Strom v SRNA: Nurse’s Personal Social Media Posts Do Not Constitute Professional Misconduct
The COVID-19 pandemic has shocked the country in its revelation of the systemic frailties plaguing Canada’s long-term care (“LTC”) system. Individuals over the age of 70 have made up almost 90% of the country’s deaths from COVID-19, and in the first wave of the pandemic, deaths in Canadian LTC facilities accounted for 80% of the country’s fatalities from the virus.
The release of the Saskatchewan Court of Appeal’s (“SKCA”) decision this fall in Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112 [Strom] feels particularly pertinent to the current situation in which the country finds itself. In this case, Carolyn Strom, a registered nurse in Prince Albert, SK, challenged a decision of the Discipline Committee of the Saskatchewan Registered Nurses’ Association (“SRNA”) which found her guilty of professional misconduct for making critical posts on her personal social media profiles about her late grandfather’s care at an LTC centre in Macklin, SK.
In overturning the Discipline Committee’s decision, the SKCA’s unanimous ruling in Strom provides a fascinating analysis of the overlap between professional regulation and freedom of expression as protected under s. 2(b) of the Canadian Charter of Rights and Freedoms [Charter]. In particular, the SKCA’s judgment appears to recognize the impact of expressions that are made by regulated professionals about their fields of expertise and the limits to which their regulators can control those expressions.
In February 2015, while on maternity leave, Ms. Strom made a post to her personal Facebook page commenting on the sub-par care her grandfather received at the St. Joseph’s Health Centre in Macklin. In her post, she commented that her grandfather had a negative experience in the facility’s palliative care unit, asked the staff to do better going forward, and encouraged others to speak up when their loved ones’ health and dignity are at risk in these settings. The post included a link to a newspaper article on the state of palliative care in Canada. Ms. Strom also created a post on Twitter with a link to her original Facebook post and tagged the Saskatchewan Minister of Health and the Leader of the Opposition. It was only in response to the two comments on her Facebook post by her “friends” that Ms. Strom identified herself as a registered nurse.
Copies of the posts were circulated among St. Joseph’s staff in March 2015, and nurses from the facility reported them to the SRNA. Ms. Strom was charged by the regulator with professional misconduct pursuant to ss. 26(1) and 26(2) of the Registered Nurses Act, SS 1988-89, c R-12.2 [RNA]. The charge specified several “particulars” relating to her charge, which included failing to follow “proper channels” by not raising the issues with the centre directly; tarnishing the reputation of the facility and its staff; failing to obtain all the facts before making her post; and using her status as a registered nurse for personal purposes and thus bringing the integrity of the profession into disrepute (Strom, para 18).
SRNA and SKQB Decisions
The Discipline Committee (“DC”) of the SRNA dealt with two issues in its decision: first, whether Ms. Strom was obliged to comply with the SRNA’s ethical code and competency standards while off-duty, and second, whether a finding of professional misconduct would infringe upon her protected freedom of expression pursuant to s. 2(b) of the Charter (Strom, para 20). The DC held that because Ms. Strom identified herself in her post as a registered nurse, this created a nexus between her views regarding her grandfather’s care and her professional position such that any off-duty comments would be subject to the regulator’s scrutiny (Strom, para 24). Additionally, the DC reasoned that while a finding of professional misconduct would infringe upon Ms. Strom’s freedom of expression, any infringement would be justified under s. 1 of the Charter as the impugned posts “harmed the reputation of the nursing staff at St. Joseph’s and undermined the public confidence in the staff at that facility” (Strom, para 26 citing SRNA decision, para 50). Ultimately, the DC found Ms. Strom guilty of professional misconduct under ss. 26(1) and 26(2)(l) of the RNA.
Ms. Strom appealed the decision to the Saskatchewan Court of Queen’s Bench (“SKQB”) which upheld the DC’s ruling. Relying on the reasonableness standard as articulated in Dunsmuir v New Brunswick, 2008 SCC 9, the SKQB found that the DC’s decision was within a range of acceptable and possible outcomes and determined that Ms. Strom’s comments undermined the public’s confidence in the nursing profession, thus constituting professional misconduct (Strom, para 45). The SKQB also endorsed the DC’s Charter analysis in finding that the DC had “balance[d] the fundamental importance of open and forceful criticism of public institutions with the need for civility in the regulated profession” (Strom, para 48).
The Professional Misconduct Issue
By the time Ms. Strom’s case made its way to the SKCA, Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] had substantively changed the process of determining the appropriate standard of review for judicial reviews of administrative decisions. As Ms. Strom challenged the matter through the appeal mechanisms provided in ss. 36 and 36.1 of the RNA, the SKCA ultimately determined that because the DC’s decision was discretionary, an appellate court could only intervene if the decision-maker erred in principle (Strom, para 86).
Writing for a unanimous panel of the SKCA, Justice Barrington-Foote used this standard of review to hold that the DC failed to sufficiently consider the contextual factors at play in Ms. Strom’s impugned posts and, therefore, erred in principle in its final decision. More specifically, the SKCA held that in determining whether off-duty conduct constitutes professional misconduct, the possible impact on the professional’s personal autonomy is a key contextual factor (Strom, para 113). In the case of Ms. Strom, the SKCA found that the impact on her personal autonomy was two-fold: she spoke out, on the one hand, as a registered nurse for better healthcare, and on the other hand, as a grieving granddaughter. With respect to the former, Justice Barrington-Foote determined that a “balanced” post on social media by a registered nurse calling for future improvements in the province’s health and LTC systems “would not justify a finding of professional misconduct,” as there is “no basis to conclude that the conduct in question…would damage the ability of the nurse to carry out their professional duties, negatively impact the interests of the public, or tend to harm the reputation of the profession” (Strom, para 115). With respect to the latter, the SKCA similarly found that “a single emotional outburst by a registered nurse at the deathbed of a child or spouse criticizing the treatment provided by a medical staff would generally lack a sufficient nexus to justify a professional sanction” (Strom, para 116). Justice Barrington-Foote reasoned that both of these considerations were clearly ignored by the DC in their decision. In particular, the DC failed to consider that Ms. Strom’s post included a link to a newspaper article on the issue of palliative care, which suggested that her comments were part of a broader critique of the subject (Strom, para 119). Additionally, the DC failed to mention “the fact that Ms. Strom self-identified as a grieving granddaughter,” and instead “harshly and simplistically summarized her statements as a generalized public venting” (Strom, para 122). The SKCA held that these omissions from the DC’s final decision did not sufficiently “answer[…] the question of how the posts would be understood by readers and thus whether there was an impact of the kind necessary to establish a sufficient nexus to the purpose of the [RNA]” (Strom, para 118). On these grounds, Justice Barrington-Foote found that the DC’s decision must be set aside as the DC did not complete the necessary contextual inquiry in order to determine whether there was actual professional misconduct arising from Ms. Strom’s social media posts (Strom, para 129).
The Charter Issue
Much like in its analysis of the professional misconduct issue, the SKCA emphasized the need for a contextual analysis in determining whether Ms. Strom’s Charter-protected right of freedom of expression was unjustifiably infringed upon by the DC’s decision (Strom, para 142). In particular, Justice Barrington-Foote relied on the two-stage proportionality analysis set out in Groia v Law Society of Upper Canada, 2018 SCC 27 [Groia], which is specific to instances in which a professional regulator has made a finding of misconduct that impacts the professional’s freedom of expression. First, the regulator’s statutory objective must be proportionately balanced with the professional’s expressive freedom, and second, there must be a “fundamentally contextual and fact-specific analysis” to determine whether the impugned expressions warrant disciplinary action (Strom, para 144).
The SKCA determined that the DC had met the first stage of the Groia analysis. In particular, it found that the DC had established a rational connection between the decision and the RNA’s objectives by having professionals communicate their concerns through the appropriate channels rather than publicly airing their grievances. According to the SKCA, these objectives were pressing and substantial as they include “protecting the public interest and the standing of the profession by setting and enforcing standards as to public speech by nurses relating to health care” (Strom, para 151). However, the SKCA rejected the SRNA’s submissions that finding Ms. Strom guilty of professional misconduct was the least intrusive option available to the DC in order to promote these objectives. More specifically, for many of the same reasons that underscore the SKCA’s holding that the DC principally erred in its professional misconduct determination of Ms. Strom, Justice Barrington-Foote found that the DC’s decision was devoid of any contextual consideration, and thus failed the second step of the Groia test. Had the DC undertaken such a contextual analysis, the SKCA held, it would have been “enable[d]…to proportionately balance the Charter right of registered nurses to free expression and the SRNA’s legitimate concern with off-duty speech by registered nurses with a sufficient nexus to the profession” (Strom, para 156). Consequently, in finding that the DC’s decision was not minimally impairing of Ms. Strom’s Charter rights, the SKCA held that the decision had a serious impact on the kinds of expressions that the Charter seeks to protect—i.e. expressions relating to the three core values of truth, democracy, and self-realization as defined in R v Keegstra,  3 SCR 697—and this impact was compounded “by the fact that it related to Ms. Strom’s freedom of expression while off duty and in relation to her private life” (Strom, para 165). As a result, the SKCA determined that the DC had unjustifiably infringed upon Ms. Strom’s freedom of expression and its decision must be set aside.
The SKCA’s decision in Strom is notable in its analysis of the extent to which professional regulators can limit its members’ freedom of expression while off-duty. The judgment seems especially concerned with professionals being able to speak out on issues relating to their fields of expertise, especially in fields that affect the public’s interest. In the case of healthcare professionals, Justice Barrington-Foote found that their criticisms of the healthcare system “can enhance [public] confidence by demonstrating that those with the greatest knowledge of this massive and opaque system, and who have the ability to effect change, are both prepared and permitted to speak and pursue positive change” (Strom, para 160). Indeed, the SKCA acknowledged the significance of social media and public accountability in exposing the realities of the LTC system in Canada where “proper channels” of communication and feedback have not always been available (Strom, para 124).
Additionally, Strom notes that professional regulators’ oversight of their members’ “speech cannot be unduly constrained to avoid offending others” (Strom, para 168). This consideration by the court should not be interpreted as a carte blanche for professionals to air certain grievances or make disparaging comments about their colleagues. Maintaining civility in regulated professions is something that regulators have a vested interest in so as to uphold the public’s confidence in the profession. This interest is a part of why the highly contextual approach is so critical to Justice Barrington-Foote’s judgment in Strom. Consideration of the personal and social factors relevant to the impugned expression is crucial in the context of a professional misconduct proceeding that relates to off-duty conduct. In particular, where the impugned expression is directly linked to matters within the public’s interest—such as the state of a province’s LTC system—regulators contemplating whether to pursue a charge of professional misconduct in relation to a member’s expression, should not only consider the personal factors attached to the expression, but also the professional’s own interests in contributing to and advancing the public’s access to their profession. While a regulator is obliged to place certain limits on their members’ off-duty conduct, a more holistic and contextual approach, as adopted by the SKCA in Strom, will help to encourage professionals to use their privileged roles in the public sphere in ways that are both cautious yet beneficial to the greater public interest.