Sur cette page

Benischek, Susan

Susan Benischek 7506330

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

FULL-TEXT DECISION

Note: This is the full text of the decision of the Discipline panel in this matter. Any information identifying clients, witnesses or facilities has been removed [ ]. The member's name is omitted if the allegations have been dismissed or if the results are not placed on the public portion of the Register.


PANEL:

Sandra Millar, Public Representative Chairperson
Marsha Taylor, RPN Member, Chairperson
Sandy Brewer, RN Member
Jo-anne Marr, RN Member
Bill Weichel Public Representative

BETWEEN:

COLLEGE OF NURSES OF ONTARIO

 

Glynnis Burt for
College of Nurses of Ontario

- and -

SUSAN BENISCHEK
Reg # 75-0633-0

 

Sil Salvaterra for
Susan Benischek

 
   

Nancy Spies, Independent Legal Counsel

 
   

Heard: July 3 & 5, Aug. 13-17, Sept. 24, Oct. 1-2 & 11-12, Dec. 3, 5, 10-11, & 14, 2001, Feb. 4, 7 & 8, Sept. 11, 2002

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on July 3, 2001 at 0900 at the College of Nurses of Ontario at Toronto.

Sandra Millar, Public Member chaired the hearing of this matter until December 17, 2001, at which time she moved out of the country. Marsha Taylor, RPN, panel member, assumed the position of the Chair and the panel continued the hearing with four members.

At the outset of the hearing the Member was not represented by legal counsel. The hearing was adjourned for a two-day period in order that the Member could obtain legal counsel. The hearing reconvened on July 5, 2001. The Member was represented by the Community Legal Aid Service Program (CLASP). The College entered into evidence an Affidavit of Attempted Service (Exhibit 2) which confirmed that service of the Member with the Amended Notice of Hearing was attempted at 1335 hours on June 12, 2001. Appendix B was not included in the Amended Notice of Hearing. Further attempts were made on June 14, 2001 at 1835 hours, Saturday June 16, 2001 at 0810 hours and 1630 hours, Tuesday, June 19, 2001 at 1140 hours, Saturday June 23, 2001 at 0800 hours and Tuesday, June 26, 2001at 0935 hours (Exhibit 3). The Member was served with the Amended Notice of Hearing and additional documents on June 28, 2001 at 1215 hours (Exhibit 4). Given the complexity and seriousness of the case, defence counsel requested a lengthy adjournment that was granted. The hearing reconvened on August 13, 2001 at 0900.

The Allegations

The allegations against Susan Benischek as stated in the Amended Notice of Hearing dated June 6, 2001 are as follows:

  1. You have committed an act of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.1 of Ontario Regulation 799/93, in that on or between 27 October 1997 and 29 April 1999, while employed as the Executive Director of [facility "A"], you contravened the standards of practice of the profession and/or failed to meet the standards of practice of the profession, the particulars of which are set out in Appendix "A".

  2. You have committed an act or acts of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.8 of Ontario Regulation 799/93, in that on or between 27 October 1997 and 19 April 1999, while employed as the Executive Director of [facility "A"], you misappropriated property from your workplace, the particulars of which are set out in Appendix "A".

  3. You have committed an act or acts of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.14 of Ontario Regulation 799/93, in that, on or between 27 October 1997, and 29 April 1999, while employed as the Executive Director of [facility "A"], you falsified a record relating to your practice, the particulars of which are set out in Appendix "A".

  4. You have committed an act or acts of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.15 of Ontario Regulation 799/93, in that, on or between 27 October 1997, and 29 April 1999, while employed as the Executive Director of [facility "A"], you signed or issued in your professional capacity, a document or documents that you knew or ought to have known contains false or misleading statements, the particulars of which are set out in Appendix "A".

  5. You have committed an act or acts of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.16 of Ontario Regulation 799/93, in that, on or between 27 October 1997, and 29 April 1999, while employed as the Executive Director of [facility "A"], you inappropriately used a term, title or designation in respect of your practice, the particulars of which are set out in Appendix "A".

  6. You have committed an act or acts of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.37 of Ontario Regulation
    799/93, in that, on or between 1 January 1995 and 29 April 1999, you engaged in conduct or
    performed an act or acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, the particulars of which are set out in Appendix "A".

  7. You have committed an act of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991,C. 32, as amended, and defined in paragraph 1.15 of Ontario Regulation 799/93, in that on or about October 10, 1999, you signed or issued in your professional capacity, a document or documents that you knew or ought to have known contained false or misleading statements, the particulars of which are set out in Appendix "B".

  8. You have committed an act of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991,C. 32, as amended, and defined in paragraph 1.16 of Ontario Regulation 799/93, in that on or between December 1999 and February, 2001, while employed as the Assistant Director of Care and Director of Care at [facility "B"], you inappropriately used a term, title or designation in respect of your practice, the particulars of which are set out in Appendix "B".

  9. You have committed an act of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991,C. 32, as amended, and defined in paragraph 1.19 of Ontario Regulation 799/93, in that on or between December 1999 and February, 2001, while employed as the Assistant Director of Care and Director of Care at [facility "B"], you contravened a provision of the Regulated Health Professions Act, 1991, the particulars of which are set out in Appendix "B".

  10. You have committed an act of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991,C. 32, as amended, and defined in paragraph 1.37 of Ontario Regulation 799/93, in that on or between October 10, 1999 and February, 2001, you engaged in conduct or performed an act or acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional, the particulars of which are set out in Appendix "B".

APPENDIX "A"

Particulars of specified allegations:

  1. On or between 27 October 1997 and 29 April 1999, you prepared false resumes for two employees at [facility "A"], to show qualifications not possessed by those employees, namely in respect to the resume of [employee "A"], by adding a Diploma in Mental Health and Addictions Counselling from [College "A"]; a WHMIS Certificate; a CPR Certificate; and a First Aid Certificate; and in respect to [employee "B"], by adding a Diploma in Art Therapy from [College "B"], A WHMIS Certificate, a CPR Certificate, and a First Aid Certificate.

  2. On or between 27 October 1997 and 29 April 1999, you misappropriated the maximum sum of $59,981 from your employer, [facility "A"], by giving instructions to your said employers' payroll agents to increase your basic salary and to pay overtime to you, without authorization.

  3. On or between 27 October 1997 and 29 April 1999, while employed as the Executive Director of [facility "A"], through unauthorized applications made without authority to the Ministry of Health, you obtained at least $46,500 from the Ministry of Health through funding requests.

  4. On or between October 27, 1997 and April 1999 you forged the signature of the Chair of the Board of Directors of [facility "A"], or applied a facsimile of the said signature without authorization, on some of the requests for such funds referred to in paragraph 3 above.

  5. On or between 27 October 1997 and 29 April 1999, while employed as the Executive Director of [facility "A"], you made unauthorized purchases using [facility "A"] funds, including, on or about 15 April 1999, by requesting a bank draft to be made out to [company "A"] for $7,000 and on or about 26 march 1999, by requesting a bank draft for $594.08 to be made out to [company "B"].

  6. On or between October 27, 1997 and April 29, 1999, you forged the signature of the Chair of the Board of Directors of [facility "A"], or applied a facsimile of the said signature without authorization, on the requests for funds referred to in paragraph 5 hereof.

  7. On or before October 1997, while applying for the position as the Executive Director of [facility "A"], you submitted a resume of your work experience and educational qualifications in which you claimed to have achieved the Degree of Bachelor of Science in Nursing from [University "A"] in 1980, which degree you do not possess.

APPENDIX "B"

Particulars of specified allegations:

  1. On or about October 10, 1999, while applying for the position of Assistant Director of Care at [facility "B"], you submitted a cover letter and resume of your work experience and educational qualifications in both of which you claimed to have achieved the Degree of Bachelor of Science in Nursing from [University "A"] in 1980, which degree you do not possess.

  2. On or between 15 December 1999 and February 2001, while employed as Assistant Director of Care and/or Director of Care at [facility "B"], you represented on your business cards that you had obtained the Degree of Bachelor of Science in Nursing and that you were a Family Therapist with [the Association], which degree, certificate, affiliation and/or membership you do not possess.

  3. On or between 15 December 1999 and December 8, 2000, while employed as Assistant Director of Care and/or Director of Care at [facility "B"], you provided [employee "C"] the opportunity to resign his position as a staff Registered Nurse so that he might avoid being terminated from this position and failed to report [employee "C's"] termination to the College within 30 days thereof in accordance with s. 85.5 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. C.18.

  4. On or about 8 December 2000, while employed as Director of Care at [facility "B"], you misled officials from [facility "C"] when you provided a positive reference for [employee "C"] and indicated you would rehire [employee 'C"].

Member's Plea

At the outset of the hearing the Member denied the allegations set out in the Amended Notice of Hearing. A plea inquiry was conducted. When the hearing was reconvened on August 13 2002, the Member admitted the allegations in paragraphs 5 and 8 of the Amended Notice of Hearing through the Member's Counsel.


Publication Ban

The College sought a publication ban on August 17, 2001 with respect to the list of names and related identifying information listed on Exhibit 58 [company "C"] payroll register for [facility "A"]). Defence Counsel was in agreement. The panel considered the provisions of section 45(2) of the Health Professions Procedural Code and ordered the publication ban as requested.

Overview

The Member is a Registered Nurse who graduated from nursing school in 1974. She held a variety of clinical nursing and management positions in hospitals, nursing homes and other community agencies. From October 1997 to April 1999 the Member was employed as Executive Director of [facility "A"], a residential facility that provides a high level of support for residents with schizophrenia and related mental illness. [Facility "A"] is funded by the Ontario Ministry of Health and Long Term Care (MOHLTC). The Member's employment at [facility "A"] was terminated in April 1999.

The Member worked in a number of facilities, including [facility "D"], until she was hired at [facility "B"] in December 1999 as Assistant Director of Care. The Member was promoted to Director of Care in March 2000 and transferred in April 2000 to another [facility "B"] location. The Member was terminated from [facility "B"] in April 2001.

The issues in this case that were considered by the panel were:

  1. whether or not the Member misappropriated property from her workplace;
  2. whether or not the Member falsified a record relating to her practice;
  3. whether or not the Member signed or issued documents that she knew or ought to have known contained false or misleading statements;
  4. whether or not the Member inappropriately used a term, title or designation in respect of her practice;
  5. whether or not the Member engaged in conduct or performed acts relevant to the practice of nursing that having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional; and
  6. whether or not the Member contravened a provision of the Regulated Health Professions Act 1991.

The Evidence

The College called 12 witnesses and recalled three of these in Reply including [the Executive Director of facility "A"], [the Administrator for facility "A"] and [the Board Chair for facility "A"]:

WITNESS 1 - [Executive Director of facility "A"]

[ ] was hired as the Executive Director of [facility "A"] on August 30, 1999. Her role included implementation of the recommendations from the external review of [facility "A"]. [The Executive Director] gave evidence that there was an incorrect resume on file for [employee "A"] and that she verified this with [employee "A"]. The resume was incorrect due to the fact that it contained information about her education and work experience that was inaccurate. [The Executive Director] identified several exhibits from [facility "A"] files including Exhibit 10 ([facility "A"] Board minutes from December 9, 1997 to April 28, 1999), Exhibit 11 (Susan Benischek's employment offer from [facility "A"]), Exhibit 12 (letter of termination of Susan Benischek from [facility "A"] dated April 29, 1999), Exhibit 13 (Susan Benischek's resume), Exhibit 14 (hand-written note attached to the resume of Susan Benischek dated June 25, 1996), Exhibit 15 (letter from MOHLTC referring to the [facility "A"] operating deficit), Exhibit 16 (MOHLTC approved budget for [facility "A"] 1997/98 and 1998/99), Exhibit 17 (PPS proposed budget for 1999/00), Exhibit 18 (Y2K agreement between MOHLTC and [facility "A"] dated December 30, 1998), Exhibit 19 [a copy of the [ ] Associates Report ([facility "A"] operational review) from May 15, 1999) and Exhibit 21 ([facility "A"] policy and procedure manual). [The Executive Director] was not asked about the contents of these exhibits, which was dealt with through the evidence of other witnesses as set out below.

The panel found [the Executive Director] to be clear, articulate, forthright and self-controlled, which led the panel to find her to be a credible witness.

WITNESS 2 - [Administrator "A"]

[ ] was the [facility "A"] administrator from 1994 to 1996 and had been a [facility "A"] Board member since 1984. [Administrator "A"] gave evidence that she prepared Susan Benischek's employment offer letter at [facility "A"] and that she signed it approximately one month later. [Administrator "A"] indicated that Susan Benischek's salary was $35,000 per annum at the time of hire and that it included vacation pay. In later testimony [Administrator "A"] indicated that the Member's offer letter was incomplete and inaccurate due to the fact that it did not indicate the date that the Member's resume was received and it stated that references were not called because the Member was a current employee.

[Administrator "A"] gave evidence that there was no overtime paid to salaried employees and that all other employees were paid hourly. [Administrator "A"] explained how the [facility "A"] payroll was entered and that she verified these entries for the first three months of Susan Benischek's tenure. She had no knowledge of any salary increases and testified that if there had been any, that they would have been documented in the Board minutes. She had no knowledge of any proposals for increased or additional funding to MOHLTC or of any details about pay equity, and stated that she believed that [facility "A"] was ineligible for pay equity. She knew of a policy that expenditures greater than five hundred dollars required Board approval and she knew of the ten thousand dollar request for forgiveness of unspent funds from the previous fiscal year due to the fact that this was documented in the Board minutes. [Administrator "A"] gave evidence that when a certified public accountant joined the [facility "A"] Board, the Board became aware of the unauthorized earnings of Susan Benischek and [employee "D"]. She gave evidence that Susan Benischek and [employee "D"] were terminated in 1999.

[Administrator "A"] testified that following Susan Benischek's termination from [facility "A"] in April 1999, she spent time reviewing [facility "A"], and in the process she found several cut and paste signatures of [facility "A's" Founder], including a note made out to [company "B"] (Exhibit 23) and a letter to [the Senior Program Analyst] at the MOHLTC (Exhibit 24). The witness also found [employee "A's"] resume and recognized it as incorrect (Exhibit 5).

[Administrator "A"] gave evidence that while the Board had overall responsibility for [facility "A"] and that the Board members were aware of operational issues, the Executive Director was responsible for daily operations.

The panel found [Administrator "A"] to be clear about her responsibilities as a board member as she understood them but unclear about some minor details due to the fact that these were issues for which she was not directly responsible. For example there were some questions that [Administrator "A"] either could not remember or testified that she did not know. The witness gave her evidence in a forthright manner and the panel found her to be a credible witness.

WITNESS 3 - [Senior Program Analyst for MOHLTC]

During the time of Susan Benischek's tenure at [facility "A"], [ ] was a senior program analyst with the MOHLTC. She is currently a mental health consultant in the health division of the MOHLTC. [The Senior Program Analyst] was familiar with and dealt with Susan Benischek during the Member's tenure at [facility "A"]. She identified various documents relating to MOHLTC funding (Exhibits 28 through 39) and gave evidence that a letter from the MOHLTC dated March 5, 1999 (Exhibit 37) was directed to [facility "A's" Founder] requesting her signature as board chair of [facility "A"]. [The Senior Program Analyst] testified that the letter (Exhibit 37) was sent to [facility "A's" founder] in order to ensure that the board was aware of the funding requests. She also gave evidence that the MOHLTC had suggested that [facility "A"] should be assisted by an external management agency at the MOHLTC's expense in order to bring [facility "A"] in line with MOHLTC expectations. The MOHLTC requested an operational review of [facility "A"]. [The Senior Program Analyst] testified that the 1998/99 [facility "A"] operational budget was never formally approved by the MOHLTC due to unresolved labour issues and that the 1998/99 [facility "A"] budget had never been revisited. The fact that the [facility "A"] budget had not been revisited or approved did not influence the Panel's decision and reasons.

The panel found [the Senior Program Analyst] to be knowledgeable and informative regarding Ministry of Health funding and operational issues. She gave her evidence in a clear, cogent and convincing manner and consequently, the panel found the witness to be credible.


WITNESS 4 - [Facility "A's" Founder]

[ ] founded [facility "A"] in 1984 and was the board chair from 1984 to 1999. [The Founder] remains an honorary board member and attends all [facility "A"] board meetings. She was a founding member and President of the local chapter of [ ] Friends of Schizophrenics. She worked with the MOHLTC and the Ministry of Housing beginning in 1980 to develop the [facility "A"]concept and start up plan. A budget was approved for the [facility "A"] residence in 1988. When the [facility "A"] residence opened in 1994 it opened based on the 1988 proposed budget. [The Founder] has a son who lived in [facility "A"] from the time of its opening and remained in residence at the time of the hearing.

[The Founder] gave evidence that she had a stroke in 1995 that affected her fine motor skills but not her cognitive functions. She acknowledged that both she and [Administrator "A"] were highly involved in operational decision-making that impacted [facility "A"]. She attended [facility "A"] daily to monitor ongoing operations prior to her stroke, three days per week following her stroke until 1998, then one to two times per week after 1998. She confirmed that she hired Susan Benischek at a salary of $35,000 per annum in October 1997 and that the Member would not receive overtime pay due to the fact that the Member was a salaried employee (Exhibit 13). [The Founder] testified that she had no recall of any request for a salary increase from Susan Benischek nor did she recall giving approval of any salary increases. She acknowledged that the Member did work late into the evening many times and that she was on-call and carried a pager on weekends.

[The Founder] testified about the operations of [facility "A"]. She indicated that the normal practice at [facility "A"] was to have the Executive Director and the Board Chair co-sign key documents. The witness testified that expenditures greater than $500.00 required Board approval, although this was not reflected in the Board meeting minutes. She acknowledged that there were other issues, particularly of a confidential nature, that were discussed by the Board but that were not reflected in the [facility "A"] board meeting minutes.

[The Founder] was unable to explain the salary discrepancies in operating budgets for 1997/1998 and 1998/1999 (Exhibit 16). She recalled discussion of some requests to the MOHLTC for one-time funding that were discussed at the Board meetings. These included the recovery/forgiveness of the $10,000 and the $6,000 for legal fees. She agreed that while these issues were not documented in the Board meeting minutes, that they should have been documented due to the fact that these issues were discussed openly at the board meetings. She stated that she expected to receive copies of all correspondence between [facility "A"] and the MOHLTC. The witness did not recognize a letter from Susan Benischek and [the Founder] to [the Senior Analyst] requesting additional one time emergency funding for $57,000 (Exhibit 35). She testified that the board never saw this correspondence nor did the correspondence bear her authentic signature. She was aware that it was common practice for the MOHLTC to communicate directly with the Executive Director for daily operational issues.

[The Founder] testified that she was not aware of the tenant account deficit however, she acknowledged that this deficit was documented in the Board minutes (Exhibit 10). She denied any knowledge of making an application for a [facility "A"] bank debit card, however, she did acknowledge that the signature on the application form (Exhibit 55) was her own. She also acknowledged that she was "insulted" that the MOHLTC had requested an operational review of [facility "A"].

[The Founder] identified documents (Exhibits 46 through 51) as documents that contained examples of her signature and signatures of Susan Benischek. [The Founder] denied using any cut and paste signatures and denied that she had authorized anyone to sign her name. [The Founder] testified that she took the cut and paste signatures that she had found in the [facility "A"] files to 52 Division metropolitan police fraud squad. She denied writing a letter (Exhibit 39) to [the Senior Analyst] at the MOHLTC on behalf of the [facility "A"] board in response to the auditor's report. She also denied that it was her signature on the document. As set out below, [ ], the forensic document examiner, testified that the signature on this document (Exhibit 39) was not the signature of [the Founder] and that there was some evidence that Susan Benischek wrote this [Founder] signature.

The panel found the witness to be forthright. When there were items that the witness did not recall she acknowledged them openly and without hesitation. There was some question about the witness's memory due to the fact that she contradicted herself during some testimony. For example, [the Founder] did not recall going to the bank with Ms. Benischek to sign an application form for a debit card however the application form bore her authentic signature. The panel noted that she had a special interest in the outcome of these proceedings due to the fact that these proceedings reflected on her personally and professionally and could impact negatively on [facility "A"]. While the panel noted the discrepancy and the witness's special interest in the outcome of these proceedings, the panel did not rely on this evidence in the decision and reasons.

WITNESS 5 - [Customer Care Manager for Company "C"]

[ ] was a customer care manager in[company "C"] office since 1991. [Facility "A"] was a [company "C"] customer for payroll management. [The Customer Care Manager] identified the [company "C"] payroll register for [facility "A"] for the period November 3, 1997 through to May 31, 1999 (Exhibit 58). He also identified eight cheques (Exhibit 59) payable to Susan Benischek from [facility "A"] and reviewed each cheque, comparing it to the payroll register. [The Customer Care Manager] testified that the payroll register showed evidence of two separate salary increases for the Member, the first of which occurred on March 27, 1998 and the second on June 19, 1998. In addition there were overtime payments to the Member totalling greater than $20,000 in 1998.

The panel found that the witness gave evidence in a clear, cogent and convincing manner and it was evident to the panel that he was knowledgeable and experienced in his profession. The panel found the witness to be competent, direct and credible.

WITNESS 6 - [Bookkeeper for facility "A"]

[ ] was a bookkeeper at [facility "A"] since December 1998. [The Bookkeeper] testified that he prepared a new set of financial records for [facility "A"] for the fiscal year 1998/99, which he completed in March 1999. He testified that he noted a number of discrepancies in the [facility "A"] financial records, including cheques made out to cash without appropriate authorization, overtime payments to salaried employees and other payroll irregularities. For example, [the Bookkeeper] testified that the Member had two separate salary increases without evidence of documented board approval. He testified that, to his knowledge and understanding, overtime was not paid to salaried employees rather, giving lieu time was the common practice. He identified his analysis of the Member's remuneration details (Exhibit 60). [The Bookkeeper] testified that in 1997 the Member was paid a total of $4,980.76 which was the precise amount of her approved salary. In 1998 the Member was paid a total of $78,089.92 (recorded salary + overtime earnings + vacation pay + unspecified earnings) compared to an approved salary of $34,999.90. In the first three months of 1999 the Member was paid $30,352.95 compared to an approved salary of $13,461.50. He testified that during the Member's period of employment at [facility "A"], she received a total of $113,423.63 compared to an approved salary of $53,442.16. He also gave evidence that he was unaware of any written financial policies at [facility "A"] nor was he aware of any documented authorization for any salary increases for salaried employees at [facility "A"].

[The Bookkeeper] gave evidence in a direct and believable manner. When there were questions that he could not answer, he acknowledged it openly. The panel found the witness to be forthright, clear and credible.

WITNESS 7 - [Acting Director, Facility "E"]

[ ] is a Registered Nurse at [facility "E"]. She was a Head Nurse from 1989 to 2000 and after September 2000 became the Acting Director. She testified that on December 8, 2000, she requested a reference from the Member for [employee 'C"] who was seeking employment as an RN at [facility "E"]. She gave evidence that the reference was conducted by telephone and that she made notes about the conversation. She also testified that she disputed the positive reference given by the Member due to the fact that the Member must have known about the professional practice issues of concern in the case of [employee "C"].

The panel found the witness to be straightforward and answered the questions directed to her. The panel found the witness to be credible.


WITNESS 8 - [Administrator "B"]

[ ], the Administrator at [facility "B"] since 1995, hired the Member as Assistant Director of Care in December 1999 and promoted the Member to Director of Care in March 2000. Both [Administrator "B"] and the Member were transferred to another [ ] site in April 1999. [Administrator "B"] terminated the Member in April 2001 for misrepresentation of the Member's credentials. This included an alleged BScN from [University "A"], a Masters Degree in Community Health Administration and a Family Therapist certificate from [the Association].

[Administrator "B"] gave evidence that she was aware of some professional practice issues concerning [employee "C"] but that she did not have first hand knowledge of the details. She asked the Member to investigate these concerns. She did not recall the details of these concerns but testified that within a very short period of time, [employee "C"] resigned.

[Administrator "B"] gave evidence about the ordering of business cards at [facility "B"]. She testified that she asked all members of her management team to provide her with the credentials that should be printed on their business cards, and that these cards were printed in June or July, 2000. [Administrator "B"] received information about Ms. Benischek's credentials directly from Ms. Benischek.

[Administrator "B"] also testified that the Member had told her at the employment interview that she was completing a Masters Degree at [University "B"], and that once the Member completed her practicum, she would convocate.

[Administrator "B"] testified that she received a call from [ ], a Director from [facility "F"], asking why [facility "B"] had given [employee "C"] a positive reference when they "ought to have known" that there were professional practice concerns about [employee "C"]. She indicated that if she had been asked to give the reference, it would have been quite different from the one [facility "F"] received. She questioned the Member about giving this reference and cautioned the Member about the importance of giving factual and accurate information as a representative of [facility "B"].

The panel found [Administrator "B"] to be straightforward and believable. She gave her evidence in a factual and confident manner and the panel found her to be credible. The panel placed substantial weight on the testimony of this witness.

WITNESS 9 - [President of the Association]

[ ] is the President of [the Association]. She supervises the Association. She described the standards and requirements for certification and the code of ethics for membership in [the Association] (Exhibit 89). [The President of the Association] testified that the Member was not a member of [the Association] nor did the Member have a pending application.

The panel found the witness to be clear, informative, convincing and credible.

WITNESS 10 - [Facility "B" Office Co-ordinator]

[ ] has been the office co-ordinator at [Facility "B"] since 1999 and had worked there for three years previously as the office receptionist. She gave evidence that she looked after the office business and human resources files. The witness knew of the Member and testified that the Member knew the location of and had access to the office files and current and past human resources records. [The Office Co-ordinator] testified that the Member had requested [employee "C's] file after [employee "C"] left [facility "B"], and that several weeks later, when the staffing co-ordinator requested [employee "C's"] file, she was unable to locate it.

The panel found the witness to straightforward, clear and credible.

WITNESS 11 - [Employee "A"]

[Employee "A"] worked part time since January 1999 at [facility "A"]. The witness indicated that while she was interviewed by both [employee "D"] and the Member, her offer letter came from the Member. [Employee "A"] testified that her resume was inaccurate because it contained false information about her education and work experience nor did she know how the inaccurate resume got into the [facility "A"] files, until it was brought to her attention by [the Executive Director] and [Administrator "A"].

The panel found the witness to be straightforward, clear and credible. The witness responded openly and directly to all questions put to her during her examination.

WITNESS 12 - [Document Examiner]

[ ] is a forensic document examiner who founded and at the time of the hearing, was President of [company "D"]. The panel reviewed [the Document Examiner's] curriculum vitae (Exhibit 99) and accepted him as an expert in forensic document examination. [The Document Examiner] gave evidence about the process he used to evaluate and compare documents including the microscopic examination of letter formulation. [The Document Examiner] gave evidence that he had established that some signatures of [the Founder] were not written by [the Founder] (Exhibits 32, 35, 39). There was "some indication" (level of probablility for forensic document examination) that the signatures of [the Founder] on Exhibits 32 and 39 were written by the Member. He also testified that there were a number of signatures of [the Founder] where it was not clear who might have written them. [The Document Examiner] made no determination regarding the signature of [the Founder] on Exhibit 35. [The Document Examiner] testified that Exhibit 23, Exhibit 24 and Exhibit 51 contained cut and paste fabrications of genuine signatures of [the Founder]. He identified the document of origin of the cut and paste signature of [the Founder] as the Y2K document (Exhibit 18). He testified that Exhibits 32 and Exhibit 39 contained simulated and traced writing. He ruled out facsimile or photocopying as a means of copying signatures due to the fact that photocopying and faxing create distortion and thus would be easily distinguished from a forgery. The witness testified that both time and an individual's physical condition cause handwriting variation.

The panel found the witness to be methodical, efficient, thorough and well prepared. The panel found him to be credible.

Defence

Defence Counsel called three witnesses:

WITNESS 1 - [Employee "D"]

[Employee "D"] became associated with [facility "A"] when he was a student in 1997. The Member hired him as co-ordinator of programs in April 1998 for $9.50 per hour. He testified that at the time of hire, he understood that he would paid at a lower salary rate for a period of three months until the salary continuance from a previously terminated employee was paid out. He gave evidence that he understand that after this three-month period, his salary would be increased.

[Employee "D"] testified that the Member gave him additional administrative responsibilities including handling petty cash and entering payroll hours for all [facility "A"] employees. His salary increased during his tenure due to increased administrative responsibilities. At the time [employee "D"] departed from [facility "A"] in April 1999, he was paid $25.00 per hour. He testified that the Member hired [employee "A"] at [facility "A"].

[Employee "D"] testified that the Member was responsible for completing the payroll. He was invited to attend board training and after two meetings, was dismissed from the meetings by [the Founder]. He testified that "[The Founder's] decisions were absolute" and that the Member and [the Founder] had a number of "tumultuous arguments" about the way in which the operations were carried out.

The witness testified that he was "sympathetic" about the Member's termination due to the fact that he was treated in the same manner and was terminated on the same day in April 1999.

The panel found [employee "D"] to be direct, concise and credible. He responded to all the questions that were asked of him. The majority of the panel found him to be hostile. During cross-examination, [employee "D"] held a rigid posture and had an aggravated tone of voice that the panel experienced to be disrespectful when he answered questions about his tenure at [facility "A"]. He had a vested interest in the outcome of this case due to the fact that he was terminated at the same time as the Member. The panel found that the content of [employee "D's"] evidence was not significant in the panel's decision.

WITNESS 2 - [Employee "E"]

[Employee "E"] began volunteering at [facility "A"] in the fall of 1997in order to improve his qualifications and work experience. The Member hired him in the spring of 1998 as a volunteer co-ordinator. He would often work eight or nine hours per day. He also did filing for the Member during off-hours. [Employee "E"] testified that the Member's office was accessible to everyone and that everyone knew the location of the key to the Member's office.

[Employee "E"] testified that he was dismissed by [the Founder] from [facility "A"] due to the fact that he was a "fire hazard". He suffered from spastic cerebral palsy, was wheelchair bound and could not get to the 2nd floor of [the facility] without using the elevator. [The Founder] had told him that the elevator was "off limits" for his use. He later filed a human rights complaint against [facility "A"] and [the Founder]. He testified that he and [the Founder] had a poor relationship and that she had refused several times to sign Ontario Disability Benefits (ODP) documentation for him. He described the working relationship between [the Founder] and the Member as "lots of bickering back and forth" and as having a "heavy atmosphere" and an "unpleasant tone".

In spite of [employee "E's"] difficulty articulating speech, the panel found him to be clear, focussed and definitive. He was genuine about his reasons for working at [facility "A"] and working with "people in need". The panel found him hostile towards [the Founder]. [Employee "E"] expressed clear dislike and disrespect for [the Founder] and her decisions at [facility "A"]. The content of the evidence given by [employee "E"] was not significant in the panel's decision and reasons.

WITNESS 3 - SUSAN BENISCHEK

Susan Benischek (the Member) graduated from the [ ] Nursing Program in 1974. She has had varied experiences including critical care, neonatal care, chronic care, geriatrics care and experience working in nursing homes and community agencies. The Member had a combination of direct care provision and supervisory/management positions. She worked for the [ ] Agency as a co-ordinator over a period of several years. The Member testified that she sometimes held two to three jobs simultaneously.

The Member was the Executive Director at [facility "A"] from October, 1997 to April, 1999, at which time she was terminated from her position. She testified that she was wrongfully dismissed by [facility "A"]. The Member was then hired as the Assistant Director of Care at [facility "B"] in December, 1999 and was promoted to Director of Care in March, 2000. She was transferred to another [facility "B"] site in April, 2000 with her supervisor, [Administrator "B"]. The Member was terminated from [facility "B"] in April, 2001 for misrepresentation of credentials. The misrepresentation included a BScN from [University "A"], a Masters in Community Health Administration and a Family Therapist certificate from [the Association].

The Member described making a "personal connection" with [the Founder] due to the common experiences that they both had shared. Initially, she and [the Founder] had a good working relationship. She felt welcomed at [facility "A"] and believed that she could assist [facility "A"] due to the fact that she was "good at fundraising and getting money from the government". The Member testified that [facility "A"] was "a mess" and that she believed that she could create a "safe, orderly system". The Member understood that [the Founder] could not pay her as much as [the Founder] wanted to but that if the Member could "bear with her", [the Founder] would increase her pay at some point.

The Member could not recall any details about when or by how much her salary would increase. She initially understood that she would be entitled to two weeks of vacation and then learned later that it was four weeks after speaking with others and "finding a policy about it somewhere". The Member testified that there was no employment offer letter given to her and therefore, that she made one up several weeks later. She stated that [the Founder] had refused to sign the offer letter that the Member prepared. The Member testified that she didn't know that the employment offer letter that she had prepared herself, contained incorrect information due to the fact that she had not read it.

The Member testified that she understood that in addition to her salary, she would receive overtime pay or that there would be time in lieu of overtime worked. The Member gave evidence that being compensated for overtime was "only fair" and that it was "only a token amount". She understood that she would be compensated for all the extra work she would do including the development of policy and fire manuals. In early evidence the Member testified that she did not know of any written policies. Later the Member gave evidence that there were some written policies and specifically cited an old vacation entitlement policy.

The Member testified that she was directly responsible for submitting staffing hours for the [facility "A"] payroll to [company "C"], the company responsible for managing the [facility "A"] payroll. She testified that she would change staff hourly rates based on directions from [the Founder]. The Member testified that she worked an average of 18-20 hours per day. She thought the payments in addition to regular earnings were related to remuneration for completion of the manuals and other overtime work but could not recall specific dates and details. The Member agreed with the testimony given by [ ], the [facility "A"] bookkeeper, showing the Executive Director's total salary for 1997, 1998 and the first four months of 1999 (Exhibit 60). She agreed that she received funds amounting to a total of $113,423.63 during this period. The Member agreed that she received greater than $20,000 in overtime payment in 1998 (Exhibits 58 & 60). The Member stated that her salary increase was due to "informal pay equity" and that [the Founder] had directly authorised these salary increases.

The Member stated [the Founder] made the decisions about [facility "A"] and that she was "always around". The Member testified that [the Founder] told both the Member and [Administrator "A"] what to do. The Member testified that she was accountable to the Board through [the Founder]. She believed that she was treated like [the Founder's] "personal assistant". The Member described [the Founder] as "volatile and eccentric".

The Member testified that the [facility "A"] Board made the decision to transfer money from the tenant account to the operating account in order to cover the financial shortfall at [facility "A"]. The panel did not hear any evidence that either supported or refuted this testimony.

The Member testified that she accompanied [the Founder] to the bank to apply for a debit card and that [the Founder] signed the application form. She stated that [facility "A"] was applying for a debit card to reduce the number of bank drafts required for ongoing expenditures and to reduce the amount of petty cash that [facility "A"] was required to hold.

The Member admitted to falsifying her credentials. She admitted to supplying incorrect information on her resume that included documentation of a BScN that the Member did not possess. She admitted responsibility for other incorrect information on her resume including a number of work experiences and credentials, such as courses at a community college that the Member had not taken and employment at a nursing home in [ ] where the Member had never worked. The Member testified that she did not know how this information came to be on her resume and that her ex-husband created and sent out "hundreds" of the Member's resumes to prospective employers. The Member gave evidence that she signed many incomplete resume cover letters before they were distributed by her ex-husband. The Member gave evidence that no prospective employer questioned her about the details of her resume. The Member acknowledged that she should be held accountable for any incorrect information that was documented on her resume but the Member had no knowledge of how it came to be there. Under cross-examination the Member acknowledged that employment at both [facility "G"] and [facility "A"] were omitted from her resume and that the Member had directed her ex-husband to omit these agencies. The Member agreed that regardless of who prepared the resumes, that she (the Member) was responsible for these inaccuracies.

The Member was unable to directly answer questions about her inaccurate [facility "B"] business cards and testified that she did not know how the information was gathered or how the information came to be on the cards. She testified that the cards were not used because they were incorrect.
The Member testified that she was asked to investigate complaints concerning [employee "C's"] professional practice and that prior to this request, she was unaware of any previous issues regarding [employee "C"]. The Member testified that [employee "C"] resigned several weeks later due to unrelated personal issues after the Member spoke to him. The Member denied that she gave him the opportunity to resign rather than to be terminated. The Member testified that she gave [employee "C"] a positive reference due to the fact that she understood him to be an excellent employee. The Member denied that she was cautioned by her supervisor, [Administrator "B"], for giving [employee "C"] a positive reference. The Member testified that [Administrator "B"] approved [employee "C"] to be re-hired at a later date.

The Member testified that there were many operational gaps at [facility "A"] and that she was concerned that the Board needed to be made aware of them. After her termination from [facility "A"], the Member sent a letter to the MOHLTC informing them about the operational irregularities at [facility "A"]. The Member testified that she and [the Founder] disagreed about the role of [facility "A"] and that the Member believed that [facility "A"] should be focused on transitional housing and that housing at [facility "A"] should be made available to other clients on the waiting list. The Member testified that this philosophical difference of opinion created a rift between [the Founder] and herself.

The Member acknowledged making repeated requests to the MOHLTC for one time funding to cover the operating deficit. The Member testified that [the Founder] did not always sign all documents or correspondence. The Member testified that she recognized her own signature and/or handwriting on the following documents: Exhibits 10, 11, 18, 23, 24, 25, 26, 28, 30, 32, 33, 35, 36, 38, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 53, 64, 67, 68, 69, 71, 75, 76, 77, 78, 79, 80, 81, 82, 84, 86, 88, 91, 93, 94, 95, 96, 112, 113. The Member was shown Exhibit 23, which consisted of a small piece of paper with an attached cut out signature of [the Founder] clipped to it. The Member said that she had never seen this cut out signature while at [facility "A"] and denied any knowledge of any other cut and paste signatures. She had no explanation for how they may have been created. The Member was shown the following exhibits which the Member recognized as looking like the signature of [the Founder] (Exhibit 35, 94, 95). The Member testified that if she required [the Founder's] signature on any documents, she would have left them for [the Founder] to sign.

The Member gave evidence that she did not hire employee "A"], rather [employee "A"] was hired by [employee "D"]. The Member testified that she gave [employee "A's"] resume to [employee "D"]. She agreed that she had met [employee "A"] at [facility "A"]. The evidence that the Member gave suggested that the Member had little or no involvement in the hiring of [employee "A"] however the panel heard contradictory evidence from [employee "A"].

With respect to the human rights complaint against [facility "A"], the Member and [employee "D"], the Member gave evidence that seniority was the deciding factor in the decision to hire [employee "A"] versus another candidate. Later in testimony, the Member acknowledged that the deciding factor in the hiring of [employee "A"] related to skills and experience as was documented in the job posting.

The panel found that the Member had a genuine interest in working with clients with schizophrenia and was knowledgeable about working with this population. The panel found the Member to be evasive and circuitous in her description of events related to key issues and the panel was not convinced that the Member was truthful in her testimony. The Member admitted to falsifying credentials, could not explain other inaccuracies on her resume and she gave contradictory evidence on more than one occasion. The panel placed heavy weight on this evidence and found that the Member was not a credible witness.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof which
the panel is familiar with, set out in Re: Bernstein and College of Physicians and Surgeons of Ontario (1977) 15 O.R. (2d) 477. The standard of proof applied by the panel, in accordance with the Bernstein decision, was a balance of probabilities with the qualification that the proof must be clear and convincing and based upon cogent evidence accepted by the panel The panel recognized that the more serious the allegation to be proved, the more cogent must be the evidence.

Having considered the evidence and the onus and standard of proof, the panel makes the finding that the Member committed an act of professional misconduct as alleged in paragraphs 2, 3, 4, 6, 7, and 10 of the Amended Notice of Hearing in that:

  1. The Member committed an act or acts of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.8 of Ontario Regulation 799/93, in that on or between 27 October 1997 and 19 April 1999, while employed as the Executive Director of [facility "A"], the Member misappropriated property from her workplace, in that, the Member misappropriated the maximum sum of $59,981 from her employer, [facility "A"], by giving instructions to her said employers' payroll agents to increase her basic salary and to pay overtime to her, without authorization

  2. The Member committed an act or acts of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.14 of Ontario Regulation 799/93, in that, on or between 27 October 1997, and 29 April 1999, while employed as the Executive Director of [facility "A"], the Member falsified a record relating to her practice, in that, the Member prepared false resumes for an employee at [facility "A"], to show qualifications not possessed by that employee, namely in respect to the resume of [employee "A"], by adding a Diploma in Mental Health and Addictions Counselling from [College "A"]; a WHMIS Certificate; a CPR Certificate; and a First Aid Certificate.

    The panel notes that counsel for the College did not lead evidence with respect to the particulars relating to [employee "B"] in the above allegation.

  3. The Member committed an act or acts of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.15 of Ontario Regulation 799/93, in that, on or between 27 October 1997, and 29 April 1999, while employed as the Executive Director of [facility "A"], the Member signed or issued in her professional capacity, a document or documents that she knew or ought to have known contains false or misleading statements, in that the Member prepared false resumes for an employee at [facility "A"], to show qualifications not possessed by that employee, namely in respect to the resume of [employee "A"], by adding a Diploma in Mental Health and Addictions Counselling from [College "A"]; a WHMIS Certificate; a CPR Certificate; and a First Aid Certificate. In addition, the Member made unauthorized funding applications to the MOHLTC and obtained $46,500.00, the particulars of which are set out in Appendix A(3).

    The panel notes that counsel for the College did not lead evidence with respect to the particulars relating to [employee "B"] in the above allegation.

  4. The Member has committed an act or acts of professional misconduct as provided by Clause
    51(1)(c) of the Health Professions Procedural Code and defined in paragraph 1.37 of Ontario
    Regulation 799/93, in that, on or between 1 January 1995 and 29 April 1999, the Member
    engaged in conduct or performed an act or acts, relevant to the practice of nursing that, having
    regard to all the circumstances, would reasonably be regarded by members as disgraceful,
    dishonourable, or unprofessional, in that

    1. On or between 27 October 1997 and 29 April 1999, the Member prepared false resumes for an employee at [facility "A"], to show qualifications not possessed by that employee, namely in respect to the resume of [employee "A"], by adding a Diploma in Mental Health and Addictions Counselling from [College "A"]; a WHMIS Certificate; a CPR Certificate; and a First Aid Certificate.
    2. On or between 27 October 1997 and 29 April 1999, the Member misappropriated the
      maximum sum of $59,981 from her employer, [facility "A"], by giving instructions to her said employers' payroll agents to increase her basic salary and to pay overtime to her, without authorization.
    3. On or between October 27, 1997 and April 1999 the Member forged the signature of the Chair of the Board of Directors of [facility "A"], or applied a facsimile of the said signature without authorization, on some of the requests for such funds referred to in Appendix A(3) of the Amended Notice of Hearing
    4. On or between 27 October 1997 and 29 April 1999, while employed as the Executive Director of [facility "A"], the Member made unauthorized purchases using [facility "A"] funds, including, on or about 15 April 1999, by requesting a bank draft to be made out to the [company "A"] for $7,000; and
    5. On or between October 27, 1997 and April 29, 1999, the Member forged the signature of the Chair of the Board of Directors of [facility "A"], or applied a facsimile of the said signature without authorization, on the requests for funds referred to in paragraph (d) above.

      The panel notes that counsel for the College did not lead evidence with respect to the particulars relating to [employee "B"] in the above allegation. In addition, Counsel for the College did
      not lead evidence with respect to the particulars relating to a bank draft made out to [company "B"] in the above allegation.

  5. The Member committed an act of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991,C. 32, as amended, and defined in paragraph 1.15 of Ontario Regulation 799/93, in that on or about October 10, 1999, you signed or issued in your professional capacity, a document or documents that you knew or ought to have known contained false or misleading statements, in that while applying for the position of Assistant Director of Care at [facility "B"], the Member submitted a cover letter and resume of her work experience and educational qualifications in both of which she claimed to have achieved the Degree of Bachelor of Science in Nursing from [University "A"] in 1980, which degree she does not possess and that on or between 15 December 1999 and February 2001, while employed as Assistant Director of Care and/or Director of Care at [facility "B"], the Member represented on her business cards that she had obtained the Degree of Bachelor of Science in Nursing and that she was a Family Therapist with the [Association], which degree, certificate, affiliation and/or membership she does not possess.

  6. The Member has committed an act of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991,C. 32, as amended, and defined in paragraph 1.37 of Ontario Regulation 799/93, in that on or between October 10, 1999 and February, 2001, the Member engaged in conduct or performed an act or acts, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable, or unprofessional in that on or about October 10, 1999, while applying for the position of Assistant Director of Care at [facility "B"], the Member submitted a cover letter and resume of her work experience and educational qualifications in both of which she claimed to have achieved the Degree of Bachelor of Science in Nursing from [University "A"] in 1980, which degree she does not possess and that on or between 15 December 1999 and February 2001, while employed as Assistant Director of Care and/or Director of Care at [facility "B"], the Member represented on her business cards that she had obtained the Degree of Bachelor of Science in Nursing and that the Member was a Family Therapist with the [Association], which degree, certificate, affiliation and/or membership she does not possess. In addition, on or about 8 December 2000, while employed as Director of Care at [facility "B"], the Member misled officials from [facility "C"] when she provided a positive reference for [employee "C"] and indicated that she would rehire [employee "C"].

Counsel for the College informed the panel that the allegation in paragraph 1 of the Amended Notice of Hearing was withdrawn and that no evidence would be led.

The panel makes no finding with respect to allegation 9 of the Amended Notice of Hearing, the particulars of which are set out in Appendix B(3).

During the course of the hearing the Member admitted to the allegations of professional misconduct as set out in paragraphs 5 and 8 in the Amended Notice of Hearing. In particular the Member admitted to committing an act or acts of professional misconduct as provided by Clause 51(1)(c) of
the Health Professions Procedural Code and defined in paragraph 1.16 of Ontario Regulation 799/93, in that, on or between 27 October, 1997, and 29 April, 1999, while applying for and while employed as the Executive Director of [facility "A"], the Member admitted to inappropriately using a term, title or designation in respect of her practice, the particulars of which are set out in Appendix "A"(7) and to committing an act of professional misconduct as provided by Clause 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991,C. 32, as amended, and defined in paragraph 1.16 of Ontario Regulation 799/93, in that on or between December 1999 and February, 2001, while employed as the Assistant Director of Care and Director of Care at [facility "B"], the Member inappropriately used a term, title or designation in respect of her practice, the particulars of which are set out in Appendix "B".


Reasons for Decision

With respect to allegation 2, the panel weighed the evidence given by the Member in relation to the evidence given by other witnesses. The Member was responsible for phoning in [facility "A"] payroll to [company "C"], which gave the Member the opportunity to adjust payroll hours and amounts. Within five months of the Member's hire date, the Member's hourly rate changed from $16.00 per hour to $25.00 per hour without evidence of authorization from the [facility "A"] board. The Member's increase in hourly rate occurred prior to the submission of the proposed operating budget for the next fiscal year.

[The Bookkeeper] gave evidence that during the Member's tenure at [facility "A"], the Member received greater than $113,000 as compared to expected earnings of $52,500 (Exhibit 60). Neither of the [facility "A"] proposed operating budgets from 1997/98 or 1998/99 that contained salary increases for the Executive Director had authentic signatures of [the Founder] , when in fact they contained only the Member's signature and a forged signature of [the Founder].

The Member also received greater than $20,000 in overtime payments in the 1998 calendar year when other witnesses gave testimony that [facility "A"] policy was that no overtime was to be paid to salaried employees. The panel finds that the policy of not paying overtime to salaried employees was clear. During testimony, the Member made a comment that she received "only a token amount" of overtime payment that was "only fair". [The Senior Program Analyst] gave evidence that she wrote a letter to the [facility "A"] Board of Directors to make certain that the Board knew about funding requests made to the MOHLTC by the Member. The panel noted that during this period the Member had made repeated, unauthorized requests to the MOHLTC for urgent one time operating funds to address the [facility "A"] operating deficit, which existed in part due to unauthorized salary increases.

With respect to allegation 3, the human rights complaint against [facility "A"] specifically naming the Member and [employee "D"], gave the Member the motive to falsify [employee "A's] resume. The Member also had the opportunity, due to the fact that personnel files were housed in the Member's office. During testimony, the Member gave contradictory evidence about hiring criteria specified in the Human Rights complaint. The Member gave evidence that seniority was the deciding factor when the job posting clearly indicated that experience and qualifications would be the determining factor for hiring into the position. In addition, the Member had already admitted to falsifying her own credentials.

 

With respect to allegation 4, there was clear evidence that the [employee "A"] resume that was attached to the Human Rights complaint document against [facility "A"] was not the same resume that [employee "A"] presented at the time of hiring at [facility "A"]. The panel believed that the Member had both the opportunity and the motive to falsify [employee "A's"] resume.

With respect to allegation 6, the panel considered the reasons presented for it's decision with respect to allegations 2, 3 and 4 as listed above, and in addition considered the following evidence. The panel heard evidence from [the Forensic Document Examiner] that there were either forged signatures of [the Founder] or cut and paste fabrications of [the Founder's] signature on all [facility "A"] documents that requested one time emergency funding from the MOHLTC. Two documents (Exhibits 32 and 39) had forged signatures of [the Founder]. [The Forensic Document Examiner] gave evidence that there was some indication that these forgeries were written by the Member. [The Forensic Document Examiner] described that 'some indication' referred to the levels of probability used in forensic document examination and that the first degree of certainty meant that there was some indication of forgery but could not be considered definitive. In reviewing the evidence, the panel concluded that the Member forged [the Founder's] signature.

In weighing this evidence, the panel considered [the Forensic Document Examiner's] evidence that it would be difficult to have complete certainty with respect to forgeries and that it would need to be considered as part of the totality of evidence. In the case of the two documents in question (Exhibits 32 & 39), the panel found that the Member had the opportunity and the motive to forge [the Founder's] signature on these documents due to the fact that they contained requests to the MOHLTC for urgent funding, of which the Board was not aware.

[The Forensic Document Examiner] gave evidence that he was definitive that the cut and paste signatures were fabrications, although he could not comment about who might have created them. [The Forensic Document Examiner] was able to determine the document of origin of the original cut and paste fabrication (Exhibit 23). The panel found that the Member had both the motive and opportunity to access this document (Exhibit 23) due to the fact that it was contained in the Member's office files. In addition, no one else, other than the Member, would have known to go to this document to obtain the cut and paste signature. As well, the panel viewed the original document, which had a cut and past signature affixed to it (Exhibit 31). In considering the evidence the panel found that the Member did the cut and paste fabrication.

With respect to the unauthorized purchases from [company "A"] for $7,000.00, the panel heard evidence from multiple witnesses that expenditures greater than $500 required Board approval and there was evidence from [the Forensic Document Examiner] that this bank draft contained a cut and paste signature of [the Founder] on it. The panel concluded that the Member placed the "cut and paste signature" of [the Founder] on the bank draft (Exhibit 51).

With respect to allegation 7, the panel weighed the evidence of previous allegations of falsification of credentials against the Member, and in addition, considered the Member's admission to falsifying her own credentials. Specifically, the Member admitted to falsifying her resume to include a BScN that she did not possess and to omitting critical information from her resume including work experiences at [facility "G"] and [facility "A"].


With respect to the particulars regarding the incorrect information on the Member's business cards at [facility "B"], the panel found it questionable that the Member would have worked at [facility "B"] in an executive position for ten months without accurate business cards, and that the error would include the addition of credentials such as [the Association]. Following the testimony of [the President of the Association], the Member admitted that she was not an [Association] member. The panel considered the fact that the question as to who provided the information for the generation of the business cards was not put to the witness in question, namely [Administrator "B"]. Regardless, the panel concluded that the Member had the both motive and opportunity to provide false information. The panel concluded that the Member provided false information for the business cards.

With respect to allegation 10 the panel weighed other findings regarding the Member's falsification of credentials including the Member's own credentials. In addition, the Member gave evidence that she was aware of [employee "C's"] practice issues with the College of Nurses of Ontario and that there were concerns about his professional nursing practice while he was employed at [facility "B"]. In spite of this, the Member gave him a positive reference. [Administrator "B"] gave evidence that she had received a complaint from [facility "C"] where [employee "C"] was hired questioning why [facility "B"] would have given him a positive reference when they knew or ought to have known that he had professional practice complaints against him.

With respect to the allegations in allegations 5 and 8 of the Amended Notice of Hearing, an Agreed Statement of Facts was filed with the panel. The Agreed Statement of Facts confirmed that the Member was admitting allegation 5 and 8, the particulars of which are set out in Appendix A and B.

With respect to allegation 9 as set out in Appendix B (3), the panel made no finding due to the fact that the onus of proof had not been established.


Penalty

The hearing was reconvened on Wednesday, September 11, 2002, at the [ ], for the purpose of submissions on penalty.

The panel had been advised by its independent legal counsel that the parties wished to seek clarification of the panel's reasons because, in the reasons as provided to the parties in advance of the penalty hearing, there appeared to be an inconsistency concerning the findings of professional misconduct with respect to paragraphs 3, 4 and 6 of the Notice of Hearing, in relation to [employee "B"], and the particulars alleged with respect to [company "B"] in paragraph 6(d) of the Notice of Hearing, given that the College did not lead evidence with respect to these particulars. Accordingly, at the outset of the penalty hearing, the panel agreed to certain amendments to the Decision and Reasons to make it clear that the panel in fact had not made any findings with respect to these particulars, which amendments have been made to the Decision section set out above.

 

 

 

College counsel submitted that the only appropriate penalty, given the seriousness of the findings on the allegations against the Member, would be revocation of the Member's Certificate of Registration.

Defence counsel submitted that the panel should consider the Member's 23 years as a Member of the College, in good standing, prior to 1997, her age, that revocation would inhibit her ability to earn a living for herself and her family, and that revocation would destroy her professional life.

Reasons for Decision

Following deliberations, the panel decided to accept the proposed penalty sought by the College and, therefore ordered the Executive Director to revoke the Member's Certificate of Registration.

The following sets out the panel's reasons for decision:

  • The findings, in addition to the Member's admissions, all represented dishonesty, specifically misrepresentation and misappropriation of property, and also represented numerous acts, rather than a single isolated incident.
  • The numerous deliberate acts of misappropriation and misrepresentation occurred over a long period of time.
  • These acts demonstrate a compounded abuse of trust in a position of authority by misappropriating funds intended for a vulnerable population, and by using these funds for the Member's own personal use.
  • These acts impacted the reputation of [facility "A"] both in their relationship with the MOHLTC and with the public, and compromised the financial viability of [facility "A"].
  • The penalty represents specific deterrence to the Member, and general deterrence to the profession sending a message that this type of conduct will not be tolerated.
  • There was no attempt made at restitution to [facility "A"] by the Member.
  • The panel was appalled at the repeated acts of dishonesty, deceit, and unprofessional behaviour in addition to the total demonstrated lack of regret and remorse.

 

 

 

 

I, Marsha Taylor, RPN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel as listed below:

 

 

___________________________________

  ____________

Chairperson

 

Date

Sandy Brewer, RN
Jo-Anne Marr, RN
Bill Weichel, Public Representative

   


Page mise à jour le septembre 28, 2010