

11 give them hope in effect?

12 A. If that __

13 Q. That's part of the role, yes?

14 A. If that's culturally acceptable to the

15 client and the care that is being provided at that time.

16 The nurse has to be sensitive to what is acceptable to the

17 client.

18 Q. And in effect, one of your roles,

19 therefore, when you're looking at your nurses is to make

20 sure that your nurses are happy, are in good spirits in

21 order to properly do their job?

22 A. The responsibility of the employer is

23 to ensure the professionalism and the satisfaction of the

24 staff who are working for them.

25 Q. Well, when I take a look at something

1 called the Canadian Nurses Association Code of Ethics, in

2 it is the Association Context of Nursing, and I'm reading

3 from a book called the Nurses Legal Handbook, Third

4 Edition, Spring House, and it deals with __ it's a book

5 out of the United States, and it will be here for the

6 members if you wish to look at this, but I wish to ask you

7 this __ the Association Context of Nursing, conditions of

8 employment should contribute in a positive way to patient

9 care and the professional satisfaction of nurses. It says

10 that under the __ at page 286, Association Context of

11 Nursing.

12 Is it not a fact that you're here to

13 comment on the ethics of this young lady here, and one of

14 the things that your company is doing is, in effect, not

15 making sure that the contract of employment that your

16 nurses have should contribute in a positive way to patient

17 care, your nurses are __ at least they were the last time,

18 and I guess it's still ongoing, not happy with Comcare and

19 have gone on strike, or had gone on strike?

20 A. This is one branch of Comcare. 120

21 nurses out of 1,000, approximately. It is this branch

22 that is on strike. The labour dispute that is happening

23 in Kingston is somewhat of a situation where they may not

24 be happy with their employment agreement. It is Comcare's

25 desire to negotiate a settlement that is acceptable to

1 both sides, but there is a number of issues that are

2 outstanding, not withholding just the satisfaction of the

3 nurses who are involved in this bargaining unit.

4 Q. But you seek to take away the

5 employment rights that have been acquired by nurses, the

6 benefits, is that not a fact?

7 A. That is not a fact.

8 Q. It's my understanding that you want to

9 take away their pensions, their __ their rights that

10 people have __ in the labour movement have been able to

11 acquire since the industrial revolution, that's the way I

12 read it in what I'm seeing.

13 MR. COLEMAN: Madam Chair, I raise my

14 concern about the relevance of the line of inquiry. It

15 seems to me that you did direct Mr. Longstreet that the

16 details of the labour dispute between Comcare and the

17 nurses of Kingston is not a relevant subject matter for

18 this procedure and now we seem to be embarking on that

19 line of inquiry as to what the negotiating position of the

20 parties may be.

21 I remain at a loss as to how that can

22 advance our inquiry into the expertise of this witness.

23 And I object to that line of inquiry. I thought in your

24 ruling that you had indicated to Mr. Longstreet that that

25 was a line of inquiry that he should not pursue regarding

1 the details of the labour dispute between Comcare and the

2 nurses in Kingston.

3 MR. LONGSTREET: I think that some of the

4 issues that Mr. Coleman has raised may have some merit,

5 but the bottom line is, is that, in effect, you have a

6 witness coming here wanting to comment on the ethics of a

7 member, and as part of the cross_examination, I am taking

8 this witness to task in her administrative task with

9 someone who represents __ who has in their employment over

10 1,000 nurses in Canada, what is their ethical position

11 with their staff, their nurses.

12 The whole question is this lady here has __

13 well, to put it in the stove terminology, does the pot

14 call the kettle black, and that's why this question __

15 these questions are being put forward at this juncture,

16 and it's only part of the area I have to question her in

17 her __ in her expertise for her to be qualified as an

18 expert.

19 I have not too much further to go with this

20 line, and I intend to refer to the rest of the ethics

21 provisions under the Canadian Nurses Association in the __

22 in part of the area we're going to talk about in

23 cross_examination.

24 MR. COLEMAN: If I may respond to that,

25 what Mr. Longstreet is suggesting is that he was going to

1 ask you to make an evaluation of the ethical position of

2 Comcare and presumably of Miss Johnston with respect to

3 Comcare. He's going to ask you to make an assessment of

4 the ethical position of Comcare with respect to the labour

5 dispute between Comcare and the nurses in Kingston.

6 That is a line of inquiry, it seems to me,

7 that you are not particularly well suited to engage in and

8 nor is it a very useful expenditure of your time and

9 resources. Presumably the parties are engaged in

10 collective bargaining, they have a collective bargaining

11 relationship, and any disputes that they may have about

12 ethical or improper conduct are properly brought before

13 the Ontario Labour Relations Board. That's where these

14 issues get decided.

15 I cannot see how our investigation, and

16 investigation that you are charged with, is advanced in

17 any way by getting into the details of the labour dispute,

18 and for you to reach the conclusion that Mr. Longstreet

19 would like you to reach, that is, that Comcare is somehow

20 behaving in an unethical behaviour, and Miss Johnston in

21 particular is engaging in some unethical conduct because

22 of the notion __ in negotiating the position, the position

23 that Comcare is taking with respect to these nurses, is

24 just not an inquiry that we can get into, and if we get

25 into it, we're going to be at it for days and days and

1 days.

2 And it isn't fair for Mr. Longstreet to

3 say, Well, I just wish to touch on this just for a moment,

4 just long enough to cast an aspersion and then I'll move

5 on.

6 The details and the ethical nature of the

7 position that the parties are taking in their collective

8 bargaining is not the proper subject matter of this

9 proceedings. It's not relevant to Miss Johnston's

10 qualifications as an expert.

11 THE CHAIRPERSON: Okay, the panel will

12 allow the objection, so Mr. Longstreet, if you could

13 continue without __

14 MR. LONGSTREET: Thank you.

15 BY MR. LONGSTREET:

16 Q. Under the __ continuing in the actual

17 code of ethics, it indicates here the nurse is obligated

18 to work towards securing conditions of employment that

19 enables safe and appropriate care for patients and

20 contribute to the professional satisfaction of nurses. Do

21 you agree with that?

22 MR. COLEMAN: If I can raise __

23 MR. LONGSTREET: Well __

24 MR. COLEMAN: You're not going to

25 address __ you're holding up and reading from a book.

1 What is it that you are putting to the witness? You've

2 indicated two things. One is that you are concerned with

3 the code of ethics of the Canadian Nurses Association, I

4 think you identified, and the other is you refer to a

5 nurses' legal handbook, an American publication.

6 Are you putting to the witness a

7 proposition that this is part of the code of ethics of a

8 particular organization, and if you are, then perhaps you

9 should identify the source of the proposition that you're

10 putting to the witness.

11 MR. LONGSTREET: Well, obviously,

12 Mr. Coleman, and with respect, you weren't listening

13 earlier. I indicated that I intend to read from the

14 Canadian Nurses Association Code of Ethics, and in the

15 particular area was the Association Context of Nursing as

16 found in the text. So I was just going on in that. And if

17 I may be allowed to proceed.

18 BY MR. LONGSTREET:

19 Q. You heard the reading. Do you agree

20 with the last __

21 A. Could you repeat it, please.

22 Q. The nurse is obligated to work towards

23 securing conditions of employment that enables safe and

24 appropriate care for patients and contribute to the

25 professional satisfaction of nurses. Do you agree with

1 that?

2 A. I do.

3 Q. And it also states under the

4 Association Context of Nursing, The nurse advocates

5 patient's interests. Do you agree with that?

6 A. Stand alone, yes.

7 Q. And the nurse represents the values and

8 ethics of nursing before colleagues and others?

9 A. Yes.

10 Q. Do you agree with that?

11 A. I do.

12 Q. Now, one of the __ just a moment,

13 please. One of the underlying principles of your giving

14 evidence today is that you must maintain total

15 independence in this matter, an objectivity?

16 A. Yes.

17 Q. All right. Now, you indicated that

18 beforehand you were qualified, I gather, before this self

19 same college as an expert, right?

20 A. That's correct.

21 Q. And that proceeding involved this lady,

22 is that not correct?

23 A. Yes, it is.

24 Q. I put it to you, witness, that you have

25 given evidence once, you have now given evidence twice, or

1 are attempting to give that evidence twice, that that

2 affects, I put it to you bluntly, that affects your

3 objectivity throughout in all of this?

4 A. My understanding of my expert opinion

5 here is not to pass judgment but to give information

6 relating to the actual standards and ethics documents and

7 the information related to my expertise within the field,

8 not to judge the member.

9 Q. Well, you're not to judge, that's for

10 this board to do, but you're opining and you're opining on

11 issues that this board is called __ it will be called upon

12 to __ will be called upon to make findings of fact on, and

13 the issue that I raise to you is that objectivity in one

14 instance can be accepted, but almost in the same breath,

15 you're now involved in a second matter.

16 I'm putting it to you that maybe there is

17 the intention to give your opinings objectively, but

18 you're still involved with the same individual, and

19 accordingly, that goes against, and I put it to you, the

20 very tennant, the very basis of your coming here to opine.

21 Do you not agree?

22 A. I don't agree. I am not here to do

23 anything other than to respond to the hypothetical

24 situation that was given to me. I'm not here to make

25 comments other than what a reasonably prudent nurse would

1 do in a situation under the hypothetical.

2 Q. I appreciate that comment, witness, but

3 also in giving evidence as an expert, you certainly must

4 have checked out how an expert gives their evidence and

5 what they're to do, right?

6 A. In what regard?

7 Q. Well, just in coming here, the steps

8 that you take before you find yourself sitting here under

9 oath, have you gone through what an expert is required to

10 do before they can come and give their opinings?

11 A. I have gone through that with legal

12 counsel for the College of Nurses.

13 Q. And __ well, I believe what counsel

14 said this morning, said you're called here to give

15 evidence against this member?

16 MR. COLEMAN: I didn't say __ no __ that's

17 not correct, Mr. Longstreet. That's not a fair

18 characterization of what my client is to give evidence on.

19 This expert is called on behalf of the college to give

20 evidence on professional standards and appropriate

21 conduct, that is the purpose of the expert being here,

22 it's not __ we're not called here to give evidence

23 against.

24 BY MR. LONGSTREET:

25 Q. You're here to give a hypothetical

1 opining on a hypothetical situation, right?

2 A. That's correct.

3 Q. Now, in laying the foundation of your

4 opining, is it not necessary, in effect, obviously you

5 have to meet with Mr. Coleman, who requested your

6 attendance to prepare and review the evidence that you'll

7 have to give here today?

8 A. Yes.

9 Q. And you've done that. And basically

10 says prior to testifying, you're not to discuss the case

11 with others?

12 A. That's correct.

13 Q. And review all relevant documentation,

14 right?

15 A. Yes.

16 Q. Let me know __ and I gather to

17 interview all relevant witnesses?

18 A. Pardon me?

19 Q. And interview all relevant witnesses?

20 MR. COLEMAN: Who are you referring to, the

21 witness or counsel?

22 MR. LONGSTREET: No, no, no, no.

23 THE WITNESS: Me to interview?

24 BY MR. LONGSTREET:

25 Q. Yeah, all relevant sources and parties

1 __ the people involved in around the issue.

2 A. I don't think that's my responsibility,

3 and that hasn't occurred because I'm here to testify

4 basically on the practice of nursing, so I'm not __ I

5 don't understand what you're __

6 Q. Well, are you not, in effect, here to

7 opine on a stipulated set of facts as presented by

8 Mr. Coleman?

9 A. I'm here to deal with a hypothetical

10 situation that was put in front of me.

11 Q. That's right. Purely that and nothing

12 more?

13 A. That's correct.

14 Q. All right. Did you request of

15 Mr. Coleman, in order that you do your job as passionately

16 and objectively as possible, that he give you all relevant

17 material that would allow you to come to your opining or

18 did you just take a look at the scenario, the

19 hypothetical, and opine on that?

20 A. At the time that I was given this, I

21 made my documentation in my interview based on the

22 hypothetical that was given to me then.

23 Q. When you said you agreed you had to

24 review all material documentation, you didn't review all

25 relevant documentation?

1 A. I would assume all relevant __

2 Q. No, no __

3 A. __ relevant documentation was that was

4 given to me and my basis was on that hypothetical

5 situation.

6 Q. Let me know what documentation was

7 given to you before you came up with your opining, just

8 what all relevant documentation was given to you, can you

9 outline that, please.

10 A. I had hypothetical number two that I

11 had to deal with.

12 Q. And nothing more?

13 A. For this hearing, no.

14 Q. And so you were given a __ you were

15 given a hypothetical with nine different situations?

16 A. I can't tell you the number per se

17 right off the top of my head.

18 Q. Okay. And you were given, in effect, a

19 blinkered, if you know what I mean, blinkered, those are

20 the things that the horses wear on the side __

21 A. Blinders.

22 Q. You were given a blinkered scenario as

23 presented to you by Mr. Coleman?

24 A. I was given a document that said

25 hypothetical number two on the top, and the document had

1 pointed situations within the hypothetical.

2 Q. Did you ever ask Mr. Coleman, as an

3 expert, it is incumbent upon me to take a look at all of

4 the documents behind this in order for me to give you a

5 full opining, you're not being fair with me, Mr. Coleman?

6 A. I understood that my responsibility was

7 to ensure that I understood the practice of nursing from

8 the standards of practice document, from the ethics

9 document, which I took upon myself to look at and review

10 myself, as well as looking at __ my understanding of being

11 an expert was my actual time that I have spent in in home

12 health care in the community, and that is what I looked at

13 to form my basis on those hypotheticals.

14 Q. Okay. So in effect, when I said to you

15 that as __ in order for you to give an opining, it would

16 be exceptionally germane to your issue to review all

17 necessary documents in order to give an opinion?

18 A. It is my opinion that I would not have

19 to review all of those documents if they were not relevant

20 to what exactly was happening, through that hypothetical.

21 If I was dealing with the specifics of an actual, that

22 would be a different situation.

23 Q. And if you were given, in effect, all

24 relevant documentation, rather than a typecast

25 hypothetical, you __ if you were given, in effect, a

1 factual situation without any names or whatever and

2 opining on that fact situation, your opining could be

3 altogether different?

4 A. I would suggest not.

5 Q. Well, why don't you do that?

6 A. The standards of practice __

7 Q. No __

8 A. __ and the information that's there is

9 the standards of practice.

10 Q. But what I'm saying to you, when you

11 say I suggest not, that you didn't even think when you

12 uttered I suggest not, when you're given a hypothetical

13 and given true facts that are, in effect, not bolstered in

14 the hypothetical, you might very well have given different

15 opinings?

16 MR. COLEMAN: If I may __

17 MR. LONGSTREET: Well __

18 MR. COLEMAN: __ raise an objection here.

19 If you've completed the question, Mr. Longstreet. If you

20 haven't, please continue. I wasn't intending to cut you

21 off. If you've asked your question.

22 MR. LONGSTREET: I take umbrage with being

23 cut off in cross_examination over very, very critical

24 issues. I've been __ you know, it's an art to object and

25 it's an art to cut off, but when there is somebody's

1 livelihood on the line and we have a critical issue in

2 cross_examination, examine and to cover that through, I

3 think that it is not fair to this individual to cut off

4 because it gives the witness, who is under

5 cross_examination, the chance to show her true mettle as

6 she really is and not listen to the confrontation that's

7 going to go on and exercise her thought processes to, in

8 effect, assist the person who has retained her.

9 There is an old saying, he who pays the

10 fiddler calls the tune, and common sense dictates that

11 this lady is here as witness for the college against my

12 client. I don't like the interruptions, especially in

13 critical areas. Especially when this witness says, Hey,

14 there is no difference of what I'm going to say if I was

15 given the real facts as opposed to a hypothetical and the

16 facts vary from the hypothetical.

17 THE CHAIRPERSON: Mr. Coleman, was that an

18 objection?

19 MR. COLEMAN: It was. And I was making an

20 objection. I'm astounded to hear from Mr. Longstreet that

21 he suggests that I should not be permitted to make an

22 objection because somehow that might interrupt the flow of

23 his cross_examination. I can hardly believe I hear that

24 coming from Mr. Longstreet.

25 Of course I have a right to raise an

1 objection. If it's an appropriate objection. I do not do

2 it for the purpose of interrupting the flow of his

3 cross_examination, but if he embarks on a line of inquiry

4 that I feel to be an improper line of inquiry, then it is

5 my responsibility to object and not simply to wait till

6 the end of the cross_examination.

7 If he's concerned about the witness somehow

8 being fed information by reason of this exchange between

9 Mr. Longstreet and myself and the panel members, then we

10 can ask the witness to step out. I have no difficulty

11 with that.

12 But I do have an objection to the question

13 that Mr. Longstreet was putting to this witness because,

14 in my respectful submission, it misapprehends the nature

15 of the expert evidence and the role that the expert is

16 supposed to play. And that __ if you want the witness to

17 step out, now is the time to indicate. So that I can __

18 THE CHAIRPERSON: Maybe __

19 MR. COLEMAN: __ develop my objection.

20 THE CHAIRPERSON: Maybe that would be a

21 good idea. If you would please remember that you're under

22 oath and not to discuss your evidence with anyone.

23 MR. LONGSTREET: I have no objections to

24 that, thank you.

25 THE CHAIRPERSON: Thank you.

1 (WITNESS STANDS DOWN)

2 THE CHAIRPERSON: And for my benefit, I

3 would just like to hear what your original objection was

4 that Mr. Longstreet spoke to.

5 MR. COLEMAN: My objection is the

6 proposition put forward by Mr. Longstreet to the witness

7 suggesting that somehow her approach to this case was

8 improper. An expert witness is supposed to give expert

9 opinion, evidence on the basis of a hypothetical, a

10 hypothetical scenario put to that witness for comment.

11 That is the proper approach to opinion evidence.

12 She is not here in this proceeding to give

13 evidence about the particular __ a particular member or a

14 particular medical condition. For example, it would be

15 different if we were calling a doctor to establish the

16 medical condition of the little boy in this case, who

17 suffered the trauma.

18 We would then want the opinion evidence of

19 that expert addressed to the very medical condition of

20 that very person. And that, of course, would entail a

21 full investigation of the boy's situation and his current

22 condition. And if the expert had failed to do that, we

23 would say that the expert's inquiry has been incomplete

24 and poorly based.

25 Ms. Johnston is to give __ is here to give

1 expert opinion regarding nursing practices, nursing

2 standards, and ethical issues. She is required to give

3 that opinion evidence on the basis of a hypothetical

4 scenario. She is not giving evidence about the particular

5 facts of this case. She has not been here __ she has not

6 been present to hear the facts of this case.

7 It will be for you to decide what the facts

8 of this case may be. It is not for this witness to decide

9 in the event of disputed evidence who is telling the

10 truth, who is not, whose shading is or is not correct on

11 the facts.

12 She is required to give her evidence on the

13 basis of the hypothetical scenario which has been put to

14 her and any hypothetical scenario that counsel puts to her

15 in the course of giving her evidence before the inquiry.

16 But it's always given to her as a hypothetical. She is

17 not commenting on the actual facts of the case.

18 Of course, at the end of the day, you will

19 be required to make the connection between the

20 hypothetical scenarios that the expert has addressed and

21 the facts of the case. And if the hypothetical scenario

22 is different than the facts of the case, then the expert

23 evidence may not be very useful to you. If there is a

24 great divergence.

25 Now, the expert in this scenario can only

1 give her evidence about the hypothetical. She is required

2 not to engage in her own independent inquiry into what the

3 facts of the case may be.

4 She is required to base her evidence on the

5 hypothetical that's given to her and the hypotheticals

6 that may be given to her on further examination in chief

7 and the hypothetical scenario that Mr. Longstreet may put

8 to her, well, let's say the facts are different, let's say

9 the scenario is different. And put to her a different

10 scenario, and he's entitled to cross_examine on that, when

11 we get into the merits of her opinion.

12 But she is not supposed to have engaged in

13 this inquiry before she came to the hearing. She is

14 required to review the hypothetical scenario put to her

15 and the __ her opinion and the hypothetical scenario will

16 then be tested in the course of this hearing, and

17 Mr. Longstreet will have the opportunity to cross_examine

18 her and to present to her a different hypothetical

19 situation if he feels that the hypothetical scenarios as

20 prepared by the college and presented to the witness for

21 her opinion are not consistent with the facts of the case.

22 But we say it's entirely inappropriate to

23 suggest to this witness that she ought to have engaged in

24 some other inquiry, to demand all relevant documents, to

25 engage in a fact finding mission of her own before she

1 gave evidence, and that somehow her opinion or her

2 objectivity is suspect because of that.

3 That is entirely to misapprehend the role

4 of an expert in this case, and what we can tell from the

5 answers so far is that the expert has done exactly what

6 she is supposed to do in the situation, and that is, to

7 consider the hypothetical scenario presented to her by

8 counsel and to comment on it, which she'll do in due

9 course.

10 And therefore, we object to Mr. Longstreet

11 suggesting that somehow that's improper, that somehow she

12 hasn't engaged in the sort of inquiry she is supposed to

13 have engaged in because there's absolutely no foundation

14 for putting that proposition to her.

15 He is, of course, as I've indicated, free

16 to cross_examine her at length after she has been

17 qualified as an expert if he thinks the hypothetical

18 scenario that she has addressed is somehow misleading and

19 not consistent with the facts of the case.

20 And he's fully entitled to do that, and she

21 will be required to respond to that as to what difference

22 it makes to her opinion. But to suggest to her she comes

23 before you somehow lacking objectivity or somehow having

24 failed to do her job by not engaging in this independent

25 fact finding mission is entirely inappropriate because

1 what she has done and what she has indicated to you she

2 has done is exactly what she is supposed to do.

3 And therefore, we say it's improper for

4 Mr. Longstreet to be suggesting to her that somehow her

5 approach to this case is inappropriate and wrong, and we

6 object to the question.

7 MR. LONGSTREET: If I may. The fact

8 scenario that is to be given to an expert should parallel,

9 in order to be of moment, that which the board is required

10 to render an ultimate decision upon.

11 An expert is being called because she

12 professes to have certain credentials and can be allowed

13 to give opinion evidence and that person's credentials

14 logically are supposed to make that person give their

15 opinion, their thoughts, their opinings such that it can

16 be of assistance to those who are charged with the

17 ultimate job here, and that's whether or not there's

18 misconduct.

19 And accordingly, as agreed by this witness,

20 that it is necessary to look at the relevant information

21 that the college has in order to give that opinion.

22 The worst thing that an expert can do is to

23 come to a hearing of this nature and to have a blinkered

24 view based on certain structures without, in effect,

25 looking into the background of the issues that bring forth

1 this, the relevant documents.

2 Just the fact that one is given a set of

3 fact situations that, in effect, is not parallel and in

4 keeping with what facts we've already heard here works a

5 very, very unfair colouring; in other words, you're

6 painting somebody with a certain brush and leaving a

7 detrimental psychological overtone on that evidence

8 against someone here.

9 In order for someone to give an opinion

10 accordingly, just to accept __ and she agreed, you should

11 look at the relevant documents, just to look at a fact

12 situation doesn't really do justice to the board, to the

13 college, and definitely not to my client.

14 And her position is that I am here as an

15 expert and based on what Mr. Coleman gave me, a scenario,

16 no, I didn't bother looking behind that, I'm just opining

17 on this fact situation, I never looked any further, in

18 other words, she hasn't taken the qualitative look at the

19 facts to give a full picture of what it is that we'll

20 be __ that you'll be talking about.

21 And she states because I was given the fact

22 situation and my authoritative experience and background

23 gives me the credentials to opine.

24 Well, that may be so, that may be very well

25 so, but as a professional, one who is to give evidence, I

1 don't want to get into a situation __ and I __ and I would

2 carry on with the first part of the sentence, for her to

3 take that position and say that is all that I'm doing does

4 not do, in effect, the college any fairness and it doesn't

5 do this board here any fairness whatsoever.

6 She has not looked behind, she has not, and

7 I __ that's why I want to __ cross_examined her on just

8 what has she looked at. Has she __ and I don't want to,

9 in effect, have someone give opinion evidence because she

10 can be here, now she has been qualified, and now have to,

11 in effect, cross_examine her and say your fact scenario

12 doesn't meet __ doesn't mean anything here and have to

13 cross_examine her, and in so doing, build this gentleman's

14 case for him. To give her all the scenario facts that, in

15 effect, have not been given to her.

16 So it's one thing to be qualified, and it's

17 one thing to give me something as is required by the

18 regulated health profession, something ahead of time of

19 what __ of what it is that is __ that the individual is

20 opining, and if what the individual is giving is totally

21 relevant after __ and my friend even notes that there's

22 certain things in here that __ and long beforehand,

23 totally out of line with the fact scenario, that is why I

24 have to ask her, and I ask, well, what documents did you

25 look at in order to give your opinion.

1 You're the expert, you're the professional,

2 aren't you supposed to ask for a flushing out of the

3 facts, and in order for a proper report to come forth, I

4 think that you have to have this flushing out, and we're

5 not having it.

6 That is where I'm going in this, and I'm

7 doing my best to make sure that this individual, who has

8 agreed that you have to look at the background __ with

9 documents in order to give opinion, states that she

10 hasn't, and accordingly, I don't want to have to go into

11 damage control after the fact when it shouldn't even be

12 before the board.

13 THE CHAIRPERSON: Mr. Coleman?

14 MR. COLEMAN: If I may respond to that,

15 Madam Chair, members of the panel. This appears to be an

16 issue of such fundamental importance that it may be a

17 matter that you might wish to seek independent legal

18 advice about because we clearly have a very fundamental

19 difference as between the prosecution and defence on the

20 appropriate inquiry for an expert to engage in before she

21 comes to the hearing.

22 I think I've clearly set out our position

23 that she can and should look at only the hypothetical

24 scenario that's prepared for her and that she should not,

25 she should not engage in any independent fact finding

1 inquiry of her own.

2 The reason being it is for this panel to

3 decide what the facts are, and you will then have to

4 compare those facts with the hypotheticals that the expert

5 has addressed to determine if there is any relevance to

6 the opinion that's been rendered on the hypotheticals.

7 But the hypothetical is prepared for the

8 expert to avoid the very inquiry that Mr. Longstreet is

9 suggesting she should have engaged in and should be

10 chastised for not engaging in before she came to the

11 hearing.

12 Mr. Longstreet suggests that the witness

13 should have requested the documents, should have looked at

14 the facts of the case, should have dug into the case to

15 determine just what it was that the member and the other

16 parties to the proceeding might have been up to so that

17 she can reach her own conclusion about whether this was

18 appropriate or inappropriate conduct. Had she done so, we

19 would say that that is not expert evidence properly given.

20 She's been asked about what she reviewed

21 before she rendered her opinion, and what Mr. Longstreet

22 is referring to, of course, is a summary opinion that has

23 been provided to him and Ms. Munro in advance of the

24 hearing as required by the code. She is required to base

25 that opinion on the hypothetical scenario only.

1 Now, whether the hypothetical scenario

2 bears any relationship to the fact of the case as you

3 ultimately determine them, that's for us to sort out as

4 the hearing proceeds.

5 Mr. Longstreet wishes to take issue with

6 the way that the hypothetical has been posed to the

7 expert. If he says it's misleading or inaccurate or

8 incomplete, then he has the right to cross_examine the

9 witness, and he has the right to try to get her opinion on

10 what he says are the relevant facts, the accurate facts,

11 posed to her again as a hypothetical that may, in effect,

12 result in opinion in his favour.

13 He's entitled to do that on

14 cross_examination. But the expert must confine her

15 opinion to the hypothetical scenario or scenarios

16 presented to her by counsel, the expert must not engage in

17 her own independent inquiry into the facts of the case to

18 come to her opinion because to do so is to substitute the

19 expert opinion for a fact finding mission, which is yours

20 and yours only.

21 And we appear to have this fundamental

22 difference between counsel because I'm saying it would be

23 entirely inappropriate for the witness to have done

24 anything more than she did, that is, to review the

25 scenario presented to her and to render her opinion based

1 on that.

2 Mr. Longstreet has suggested that she is

3 somehow remiss in not engaging in that independent inquiry

4 of her own, and he would like to __ and this is the source

5 of my objection, he would like to put that proposition to

6 the expert that she has engaged __ or she has __ her

7 conduct in this matter in preparing for this hearing is

8 improper, incomplete, subjective, and impeachable because

9 she did not engage in that independent inquiry.

10 We say that's not an appropriate line of

11 inquiry for him to engage in on cross_examination, because

12 that's not what the expert should be doing. And that's a

13 matter of such fundamental importance that we submit that

14 has to be sorted out so that you can make a ruling on this

15 matter before we proceed any further.

16 Because it's clear that there is a huge

17 gulf between us, Mr. Longstreet and myself, as to how the

18 expert should prepare for this hearing. What he is saying

19 the expert should do we say is entirely inappropriate.

20 What we say the expert should do, and in fact, she has

21 done in this case, he is suggesting is entirely

22 inappropriate, and therefore, I think we need a

23 determination on that issue before we proceed any further

24 with this cross_examination and line of inquiry.

25 MR. LONGSTREET: Can I leave members of the

1 board the Practical Nurses Guide to the Law. It's an

2 Ontario publication, the author is Grant and Ashman, and

3 the checklist for experts at page 28 to 29, 30 of the __

4 of this book, and it indicates at page 30, ensure access

5 to further information as may be required, and I will

6 leave this for the members of the board __

7 MR. COLEMAN: Perhaps counsel __

8 MR. LONGSTREET: __ have the benefit of

9 deliberating this.

10 MR. COLEMAN: Mr. Longstreet has taken a

11 further right of response and is now raising a text that

12 he says he's going to leave with you. He has not

13 presented it to me and nor have I had the opportunity to

14 respond to it.

15 Perhaps that would __ if Mr. Longstreet

16 wants you to take his comments into account, then perhaps

17 I should have the opportunity to review the material he's

18 talking about and address the issues that he says are so

19 deeply set out there before you take it under your

20 consideration.

21 THE CHAIRPERSON: Maybe we can have a

22 recess for ten minutes so that the panel can discuss this

23 issue and so you can show him the book.

24 ___ Proceedings Adjourned

25 ___ Proceedings Resumed

1 THE CHAIRPERSON: Hello, Mr. Le Vay.

2 MR. LE VAY: Hi.

3 THE CHAIRPERSON: Okay, what we'll do is

4 we'll ask counsel for the college to voice the objection

5 and explain it, and then we will have Mr. Longstreet,

6 counsel for the member, give his information, and then you

7 would give your opinion, is that correct, that would be

8 the procedure?

9 MR. LE VAY: That would be fine.

10 Mr. Coleman could reply to anything arising out of

11 Mr. Longstreet's submissions first if he wished.

12 THE CHAIRPERSON: Okay. Thank you. Okay,

13 Mr. Coleman, would you please proceed.

14 MR. COLEMAN: Certainly. Good morning,

15 Mr. Le Vay.

16 MR. LE VAY: Good morning.

17 MR. COLEMAN: Can you hear me?

18 MR. LE VAY: Barely, but I can.

19 MR. COLEMAN: Oh, that's __ I'll try to

20 keep my voice up. By way of background, we have called on

21 behalf of the prosecution an expert witness to give her

22 expert opinion regarding appropriate or inappropriate

23 contact, and we have done that on the basis of a

24 hypothetical scenario which was described to the witness,

25 or set out in a documentary form for the witness prior to

1 the hearing, and upon which she prepared a summary opinion

2 which was provided in advance to counsel for the defence.

3 At this stage, we are at the first stage of

4 the expert witness proceeding, and that is to have her

5 qualified as an expert. We haven't yet reached the

6 opinion stage, and so the members of the panel have not

7 seen the hypothetical situation as was set out for the

8 expert, nor have they seen any summary opinion prepared by

9 the expert.

10 And so the issue we're dealing with here is

11 whether or not this witness is qualified as an expert to

12 give expert opinion evidence, and I've completed my

13 examination in chief, and Mr. Longstreet is now

14 cross_examining the witness with respect to her

15 qualifications.

16 And the line of inquiry I have objected to

17 is a suggestion on Mr. Longstreet's part to the witness

18 that somehow the expert was remiss in her preparations for

19 the hearing because she did not engage in an independent

20 fact finding mission to review documents that may be

21 relevant, presumably the disclosure documents, before she

22 rendered her summary opinion and before she came to the

23 hearing today.

24 And my objection is based on a submission

25 that it would be entirely inappropriate for the expert to

1 prepare for this hearing in that manner, and therefore,

2 it's not a proper question for Mr. Longstreet to suggest

3 to the witness that that's what she should have done

4 before she came to give evidence to the hearing.

5 And I underline the point that we are at

6 the first stage of the expert's evidence, and that is,

7 qualifying her as an expert.

8 We say that her preparations for the

9 hearing are properly based on a hypothetical scenario set

10 out for her and that she should not engage in any

11 independent fact finding mission of her own, reviewing

12 documents that may be amongst the disclosure documents to

13 determine if they're relevant and to decide for herself

14 what the facts of the case might be before she gives her

15 opinion evidence.

16 We say that would be entirely inappropriate

17 for her to do that, and therefore, it's improper to

18 suggest in cross_examination that that's what she should

19 have done to properly prepare herself for this hearing.

20 Now, I have made the point with the panel

21 and with Mr. Longstreet that once this witness is

22 qualified as an expert, if indeed she is recognized as

23 such by the panel, we will then get into the merits of her

24 opinion, and she will be asked to base her opinion on the

25 hypothetical scenarios that have been described to her in

1 advance.

2 The hypothetical scenarios that are put to

3 her on examination in chief, and indeed, hypothetical

4 scenarios that may be put to her by Mr. Longstreet on

5 cross_examination, and if Mr. Longstreet wishes to take

6 the position that the hypothetical scenario that the

7 witness has based her opinion on is entirely inconsistent

8 with the facts of the case, such that it would

9 substantially undermine the opinion, then that may be a

10 course of examination he would embark upon in his

11 cross_examination of the expert.

12 But in terms of the expert, qualified as a

13 witness, the expert should review only the hypothetical

14 scenario that's presented to her. She should not engage

15 in an independent fact finding mission to try to root out

16 on her own the true facts of the case upon which she could

17 then base her opinion.

18 That would be __ that's a role for the

19 panel to engage in, and at the end of the day, the panel

20 will be required to compare the facts as they find them

21 with the scenarios presented to the expert for her expert

22 opinion in the course of the hearing to determine if there

23 is a correlation such as to make the opinion useful to

24 them or not at the end of the day.

25 So just to summarize, then, we say it's

1 improper at this first stage of the inquiry regarding the

2 expert's qualifications to be suggesting to her that

3 somehow she lacks expertise or lacks objectivity because

4 she did not engage in that independent fact finding

5 mission of her own, that she so far based her

6 hypothetical __ or her opinion on the hypothetical

7 scenario presented to her only.

8 We say that's the entirely proper thing for

9 her to do and that it's an improper question and line of

10 inquiry on Mr. Longstreet's part to suggest otherwise. I

11 trust that's a clear summary of the impasse we've reached

12 here, and I would be happy to clarify at this stage if you

13 have any immediate questions.

14 MR. LE VAY: No, I think that's fine.

15 Thank you, Mr. Coleman. Maybe if I could hear from

16 Mr. Longstreet.

17 THE CHAIRPERSON: Mr. Longstreet.

18 MR. LONGSTREET: Thank you. The objections

19 raised as in my cross_examination were essentially based

20 on what was advised me by the witness and before this

21 panel. And she indicated to me that she received a college

22 prepared __ prosecution prepared fact scenario,

23 hypothetical.

24 She states that she takes this fact

25 scenario, and based on her background, her credentials,

1 and she gives an opining. The question was put to her,

2 well, aren't you supposed to look at relevant documents to

3 flush out this fact situation, and she agreed.

4 She also stated that, given further facts

5 to flush this out and the facts that she received from the

6 college would not affect her opinion as presented in what

7 we're yet to see. I asked her, I said, well, you know one

8 of the duties in being an expert, and I referred to the

9 nurse __ A Nurse's Practical Guide to the Law, it's an

10 Ontario text, with N.E. Grant, RN, LLB, and Eileen A.

11 Ashman, RN, LLB as being co_authors.

12 And it stipulates in this text, Ensure

13 access to further information as may be required. It also

14 states at that same page 30, it says, In addition to the

15 above __ and I'm reading from this paragraph __ The nurse

16 as an expert witness should ensure that he or she is

17 adequately prepared to give the expert's evidence

18 requested. In addition to being prepared by counsel as a

19 witness, the nurse should research the issue or issues to

20 the extent that may be required, including refreshing or

21 upgrading knowledge of a particular condition or practice.

22 This situation, as a professional, as an

23 expert coming here and asking Mr. Coleman, asking that the

24 court give credence to opinion evidence, that's what this

25 is all about is opinion evidence, that opiners, before

1 they're qualified as an expert, have an obligation to look

2 into the fact scenario so as to give a report, an opining

3 that parallels as closely as possible, it only makes

4 sense, and it demands this, to ensure fairness in this

5 fact situation.

6 And the reason for that being, as indicated

7 to the counsel, if the report is not on all fours with the

8 issue before this panel, then the panel should not accept

9 this expert's opinion due to the fact that it is

10 irrelevant, non germane, doesn't pertain to the scenario

11 that the board is called to adjudicate upon. And to

12 ensure fairness to the accused whose livelihood is at

13 stake.

14 Now, we're not asking the lady to do an

15 independent fact finding scenario. All we're asking that

16 she do is to apprise herself of the facts behind this.

17 And she didn't. She didn't look into anything behind this

18 other than a nine paragraph fact scenario that was given

19 to her by Mr. Coleman, and in short, didn't look behind

20 anything whatsoever.

21 And in short, I don't want, as counsel for

22 this accused, in cross_examination, to assist the Crown __

23 pardon me, Mr. Coleman, in making up his case by putting

24 the true facts, in effect, to her. It will then take away

25 the whole purpose as found in not only the Ontario Rules

1 of Procedure, but also in the Regulated Health Professions

2 Act, the expert opinion that is to be delivered and

3 delivered in a timely fashion.

4 In other words, things that will have to be

5 responded to in cross_examination, do what we have to to

6 run the gauntlet, the inequitable, unfair gauntlet of

7 having to cross_examine the expert on __ in areas that are

8 totally irrelevant and to assist my friend in perhaps

9 allowing his witness to stumble through and give opinions

10 on the true fact situation.

11 And whether or not this witness would be

12 here to give this evidence if she had been apprised of

13 parallel facts in a hypothetical situation is a situation

14 where I don't think if the rules are practiced, nor the

15 Regulated Health Professions Act, is provided for.

16 If you're going to call an expert, that

17 expert should, in effect, be germane. Otherwise, it's

18 unfair, not only to the accused, but also to the panel.

19 Those are my comments. Thank you.

20 MR. COLEMAN: If I may respond, Mr. Le Vay.

21 One is that my record of the witness's response may not be

22 identical to what Mr. Longstreet reported to you. I have

23 the line of inquiry going along these lines, and I don't

24 purport for a moment to have these words verbatim, but she

25 was asked a question about what documents she reviewed

1 before she came to the hearing, and she indicated that she

2 had reviewed the hypothetical scenario only.

3 She was asked if it was not necessary to

4 review all documents that may be relevant __ or all

5 necessary documents, I think was the phrase. And the

6 witness indicated that it was not necessary, if the

7 documents were not relevant, that they might be relevant

8 if she was being called upon to comment on the specifics

9 of an actual situation, rather than a hypothetical

10 situation, then it might be different.

11 And then the suggestion was made to the

12 effect that she should have examined or requested for

13 examination the documents herself, and as Mr. Longstreet

14 suggests, that she should have apprised herself as to the

15 facts behind the case.

16 And the witness clearly said that she could

17 give her opinion on the basis of the hypothetical

18 situation only and that it was not necessary for her to

19 have those __ the other documents for her to make that

20 opinion since her opinion is based on the hypothetical.

21 Now, the quote that Mr. Longstreet has read

22 from seems to be a reference to the importance of a nurse

23 brushing up on a particular nursing practice or an area of

24 expertise or standards, if that's what she is being asked

25 about, before she gives her opinion, and we wouldn't have

1 any objection to a line of questioning along that __ along

2 those lines.

3 But what Mr. Longstreet is suggesting is

4 that the witness should independently make efforts to

5 apprise herself as to the facts behind the case, and we

6 say that's entirely inappropriate, and it's improper for

7 him to be suggesting to her that that's what she ought to

8 have done. But again, we note that if Mr. Longstreet has

9 concerns about his cross_examination and whether or not

10 the hypothetical scenario was a fair description of the

11 facts as they may be found in this case, we say that's

12 properly a line of inquiry once the witness has been

13 qualified as an expert and she has rendered her opinion on

14 the basis of the hypothetical.

15 Then Mr. Longstreet will have the choice of

16 either not cross_examining her at all, if that's what he

17 chooses to do, and to make an argument at the end of the

18 case that the hypothetical that the expert commented on

19 and gave her opinion about simply bears no relationship to

20 the facts of the case, that's a position he can take; or

21 he has the option of cross_examining her with respect to

22 what he thinks are the accurate __ the facts accurately

23 stated as they will be so found at the conclusion of the

24 case and trying to elicit from the witness a different

25 opinion.

1 He has that option as well. And he's going

2 to have to make that choice when we get to that part of

3 the proceeding. But we simply say that it's improper for

4 Mr. Longstreet to suggest to the expert that she should

5 have independently attempted to apprise herself as to the

6 facts behind the case before she rendered a summary

7 opinion on the basis of the hypothetical and before she

8 came to this hearing.

9 We say that would be improper __ it would

10 be improper for her to do that. It's improper for

11 Mr. Longstreet to suggest that that's what she should have

12 done and that she is somehow remiss for not so doing. And

13 I think that concludes my comments.

14 MR. LE VAY: All right. Well, members of

15 the panel, the issue that you have before you is one that

16 deals with opinion evidence to be provided by an expert,

17 and so what I would first like to direct you to is the

18 purpose for such evidence.

19 The purpose for such evidence is an expert

20 may provide you with an opinion in order to assist you

21 with the matter of fact where that issue of fact is

22 technical, scientific, or complex and requires an expert

23 in order to assist you with the factual findings.

24 Where an expert is called, the first issue

25 which is raised is whether that expert is qualified to

1 give the opinion in question, in other words, whether the

2 expert has the necessary expertise in the area in which

3 the evidence is proposed to be introduced.

4 That is the stage that you are at at this

5 point, and the usual practice would just be to look at the

6 issue in respect of which the expert was being called and

7 determine whether the expert's qualifications qualified

8 him or her as an expert in that field sufficient to

9 provide you with the opinion assistance that I've

10 described.

11 So that's usually as far as the inquiry

12 really go at this stage, and in my submission to you, the

13 line of cross_examination that Mr. Longstreet has gotten

14 into at this point is outside the bound of that particular

15 issue. The issue that Mr. __ the issue that the question

16 has raised, however, would get dealt with once the

17 expert's opinion was gotten into, and so let me comment or

18 provide my advice on the issue which has been raised.

19 An expert can state his or her opinions

20 based upon firsthand knowledge. One example would be if

21 the expert had examined a patient; another example may be

22 if an expert had sat through the evidence already given

23 before you and so was able to provide an opinion based

24 upon that.

25 More often, however, an expert's opinion

1 will be based upon assumed facts, and that is, facts that

2 are given to the expert by way of hypothetical in advance

3 of the hearing, and the expert is asked to assume those

4 facts to be true and provide an opinion based upon that

5 assumption or hypothetical.

6 And it's only normal, given the rules in

7 the Regulated Health Profession's Code, for that to be the

8 case, because as you know, experts have to deliver an __ a

9 summary of their opinion in writing in advance of the

10 hearing, and they can't know what the evidence is going to

11 be at the hearing in advance of it, and so your job, where

12 the opinion is based upon a hypothetical scenario or an

13 assumed set of facts, is to ensure that you determine

14 after the evidence is in that the facts necessary to

15 support that opinion have been proved before you by way of

16 other witnesses or documents.

17 If those facts have not been proven or not

18 been proven in part, then you will have to assess whether

19 the necessary facts have been proved in order to give some

20 cogency or merit to the expert's opinion.

21 That's really a matter of determining what

22 has been proved before you in the hearing, the matter of

23 assessing the expert's evidence if she is in

24 cross_examination, to what degree the expert's opinion is

25 founded upon or determined upon particular elements of

1 evidence which has been assumed and either have or have

2 not been proven.

3 And so in summary, I would tell you, in my

4 respectful submission, based upon what you've heard, is

5 that there is no requirement for an expert to

6 independently investigate or review facts. An expert may

7 give an opinion based upon a hypothetical or assumed set

8 of facts, but when that does occur, it is your duty or

9 obligation to carefully examine again whether those facts

10 have been proved and to what degree they haven't, and to

11 determine whether there is any merit or cogency in the

12 opinion that you've heard.

13 So subject to questions from the panel,

14 that's my advice, and you may wish to ask Mr. Coleman and

15 then Mr. Longstreet to comment upon my advice.

16 THE CHAIRPERSON: Are there any questions

17 from the panel? There are no questions from the panel.

18 Okay, I'll ask Mr. Coleman first to comment.

19 MR. COLEMAN: Just a brief comment, Mr. Le

20 Vay. I think we left you a bit in the dark as to the

21 substance of the case, and I don't think it will impact

22 upon your hearing, but what's at issue in this case is, as

23 set out in the notice of hearing, an allegation that the

24 member fostered and maintained a personal relationship

25 with a client which in the circumstances would reasonably

1 be reviewed by members as misconduct that is disgraceful,

2 dishonourable, or unprofessional. That's the kind of case

3 we're dealing with here. It's not a standards case on a

4 particular procedure, and I simply offer that to the mix.

5 THE CHAIRPERSON: Thank you, Mr. Coleman.

6 Mr. Longstreet?

7 MR. LONGSTREET: Mr. Le Vay, I thank you

8 for your dissertation that you made, but the issue that

9 was raised in the cross_examination, and I don't think

10 you've addressed, was the equity of it all and the rights

11 of this panel to admit as an expert an individual who has

12 taken only that which __ only that which the College has

13 presented to it in a fact scenario and accepting it

14 holus_bolus and a fact scenario __ a fact scenario that is

15 __ is not equitable, and whether or not the members of the

16 board would be able to look at, in effect, the objectivity

17 of the expert.

18 MR. LE VAY: Well, let me reply directly to

19 that, Mr. Longstreet, because I had thought I had, but I

20 will try to be as clear as I possibly can.

21 At the stage of the qualification of the

22 expert, the panel's only concern should be is the expert

23 qualified professionally and by way of professional

24 experience to offer an opinion on the subject matter which

25 has been put forward as the basis of his or her expertise.

1 That is the only issue, and the issue which you raise is

2 not relevant to that inquiry.

3 Again, once the expert is qualified and the

4 panel does determine that the expert is qualified to give

5 evidence on that particular subject matter, then the panel

6 will have to assess the hypothetical fact scenario which

7 has been put to the expert, determine whether that fact

8 scenario has been proven in evidence before the panel by

9 way of other witnesses and documents, and once the panel

10 has made that determination, determine what weight, if

11 any, to give to the opinion. I hope, sir, that that's

12 clearer for you.

13 MR. LONGSTREET: I have no further

14 response. Thank you.

15 THE CHAIRPERSON: Thank you very much,

16 Mr. Le Vay.

17 MR. LE VAY: You're welcome.

18 THE CHAIRPERSON: Thank you.

19 MR. LE VAY: Goodbye.

20 THE CHAIRPERSON: Okay, the panel will

21 allow the objection as it stands, and I think this would

22 be an opportune time to break for lunch until 1:30, and

23 then we'll continue with the hearing at that time. Thank

24 you.

25 ___ Proceedings Adjourned

1 ___ Proceedings Resumed

2 THE CHAIRPERSON: Mr. Longstreet, you were

3 in the process of cross_examining a witness.

4 MR. LONGSTREET: Yes.

5 THE CHAIRPERSON: So if we could bring the

6 witness in, please, Jackie.

7 (WITNESS RESUMES)

8 THE CHAIRPERSON: I would remind you you're

9 still under oath.

10 THE WITNESS: Yes.

11 THE CHAIRPERSON: Mr. Longstreet.

12 MR. LONGSTREET: Thank you.

13 CROSS_EXAMINATION BY MR. LONGSTREET:

14 (Cont'd)

15 Q. You have a list of approximately 11,

16 give or take one, of your responsibilities that you have

17 at the present time. And you indicate that you spend

18 about 60 hours a week. Where do you allocate the majority

19 of your time in these 11 or so items?

20 A. My concentration currently is in

21 proposal writing. That's my __ the major thrust of my

22 work at the current time. Prior to that, the major thrust

23 of my time would be spent on policy and procedure

24 development, the quality aspects would be delegated to the

25 staff for me to oversee, and the professional issues would

1 be the other piece that took on a larger component as I

2 took over the chair of the professional advisory

3 committee.

4 Q. So professional advisory, I know what

5 they mean in the dictionary, but what do they mean?

6 A. The purpose of the committee and the

7 terms of reference for the professional advisory committee

8 is to deal with practice issues related to the various

9 levels of staff within the organization and make

10 recommendations to the board on those practice issues as

11 it relates to the various disciplines that work for

12 Comcare.

13 Q. So the various disciplines, and you've

14 indicated there are what, four different disciplines that

15 you have?

16 A. We have both unregulated and regulated

17 staff. The disciplines __ we have more than four

18 disciplines.

19 Q. How many disciplines do you have?

20 A. Occupational therapy, physiotherapy,

21 social work, we have __ of course, medicine falls under

22 that, but they are advisory itself, we have a medical

23 consultant, and nursing is the other aspect, and then the

24 unregulated, we have certified health care aids and home

25 support.

1 Q. So what's that, about ten?

2 A. I would say eight altogether.

3 Q. Now, in your day_to_day functions,

4 September '95 to present, three years almost, two and a

5 half, in any event, how often do you get to go out to

6 Mrs. Jones' house and see Mrs. Jones as to the actual care

7 she is getting, her bric_a_brac and bouquets, complaints,

8 how often are you involved in that?

9 A. Part of what I was doing under quality

10 management was going out and interviewing clients, and so

11 if you're suggesting that if I'm in the home visiting

12 clients, how often that occurs, probably my last visit

13 would have been about six months ago, though.

14 Q. And before that?

15 A. It would probably occur about every

16 other month.

17 Q. And at the present time, though, do you

18 have any __ anything in your diary, I have to go see

19 Mrs. Jones about her treatment that she is receiving for

20 her injured back or whatever?

21 A. Today?

22 Q. Do you have anything in your diary?

23 A. In my diary today, no, not this week,

24 no.

25 Q. Your position basically is almost like

1 a troubleshooter between the board and your supervisory

2 staff below you?

3 A. It encompasses more than

4 troubleshooting.

5 Q. That's what I'm saying, then, you

6 basically state that amongst the 11 different functions

7 here, that mostly now you're into proposal writing, that

8 takes up the majority of your time?

9 A. That's correct.

10 Q. And before that, you were in the

11 development and review and policies and procedures, and

12 that was where the bulk of your time was spent?

13 A. Yes. In relation to the other work

14 that I was doing, that would be the majority, yes.

15 Q. Now, you mentioned that you have a high

16 school diploma. Now, been a long time since I was in high

17 school, but I went to Grade 13. What did you do?

18 A. I took part of 13 and then opted to go

19 on into nursing at that time.

20 Q. So what you have, then, is Grade 12?

21 A. I have completed Grade 12, yes.

22 Q. And then you went into nursing, right?

23 A. That's correct.

24 Q. And a diploma nurse program at St.

25 Lawrence College, is that a community college setting?

1 A. Yes, it is.

2 Q. And so you have, in effect, a community

3 college nursing diploma?

4 A. That's correct.

5 Q. And this nursing unit administrative

6 diploma, 1984, '85, that was basically, what, done in

7 hospital and correspondence?

8 A. It was done as a correspondence course.

9 It had to be approved by the hospital at that point to

10 take the course.

11 Q. So you were working for the hospital at

12 that time or what?

13 A. I was working for the hospital when I

14 started the course. I was on maternity leave at the

15 completion of the course.

16 Q. Okay. And so you took, in effect, what

17 appears to be, what, a two year __ or a three year nursing

18 diploma __

19 A. It was __

20 Q. __ with the community college?

21 A. It was a two year program at that time.

22 Q. And outside of September '84, August

23 '85, you've had no other formal academic training in any

24 university, college in accredited __ in Ontario or

25 elsewhere?

1 A. I have not taken any formal courses

2 other than what's on my resume. I have taken workshops

3 and conferences that continue in the field of work that I

4 am doing.

5 Q. Do you have any academic background

6 from any community or university in ethics, are you __ you

7 don't have a Bachelor of Arts in ethics or anything like

8 that?

9 A. I don't have a Bachelor of Arts in

10 ethics. However, the ethics component of nursing is part

11 of the basic program in nursing.

12 Q. So that's your diploma course, that's

13 what you received at the community college?

14 A. That's correct.

15 Q. So you didn't go beyond what any other

16 nurse goes through in your community college nursing on

17 ethics; is that correct?

18 A. I did not take any formal training

19 other than what was in the basic program on ethics.

20 Q. Thank you. And you're in between,

21 then, the board and the CEO, again, I underline that, and

22 your front line supervision?

23 A. Yes, that's correct.

24 Q. Have you ever owned a profit geared

25 corporation in __ for home care services?

1 A. No.

2 Q. Have you ever __ have you ever

3 advocated for your patients to assist them in whatever

4 emotional distraught fashion they're __ whatever they're

5 in to make sure that the health care that they had

6 bargained for in their policy of insurance was given to

7 them?

8 A. Yes.

9 Q. I'd like to hear about that.

10 A. As part of my responsibilities as an

11 office manager, and at that time, it was a smaller

12 operation in Kingston, so the roles and responsibilities

13 of an office manager encompasses anything from going out

14 and providing the care to overseeing the care to the

15 administrative responsibilities.

16 As an office manager, I'm responsible for

17 overseeing, of course, anything that has to do with the

18 insurance processing and investigation related to the

19 funding of care for clients, be it private pay or a

20 combination of public funds and private funds.

21 There have been occasions where the

22 insurance company would look at the needs of the client

23 and ask for additional information related to whether that

24 service was going to be covered by the insurance company

25 or not.

1 The responsibility of Comcare is to

2 document the actual care that we are rendering, provide

3 them with a progress report, and to then wait for them to

4 correspond back. The response in a situation where an

5 insurance company may decide that they need to change the

6 care planning based on the amount of funding that's

7 available, under those circumstances, we would work with

8 the client and the other health care members, including

9 the home care program or what we would call the CCAC, to

10 look at what other options are available, to look at

11 whether all of the documentation was made available to the

12 insurance company to ensure that it was an appropriate

13 decision.

14 Q. And have you ever got into the

15 situation where you had a recalcitrant insurer who wasn't

16 going to pay, wasn't going to fund further treatment,

17 albeit when documented that it should be through the

18 medical evidence that was there and it should be and the

19 insurance company just basically said no? Does your

20 company continue to carry on and to provide the health

21 care for that patient at great financial personal expense

22 to your company?

23 A. We have had a situation personally that

24 I'm aware of where an insurance company had decided not to

25 continue to service. Until we could make other

1 arrangements, we did have to service.

2 Q. You're required to do that in any event

3 before you are let go, that's one of the __ before you're

4 able to get off, right?

5 A. That's correct.

6 Q. You must be there to allow your patient

7 to obtain alternative assistance. There's a requirement

8 by the ethics of your organization, right?

9 A. And by the standards of the College of

10 Nurses when it was nursing care that was involved.

11 Q. So the question is would your company

12 carry the patient to the tune of hundreds of thousands of

13 dollars to try to help this patient through a hard time?

14 A. When we're looking at health care

15 planning, we __ one of the things that I would be looking

16 at from a quality management point of view is risk and the

17 quality aspects. Health care planning would be also

18 looking at the financial resources and whether this was a

19 viable option for the client.

20 And so we would be working very closely

21 with the insurance company, dialoguing back and forth

22 about the needs and the potential care that the client

23 would require in the community. If it's not a viable

24 option, based on the financial situation of the client and

25 the insurance company, then we have to lay out the options

1 for what else the client can do under those circumstances.

2 Q. But the point I'm making is that

3 Comcare does not underwrite the medical services of an

4 individual who finds himself in an extremely litigious

5 situation with their insurer?

6 A. Comcare manages risk to the point that

7 we shouldn't get in that kind of a situation, and if we

8 were to get into that kind of a situation, then we would

9 set up a contingency plan to discuss with all members of

10 the health care team what we can do for this client, and

11 we know that continuing to service this client without the

12 financial backing in the community is probably not a

13 viable option.

14 Q. Comcare is in the business to make

15 money?

16 A. That's correct.

17 Q. And if you got Comcare into that, not

18 being a CEO or anything like that, I gather your CEO would

19 come down and say, We're in the business to make money,

20 Norma, you've got to cut this patient loose, keep within

21 the guidelines of what we have to do, but we're here to

22 make money and cut and move on to something more

23 productive; is that a fair scenario?

24 A. I would suggest that it's a little more

25 complicated than that. It's not a matter that you would

1 just withdraw.

2 Q. I appreciate that you don't just

3 withdraw. You go through the ethics, the requirements of

4 getting out of and extricating yourself so that the

5 patient can carry on on their own while you continue on

6 with Comcare's business; is that fair?

7 A. If it wasn't a viable option, that's

8 correct, it is fair.

9 Q. Now, one statement that you made, in

10 the paragraph under current memberships, you've indicated

11 that you attended, if you had the time, as I understood,

12 if I can paraphrase it, and you delegated others to go in

13 your place instead if you couldn't go. Is that a fair

14 comment?

15 A. Yes, and let me put in context the fair

16 comment. The St. Lawrence College Health and Nursing

17 Advisory Committee was a committee that I was a full

18 fledged member and continue to be a member of while I was

19 the office manager and regional manager of that branch.

20 However, as my responsibilities changed,

21 they still felt that it was important, because of my

22 national and provincial connections and understanding of

23 what was happening nationally and provincially, to keep me

24 on that committee but to understand that I couldn't

25 necessarily attend all those meetings, so Comcare had a

1 seat, and it was delegated that other people would attend

2 those meetings if I was not in town and able to attend.

3 Q. All right. But what I'm getting at,

4 when you talk about delegating, you're talking about

5 delegating others in Comcare to go in your place instead?

6 A. That's correct.

7 Q. So you're talking about current

8 memberships, are these current Comcare memberships or are

9 they current Norma Audrey Johnston memberships, or is it

10 both?

11 A. I can define them, if you would like me

12 to.

13 Q. Perhaps you can, and perhaps you can

14 tell us the period of time you spend there.

15 A. The St. Lawrence College Health and

16 Nursing Advisory Committee was not a Comcare committee.

17 It was a Norma Johnston who worked at Hospice Kingston,

18 who had experience in the community health field, who was

19 a graduate of St. Lawrence College, and who was a

20 preceptor with Queen's University, that's how I met the

21 criteria for __ to sit on that committee.

22 The Coordinators of Continuing Care

23 Committee was a committee that was a Comcare membership

24 committee, and I was there on behalf of Comcare. The RNAO

25 is a membership that I myself have and is irrelevant to

1 Comcare. Again, with the College of Nurses, it's my own

2 membership.

3 The Elder Abuse Task Force was a

4 subcommittee and a group that was pulled together not only

5 for Comcare but for the St. Lawrence College and Nursing

6 Advisory as well as for the Coordinators of Continuing

7 Care, so it was a combination.

8 The Canadian Intravenous Nurses Association

9 was something that I was developing through Comcare, and

10 so I would suggest that it was a personal interest that I

11 had that I had that membership, it was not paid for by

12 Comcare, but it was a membership that I held because of

13 what I was doing with Comcare.

14 The Toronto Association for Quality in

15 Health Care was a membership that I held because of my

16 responsibilities in Comcare and was paid for by Comcare.

17 The Ontario Home Health Care Providers Association was a

18 position that I was appointed to by the president and CEO

19 of Comcare.

20 The Canadian Home Care Association was a

21 membership that Comcare belonged to and that I attended

22 meetings as a delegate from Comcare. And Home Support

23 Canada was a personal membership that I had. Although it

24 was in connection with Comcare, it was a personal

25 membership.

1 Q. And globally, how much time in a month

2 do you spend in these current memberships, excluding, of

3 course, the memberships __ the College of Nurses of

4 Ontario and the Registered Nursing Association of Ontario,

5 which are basically your professional memberships,

6 correct?

7 A. That's correct.

8 Q. Excluding those two, how much time do

9 you spend?

10 A. St. Lawrence College is a quarterly

11 meeting, it's once every three months, and it would

12 probably take three hours out of that day. The

13 Coordinators of Continuing Care is a committee, as I said,

14 that now I'm not as active in it because that's a

15 committee that a local administrator takes responsibility

16 for; however, I still am receiving minutes to that and

17 considered a member. So therefore, that committee I spend

18 no time with now.

19 The Elder Abuse Task Force, I did my piece

20 as a chairperson. I then relinquished my chair position

21 when I got too busy to continue my responsibilities and

22 continue to attend as necessary, but I would suggest that

23 I haven't been there __ I know that I haven't been there

24 probably in the last year.

25 The Canadian Intravenous Nurses

100

1 Association, as I mentioned, I'm no longer a member of

2 that. The Canadian Association for Quality in Health

3 Care, I get their newsletters, and I attend their annual

4 conferences, and that's my responsibility there. The

5 Toronto Association for Quality in Health Care is a

6 defunct membership now.

7 The Ontario Home Health Care Providers

8 Association, as the vice_president, I was attending

9 meetings on a monthly basis, as well as subcommittee

10 meetings. I'm no longer the vice_president and I attend

11 subcommittee meetings, and they could be such things as

12 teleconferences or face_to_face meetings, and they occur

13 about once every two months.

14 The Canadian Home Care Association, those

15 meetings have been picked up by my president and so I'm

16 not attending those any longer, unless she has requested

17 it. Home Support Canada, the responsibilities there was

18 basically I'm not attending the meetings; I would be

19 getting any literature that they send out.

20 Q. So can I basically state that presently

21 when you talk about current memberships, you're capable of

22 delegating most of them, and at the present time, as I

23 understand you to say, you're working 60 hours a week, you

24 have very little time for this?

25 A. At this point, my responsibilities are

101

1 for proposal writing, and as I said, with the merger of

2 Comcare and Med Care, there has been some changes in what

3 my proportion of work is within that responsibility.

4 Q. When did the __ when did the merger

5 occur?

6 A. It occurred May, June of '97.

7 Q. Have you got published any written

8 articles in any nurses magazines, medical magazines, or

9 anything like that?

10 A. No.

11 Q. And have you ever written any

12 dissertations on __ for like distribution with respect to

13 ethics?

14 A. Not for like distribution, no.

15 Q. When you are a director at Comcare,

16 when you spoke about this __ your activities in 1992 to

17 1995, in Kingston full_time, you were not a CEO?

18 A. That's correct, I was not.

19 MR. LONGSTREET: Thank you.

20 THE CHAIRPERSON: Mr. Coleman, do you have

21 any questions for re_direct?

22 MR. COLEMAN: Just take a moment, Madam

23 Chairperson. I have no questions, Madam Chairperson.

24 THE CHAIRPERSON: Do any members of the

25 panel have any questions? Thank you for your testimony,

102

1 and I believe you are free to go.

2 MR. COLEMAN: At least until we make a

3 determination if she is to be admitted as an expert. I

4 think maybe the way to proceed would be for us to make

5 submissions on that point.

6 THE CHAIRPERSON: I apologize.

7 MR. COLEMAN: Unless Mr. Longstreet is

8 accepting her qualifications as an expert, we would now

9 make submissions on whether she should be accepted by the

10 panel as an expert, and then if she is accepted, she'll

11 have her expert evidence to present.

12 THE CHAIRPERSON: Okay, so first the

13 question is whether you accept her as an expert.

14 MR. LONGSTREET: No, I don't.

15 THE CHAIRPERSON: You do not.

16 MR. LONGSTREET: I don't, and I'm asking

17 the board not to accept, and I think how this works, and

18 Mr. Coleman, no doubt, can correct me if I'm wrong,

19 Mr. Coleman's objective and duties herein is not only to

20 go through this lady's curriculum vitae but to point out

21 to the members of the board why you should qualify this

22 lady to give opinion evidence, and then I will have the

23 right to argue against, and I suppose he has the right to

24 sum up after.

25 THE CHAIRPERSON: Just a point of

103

1 procedure, is it appropriate for Miss Johnston to stay

2 while these summations are going on?

3 MR. COLEMAN: I think she can be released.

4 I'm not sure it matters either way, but if she wishes to

5 have a break while we're completing our submissions, that

6 might be in order.

7 THE CHAIRPERSON: Do you have any

8 objections, Mr. Longstreet?

9 MR. LONGSTREET: I have no objections

10 whatsoever.

11 THE CHAIRPERSON: Miss Johnston, you are

12 free to go, but stick around.

13 THE WITNESS: Yes.

14 (WITNESS STANDS DOWN)

15 THE CHAIRPERSON: Okay, so Mr. Coleman, you

16 are going to do your submission?

17 MR. COLEMAN: Certainly. We request that

18 the panel recognize Ms. Johnston as an expert capable of

19 providing opinion evidence to you on the subject matter of

20 the __ of this particular case.

21 The fundamental question is that of whether

22 or not the expert can, through her opinion evidence,

23 provide you with any assistance in determining the matters

24 in dispute in this case.

25 And of course, for identification of those

104

1 issues that will be in dispute, we turn to the notice of

2 hearing, which is Exhibit 1, and you will know that the

3 allegation or the allegations of __ against the member are

4 that she improperly fostered and maintained a close

5 personal relationship with Ms. Terrick, who is the mother

6 of the little boy receiving the nursing services in care.

7 And we allege in the notice of hearing,

8 Exhibit 1, that this improper fostering and maintaining of

9 a close personal relationship was conduct or an act

10 relevant to the performance of nursing services or

11 relevant to the practice of nursing that would reasonably

12 be regarded by members as disgraceful, dishonourable, or

13 unprofessional.

14 And so that's it in a nutshell. The

15 fostering and maintaining of a close personal

16 relationship, would that amount to misconduct that would

17 reasonably be regarded by members of the profession as

18 disgraceful, dishonourable, or unprofessional.

19 Coming back to the assessment of Miss

20 Johnston as an expert who is qualified to give you or

21 provide you with expert opinion evidence, the fundamental

22 question for you is would her evidence be of assistance to

23 you as panel members in coming to your determination as to

24 whether or not the conduct in question would reasonably be

25 regarded by members of the profession as disgraceful,

105

1 dishonourable, or unprofessional.

2 Now, turning to Ms. Johnston's

3 qualifications, we see that she has a diploma degree in

4 nursing, and she has some additional training in nursing

5 unit administration, where she holds a diploma in that as

6 well. She completed her diploma nursing program in the

7 early 1980's and her nursing unit administration diploma

8 in the mid_1980's. And so she is a trained and qualified

9 nurse and a member of the College of Nurses.

10 Where we say her expertise in particular

11 flows from is her employment experience. We say that

12 Ms. Johnston has a degree of experience from her

13 employment that would make her opinion regarding the type

14 of conduct in question in this case useful to you as panel

15 members, and in particular, if you look first to her

16 general experience as a ward nurse at Kingston General

17 Hospital, which she did from 1981 to 1987.

18 We then have and more importantly have her

19 experience with the organization Comcare, which is a

20 private agency, which provides, amongst other things, home

21 care for persons in need of nursing services.

22 From 1987 to the present, slightly more

23 than ten years, we see that Miss Johnston has been an

24 office manager and regional supervisor for Comcare with

25 respect to the offices in Kingston and Brockville, in

106

1 which setting she was responsible for supervision of front

2 line staff and assessment of client needs.

3 We have, from the period 1992 to the

4 present, that is, March of 1992 to the present, a period

5 of almost six years, an assigned responsibility in this

6 organization for quality management; and as Miss Johnston

7 indicated, quality management included a number of issues,

8 including professional conduct, professional standards

9 issues.

10 And she has been responsible for providing

11 quality management, coordination, and direction first to

12 staff as a coordinator from Kingston for the organization

13 Canada wide, that is, the direct coordinator and provider

14 of the quality management, and more recently, as the

15 director of corporate quality management, which entails

16 the same responsibility nationwide but working with a

17 subordinate staff.

18 So she has had, as she has described it,

19 the responsibility for and occasion to deal with

20 professional standards issues, including the particular

21 kind of issue that's raised in this case, that of

22 maintaining appropriate boundaries, as we call them, in

23 relationships between nursing staff and clients.

24 And we say in all of those circumstances,

25 both with respect to her training and her hands on

107

1 experience as a front line manager and then as the quality

2 management coordinator and then director, she has

3 experience in this field which would make her __ her views

4 and her opinion regarding the conduct in question that

5 would be of assistance to the panel.

6 And for that reason, we ask that you

7 recognize her qualifications as an expert so that she can

8 provide you with her expert opinion regarding the subject

9 matter of this hearing. It will be your assessment at the

10 end of the case, even if you do accept her and identify

11 her as an expert qualified to give expert evidence, it

12 will still be your job at the end of the case to assess

13 the merits of that expert evidence.

14 You are not necessarily bound to accept it

15 just because you accept her or she is qualified as an

16 expert. It is still your function to assess that evidence

17 and to apply it to the particular facts of this case.

18 All we're asking at this point is that her

19 qualifications as an expert be accepted by this panel, and

20 we note that another panel of the discipline committee of

21 the College of Nurses has, in fact, accepted her

22 expertise, and she has given expert opinion in that

23 proceeding. We ask you to do the same and that we move on

24 to hearing her expert opinion regarding the matters in

25 dispute.

108

1 THE CHAIRPERSON: Mr. Longstreet.

2 MR. LONGSTREET: Thank you, Madam

3 Chairperson. I heard the speaker phone today, where

4 Mr. Le Vay basically said that you want an expert for

5 something that's very technical, scientific, or

6 complicated. My silence after that is pregnant with

7 technical, how? Scientific, certainly not. Complicated,

8 no.

9 Now, I see one, two, three of the members

10 have nursing degrees, and with your accumulated years in

11 the business, I don't see where you need an expert in

12 effect, just because they put an expert in, I don't think

13 you need an expert, because I don't see where, to follow

14 Mr. Le Vay's statement, there's nothing technical here or

15 scientific and there's nothing complicated here.

16 Now, the only other thing that I can see is

17 that the expert is being called to do your job for you,

18 but I am loathe even to say that because I don't see how

19 ever else that this expert is being called because, again,

20 it's not technical, it's not scientific, and it's not

21 complicated.

22 You have a Grade 12 individual, you have a

23 community college nurse who has worked in a hospital for a

24 number of years and then began working for Comcare. She

25 has approximately 1,000 nurses or personnel under her.

109

1 Her position is __ she is upper middle management, she is

2 not on the board, she is not a CEO.

3 She doesn't compare with what we have here.

4 She doesn't have any training in ethics per se. She

5 doesn't have any degrees in ethics. She was a nurse in a

6 hospital and indicates that she would work for her patient

7 in an insurance fight, the most critical part of her

8 evidence that came out would be in my cross_examination

9 where she said, Oh, yeah, I've gone to fight with

10 insurance companies or whatever, but the bottom line is if

11 the insurance company took an implacable position, she

12 didn't have the right as a CEO to keep on underwriting

13 this patient.

14 Comcare, in effect, is in the business to

15 make money. And she is in the business to make money for

16 Comcare. You recollect when she talked about mentoring,

17 well, she was mentoring as a nurse in '85, and she took

18 that skill in mentoring, and she has taken it into and

19 it's another aspect of Comcare that provides more funding

20 for Comcare.

21 She is a paper person. She is a person to

22 make sure that the members of the board see that the

23 organization stays in the black, no red, no red here,

24 please. And you didn't hear of her standing up and

25 saying, I've dealt with people, and I've gone to fight

110

1 with them, and I've abdicated for their rights to

2 insurance companies when down and out. You didn't hear

3 any of that.

4 How does she represent whatever was being

5 talked about in the evidence before that you've heard from

6 Mr. Terrick and Mrs. Terrick? She might be very, very

7 well voiced in operating her company's business, but is

8 she an expert in ethics, no, I don't think __ and I say it

9 with complete respect of her that she has any, any special

10 qualifications above and beyond what the three of you

11 people have here who are members of the nursing

12 profession.

13 I'm sorry, I don't know the backgrounds of

14 Mr. Slater and Mrs. Wetherall, but I see three individuals

15 that look like they've been in the business of nursing for

16 quite awhile, and I bet if you put the years together,

17 probably more expertise and experience than she has in the

18 particular field.

19 So the question, so straightforward, she's

20 not a CEO, never been a CEO, never owned a company that

21 provided home care services, she's never really gone to

22 fight an insurance battle for anybody, she has never __

23 Comcare doesn't underwrite, they'll go along for awhile,

24 but if funding is not available, they cut them loose and

25 jettison the problem.

111

1 As indicated, and Mr. Coleman indicated,

2 that this is about ethics. We're here to talk about

3 ethics and about nurses' relations with their clients and

4 the ethics therein. He says this is all about ethics,

5 nurse and supervision thereof, of nurses.

6 Not once did we hear this lady indicate

7 about __ in her expertise was that dealing with the

8 families or the nurses and her dealing with her nurses and

9 the actual individual that required the care. Where in

10 there does this lady indicate that she has the expertise

11 in dealing with the families as opposed to the actual

12 person that needs care?

13 She talked about risk issues and

14 development of new policies and procedures. New policies

15 and procedures for what? I don't want to cross_examine

16 her and have her tell us all about this. She has got to

17 tell you, what policies, what procedures, and what

18 proposals is she writing.

19 Do I have to cross_examine her and ask her,

20 just because she is doing all of these things, they all

21 sound mighty important, but listen to them, there's a

22 hollow ring of nothing there, because I don't know what

23 she is talking about and neither do you and neither does

24 Mr. Coleman, or else, you know, he'd be telling you what

25 it's all about.

112

1 You say proposal writing, we're talking

2 about proposal writing about the ethics of how this is to

3 go, how this is to do, what you do in this kind of a

4 situation, we don't have that, nothing. So where do you

5 put the quotations around the word expert there? I don't

6 know.

7 Not much experience and background for a

8 patient advocate. Again, no technicality, not scientific,

9 it's not complicated. Hasn't talked about any of the

10 ethics, how the ethics in the nurses organization worked,

11 and didn't deal with the codes of ethics that are

12 recognized in Canada and the United States, hasn't given

13 you anything like that at all, as to why she should be

14 able to stand up and tell you __ and opine, point the

15 finger, opine, and have you accept this.

16 She comes __ she comes and tells us about

17 her experience in the field, the hard knocks, I suppose,

18 after school becomes the __ we get into the hard knocks of

19 the business. In that, she hasn't gone around and said

20 anything in there about where it gives her ethical

21 understanding above and beyond what's normal.

22 What's __ there's nothing there. She

23 doesn't even labour on that issue. The only time she

24 laboured on any issues whatsoever when the evidence was

25 led by Mr. Coleman, and nurse supervision, nurse

113

1 supervisory, what the nurses are supposed to do. And

2 didn't go beyond that. She just yes, took the led

3 evidence by Mr. Coleman, doesn't say __ it doesn't give

4 any particulars.

5 When I take a look at the expert, they come

6 with __ there's their curriculum vitae, there we are,

7 there's my academic training, there's my background of

8 what I've done, here's the studies that I've gone from

9 here to there and everywhere, the papers I've written, the

10 magazines published, the book I wrote.

11 He's talking to someone up there, the

12 judge, and judges, in a situation like that, might have

13 common knowledge in the field, a little bit maybe, if

14 they're lucky, but the judge, generally speaking, you

15 know, for an expert witness, the judge __ the lawyer who

16 practiced in administrative law or real estate or criminal

17 law or something gets into a situation that's totally out

18 of his bailiwick, totally out of his mental __ totally out

19 of his mental prowess.

20 That is where the trier of the fact needs

21 an expert to say in the field, This is the norm, and this

22 is how it works, Judge. And the other side has the right

23 to do the same thing, and you've got experts punching at

24 each other. Figuratively.

25 One, two, three people here together, maybe

114

1 even singly, have a lot more experience than what we have

2 here. Do you need somebody to tell you what should be

3 done in a fact situation? You heard the evidence, why?

4 It's not that __ it's not that you're in a blindsided

5 situation and you need some guidance.

6 You're getting a blind side of the

7 situation, and you call Mr. Le Vay up. And Mr. Le Vay

8 tells you, Okay, after you've had your chat with him, this

9 is the area of the law, this is how it works, etc., and he

10 gives you his independent legal advice, and that's what

11 he's retained to do.

12 He is an expert, and he advises you, and

13 that's only fair because you don't have that plethora of

14 legal background. Whereas you get into court and the

15 judge has that legal background, he doesn't have to call

16 somebody else about what the procedure is.

17 It's just the lay __ you folks, in effect,

18 you're the nurses, you're the lay people, you've got the

19 common sense and you've got the background. As Mr. Le Vay

20 said, technical, scientific, complicated.

21 Then you can have someone to opine, but to

22 have someone opine what you already know, I don't think

23 that this person has shown that they're an expert and will

24 shed a whole great deal of light to give you opinions that

25 you should think about and should direct yourself with.

115

1 Thank you.

2 THE CHAIRPERSON: Mr. Coleman, do you have

3 any __

4 MR. COLEMAN: Yes, I have some reply

5 comments, members of the panel, Madam Chairperson.

6 Mr. Longstreet and I could not be further apart on this

7 issue, and I hope that our differences of view, at least

8 make our differences clear, maybe no more easier for you

9 to deal with.

10 And I take exception fundamentally to

11 Mr. Longstreet's suggestion that you, as experienced

12 persons of the world, and in particular, experienced

13 members of the nursing profession, are in a position to

14 provide your expert opinion regarding the matters in

15 dispute in this case and that you do not need the

16 assistance of an expert.

17 That is a fundamentally incorrect

18 assessment of the law and of the role that an expert must

19 play in a proceeding such as this proceeding before the

20 discipline committee of the College of Nurses.

21 You must have expert evidence on the

22 matters in dispute, be they nursing standards issues, such

23 as standards of care, or issues of whether or not conduct

24 would reasonably be regarded by members as disgraceful,

25 dishonourable, or unprofessional.

116

1 The divisional court, and I may be

2 mis_citing the case for some reason, the case was __

3 Reddall is the case that springs to mind, but I may not be

4 correctly identifying that case.

5 In fact, the decision of the discipline

6 committee of the College of Nurses was overturned for that

7 very reason, that is, that the members of the discipline

8 committee applied their __ or apparently applied their

9 expertise to making an assessment of the case and reaching

10 the conclusion that they did about improper conduct on the

11 part of the member who appeared before them at the

12 discipline proceeding.

13 Now, the reason why it's inappropriate is

14 not that you don't have some experience of your own or

15 even some expertise of your own in this field. The

16 difficulty is that you apply that expertise, that

17 knowledge, that background in nursing matters, you do it

18 as members of a panel, and you may share your views

19 amongst yourselves, but you don't necessarily share your

20 views with the member or with the prosecution as you

21 are __ or would be arriving at your conclusions.

22 The first indication that we have as to

23 what your assessment of the case is, is, of course, the

24 decision that you render at the end of the case.

25 Now, this raises a fundamental problem of a

117

1 fair proceeding. How could we deal with __ either as the

2 defence, and I think it was the defence in the case I'm

3 thinking of, or the prosecution, how could we deal with

4 your assessment, your professional opinion regarding the

5 evidence that's tendered before you, how could we respond

6 to that, make submissions, and call evidence to address

7 that if that opinion, of course, remains a secret, as it

8 should, until you see fit to publish your final decision

9 in the matter.

10 That is inappropriate, and the courts have

11 held that it is necessary in all but the very clearest of

12 cases for their to be expert evidence placed before you

13 for your information and for challenge by the defence in

14 this case so that the parties get to contribute in all

15 respects to the development of your assessment of the

16 facts and your characterization of the conduct as

17 appropriate or inappropriate conduct and acceptable

18 conduct or professional misconduct.

19 Now, in this particular case, as in most

20 cases before the discipline committee, there is a __ we

21 use the terminology of Mr. Le Vay, and I don't think there

22 was any suggestion in his comments that he was attempting

23 to be restrictive with his use of the words technical,

24 scientific, or complicated.

25 He posed, correctly we submit, the

118

1 appropriate test, and that is would the opinion evidence

2 of this witness be of assistance to you in deciding the

3 case.

4 Now, most obviously expert evidence will be

5 of assistance to you if it's on a technical, scientific,

6 or complicated matter. Those may well be situations that

7 obviously cry out for and clearly demand some expert

8 evidence because you bring no expertise to it whatsoever.

9 However, it isn't sufficient for there to

10 be, for example, one expert in that field on the panel.

11 That does not obviate the need for an expert witness, we

12 say, well, we have some of that kind of __ we have some of

13 that kind of expertise on the panel and that member can

14 share it with other members of the panel.

15 For example, Miss Norris says on a case

16 with similar situation in another case and an expert gave

17 her evidence in that case, and so Miss Norris can share

18 what that expert had to say in that case with the other

19 members of the panel, and so for that reason, it's not

20 necessary for us to hear any expert evidence in this case.

21 Clearly, that would be inappropriate, and

22 we say it's just as clearly inappropriate for you to, as

23 Mr. Longstreet suggests, for you to simply reserve that

24 expert assessment for yourselves to make.

25 If we want to use the terminology of Mr. Le

119

1 Vay, and again, I point out he wasn't attempting to be

2 restrictive in his use of the terminology, what we have is

3 a technical question as to whether or not the conduct in

4 this case of fostering and maintaining a close personal

5 relationship is conduct that is relevant to the

6 performance of nursing services, of the practice of

7 nursing, that having regard to all the circumstances would

8 reasonably be regarded by members as disgraceful,

9 dishonourable or unprofessional.

10 And we say unless it is the very clearest

11 sort of case that that __ the conduct in question would be

12 viewed that way, then you need to hear expert evidence on

13 that point. Ultimately, you will decide what weight to

14 assign to that expert evidence, whether you're satisfied

15 with it, whether you accept it or you don't accept it.

16 But you do need and you must hear expert

17 evidence on that matter. Now, that is why we've called

18 Miss Johnston and why she is proper to you as an expert

19 witness.

20 Now, for a person to be qualified as an

21 expert, it's not necessary for that person to have paper

22 credentials or necessarily to have university training or

23 advanced university degrees in the particular subject

24 matter.

25 One gains expertise as well through

120

1 experience, and we say that Ms. Johnston is a person in

2 the practice of nursing who has gained relevant experience

3 so as to make her a useful witness for you, to provide you

4 with an expert opinion.

5 And although she doesn't have advanced

6 university degrees, she does have that considerable amount

7 of experience, in particular with Comcare, both as the

8 office manager and then as a quality management

9 coordinator and director.

10 And she indicated to you clearly that as

11 quality __ being responsible for quality management, she

12 was responsible for developing policies and procedures

13 that included policies and procedures with respect to

14 professional conduct and that she had, in fact, dealt with

15 the issue of ethical concerns as they relate to

16 appropriate boundaries in personal relationships between

17 nurses and clients, that that is a matter that she has

18 addressed in her experience as a __ and responsibility for

19 quality management with Comcare.

20 Again, it's the __ it's the old hunter as

21 opposed to the university trained expert, the comparison.

22 It is quite appropriate for a person to gain her expertise

23 that would be of assistance to you by way of hands on

24 experience rather than simply by way of university or

25 advanced degree training.

121

1 And we say that it is clear from the CV and

2 from her evidence that Ms. Johnston has the experience

3 that would be of assistance to the members of the panel

4 and that her expert opinion would be of assistance to

5 members of the panel with respect to the issue of the

6 appropriate boundaries of relationships between nurses and

7 clients, in particular, in the home care setting.

8 Now, Mr. Longstreet indicated a number of

9 occasions that she had no particular experience as an

10 advocate or as a provider of health care services who

11 continued to provide those services despite a cut_off of

12 funding by an insurance agency.

13 Well, that's not really the matter in

14 dispute certainly in this case. The question is one of

15 appropriate boundaries in the nurse/client relationship,

16 and we submit that Miss Johnston has the experience from

17 her responsibilities with Comcare and in particular as

18 office manager and as a person responsible for quality

19 management, including professional standards issues, to

20 address the issues that are in dispute in this case and to

21 provide you with useful opinion evidence. Thank you.

22 THE CHAIRPERSON: Thank you.

23 MR. LONGSTREET: One simple point of reply.

24 THE CHAIRPERSON: Yes.

25 MR. COLEMAN: You don't really have a point

122

1 of reply.

2 MR. LONGSTREET: Well, I would like to see

3 the citation. You have asked them to consider a case, and

4 you said what the case is, you didn't know the name, you

5 don't have the cite. Can you get the case, because you've

6 laid this down as a basis of your argument without that.

7 MR. COLEMAN: In fairness to

8 Mr. Longstreet, I think his request is appropriate, and

9 perhaps I could lay my hands on that case quite quickly.

10 THE CHAIRPERSON: Certainly. That would __

11 MR. COLEMAN: If we could take a short

12 break, and we'll have my crack team round that case up and

13 provide a copy with Mr. Longstreet. I assume you'll want

14 to read it first before we __

15 THE CHAIRPERSON: I wonder, too, in terms

16 of procedure, I believe I should have had you do your

17 submission first, ahead of college counsel's submission.

18 Which would then have given you an opportunity to reply,

19 so if that would take place after, is that all right?

20 MR. COLEMAN: Well, I would have thought

21 that I would have made the submissions requesting that she

22 be qualified and recognized as an expert as Mr. Longstreet

23 suggested, and he would then respond to that. We put her

24 forward as an expert and the reasons why we think her

25 expertise should be recognized and she should be entitled

123

1 to give an expert opinion. Mr. Longstreet responded to

2 that and __ I think he was correct in that __

3 THE CHAIRPERSON: Procedure.

4 MR. COLEMAN: __ procedure.

5 THE CHAIRPERSON: Okay.

6 MR. COLEMAN: But let me round up that

7 case, which I will share with him. And perhaps we can

8 send word as soon as we've completed that process.

9 THE CHAIRPERSON: Fine. __ Proceedings

10 Adjourned __ Proceedings Resumed Pursuant to Adjournment

11 THE CHAIRPERSON: Mr. Coleman, you were

12 going to __

13 MR. COLEMAN: I have provided

14 Mr. Longstreet with a copy of the case I referred to. It

15 was the Reddall case. The full title of it is Re Reddall,

16 R_E_D_D_A_L_L, and The College of Nurses of Ontario. It's

17 a decision of the Ontario Court of Appeal.

18 I supplied Mr. Longstreet with a copy, and

19 I can provide panel members with a copy as well. The

20 question having arisen by which of my reference to the

21 case in passing as a support for the proposition that I

22 put forward. I didn't proffer a copy of the case at the

23 time. Mr. Longstreet asked to review a copy, and I've done

24 that.

25 If you wish, I can review the case with you

124

1 to explain the determination and why I say it supports the

2 proposition that I put forward. But I'm in your hands on

3 that point. I realize I've made my submissions. If I can

4 be of assistance to explain the case, I'm happy to do

5 that. But I don't presume to have another go_around.

6 THE CHAIRPERSON: Certainly. Do you want

7 this marked as an exhibit?

8 MR. COLEMAN: It is a case authority. I

9 don't think it needs to be marked as an exhibit. Unless

10 that's your usual custom. Usually with the authorities,

11 we don't mark them as exhibits.

12 THE CHAIRPERSON: Okay. Mr. Longstreet,

13 you have no objection to Mr. Coleman presenting this to

14 us?

15 MR. LONGSTREET: No, it's found in the

16 third edition of the Dominion Law Report so __ it's a case

17 that's decided by the Ontario Court of Appeal, and he's

18 open for the court to consider something like this.

19 MR. COLEMAN: Would you like me to take you

20 through it, Madam Chairperson, just to highlight the

21 points in issue and the conclusion that's reached? This

22 is a case involving incompetence. It's what we would

23 call, I think, a standards case now, and the decision

24 reached by the discipline committee of the College of

25 Nurses that the defence took exception to is set out at

125

1 the bottom of page 62.

2 I'll cut through many of the legalese and

3 take you to the conclusion that was of concern first in

4 the Divisional Court and then the Court of Appeal, and

5 that is right __ the final paragraph at the bottom of page

6 62 where it says:

7 "The most serious finding against the

8 appellant, which appears to be the nub of the

9 decision, and the basis for the revocation of her

10 license, is contained in the sentence: 'Miss

11 Reddall committed serious errors which endangered

12 the life of the patients assigned to her care.'

13 It is common ground, as noted by the Divisional

14 Court, that there was no evidence to support this

15 finding in the record. The discipline committee

16 consisted of five members: a registered nurse as

17 chairman, two registered nursing assistants, and

18 two laymen. The position of the college of nurses

19 before the Divisional Court and before us is that

20 the conclusion that the lives of patients were

21 endangered is based on the committee's

22 'expertise.'"

23 And first the matter was taken, an appeal

24 to the Divisional Court, and Mr. Justice Reid sat in the

25 Divisional Court at that time. Through the indented

126

1 quotations there, you see the concern that Mr. Justice

2 Reid of the divisional court had with that conclusion and

3 that it was a conclusion reached upon which no evidence

4 had been tendered to the discipline committee in the

5 course of the hearing, but the college was defending the

6 conclusion on the basis of it being grounded in the

7 discipline committee's expertise.

8 Mr. Justice Reid's comments in the second

9 paragraph of the indented quotation there indicates the

10 problem as the Divisional Court saw it, and that was:

11 "The consequence is that the Committee's

12 conclusion is unreviewable. We are not experts

13 in medicine or nursing. We cannot, or speaking

14 for myself, I cannot, read the 19 admitted errors

15 nd omissions and decide whether any one or all of

16 them endangered life. I do not say it was not so;

17 I say merely that I am without the capacity to

18 decide it on my own."

19 "The difficulty we face is this. We are

20 asked to review the Committee's decision that

21 Miss Reddall was incompetent. We are asked, as

22 well, to review the penalty imposed; revocation of

23 her certificate, and therefore her right to

24 practice nursing. Both of these issues raise the

25 question: how serious were her 19 errors? If all

127

1 were serious enough to endanger life could a

2 finding of incompetence or the revocation of the

3 right to practice seriously be questioned? Even

4 if some were that serious would the decision not

5 remain difficult to challenge? The Committee's

6 decision does not make clear whether it was 'some

7 or all.' It refers merely to 'errors which

8 endangered' lives."

9 "The seriousness of Miss Reddall's

10 errors is thus central to the issue of the

11 appropriateness of the Committee's decision both

12 on incompetence and on penalty. Yet, if there was

13 no framework of expert evidence against which the

14 Committee's decision can be measured in this

15 Court, how can this Court perform its function?

16 We are asked, in effect, to accept the most

17 fundamental conclusion reached by the Committee

18 without proof. We are asked to review the

19 unreviewable."

20 And then he goes on, and at the top of page

21 64, you see summarized by the Court of Appeal, the

22 decision reached by Mr. Justice Reid, was that the

23 decision was unreviewable and therefore should be left

24 untouched. The Court of Appeal states:

25 "However, his view was, that although the

128

1 members of the committee might not all be peers

2 of a registered nurse, nevertheless they were in

3 a far better position to judge the seriousness or

4 gravity of a nursing error than is the court. He

5 concluded that the Legislature had committed the

6 responsibility for disciplinary matters to the

7 nursing profession and to reject its conclusion

8 would be to deny to the committee any expertise."

9 And then he goes on, the Court of Appeal

10 cites the two reasons given by Mr. Justice Reid for not

11 setting aside the decision of the discipline committee.

12 As noted higher:

13 "His first reason for accepting the

14 committee's conclusion that the appellant's errors

15 had been life_threatening was that this position

16 had not been directly challenged before the

17 committee."

18 The Court of Appeal goes on to note that,

19 in fact, the defence was challenging that, that position.

20 Then dropping down to the next paragraph:

21 "Mr. Justice Reid's second ground for

22 accepting the conclusion that the appellant

23 'committed errors which endangered the life of the

24 patients assigned to her care' was that the court

25 'was not shown anything in the record that would

129

1 support a challenge.'"

2 And it goes on to say that the Court of

3 Appeal notes that __ what may be obvious, that if there

4 was no evidence on the point, then of course there would

5 be no record of that evidence and any challenge to that

6 evidence.

7 The Court of Appeal's conclusion, which was

8 to reverse the Divisional Court, is found down at the

9 bottom of page 64. You see that:

10 "We do not think that the Divisional Court

11 was being asked 'to review the unreviewable.'

12 It is only so if the mere ipse dixit of the

13 discipline committee, without more, is enough in

14 all cases to establish the seriousness of the

15 incompetence. Such an approach, with deference,

16 emasculates the broad right of appeal given by s.

17 13(2) quoted above. There were two laymen on the

18 committee and it cannot be that they are to act

19 outside the evidence given at the hearing. Indeed

20 they are directed, as are all members of the

21 committee, to base their finding on the evidence

22 before them ... Are the laymen on the committee

23 to take evidence and expert opinion from their

24 professional colleagues on the committee in

25 executive session without the person charged

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1 having an opportunity to challenge the evidence or

2 opinion by cross_examination and rebuttal? It

3 would appear to be a denial of the right to a fair

4 hearing and of natural justice as well as a breach

5 of the sections referred to, to allow this to be

6 so."

7 And so on and so forth. The Ontario Court

8 of Appeal set aside the decision of the Divisional Court

9 and set aside the decision of the discipline committee and

10 remitted the matter back to the discipline committee for a

11 proper determination on the basis of evidence properly put

12 before it.

13 And that's what the Reddall case stands

14 for, and I think, inviting as it may be to elaborate on my

15 submissions on that point, I would just conclude my

16 remarks.

17 THE CHAIRPERSON: Mr. Longstreet, do you

18 have any remarks to make on the Reddall case?

19 MR. LONGSTREET: That case is not this

20 case, in that there is a lady who attends before the

21 disciplinary committee and makes admissions to 19 errors,

22 admitting her, in fact, incompetence.

23 And the court basically said, You can't set

24 aside a finding, it's only the penalty. And it's not on

25 all fours with this case, where evidence has been called

131

1 by Mr. and Mrs. Terrick, who gave their position to this

2 court. They gave them the facts.

3 It's not a situation where it's an

4 admission, whereas in Miss Reddall, she did admit to 19

5 flagrant breaches of incompetence.

6 And the issue before the Court of Appeal is

7 that it had to be remitted back to the disciplinary

8 committee so as to deal with the issues as to appropriate

9 __ what kind of appropriate penalty, and it was only the

10 penalty that was set aside.

11 But there was no evidence in that situation

12 where __ whereas you have in here the evidence of Mr. and

13 Mrs. Terrick, who have given evidence, and the issue in

14 this case was the matter of appeal __ or the matter that

15 was struck in appeal was the penalty that was meted out by

16 the board. Basically, our position is that this lady is

17 just not qualified.

18 THE CHAIRPERSON: I believe, then, at this

19 point that the panel needs to make a decision as to the

20 expert witness, whether to accept the witness, so perhaps

21 this time we could just __ if you could just clear the

22 hearing room and we'll call you when we've made our

23 decision.

24 ___ Proceedings Adjourned

25 ___ Proceedings Resumed

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1 THE CHAIRPERSON: Okay, the panel will

2 allow the testimony of Miss Norma Johnston, and due to the

3 lateness of the afternoon, we will recess until nine

4 o'clock tomorrow morning, should there be no objections

5 from either counsel.

6 MR. COLEMAN: It's okay with us.

7 MR. LONGSTREET: Well, it's been a

8 heartfelt day so I suppose tomorrow start off fresh again.

9 THE CHAIRPERSON: Okay.

I HEREBY CERTIFY THE FOREGOING

to be a true and accurate

transcription of my shorthand notes

to the best of my skill and ability.

Vicki Webster, C.S.R.

Computer_Aided Transcription