In Llewellyn v. College of Registered Nurses and Midwives of P.E.I., 2024 PESC 41, the Supreme Court of Prince Edward Island upheld a discipline committee’s finding of professional misconduct and penalty against a member, despite the discipline committee failing to release its written decision and reasons within the 60-day timeframe set out in the governing legislation.
Background
The member appealed the Notice of Determination and Orders of the College of Registered Nurses and Midwives of Prince Edward Island (the “College”) to the Supreme Court of Prince Edward Island (the “Court”). In the Notice of Determination and Orders, the College made findings of professional misconduct and imposed certain sanctions against the member. The member raised several grounds of appeal, one of which was that the College’s Hearing Committee failed to comply with the PEI Regulated Health Professions Act, R.S.P.E.I. 1988, Cap. R-10.1 (the “RHPA”) requirement that the Hearing Committee serve a written Notice of Determination and reasons for the determination and a copy of any order made within 60 days after the completion of the hearing.
The Court’s Decision on Appeal
The Court first noted that this ground of appeal was a question of law, meaning the standard of review was correctness. At issue was section 58(4) of the RHPA, which provides that a hearing committee, within 60 days of a hearing, shall serve written notice of and reasons for the determination.
The Court emphasized that in the proceedings before the Hearing Committee, the parties had sought to bifurcate the hearing by requesting an opportunity to make submissions on penalty after a finding of professional misconduct had been made. Counsel for the member acknowledged that the reasons for the finding of professional misconduct would come much later, and did not raise any objection to making submissions on penalty without having received reasons for the finding of professional misconduct.
Accordingly, the Hearing Committee delivered its guilty finding of professional misconduct on September 21, 2022, without providing reasons for its finding. It then sought submissions on penalty before delivering its reasons for the finding of professional misconduct. Those submissions were received on October 17, 2022, meaning the deadline under the RHPA for the Hearing Committee to provide its decision and orders would have been December 17, 2022. However, the Hearing committee did not render its reasons and penalty until January 16, 2023.
The Hearing Committee acknowledged its failure to comply with the 60-day requirement of section 58(4) of the RHPA in its reasons, noting that the Hearing Committee members did their best to comply with the timeline, but they were not lawyers, and they ran into practical problems along the way such as the temporary illness and unavailability of their independent legal counsel. On the appeal before the Court, the College conceded that it did not meet its statutory obligation under section 58(4) of the RHPA.
The Court reviewed the earlier decision Doiron v. WCB (Prince Edward Island), 2018 PECA 20 (“Doiron”), wherein the PEI Court of Appeal determined that although the word “shall” is generally imperative, the word must be considered with the remainder of the legislation as a harmonious whole. The Court of Appeal recognized a distinction between enactments relating to the performance of a public duty and provisions affecting private rights, and noted that while failure to adhere to legislative direction was a concern, the consequence of finding the time-period section mandatory would mean that these cases would have to be tried again. This would only add time and expense to the system, which the Court of Appeal found would not advance the main object of the Legislature nor serve the interests of workers, employers or the administrative tribunal.
The Court noted that like the statutory deadline that was being considered in Doiron, the 60-day deadline under section 58(4) of the RHPA did not provide for any consequences for the failure to meet the deadline. The Court also considered other disciplinary cases involving a missed deadline for providing a decision, where courts have consistently found that such deadlines are directory rather than mandatory. Where a discipline committee is performing a public duty, rather than resolving a dispute between two private individuals, the complainant, the public and the profession would all suffer injustice and inconvenience if the provision was regarded as mandatory.
Having regard to the principles of the prior case law and the legislative authority granted to the profession to self-govern, the Court concluded that the 60-day timeline under section 58(4) of the RHPA is directory only. The Court could not find any serious prejudice by the failure to meet this timeline. The decision was 31 days late, which the Court determined was not an inordinate amount of time considering that the Christmas and New Year’s holidays took up part of that time. The Hearing Committee gave reasons for why the decision was late and provided sufficient grounds to justify an extension in the timeframe set out by the legislation. Accordingly, the Court dismissed this ground of the appeal, finding that the Hearing Committee’s failure to meet the strict 60-day requirement for rendering the decision and reasons did not nullify the decision.
Takeaways
This case demonstrates that in appropriate circumstances there may be some latitude given to discipline committees in meeting the statutory deadlines for delivering their written decisions and reasons. Where such deadlines exist in the context of a self-governing profession performing a public duty, as opposed to a dispute between private individuals, courts have found that the public interest favours an interpretation of such deadlines as directory rather than mandatory. That being said, discipline committees should always strive to meet the statutory deadlines governing the release of their written decisions and reasons, in order to ensure hearing fairness and avoid prejudice to any party.
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