Records vs. Recollection

An individual’s recollection of a particular event or set of events can be a powerful piece of evidence, however its impact can be significantly undermined by the passage of time. This was the key issue in the recent case of Szommer v. Ontario College of Nurses, 2021 ONSC 8463,, a case involving a complaint made in 2019 with respect to events that occurred a decade earlier.

The complainant had alleged that a nurse falsely recorded her visits and bloodwork. The College investigated and determined that while the original records were no longer available, the electronic records were and did not bear out the complaint. The complainant asserted the records had been falsified, however based on the time between the events at issue and the complaint and the fact that the available records did not support the complaint, the College did not investigate the allegations of falsification further.

The complainant appealed to the Health Professions Appeal and Review Board (HPARB) and argued that the College should have investigated her allegations of falsification of records further. The HPARB, preferring the available records over the complainant’s memory, affirmed the College’s decision and held that in the absence of compelling information to the contrary, health records are a reliable source of information as to what occurred during patient encounters. The complainant appealed that decision to the Divisional Court.

Interestingly, the Court put the complainant on notice that it was considering dismissing her application as frivolous, vexatious and/or an abuse. It directed her to explain the legal error made by the HPARB, or the finding of fact for which there was no evidentiary basis such that the Court could be justified intervening with the HPARB’s decision. In response, she merely reasserted that the records had been falsified and that it was an error of law for HPARB to accept them.

The Court rejected the complainant’s argument and held that her personal recollection of events from ten years prior was not sufficient to displace HPARB’s reliance on the records, which was appropriate in the circumstances. Moreover, reliance on the medical records rather than oral testimony of events from ten years ago was even more compelling to the Court. The Court accordingly dismissed the proceeding as frivolous, vexatious and an abuse of process.

It should be noted that the complainant was criticized for bringing her matter by way of application rather than by appeal. However pursuant to section 70 of the Health Professions Procedural Code, a matter may only be brought by appeal if it concerns “a registration hearing or review”, or a proceeding before a panel of the Discipline or Fitness to Practise Committee, which was not the case here. This apparent oversight, which perhaps can be associated with the summary nature of the ruling, was not part of the primary basis for the decision.

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