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The Saskatchewan Court of Appeal recently released a decision, Strom v Saskatchewan Registered Nurses’ Association, discussing the professional regulation of a member’s social media use and off-duty conduct.
In this case, Carolyn Strom, a registered nurse in Saskatchewan, posted an article and comments on her Facebook page about the care her grandfather had received in a long-term care facility. She then used Twitter to tweet her posts to the Saskatchewan Minister of Health and the Saskatchewan Opposition Leader.
In her posts, she was critical of the care her grandfather had received and of the employees at the long-term care facility. The employees of the long-term care facility brought a complaint to the Saskatchewan Registered Nurses’ Association (SRNA).
The Discipline Committee of SRNA found Ms. Strom guilty of professional misconduct. This decision was upheld by the Court of King’s Bench. However, the Court of Appeal overturned the decision and found Ms. Strom was not guilty of professional misconduct.
Issues on Appeal
There were three main issues on appeal. The first issue was the ability of a professional regulatory body to govern off-duty conduct. The second issue was whether Ms. Strom’s conduct was professional misconduct. The final issue was the infringement on Ms. Strom’s Charter right to freedom of expression.
Standard of Review for the First Two Issues
First, the Court of Appeal determined the standard of review for the first two issues. The Court of Appeal held that the judge at the Court of King’s Bench applied the incorrect standard of review.
The correct standard of review was to only intervene if the decision-maker erred in principle, misapprehended or failed to consider material evidence, failed to act judicially, or reached a decision so clearly wrong that it would result in an injustice.
The Court of Appeal then reviewed the decision of the Discipline Committee using the appropriate standard of review.
Issue 1: When Can Off-Duty Conduct be Regulated?
The first issue was determining the circumstances in which a professional regulatory organization can regulate a members’ off-duty conduct. The analysis was based on case law and governing legislation in Saskatchewan.
The Court of Appeal held there must be a sufficient nexus or relationship between the off-duty conduct and the profession or the professional.
In particular, a professional regulatory body should only regulate off-duty conduct if it could have a sufficiently negative impact on the professional’s ability to carry out their professional duties or a sufficiently negative impact on the profession.
Issue 2: Was Ms. Strom Guilty of Unprofessional Conduct?
The second issue was whether the Discipline Committee erred in finding Ms. Strom guilty of professional misconduct.
The Court of Appeal held the Discipline Committee failed to accord any or sufficient weight to the relevant factors in finding Ms. Strom guilty of professional misconduct. In particular, the Discipline Committee failed to give sufficient weight to Ms. Strom’s right to freedom of expression and autonomy in her personal life.
The Discipline Committee also failed to consider the entire context of Ms. Strom’s posts. For example, the Discipline Committee failed to consider that Ms. Strom did not post the names of the nurses at the facility, she did not identify the particular long-term facility in which she was referring and the posts were made as Ms. Strom was grieving the death of her grandfather.
It is important for professional regulatory bodies to have a balanced approach in regulating a members’ off-duty conduct, considering the entire context and the members’ rights and autonomy.
Issue 3: Ms. Strom’s Right to Freedom of Expression
The final issue was Ms. Strom’s right to freedom of expression under the Charter. The standard of review for this issue was correctness.
The Discipline Committee had held that Ms. Strom’s Charter rights were infringed by the finding of professional misconduct, but the infringement was justified in the circumstances. The Court of Appeal disagreed and held the Discipline Committee’s decision unjustifiably infringed on Ms. Strom’s Charter right to freedom of expression.
The first step in the Charter analysis was determining the statutory objective of regulating Ms. Strom’s conduct. The Court of Appeal held the statutory objective must be pressing and substantial to justify a Charter infringement. In this case, the statutory objective was to provide for professional regulation with an overriding objective of safeguarding the public interest.
The second step in the Charter analysis was determining if the infringement was justified. The Discipline Committee, in deciding the Charter infringement was justified, found that Ms. Strom had other options available to raise her concerns, such as filing a complaint with SRNA about the care provided to her grandfather.
The Court of Appeal found Ms. Strom had a right to criticize the care her grandfather received, and found the freedom to criticize serves the public interest.
The Court of Appeal also found that the other options available to Ms. Strom, such as filing a complaint, were radically different in scope and meaning than posting comments on Facebook. The Discipline Committee’s decision was a serious impairment on Ms. Strom’s freedom of speech.
The Court of Appeal overturned the decision of the Discipline Committee and found Ms. Strom was not guilty of professional misconduct.
This case is informative for two reasons. It provides a framework for how professional regulatory organizations can address decisions which potentially infringe on a member’s Charter rights.
It also emphasizes the importance of considering the surrounding circumstances and entire context of a member’s actions when determining if off-duty conduct is professional misconduct.