The long-awaited decision of the Saskatchewan Court of Appeal in Strom v Saskatchewan Registered Nurses' Association, 2020 SKCA 112, was recently released. The decision considers when and if members of a profession can be sanctioned by their professional regulator for comments made on social media, as well as whether a professional association can infringe on a member's Charter-protected freedom of speech in sanctioning members for off-duty conduct.
On the facts of this case, the Saskatchewan Court of Appeal held that a decision which sanctioned Ms. Strom for social medial posts about the long-term care home where her grandfather resided was incorrect.
BACKGROUND AND THE IMPUGNED SOCIAL MEDIA POSTS
Ms. Carolyn Strom is a registered nurse in Saskatchewan. On January 27, 2015, Ms. Strom's grandfather died in long-term care at the St. Joseph's Health Centre in Prince Albert, Saskatchewan. He resided there for over 13 years. After his death, Ms. Strom took to Facebook and Twitter to express her concerns with the care he received. Her post included a link to a news article which criticized physicians' general knowledge about end-of-life care. While the comments did not name any staff directly, Ms. Strom was critical of the care her grandfather received. She stated that the care was "subpar" and not "up to speed." Initially, only her "friends" were able to see the posts. However, once she tweeted the posts to the Minister of Health for Saskatchewan, they became public. In one comment on her post, Ms. Strom identified herself as a registered nurse.
The existence of the posts made its way back to staff at St. Joseph's. Offended by the posts, staff complained to the Saskatchewan Registered Nurses' Association (the "SRNA"). Like most professional bodies, the SRNA is a creature of statute, and, as part of its legislative mandate, carries out investigations relating to allegations of professional misconduct. The SRNA conducted an investigation into the complaint, including interviewing witnesses who were offended at the posts.
DECISION OF THE DISCIPLINE COMMITTEE
The SRNA issued a charge against Ms. Strom with respect to the social media posts alleging that she had committed professional misconduct and acted contrary to the SRNA's parent legislation, the Code of Ethics for Registered Nurses, 2008, and the Standards & Foundation Competencies for the Practice of Registered Nurses, 2013. Specifically of note, the charge stated that Ms. Strom did not go through the proper internal channels to voice her concerns, and that her actions had a negative impact on the reputation of the staff of St. Joseph's. The matter was subsequently referred to a Discipline Committee of the SRNA.
Ms. Strom was ultimately disciplined by the Discipline Committee. It found that it had the authority to discipline Ms. Strom for her comments, despite the fact that they were not made during the course of providing nursing care. While she did not name any nurses directly, her comments had the effect of harming the reputation of staff at St. Joseph's and undermined public confidence in the staff at that facility. Ms. Strom was ordered to pay a fine, repay the costs of the hearing, and write two reflective essays on the impact of her conduct.
Ms. Strom sought judicial review of the Discipline Committee's decision before the Saskatchewan Court of Queen's Bench. The Court of Queen's Bench decision upheld the decision of the Discipline Committee. Notably, Ms. Strom's union, the Saskatchewan Union of Nurses, intervened in support of her.
Ms. Strom appealed further to the Saskatchewan Court of Appeal. The Court of Appeal overturned both the Court of Queen's Bench decision and the Discipline Committee's decision. It found that the Court of Queen's Bench erred in its review of the Discipline Committee's decision. In the result, it found that the Discipline Committee failed in its consideration of whether the posts amounted to professional misconduct.
The Court of Appeal held that the analysis as to whether off-duty conduct can fall within the purview of a professional regulator is necessarily contextual. A number of factors must be taken into account, including the nature of the profession, the relationship of the misconduct to the work of the profession, and whether the person charged is identified or purported to act as a member of that profession. At paragraph 89, it phrased the issue to be decided this way:
[.] off-duty conduct may be found to be professional misconduct if there is a sufficient nexus or relationship of the appropriate kind between the personal conduct and the profession to engage the regulator's obligation to promote and protect the public interest. More specifically, I would state the issue this way: was the impugned conduct such that it would have a sufficiently negative impact on the ability of the professional to carry out their professional duties or on the profession to constitute misconduct?
Ultimately, the Court of Appeal held that the Discipline Committee failed to take a contextual approach to the complaint against Ms. Strom. It held that the impact of the disciplinary action on her Charter-protected freedom of speech in her private life was serious:
 [.] Ms. Strom posted as a granddaughter who had lost one grandparent and was concerned for the future of another. That fact was front and center for a reader of the posts. Although she identified as a nurse and an advocate, she was not and did not purport to be carrying out her duties as a nurse. She was on maternity leave and spoke to the quality of care provided by a distant facility with which she had no professional relationship. The private aspect of the posts was made clear and was significant. Further, and as has been noted, the posts have not been shown to be false or exaggerated and, on the face of it, would appear to be balanced.
The Strom decision does not fundamentally change the law. Regulators may still impose requirements respecting civilly, respectful communication, confidentiality, advertising, and other issues which may necessarily impact on a member's freedom of expression. Further, members of regulated professions may still be disciplined by their regulators for failing to abide by such requirements.
However, the Court of Appeal's decision does reinforce the importance of contextual factors when investigating and resolving complaints concerning off-duty conduct. This is especially the case where Charter rights are engaged. While regulators can impose requirements, rules, and processes within their legislative mandate, it must not subject professionals to "[.] inordinate scrutiny on the basis of more onerous standards of behavior, as that would lead to a substantial invasion of the privacy rights and fundamental freedoms of professionals."
Ultimately, in examining these types of matters, regulators should proceed with caution. Policies and standards that govern off-duty conduct should be thoroughly reviewed to ensure they fit within the contextual analysis discussed by the Court of Appeal. While this decision is not binding outside of Saskatchewan, it nonetheless provides useful guidance on how courts will approach the interaction between a regulator's standards and policies and a member's off-duty conduct. As the Court of Appeal noted at paragraph 166:
Nurses, doctors, lawyers and other professionals are also sisters and brothers, and sons and daughters. They are dancers and athletes, coaches and bloggers, and community and political volunteers. They communicate with friends and others on social media. They have voices in all of these roles. The professional bargain does not require that they fall silent. It does, however, allow the regulator to impose limits. The question as to whether it has imposed excessive limits is the proportionality question.
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