Carolyn Strom Appellant (Appellant) v. Saskatchewan, 2020 SKCA 112

Court of Appeal for Saskatchewan Docket: CACV3249 Citation: Strom v Saskatchewan Registered Nurses’ Association, 2020SKCA 112Date: 2020-10-06Between:Carolyn StromAppellant (Appellant)And Saskatchewan Registered Nurses’ Association Respondent (Respondent)And Saskatchewan Union of Nurses and British Columbia Civil Liberties Association Intervenors (Intervenors)AndCanadian Constitution FoundationIntervenor (Non-party)Before: Ottenbreit, Caldwell and Barrington-Foote JJ.A.Disposition: Appeal allowedWritten reasons by: The Honourable Mr. Justice Barrington-FooteIn concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Mr. Justice CaldwellOn appeal from: 2018 SKQB 110, SaskatoonAppeal heard: September 17, 2019Counsel: Marcus Davies for the Appellant Roger Lepage and Jonathan Martin for the Respondent Ronni Nordal, Q.C., for the Intervenor, Saskatchewan Union of Nurses Gregory Fingas for the Intervenor, British Columbia Civil Liberties Association Alexander Shalashniy for the Intervenor, Canadian Constitution Foundation Barrington-Foote J.A. I. Introduction [1] The Saskatchewan Registered Nurses’ Association [SRNA] licenses and regulates registered nurses in Saskatchewan.

CarolynStrom is a registered nurse who, at the time of the events that gave rise to this appeal, lived and practiced nursing in Prince Albert,Saskatchewan. On January 27, 2015, Ms. Strom’s grandfather died at St. Joseph’s Health Centre [St. Joseph’s] in Macklin, Saskatchewan,where he had been in long-term care for 13 years. On February 25, 2015, Ms. Strom, who was on maternity leave, posted comments onher personal Facebook page [posts] about the care her grandfather had received in his last days at St. Joseph’s. Her initial post alsoincluded a link to a newspaper

article about end-of-life care. She then used Twitter to tweet the posts to Saskatchewan’s Minister of Healthand the Saskatchewan Opposition Leader. [2] Some St. Joseph’s employees took exception to the posts and reported them to the SRNA, which charged Ms. Strom withprofessional misconduct [Charge]. On October 18, 2016, the Discipline Committee of the SRNA found Ms. Strom guilty of professionalmisconduct [DC Decision]. She was reprimanded, fined $1,000, required to submit two self-reflective essays, and ordered to pay $25,000in costs. Ms.

Strom appealed the DC Decision to the Court of Queen’s Bench pursuant to s. 35 of The Registered Nurses Act, 1988, SS1988-89, c R-12.2 [Act]. On April 11, 2018, a judge of that Court [Chambers judge] dismissed her appeal [Strom QB]. [3] Ms. Strom has now appealed the decision in Strom QB to this Court pursuant to s. 36.1 of the Act. Her appeal raises questionsat the intersection between professional regulation, Ms. Strom’s private life, and the s. 2(

b) Charter guarantee of freedom of expression inthe age of social media. Those questions are not unique to Ms. Strom or to registered nurses. Further, Ms. Strom asks for relief at a timewhen those who believe freedom of expression is threatened by “cancel culture”, and those who believe too little heed has been paid to theability of speech to inflict wounds and cause division, can often be heard debating in the virtual public square. [4] Ms.

Strom asserts that the DC Decision breached her freedom of expression, which serves three key purposes: democraticdiscourse, truth finding and self-fulfillment: Irwin Toy Ltd. v Quebec (Attorney General), (SCC), [1989] 1 SCR 927 at968–971 [Irwin Toy]; Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62 at paras 68 and 74, [2005] 3 SCR 141.

She also relies onthe body of law that ensures that those who are granted authority by the Legislature exercise that authority in accordance with the law.The Saskatchewan Union of Nurses [SUN], which represents registered nurses and many other nurses in Saskatchewan, the CanadianConstitution Foundation, and the British Columbia Civil Liberties Association, support her position and have joined the fray asintervenors. [5] I have concluded that the Chambers judge erred in upholding the decision of the Discipline Committee, and that theDiscipline Committee erred in finding Ms. Strom guilty of professional misconduct.

I would accordingly allow Ms. Strom’s appeal. Myreasons follow.

II. background [ 6 ] On the day she posted and tweeted the posts, Ms. Strom had been practicing as a registered nurse in Saskatchewan for 13 years. She had worked in various settings, but not in long-term care, and had limited experience in palliative care. She had been a public health nurse since 2005, with a particular interest in disease prevention. She had also been an active user of social media for about ten years. [ 7 ] Ms. Strom’s grandmother was a resident of St. Joseph’s when her husband died, and she continued to reside there after his death. Ms. Strom lived 3 ½ hours from Macklin and had a busy life.

She testified that she visited her grandparents at St Joseph’s about five times a year, and that they had occasionally visited her until her grandfather’s deteriorating health and mobility intervened. She also spoke to her grandmother on the telephone from time to time. [ 8 ] Ms. Strom testified that the views about St. Joseph’s reflected in her online comments were based on what she saw and what she heard from her grandparents and from family members. She raised only one issue – that a hand sanitizer had expired – directly with St. Joseph’s staff.

She said she posted her comments on Facebook because she was upset at what had happened to her grandfather, and in pursuit of proper care for everyone, including her grandmother. [ 9 ] The content of the posts is central to this appeal. The newspaper

article to which the link was provided in the initial post was authored by a psychiatry professor and titled “We have right to die but not to quality palliative care”. The article, which had been published in Vancouver’s The Province , criticized the training provided to and knowledge of Canadian physicians. It asserted that “ignorance and lack of skill in attending to the needs of dying patients are still tragically common in Canada” and that “at their time of licensure, physicians have been taught less about pain management than those graduating from veterinary medicine”.

It advocated large investments by governments in hospice and palliative care. [ 10 ] Ms. Strom’s initial post, which generated an online conversation with two of her Facebook friends, was as follows: My Grandfather spent a week in “Palliative Care” before he died and after hearing about his and my family’s experience there (@ St. Joseph’s Health Facility in Macklin, SK) it is evident that Not Everyone is “up to speed” on how to approach end of life care ... Or how to help maintain an Ageing Senior’s Dignity (among other things!) So ...

I challenge the people involved in decision making with that facility, to please get All Your Staff a refresher on this 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! My Grandmother has chosen to stay in your facility, so here is your chance to treat her “like you would want your own family member to be treated”. That’s All I Ask!

And 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! That’s the only way to get some things to change . (I’m glad the column reference below surfaced, because it has given me a way to segway into this topic.) The fact that I have to ask people, who work in health care, to take a step back and be more compassionate, saddens me more than you know! (underlining added) [ 11 ] This post elicited a response from “Nicole”, who said she had worked in extended care.

Nicole said that she had complained almost daily about co-workers and that some nurses who had dealt with Nicole’s mother in palliative care were “horrid”. She spoke of her love for the job and the importance of helping those who could no longer take care of themselves. Ms. Strom responded as follows: …Thank you for being such an amazing health care worker and advocate. I appreciate your comments So Very Much. The difference with Long Term Care, is that this is people’s Home now. And those “Residents”, well, they should be treated as such.

So again Nicole, your compassion for those families will always be remembered, I am certain! At my Grandpa’s funeral, the priest actually talked about his experience visiting in long term care and how he connected with a particular gentleman who got no visitors and didn’t even speak the same language. And Yes he spoke of that “sparkle” in the eyes, you also refer to. I felt so sad for this man he spoke of, but the gratitude I felt for that priest can’t even be measured.

This is someone’s Husband/Wife, Dad/Mom, Grandparent, Brother/Sister we are talking about … AND Being treated well/fairly is A HUMAN RIGHT FOR GOODNESS SAKES! They are NOT A ROOM NUMBER OR A CHART NUMBER! I am so grateful for the people who EXCEL at this type of work and they should be recognized and commended every single day! I am so sorry that you had some similar experiences with your own Mother, Nicole. It is just unthinkable how horrible some people can be. We are advocating for our loved ones here and that’s where our passion comes from. There IS NO FAULT IN THAT and it will Not Stop!

[ 12 ] “Alex”, another of Ms. Strom’s Facebook friends, then responded, expressing agreement with the point made in the newspaper

article that, if assisted suicide is an option, “adequate – if not exceptional – end-of-life care … should also be a viable option”. Alex also expressed her hope that Ms. Strom’s family had brought their concerns about staff at St. Joseph’s to the attention of the St. Joseph’s Board or the health region, noting that those who had fought to keep St. Joseph’s in Macklin would expect employees “to share the same concern for the care and well-being of its residents”. She closed with this comment: “Isn’t it unfortunate that we have to have this discussion at all?” [ 13 ] Ms.

Strom responded with a further post: It is VERY UNFORTUNATE Alex. And this has been an ongoing struggle with the often subpar care given to my Hollman Grandparents (especially Grandpa) for many years now … Hence my effort to bring more public attention to it (As not much else seems to be working). As an RN and avid health care advocate myself, I just HAVE to speak up! Whatever reasons/excuses people give for not giving quality care, I Do Not Care, It. Just. Needs. To. Be. Fixed.

And NOW! (underlining added) [ 14 ] This led to a further response from Alex, who commented that “there should never be a reason or excuse for not providing quality care” and that “we all deserve to be treated with respect”. Ms. Strom’s response was as follows: Absolutely, and that’s why I am also now asking people to just rethink … “Why do you do your job?” “Do you actually care about the people you WORK FOR/Care For?” “Or is it JUST A JOB, WITH A PAYCHEQUE?” … If so, maybe it’s time to take a step back.

Either way I just want my Grandmother (and everyone else in that facility) to be treated well, ALWAYS! (underlining added) [ 15 ] That is the entire content of the posts. The underlined portions were the statements alleged to constitute professional misconduct by the Charge. [ 16 ] Ms. Strom’s Facebook posts were available only to her Facebook friends. However, as noted above, she tweeted the posts to the Minister of Health and the Opposition Leader, using the following title and hashtags: “Our family’s experience with #LongTermCare in #Sask #Health #TheyDeserveBetter”.

She testified that she had done so because she thought they should be aware of concerns with long- term care and might be interested in the story. At that point, the posts became public. Ms. Strom claimed that she had made the posts public inadvertently. [ 17 ] The contents of Ms. Strom’s Facebook page came to the attention of staff at St. Joseph’s by early March 2015. A copy was circulated among St. Joseph’s staff and was brought to the attention of the St. Joseph’s Board and the health region. A registered nurse practicing at St.

Joseph’s reported the matter to the SRNA, which interviewed other employees who said they had taken offence at the posts. In the result, the SRNA issued the Charge, which alleged that Ms. Strom had committed professional misconduct contrary to: (a) ss. 26(1) and (2) of the Act ; (

b) the Code of Ethics for Registered Nurses, 2008 [ Code ] and, more particularly,

Part I: Nursing Values and Ethical Responsibilities A1,3; B3; D1,10; E1,3,4,5,7; F2; and G1; and (

c) the Standards & Foundation Competencies for the Practice of Registered Nurses, 2013 [ Standards ] and, more particularly, Standard I – Competencies 1, 5, 8 and 15; Standard III – Competencies 62 and 71; and, Standard IV – Competencies 76(a)(

f) and 78. [ 18 ] The Charge specified five particulars, the following four of which were pursued by the SRNA: Failure to follow proper channels 2. You publicly posted on Facebook information about the healthcare provided to your grandparents in order to criticize the health care given to them at a specific named healthcare facility. You publicly criticized the care provided by the staff.

T his violates your obligation as a professional to take concerns you may have to the appropriate channels starting with the individual care providers and if matters cannot be resolved at that level then to report it to their manager. If that does not result in a positive change, raise it with the director of the facility and ultimately the health board of the facility and the health region and the minister. It is only if all of those efforts have not led to a positive change would you be able, with the consent of your grandparents or their power of attorney to take the matter to the public.

You have failed to take your concerns to the appropriate people using the appropriate channels. Impact on reputation of facility and staff 3. By communicating your concerns to the general public rather than to the appropriate people using the appropriate channels you have publicly called into question the capacity of that health facility and its employees and directors to deliver appropriate healthcare. This has an impact on the reputation of the facility and its employees and directors.

You have alleged that the facility and its employees are not “up to speed” on how to approach end of life care or how to maintain a senior’s dignity. You have alleged that they lack compassion and that your grandparents were not treated well or fairly. You have stated that “this has been an ongoing struggle with the often subpar care given to my Hollman grandparents (especially grandpa) for many years now ...” You have charged that some employees are not giving quality care and implied that they are simply there for the paycheck. All of these are serious allegations that tarnish reputations.

Failure to first obtain all the facts

4. As a registered nurse you made accusations in a public forum by publishing them on your personal Facebook without having firstobtained all of the facts directly from the facility and the care providers. You have made public your conclusions without first havingobtained all of the relevant facts. Using status of registered nurse for personal purposes 5. The publication in your personal Facebook on February 25, 2015 discloses that you are a registered nurse. By so doing you engagethe professional image of registered nurses in general as well as your personal professional obligations.

A registered nurse is required toconduct herself in a professional manner towards not only patients but also colleagues. You made negative comments about otherregistered nurses and other healthcare providers and management. By identifying yourself as a registered nurse you have engaged yourobligation to abide by the standards and code of ethics of your profession. You have failed to protect your integrity and your profession’sintegrity when you used inappropriate communication channels to discuss, report and resolve workplace issues. Your conduct has fallenbelow the standards established by the SRNA. [19]

Section 26 of the Act, which is the basis for all three charges, is as follows: 26(1) For the purpose of this Act, professional misconduct is a question of fact but any matter, conduct or thing, whether or not disgracefulor dishonourable, that is contrary to the best interests of the public or nurses or tends to harm the standing of the profession of nursing isprofessional misconduct within the meaning of this Act.

(2) Without restricting the generality of subsection (1), the discipline committee may find a nurse guilty of professional misconduct if thenurse has: (

a) abused a client verbally or physically; (

b) misappropriated a client’s personal property; (

c) inappropriately used the nurse’s professional status for personal gain; (

d) influenced a client to change the client’s last will and testament; (

e) wrongfully abandoned a client; (

f) misappropriated drugs; (

g) misappropriated property belonging to a nurse’s employer; (

h) failed to exercise discretion with respect to the disclosure of confidential information about a client; (

i) falsified a record with respect to the observation, rehabilitation or treatment of a client; (

j) failed to inform an employer of the nurse of the nurse’s inability to accept specific responsibility in areas where special training isrequired or where the nurse does not feel competent to function without supervision; (

k) failed to report the incompetence of colleagues whose actions endanger the safety of a client; (

l) failed to comply with the code of ethics of the association; (

m) failed without reasonable cause to respond to inquiries from the association regarding alleged professional misconduct or professionalincompetence; (

n) an addiction to the excessive or habitual use of intoxicating liquor, opiates, narcotics or other habit forming substances; (

o) conspired to do any professional misconduct or counselled a person to do any professional misconduct; (

p) obtained registration by misrepresentation or fraud; (

q) contravened any provision of this Act or the bylaws. III. Decision of the discipline committee [20] In the DC Decision, the Discipline Committee, having described the Charge and cited the relevant provisions of the Code, dealtwith two issues. First, it asked whether Ms. Strom was obliged to comply with the Code and the Standards in her off hours or “outside of anursing practice environment” (at para 28). It noted that while many provisions of the Code and the Standards refer to nursing practice ornursing care, many do not.

It found that the Code “should be interpreted broadly in order to meet the intent of the Act and the purpose ofthe SRNA, which is to protect the public and promote the public standing of the profession of registered nursing” (at para 29). [21] Having adopted that interpretive principle, the Discipline Committee addressed what it described as “the principles ofresponsibility for off duty conduct”, commenting that regulated professionals are investigated and disciplined for such conduct (at para30).

It cited Taylor J.’s statement in Ratsoy v Architectural Institute of British Columbia (1980), (BC SC), 113 DLR (3d)439 (BCSC) at para 10 [Ratsoy], that “[i]t is well settled … that a professional man may expose himself to disciplinary proceedings forconduct entirely outside the actual practice of his profession, if the conduct reflects on him in a professional way”. It stated that Erdmannv Complaints Inquiry Committee, 2013 ABCA 147, 544 AR 321 [Erdmann], was to the same effect, and adopted the following statementby the Court in that case:

[20] Professionals in every walk of life have private lives and should enjoy, as much as possible, the rights and freedoms of citizensgenerally. A chartered accountant’s status in the community at large means that his/her conduct will from time to time be the subject ofscrutiny 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.

Itfollows that a chartered accountant must ensure that her conduct is above reproach in the view of reasonable, fair-minded and informedpersons. (Emphasis added) [22] The Discipline Committee then referred to the following framework for the analysis of off-duty conduct (DC Decision at para35), which it erroneously attributed to the Supreme Court of Canada in Trinity Western University v British Columbia College ofTeachers, 2001 SCC 31 at para 65, [2001] 1 SCR 772 [Trinity]: In

summary, the framework for the analysis of off-duty conduct that arises from the case law is: (

a) some, but not all, off-duty conduct can give rise to discipline for professional misconduct or conduct unbecoming; (

b) in considering whether the particular conduct at issue is such as to give rise to discipline, the Panel should consider whether theconduct evidences direct impairment of the ability to function in the professional capacity or impairment in the wider sense as described inthe case law; and (

c) direct evidence of impairment is not always required. In an appropriate case, impairment can be inferred. In the absence of directevidence of impairment, the Panel will need to consider whether it is appropriate to draw on inference of impairment in the circumstances.

This statement is, in fact, from Fountain v British Columbia College of Teachers, 2007 BCSC 830 at para 65, [2007] 11 WWR 281[Fountain 2007]. [23] The Discipline Committee also found that the following factors specified by Ross J. in Fountain 2007 – which were cited withapproval in Fountain v British Columbia College of Teachers, 2013 BCSC 773 at para 20, a second appeal arising from the same facts –should be considered in determining whether off-duty conduct demonstrated “impairment” in the appropriate sense: [59] In

summary, the case law establishes that in appropriate circumstances it is permissible to draw an inference of direct impairmentor of impairment in the wider sense in the absence of direct evidence. Relevant factors to be considered include: (

a) the nature of the conduct at issue; [derived from Attis v. New Brunswick District Board of Education No. 15, (SCC),[1996] 1 S.C.R. 825 [Ross], Fraser v. Public Service Staff Relations Board, (SCC), [1985] 2 S.C.R. 455 [Fraser]]; (

b) the nature of the position; [Ross and Fraser] (

c) whether there is evidence of a pattern of conduct; [Kempling v. British Columbia College of Teachers, [2004] B.C.J. No. 173, 2004BCSC 133 [Kempling 1] and [Kempling 2] (

d) evidence of controversy surrounding the conduct; [Ross and Kempling 1] (

e) evidence that the private conduct has been made public; [Ross and Kempling 1] and (

f) evidence that the private conduct has been linked by the member to the professional status of the member. [Kempling 1 and 2] (Case references added by the Discipline Committee) [24] The Discipline Committee applied these principles to the off-duty conduct which was the subject of the Charge. It found thatMs. Strom had identified herself as a registered nurse to give credibility and legitimacy to her comments, thereby establishing a linkbetween her views as to the care given to her grandfather and her position as a registered nurse.

It did not believe her claim she did notknow that tweeting the posts would make her Facebook page fully public, finding that she was a sophisticated user of social media. Itnoted she did not use appropriate organizational channels. It rejected her evidence that she did not know to whom she should report herconcerns. It found that she had “engaged in a generalized public venting about the facility and its staff and went straight to social media todo that”, rather than raising her concerns with her grandparents’ healthcare team (at para 42). [25] The Discipline Committee dealt next with Ms.

Strom’s submission that a determination that her posts constituted professionalmisconduct would infringe her Charter right to freedom of expression. It agreed there would be infringement. However, it found that theinfringement would be justified under s. 1 of the Charter. It referred to a single case in its Charter analysis, that being Whatcott vSaskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6, 289 DLR (4th) 506 [Whatcott]. In Whatcott, this Court set aside afinding of professional misconduct against Mr.

Whatcott, a licensed practical nurse, who had participated in a vocal public demonstrationagainst abortion. The Discipline Committee referred to the following statement by Jackson J.A.: [66] Is there a rational connection between the objective and the decision? Will the public have greater respect for licensed practicalnurses because Mr. Whatcott can no longer work as a practical nurse? There is no evidence of this. There is no suggestion that Mr.Whatcott held himself out as a licensed practical nurse while picketing. Few persons would have known that he held a licence as apractical nurse.

It was only after PPR filed a complaint with the SALPN that Mr. Whatcott issued a press release that referred to him as alicensed practical nurse. [26] The Discipline Committee distinguished Whatcott on the basis that, unlike Mr. Whatcott, Ms. Strom had identified herself as aregistered nurse. It then found as follows:

50. The purpose and objective of the SRNA is to protect the public by investigating complaints of professional misconduct and professional incompetence. Section 26(1) of the Act contains a broad definition of professional misconduct as being conduct that is contrary to the best interests of the public or nurses or tends to harm the standing of the nursing profession. The Discipline Committee finds that Ms. Strom’s comments harmed the reputation of the nursing staff at St. Joseph’s and undermined the public confidence in the staff at that facility. Ms.

Strom argues that nowhere in her post does she refer to nursing staff directly. While strictly speaking that may be true, the Discipline Committee finds that her intentions were to direct criticisms at those providing direct care to her grandparents meaning the nursing staff. 51. The Discipline Committee finds that the infringement of Ms. Strom’s right to free expression under

section 2(

b) of the Charter by finding her guilty of professional misconduct is justified under

section 1 of the Charter . [ 27 ] In the result, the Discipline Committee found Ms. Strom guilty of professional misconduct pursuant to s. 26(1) of the Act and of failing to comply with the following provisions of the Code as required by s. 26(2) (l): A1. Nurses have a responsibility to conduct themselves according to the ethical responsibilities outlined in this document and in practice standards in what they do and how they interact with persons receiving care as well as with families, communities, groups, populations and other members of the health-care team. … A3.

Nurses build trustworthy relationships as the foundation of meaningful communication, recognizing that building these relationships involves a conscious effort. Such relationships are critical to understanding people’s needs and concerns. … B3. Nurses collaborate with other health-care providers and other interested parties to maximize health benefits to persons receiving care and those with health-care needs, recognizing and respecting the knowledge, skills and perspectives of all. … D1. Nurses, in their professional capacity, relate to all persons with respect. … D10.

Nurses treat each other, colleagues, students and other health-care workers in a respectful manner, recognizing the power differentials among those in formal leadership positions, staff and students. They work with others to resolve differences in a constructive way. … F2. Nurses refrain from judging, labelling, demeaning, stigmatizing and humiliating behaviours toward persons receiving care, other health-care professionals and each other. … G1.

Nurses, as members of a self-regulating profession, practise according to the values and responsibilities in the Code of Ethics for Registered Nurses and in keeping with the professional standards, laws and regulations supporting ethical practice. [ 28 ] The Discipline Committee also found that the provisions of the Standards relating to professional responsibility and accountability, ethical practice and service to the public applied to Ms. Strom in this case. However, it did not find that she had breached those provisions. The DC Decision concluded as follows: 58. The Discipline Committee accepts that Ms.

Strom’s Facebook post and the subsequent online communication she engaged in was motivated by perhaps grief and anger. It is accepted that Ms. Strom was not driven by malice. Carolyn Strom is a professional bound to act with integrity and in accordance with the Code of Ethics . The Discipline Committee does not seek to “muzzle” registered nurses from using social media. However, registered nurses must conduct themselves professionally and with care when communicating on social media. [ 29 ] In the result, the Discipline Committee fined Ms.

Strom $1,000 and ordered her to pay costs of the investigation and hearing in the amount of $25,000. It also ordered her to review the Standards , review and complete training on the Code , and write two-self reflective essays. IV. The Queen’s bench decision [ 30 ] Ms. Strom appealed both the Discipline Committee’s determination that she had been guilty of professional misconduct within the meaning of the Act [professional misconduct ground] and its conclusion that the resulting infringement of her Charter right to freedom of expression was justified under s. 1 of the Charter [ Charter ground].

She also appealed the costs award. [ 31 ] The standard of review, which is an important issue on this appeal, was central to the decision in Strom QB . The Chambers judge carefully considered that issue, anchoring his analysis in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ] , and Doré v Barreau du Québec , 2012 SCC 12 , [2012] 1 SCR 395 [ Doré ] . He was fully aware that he must abide by the rules relating to the standard of review – arcane as they might appear to a non-lawyer concerned with the substance of Ms. Strom’s appeal – which limit the role of appellate courts.

It is for that reason he said this:

[4] Ms. Strom’s right to freedom of expression is indeed one of the subjects of this appeal. Freedom of expression is not the focus ofthe appeal, however. The focus of the appeal is whether the discipline committee made the kind of mistake that requires the court tointerfere with the committee’s decisions. [32] Dealing first with the standard of review relating to the professional misconduct ground, Ms. Strom had argued that theDiscipline Committee did not have the authority pursuant to the Act to find her guilty of professional misconduct for this off-duty conductor to award costs of the proceeding.

The Chambers judge summarized his conclusions as to the standard of review relating to these issuesas follows: [35] In making its decisions…, the discipline committee was interpreting its empowering legislation, the Act, to the end ofadministering an area in which it is knowledgeable and has expertise -- namely, the rules governing the conduct of registered nurses. Allof the members of the discipline committee, except the public representative, were registered nurses.

In determining whether certain of therules apply to members of the association, those members were setting the rules for all registered nurses, including themselves. Likewise,when the committee members considered whether Ms. Strom’s conduct amounted to professional misconduct, they were using a measurethat applies to all registered nurses, including themselves. The same applies to the committee’s determination of costs. [36] These are issues that are best determined by the people who are most familiar with all aspects of being a registered nurse.

AsJustices Bastarache and LeBel said in Dunsmuir at paras 53 and 54: [53] Where the question is one of fact, discretion or policy, deference will usually apply automatically … [54] … Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, withwhich it will have particular familiarity.… [33] In the result, the Chambers judge found that the reasonableness standard applied to all aspects of the professional misconductground.

As to the nature of the reasonableness analysis, the Chambers judge cited the following statement by Bastarache and LeBel JJ. inDunsmuir: [47] … A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to theprocess of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence ofjustification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision fallswithin a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [34] However, in a theme he referred to several times, the Chambers judge also described his task as relating only to the “ultimatedecision”, commenting as follows: [54] When I review each decision of the discipline committee in this case, I am to apply the reasonableness standard to the committee’sfinal decision -- not to the elements of that decision.

That is, I am not to examine the reasonableness of the various approaches that thecommittee took in getting to its ultimate decision. Rather, I am to consider the committee’s final decision on the issue, to determinewhether that decision meets the requirements of a reasonable decision: Pillay v College of Physicians and Surgeons of Saskatchewan, 2018SKQB 54 at paras 5–11. [35] As to the standard of review relating to the Charter ground, the Chambers judge relied on Doré.

In his view, Doré confirmedthe conclusion in Dunsmuir that while the correctness standard of review applies if the appeal relates to a decision as to theconstitutionality of a law, it does not apply where the appeal is, as here, of a decision of an administrative body that affects Charter rights.He cited Abella J.’s explanation of the standard of review question in the latter context in Doré at paragraph 3, where she said this: This raises squarely the issue of how to protect Charter guarantees and the values they reflect in the context of adjudicated administrativedecisions.

Normally, if a discretionary administrative decision is made by an adjudicator within his or her mandate, that decision isjudicially reviewed for its reasonableness. The question is whether the presence of a Charter issue calls for the replacement of thisadministrative law framework with the Oakes test [R v Oakes, (SCC), [1986] 1 SCR 103], the test traditionally used todetermine whether the state has justified a law’s violation of the Charter as a “reasonable limit” under s. 1. [36] In Doré, Abella J. concluded the administrative law framework did not have to be replaced.

Rather, she held that theadministrative law reasonableness analysis and the Oakes test could be reconciled “in a way that protects the integrity of each”, therebyensuring “rigorous Charter protection while at the same time recognizing that the assessment must necessarily be adjusted to fit thecontours of what is being assessed and by whom” (Doré at para 4).

In her view, that reconciliation could be achieved “by recognizing thatwhile a formulaic application of the Oakes test may not be workable in the context of an adjudicated decision, distilling its essence worksthe same justificatory muscles: balance and proportionality” (Doré at para 5). The Chambers judge cited (at para 43) the followingparagraphs from Doré where Abella J. more fully explained this standard of review: [6] In assessing whether a law violates the Charter, we are balancing the government’s pressing and substantial objectives against theextent to which they interfere with the Charter right at issue.

If the law interferes with the right no more than is reasonably necessary toachieve the objectives, it will be found to be proportionate, and, therefore, a reasonable limit under s. 1. In assessing whether anadjudicated decision violates the Charter, however, we are engaged in balancing somewhat different but related considerations, namely,has the decision-maker disproportionately, and therefore unreasonably, limited a Charter right.

In both cases, we are looking for whetherthere is an appropriate balance between rights and objectives, and the purpose of both exercises is to ensure that the rights at issue are notunreasonably limited. [7] As this Court has noted, most recently in Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, thenature of the reasonableness analysis is always contingent on its context.

In the Charter context, the reasonableness analysis is one thatcentres on proportionality, that is, on ensuring that the decision interferes with the relevant Charter guarantee no more than is necessarygiven the statutory objectives. If the decision is disproportionately impairing of the guarantee, it is unreasonable. If, on the other hand, itreflects a proper balance of the mandate with Charter protection, it is a reasonable one.

[ 37 ] The Chambers judge also quoted the following portions of Abella J.’s reasons in Doré : [36] … When Charter values are applied to an individual administrative decision, they are being applied in relation to a particular set of facts.

Dunsmuir tells us this should attract deference. … … [47] An administrative decision-maker exercising a discretionary power under his or her home statute, has, by virtue of expertise and specialization, particular familiarity with the competing considerations at play in weighing Charter values. … [ 38 ] In the opinion of the Chambers judge, the decisions of the Discipline Committee at issue were discretionary decisions and, as such, were subject to the presumption that they were entitled to deference.

In the result, he held that the standard of review relating to the Charter ground – which he characterized as “the interaction of a professional association’s rules of conduct with the Charter right to freedom of expression of a member of the association” ( Strom QB at para 50) – was “reasonableness as described in Doré ” ( Strom QB at para 51 ). [ 39 ] Turning next to the application of the reasonableness standard to the professional misconduct issue, the Chambers judge dealt first with the issue of whether Ms. Strom’s off-duty conduct was subject to discipline. Ms.

Strom asserted that she made these comments as a private individual rather than as a registered nurse. The Chambers judge noted her evidence that she had communicated her comments online as an advocate nurse who was providing feedback in order to improve things as she thought registered nurses were obliged to do. He also referred to the Discipline Committee’s reasoning that Ms.

Strom had, by identifying herself as a registered nurse, created the link between her profession and her concerns as a granddaughter. [ 40 ] The Chambers judge held that it was “logical and reasonable, and … within the range of available decisions” (at para 65) for the Discipline Committee to adopt paragraph 20 of Erdmann , which is reproduced above .

He rejected submissions that the Discipline Committee should have considered other factors, commenting that he was “not to determine the reasonableness of individual elements of the committee’s decision … [but] … to determine the reasonableness of the decision itself -- the decision that Ms. Strom’s off-duty conduct is subject to discipline” (at para 66). He characterized the decision as to whether off-duty conduct is subject to discipline as one which the Legislature had decided should be made by people with knowledge and expertise in the area.

Finally, he held that the DC Decision was reasonable, as it was justified, transparent and intelligible, and fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [ 41 ] The Chambers judge then addressed the Discipline Committee’s decision that Ms. Strom had engaged in professional misconduct. He noted there was direct evidence that Ms. Strom’s comments had caused registered nurses to be distraught and demoralized and that community members had approached nurses to ask about the posts and what was going on at St. Joseph’s.

On that basis, he found it was open to the Discipline Committee to draw the inference that the posts had “harmed the reputation of the nurses at the facility, thereby undermined public confidence in those nurses, and thereby harmed the standing of the nursing profession” ( Strom QB at para 76).

As he put it, “[t]his is especially so in light of the breadth of s. 26(1) of the Act , particularly the reference to conduct that ‘ tends to harm the standing of the profession of nursing’” ( Strom QB at para 76, emphasis in original). [ 42 ] The Chambers judge also found that publications for nurses that had been distributed by the intervenor SUN were properly taken into account by the Discipline Committee.

He referred to the following portions of those publications at paragraph 77: … It is vital registered nurses always remember they remain bound by the same ethical and professional standards that have always applied — even when posting to their personal social media accounts. … Online content and behavior has the potential to enhance or undermine not only an individual’s career, but also the registered nursing profession. … Never make disparaging remarks about employers, patients or co-workers, even if they are not identified. … Remember your options for reporting workplace, patient safety or nursing practice issues — social media is not a place to vent about your work life. … … If you are identifying yourself as a RN/RN(NP), maintain the integrity of the profession of registered nursing by ensuring photos, videos and comments are respectful. [ 43 ] The Chambers judge found that there was evidence on which the Discipline Committee could conclude that Ms.

Strom had posted her comments “without knowing the facts, and without endeavouring to know the facts” ( Strom QB at para 82). As to SUN’s argument that damage to the reputation of a handful of nurses is not damage to nurses as a whole or to the nursing profession, the Chambers judge concluded that while that would be a reasonable

interpretation of s. 26(1), so too was the

interpretation adopted by the Discipline Committee; that is, that damage to the reputation of some, but not all, of the nurses in the province was within the scope of s. 26(1). Further, he found that the Discipline Committee had inferred that this sort of damage to the reputation of some nurses harmed the reputation of the profession. [ 44 ] The Chambers judge also rejected Ms. Strom’s argument the Discipline Committee should have found that off-duty conduct cannot constitute professional misconduct within the meaning of s. 26(1) unless there is an element of reprehensible conduct.

He commented that this was one of several paths available to the Discipline Committee and reiterated that his focus was “not on the particular path that the committee took, or could have taken … [but] the reasonableness of the decision reached at the end of that path” ( Strom QB at

para 88). Further, the Chambers judge rejected Ms. Strom’s submission that the Discipline Committee should have distinguished between the conduct of a person who is known to be a registered nursing professional and the conduct of a person who is commenting as a registered nursing professional. He noted that the Discipline Committee had found as a fact that Ms. Strom had been commenting as a registered nurse. In addition, he held that “this element of the committee’s decision is not subject to review on its own.

It was part of the path taken to the final decision” ( Strom QB at para 89). [ 45 ] In the result, the Chambers judge summarized his conclusions relating to the professional misconduct aspect of the appeal as follows: [92] It was within the range of possible, acceptable outcomes for the committee to conclude that Ms. Strom chose to criticize other registered nurses publicly, rather than through the avenues described in the Code . It was within that range for the committee to conclude that Ms.

Strom’s comments could be and were understood by the public to mean that registered nurses working at the facility were not competent and were unprofessional. It was within that range for the committee to conclude that the public consequently would hold a lower opinion of those registered nurses and of registered nurses generally, so that the comments were contrary to the best interests of the public or nurses, or tended to harm the standing of the profession. [93] It was within the leeway allowed the discipline committee to find that these conclusions established that Ms.

Strom was guilty of charges 2, 3 and 4, being “failure to follow proper channels”; “impact on reputation of facility and staff”; and “failure to first obtain all the facts”. [94] It also was within the leeway allowed the discipline committee to find that these conclusions established that Ms. Strom had committed the breaches identified in the particulars, namely: (

a) breach of s. 26(1) of the Act -- engaging in “conduct that is contrary to the best interests of the public or nurses or tends to harm the standing of the profession of nursing”; and (

b) breach of s. 26(2) (

l) of the Act -- breaching the Code provisions identified by the committee. [ 46 ] The Chambers judge turned next to the Charter ground. He noted that there was no dispute that Ms. Strom’s right to freedom of expression had been infringed. Accordingly, the issue was whether the infringement was justified under s. 1 of the Charter .

He stated that he was guided by the following remarks by Abella J. in Dor é , which are to the same effect as her introductory comments cited above: [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 added in Strom QB ) [ 47 ] The Chambers judge then restated the test and standard of review as follows: [105] The discipline committee’s decision -- that the infringement was justified -- can only be reasonable if the committee proportionately balanced the right to freedom of expression with the objectives of the Act , in the context of Ms.

Strom’s circumstances. As with other reviews on the reasonableness standard, within this requirement the committee is allowed deference. The committee’s balancing of the rights and objectives is not required to be correct. It is required to be reasonable. [ 48 ] The Chambers judge found that the SRNA was obliged to balance the fundamental importance of open and forceful criticism of public institutions with the need for civility in the regulated profession, in the same manner as those charged with regulating lawyers.

He concluded that the Discipline Committee had done exactly that: [111] In the end, when the discipline committee balanced the objective of governance of the profession with the right to freedom of expression, the committee concluded that the infringement of the right to freedom of expression was justified, in part because of the nature and extent of the harm to the profession and in part because the infringement still left Ms. Strom with another avenue of expressing her concerns. In effect, the committee concluded that Ms.

Strom still was in a position to be an advocate nurse, to exercise her right to freedom of expression, by advancing her criticisms in a way that would not harm registered nurses and the nursing profession. [112] In this way the discipline committee addressed, as Justice Abella put it at para. 56 of Doré , “how the Charter value at issue will best be protected in view of the statutory objectives”.

Bearing in mind the deference that is to be given to the committee in its balancing of the Charter right and the statutory objectives, I conclude that the committee’s decision falls within the range of possible, acceptable outcomes that could arise from a proportionate balancing. [ 49 ] Having so concluded, the Chambers judge found that the Discipline Committee’s decision that the infringement of Ms.

Strom’s Charter right to freedom of expression was justified was not unreasonable and, accordingly, that he could not interfere with it. [ 50 ] Finally, the Chambers judge dealt with the Discipline Committee’s decision to award costs. He found that s. 31 of the Act was unambiguous and imposed no limitation on the nature of costs that could be awarded. He found that the Discipline Committee had conducted a thorough review of the considerations relating to both the fine and the award of costs. He concluded the costs decision fell within a range of possible, acceptable outcomes and was accordingly not unreasonable.

V. JURISDICTION AND Standard of review

[ 51 ] The DC Decision was appealed to the Court of Queen’s Bench pursuant to s. 35 of the Act . The decision in Strom QB , in turn, was appealed to this Court pursuant to s. 36.1 of the Act . These provisions are as follows: 35 A nurse who is the subject of a decision or an order of the council pursuant to

section 34 may appeal that decision or order to a judge of the court within 30 days of the decision or order of the council and

section 34 applies mutatis mutandis. … 36.1 A nurse who makes an appeal pursuant to

section 35 or the association may appeal a decision of the court on a point of law to The Court of Appeal for Saskatchewan within 30 days of the decision. [ 52 ] Accordingly, on this appeal, this Court is a secondary appellate court. The task of a secondary appellate court is to determine whether the court that reviewed the decision of the administrative body chose the correct standard of review and correctly applied it. These are questions of law, reviewable on the correctness standard.

If the reviewing court erred in law, the secondary appellate court must assess the administrative body’s decision pursuant to the correct standard of review: Dr. Q v College of Physicians and Surgeons of British Columbia , 2003 SCC 19 at paras 43–44 , [2003] 1 SCR 226. VI. ANALYSIS: the professional GROUND [ 53 ] Ms. Strom alleges that the Chambers judge made three errors. First, she submits he erred in upholding the Discipline Committee’s conclusion that she was guilty of professional misconduct within the meaning of s. 26(1) of the Act .

Second, she submits he erred in concluding that the Discipline Committee did not err in finding that the infringement of Ms. Strom’s Charter rights was justified under s. 1 of the Charter . Third, she submits that he erred in finding that the Discipline Committee had the authority pursuant to s. 31 of the Act to award costs in the amount of $25,000. [ 54 ] I will deal first with the professional misconduct ground. As noted above, the initial question is whether the Chambers judge chose the wrong standard of review.

Given that I have concluded that he did, I will then apply the correct standard of review to the alleged errors relating to that ground. After disposing of the professional misconduct ground, I will deal separately with the Charter ground. Given that I have decided that the finding of professional misconduct cannot stand, I need not deal further with the appeal of the costs award, as it cannot stand. A. Did the Chambers judge select the correct standard of review relating to the finding of professional misconduct? [ 55 ] The Chambers judge based his standard of review analysis on Dunsmuir and Dor é .

That was the correct approach at the time he made his decision, which was before the release of Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1 [ Vavilov ]. Further, the case law relied on by the Chambers judge continues to be a rich source of guidance for courts considering the standard of review, regardless of Vavilov .

That point has been resoundingly made by Stratas J.A. in Entertainment Software Association v Society Composers , 2020 FCA 100 at paras 22–41 , where he analyzed the jurisprudence of the Federal Court of Appeal relating to the reasonableness standard of review. [ 56 ] That said, the law relating to the standard of review that applies to judicial review of or an appeal from a decision of an administrative body was changed in key respects by Vavilov , which was decided after this appeal was heard.

In Saskatchewan, that is so as to both the correct approach to reasonableness review and, as in this case, as to the presumptive standard of review on a statutory appeal. For that reason, the Court invited the parties to make supplementary submissions as to the impact of Vavilov on this appeal. [ 57 ] Prior to Vavilov , it was settled law that the presumptive standard of review on statutory appeals was the same as that on judicial review: see, for example, Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd. , 2016 SCC 47 at paras 29– 30 , [2016] 2 SCR 293 [ Edmonton East ].

In Vavilov , the majority changed that standard, finding that “where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision” (at para 37). In the result, those appellate standards apply in this case. For that reason, and through no fault of his own, the Chambers judge erred in selecting the reasonableness standard. [ 58 ] I must add that while the Chambers judge’s choice of the reasonableness standard was understandable, he erred in describing and applying that standard.

As is noted above, it was his view that he was not to examine the approach taken by the Discipline Committee to make its decision, but only its final or ultimate decision. That is incorrect. The reasonableness analysis described in Dunsmuir is concerned not only with outcome, but with how the decision was made. Justice Brown’s

summary of the Dunsmuir reasonableness analysis in Canada (Attorney General) v Igloo Vikski Inc. , 2016 SCC 38 , [2016] 2 SCR 80, succinctly makes the point: [18] Reasonableness review is concerned with the reasonableness of the substantive outcome of the decision, and with the process of articulating that outcome. The reasoning must exhibit “justification, transparency and intelligibility within the decision-making process”: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190, at para. 47 .

The substantive outcome and the reasons, considered together, must serve the purpose of showing whether the result falls within a range of possible outcomes: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708, at para. 14 . While the adequacy of a tribunal's reasons is not on its own a discrete basis for judicial review, the reasons should “adequately explain the bases of [the] decision”: Newfoundland Nurses , at para. 18, quoting from Canada Post Corp. v.

Public Service Alliance of Canada , 2010 FCA 56 , [2011] 2 F.C.R. 221, at para. 163 (per Evans J.A., dissenting), rev'd 2011 SCC 57 , [2011] 3 S.C.R. 572. [ 59 ] The appellate standards are specified in Housen v Nikolaisen , 2002 SCC 33 at para 37 , [2002] 2 SCR 235, and do not include reasonableness. Alleged errors of law – including as to the scope of the decision-maker’s authority – are reviewed on the correctness standard. Alleged errors of fact are reviewed on the palpable and overriding error standard. Absent an extricable question of law, the

palpable and overriding standard also applies to alleged errors in the answer to a mixed question of fact and law. [60] If an alleged error relates to a discretionary decision, the standard of review as it is generally expressed in Saskatchewan is thatan appellate court will intervene only if the decision-maker erred in principle, misapprehended or failed to consider material evidence,failed to act judicially, or reached a decision so clearly wrong that it would result in an injustice: Rimmer v Adshead, 2002 SKCA 12 atpara 58, [2002] 4 WWR 119 [Rimmer]; Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76 at para 26, 428 DLR (4th)122 [McVeigh]; Abrametz v Law Society of Saskatchewan, 2020 SKCA 81 at para 74.

Other courts have used different language todescribe the standard relating to discretionary decisions. In Penner v Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2SCR 125 [Penner], for example, Cromwell and Karakatsanis JJ. said this: [27] A discretionary decision of a lower court will be reversible where that court misdirected itself or came to a decision that is soclearly wrong that it amounts to an injustice: Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367, at p. 1375.

Reversing alower court’s discretionary decision is also appropriate where the lower court gives no or insufficient weight to relevant considerations:Friends of the Oldman River Society v.

Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, at pp. 76–77. [61] The Penner formulation of this standard has been adopted by courts of appeal in several provinces: see, for example, 1944949Ontario Inc. (OMG ON THE PARK) v 2513000 Ontario Ltd., 2019 ONCA 628 at para 13; Kish v Sobchak Estate, 2016 BCCA 65 at para34, 394 DLR (4th) 385; Lamb v Canada (Attorney General), 2018 BCCA 266 at paras 46–47, [2018] 9 WWR 1; Twinn v Twinn, 2017ABCA 419 at para 14.

See also, to the same effect, Canada (Attorney General) v Fontaine, 2017 SCC 47 at para 31, [2017] 2 SCR 205. [62] I read the test described in Penner as the same in substance as that described in McVeigh. McVeigh is helpful in explicitlymaking the point that a misapprehension of or failure to consider material evidence – which constitutes an error of law or principle – mayjustify appellate intervention.

Penner is helpful in explicitly stating that a failure to give any or sufficient weight to a relevantconsideration may also do so, although it must be kept in mind that the allocation of weight is, within the limits of the discretion granted,for the initial decision-maker.

An appellate court is not entitled to substitute its own discretion for that of the trial court or chambers judgemerely because it would have exercised the original discretion differently: Friends of the Oldman River Society v Canada (Minister ofTransport), (SCC), [1992] 1 SCR 3 at 76–77. [63] I also note the formulation of the discretionary standard of review adopted by LeBel J. in British Columbia (Minister ofForests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371 [Okanagan], which is also the same in substance as McVeigh andPenner: 43 As I observed in R. v.

Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, however, discretionary decisions are not completely insulatedfrom review (para. 118). An appellate court may and should intervene where it finds that the trial judge has misdirected himself as to theapplicable law or made a palpable error in his assessment of the facts. As this Court held in Pelech v.

Pelech, (SCC),[1987] 1 S.C.R. 801, at p. 814-5, the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as afailure to apply them or a misapplication of them raise questions of law which are subject to appellate review. [64] The question, then, is which of these appellate standards of review applies to the professional misconduct ground. In hersupplementary submissions, Ms. Strom argues that Vavilov means that all of the issues raised on this appeal are reviewable on acorrectness standard.

The SRNA takes the opposite position, submitting that as the Legislature has specified in s. 26(1) of the Act thatprofessional misconduct is a question of fact, Vavilov means that the palpable and overriding error standard applies. It says there are noextricable errors of law which would call for the application of the correctness standard. [65] With respect, I am of a different mind than both parties. [66] To explain, I will first address the question raised by the SRNA. Does the statement in s. 26(1) that professional misconduct isa question of fact conclusively settle the standard of review question?

The effect of using that phrase in s. 26(1) was not considered by theChambers judge and has not otherwise been judicially considered. However, the use of this curious language to describe decisions as toprofessional misconduct is not unique to the Act. It appears to have first been used in Alberta in 1928:

An Act to amend The MedicalProfession Act, SA 1928, c 33, s 9. It no longer appears in this context in that province. In Saskatchewan, it appeared in s. 17 of An Actrespecting The Institute of Chartered Accountants of Saskatchewan, SS 1934, c 41.

See also, for example, s. 18 of the British ColumbiaLegal Professions Act Amendment Act, 1948, SBC 1948, c 36. [67] It presently appears in this context in many Saskatchewan professional regulatory statutes: see, for example, The AgrologistsAct, 1994, SS 1994, c A-16.1, s 28; The Registered Psychiatric Nurses Act, SS 1993, c R-13.1, s 28; The Accounting Profession Act, SS2014, c A-3.1, s 26. The standard of review has been considered in relation to some of these statutes.

In Davies v Council of The Instituteof Chartered Accountants of Saskatchewan (1985), (SK KB), 19 DLR (4th) 447 (Sask QB), the Instituteargued that a provision that stated the issue of professional misconduct was “a question of fact for the sole and final determination of thecouncil or the disciplinary committee” (The Chartered Accountants Act, RSS 1978, c C-7, s 18(2)) meant that it had an “unfettered right todetermine the existence of what unprofessional conduct amounts to” (at para 49).

Justice MacLeod rejected that argument, commenting asfollows: [50] … Taken at face value, the provision would defeat any appeal. This could not have been intended. Rather, I hold that s. 18(1) is adeclaration of the responsibilities of the Institute or Discipline Committee, but it is not intended to frustrate the right of appeal. [68] Justice MacLeod did not specify a standard of review. However, he found that the Institute erred by failing to consider theeffect of a fundamental concept of partnership law, resulting in a finding of liability for which there was no evidentiary foundation.

It isapparent he applied a correctness standard to that question of law. [69] There are also several decisions touching this issue that were made after Dunsmuir, but prior to Vavilov, and thus at a timewhen it was settled law that the standard of review on statutory appeals was the same as that on judicial review: Edmonton East at paras29–30. As such, the choice was between reasonableness and correctness. In each of those cases, the Court adopted the reasonablenessstandard. In Cameron v The Saskatchewan Institute of Agrologists, 2018 SKCA 91 [Cameron], for example, this Court applied a

reasonableness standard to a finding that Mr. Cameron had been guilty of professional misconduct. The standard of review was not atissue, as the parties had agreed to that standard. However, the Court did refer to Meier v Saskatchewan Institute of Agrologists, 2014SKQB 389 at para 27, [2015] 3 WWR 608 [Meier], where Layh J., having referred to the use of the phrase “question of fact” in thestatute, commented that “[f]indings of fact are the purview of the discipline committee and command a high degree of deference whensubjected to judicial review – thence the appropriateness of the ‘reasonableness’ standard”.

Justice Layh’s reasoning on this point was notdisturbed on appeal (Meier v Saskatchewan Institute of Agrologists, 2016 SKCA 116, 405 DLR (4th) 506). [70] The reasonableness standard was also applied in Sydiaha v Saskatchewan College of Psychologists, 2014 SKQB 112 at paras10–13, 443 Sask R 139, and Pomarenski v Saskatchewan Veterinary Medical Association Professional Conduct Committee, 2019 SKQB264 at paras 11–13. In both cases, Currie J. referred to the use of the phrase “question of fact” in the statutes as one of several factorswhich supported that conclusion.

He also referred to the fact that the regulators had been granted broad powers to decide whether amember was guilty of professional misconduct, that misconduct and incompetence are most familiar to those in the profession (the“expertise” factor which, post-Vavilov, is no longer relevant in determining the standard of review), and that these administrative bodieswere interpreting their home statutes. [71] Given that the appellate standard now applies, the bottom-line conclusion in these cases that the reasonableness standardapplies is not authoritative.

However, they are of interest in that these courts did not treat the phrase “question of fact” as havingconclusively determined the standard of review, although both Meier and Cameron suggest that language might leave the court with “littlechoice” but to select the deferential reasonableness standard. Rather, the courts also considered other factors which confirmed that theLegislature had granted broad authority to the professional regulators that made the decisions being appealed. [72] In my view, that is the correct approach.

Indeed, it is self-evident that the exercise undertaken by the Discipline Committeecannot be characterized as deciding a question of fact simpliciter for standard of review purposes. Issues will arise on an appeal of afinding of professional misconduct that are not questions of fact. That is so in this case, where Ms. Strom and the SRNA have raisedquestions as to the

interpretation of s. 26(1) of the Act. Questions of statutory

interpretation are questions of law. Indeed, the statutoryframework is always in play, regardless of whether there is an extricable question of law. This fundamental “rule of law” principle, whichis central to this case, was reiterated in Vavilov: [108] Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the mostsalient aspect of the legal context relevant to a particular decision.

That administrative decision makers play a role, along with courts, inelaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decisionmakers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures. Thus, for example, while anadministrative body may have considerable discretion in making a particular decision, that decision must ultimately comply “with therationale and purview of the statutory scheme under which it is adopted”: Catalyst, at paras. 15 and 25-28; see also Green, at para. 44.

AsRand J. noted in Roncarelli v. Duplessis, (SCC), [1959] S.C.R. 121, at p. 140, “there is no such thing as absolute anduntrammelled ‘discretion’”, and any exercise of discretion must accord with the purposes for which it was given: see also Congrégationdes témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 7; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R.427, at paras. 32-33; Nor-Man Regional Health Authority, at para. 6. Likewise, a decision must comport with any more specificconstraints imposed by the governing legislative scheme, such as the statutory

definitions, principles or formulas that prescribe theexercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA193, [2011] 4 F.C.R. 203, at paras. 38-40.

The statutory scheme also informs the acceptable approaches to decision making: for example,where a decision maker is given wide discretion, it would be unreasonable for it to fetter that discretion: see Delta Air Lines, at para. 18. [73] In the result, a discipline committee deciding whether a registered nurse is guilty of professional misconduct is not deciding aquestion of fact for standard of review purposes. It is either deciding a question of mixed fact and law or making a discretionary decision.As to which, there is no bright line which neatly divides these two categories.

Both call for the decision-maker to find the facts and applylegal principles to those facts. As L’Heureux-Dubé J. said in Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817: 54 It is … inaccurate to speak of a rigid dichotomy of “discretionary” or “non-discretionary” decisions. Most administrative decisionsinvolve the exercise of implicit discretion in relation to many aspects of decision making. To give just one example, decision-makers mayhave considerable discretion as to the remedies they order. In addition, there is no easy distinction to be made between

interpretation andthe exercise of discretion; interpreting legal rules involves considerable discretion to clarify, fill in legislative gaps, and make choicesamong various options. As stated by Brown and Evans, supra, at p. 14-47: The degree of discretion in a grant of power can range from one where the decision-maker is constrained only by the purposes and objectsof the legislation, to one where it is so specific that there is almost no discretion involved.

In between, of course, there may be any numberof limitations placed on the decision-maker’s freedom of choice, sometimes referred to as” structured” discretion. [74] Indeed, discretionary decisions are sometimes described as questions of mixed fact and law. I note, for example, the followingcomments by Karakatsanis J. in Hryniak v Mauldin, 2014 SCC 7, [2014] 1 SCR 87, which describe a decision by a Chambers judge toexercise fact-finding powers in the context of a

summary judgment application as both a question of mixed fact and law and a discretionarydecision: [81] In my view, absent an error of law, the exercise of powers under the new

summary judgment rule attracts deference. When themotion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring atrial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law, should not beoverturned absent palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36. [82] Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powersprovided by Rule 20.04(2.1) depends on the relative evidence available at the

summary judgment motion and at trial, the nature, size,complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attractsdeference.

[83] Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary.

Thus,unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decisionshould not be disturbed. [75] Similarly, in Grand Council of the Crees (Eeyou Istchee) v McLean, 2019 FCA 185, which was an appeal from ordersdismissing applications to intervene in a settlement approval process, Rennie J.A. commented as follows: [3] Leave to intervene under Rule 109 is discretionary and the standard of review applicable to a discretionary order of a motionsjudge is that set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.

This Court’s intervention will only be warranted on anerror of law or a palpable and overriding error regarding a question of fact or mixed fact and law. [76] Notwithstanding the absence of a bright line between questions of fact and law and discretionary decisions, there areconsiderations that bear on the proper characterization of the professional misconduct issues in this appeal. I would begin with theobvious; that is, that the Act explicitly states that professional misconduct is a question of fact. In my view, the Legislature’s choice of thatphrase was intended to limit appellate review.

Put differently, it confirms that the Legislature intended the Discipline Committee to havebroad discretion to determine what constitutes professional misconduct. [77] This conclusion accords with the language of s. 26(1), read in accordance with the modern principle of

interpretation; that is, inits grammatical and ordinary sense and in light of the purpose of the Act and the intention of the Legislature: Rizzo & Rizzo Shoes Ltd.(Re), (SCC), [1998] 1 SCR 27; The Legislation Act, SS 2019, c L-10.2, s 2-10.

In broad terms, that purpose is to providefor an independent professional regulatory body to license and regulate registered nurses, with an overriding objective or primary purposeof safeguarding the public interest: see, for example, the reasoning in College of Nurses of Ontario v Dumchin, 2016 ONSC 626 at para19, 130 OR (3d) 602; Saskatchewan College of Paramedics (Professional Conduct Committee) v Bodnarchuk, 2015 SKCA 81 at para 31,465 Sask R 36; Simpson v Chiropractors’ Association of Saskatchewan, 2001 SKCA 22 at paras 38–39, 203 Sask R 231; andPharmascience Inc. v Binet, 2006 SCC 48 at para 36, [2006] 2 SCR 513.

As Simmons J.A. said in Sazant v College of Physicians andSurgeons of Ontario, 2012 ONCA 727, 113 OR (3d) 420: [101] The Supreme Court of Canada has consistently emphasized the need for courts to interpret professional discipline statutes with aview to ensuring that such statutes protect the public interest in the proper regulation of the professions: see, e.g., Rocket v. Royal Collegeof Dental Surgeons of Ontario, (SCC), [1990] 2 S.C.R. 232, [1990] S.C.J. No. 65, at p. 249 S.C.R.; Finney v. Barreaudu Qubec, [2004] 2 S.C.R. 17, [2004] S.C.J.

No. 31, 2004 SCC 36, at para. 40. [102] As the court put it unequivocally in Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, [2006] S.C.J. No. 48, 2006 SCC 48, atparas. 36–37: The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public placestrust in them. … [78] The public interest and effective professional regulation are, of course, not separate. As is noted in James T.

Casey, TheRegulation of Professions in Canada, loose-leaf (2020-Rel 6) vol 1 (Toronto: Thomson Reuters, 2019) at 2.5: … [T]he correct view is that the primary purpose of legislation regulating professions is the protection of the public.

However, it iscritical to appreciate that the public interest is also served by the protection and promotion of properly functioning, self-governingprofessions. [79] I also note in this context that s. 44 of the Act provides that Association bylaws found by the Legislature to be prejudicial to thepublic interest are deemed to have been revoked, thereby affirming that the public interest is the overriding consideration. The Code is abylaw passed pursuant to s. 15 of the Act. [80] The grant of authority to discipline for professional misconduct must be interpreted in light of this overriding purpose.

Thatauthority is a key means of protecting and promoting the public interest. That is its purpose. Approached in this manner, an

interpretationthat concludes that the Legislature granted broad discretion to the Discipline Committee to deal with the myriad circumstances in whichthe conduct of a registered nurse could negatively impact the public interest or the proper functioning of the profession supports theLegislature’s decision to grant self-governance, which lies at the heart of the regulatory scheme. [81] Further, and in particular, interpreting the use of the phrase “question of fact” in s. 26(1) as having been intended to grant broaddiscretion to the Discipline Committee accords with the nature of the “facts” at issue when misconduct is alleged.

Section 26(1) confirmsthat those facts include not only the particular conduct of the registered nurse – which includes but is not limited to the specificmisconduct identified in s. 26(2) – but findings as to the impact of misconduct on the best interests of the public, nurses or the standing ofthe profession. These are inherently broad, policy-laden concepts. [82] The discussion of the nature of a discretionary decision in Pacific Centre for Reproductive Medicine v Medical ServicesCommission, 2019 BCCA 315, [2020] 8 WWR 569 [Pacific Centre], is of interest.

Pacific Centre was an appeal of a judicial review of adecision by the Commission to deny an application for approval of the appellant as a diagnostic facility. The parties disagreed as towhether that decision was a discretionary administrative decision which engaged Charter values as contemplated by Doré, or a question ofstatutory

interpretation. Justice Garson commented as follows: [85] Neither Doré nor Loyola defines precisely what is meant by a “discretionary” decision, though Justice Abella emphasizedin Doré that such decisions involve “a particular set of facts”: at para. 36. In Baker, Justice L’Hereux-Dubédefined discretionary decisions as ones where “the law does not dictate a specific outcome, or where the decision maker is given a choiceof options within a statutorily imposed set of boundaries”: at para. 52. Similarly, Jones and de Villars define it as “the power to make adecision that cannot be determined to be right or wrong in any objective way”: David Phillip Jones and Anne S. de Villars, Principles of

Administrative Law , 6 th ed. (Toronto: Carswell, 2014) at 182, quoting Julius Grey, “Discretion in Administrative Law” (1979), 17 Osgoode Hall L.J. 107. [ 83 ] In the result, Garson J.A. found that the decision was a discretionary administrative decision. She noted that the Commission had some discretion in deciding whether criteria specified in the regulations had been met. She commented that while the issue was largely a fact-finding exercise, the overall decision involved a balancing of principles underlying the concept of universal healthcare and principles of sustainability.

The same can be said in relation to the grant of authority pursuant to s. 26 of the Act , which must be exercised in light of the guidance provided by the purposes of the Act , including in particular the public interest and professional standing factors specified in s. 26(1) . The notion of “palpable and overriding error” seems ill-suited to the appellate review of questions of this kind, as compared to the more encompassing standard of revi

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