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HEALTH CARE PROFESSIONALS - Disciplinary proceedings - Grounds for overturning decision

Monday, November 02, 2020 @ 9:05 AM  

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Appeal by Strom, a registered nurse, from the dismissal of her appeal from a decision of the respondent that found her guilty of professional misconduct. After the death of her grandfather in long-term care, the appellant posted comments on social media that were critical of the care he received. The respondent found the appellant was guilty of professional misconduct for her social media posts. The appellant was reprimanded, fined $1,000, required to submit two self-reflective essays and ordered to pay $25,000 in costs. The respondent found the infringement of the appellant’s s. 2(b) Canadian Charter of Rights and Freedoms (Charter) rights was justified under s. 1 of the Charter. The chambers judge found the respondent’s decision related to both the professional misconduct and Charter issue was reasonable.

HELD: Appeal allowed. The chambers judge erred in upholding the decision of the respondent, who erred in finding the appellant guilty of professional misconduct. The chambers judge erred in selecting and applying the reasonableness standard of review. The respondent erred in principle by failing to accord sufficient or any weight to important criteria that governed the exercise of its discretion. The respondent failed to consider the tone, content or purpose of the appellants’ posts. It failed to adequately consider the impact on the appellant’s personal autonomy or freedom of speech. The respondent did not adopt an approach that provided for the consideration of the full panoply of contextual factors particular to the appellant’s case before it decided she should be disciplined despite the infringement of her right to free expression. The respondent was incorrect in finding the infringement of the appellant’s Charter right to freedom of expression was justified. The respondent’s decision was set aside.

Strom v. Saskatchewan Registered Nurses Assn., [2020] S.J. No. 370, Saskatchewan Court of Appeal, R.K. Ottenbreit, N.W. Caldwell and B. Barrington-Foote JJ.A., October 6, 2020. Digest No. TLD-November22020002