In September 2019 the Saskatchewan Court of Appeal heard the appeal of Carolyn Strom, a Saskatchewan nurse, from a decision of the Court of Queen’s Bench dismissing her appeal of a 2016 decision of the Discipline Committee of the Saskatchewan Registered Nurses’ Association.
The Court of Appeal’s decision (the “Decision”) granting Ms. Strom’s appeal was released on October 6, 2020. The Decision is noteworthy as one of the most high-profile post-Vavilov decisions in the professional regulatory context and is instructive with respect to limitations that professional regulators may face in attempting to regulate “off-duty” conduct, particularly when doing so engages the right to freedom of expression under the Canadian Charter of Rights and Freedoms (“Charter”).
Overview of the Case
The case centred around certain Facebook posts made by Ms. Strom with respect to the care received by her grandfather, including nursing care, while he was a resident at a long-term care facility (the “Facility”).
The Discipline Committee found that the posts, in which Ms. Strom identified herself as a nurse, established a link between her professional role and her off-duty expressions, and thus were open to findings of professional misconduct. The Discipline Committee found that Ms. Strom had “engaged in a generalized public venting about the facility and its staff and went straight to social media to do that” (paragraph 42) and that, in doing so, she had committed misconduct. In response to Ms. Strom’s argument that a finding of misconduct in these circumstances constituted an unjustifiable breach of her Section 2(b) Charter right of freedom of expression, the Discipline Committee found that, although there was an infringement of Ms. Strom’s Section 2(b) Charter right, that infringement was justified under Section 1 of the Charter.
Ms. Strom exercised a statutory right of appeal and appealed the decision of the Discipline Committee to the Court of Queen’s Bench. The Court of Queen’s Bench upheld the decision of the Discipline Committee. In doing so, the Court of Queen’s Bench applied a reasonableness standard of review to both the finding of misconduct and the finding that there was a justifiable infringement of Ms. Strom’s Section 2(b) Charter right.