In September 2019 the Saskatchewan Court of Appeal heard the appeal of Carolyn Strom, a Saskatchewan nurse, from a decision of the Court of Queen’s Bench dismissing her appeal of a 2016 decision of the Discipline Committee of the Saskatchewan Registered Nurses’ Association.

The Court of Appeal’s decision (the “Decision”) granting Ms. Strom’s appeal was released on October 6, 2020. The Decision is noteworthy as one of the most high-profile post-Vavilov[1] decisions in the professional regulatory context and is instructive with respect to limitations that professional regulators may face in attempting to regulate “off-duty” conduct, particularly when doing so engages the right to freedom of expression under the Canadian Charter of Rights and Freedoms (“Charter”).

The Case

The case centred around certain Facebook posts made by Ms. Strom with respect to the care received by her grandfather, including nursing care, while he was a resident at a long-term care facility (the “Facility”).

The Discipline Committee found that the posts, in which Ms. Strom identified herself as a nurse, established a link between her professional role and her off-duty expressions, and thus were open to findings of professional misconduct. The Discipline Committee found that Ms. Strom had “engaged in a generalized public venting about the facility and its staff and went straight to social media to do that” (paragraph 42) and that, in doing so, she had committed misconduct. In response to Ms. Strom’s argument that a finding of misconduct in these circumstances constituted an unjustifiable breach of her Section 2(b) Charter right of freedom of expression, the Discipline Committee found that, although there was an infringement of Ms. Strom’s Section 2(b) Charter right, that infringement was justified under Section 1 of the Charter.

Ms. Strom exercised a statutory right of appeal and appealed the decision of the Discipline Committee to the Court of Queen’s Bench. The Court of Queen’s Bench upheld the decision of the Discipline Committee. In doing so, the Court of Queen’s Bench applied a reasonableness standard of review to both the finding of misconduct and the finding that there was a justifiable infringement of Ms. Strom’s Section 2(b) Charter right.

Ms. Strom appealed the decision of the Court of Queen’s Bench on three (3) grounds:

• The judge erred in upholding the Discipline Committee’s conclusion that she was guilty of professional misconduct within the meaning of the Act[2];
• The judge erred in not finding that the Discipline Committee had erred in finding that the infringement of Ms. Strom’s section 2(b) Charter right was justified under Section 1;
• The Court erred in finding the Discipline Committee had the authority to award costs against Ms. Strom in the amount of $25,000.00.

As will be described, Ms. Strom was successful on the first two ground of the appeal and so the Court of Appeal determined it did not need to decide the third ground with respect to costs.

IMPACT OF VAVILOV

After the Court of Queen’s Bench released its decision, and indeed, after the Court of Appeal had heard the case, but before it had rendered its Decision, the Supreme Court of Canada released its decision in Vavilov. Prior to the decision in Vavilov, courts across Canada generally applied the judicial review standard to appeals of administrative decisions.

Vavilov clarified that where there is a statutory right of appeal of an administrative decision, the appellate standard of review, rather than the standard on judicial review, applies. The Court of Appeal invited the parties in this case to provide further submissions based on the outcome of Vavilov.

As noted at paragraph 52 of its Decision, the Court of Appeal noted that it was a secondary appellate court in these circumstances. As such, its task was to determine whether the Court of Queen’s Bench had chosen and applied the correct standard of review and, if it had not, to assess the Discipline Committee’s decision according to the correct standard of review. 

The Court of Appeal found that because the Court of Queen’s Bench Judge had chosen the judicial review standard of reasonableness and applied that standard, the Court had made an error in law. The Court of Appeal made in clear that the Judge had correctly chosen the standard of review in the law as it was understood at the time the case was heard at the Court of Queen’s Bench, but that the Vavilov decision had clarified that, in cases where there is a statutory right of appeal to a court from a decision of an administrative body, the appellate standard of review applies, rather than the judicial standard of review of reasonableness. 

Because it found that the application of the judicial standard of review was an error in law, the Court of Appeal then turned to an assessment of the Discipline Committee’s decision pursuant to the correct, appellate standard of review. In the result, it set aside the Discipline Committee’s findings of misconduct.

OFF-DUTY CONDUCT AND THE CHARTER

The Court of Appeal’s decision affirms that a member of a profession may be disciplined for off-duty conduct, but in making findings of misconduct in a case where there has been an infringement of a Charter right, a thorough Section 1 Charter analysis must be conducted to determine whether that infringement is justified.

(a) Off-Duty Conduct

Off-duty conduct may be described as conduct in which a professional engages during their own personal and/or private time.  Generally speaking, for off-duty conduct to attract sanction by the discipline committee of a professional regulator, there will have to be a connection between the person’s off-duty conduct and their profession, such that it raises questions about the ability of the professional to carry out their work and/or the undermining of the integrity and/or public confidence in the profession. 

As set out the decision of the Court of Appeal:

“…….off-duty conduct may be found to be professional misconduct if there is a sufficient nexus or relationship of the appropriate kind between the personal conduct and the profession to engage the regulator’s obligation to promote and protect the public interest. More specifically, I would state the issue this way: was the impugned conduct such that it would have a sufficiently negative impact on the ability of the professional to carry out their professional duties or on the profession to constitute misconduct?” (paragraph 89)

In this case, the Court of Appeal found that there was no nexus between Ms. Strom’s off duty conduct and the ability of Ms. Strom to carry out her professional duty, nor was there a negative impact on the profession.  Rather, the Court of Appeal found that the Discipline Committee had failed to take into account important evidentiary and contextual factors, including the context in which Ms. Strom made the comments, Ms. Strom’s purpose in making the comments, and in focusing on specific aspects of her posts, while ignoring others.

In the result, the Court of Appeal concluded that “the Discipline Committee erred in principle by failing to accord sufficient or any weight to important criteria that governed the exercise of their discretion. Its analysis was one dimensional, referring repeatedly to the fact that Ms. Strom made critical comments on social media rather than through proper channels. It did not reflect the complete contextual inquiry necessary to determine whether professional misconduct had been made out on the evidence.” (para. 128)

In these circumstances, the finding of misconduct was not made out. 

(b) Freedom of Expression Under the Charter

Given that it had determined misconduct was not established, it was not necessary for the Court of Appeal to go on to consider the Charter issue raised (i.e. infringement of freedom of expression), however, given the importance of that issue, the Court of Appeal did so.

The Court of Appeal noted that the impact of the infringement of Ms. Strom’s Section 2(b) Charter right was serious.  Further, the Court of Appeal pointed to a lack of evidence that Ms. Strom’s posts impacted the broader public interest, the public standing of the profession, or even the Facility and its staff.  The Court of Appeal noted, “It bears repeating that speech cannot be unduly constrained to avoid offending others.” (para. 168) 

In the result, the Court of Appeal found that the denial of Ms. Strom’s right to speak in the circumstances was serious and not justified by Section 1 of the Charter. 

TAKE-AWAYS

Discipline committees of professional regulators may make findings of misconduct for the off-duty conduct of members, but they much engage in a robust analysis of the relevant evidence, including contextual factors before doing so.

In the age of social media, when private or personally held views may find a broader and more public forum than they did in the past, the Court of Appeal’s Decision in Strom provides guidance to both professionals and regulators alike with respect to the tension that can sometimes exist between the freedom of a professional to express personally held views and the requirement of the regulator to protect the integrity of the profession.  Where a Charter issue is raised and an infringement of a right found, a discipline committee must give careful consideration to whether or not that infringement is justified under Section 1 of the Charter.

About the author

Patricia Harper is a partner at Keel Cottrelle LLP.  She has a civil litigation and administrative law practice, and frequently acts as prosecution counsel and independent legal counsel in the professional regulatory context.

 

This article was originally published on the OBA Administrative Law Section Articles page.