By Alexander Shalashniy and Sarah Engen
Court of Appeal Finds Nurse’s Social Media Posts were not Professional Misconduct: Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112
In a recent unanimous decision, the Saskatchewan Court of Appeal found that a registered nurse posting on Facebook regarding the care a family member received at a long-term care facility did not constitute professional misconduct. This case garnered much media attention due to the $26,000.00 in fines and costs imposed on the appellant.
Overall, when dealing with disciplinary cases of professionals, the Court signalled the need to consider contextual factors when Charter of Rights and Freedoms (the “Charter”) rights are engaged.
The appellant a nurse registered with the Saskatchewan Registered Nurses’ Association (“SRNA”). While she was on a maternity leave, her grandfather died at long-term care facility. He had been in long-term care at the facility for 13 years. After his death, the appellant posted concern on her personal social media about the care her grandfather received in his last days at the facility.
Employees from the facility reported these posts to the SRNA. The appellant was charged pursuant to The Registered Nurses Act, and the applicable code of conduct and professional standards. The Discipline Committee of the SRNA found the appellant guilty of professional misconduct. Her appeal was dismissed by the Court of Queen’s Bench.
On appeal from that decision, the Saskatchewan Court of Appeal unanimously found all findings of professional conduct in the Discipline Committee decision must be set aside.
The Court of Appeal held that off-duty conduct may be found to be professional misconduct if there is a sufficient nexus or relationship between the personal conduct and the profession to engage the regulator’s obligation to promote and protect the public interest.
However, the Court of Appeal found the Discipline Committee did not give sufficient weight to the appellant’s right to freedom of expression and autonomy in her personal life. The potential impact on personal autonomy is a key contextual factor when deciding whether off-duty conduct constitutes professional misconduct.
The appellant’s freedom of expression, as protected by section 2(b) in the was infringed, and this infringement was not justified pursuant to section 1 of the Charter.
The concerns the appellant expressed on social media related not only to staff at that facility but to all institutions, residents and broad public policy issues. She posted as a granddaughter who had lost a grandparent and was concerned for the future of another, and at the time of the posts, was on maternity leave and had no professional relationship with the facility.
The Court of Appeal found the infringement on the appellant’s freedom of expression had a serious impact on the type of speech that the Charter seeks to protect.
However, a regulator may impose limits on communication, but they must be proportional and does not mean the entire life of a professional be subject to inordinate scrutiny.
The Court of Appeal set aside the Discipline Committee’s decision that the appellant’s conduct constituted professional misconduct and set aside the costs award.
This article is intended to alert readers to potential legal issues. It is provided as general information only, current at the time it was written. It is not intended, and cannot be relied upon, as legal advice applicable to particular persons or situations. No solicitor-client relationship is created by reading or relying on this article. A lawyer should be consulted concerning your own situation and any specific legal questions you may have.
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