Former IWK CEO Tracy Kitch chooses Supreme Court for fraud retrial

A former CEO of the IWK Health Centre has elected to have her retrial on a charge of fraud over $5,000 take place in Nova Scotia Supreme Court.

Lawyer Nick Fitch appeared in Halifax provincial court Friday on behalf of Tracy Leanne Kitch, 62, of Etobicoke, Ont., who was not present.

Fitch announced that Kitch, with the Crown’s consent, was re-electing to have her case heard by a Supreme Court judge alone.

Lawyers will appear in Supreme Court in Halifax on Feb. 22 to begin the process of setting trial dates.

Kitch first stood trial in Halifax provincial court in December 2021 on charges of fraud and breach of trust by a public official.

Judge Paul Scovil found her guilty of February 2022 of defrauding the Halifax hospital by charging more than $43,000 in personal expenses to her corporate credit card between 2014 and 2017.

Most of the expenditures in question were for pre-purchased Air Canada flight passes for travel between Halifax and Toronto, where Kitch’s family lived. The personal expenses also included smaller charges for taxis, hotels, baggage, flight changes and meals.

The judge also found Kitch guilty of breach of trust before staying that charge, citing a rule against multiple convictions arising from the same facts.

In August 2022, Scovil sentenced Kitch to five months in jail, followed by a year’s probation. He rejected the defence request for a conditional sentence to be served in the community.

Kitch spent one night in jail before a Nova Scotia Court of Appeal judge granted her bail pending appeal.

Kitch’s Toronto lawyers, Brian Greenspan and Jacqueline King, had filed a notice of appeal in the Appeal Court in July 2022, three weeks before her sentencing hearing.

In their grounds of appeal, the defence lawyers claimed Scovil erred in convicting Kitch without making factual findings supporting the essential elements of the offences.

“The reasons were insufficient to permit adequate appellate review, as the learned trial judge failed to analyze the evidence presented at trial against the elements of the offence and reached only a bare conclusion of guilt with minimal explanation as to the basis upon which a conviction was entered,” their notice of appeal said.

“This is insufficient to permit this court to understand why, in the context of the evidence as a whole, the trial judge arrived at his conclusion with respect to criminal wrongdoing as opposed to a breach of organizational policy.”

Convictions quashed

A three-member Appeal Court panel unanimously quashed the convictions in March 2023 and ordered a new trial.

The panel found the trial judge erred in not providing an analysis of his application of the law to the evidence before him. 

“It is not for this Court to attempt to articulate the findings or infer the credibility determinations the judge does not appear to have made, or, if he did, have not been sufficiently explained,” Justice Carole Beaton wrote for the panel.

“Regrettably, the decision does not provide ‘an intelligible pathway to the result’ the judge reached. … The error rests in this court being left unable to conduct the meaningful appellate review contemplated in the jurisprudence.”

Resigned in 2017

Kitch resigned as president and CEO of the IWK in August 2017 after an independent audit determined she had used her corporate credit card to pay for about $47,000 in personal expenses.

She reimbursed the hospital for some of the expenses before she stepped down, and the rest was repaid shortly afterward.

The IWK’s board of directors filed a criminal complaint with police in September 2017.

In October 2018, police announced criminal charges against Kitch and the hospital’s former chief financial officer, Stephen D’Arcy, who had stepped down in September 2017.

D’Arcy, of Toronto, was accused of breach of trust, unauthorized use of a computer and data mischief. Those charges were dismissed in May 2022 after the Crown announced it was offering no evidence.