College of Nurses of Ontario v. Hardy, 2016 ONCNO 104257

PANEL: MICHAEL HOGARD, RPN Chairperson DAVID EDWARDS, RPN Member CATHY EGERTON Public Member SHIRAZ IRANI Member MARY MACMILLAN-GILKINSON Public Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) JESSICA LATIMER for ) College of Nurses of Ontario

and - ) ) NO REPRESENTATION for Carrie A. Hardy CARRIE A. HARDY ) Registration No. 0324723 ) ) LUISA RITACCA ) Independent Legal Counsel ) Heard: August 12, 2016

DECISION AND REASONS

This matter came on for hearing before a panel of the Discipline Committee on August 12, 2016 at the College of Nurses of Ontario (“the College”) at Toronto.

The panel noted that Carrie Hardy (the “Member”) was not present and not represented. The panel recessed the hearing for 15 minutes to allow time for the Member to appear. Upon reconvening the panel noted that the Member was still not in attendance and was not represented.

Counsel for the College provided the panel with evidence that the Member had been sent the Notice of Hearing on April 29, 2016. The panel was satisfied that the Member had received adequate notice of the time, place and purpose of the hearing, and therefore proceeded with the hearing in the Member’s absence.

The Allegations

The allegations against the Member as stated in the Notice of Hearing dated April 29, 2016, were as follows.

IT IS ALLEGED THAT:

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 between 2010 and 2014, in the Ontario Court of Justice in Sarnia, Ontario, you were found guilty of offences relevant to your suitability to practise, as follows:

(a) On February 9, 2010, you were found guilty of the following offences:

a) on our about the 21^st day of December of the year 2008 at the City of Sarnia in the said region, you did steal merchandise, the property of Loblaw’s Superstore, of a value not exceeding $5,000, contrary to section 334(b) of the Criminal Code of Canada; and

b) on or about the 26^th day of February in the year 2009 in the Township of Enniskillen in the southwest region, while your ability to operate a motor vehicle was impaired by alcohol, you did operate a motor vehicle, contrary to section 253(1)(a) of the Criminal Code of Canada.

(b) On November 30, 2010, you were found guilty of the following offences:

a) on or about the 5^th day of May in the year 2009 at the Town of Petrolia in the said region, you did with intent to mislead, cause a Peace Officer to continue upon an investigation by falsely identifying yourself as [ ], contrary to section 140(1)(b) of the Criminal Code of Canada;

b) on or about the 8^th day of May in the year 2009 at the Town of Petrolia in the said region, you did fraudulently personate [ ] with intent to gain advantage for yourself to wit: avoid arrest, contrary to section 403(a) of the Criminal Code of Canada;

c) on or about the 8^th day of May in the year 2009 at the Town of Petrolia in the said region, you did, being at large on your undertaking given to an officer in charge and being bound to comply with a condition of that undertaking directed by the said officer in charge, fail without lawful excuse to comply with that condition to wit: not operate a motor vehicle within the Province of Ontario absolutely, contrary to section 145(5.1) of the Criminal Code of Canada; and

d) on or about the 8^th day of May in the year 2009 at the Town of [ ] in the said region, you did operate a motor vehicle on a highway to wit: Eureka Street, when your driver’s license was suspended by operation of the Highway Traffic Act of Ontario, contrary to section 53 of the Highway Traffic Act.

a) on our about the 25^th day of November in the year 2010 at the City of Sarnia in the said region, you did operate a motor vehicle while disqualified from doing so by reason of an order pursuant to section 259(1) of the Criminal Code of Canada, contrary to the Criminal Code of Canada, section 259(4)(a).

(d) On September 15, 2014, you were found guilty of the following offences:

a) on or about the 15^th day of August in the year 2012 at the Town of Petrolia in the said region, you did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code of Canada;

b) on or about the 8^th day of September in the year 2013 at the Town of Petrolia in the said region, you did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code of Canada; and

c) on or about the 30^th day of June in the year 2014 at the City of Sarnia in the said region, you did, having been charged with a criminal offence and named in a recognizance that was confirmed by a Justice, fail without lawful excuse to attend court in accordance therewith, contrary to section 145(5) of the Criminal Code of Canada.

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(18) of Ontario Regulation 799/93, in that, between 2010 and 2014, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.i. of Ontario Regulation 275/94, in that you failed to report findings of guilt to the Executive Director of the College of Nurses (the “College”), as follows:

(a) On February 9, 2010, you were found guilty of the following offences, which you did not report:

(b) On November 30, 2010, you were found guilty of the following offences, which you did not report:

d) on or about the 8^th day of May in the year 2009 at the Town of Petrolia in the said region, you did operate a motor vehicle on a highway to wit: Eureka Street, when your driver’s license was suspended by operation of the Highway Traffic Act of Ontario, contrary to section 53 of the Highway Traffic Act.

(d) On September 15, 2014, you were found guilty of the following offences, which you did not report:

b) on or about the 8^th day of September in the year 2013, at the Town of Petrolia in the said region, you did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code of Canada; and

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(18) of Ontario Regulation 799/93, in that, between 2013 and 2014, you contravened a term, condition or limitation on your certificate of registration, imposed pursuant to s. 1.5(1)1.(ii) of Ontario Regulation 275/94, in that you failed to report charges relating to any offence to the Executive Director of the College, as follows:

(a) On September 8, 2013, you were charged with the following offences, which you did not report:

a) on or about the 8^th day of September in the year 2013, at the Town of Petrolia in the said region, you did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code of Canada; and

b) on or about the 8^th day of September 2013 at the Town of Petrolia in the said Region, did having been charged with a criminal offence and being at large on an Undertaking entered into before an Officer in Charge and being bound to comply with a condition of that Undertaking fail without lawful excuse to comply with that condition to wit: Not to operate a motor vehicle, vessel or motorized snow vehicle, contrary to Section 145(5.1) of the Criminal Code of Canada.

(b) On June 30, 2014, you were charged with the following offence, which you did not report:

a) on or about the 30^th day of June in the year 2014 at the City of Sarnia in the said region, you did, having been charged with a criminal offence and named in a recognizance that was confirmed by a Justice, fail without lawful excuse to attend court in accordance therewith, contrary to section 145(5) of the Criminal Code of Canada.

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(19) of Ontario Regulation 799/93, in that you contravened a provision of the Nursing Act, 1991, the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, or the regulations under either of those Acts, and in particular, section 85.6.1 of the Health Professions Procedural Code, in that, between 2010 and 2014, you failed to report findings of guilt to the Executive Director of the College, as follows:

(a) On February 9, 2010, you were found guilty of the following offences, which you did not report:

(b) On November 30, 2010, you were found guilty of the following offences, which you did not report:

a) on or about the 5^th day of May in the year 2009 at the Town of [ ] in the said region, you did with intent to mislead, cause a Peace Officer to continue upon an investigation by falsely identifying yourself as [ ], contrary to section 140(1)(b) of the Criminal Code of Canada;

(d) on September 15, 2014, you were found guilty of the following offences, which you did not report:

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 of the profession as disgraceful, dishonourable or unprofessional in that, between 2010 and 2014, in that you failed to report charges and/or findings of guilt to the Executive Director of the College, as follows:

(a) On February 9, 2010, you were found guilty of the following offences, which you did not report:

a) on our about the 21^st day of December, 2008 at the City of Sarnia in the said region, you did steal merchandise, the property of Loblaw’s Superstore, of a value not exceeding $5,000.00, contrary to section 334(b) of the Criminal Code of Canada; and

b) on or about the 26^th day of February, 2009 in the Township of Enniskillen in the southwest region, while your ability to operate a motor vehicle was impaired by alcohol, you did operate a motor vehicle, contrary to section 253(1)(a) of the Criminal Code of Canada.

(b) On November 30, 2010, you were found guilty of the following offences, which you did not report:

a) on or about the 5^th day of May in the year 2009, at the Town of Petrolia in the said region, you did with intent to mislead cause a peace officer to continue upon an investigation by falsely identifying yourself as [ ] contrary to section 140(1)(b) of the Criminal Code of Canada;

b) on or about the 8^th day of May in the year 2009, at the Town of Petrolia in the said region, you did fraudulently personate [ ] with intent to gain advantage for yourself to wit: avoid arrest, contrary to section 403(a) of the Criminal Code of Canada;

c) on or about the 8^th day of May in the year 2009, at the Town of Petrolia in the said region, you did, being at large on your undertaking given to an officer in charge and being bound to comply with a condition of that undertaking directed by the said officer in charge, fail without lawful excuse to comply with that condition to wit: not to operate a motor vehicle within the Province of Ontario absolutely, contrary to section 145(5.1) of the Criminal Code of Canada; and

d) on or about the 8^th day of May in the year 2009, at the Town of Petrolia in the said region, you did commit the offence of unlawfully operating a motor vehicle on a highway to wit: [ ] when your driver’s license was suspended by operation of the Highway Traffic Act of Ontario, contrary to section 53 of the Highway Traffic Act.

a) on our about the 25^th day of November in the year 2010, at the City of Sarnia in the said region, you did operate a motor vehicle while disqualified from doing so by reason of an order pursuant to section 259(1) of the Criminal Code of Canada, contrary to the Criminal Code of Canada, section 259(4)(a).

(d) On September 8, 2013, you were charged with the following offences, which you did not report:

(e) On June 30, 2014, you were charged with the following offence, which you did not report:

(f) On September 15, 2014, you were found guilty of the following offences, which you did not report:

a) on or about the 15^th day of August in the year 2012, at the Town of Petrolia in the said region, you did operate a motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code of Canada;

Member’s Plea

Given that the Member was not present nor represented, she was deemed to have denied the allegations. The Hearing proceeded on the basis that the College bore the onus of proving the allegations in the Notice of Hearing against the Member.

Overview

The Member first registered with the College as a Registered Practical Nurse (“RPN”) in April 2003. In January 2006, she registered as a Registered Nurse (“RN”). She practised as an RN from January 2006 until February 2013 and from March 2013 until February 2015.

The College became aware of the Member as a result of an employer’s report. This initiated an investigation, which determined that the Member had been convicted of 10 offences under the Criminal Code of Canada between December 2008 and June 2014. These offences are relevant to the Member’s suitability to practise in that they involve dangerous and dishonest behaviour. The Member failed to disclose this information as part of her self-reporting obligation.

The panel heard evidence from one witness and received 23 exhibits to review. Having considered the evidence and the onus and standard of proof, the panel found that the Member committed acts of professional misconduct as alleged in paragraphs:

1 (a) subset (a) (b); 1 (b) subset (a) (b) (c) (d); 1 (c) subset (a); 1(d) subset (a) (b) (c); 2 (a) subset (a) (b); 2(b) subset (a) (b) (c) (d); 2 (c) subset (a); 2 (d) subset (a) (b) (c); 3(a) subset (a) (b); 3 (b) subset (a); 4(a) subset (a) (b); 4(b) subset (a) (b) (c) (d); 4(c) subset (a) 4(d) subset (a) (b) (c);5 (a) subset (a) (b); 5(b) subset (a) (b) (c) (d); 5(c) subset (a); 5(d) (subset (a) (b); 5(e) subset (a); 5 (f) subset (a) (b) (c);

The panel determined that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional.

The Evidence

Findings of Guilt Relevant to Suitability to Practise

The panel considered uncontested evidence with respect to the Member’s suitability to practise, set out in allegations 1 (a) a, b; 1(b) a, b, c, d; 1(c) a; and 1(d) a, b.

The panel reviewed documents from the Ontario Court of Justice found in Exhibits 11 through 21. These documents contained certified copies of the Member’s charges and convictions as well as certified copies of transcripts. The panel reviewed evidence that showed that the Member had been charged and convicted of theft under $5000; Driving while impaired; falsely identifying herself as [ ] to a peace officer; fraudulently personating [ ] to avoid arrest; failing to comply with undertaking not to drive on May 2009; driving with a suspended licence; driving while disqualified on November 2010, August 2012 and September 8, 2013; and failing to attend court when required by law to do so.

The panel also reviewed evidence that showed that the Member had been charged, but not convicted of failing to comply with an undertaking not to drive in September of 2013.

Contravened Term, Condition or Limitation on Certificate of Registration by Failure to Report Findings of Guilt

Subsection 1(18) of Ontario Regulation 799/93 (the “Professional Misconduct Regulation”) makes it professional misconduct for nurses to contravene a term, condition or limitation on their certificate of registration. Subsection 1.5(1)1.i of Ontario Regulation 275/94 provides that every certificate of registration is subject to a term, condition and limitation requiring nurses to provide to the Executive Director the details of any finding of guilt arising in any jurisdiction relating to any offence.

The panel considered uncontested evidence with respect to the Member’s failure to report her findings of guilt to the College set out in allegations 2 (a) a, b; 2 (b) a, b, c, d; 2 (c) a; 2 (d) a, b, c.

The panel heard evidence from [ ] Intake Coordinator with the College of Nurses. She testified that the Member did not self-report her criminal findings of guilt to the Executive Director at the College. It was through an employer’s report to the College that the College first learned of the criminal proceedings. [The Intake Coordinator] testified that self-reporting is a compulsory requirement that is outlined in the College document, Mandatory Reporting: A process guide for employers, facility operators and nurses (2015, 2009, 2010, 2011, 2012). Exhibits 4 through 9 detailed the different iterations of the document that have consistently maintained this obligation.

Contravened Term, Condition or Limitation on Certificate of Registration by Failure to Report Charges

The panel considered uncontested evidence with respect to the Member’s failure to report charges, relating to any offence, to the Executive Director of the College as set out in allegations 3(a) a, b; and 3(b) a.

Subsection 1.5(1)1.ii of Ontario Regulation 275/94 provides that every certificate of registration is subject to a term, condition and limitation requiring nurses to provide to the Executive Director the details of any charge arising in any jurisdiction relating to any offence.

Exhibit 9, Mandatory Reporting A process guide for employers, facility operators and nurses (November 2012) states that a nurse “must self-report to the College if she or he has been charged with any offence in any jurisdiction”. [The Intake Coordinator] testified that this condition of registration has been in effect since January 1, 2013.

The Member has had three charges laid against her since January 1, 2013. [The Intake Coordinator] testified that the Member failed to self-report the following charges:

September 2013: Driving while disqualified (Allegation 3(a) a);

September 2013: Failing to comply with undertaking not to drive (Allegation 3(a) b); and

June 2014: Failing to attend court (Allegation 3(b) a).

Failure to Report Findings of Guilt

The panel considered uncontested evidence with respect to the Member’s failure to report findings of guilt to the Executive Director at the College. Subsection 1 (19) of the Professional Misconduct Regulation states that a nurse commits professional misconduct by breaching a provision of the Regulated Health Professions Act, 1991. The Health Professions Procedural Code (which is a Schedule to the Regulated Health Professions Act, 1991) states in section 85.6.1 that all members must report in writing to their college if they are found guilty of an offence.

The allegations are set out in 4(a) a, b; 4(b) a, b, c, d; 4(c) a; and 4(d) a, b, c.

The panel reviewed the certified copies of convictions and transcripts from the Ontario Court of Justice found in Exhibits 11 through 21. [The Intake Coordinator’s] testimony confirmed that the Member had not reported any findings of guilt to the College.

Disgraceful, Dishonourable or Unprofessional Conduct

The panel reviewed Exhibits 11-23 and considered the number of serious and dangerous offences committed by the Member. The panel also considered the Member’s unwillingness to abide by the orders of the court and by the mandates of her profession.

Decision

The College bears the onus of proving the allegations in accordance with the standard of proof, that being the balance of probabilities and based on clear, cogent and convincing evidence.

Having considered the evidence and the onus and standard of proof, the panel found that the Member committed acts of professional misconduct as alleged in the Notice of Hearing in paragraphs; 1(a) subset (a) (b);1(b) subset (a) (b) (c) (d); 1(c) subset (a);1(d) subset (a) (b) (c); 2 (a) subset (a) (b); 2(b) subset (a) (b) (c) (d); 2 (c) subset (a); 2 (d) subset (a) (b) (c); 3(a) subset (a) (b); 3 (b) subset (a); 4(a) subset (a) (b); 4(b) subset (a) (b) (c) (d); 4(c) subset (a); 4(d) subset (a) (b) (c);5 (a) subset (a) (b);5(b) subset (a) (b) (c) (d);5(c) subset (a);5(d) (subset (a) (b)5(e) subset (a);5 (f) subset (a) (b) (c);

In particular, the Member committed acts of professional misconduct in that she was charged and convicted of numerous criminal offences that were relevant to her suitability to practise.

The offences for which the Member was found guilty are relevant to her suitability to practise because in that they involve dangerous and dishonest behaviour.

The Member failed to report these charges and convictions to the College on her Annual Renewal form (Exhibit 3), or in any other way.

The panel found that the Member engaged in conduct that would reasonably be regarded by members of the profession as disgraceful, dishonourable and unprofessional in that she engaged in repetitive and illegal behavior that showed poor judgment. The Member’s actions have the effect of shaming the Member and, by extension, the profession. Driving while impaired, driving when disqualified and failing to comply with an undertaking not to drive demonstrate the Member’s persistent disregard for laws and court rulings. Impersonating others to avoid arrest, failing to attend court and failing to self-report charges and convictions to the College show an unwillingness to take responsibility and accept the consequences for her actions. Engaging in theft is unacceptable behavior that falls well below the standards of a professional nurse.

Penalty Submissions

Counsel for the College made submissions with respect to penalty and provided the panel with cases that had similarities to the Member’s. Counsel for the College submitted that the Member’s Certificate of Registration be revoked immediately.

Penalty Decision

The panel makes the following order as to penalty:

The Executive Director is directed to revoke the Member’s Certificate Registration immediately.

Reasons for Penalty Decision

The panel deliberated and agreed with College Counsel that the Member, by her actions, was ungovernable. Even when the Member received penalties for her criminal convictions, it did not stop her from continuing to reoffend. Even though self-reporting convictions and charges to the College is a practice requirement, the Member chose not to disclose this relevant information. The Member’s actions violate the cornerstones of the nursing profession: honesty, integrity and trustworthiness.

The panel acknowledges that the Member has no prior disciplinary history but, because she chose not to participate in this hearing, the panel is not aware of any additional mitigating factors. There is no evidence that the Member has taken responsibility for any of her actions and is willing to be held accountable.

The panel concludes that the penalty of revocation is reasonable and appropriate given the seriousness and the repetitive nature of the conduct. The penalty is also fair in that it falls within the range of similar cases.

I, Michael Hogard, 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:

Michael Hogard, RPN

David Edwards, RPN

Cathy Egerton, Public Member

Shiraz Irani, RN

Mary MacMillan-Gilkinson, Public Member