College of Nurses of Ontario v. Kandaeya Daniel, 2024 ONCNO 140476

DISCIPLINE COMMITTEE OF THE COLLEGE OF NURSES OF ONTARIO

PANEL:

Sherry Szucsko-Bedard, RN Chairperson Sylvia Douglas Public Member Sandra Larmour Public Member Mary MacNeil, RN Member Kimberly Wagg, RPN Member

BETWEEN:

COLLEGE OF NURSES OF ONTARIO ) EMILY LAWRENCE for ) College of Nurses of Ontario

• and - )

KANDAEYA DANIEL ) NO REPRESENTATION for Registration No. JJ10959 ) Kandaeya Daniel ) CHRISTOPHER WIRTH ) Independent Legal Counsel

) Heard: September 4, 2024, via videoconference

DECISION AND REASONS

Publication Ban

By Order of the Discipline Panel dated September 4, 2024, pursuant to subsection s.45(3) of the Health Professions Procedural Code of the Nursing Act, 1991, no one shall publish or broadcast the name(s) of the patient(s), or any information that could disclose the identity(ies) of the patient(s), referred to orally or in any documents presented at the Discipline hearing of Kandaeya Daniel.

This matter was heard by a panel of the Discipline Committee (the “Panel”) of the College of Nurses of Ontario (the “College”) on September 4, 2024.

The Allegations

College Counsel advised the Panel that the College was requesting leave to withdraw the allegations set out in paragraphs #1, #2(a)(i), (ii), (iii), #3 and #5(a)(i), (ii) and (iii) in the Notice of Hearing dated July 24, 2024. The Panel granted this request. The remaining allegations against Kandaeya Daniel (the “Member”) are as follows:

IT IS ALLEGED THAT:

1. [Withdrawn];

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(1) of Ontario Regulation 799/93, in that while working as a Registered Nurse in Ontario, you contravened a standard of practice of the profession or failed to meet the standards of practice of the profession, as follows:

a. [Withdrawn]

b. you failed to return the Regional Municipality of York’s equipment, including a laptop, headset, tablet and/or backpack, after your employment contract with GEM Health Care Agency ended;

3. [Withdrawn];

4. 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(8) of Ontario Regulation 799/93, in that, in, while working as a Registered Nurse at York Region Public Health in Newmarket, Ontario, you misappropriated property when you failed to return the Regional Municipality of York’s equipment, including a laptop, headset, tablet and/or backpack, after your employment contract with GEM Health Care Agency ended; and/or

5. 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, while working as a Registered Nurse in Ontario, 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, as follows:

a. [Withdrawn];

b. you failed to return the Regional Municipality of York’s equipment, including a laptop, headset, tablet and/or backpack, after your employment contract with GEM Health Care Agency ended.

Member’s Plea

The Member admitted the allegations set out in paragraphs #2(b), #4 and #5(b) 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 admissions were voluntary, informed and unequivocal.

Agreed Statement of Facts

College Counsel and the Member advised the Panel that agreement had been reached on the facts and introduced an Agreed Statement of Facts, which reads, unedited and without exhibits mentioned therein, as follows:

THE MEMBER

1. The Member registered with the College of Nurses of Ontario (“CNO”) as a Registered Practical Nurse (“RPN”) on October 24, 2000. The Member has also reported to CNO that she is registered as a nurse in the United Kingdom.

INCIDENTS RELEVANT TO ALLEGATIONS OF PROFESSIONAL MISCONDUCT

2. On April 13, 2021, the Member began working for the Regional Municipality of York (the “Municipality”) as an immunizer at a COVID vaccine clinic. The Member received this assignment through the staffing agency that she was employed with at the time, GEM Health Care Services (the “Agency”). The Member’s placement with the Municipality ended on August 1, 2021.

3. At the beginning of her placement, the Municipality provided the Member with a laptop, a headset, and a backpack for work-related purposes (the “Equipment”). At all material times, the Equipment was the property of the Municipality.

4. During a group orientation that the Member attended on April 13, 2021, the Municipality advised the Member that she was to return the Equipment at the end of the placement.

5. Notwithstanding this instruction, the Member did not return the Equipment when her placement with the Municipality ended on August 1, 2021.

6. From September 2021 to February 2022, the Agency and the Municipality repeatedly asked the Member to return the Equipment.

7. Between October 15, 2021 and February 9, 2022, Municipality staff called the Member on at least seven different occasions and emailed the Member on at least four occasions, to request that the Member return the Equipment.

8. Between August 9, 2021 and December 1, 2021, Agency staff texted the Member seven times, emailed the Member 21 times, called the Member 19 times and called and texted the Member’s spouse several times, to request that the Member return the Equipment. The Agency made clear in its communications that a failure to do so would be considered property theft and that would be reported to CNO.

9. The Member advised the Municipality and the Agency on at least five occasions that she would return the Equipment or arrange to have someone return it on her behalf, and that she had not yet done so due to work and family commitments, travel and illness.

10. The Member similarly advised CNO that she would return the Equipment.

11. The Member has never returned the Equipment to the Municipality.

12. If the Member were to testify, she would say that her failure to return the Equipment was due to work and family commitments, travel and illness, and that she had instructed her son to return the Equipment on her behalf. The Member admits and acknowledges that it was her responsibility to ensure that the Equipment was returned to the Municipality in a timely manner after her placement with the Municipality ended, and that she failed to do so. The Member also admits that by failing to return the Equipment, she misappropriated property from the Municipality.

CNO STANDARDS

Code of Conduct

13. CNO’s Code of Conduct is a standard of practice describing the accountabilities all Ontario nurses have to the public. The Code of Conduct consists of six principles including:

• Nurses respect the dignity of patients and treat them as individuals;

• Nurses work together to promote patient well-being;

• Nurses maintain patients’ trust by providing safe and competent care;

• Nurses work respectfully with colleagues to best meet patients’ needs;

• Nurses act with integrity to maintain patients’ trust; and

• Nurses maintain public confidence in the nursing profession.

14. With respect to the principle requiring nurses to maintain patients’ trust by providing safe and competent care, CNO’s Code of Conduct provides that nurses are accountable to, and practice under, relevant laws and CNO’s standards of practice.

15. With respect to the principle requiring nurses to maintain public confidence in the nursing profession, CNO’s Code of Conduct provides that nurses are accountable for their own actions and decisions and that they respect the property of their patients and employers.

16. Attached as Exhibit “A” is a copy of CNO’s Code of Conduct that was in force at the time of the incidents described herein.

Professional Standards

17. CNO’s Professional Standards provides an overall framework for the practice of nursing and a link with other standards, guidelines and competencies developed by CNO. It includes seven broad standard statements pertaining to accountability, continuing competence, ethics, knowledge, knowledge application, leadership, and relationships.

18. CNO’s Professional Standards provides, in relation to the accountability standard, that nurses are accountable to the public and responsible for ensuring that their practice and conduct meets the legislative requirements and the standard of the profession. Nurses are responsible for their actions and the consequences of those actions as well as for conducting themselves in ways that promote respect for the profession. Nurses demonstrate this standard by actions such as ensuring their practice is consistent with CNO’s standards of practice and guidelines as well as legislation.

19. CNO’s Professional Standards further provides, in relation to the ethics standard, that ethical nursing includes acting with integrity, honesty and professionalism in all dealings with the patient and other health care team members.

20. Attached as Exhibit “B” is a copy of CNO’s Professional Standards that was in force at the time of the incidents described herein and has since been retired.

Ethics

21. CNO’s Ethics Standard describes ethical values that are important to the nursing profession in Ontario including patient well-being, patient choice, privacy and confidentiality, respect for life, maintaining commitments, truthfulness and fairness.

22. CNO’s Ethics Standard provides, in relation to maintaining commitments, that nurses have a commitment to the nursing profession and being a member of the profession brings with it the respect and trust of the public. To continue to deserve this respect, nurses have a duty to uphold the standards of the profession, conduct themselves in a manner that reflects well on the profession, and to participate in and promote the growth of the profession.

23. CNO’s Ethics Standard also provides, in relation to truthfulness, that truthfulness means speaking and acting without intending to deceive.

24. Attached as Exhibit “C” is a copy of CNO’s Ethics Standard which was in force at the time of the incidents and has since been retired.

ADMISSIONS OF PROFESSIONAL MISCONDUCT

25. The Member admits that she committed the acts of professional misconduct as alleged in paragraphs 2(b), 4, and 5(b) of the Notice of Hearing in that she misappropriated property when she failed to return the Equipment to the Municipality, as described in paragraphs 2 to 12 above. The Member further admits and acknowledges that this conduct was a contravention of the Code of Conduct, Professional Standards and the Ethics Standard and that this conduct was dishonourable and unprofessional.

OTHER

26. With the leave of the Panel of the Discipline Committee, CNO withdraws the remaining allegations in the Notice of Hearing, which are:

• paragraph 1 of the Notice of Hearing;

• paragraphs 2(a)(i), (ii) and (iii) of the Notice of Hearing;

• paragraph 3 of the Notice of Hearing; and

• paragraphs 5(a)(i), (ii) and (iii) of the Notice of Hearing.

Decision

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

Having considered the evidence and the onus and standard of proof, the Panel finds that the Member committed acts of professional misconduct as alleged in paragraphs #2(b), #4 and #5(b) of the Notice of Hearing. As to allegation #5(b), the Panel finds that the Member engaged in conduct that would reasonably be regarded by members of the profession to be dishonourable and unprofessional.

Reasons for Decision

The Panel considered the Agreed Statement of Facts and the Member’s plea and finds that this evidence supports findings of professional misconduct as alleged in the Notice of Hearing.

Allegation #2(b) in the Notice of Hearing is supported by paragraphs 2 - 25 in the Agreed Statement of Facts. The Member was employed with GEM Health Care Services (the “Agency) and was assigned by the Agency to work for the Regional Municipality of York (the “Municipality”) on April 13, 2021, as an immunizer at a COVID vaccine clinic. As part of the assignment, the Member received a laptop, headset and backpack for work related purposes and was told the equipment was to be returned at the end of the placement. The placement ended on August 1, 2021. From September 2021 to February 2022, the Agency and the Municipality contacted the Member on 58 different occasions via phone calls, emails and texts, requesting that the equipment be returned. On 5 different occasions, the Member advised the Agency and the Municipality that she would return the equipment. The equipment was never returned. The Member breached the Code of Conduct and the Professional Standards by failing to be accountable for returning the equipment, failing to respect the property of her employer and failing to act with integrity and honesty to return equipment that did not belong to her. The Ethics Standard identifies truthfulness as an important value as well as a requirement for nurses to uphold the standards of the profession and conduct themselves in a manner that reflects well on the profession. Advising the Agency and the Municipality that the equipment would be returned and then failing to do so was a breach of the Ethics Standard. The Member’s conduct was therefore a breach of the Code of Conduct, the Professional Standards and the Ethics Standard.

Allegation #4 in the Notice of Hearing is supported by paragraphs 2 - 11 and 25 in the Agreed Statement of Facts. The Member admitted and the Panel found that she misappropriated property from the Municipality when she failed to return a laptop, headset and backpack to it at the end of her placement at the COVID vaccine clinic.

Allegation #5(b) in the Notice of Hearing is supported by paragraphs 2 - 12 and 25 in the Agreed Statement of Facts. The Panel finds that the Member’s conduct in failing to return equipment that she was provided with for work-related purposes and which did not belong to her was relevant to the practice of nursing and was unprofessional as it demonstrated a serious and persistent disregard for her professional obligations in contravening the Code of Conduct, the Professional Standards and the Ethics Standard. She failed to take responsibility to ensure that the equipment was returned and failed to conduct herself in a manner expected of a nurse.

The Panel also finds that the Member’s conduct was dishonourable. It demonstrated an element of dishonesty, deceit and moral failing in that she failed to return equipment that belonged to the Municipality. The Member knew or ought to have known that her conduct was unacceptable and fell well below the standards of a professional.

Penalty

College Counsel and the Member advised that a Joint Submission on Order had been agreed upon and requested that the Panel make the following order:

1. Requiring the Member to appear before the Panel to be reprimanded within 3 months of the date that this Order becomes final.

2. Directing the Executive Director to suspend the Member’s certificate of registration for 2 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 a practicing 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 2 meetings with a Regulatory Expert (the “Expert”), at the Member’s own expense and within 6 months from the date that this Order becomes final. To comply, the Member is required to ensure that:

i. The Expert has expertise in nursing regulation and has been approved by CNO in advance of the meetings;

ii. At least 5 days before the first meeting, or within another timeframe approved by the Expert, 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 CNO publications and completes the associated Practice Reflection Worksheets, online learning modules and decision tools (where applicable):

1. Code of Conduct;

iv. At least 5 days before the first meeting, or within another timeframe approved by the Expert, the Member provides the Expert with a copy of the completed Practice Reflection Worksheets;

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 patients, 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 their report to CNO, 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 the Member’s 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 the Member’s certificate of registration;

b) For a period of 12 months from the date the Member returns to the practice of nursing, the Member will notify the Member’s employers of the decision. To comply, the Member is required to:

i. Inform any employer of the decision prior to commencing or prior to resuming employment in any nursing position;

ii. Ensure that CNO 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;

iii. Provide the Member’s 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;

iv. 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 CNO, in which it will confirm:

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

2. that they agree to notify CNO 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 CNO, the Expert or the employer(s) will be delivered by verifiable method, the proof of which the Member will retain.

College Submissions on Penalty

College Counsel made submissions which included the following aggravating and mitigating factors:

The aggravating factors in the case were:

• The Member’s conduct was serious in that she misappropriated equipment from a public health agency;

• The Municipality and the Agency contacted the Member 58 times, using email, phone and texts to remind her of her obligation to return the equipment. The Member was aware of the need to return the equipment, but repeatedly ignored the request over many months;

• The Member’s conduct showed a lack of respect for the work and resources of the public health agencies who made repeated efforts to have the Member return the equipment; and

• The Member made commitments several times to return the equipment, but did not follow through.

The mitigating factors in this case were:

• The Member has taken responsibility and accountability by admitting to the allegations and avoiding the costs associated with a contested hearing; and

• The Member has no prior disciplinary history with the College.

College Counsel submitted that the primary goal of penalty orders is to ensure public protection through specific and general deterrence as well as remediation and rehabilitation of the Member.

The penalty provides specific deterrence through the oral reprimand and the two month suspension of the Member’s certificate of registration. College Counsel submitted that a two month suspension is a serious sanction and is warranted because of the numerous attempts made by the Municipality and the Agency requesting the equipment be returned and the Member’s unmet promise to return it. Rehabilitation and remediation of the Member is met through meetings with the nursing expert where the Member can review the Code of Conduct and discuss the Panel findings. The 12-month employer notification will provide a supervisory role for the Member’s return to practice. Together, the penalty will ensure public confidence that conduct of this nature will not be tolerated.

College Counsel submitted the following cases to the Panel to demonstrate that the proposed penalty fell within the range of similar cases from this Discipline Committee:

CNO v. O’Kell-Ayers (Discipline Committee, 2021): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. Along with multiple other serious elements of misconduct, the member failed to return a cell phone, charger, headphones and phone case to her employer when her employment ended. The penalty included an oral reprimand, and the member signed an undertaking to permanently resign as a member of the College. College Counsel submitted that this case shows that failing to return property to an employer requires discipline.

CNO v. Richer (Discipline Committee, 2019): In this case, the member did not attend the hearing. The member charged individual transactions to a corporate credit card totalling $8,639.42 and provided falsified credentials on her resume and falsified documents on a job application. The penalty included an oral reprimand, a 10-month suspension of the member’s certificate of registration, 2 meetings with a Regulatory Expert, review of the College’s publications and 24 months of employer notification.

CNO v. Golem (Discipline Committee, 2017): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member was going on maternity leave but had insufficient hours to qualify for employment insurance. The member’s brother was the office manager where the member worked and falsified payroll records so the member could qualify for employment insurance. The office manager allocated hours that he had worked to the member, thereby resulting in the member receiving payment for hours not worked. The penalty included an oral reprimand, a one month suspension of the member’s certificate of registration, two meetings with a Nursing Expert and 18 months of employer notification. College Counsel submitted that while the misappropriation was theft of worked hours and not equipment, this case demonstrates that matters of theft will have consequences.

CNO v. Ferris (Discipline Committee, 2017): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. It is related to the Golem case as the member was the office manager who falsified payroll records relating to himself and his sister. The member paid back nine hours of salary in restitution. The penalty included an oral reprimand, a three month suspension of the member’s certificate of registration, a minimum of two meetings with a Nursing Expert and 12 months of employer notification.

CNO v. Campbell (Discipline Committee, 2011): This case proceeded by way of an Agreed Statement of Facts and a Joint Submission on Order. The member misappropriated taxi chits from her workplace resulting in a loss of approximately $5,500.00 for the facility. The penalty included an oral reprimand, a one month suspension of the member’s certificate of registration, participation in a remedial program with a Nursing Expert and 12 months of employer notification. The member was also ordered to pay a $1,000.00 fine to the Minister of Finance which would be suspended and not enforced if the member paid to the facility $5,587.25 related to using the taxi chits. College Counsel submitted that while the penalty included a fine, the penalty in the case before this Panel did not include a fine, but rather a longer suspension of the member’s certificate of registration i.e. a two month suspension versus a one month suspension.

Member’s Submissions on Penalty

The Member submitted that she was willing to take responsibility for her conduct. The Member offered an apology saying that while she did not mean to misappropriate the equipment, it was her responsibility to return it. She did not intend to disgrace the College or the nursing profession.

Penalty Decision

The Panel accepted the Joint Submission on Order and made the order requested.

Reasons for Penalty Decision

There is a high threshold for departing from a Joint Submission on Order established by the Supreme Court of Canada in R. v. Anthony-Cook, 2016 SCC 43. Departing from a joint submission would require a finding that the proposed penalty would bring the administration of justice into disrepute or is otherwise contrary to the public interest.

The Panel concluded that the proposed penalty is not contrary to the public interest and does not bring the administration of justice into disrepute.

The Panel concluded that the proposed penalty is reasonable and in the public interest. It promotes public confidence in the ability of the College to regulate nurses.

The Panel finds that the proposed penalty satisfies the penalty goals of specific and general deterrence, rehabilitation and remediation, and public protection.

The proposed penalty provides for general deterrence through the two month suspension of the Member’s certificate of registration, which demonstrates to the profession that such conduct will not be tolerated.

The proposed penalty provides for specific deterrence through the oral reprimand and the two month suspension of the Member’s certificate of registration.

The proposed penalty provides for remediation and rehabilitation through the two meetings with a Regulatory Expert allowing the Member to review the Code of Conduct, gain insight and learn from her mistakes.

Overall, the public is protected through the 12 months of employer notification, which will provide a supervisory role for the Member’s practice, supporting her return to practice and because the penalty will ensure confidence in the profession’s ability to regulate its members.

The Panel acknowledges that the Member has co-operated with the College and, by agreeing to the facts and a proposed penalty, has accepted responsibility, which is a mitigating factor.

The penalty is in line with the range of what has been ordered in previous similar cases as demonstrated by the cases submitted and referred to by College Counsel.

I, Sherry Szucsko-Bedard, RN, sign this decision and reasons for the decision as Chairperson of this Discipline Panel and on behalf of the members of the Discipline Panel.