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Saskatchewan Court of Queen’s Bench: Personal Social Media Posts May Constitute Professional Misconduct Subject to Discipline by Regulatory Bodies

In Strom v Saskatchewan Registered Nurses’ Association, 2018 SKQB 110  [Strom], a decision released last month, the Saskatchewan Court of Queen’s Bench upheld the decision of the Discipline Committee of the Saskatchewan Registered Nurses’ Association (the “SRNA”) which found that Ms. Strom had engaged in professional misconduct by posting critical comments of her grandfather’s end-of-life care on Facebook.

 

The administrative proceedings at play in the Strom decision were triggered by Ms. Strom’s social media post from 2015. At that time, Ms. Strom was licensed as a registered nurse and on maternity leave. Her grandfather was a patient at a long-term care facility where she had never been employed. Shortly after her grandfather’s death, she published a post on Facebook criticizing her grandfather’s care at the facility. Ms. Strom later identified herself as a registered nurse in the comments on her post and went on to send a link to the post to the provincial Minister of Health and the Leader of the Opposition, changing her Facebook settings to make the post publically accessible.

The SRNA Discipline Committee found Ms. Strom guilty of professional misconduct, for which she was fined $1,000. The SRNA also ordered Ms. Strom to pay $25,000 to cover some of the costs of the investigation and hearing, which cost roughly $150,000. Ms. Strom subsequently appealed the Committee’s decision.

At the Court of Queen’s Bench, Justice Currie stated that the SRNA Discipline Committee made four decisions: 

1. Ms. Strom’s off-duty conduct was subject to professional discipline;

2. Ms. Strom did engage in professional misconduct;

3. Infringement of Ms. Strom’s right to freedom of expression was justified; and

4. The costs award to be paid by Ms. Strom was reasonable

With respect to the Committee’s decision, Currie J found the standard of review to be reasonableness, that is, not whether the SRNA Discipline Committee’s decision was “correct,” only that it was “reasonable.” Canadian administrative law determines the reasonableness of a decision by whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. In this way, Justice Currie determined that the Committee’s decision -that Ms. Strom’s off-duty conduct was subject to professional discipline and that it constituted professional misconduct- was reasonable. These aspects of the decision were not shown to be unreasonable, and the burden was on Ms. Strom to do so. Furthermore, Currie J cited well-established case-law that supports the premise that professional regulation can apply to off-duty conduct, in nursing and other professions.

Ms. Strom argued that the Committee’s decision breached her right to freedom of expression, pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms. To this end, Justice Currie acknowledged that Ms. Strom’s right to freedom of expression had indeed been infringed, but the issue was whether this infringement was justified by section 1 of the Charter. A tribunal faced with a Charter question such as this one must “proportionately balance” the factors considered. As such, Justice Currie found that the Committee correctly considered the matter and proportionately balanced the right to freedom of expression and the need to regulate misconduct. Currie J. therefore found the Committee’s decision regarding the infringement of Ms. Strom’s right to freedom of expression to be reasonable. Finally, Justice Currie concluded that the costs award was reasonable given that it was ordered pursuant to statutory authority and reflected a small proportion of the overall cost of the hearing.

In an ever-changing world of technology, the Strom decision demonstrates the potential for a professional’s personal social media posts to be subject to discipline by the regulatory bodies of their profession. The case confirms the deference courts pay to administrative tribunals, owing to the fact that powers are delegated to these tribunals by provincial legislatures and Parliament. As such, it is up to professional regulatory bodies to review or change their policies to determine whether or not to change their position on what sorts of off-duty conduct might be subject to discipline.

A notice of appeal of this decision was filed with the Saskatchewan Court of Appeal on May 15th, 2018.