October 15, 2020

The Strom decision is not about freedom of speech; it’s about fulsome reasons

Administrative Law
Professional Regulation

In October 2020, the Saskatchewan Court of Appeal decided that a regulatory authority, the Saskatchewan Registered Nurses Association, unjustifiably infringed a nurse’s freedom of expression by reprimanding and fining her for making social media posts about the palliative care her grandfather received at a specific health centre, including poor care from some of the health care providers: Strom v. Saskatchewan Registered Nurses Association, 2020 SKCA 112. The case provides a lesson for professional regulatory colleges in British Columbia, but that lesson is not about freedom of speech.

The case involved a nurse making a Facebook post concerning her experience at a health centre where her father had received care: “it is evident that Not Everyone is ‘up to speed’ on how to approach end of life care….” Although her discussion was two Facebook friends was not initially public, she “tweeted” the posts to the Minister of Health and the Opposition Leader to make them aware of her concerns about long-term care, and at that point, the discussion became public. The regulatory authority asserted misconduct, as the nurse failed to take her concerns to appropriate channels (starting with the individual care providers), failed to obtain all the facts from the facility and the care providers, and identified herself as a nurse.

Many aspects of the Strom decision are clearly correct. For example, the court identified that under the new law established by the Supreme Court of Canada in Vavilov (2019 SCC 65), and since the nurse had a statutory right of “appeal”, the court had to apply “appellate standards”. [57] The court also identified that whether a professional is guilty of professional misconduct is a question of mixed fact and law, or a discretionary decision, for which the legislature intended the decision-maker to have discretion to decide what constitutes professional misconduct. [76 and 86] The court went on, however, to conclude the committee erred, due to “a series of omissions that together constitute an error in principle” [117]. For example, the court reasoned

  • that the committee “did not take adequate account of key factors”, such as the tone, context or purpose of the posts; [118]
  • that the committee “cherry picked the most critical portions of the posts”; [120]
  • that the nurse self-identified as a grieving granddaughter; [122] and
  • that the posts occurred in the course of a single day. [123]

The court ultimately concluded the committee failed to “accord sufficient or any weight to important criteria that governed the exercise of their discretion”. [128]

The court went then went on to decide if the discipline decision unjustifiably infringed the nurse’s freedom of expression, [at 131 onward] but it based its analysis in part on its conclusion that the tribunal failed to consider the “full panoply of contextual factors” particular to the case, before it decided she should be disciplined. [155] For example, the court inferred from the tribunal’s silence about specific facts that it failed to consider the purpose of the nurse’s posts. [162]

The conclusion by the appellate court in Strom is, unfortunately, not self-evident. For example, the court’s conclusion is not necessarily one that a college in BC should expect from a BC court. The failure of a decision-maker to refer to every piece evidence does not, by itself, ordinarily establish that a decision-maker has ignored evidence. As stated by the B.C. Court of Appeal in Van Mol (Guardian ad litem of) v. Ashmore, 1999 BCCA 6, a trial judge [or any decision-maker] omitting reference to a piece of evidence “[13] …is not itself an error unless the circumstances are such that the omission must give rise to a reasoned belief that the trial judge must have forgotten, ignored, or misconceived the evidence in a way which affected his or her conclusion.” The overall task of an appellate court is to decide “whether, on the basis of all the evidence, there was a body of evidence which was properly, judicially, and reasonably capable of supporting the conclusion which the trial judge reached.”

The principle that decision-makers need not mention all facts is also consistent with the appellate standards of review set out by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51. In that case, the court held that a trial judge need not set out every finding or conclusion in the process of arriving at a verdict. [18] An appellate court must ask itself “whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached.” [55] The court also stated that, “Finally, appellate courts must guard against simply sifting through the record and substituting their own analysis of the evidence for that of the trial judge because the reasons do not comply with their idea of ideal reasons.” [56]

The appellate court in Strom could have concluded that the tribunal did consider all factors, but weighed those factors in a very different fashion than the court, as it is entitled to do. This means that the biggest takeaway from Strom is not the result, or that regulatory authorities must consider freedom of speech (which is true), but a lesson that tribunals should ensure they provide fulsome-enough reasons to deny any review or appellate body any occasion for concluding that the tribunal failed to consider some key aspect of the respondent’s evidence or arguments.

Strom v. Saskatchewan Registered Nurses Association, 2020 SKCA 112.

Lisa C. Fong, Q.C. and Michael Ng