2013 NBCA 45, 2013 NBCA 45

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 67-12-CA JON BOONE DOAK APPELLANT JON BOONE DOAK APPELANT - and - - et - NURSES ASSOCIATION OF NEW BRUNSWICK RESPONDENT ASSOCIATION DES INFIRMIÈRES ETINFIRMIERS DU NOUVEAU-BRUNSWICK INTIMÉE Doak v. Nurses Association of New Brunswick, 2013NBCA 45 Doak c.

Association des infirmières et infirmiers duNouveau-Brunswick, 2013 NBCA 45 CORAM: The Honourable Justice Larlee The Honourable Justice Robertson The Honourable Justice Quigg CORAM : L’honorable juge Larlee L’honorable juge Robertson L’honorable juge Quigg Appeal from a decision of the Court of Queen's Bench: May 2, 2012 Appel d’une décision de la Cour du Banc de la Reine : Le 2 mai 2012 History of Case: Historique de la cause : Decision under appeal: 2012 NBQB 153 Décision frappée d’appel : 2012 NBQB 153 , 2012 NBBR 153 Preliminary or incidental proceedings: Court of Appeal [2013] N.B.J.

No. 16 Procédures préliminaires ou accessoires : Cour d’appel [2013] A.N.-B. no 16 Appeal heard: April 16, 2013 Appel entendu : Le 16 avril 2013

Judgment rendered: July 11, 2013 Jugement rendu : Le 11 juillet 2013 Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Larlee The Honourable Justice Robertson Souscrivent aux motifs : L’honorable juge Larlee L’honorable juge Robertson Counsel at hearing: For the appellant: John D. Hughes For the respondent: Frederick C. McElman, Q.C. and E. Anne MacLean Avocats à l’audience : Pour l’appelant : John D. Hughes Pour l’intimée : Frederick C. McElman, c.r., et E. Anne MacLean THE COURT The appeal is dismissed with costs of $2,500.

LA COUR Rejette l’appel avec dépens de 2 500 $. The judgment of the Court was delivered by QUIGG J.A. I. Introduction [ 1 ] The appellant, Jon Boone Doak, a nurse and former employee of the Drew Nursing Home in Sackville, N.B., appeals from a decision of the Court of Queen’s Bench, dismissing an appeal with respect to a disciplinary decision rendered by the Respondent, Nurses Association of New Brunswick (the “Association”). The latter decision flowed from a complaint filed by the Director of Care Services of the nursing home and a disciplinary hearing held by the Discipline Committee. The complaint stated Mr.

Doak’s conduct and actions failed to meet the standards of practice required of a nurse. The Committee found Mr. Doak guilty of professional misconduct and imposed the following sanctions: revocation of his licence and the inability to apply for reinstatement for three years, subject to conditions, as well as payment of $10,000 in costs to the Association. In turn, the Committee’s decision was affirmed on appeal to the Association’s Board of Directors and then to the Court of Queen’s Bench.

I would dismiss the present appeal on the basis the appellant has failed to establish error of the kind that warrants interference with the appeal judge’s disposition of the appeal brought to her under s. 38(1) of the Nurses Act , S.N.B. 1984, c. 71 . II. Statutory Context

[ 2 ] The Nurses Association of New Brunswick regulates the nursing profession pursuant to: the Nurses Act , S.N.B. 1984, c. 71 , its Regulations and a Procedural Code . As expected, the Association is responsible for regulating the admission, registration, suspension, expulsion, cancellation, removal, discipline and reinstatement of registration and licensing of nurses in this Province. When the Association is presented with a complaint related to a nurse’s professional conduct, it is dealt with through the disciplinary framework set out in the legislation.

Once filed, the complaint is forwarded to the Complaints Committee. The Complaints Committee then determines whether or not the complaint warrants further consideration. If the Committee concludes there is merit to the complaint, it is forwarded to the Discipline Committee. (In this case, the Complaints Committee suspended Mr. Doak pending the outcome of discipline proceedings.) The Discipline Committee then holds a hearing and issues a decision. However, the member being sanctioned is given an opportunity to appeal the Committee’s decision to the Association’s Board of Directors.

A further appeal to the Court of Queen’s Bench is permitted under s. 38(1) of the Nurses Act . That

section reads as follows:

PART VI APPEALS […] 38

(1) Any party to a proceeding before the Board may appeal from the findings of the Board on any ground of appeal that involves a question of law alone to the court within 30 days of the date on which notice of the Board’s decision is mailed to the last known address of such party, or within such further time as may be allowed by the Court. [Emphasis added.] […] The Nurses Act defines “court” as: “Court” means a Judge of the Court of Queen’s Bench of New Brunswick.

PARTIE VI APPELS […] 38

(1) Toute

partie à une instance portée devant le Conseil peut interjeter appel des conclusions du conseil devant la Cour, sur tout moyen d’appel qui comporte uniquement une question de droit, dans les trente jours de la date où l’avis de la décision du Conseil est envoyé par la poste à la dernière adresse connue de cette

partie ou dans le délai supplémentaire que la Cour peut accorder. [C’est moi qui souligne.] […] Le mot « Cour » est ainsi défini dans la Loi sur les infirmières et infirmiers : « Cour » désigne un juge de la Cour du Banc de la Reine du Nouveau-Brunswick. [ 3 ] New Brunswick nursing homes are subject to General Regulation , N.B. Reg. 85-187, adopted under the Nursing Homes Act , S.N.B. 1982, c. N-11, which mandates the following:

21 An operator shall ensure that (

a) all prescription and non-prescription medications are administered only on the order of a physician, pharmacist, nurse practitioner or dentist, which order, if verbally given, is confirmed in writing on the physician’s, nurse practitioner’s or dentist’s next visit; (

b) all medications in nursing homes with a rated capacity of thirty beds or more are purchased from one participating pharmacy in the form of the controlled dosage system in accordance with the physician’s, pharmacist’s or nurse practitioner’s written prescription; (

c) all prescribed medications are kept in containers supplied by the participating pharmacy bearing the original label on which shall be legibly recorded the prescription number, the name or content of the medication, the resident’s name, the directions for use, the prescriber’s name, the date of issue and the name of the pharmacy from which the medication was issued; [...] (

j) medications are stored in locked cabinets and prepared in an appropriately equipped area. 21 L’exploitant d’un foyer de soins doit veiller à ce que

a) tous les médicaments dispensés sur ordonnance et sans ordonnance soient administrés uniquement sur l’ordre d’un médecin, d’un pharmacien, d’une infirmière praticienne ou d’un dentiste et que cet ordre, au cas où il est donné verbalement, soit confirmé par écrit lors de la prochaine visite du médecin, de l’infirmière praticienne ou du dentiste;

b) tous les médicaments d’un foyer de soins d’une capacité de trente lits ou plus soient achetés d’une pharmacie participante sous forme d’un système de dosage contrôlé en conformité avec l’ordre écrit du médecin, d’un pharmacien ou de l’infirmière praticienne;

c) tous les médicaments dispensés sur ordonnance soient conservés dans des contenants fournis par la pharmacie participante portant l’étiquette originale sur laquelle doivent être enregistrés lisiblement le numéro de l’ordonnance, le nom ou le contenu du médicament, le nom du pensionnaire, la posologie, le nom de l’auteur de l’ordonnance, la date de délivrance et le nom de la pharmacie d’où provient le médicament; [...]

j) les médicaments soient entreposés dans des armoires fermées à clef et préparés dans un secteur équipé de façon appropriée. In brief, nursing homes with thirty beds or more must deal with one pharmacy. Moreover, all prescription and non-prescription medications must be ordered and administered on the order of a physician, pharmacist, nurse practitioner or dentist. II. Background [ 4 ] Mr. Doak, a Registered Nurse, was employed by the Drew Nursing Home (“nursing home”) from July 9, 2004, until April 9, 2010, as a foreign worker through Immigration Canada. While working at the nursing home, Mr.

Doak befriended the husband of one of the patients. The patient was diagnosed with Primary Progressive Aphasia and was non- communicative, non-responsive and in a vegetative state. Mr. Doak discussed alternative treatments for the patient with the patient’s husband and supplied him with literature regarding treatments that Mr. Doak felt would help the patient. After these discussions, the husband requested the Medical Director to prescribe the treatments recommended by Mr. Doak. On June 4, 2009, the Executive Director and the Director of Care Services with the nursing home met with Mr.

Doak to discuss his attempts to encourage the husband to request alternative treatments. Mr. Doak responded by correspondence that: “he was comfortable with his actions under the Canadian Nurses

Association Code of Ethics ...”. In the Fall of 2009, when nursing home management had further concerns respecting Mr. Doak’s actions, a Learning Plan for Practice Expectations was formulated and presented to Mr. Doak. [ 5 ] Between August 6, 2010 and August 12, 2010, incidents occurred which led the Director of Care Services for the nursing home to file a complaint with the Association. Mr. Doak admitted that all of the allegations with respect to what actually occurred are true. What he disputed was whether the impugned conduct amounted to professional misconduct. The admitted facts are as follows. [ 6 ] Mr.

Doak, while a registered nurse employed at the nursing home, counselled a resident’s husband with respect to the administration of medication which had not been prescribed by the Medical Director of the nursing home. Furthermore, Mr. Doak had, after leaving the employment of the nursing home, during the period of August 6, 2010, to August 12, 2010, returned to administer treatments and medications (Dehydroepiandrosterone and Hydrocortisone) from sources which had not been authorized or approved by the Medical Director. Mr.

Doak did so at the direction of the patient’s husband and a naturopathic doctor from the Tahoma Clinic in Seattle, Washington. The medications were dispensed to the husband from a pharmacy in Vancouver and not from the nursing home’s pharmacy. On August 11, 2010, the Medical Director had ordered the medication be discontinued after a telephone conversation with the naturopathic doctor from the Tahoma Clinic. As a result, the husband moved the patient from the nursing home on August 13, 2010. Mr. Doak actively assisted the husband in making arrangements for the patient’s move to a camper trailer on Mr.

Doak’s property, in order to continue the administration of the substances. Mr. Doak treated the patient for a further two months, following which the patient was moved to her husband’s residence where the husband provided for her care. Mr. Doak also had documented vital sign information and assessments of the resident without providing this information to the Medical Director or other care givers. That incident was reported to the Department of Social Development, Nursing Home Services. Mr. Doak was served with documents advising him not to return to the nursing home premises.

On August 13, 2010, the Director of Care Services filed a complaint of professional misconduct against Mr. Doak with the Association. It is this complaint that was forwarded to the Complaints Committee. [ 7 ] On October 18, 2010, the Complaints Committee issued a decision, wherein it determined the complaint warranted further consideration. It referred the complaint to the Discipline Committee, and suspended Mr. Doak’s registration, pursuant to para. 29(9)(

d) of the Nurses Act , pending the outcome of the proceedings. On March 30 and 31, 2011, a hearing was held. On April 13, 2011, the Discipline Committee issued an Interim Order wherein it determined that Mr. Doak’s conduct and actions failed to meet the standards of nursing practice. The Committee also concluded the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 , does not protect him from the application of the Nurses Act . The Interim Decision contains the following findings: 1. The Member’s conduct and actions failed to meet the standards of nursing practice expected from a nurse with respect to confidentiality, medication administration and the nurse-client relationship and constituted professional misconduct and conduct unbecoming a member. 2.

The Member demonstrated professional misconduct, and a lack of judgment in the treatment of the resident and in administering unauthorized medications from an unapproved source based on the direction of a person not licensed to practice medicine in New Brunswick, and demonstrated a disregard for the welfare of the resident as a patient to such an extent as to constitute incompetence as a nurse. 3.

The Member demonstrated conduct unbecoming a member in assisting with planning and arranging the removal of the resident from the Nursing Home to another location, to enable the Member to continue to provide unauthorized medications [sic] to the resident. 4.

The sections of the Canadian Charter of Rights and Freedoms relied on by the Member do not constitutionally protect the Member and his actions and conduct from the application of the provisions of the Nurses Act , the nursing practice standards applicable to all nurses and the obligation to provide safe, competent and ethical nursing care. [ 8 ] The Discipline Committee provided Mr. Doak an opportunity to forward written submissions before it made its final order. After considering the evidence, as well as Mr.

Doak’s written submissions, the Discipline Committee rendered its Final Decision and Order which reiterated the findings of fact made in the Interim Order. It ordered the following: (

a) his registration and membership be revoked; (

b) that he pay a portion of the costs to the Association arising from the Complaint in the amount of $10,000, one half within 18 months and the balance prior to any application of reinstatement; (

c) he not be eligible to apply for reinstatement before 3 years and until the costs are paid and until he successfully completes certain “modules” offered in the Nurse Refresher Program.

[9] On June 23, 2011, Mr. Doak filed a Notice of Appeal, against the Decision of the DisciplineCommittee, to the Board of Directors. On October 14, 2011, the Board heard the appeal, confirmed the decision of the DisciplineCommittee, dismissed the appeal and ordered Mr. Doak to pay for the cost of the transcript, which had been required for the appeal. OnNovember 9, 2011, Mr. Doak filed a Notice of Appeal to the Court of Queen’s Bench, pursuant to s. 38(1) of the Nurses Act. [10] On April 26, 2012, a judge of the Court of Queen’s Bench heard the appeal. Mr. Doak wasrepresented by counsel.

In her written decision dated May 2, 2012, the judge held: “The Nurses Act restricts appeals to questions of law[alone] (see para. 38(1) of the Act). An appeal provision, restricted to questions of law alone, suggests that the legislators intended thecourts to give deference to the decisions of tribunals”. The judge undertook an analysis and determined the Board had provided sufficientreasons to support its conclusions. She found the decision to be reasonable in light of the standards defined in the Nurses Act. In the end,she dismissed Mr. Doak’s appeal and ordered costs of $500. [11] Mr.

Doak asks this Court for the following relief: (1) to set aside the finding of professionalmisconduct; (2) to quash the revocation of his registration and membership in the Association; (3) to quash the conditions and costsimposed in the Order and order his reinstatement in the Association; (4) general and special damages; and (5) costs. As is apparent,some of the relief sought is beyond the scope of this Court’s authority. III. Grounds of Appeal [12] Mr.

Doak states the appeal judge erred as follows: (1) by giving undue weight to deference; (2) by giving no weight to evidence concerning the status of the patient nor to parts of the Nurses Code of Ethics; (3) by giving undue weight to a breach of a provincial statute; (4) by misinterpreting counsel’s agreement with certain facts to be an admission of professional misconduct; (5) by giving no weight to Mr. Doak’s argument that the Association was bound to respect ss. 7 and 15(1) of the Charter, includingMr. Doak’s actions on behalf of a patient; and (6) by failing to give effect to Mr.

Doak’s right of freedom of conscience pursuant to s. 2(

a) of the Charter. IV. Analysis A. Motion for Fresh Evidence [13] At the outset of the hearing, counsel for Mr. Doak made a motion to introduce fresh evidence.The evidence consisted of a laboratory report and the Standards of Practice for Registered Nurses issued by the Association. Counselfor the Association consented to the Standards of Practice being received for reference purposes only, but opposed the admission of thelaboratory report as evidence. We reserved our decision on this motion. In my view, the material proffered as fresh evidence does notmeet the test for admissibility (see R. v.

Palmer, (SCC), [1980] 1 S.C.R. 759, [1979] S.C.J. No. 126 (QL); D.L.M. v.J.A.M., 2008 NBCA 2, 326 N.B.R. (2d) 111; P.R.H. v. M.E.L., 2009 NBCA 18, 343 N.B.R. (2d) 100, paras. 39-42). In particular, I amnot satisfied the evidence in question would have affected the outcome. The report, which is unintelligible to those with no medicaltraining, is submitted for the purpose of establishing that the treatments administered by Mr. Doak improved the medical condition ofthe patient. Obviously, that evidence does not negate the fact that Mr.

Doak acted contrary to the provincial legislation and the standardsimposed by the nursing profession. I would, therefore, dismiss the motion to adduce fresh evidence.

B. The Merits [ 14 ] On the appeal to this Court, we raised an issue that had gone largely unnoticed. Section 38(1) of the Nurses Act limits appeals to the Court of Queen’s Bench to “questions of law alone”. In the present case, both parties had agreed that the grounds of appeal set out in the Notice of Appeal, and outlined above, qualified as questions of “mixed law and fact”. They also agreed that the proper review standard is reasonableness.

Those concessions are problematic on a number of fronts. [ 15 ] It would appear that s. 38(1) precludes the Court of Queen’s Bench from entertaining appeals involving either questions of fact or questions of mixed law and fact. Furthermore there is jurisprudence that a palpable and overriding error of fact may constitute a question of law or as a question of law alone (see VSL Canada Ltd. v. Workplace Health Safety and Compensation Commission and Duguay et a l., 2011 NBCA 76 , 376 N.B.R. (2d) 292 ).

To complicate matters further, the issue is not whether the appeal to this Court raises a question of law alone but whether the appeal to the Court of Queen’s Bench raised such questions. Finally, it must be asked: What is the proper standard of review for questions of law alone? In other words, does the Court of Queen’s Bench owe deference to the rulings of the Discipline Committee and the Association’s Board of Directors on questions of law? To the extent that the Discipline Committee is comprised of lay members, albeit some with expertise in the fields of nursing and medicine, surely the answer has to be no.

The Committee cannot claim to possess a “relative expertise” when compared to that possessed by superior court judges. Therefore, the applicable standard of review must be “correctness” on questions of law leading to the finding of professional misconduct. At the same time, the jurisprudence of the Supreme Court is clear that deference is owed to the sanctions imposed by professional disciplinary bodies following a finding of professional misconduct: see generally Law Society of New Brunswick v. Ryan , 2003 SCC 20 , [2003] 1 S.C.R. 247 and Dr. Q v.

College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226 . [ 16 ] Fortunately, this is not a case where it is necessary to determine the scope and meaning of s. 38(1) of the Nurses Act. This will become evident when each of the grounds of appeal is addressed. Nor is it necessary to inquire into the reasonableness of the sanctions imposed. This is because Mr. Doak does not challenge the sanctions, only the finding of professional misconduct. In essence, Mr.

Doak’s appeal rests on the argument that he is not guilty of professional misconduct and, therefore, the sanctions automatically fall. Moreover, while he admits to the facts underlying the Committee’s finding of misconduct, he asserts that what he did is justified on two grounds. First, he acted in good faith and, second, what he did improved the health of the patient. Within that focused context, I will examine each of Mr. Doak’s grounds of appeal. [ 17 ] The first ground of appeal asserts that the appeal judge’s decision gives “undue weight to the jurisprudence of deference”.

This ground of appeal raises a question of law for which there is a short response. Deference is a requirement of the law and the deferential standard of “reasonableness” has been circumscribed in the jurisprudence of the Supreme Court: see Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 . Therefore, if the tribunal decision is one which is owed deference, the onus is on the party challenging that decision to establish its unreasonableness. [ 18 ] The next three grounds of appeal can be consolidated.

The appellant alleges the Committee’s decision gave no weight to evidence about the circumstances of the patient and undue weight to the breach of the legislation, with no weight given to the evidence that its observance would not have helped the patient. A third contention is that the Committee misinterpreted Mr. Doak’s admission that he did certain acts as an admission of professional misconduct. Individually, these grounds of appeal support the understanding that Mr. Doak is raising questions of mixed law and fact. However, when pressed on appeal, counsel for Mr.

Doak conceded that the essence of his argument is that while he admitted that he committed the acts complained of, he was not guilty of professional misconduct because he acted in good faith and his actions benefited the patient. This raises two question of law:

(1) Is the plea of good faith a valid defence to an allegation of professional misconduct? and

(2) Is the fact that the patient benefited from the impugned conduct also a defence? Dealing with the second question first, there is no third party evidence to support the claim that the acts of Mr. Doak benefited the patient. As to the first question, it should be self-evident that a plea of good faith can neither displace an obligation to adhere to provincial standards governing the treatment of patients, nor a finding of professional misconduct. At best, the plea of good faith goes to the issue of the appropriate sanction. [ 19 ] As argued, the final two grounds of appeal raise questions of law. First, Mr.

Doak argues that the Committee gave no weight to the legal argument that the nursing home’s adherence to government policy, as prescribed by legislation, did not respect the Charter values found in ss. 7 and 15 , including Mr. Doak’s actions on behalf of a patient. Second, Mr. Doak alleges that the Committee’s decision failed to give effect to his right of freedom of conscience guaranteed under s. 2(

a) of the Charter . Both grounds raise a question of law and both questions were addressed by the appeal judge. The Charter values found in ss. 7 and 15 are those of the patient and not Mr. Doak. As well, s. 2 of the Charter does not override prescribed standards for professional conduct. [ 20 ] In

summary, there is no valid basis upon which to interfere with the appeal judge’s decision. Accordingly, I would dismiss the appeal with costs of $2,500.

________________________________ KATHLEEN A. QUIGG, J.A. WE CONCUR: ________________________________ M.E.L. LARLEE, J.A. ________________________________ J.T. ROBERTSON, J.A.