A nurse’s Facebook post about the care provided to her grandfather in a long-term care facility has resulted in highly-publicized administrative proceedings and generated a debate regarding whether social media posts can be subject to discipline by regulatory bodies. In Strom v Saskatchewan Registered Nurses’ Association, 2018 SKQB 110  [Strom], the Saskatchewan Court of Queen’s Bench re-ignited this discussion in upholding the decision of the Discipline Committee of the Saskatchewan Registered Nurses’ Association (the “Committee”) that concluded that the nurse engaged in professional misconduct by posting her comments on Facebook. Background In 2015, Carolyn Strom was licenced as a registered nurse and her grandfather was a patient at a long-term care facility. Ms. Strom had never worked at this care facility, but had visited her grandfather approximately five times per year. In February 2015, Ms. Strom posted comments on Facebook regarding the end-of-life care that her grandfather received at the facility. Although the post should be read in its entirety for context, excerpts from her Facebook post include:

• “..it is evident that Not Everyone is ‘up to speed’ on how to approach end of life care”
• “I challenge the people involved in decision making with that facility, to please get All Your Staff a refresher on the topic AND More.”
• “Don’t get me wrong, ‘some’ people have provided excellent care so I thank you so very much for YOUR efforts, but to those who made Grandpa’s last years less than desirable, Please Do Better Next Time!”
• “…a caution to anyone that has loved ones at the facility mentioned above: keep an eye on things and report anything you Do Not Like!”

In response to a comment left on her post, Ms. Strom identified herself as a nurse, stating: “As an RN and avid health care advocate myself, I just HAVE to speak up!” Ms. Strom thereafter sent a link to her post via Twitter to the Saskatchewan Minister of Health and the Leader of the Opposition, and changed her Facebook settings so that the post and resulting discussion was publicly accessible. As a result of the post, the Saskatchewan Registered Nurses’ Association (the “SRNA”) charged Ms. Strom with professional misconduct in breach of The Registered Nurses Act, 1998 (the “Act”), the Code of Ethics for Registered Nurses, and the Standards and Foundation Competencies for the Practice of Registered Nurses. Only the following four charges were pursued at the hearing before the Committee:

1. Failing to follow proper channels by publicly criticizing the care provided by staff at the facility;
2. Impacting the reputation of the facility and staff through the public posts;
3. Failing to first obtain all of the facts prior to publicly making the allegations;
4. Using her status as a registered nurse for personal purposes by using inappropriate communication channels to discuss workplace issues.

Although the Committee determined that Ms. Strom did not use her status as a nurse for personal gain, it concluded that she was guilty of professional misconduct contrary to the Act and the Code. Following a penalty hearing, Ms. Strom was ordered a reprimand, conditions on her practice, a fine of $1,000, and costs of the proceedings totalling $25,000. Ms. Strom appealed the Committee’s disciplinary and penalty decisions. Decision of the Saskatchewan Court of Queen’s Bench Justice Currie heard the appeal of the Committee’s decision on behalf of the Court of Queen’s Bench. He upheld the Committee’s decision on the standard of reasonableness, and dismissed the appeal. Justice Currie reframed the issues on appeal as a review of four fundamental decisions made by the Committee:

1. The Committee decided that Ms. Strom’s off-duty conduct was subject to discipline;
2. The Committee decided that Ms. Strom engaged in professional misconduct;
3. The Committee decided that the infringement of Ms. Strom’s right to freedom of expression was justified; and
4. The Committee determined an award of costs to be paid by Ms. Strom.

Ms. Strom’s arguments and Justice Currie’s analysis on these four decisions can be summarized as follows: 1. Off-Duty Conduct and Discipline Ms. Strom appealed the Committee’s determination that her off-duty conduct should be subject to discipline, submitting that the provisions of the Act are too broad and vague for a nurse to understand that they could apply to off-duty conduct. She argued that she was speaking as a private individual, and not as a registered nurse. She submitted that the rules governing nurses are only engaged when nurses are practicing in that capacity, and not in their day-to-day lives as individuals. Justice Currie rejected Ms. Strom’s argument and held that the provisions of the Act provided the Committee with a broad power to determine professional misconduct. Justice Currie repeated the following passage from Erdmann v Institute of Chartered Accountants of Alberta, 2013 ABCA 147 [Erdmann] at para 20, which was cited by the Committee in its decision:

20 Professionals in every walk of life have private lives and should enjoy, as much as possible, the rights and freedoms of citizens generally. A chartered accountant’s status in the community at large means that his/her conduct will from time to time be the subject of scrutiny and comment. While acknowledging the legitimate demands of one’s personal life, and the rights and privileges that we all enjoy, private behaviour that derogates from the high standards of conduct essential to the reputation of one’s profession cannot be condoned. It follows that a chartered accountant must ensure that her conduct is above reproach in the view of reasonable, fair-minded and informed persons.

Justice Currie noted that although Ms. Strom was on maternity leave at the time of the post, she testified that she posted her views online as an advocate. He concluded that the Committee’s decision that Ms. Strom’s off-duty conduct could be subject to discipline was reasonable, especially in light of analogous decisions such as Erdmann. 2. Off-Duty Conduct and Professional Misconduct Section 26(1) of the Act defines professional misconduct as being conduct that is contrary to the best interests of the public or nurses or that tends to harm the standing of the nursing profession. In its decision, the Committee concluded that Ms. Strom’s posts breached this provision by harming the reputation of the nursing staff at the facility, and undermining the public’s confidence in the staff. Ms. Strom argued that the Committee’s decision was unreasonable because it relied in part on inapplicable jurisprudence. Instead, the Committee should have analyzed whether her conduct was so “reprehensible” that a finding of professional misconduct was warranted. Justice Currie commented that it was not within his scope of review to focus on the particular analysis that the Committee took to reach its conclusion. Instead, he was tasked with reviewing the Committee’s conclusion on the issue, which he found to be reasonable in light of the evidence presented at the hearing. There was direct evidence from the nurses working at the facility that they had been approached by community members asking about Ms. Strom’s post and about what was going on at the facility. Justice Currie also considered publications from Saskatchewan Union of Nurses and similar news bulletins that caution nurses to be conscious of their social media posts. It was also noted that Ms. Strom had little first-hand knowledge of the care provided by the staff at the facility, and did not directly discuss her concerns with staff. Justice Currie determined that it was reasonable for the Committee to infer that Ms. Strom’s comments harmed the reputation of the nurses at the facility, and resultantly undermined public confidence in those nurses and harmed the standing of the nursing profession generally. 3. The Right to Freedom of Expression Ms. Strom argued that the Committee’s decision breached her right to life, liberty, and security of the person contrary to s. 7 of the Canadian Charter of Rights and Freedoms (the “Charter”), and her right to freedom of expression contrary to s. 2(b) of the Charter. First, Justice Currie adopted jurisprudence from Nova Scotia and British Columbia in determining that s. 7 of the Charter does not apply in the context of the practice of one’s profession. Second, Justice Currie noted that there was no dispute that Ms. Strom’s s. 2(b) right was infringed. Instead, the issue was whether the infringement was justified pursuant to s. 1 of the Charter. He cited the decision of the Supreme Court of Canada in Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 at para 57 for establishing the applicable test in reviewing an administrative decision engaging the Charter:

[57]  On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155), and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives. [emphasis in original]

Justice Currie determined that the Committee’s finding that the infringement was justified under s. 1 of the Charter was reasonable. The Committee proportionately balanced Ms. Strom’s s. 2(b) Charter right with the need to address her professional misconduct pursuant to the Act. It was reasonable for the Committee to conclude that the infringement was justified due to the nature and extent of the harm to the profession, and because the infringement still left Ms. Strom with another avenue of expressing her concerns. 4. Costs of the Proceedings Ms. Strom argued that the Committee did not have the authority under the Act to order the $25,000 costs award, and that the quantum of the award was unreasonable and arbitrary. Justice Currie held that there was no ambiguity in s. 31(2) of the Act, which provided the Committee with the authority to order that Ms. Strom pay the Committee the costs of the inquiry, hearing, and related costs. Justice Currie held that the Committee conducted a thoughtful review of the considerations relating to costs, including that the membership as a whole should not bear the entirety of the costs of proceedings when a nurse is found to have engaged in professional misconduct. He further noted that the actual costs related to the proceedings were over six times the $25,000 costs order. He therefore concluded that the costs award was reasonable and was ordered pursuant to statutory authority. Conclusion Justice Currie’s decision in Strom provides useful insight into how a professional’s social media posts can attract sanction as professional misconduct. As each case will be fact-specific, professionals and regulatory bodies should review their relevant legislation, bylaws, and related documents to determine whether similar off-duty conduct might be subject to discipline.

About the Author: Katherine is an associate practicing in the Regina office.  She has particular interest in insurance law and labour and employment law.

About McKercher LLP: McKercher LLP is one of Saskatchewan’s oldest and largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made our firm rank in the top 5 in Saskatchewan by Canadian Lawyer magazine (2017). Integrity, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions. This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.