To what extend do professionals have the right to express their
personal views outside of their professional lives?
In the recent decision of Strom v Saskatchewan Registered
Nurses’ Association, 2020 SKCA 112, the Saskatchewan
Court of Appeal provided further clarity regarding the degree of
analysis expected of professional regulators in assessing whether a
member’s off-duty comments amounts to professional
misconduct.
Background
Carolyn Strom, a registered nurse was licensed by the
Saskatchewan Registered Nurses’ Association
(“SRNA”). While on maternity leave, and following the
death of her grandfather, Ms. Strom posted critical comments on
Facebook about the level of care received by her grandfather in his
final days at a long-term care home and long-term care in general.
Ms. Strom also posted a link to an article about end-of-life care
and tweeted the posts to the Saskatchewan Minister of Health and
the Saskatchewan Opposition Leader.
Ms. Strom was found guilty of professional misconduct by the
SRNA Discipline Committee for the public Facebook posts. The
Discipline Committee focused on the fact that she did not go
through proper channels to voice her concerns. As she identified
herself as a registered nurse in the Facebook posts, the Discipline
Committee found that Ms. Strom’s posts harmed the nursing
profession’s reputation. The Discipline Committee found that
although its decision infringed on Ms. Strom’s freedom of
expression, the infringement was justified as the Discipline
Committee needed to ensure that nurses advocate in a professional
manner. The Saskatchewan Court of Queen’s Bench subsequently
affirmed the Discipline Committee’s decision.
Saskatchewan Court of Appeal Decision
On appeal, the Saskatchewan Court of Appeal overturned both the
lower court’s and the Discipline Committee’s decisions.
They held that in order to determine whether off-duty comments
amount to professional misconduct, a regulator must look at the
entire context behind the comments. The Saskatchewan Court of
Appeal found that the Discipline Committee failed to do this
thereby missing key factors including: Ms. Strom was grieving the
loss of her grandfather; that she also made comments praising
certain staff members; and that her posts were intended to raise
awareness on improving palliative care in Canada in general. The
tone, content and purpose of the post were all important factors to
consider when determining whether Ms. Strom’s off-duty
conduct would be considered professional misconduct.
The Saskatchewan Court of Appeal also found that
the Discipline Committee’s failure to perform a
contextual analysis resulted in a decision that unjustifiably
infringed on Ms. Strom’s right to freedom of expression. In
making these findings, the Saskatchewan Court of Appeal recognized
that professionals have the right to voice their opinions. The
Discipline Committee’s decision unjustifiably denied Ms.
Strom and other registered nurses their ability to offer
constructive criticism and contribute to discussions on important
public health issues.
The Saskatchewan Court of Appeal noted that professionals remain
bound by their profession’s rules and requirements with
respect to civility, respectful communication, confidentiality,
advertisement and other matters that impact freedom of expression.
However, the enforcement of these limits must be proportional to
the alleged offensive speech. Not every statement that causes
offence should attract discipline. In this case, Ms. Strom’s
posts were made as a grieving granddaughter. They were not shown to
be false or exaggerated. There was no evidence that the public
interest or the reputation of facility, staff and nursing
profession were negatively impacted. In these circumstances, the
Discipline Committee’s decision to discipline Ms. Strom for
her off-duty speech did not justify infringing on
her Charter right to freedom of expression.
Key Takeaway
The Saskatchewan Court of Appeal’s decision highlights the
importance for regulators to examine the entire context when
dealing with off-duty conduct. A contextual analysis must focus on
whether there is a nexus between the off-duty conduct and the
profession, such that there would be a negative impact on the
public, the professional or the profession.
When an individual makes a statement, the tone, content, and
purpose of the statement are important contextual factors that a
regulator should consider when assessing whether the conduct
amounts to professional misconduct. It is important that the
regulator not cherry pick elements of an individual’s conduct
to make a finding of professional misconduct.
The Saskatchewan Court of Appeal’s decision also serves as
a reminder that professionals have voices and roles outside of
their professional lives and that they have the right to express
their views. Public discourse is important and professionals can
offer unique and informed contributions to these discussions.
Limits can be imposed if they are necessary to protect the public
or profession as a whole. However, speech should not be limited
simply because it may offend others. A full contextual analysis of
the situation is required to properly balance the need to impose
these limits and the right of members to freedom of expression.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.