College of Nurses of Ontario v. Rahim Charania, 2014 ONCNO 82280

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL: Megan Sloan, RPN Chairperson Grace Fox, NP Member Susan Roger, RN Member Renate Davidson Public Member Chuck Williams Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JEAN-CLAUDE KILLEY for ) College of Nurses of Ontario

• and - )

RAHIM CHARANIA ) TIM HANNIGAN for Registration No. 06272543 ) Rahim Charania

Heard: May 5, 2014

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on May 5, 2014, at the College of Nurses of Ontario (“the College”) at Toronto.

The Allegations

The allegations against Rahim Charania (the “Member”) as stated in the Notice of Hearing dated January 10, 2014, are as follows.

IT IS ALLEGED THAT:

1. You have committed an act of professional misconduct as provided by subsection 51(1)(a) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, in that you were found guilty of an offence that is relevant to your suitability to practise, and in particular, on or about June 25, 2012, you were found guilty of the following offences:

a. fraudulently and without colour of right using a computer system with intent to commit an offence under s. 430(1.1) in relation to data, contrary to s. 342.1(1) of the Criminal Code of Canada;

b. committing mischief by wilfully obstructing, interrupting and interfering with the lawful use of data, contrary to s. 430(5)(b) of the Criminal Code of Canada;

2. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(15) of Ontario Regulation 799/93, in that you signed or issued, in your professional capacity, documents that you knew or ought to have known contained a false or misleading statement, and in particular:

a. you provided false dates of employment on a job application and/or resume dated November 22, 2011;

b. you provided false dates of employment on a job application and/or resume dated December 30, 2011;

c. you provided false dates of employment on a job application and/or resume dated January 19, 2012;

d. you provided one or more false references on a job application and/or resume dated December 30, 2011;

e. you provided one or more false references on a job application and/or resume dated January 19, 2012;

3. You have committed an act of professional misconduct as provided by subsection 51(1)(c) of the Health Professions Procedural Code of the Nursing Act, 1991, S.O. 1991, c. 32, as amended, and defined in subsection 1(37) of Ontario Regulation 799/93, in that you engaged in conduct or performed an act, 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 in particular:

a. you provided false dates of employment on a job application and/or resume dated November 22, 2011;

b. you provided false dates of employment on a job application and/or resume dated December 30, 2011;

c. you provided false dates of employment on a job application and/or resume dated January 19, 2012;

d. you provided one or more false references on a job application and/or resume dated December 30, 2011;

e. you provided one or more false references on a job application and/or resume dated January 19, 2012.

Member’s Plea

The Member admitted the allegations set out in paragraphs numbered 1, 2 and 3 in the Notice of Hearing. The panel received a written plea inquiry which was signed by the Member. The panel also conducted an oral plea inquiry and was satisfied that the Member’s admission was voluntary, informed and unequivocal.

Agreed Statement of Facts

Counsel for the College advised the panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts which provided as follows.

THE MEMBER

1. Rahim Charania (the “Member”) obtained a degree in nursing [ ] in 2004.

2. The Member registered with the College of Nurses of Ontario (the “College”) as a Registered Nurse (“RN”) on January 17, 2006.

3. The Member was employed at [Facility A] from January 27, 2010, to September 22, 2011.

4. The Member was employed at [Facility B] from February 6, 2012, to August 30, 2012.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

Criminal Convictions

5. On June 25, 2012, the Member was found guilty of fraudulently using a computer system with the intent to commit an offence, contrary to section 342.1(1) of the Criminal Code of Canada, and committing mischief by wilfully obstructing, interrupting and interfering with the lawful use of data, contrary to section 430(5)(b) of the Criminal Code of Canada.

6. On July 26, 2012, the Member was sentenced to 18 months’ probation and fined $1,300. The Member was also ordered to pay restitution to [Facility A] in the amount of $1,200.

7. The offences arose from the Member’s conduct on the evening of September 22, 2011, after he resigned in a fit of anger from [Facility A], where he had been employed as the Director of Care.

8. After leaving [Facility A], the Member logged into [Facility A]’s remote email system from home, using the Human Resources Coordinator’s username and password. The Member accessed and sent himself emails between senior management as well as emails between [Facility A] and its legal counsel about his employment.

9. At trial before a judge of the Ontario Court of Justice, the Member pled not guilty. He did not deny logging into the email system using another person’s username and password, but claimed that the Human Resources Coordinator had given him her username and password for the express purpose of logging in using her password to forward certain emails to himself. [Facility A]’s usernames are a first-initial-last-name format and the Human Resources Coordinator’s password was “Password1.”

10. The Member’s version of events was not believed by the trial judge. When sentencing the Member, the trial judge considered it to be an aggravating factor that the Member had advanced a defence that, to his knowledge, wrongfully implicated an innocent person in improper conduct.

11. The Member appealed his conviction and sentence to a judge of the Superior Court of Justice. The appeal was heard on March 4, 2014, and a decision rendered on March 17, 2014.

12. At the hearing of the appeal, the Member abandoned his conviction appeal, leaving only his appeal on sentence. The Superior Court allowed the sentence appeal, holding that it was an error of law for the trial judge to have considered the specific defence advanced by the Member to be an aggravating factor in his sentence. The Superior Court set aside the sentence of a $1,300 fine and 18 months’ probation (including restitution of $1,200), and imposed instead a conditional discharge and 9 months’ probation (including restitution of $1,200 – which had at that point been paid – and 60 hours of community service).

Misrepresentation on Job Applications and Falsified References

13. After resigning from [Facility A] on September 22, 2011, the Member was hired to work at [Facility B] on February 6, 2012, as the Clinical Operations Coordinator. On August 3, 2012, [Facility B] received an anonymous letter from a “concerned citizen.” The letter alleged that the Member’s employment at several prior facilities had been terminated, in some cases for misconduct. As a result, human resources at [Facility B] followed up with [Facility A]. Ultimately, no evidence corroborating the anonymous allegations was uncovered. However, in the course of its follow-up, [Facility B] discovered that the Member had made numerous misrepresentations with respect to dates of employment on his resumes and job applications to [Facility B].

14. The Member submitted applications to [Facility B] on the following dates: November 14, 2005, (RN position); November 22, 2011, (RN and Clinical Educator); December 30, 2011, (RN position); and January 19, 2012, (Clinical Operations Coordinator). Each application attached a resume.

15. The Member made the following misrepresentations on his applications and resumes.

Facility

Dates shown by Member

Actual employment dates

[Facility C]

On his November 22, 2011 and December 30, 2011 applications

• June 2005 to February 2008

On his November 22, 2011 and December 30, 2011 resumes

• February 2008 to December 2009

On his January 19, 2012 application

• June 2009 to December 2010

On his January 19, 2012 resume

• 2009-2010

• April 2008 to January 2010

[Facility D]

On his January 19, 2012 application

• January 2007 to June 2009

On his January 19, 2012 resume

• 2007 to 2009

• June 2007 to September 2008

[Facility A]

On his November 22, 2011 and December 30, 2011 applications and resumes

• December 2009 to Present (i.e. November/December 2011)

On his January 19, 2012 application

• December 2010 to Present (January 2012)

On his January 19, 2012 resume

• 2010 to Present (January 2012)

• February 2010 to September 2011

[Facility E]

On his November 22, 2011 and December 30, 2011 resumes

• June 2005 to February 2008

On his January 19, 2012 resume

• 2005 to 2007

• January 2006 to June 2007

16. The Member also provided the names of three individuals as job references who were not in fact the people the Member claimed they were. One name was fictitious (provided on his January 19, 2012, application); one was the Member’s wife (provided on his December 30, 2011, and January 19, 2012, applications and his January 19, 2012, resume); the third was an individual who had co-owned businesses with the Member in [another province] (provided on his December 30, 2011 and January 19, 2012 applications). Each person provided a good reference on the Member’s behalf to a third party company who was tasked with checking references for [Facility B].

17. [Facility B] terminated the Member’s employment on August 30, 2012, after discovering these false job applications.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

18. The Member admits that he committed the acts of professional misconduct as described in paragraphs 5 to 17 above and as alleged in the Notice of Hearing, in the following paragraphs:

• 1 (a) and (b)

• 2 (a), (b), (c), (d) and (e)

• 3(a), (b), (c), (d) and (e)

Decision

The panel considered the Agreed Statement of Facts and finds that the facts support a finding of professional misconduct. In particular, the panel finds that the Member committed acts of professional misconduct as alleged in paragraphs 1, 2 and 3 of the Notice of Hearing in that he was found guilty of two offences relevant to his suitability to practi[s]e; he signed or issued, in his professional capacity, documents that he knew or ought to have known contained false or misleading statements; and he engaged in conduct or performed an act, relevant to the practice of nursing that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional.

Reasons for Decision

The Member was found guilty of two offences relevant to his suitability to practi[s]e, specifically, sections 342.1(1) and 430(5)(b) of the Criminal Code of Canada. The offences arose out of a workplace dispute and relate to the Member’s suitability to practi[s]e.

The evidence proves that the Member signed, in his professional capacity, documents that he knew or ought to have known contained false or misleading statements, in that he provided false dates of employment on a job application and his resume and provided false references to employers.

As to allegation 3, it was agreed by the College and the Member that the Member had engaged in conduct relevant to the practice of nursing that, having regard to all circumstances, would reasonably be regarded by members as disgraceful, dishonourable and unprofessional. The panel finds that the Member’s conduct was disgraceful, dishonourable and unprofessional. It was unprofessional as it demonstrated a serious disregard for his professional obligations. It was dishonourable as it demonstrated dishonest behaviour in the pursuit of nursing positions and future employment. Finally, the panel finds that the Member’s conduct was disgraceful as it shames the Member and, by extension, the profession. The conduct casts doubt on the Member’s ethical fitness and his ability to discharge the higher obligations the public expects all professionals to meet.

Penalty

Counsel for the College advised the panel that a Joint Submission as to Order had been agreed upon. The Joint Submission as to Order requests that this panel make an order as follows:

1. Requiring the Member to appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for four months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

3. Directing the Executive Director to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a. The Member will attend two meetings with a Nursing Expert (the “Expert”), at his own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

1. Professional Standards;

iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaire [and] online participation form[ ];

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into his behaviour;

vii. If the Member does not comply with any [one or more] of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;

b. For a period of 24 months from the date the Member’s suspension ends, the Member will notify his employers of the decision. To comply, the Member is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide his employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. this Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession; and

3. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Penalty Submissions

Submissions were made by College Counsel and the Member’s Counsel. It was agreed that the proposed penalty supports general and specific deterrence, remediation and rehabilitation. The proposed penalty was within the range established by past decisions in similar hearings, particularly CNO v. Holmgren (Discipline Committee, 2013) and CNO v. Wallace (Discipline Committee, 2004). These cases imposed reprimands and suspensions as specific and general deterrents. Holmgren also provided a rehabilitative component as part of its penalty, similar to the terms and conditions in the proposed penalty for the present case.

Counsel also submitted that the joint submission had been carefully considered and negotiated by both parties, and should be considered by the panel in light of the principles expressed in College of Physicians and Surgeons v. Muhammad , [2013] O.C.P.S.D. No. 14 and CNO v. Sondy (Discipline Committee, 2012).

The parties agreed that:

• An oral reprimand provides a specific deterrent to the Member himself, while offering a general deterrent to the profession at large. This reprimand serves as a denunciation of the Member’s conduct.

• A four-month suspension provides specific deterrence to the Member [and] general deterrence to the profession, and reflects the seriousness of the misconduct. The suspension serves to protect public confidence in the College’s self-regulation processes.

• Working with a Nursing Expert is a remedial and rehabilitative term for the Member. By admitting his conduct, the Member displays capacity for rehabilitation and the proposed penalty provides the forum for reflection and to improve practice. It is in the public’s and the profession’s interest to improve practice.

• Employer notification shall serve to maintain public confidence and public protection and will provide a further rehabilitative element for the Member.

Penalty Decision

The panel accepts the Joint Submission as to Order and accordingly orders:

1. The Member shall appear before the Panel to be reprimanded within three months [of the date] that this Order becomes final.

2. The Executive Director is directed to suspend the Member’s certificate of registration for four months. This suspension shall take effect from the date that this Order becomes final and shall continue to run without interruption as long as the Member remains in the practising class.

3. The Executive Director is directed to impose the following terms, conditions and limitations on the Member’s certificate of registration:

a. The Member will attend two meetings with a Nursing Expert (the “Expert”), at his own expense and within six months of the date of this Order. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by the Director of Professional Conduct (the “Director”) in advance of the meetings;

ii. At least seven days before the first meeting, the Member provides the Expert with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. [the] Joint Submission on Order, and

5. if available, a copy of the Panel’s Decision and Reasons;

iii. Before the first meeting, the Member reviews the following College publications and completes the associated Reflective Questionnaires and online learning modules:

1. Professional Standards;

iv. At least seven days before the first meeting, the Member provides the Expert with a copy of the completed Reflective Questionnaires [and] online participation forms;

v. The subject of the sessions with the Expert will include:

1. the acts or omissions for which the Member was found to have committed professional misconduct,

2. the potential consequences of the misconduct to the Member’s clients, colleagues, profession and self,

3. strategies for preventing the misconduct from recurring,

4. the publications, questionnaires and modules set out above, and

5. the development of a learning plan in collaboration with the Expert;

vi. Within 30 days after the Member has completed the last session, the Member will confirm that the Expert forwards his/her report to the Director, in which the Expert will confirm:

1. the dates the Member attended the sessions,

2. that the Expert received the required documents from the Member,

3. that the Expert reviewed the required documents and subjects with the Member, and

4. the Expert’s assessment of the Member’s insight into his behaviour;

vii. If the Member does not comply with any [one or more] of the requirements above, the Expert may cancel any session scheduled, even if that results in the Member breaching a term, condition or limitation on his certificate of registration;

b. For a period of 24 months from the date the Member’s suspension ends, the Member will notify his employers of the decision. To comply, the Member is required to:

i. Ensure that the Director is notified of the name, address, and telephone number of all employer(s) within 14 days of commencing or resuming employment in any nursing position;

ii. Provide his employer(s) with a copy of:

1. the Panel’s Order,

2. the Notice of Hearing,

3. the Agreed Statement of Facts,

4. [the] Joint Submission on Order, and

5. a copy of the Panel’s Decision and Reasons, once available;

iii. Ensure that within 14 days of the commencement or resumption of the Member’s employment in any nursing position, the employer(s) forward(s) a report to the Director, in which it will confirm:

1. that they received a copy of the required documents, and

2. that they agree to notify the Director immediately upon receipt of any information that the Member has breached the standards of practice of the profession;

3. All documents delivered by the Member to the College, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

Reasons for Penalty Decision

The panel understands that the penalty ordered should protect the public and enhance public confidence in the ability of the College to regulate nurses. This is achieved through a penalty that addresses specific deterrence, general deterrence and rehabilitation and remediation. The panel also considered the penalty in light of the principle that joint submissions should not be interfered with lightly.

The panel concluded that the proposed penalty is reasonable and in the public interest. The Member has cooperated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility for his actions. The penalty provides the message of denunciation to this Member and articulates for other members that the profession is more than the nurse-[client] relationship, and also imposes obligations and expectations about how one acts as a professional.

The penalty provides specific deterrence to the Member, general deterrence for the profession, and protection of the public interest. It assured that the public trust in the profession will be maintained.

I, Megan Sloan, 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

Panel Members:

Grace Fox, NP

Sue Roger, RN

Renate Davidson

Chuck Williams