Joey Toutsaint Appellant (Applicant) v. Investigation Committee of The, 2023 SKCA 11

Court of Appeal for Saskatchewan Docket: CACV3951 Citation: Toutsaint v Investigation Committee of The Saskatchewan Registered Nurses’ Association , 2023 SKCA 11 Date: 2023-01-17 Between: Joey Toutsaint Appellant (Applicant) And Investigation Committee of The Saskatchewan Registered Nurses’ Association Respondent (Respondent) Before: Jackson, Leurer and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr.

Justice Leurer In dissent: The Honourable Madam Justice Jackson On appeal from: 2021 SKQB 315 , Regina Appeal heard: September 7, 2022 Counsel: Pierre Hawkins for the Appellant Titli Datta and Roger LePage for the Respondent Tholl J.A. I. INTRODUCTION [ 1 ] Joey Toutsaint was an inmate at the Saskatchewan Federal Penitentiary. He filed a complaint with The Saskatchewan Registered Nurses’ Association [SRNA] regarding the conduct of a nurse who was employed at the institution, but it was dismissed at the investigation committee stage. Mr.

Toutsaint unsuccessfully sought judicial review of the dismissal in the Court of Queen’s Bench: Toutsaint v Investigation Committee of The Saskatchewan Registered Nurses’ Association , 2021 SKQB 315 . He now appeals that determination and asserts that he was denied procedural fairness based on his contention that the investigation committee dismissed the complaint without considering the ethical issues he had raised. Mr. Toutsaint’s standing to challenge the decision of the investigation committee is an additional issue in this appeal. [ 2 ] For the reasons that follow, the appeal is dismissed. II.

BACKGROUND [ 3 ] Mr. Toutsaint is a long-term serving prisoner at the Saskatchewan Federal Penitentiary. He has several mental health difficulties and has been subject to significant periods of time in solitary confinement. In March of 2019, an incident occurred involving Mr. Toutsaint and Maja Grujic, who is a registered nurse employed at the penitentiary. As of the date in question, Mr. Toutsaint had been in solitary confinement or isolation, in one form or another, for 152 continuous days. [ 4 ] On March 11, 2019, Ms. Grujic crushed Mr. Toutsaint’s medication, within his view, and put it into some apple sauce.

This was done in accordance with a health care provider’s instructions. She then passed it to him through the food slot in his cell. Mr. Toutsaint expressed concern about the dosage and demanded that he be shown the empty medication packages. When Ms. Grujic refused, the situation escalated with Mr. Toutsaint becoming distressed and angry, swearing, calling Ms. Grujic names, and threatening self-harm. It was not unusual for Mr. Toutsaint to be difficult and angry during the administration of his medication. Mr. Toutsaint later apologized to the nurse’s supervisor for his conduct. Ms.

Grujic continued to provide nursing care to Mr. Toutsaint subsequent to the incident. [ 5 ] Ms. Grujic filed two internal forms as a result of the incident. First, she completed a statement or observation report, describing what had occurred. This was required as per the penitentiary’s protocols and created a record of the incident to be used for management purposes. Second, she filled in an inmate offence report and notification of charge form [Charge Form].

This second form’s purpose was to commence disciplinary proceedings against an inmate under ss. 38–44 of the Corrections and Conditional Release Act , SC 1992, c 20 . When the Charge Form was created, the institutional head was then required to determine whether the charge was valid and whether it should be categorized as minor or serious. For this incident, the charge was found to be valid and was classified as minor. Mr. Toutsaint received a $5 fine as a penalty. [ 6 ] On January 29, 2020, Mr. Toutsaint’s legal counsel filed a detailed and well-drafted complaint with the SRNA on behalf of Mr. Toutsaint.

It set out the background to the complaint and alleged the following instances of unethical conduct by Ms. Grujic arising out of her completion of the Charge Form: (

a) she had acted in a conflict of interest; (

b) she had participated in proceedings which could result in cruel treatment; (

c) she had failed to act in Mr. Toutsaint’s best interests as her patient; and

(

d) she had unethically disclosed confidential information about a therapeutic interaction for the purpose of discipline. [7] The complaint was referred to the SRNA’s investigation committee, which was established under The Registered Nurses Act,1988, SS 1988-89, c R-12.2 [RN Act]. The following portions of the RN Act are relevant: Investigation committee 27(1) The investigation committee is established consisting of at least three registered nurses appointed by the council.

(2) No member of council and no member of the discipline committee is eligible to be appointed as a member of the investigationcommittee.

(3) Three members of the investigation committee constitute a quorum. Investigation 28(1) On the report, in writing, of any person alleging that a nurse is guilty of professional incompetence or professional misconduct, theinvestigation committee shall review the report for the purpose of deciding whether the discipline committee should hear and determine acomplaint with respect to the matter disclosed in the report.

(2) The investigation committee may investigate the report by taking any steps it considers necessary.

(3) The investigation committee shall make a written report to the discipline committee recommending that: (

a) the discipline committee hear and determine the complaint set out in the written report; or (

b) no further action be taken with respect to the matter under investigation.

(4) A complaint set out in a written report made pursuant to clause (3)(

a) may relate to any matter disclosed in the report mentioned insubsection (1) or in the investigation conducted by the investigation committee pursuant to subsection (2).

(5) A decision of the majority of the investigation committee is a decision of the committee.

(6) A copy of a written report pursuant to subsection (3) recommending no further action shall be provided to: (

a) the council; (

b) the person, if any, who made the report mentioned in subsection (1); and (

c) the nurse who is the subject of the report mentioned in subsection (1). [8] On February 27, 2020, an investigator from the investigation committee spoke to Mr. Toutsaint’s counsel and discussed thecomplaint. On April 15, 2020, the investigation committee notified Ms. Grujic of the complaint and sought a response. On May 22, 2020,she provided a detailed written response. [9] The investigation committee met on November 23, 2020, and determined that the case should be closed and that no furtherinvestigation was required. Ms. Grujic was notified of this result by way of letter dated November 30, 2020.

A report was generated bythe investigation committee and was provided on January 21, 2021, to Ms. Grujic, Mr. Toutsaint, the SRNA’s discipline committee, andthe Council of the SRNA: Re Grujic (21 January 2021) Regina, Case# 2020-024 (Sask SRNA) [Committee Decision]. The reportconcluded that the matter did not meet the threshold for further investigation, the evidence did not support professional misconduct orprofessional incompetence, and the SRNA would not be proceeding with a formal investigation.

From the SRNA’s perspective, the matterwas concluded. [10] I note that the SRNA is now known as the College of Registered Nurses of Saskatchewan. III. JUDICIAL REVIEW DECISION [11] Mr. Toutsaint filed an originating application seeking judicial review of the Committee Decision in the Court of Queen’sBench.

He asserted that the investigation committee had erred by failing to address the majority of the issues he had raised in hiscomplaint, by providing insufficient reasons for its decision, and by unreasonably dismissing the complaint without further investigation.He asked that the decision of the investigation committee be quashed and the matter remitted to it for determination in accordance with thelaw. [12] The Chambers judge commenced his decision by setting out the relief sought, reviewing the largely uncontested facts, andsummarizing the complaint and the investigation committee’s response to it.

He determined that the four issues were as follows: (

a) Whatis the standard of review, (

b) Was Mr. Toutsaint given procedural fairness, (

c) Should Mr. Toutsaint be given public interest standing forthe purpose of judicial review, and (

d) Did the investigation committee err in its decision? [13] After addressing the standard of review, the Chambers judge considered whether Mr. Toutsaint had received proceduralfairness. He examined the general scope of the duty of fairness owed by an administrative decision-maker as described in Baker v Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker], and South East Cornerstone SchoolDivision No. 209 v Oberg, 2021 SKCA 28, 457 DLR (4th) 224 [Oberg].

He reviewed the five factors set out in Baker, analyzed whetherthose factors supported a breach of procedural fairness in relation to Mr. Toutsaint, and determined that he was satisfied that Mr. Toutsaintwas accorded procedural fairness.

[ 14 ] Turning to the issue of public interest standing, the Chambers judge applied the analysis described in Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 45 at para 37 , [2012] 2 SCR 524. In doing so, he determined that the issues at hand did not a raise serious public interest, Mr. Toutsaint’s interest was minimal, and the manner in which the issue of prisoners’ rights or human rights was brought before the court was not substantive or of critical importance. He declined to grant Mr.

Toutsaint public interest standing. [ 15 ] Despite having already found that the necessary procedural fairness had been accorded to Mr. Toutsaint by the investigation committee, and that he should not be granted public interest standing, the Chambers judge continued his analysis and determined that the investigation committee’s decision – not to refer the complaint to the discipline committee – was correct . Given that this portion of the decision is not implicated in this appeal, I need not address this aspect further.

However, I will note, without deciding, that the standard of review for the investigation committee’s ultimate decision likely would be that of reasonableness not correctness. [ 16 ] The Chambers judge dismissed the application, without costs. IV. ISSUES [ 17 ] While he does not accept the decision by the investigation committee, Mr. Toutsaint is not challenging its reasonableness – or the Chambers judge’s findings in that regard – in this appeal. His arguments are strictly limited to issues of procedural fairness. As a result, the following issues arise in this matter: (

a) Does Mr. Toutsaint have standing to challenge the findings of the investigation committee related to issues of procedural fairness owed to a complainant? (

b) Did the investigation committee breach a duty of procedural fairness owed to Mr. Toutsaint? [ 18 ] As I have concluded that Mr. Toutsaint has standing to raise his procedural fairness arguments, it is unnecessary to consider whether he should have been granted public interest standing. V. ANALYSIS A.

Standard of review [ 19 ] The standard of correctness applies when this Court examines a judicial review decision that involves allegations of breaches of procedural fairness by an administrative decision-maker: Feng v Saskatchewan (Ministry of the Economy) , 2020 SKCA 6 at paras 43–45 , 70 Admin LR (6th) 237 [ Feng ], and Eagle’s Nest Youth Ranch Inc. v Corman Park No. 344 (Rural Municipality) , 2016 SKCA 20 at paras 21–26 , 395 DLR (4th) 24. All of the issues raised in this appeal fall to be assessed on that standard. B.

Existence of a duty of procedural fairness for a complainant [ 20 ] The existence of a duty of procedural fairness owed to a complainant in the context of a complaint to a professional regulatory body is a necessary threshold issue that must be addressed in determining whether Mr. Toutsaint has standing to challenge the decision of the investigation committee on the grounds of procedural fairness. Mr. Toutsaint asserts that the SRNA owed him, as a complainant, a duty of fairness with regard to its handling of his complaint. The SRNA acknowledges that a duty of fairness was owed to Mr.

Toutsaint at the complaint stage. However, it states that it is of limited scope and that Mr. Toutsaint is not entitled to seek review of the reasonableness of the investigation committee’s ultimate decision. It asserts that it is the role of the regulator, not a complainant, to ensure that professional standards of conduct are met. [ 21 ] Mr. Toutsaint is content to argue that a duty of fairness was owed to him at the complaint stage and, as I have noted, is not seeking, in this appeal, to challenge the reasonableness of the ultimate decision.

Given the narrowness of the point of disagreement between the parties, my discussion of the existence of such a duty will be brief and will simply set the stage for my examination of the content of the duty itself. [ 22 ] A member of a self-regulated profession is owed a duty of fairness to varying degrees at different stages in the investigative and discipline process: Oberg at para 77 .

The level of procedural fairness owed to a member who is being investigated was noted by Steel J.A. in Kuny v College of Registered Nurses of Manitoba , 2017 MBCA 111 , [2018] 3 WWR 101, to consist of “a reduced duty of fairness at the investigatory stage” (at para 22). So saying, the duty owed to a regulated member is categorically different from that owed to a complainant. A complainant is not a party to the discipline process, not subject to potential sanctions, and is not entitled to participate in the same manner as the subject of the complaint.

However, despite this clear demarcation, it is my view that a limited duty of fairness is owed to a complainant at the investigation stage in circumstances such as those at hand. [ 23 ] The jurisprudence regarding a complainant’s ability to seek judicial review of the reasonableness of an administrative decision is varied.

For example, Friends of the Oldman River Society v The Association of Professional Engineers, Geologists and Geophysicists of Alberta , 2001 ABCA 107 , 199 DLR (4th) 85, leave to appeal to SCC refused, [2001] 3 SCR vii, Cameron v Association of Professional Engineers and Geoscientists of Saskatchewan , 2021 SKQB 318 , aff’d Cameron v The Association of Professional Engineers and Geoscientists of Saskatchewan , 2022 SKCA 118 [ Cameron CA ], and J.N. v British Columbia Commissioner for Teacher Regulation , 2019 BCSC 2 , are cases where it was found that a complainant cannot challenge a substantive administrative decision.

Conversely, such a right was either determined or presumed to exist for a complainant in Patient X v College of Physicians and Surgeons of Nova Scotia , 2015 NSCA 41 , 89 Admin LR (5th) 327, and Wall v Ontario (Office of the Independent Police Review Director) , 2014 ONCA 884 , 378 DLR (4th) 589.

[ 24 ] However, despite this divergence in the jurisprudence on the issue of judicial review on the merits of an administrative decision at the behest of a complainant, there appears to be no dispute that there is at least a limited duty of procedural fairness owed to a complainant at the investigation stage, which is properly the subject of judicial review. In Cameron CA (at paragraph 23 ), Caldwell J.A. described this duty, in the context of markedly different legislation, as quite limited and acknowledged that the complainant in that matter would have only a narrow right to pursue the issue on judicial review.

While the duty must be assessed within the particular context in which it is asserted, there is, as a general proposition, a duty of procedural fairness owed to a person who files a complaint with a body that regulates a profession. [ 25 ] As a person to whom a duty of procedural fairness was owed at the investigation committee stage, Mr. Toutsaint is entitled to challenge the Committee Decision with regard to the alleged breach of the duty through the means of judicial review. As a result of this determination, and as indicated above, there is no need to consider the issue of public interest standing. C.

Content of the duty of procedural fairness [ 26 ] Mr. Toutsaint submits that, as a component of the duty of procedural fairness, the investigation committee was required to consider the four central aspects of his complaint and make a decision in relation to each one. He asserts that it failed to do so. The SRNA contends that the Chambers judge did not err in his assessment of the role and powers of the investigation committee. Its main argument is that the investigation committee did not breach the limited duty of procedural fairness owed to Mr.

Toutsaint. [ 27 ] Procedural fairness is not a one-size-fits-all set of processes. In Oberg , Leurer J.A., relying on Baker , reiterated that procedural fairness is a flexible concept and is context specific. This principle was described by Schwann J.A. in Feng : [45] The fact correctness is the applicable standard does not mean the procedure followed by a decision-maker must be measured against a singular set of processes and steps.

Rather, the content of procedural fairness in any given case is “eminently variable” and fact and context specific … [A] reviewing judge must engage in a fresh inquiry to determine what degree of procedural fairness is required in the circumstances of each case and then determine whether those requirements were ultimately met.

This is particularly so when the statute leaves the decision-maker with the ability to choose its own procedures: “The ultimate issue is always whether the process accords with the underlying values reflected by the duty of fairness” ( Mercredi [2019 SKCA 86] at para 29) … . [ 28 ] As recognized by the Chambers judge, the examination of the following five factors from Baker , as summarized in Oberg at paragraph 31 , provides the framework in which to determine the content of the duty in the matter at hand: [31] … the general framework to be applied … (

a) The nature of the decision and the process used to make it. The more the process provides for a decision resembling judicial decision- making, the more likely it is that procedural protections closer to the trial model will be required; (

b) The nature of the statutory scheme and the terms of the statute under which the body operates. Greater procedural protections are required when no appeal procedure is provided in the statute or when the decision will finally determine the issue; (

c) The importance of the decision to the individual affected. The greater the impact on the lives of those it affects, the more stringent the procedural protections; (

d) The legitimate expectations for procedural fairness of the person challenging the decision, which is often informed by any policy the public body has in place respecting processes for decision-making; and (

e) The choices of procedure made by the body itself, particularly when the statute gives the decision-maker the ability to choose its own procedures, or when the body has expertise in determining what procedures are appropriate. [ 29 ] This list of factors is not exhaustive and often contains overlap among the categories. Additionally, any other relevant factor should also be considered.

This brings me to an examination of these factors in the circumstances at hand. [ 30 ] With regard to the nature of the decision, the investigation committee regime provides for a screening mechanism that determines whether a complaint has sufficient merit to be referred to the discipline process. As noted below, the process is discretionary and flexible. It is simply an investigation, not a court-like adjudication. Only if the investigation committee sends the matter on to the discipline committee does a process occur that resembles a judicial setting.

The investigation committee makes a determination that directly affects a member of the SRNA, while having only an indirect effect on a complainant. [ 31 ] The applicable legislation in this matter establishes a self-governing profession and sets out the means by which members of the public may have a complaint addressed. After an investigation by the investigation committee, a decision to take no further action and to not refer the matter to the discipline committee, results in a final decision.

While the RN Act describes the bottom-line determination in terms of a recommendation, a decision to recommend that no further action be taken is one that fully and finally disposes of a complaint. There is no scope within the RN Act for the discipline committee, the Council of the SRNA, or any other arm of the SRNA to commence discipline proceedings against a member without a recommendation from the investigation committee referring the matter to the discipline committee. [ 32 ] A complainant is not a party to the matter under the RN Act .

There are no appeal, review, or reconsideration provisions within the RN Act of which a dissatisfied complainant could avail themselves. The decision by the investigation committee to recommend no further action is, absent judicial review, the end of the line for Mr. Toutsaint’s complaint. [ 33 ] As found by the Chambers judge, the decision by the investigation committee had little to no impact on Mr. Toutsaint. There was no evidence that a successful complaint to the SRNA would have had any effect on the disposition of his institutional offence. As I see it, Mr.

Toutsaint is a member of the public who has a general interest in the regulation of registered nurses, particularly with how those nurses interact with vulnerable persons who often have little to no choice with regard to medical services. He also has an indirect personal

interest in the proper consideration of his own complaint. Even recognizing that, as a person confined in a penal institution, Mr. Toutsaint has restricted choices as to his health care provider, I can see no connection between the consequences that he faced because of his actions and the issue of whether Ms. Grujic should have faced professional discipline because of her own conduct. [ 34 ] The Chambers judge determined that Mr. Toutsaint would have had no legitimate expectations other than that Ms. Grujic would have been obliged to respond to his complaint.

In my view, he would also have had the general expectation that the investigation committee would take his complaint seriously, consider the issues that it raised, and investigate it in accordance with the legislation and in the context of the circumstances. However, Mr. Toutsaint was not a party to the proceedings and could not reasonably have expected to receive the same procedural protections afforded to a member of a self-regulated profession.

The evidence does not support any other specific expectations. [ 35 ] Lastly, the RN Act requires that, when a written complaint alleging professional incompetence or professional misconduct is filed, the investigation committee must review the complaint for the purpose of determining whether the matter should be referred to the discipline committee. There is no set legislative procedure for conducting the investigation in order to make this determination.

The statutory scheme, specifically s. 28(2) of the RN Act , provides the investigation committee with the ability to “take any steps it considers necessary” to conduct its investigation. This provision grants wide discretion for the investigation committee to craft the procedure required to fulfill its mandate at this screening stage. Section 28(3) requires that a decision be made of whether the matter will be referred to the discipline committee.

Sections 28(3) and 28(6) requires the investigation committee to create a written report, setting out its recommendations, and to provide that report to specified persons. There is no legislative requirement to provide detailed reasons within that report. No other procedures are set out in the RN Act . Excluding the portions that address consensual resolution, the SRNA’s Bylaws contain the following provisions regarding the procedures to be followed by the investigation committee:

SECTION 5. INVESTIGATION COMMITTEE.

(1) The committee shall notify, in writing, the member who is the subject of a report or allegation that a report or allegation has been received and ask for a written response prior to the committee’s report being submitted to the discipline committee.

(2) The committee shall notify, in writing, the person who made the report or allegation that the report will be reviewed.

(3) The committee shall take appropriate action including: (

a) request any person to answer any questions and to produce any records, notes, photographs, x-rays, films, books, papers or other documents or things in the person’s possession or under their control that are or may be relevant to the report or conduct being investigated; and (

b) with the consent of the person producing them, copy and keep copies of any of the documents or things that are produced under clause (a).

(4) The committee shall hold in confidence, all documentation and information received. …

(7) If at the conclusion of its investigation, the committee finds there is insufficient evidence to refer a matter to discipline but the investigation tends to show undesirable practice, the investigation committee may issue a letter(

s) of guidance for the purpose of giving confidential feedback including suggestions in order to improve nursing practice. [ 36 ] As can be seen from this legislative framework, the investigation committee has significant discretion to determine the manner in which to conduct its investigations and to create the content of its report regarding the results of its inquiries, including a wide discretion to employ the procedures it deems advisable for any particular complaint. [ 37 ] The investigation committee is tasked with a legislated obligation to receive written complaints and to investigate them to the extent necessary.

It is, however, a screening committee, and not the discipline committee, whose decisions can have serious consequences for a registered nurse. Ms. Grujic and the public as a whole are the greater stakeholders here. Mr. Toutsaint is not entitled to a personal remedy in the complaint process. On the other hand, as noted, a decision of the investigation committee is a final determination which, in Mr. Toutsaint’s circumstances, fully disposed of his complaint. From his perspective, the process ended in an unfavourable manner. While the effect on Mr.

Toutsaint was not significant and was indirect, he has no other recourse outside of judicial review. [ 38 ] As a result of all of these factors, I find that the duty owed by the investigation committee to Mr. Toutsaint is limited. I agree with the determination of the Alberta Court of Appeal in Tran v College of Physicians and Surgeons of Alberta , 2018 ABCA 95 , [2018] 5 WWR 446, where, in a per curiam decision, it stated that a duty owed to the complainant – roughly comparable to Mr. Toutsaint – exists but is limited and falls “at the low end of the spectrum” (at para 6).

The comments by Khullar J.A. (as she then was), in Makis v College of Physicians and Surgeons of Alberta (Complaint Review Committee) , 2019 ABCA 341 , where she stated, “[d]espite this limited role, complainants are entitled to seek judicial review of whether the … process was conducted in a fundamentally unfair manner” (at para 24), are equally applicable to the case at hand. [ 39 ] I will not attempt to set out any comprehensive guidance regarding the scope of the duty of fairness owed by an administrative decision-maker to a complainant at the investigation stage under the RN Act .

At the outside edges, that duty certainly does not approach the level owed to a member of a profession against whom discipline proceedings have been commenced. However, even when assessed at the low end of the spectrum, if, as Mr. Toutsaint asserts, the investigation committee did not consider the four ethical issues raised by his complaint, this would constitute a breach of the duty of fairness owed to him as a complainant: Baker at para 22 and Sanderson v Alberta (Criminal Injuries Review Board) , 2010 ABCA 167 at paras 12–13 , 487 AR 244.

A decision-maker is not required to address every argument or issue presented. However, as a statutorily created screener of complaints for a self-regulated profession – that makes a final decision regarding such issues – the investigation committee has, at the very minimum, a basic duty to consider the nature of the complaint and to determine whether further action is required in relation to each important aspect of it. A failure to do so would breach the duty of fairness owed to a complainant.

D. Alleged breach of the duty of procedural fairness [ 40 ] Mr. Toutsaint contends that the investigation committee failed to consider the four ethical concerns that he raised in his complaint. He argues that the road map set out in Turner v Canada (Attorney General) , 2012 FCA 159 , 431 NR 327, should be employed to assess a case where it is alleged that an administrative decision-maker failed to address the issues before it. In his submission, this analysis should consist of the following steps: (

a) the court should decide, based on a correctness analysis, whether an issue raised by a complainant is important enough that it should have been considered by the decision-maker; and (

b) if the issue is of sufficient importance, the court should assess whether, based on an examination of the record and the reasons, it was considered. [ 41 ] The SRNA does not dispute that the investigation committee was required to consider the issues that formed the core of Mr. Toutsaint’s complaint. It asserts that the investigation committee did consider the salient issues raised in the complaint and, therefore, did not breach the limited duty of procedural fairness owed to Mr. Toutsaint. [ 42 ] The test proposed by Mr. Toutsaint is appropriate to the circumstances at hand.

The two steps cut right to the heart of the issue of procedural fairness but respect the role of the administrative body. A complainant is entitled to have their core concerns considered when they file a complaint, but a decision-maker is not required to address every piece of evidence, each argument, or every single issue as they are framed by the complainant. In the context of the narrow issues raised here, I find that procedural fairness will have been breached if the investigation committee failed to consider the important aspects of Mr. Toutsaint’s complaint. [ 43 ] Mr.

Toutsaint suggests that different standards of review might apply in various circumstances with regard to the second part of his proposed test. For the purposes of the matter at hand, I see no reason why the standard of correctness should not apply to both parts of the test. The issues in this appeal are framed as ones of procedural fairness, not the reasonableness of the ultimate decision. Issues of procedural fairness involve a review for correctness. [ 44 ] It can easily be concluded that the four ethical issues that were raised by Mr.

Toutsaint – conflict of interest, participation in proceedings which could result in cruel treatment, failure to act in his best interests as her patient, and disclosure of confidential information for the purpose of discipline – are important enough that they should have been considered by the investigation committee. They were clearly identified in the written complaint and formed the core of the concerns raised by Mr. Toutsaint.

The more difficult problem is the determination of whether the investigation committee did consider these four issues. [ 45 ] Turning to the second aspect of the analysis, I find that, after reviewing the whole of the material filed in this matter, and considering it in the context of the legislation governing the process, the investigation committee did consider the four issues raised by Mr. Toutsaint.

I reach this conclusion for the following reasons. [ 46 ] It is important to note at the outset that this portion of the analysis does not involve an examination of the decision of the investigation committee based on sufficiency of reasons principles. Such an assessment for sufficiency would involve a reasonableness review of the substantive decision, which is not being done here.

As noted in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 SCR 708 [ N.L.N.U. ], while the reasons may have some relation to procedural fairness, a failure to give adequate reasons is generally not engaged in an assessment of procedural fairness. In this regard, Abella J. stated the following: [21] It strikes me as an unhelpful elaboration on Baker to suggest that alleged deficiencies or flaws in the reasons fall under the category of a breach of the duty of procedural fairness and that they are subject to a correctness review.

As Professor Philip Bryden has warned, “courts must be careful not to confuse a finding that a tribunal’s reasoning process is inadequately revealed with disagreement over the conclusions reached by the tribunal on the evidence before it” [citation and reference omitted]. [22] It is true that the breach of a duty of procedural fairness is an error in law. Where there are no reasons in circumstances where they are required, there is nothing to review. But where, as here, there are reasons, there is no such breach.

Any challenge to the reasoning/result of the decision should therefore be made within the reasonableness analysis. [ 47 ] That said, N.L.N.U. predated Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , 441 DLR (4th) 1.

It is an open question as to whether Vavilov and its progeny have moved the examination of the sufficiency of reasons further away from the concept of procedural fairness, and it is possible that all aspects of that analysis are now subsumed in a reasonableness review: Danychuk v University of Regina , 2022 SKCA 146 at para 48 , and Manitoba Government and General Employees’ Union v Manitoba (Finance) , 2021 MBCA 36 at paras 71–77 , [2022] 2 WWR 100. But that is a question for another day. In the matter at hand, it is adequate to note that Mr.

Toutsaint did not seek to attack the investigation committee’s decision based on the insufficiency of its reasons. [ 48 ] With the above guidance in mind, the task here is to determine whether the investigation committee considered the four core allegations in Mr. Toutsaint’s complaint. [ 49 ] When examining the record, it is useful to remind ourselves that the decision to recommend no further action be taken was a screening decision not a discipline decision. The investigation committee was investigating the complaint, not adjudicating it.

A screening role is meant to be efficient and not devolve into a hearing on the merits. This forms an important part of the context in which to analyze whether the duty of procedural fairness has been met. [ 50 ] The investigation committee received a written, well-drafted complaint from Mr. Toutsaint’s legal counsel. That complaint clearly, and in detail, communicated the four ethical issues he had concerns about and provided significant background information. [ 51 ] In response to the complaint, an investigator from the investigation committee spoke with Mr. Toutsaint’s legal counsel on February 27, 2020.

The hand-written notes from that discussion included the following: “RN breached C of E by participating in

disciplinary action towards this inmate. Inmate was given more time in solitary b/c of nurse filing a complaint. [Mr. Toutsaint’s legal counsel] thinks it’s inhuman. Thinks the RN should not have done this. Breached confidentiality by telling COs about verbal altercation”. [ 52 ] Ms. Grujic, at the request of the investigation committee, provided a lengthy written response to the complaint. Her response contained information that addressed the alleged ethical violations. [ 53 ] The investigation committee met on November 23, 2020. The minutes of the meeting indicate that the investigator presented the case.

The result was that the case was closed and no further investigation was required. The written report of the investigation committee – the Committee Decision – which was provided to Mr. Toutsaint pursuant to s. 28(3) and s. 28(6) of the RN Act , contained, inter alia , the following: Allegations noted by Report Writer: 1. The member violated the ethical obligations of a Registered Nurse (RN) by participating in the discipline of a complainant who was an inmate “by initiating a charge of a disciplinary offence”. … The following documents were collected: 1. Written Reports 2.

Member’s Response After having considered all information gathered during the above investigative process, the Investigation Committee recommends to the Discipline Committee that this matter be Closed. … Allegation #1: Th e member violated the ethical obligations of a Registered Nurse (RN) by participating in the discipline of a complainant who was an inmate ‘‘by initiating a charge of a disciplinary offence”. … In making this decision, the Investigation Committee has considered all the information and submissions before them, whether or not they are specifically referred to in the conclusion. … This matter does not meet the threshold for further investigation.

The evidence does not support professional misconduct or professional incompetence. Based on the evidence, the SRNA will not be proceeding with a formal investigation. [ 54 ] All of these documents must be considered in the analysis. The Committee Decision repeatedly indicates that the investigation committee reviewed all the material before it, which included Mr. Toutsaint’s written complaint. The detailed nature of the complaint provides important context in which to read the Committee Decision .

The complaint precisely described the four issues and, having reviewed it, the investigation committee would clearly have been aware of all of its components. The Committee Decision twice referred to the allegations in the complaint as involving violations of Ms. Grujic’s ethical obligations. The notes from the phone call to Mr. Toutsaint’s counsel also reflect a discussion of the ethical issues.

When all of this is considered, it is my view that the investigation committee was oriented to the alleged ethical violations and determined that there were no grounds for referring the matter to the discipline committee. It was not necessary for the investigation committee to repeat and explicitly list the four specific allegations and provide some type of substantive analysis at this screening stage.

Summarizing the allegations as “[t]he member violated the ethical obligations of a Registered Nurse (RN) by participating in the discipline of a complainant who was an inmate ‘by initiating a charge of a disciplinary offence’”, in the context of confirming that it had reviewed Mr. Toutsaint’s comprehensive complaint, demonstrates that the investigation committee was alive to the four issues and considered them. [ 55 ] As a result, I find that the Chambers judge did not err in his bottom-line determination that the investigation committee had not breached the duty of procedural fairness owed to Mr. Toutsaint. VI.

CONCLUSION [ 56 ] The appeal is dismissed. At the hearing of the appeal, the SRNA modified its position on costs and informed the Court that it was not seeking costs of the appeal. No costs are awarded. “Tholl J.A.” Tholl J.A. I concur. “Leurer J.A.” Leurer J.A. Jackson J.A. (in dissent) I. INTRODUCTION

[ 57 ] With much respect, I reach a different conclusion than my colleagues. [ 58 ] At the heart of this appeal lies an important question, which is this: In the prison context, when a complaint is made against a member of the medical profession, how is the question of dual loyalties between the regulated member’s ethical obligations owed to their patient and to their employer to be resolved?

In my view, neither the investigation committee of the College of Registered Nurses [Committee] nor the Chambers judge of the Court of Queen’s Bench engaged with this issue: see Re Grujic (21 January 2021) Regina, Case# 2020-024 (Sask SRNA) [ Committee Decision ] and Toutsaint v Investigation Committee of The Saskatchewan Registered Nurses’ Association , 2021 SKQB 315 [ Chambers Decision ]. [ 59 ] In the result, I have concluded that the Chambers judge erred by finding that the Committee had accorded Joey Toutsaint procedural fairness.

I would allow the appeal from the Court of Queen’s Bench, quash the decision of the Committee, and remit the matter to a new investigation committee constituted under The Registered Nurses Act, 1988 , SS 1988-89, c R-12.2 . II. BACKGROUND A. The prison context [ 60 ] In a document spanning ten pages of close type, Prisoners’ Legal Services [PLS], who acted on Mr. Toutsaint’s behalf, filed a complaint alleging that Nurse Grujic had “participated in the discipline of Mr. Toutsaint by initiating a charge of a disciplinary offence against him. Mr. Toutsaint submits that this was a violation of Ms.

Grujic’s ethical obligations as a registered nurse” (complaint to The Saskatchewan Registered Nurses’ Association at 1, dated January 29, 2020 [Complaint]). [ 61 ] Mr. Toutsaint is serving an indeterminate sentence and has spent long periods in solitary confinement. He appears to suffer from significant mental illness. According to the Complaint, Mr. Toutsaint is one of those prisoners whose medical needs exceed those of the general public. He is described as follows (at 1 and 3): Mr.

Toutsaint is an Indigenous federal prisoner who has been diagnosed with Post Traumatic Stress Disorder and Major Depressive Disorder. He has spent more than 2,180 days in solitary confinement and exhibits many of the recognized symptoms of long-term isolation, including frequent and serious self-harm and suicide attempts. … During the period immediately prior to March 11, 2019 (from February 25 until March 6), Mr. Toutsaint was held in an “observation cell”, which is an isolation cell where self-harming or suicidal prisoners are placed for round-the-clock observation by correctional officers.

Prisoners’ Legal Services’ clients describe the conditions in observation as worse than segregation. Mr. Toutsaint was deprived of his clothing and forced to wear nothing but a de-humanizing “baby doll” smock. He had nothing in his cell but a blanket and was forced to sleep on a concrete slab. The lights were on 24 hours per day and he was given “bag feed” (i.e. finger foods). The cell smelled and he would lay on the floor by the door to get fresh air. He had nothing to occupy his mind, and he continued to self-harm while in observation. On March 6, 2019, Mr.

Toutsaint was moved to another cell in the health care area that appeared to have feces on the wall. He remained isolated for the vast majority of each day. [ 62 ] It is axiomatic that prisoners cannot choose their medical caregivers or the timing of any intervention. Prisoners are vulnerable to a system that may choose to treat them or not or to interact with them with compassion or contempt, with little recourse in either instance.

They cannot seek care elsewhere: Smith v John Doe , 2020 ABQB 59 at para 15 ; Hamm v Canada (Attorney General) , 2019 ABCA 389 at para 26 , 65 Admin LR (6th) 171; and Drennan v Canada (Attorney General) , 2008 FC 10 at para 41 . [ 63 ] It is against this backdrop that the Committee’s treatment of the Complaint must be assessed. Mr. Toutsaint is not the usual patient, and he and Nurse Grujic were not in a usual patient–nurse relationship. B. The incident on March 11, 2019, and Nurse Grujic’s Reports [ 64 ] The Complaint gives Mr. Toutsaint’s description of the event as follows (at 3): According to Mr.

Toutsaint’s recollection, on the evening of March 11, 2019, Ms. Grujic delivered his psychiatric medication to him at his cell. It was crushed and Mr. Toutsaint was concerned he had not been given the right dosage, so he asked her to show him the package of empty medication. She refused. Mr. Toutsaint became distressed and threatened to self-harm. In response, an officer said “perfect”. The exchange between Mr. Toutsaint and Ms. Grujic was heated. Mr. Toutsaint does not recall exactly what he said, but he was clearly emotionally distressed in relation to his isolation and self-harm.

It should also be noted that Mr. Toutsaint often uses expletives in his speech. Immediately after describing the incident, the Complaint turns to Mr. Toutsaint’s subsequent actions: Mr. Toutsaint was extremely worried the ERT [Emergency Response Team] would come and assault him. He packed up his belongings in case they pepper sprayed him and showed officers a razor blade, indicating if the ERT came he would slash his throat. He attempted to talk with another nurse or mental health worker that evening to explain what had happened with Ms.

Grujic, but he became distressed and began banging his head on the bars of his cell, which made his head bleed. [ 65 ] For her part, Nurse Grujic filed two reports. The first report was required by the penitentiary’s protocols, and it creates a record of the incident to be used for management purposes. No one takes any issue with the content of that report or Nurse Grujic’s obligation to complete it.

[ 66 ] The second report is entitled an “Inmate Offence Report and Notification of Charge” [Charge Form]. This second form’s sole purpose is to commence disciplinary proceedings against Mr. Toutsaint under ss. 38–44 of the Corrections and Conditional Release Act , SC 1992, c 20 .

Section 42 governs the creation and function of this document, and s. 25 of the Corrections and Conditional Release Regulations , SOR/92-620 , mandates its precise content. It is not a document used to record incidents, but is rather the charging document commencing proceedings against a prisoner. On the Charge Form, Nurse Grujic wrote as follows: Offender became verbally aggressive towards writer during PM medication administration. Stated to writer “you fucking bitch, fucking clown, fuck you, I’m going into the observation cell just you watch. I’m going to slash, fuck you I have a razor.

I’m going into the observation cell”. Writer terminated conversation and was escorted away by CX. C. Mr. Toutsaint’s complaint [ 67 ] As part of Mr. Toutsaint’s claim, PLS referred to various documents and instruments outlining the provincial, national and international obligations imposed on nurses by their profession in support of the assertion that Nurse Grujic had breached her ethical obligations as a member of the professional corps of nurses. [ 68 ] The complaint is then divided into four categories of alleged breaches: (

a) breaches of the Code of Ethics for Registered Nurses , 2017 ed (Ottawa: 2017) [ Code of Ethics ] – adopted by the Saskatchewan Registered Nurses Association (now the College of Registered Nurses of Saskatchewan ) through its Bylaw XIV – Code of Ethics of the Association; (

b) breaches of international law pertaining to the imposition of discipline by health professionals; (

c) breaches of the obligation of health professionals employed by prisons not to participate in discipline, i.e., the dual loyalties argument; and (

d) breaches of principle 2 of the United Nations Human Rights, Office of the High Commissioner, Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , General Assembly Resolution 37/194, adopted 18 December 1982 [ Principles of Medical Ethics ], and the United Nations Office on Drugs and Crime, The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) , General Assembly Resolution 70/175, annex, adopted 17 December 2015 [ Mandela Rules ], which impose an “absolute prohibition” against participating in acts that may constitute degrading treatment (at 10). [ 69 ] I will briefly review each category. 1.

Code of Ethics for registered nurses [ 70 ] Under this heading, PLS referred to the following ethical responsibilities imposed on all nurses and emphasized those that are pertinent to this case ( Code of Ethics at 8–19): A. Providing Safe, Compassionate, Competent and Ethical Care … 3. Nurses build trustworthy relationships with persons receiving care 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. … 5.

Nurses are honest and take all necessary actions to prevent or minimize patient safety incidents . They learn from near misses and work with others to reduce the potential for future risks and preventable harms (see Appendix B). … B. Promoting Health and Well-Being … 1. Nurses provide care directed first and foremost toward the health and wellbeing of persons receiving care , recognizing and using the values and principles of primary health care. … C. Promoting and Respecting Informed Decision-Making … 4. Nurses are sensitive to the inherent power differentials between care providers and persons receiving care.

They do not misuse that power to influence decision-making. 5. Nurses advocate for persons receiving care if they believe the health of those persons is being compromised by factors beyond their control, including the decision-making of others. …

D. Honouring Dignity … 1. Nurses, in their professional capacity, relate to all persons receiving care with respect. 2. Nurses support persons receiving care in maintaining their dignity and integrity. 3. In health-care decision-making, in treatment and in care, nurses work with persons receiving care to take into account their values, customs and spiritual beliefs, as well as their social and economic circumstances without judgment or bias. 4.

Nurses intervene, and report when necessary, when others fail to respect the dignity of a person they are caring for or a colleague (including students), recognizing that to be silent and passive is to condone the behaviour. They speak up, facilitate conversation and adjudicate disputes, as appropriate/required. 5. Nurses respect the privacy of persons receiving care by providing care in a discreet manner and by minimizing intrusions. 6. Nurses utilize practice standards, best practice guidelines, policies and research to minimize risk and maximize safety, well-being and/or dignity for persons receiving care. 7.

Nurses maintain appropriate professional boundaries and ensure their relationships are always for the benefit of the person . They recognize the potential vulnerability of persons receiving care and do not exploit their trust and dependency in a way that might compromise the therapeutic relationship. They do not abuse their relationship for personal or financial gain and do not enter into personal relationships (romantic, sexual or other) with persons receiving care. 8.

In all practice settings where nurses are present, they work to relieve pain and suffering, including appropriate and effective symptom management, to allow persons receiving care to live and die with dignity. … E. Maintaining Privacy and Confidentiality 1. Nurses respect the interests of persons receiving care in the lawful collection, use, access and disclosure of personal information. … 3. Nurses collect, use and disclose health information on a need-to-know basis with the highest degree of anonymity possible in the circumstances and in accordance with privacy laws. … F. Promoting Justice … 4.

Nurses do not engage in any form of lying, punishment or torture or any form of unusual treatment or action that is inhumane or degrading. They refuse to be complicit in such behaviours . They intervene, and they report such behaviours if observed or if reasonable grounds exist to suspect their occurrence. … G. Being Accountable … 8. Nurses identify and address conflicts of interest . They disclose actual or potential conflicts of interest that arise in their professional roles and relationships and resolve them in the interest of the needs and concerns of persons receiving care . …

Part II. Ethical Endeavors Related to Broad Societal Issues … 1. Advocating for publicly administered health systems that ensure accessibility, universality, portability and comprehensiveness in necessary health-care services. … 3. Recognizing and working to address organizational, social, economic and political factors that influence health and well-being within the context of nurses’ roles in the delivery of care. … 8. Collaborating with other health-care team members and professional organizations to advocate for changes to unethical health and

social policies, legislation and regulations. 9. Recognizing that vulnerable groups in society are systemically disadvantaged (which leads to diminished health and well-being), and advocating to improve their quality of life while taking action to overcome barriers to health care. (Emphasis added by PLS in the Complaint) [ 71 ] After this review, PLS outlined how, in its view, Nurse Grujic had breached the Code of Ethics “by initiating a disciplinary charge against Mr. Toutsaint and by providing a statement supporting the charge” (Complaint at 7).

PLS alleged these specific complaints against Nurse Grujic (at 7): (a) “violated Mr.

Toutsaint’s trust and confidentially, and put him in a position where he could have been segregated as punishment where he would be at higher risk of self-harm or suicide, thereby reducing his safety”; (b) “acted outside her fundamental role of providing care for his health and well-being and acted against his best interest”; (c) “abused her power position in relation to him to punish him”; (d) “failed to advocate for him in relation to the decision-making of others”; (e) “failed to support him to maintain his dignity”; (f) “engaged in punishment of Mr.

Toutsaint which could have resulted in him being tortured or treated cruelly according to the United Nation’s definition of solitary confinement”; (g) “failed to identify and address her conflict of interest as someone employed by [Correctional Service of Canada] while acting as his care giver”; and (

h) demonstrated “her failure to recognize the vulnerability of Mr. Toutsaint as an Indigenous prisoner with mental health disabilities and a significant history of being held in isolation”. 2. International prohibitions against the imposition of discipline by health professionals [ 72 ] The second part of the Complaint referred to international law.

PLS submitted that the ethical guidelines noted above are informed by international law, including the Mandela Rules , which prohibit health-care personnel from having “any role in the imposition of disciplinary sanctions or other restrictive measures” (r. 46.1). [ 73 ] In support of its claim, PLS cited international instruments that strongly advocate against the role of medical professionals in the discipline of prisoners. These instruments include (

a) the United Nations’ Principles of Medical Ethics , (

b) the World Medical Association’s Statement on Body Searches of Prisoners , (

c) the International Council of Nurses Position Statement, “Nurses’ Role in the Care of Detainees and Prisoners”, (

d) the International Dual Loyalty Working Group, Dual Loyalty & Human Rights in Heath Professional Practice ( Dual Loyalty Guidelines ), and (

e) the United Nations Human Rights, Office of the High Commissioner, Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (New York and Geneva, 2004). [ 74 ] This part of the Complaint ended with the following allegations against Nurse Grujic (at 8): Ms. Grujic violated her ethical duties by initiating a disciplinary charge against Mr. Toutsaint. She did this despite the psychological distress he was clearly exhibiting and his previous experiences of long-term isolation.

This was not in line with her ethical obligation to provide care directed first and foremost toward the health and well-being of her patient and not to participate in disciplinary sanctions against a patient. Ms. Grujic also violated her ethical obligation to take all necessary actions to prevent or minimize patient safety incidents by initiating a disciplinary charge that could have resulted in his further isolation where he would be at increased risk of self- harm or suicide. 3.

The dual loyalties argument [ 75 ] With reference to various authorities, PLS noted the following (at 9): (a) “health care professionals working in prisons are at risk of violating principles of medical ethics, including ‘subtle, less spectacular situations’ than carrying out the death penalty or complicity in torture”; (b) “‘daily prison life cause health care professionals to forsake loyalty to their patient, often unwittingly or by failure to scrutinize routine procedures, decrees, or laws against the standards of medical ethics and human rights’” (quoting Jorg Pont, Heino Stover and Hans Wolff, “Resolving Ethical Conflicts in Practice and Research: Dual Loyalty in Prison Health Care” (March 2012) Am J Public Health vol 102 no 3 475 at 476); and (c) “employment arrangements of health professionals working under operational officials compromises their ability to exercise independent judgment”. [ 76 ] After alleging the above, the Complaint stated that Nurse Grujic “was not acting in the best interest of her patient Mr.

Toutsaint, and has been influenced by dual loyalty to her employer” (at 8). The Complaint concluded by saying that health care professionals “may become part of an institutional culture that prioritizes operations over the patient’s interests” (at 9). 4. Participation in acts that may constitute degrading treatment

[ 77 ] Finally, PLS referred to the United Nations’ Principles of Medical Ethics .

In that document, the following statement appears: Principle 2 It is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts which constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment. [ 78 ] PLS submitted, again in reliance on international instruments, that health care providers are prohibited “from participating, actively or passively, in the solitary confinement of prisoners if they have disabilities that would be exacerbated by its use, or in any case for more than 15 days” (Complaint at 10). [ 79 ] Given Mr.

Toutsaint’s significant disabilities, the Complaint alleged that Nurse Grujic “participated actively or passively in torture or cruel treatment by initiating a charge against Mr. Toutsaint and by providing a statement in support of the charge, which could have resulted in his solitary confinement for up to 30 days”. D. Nurse Grujic’s response to the PLS Complaint [ 80 ] Following receipt of the Complaint, the Saskatchewan Registered Nurses Association asked Nurse Grujic for her comments.

In her written response, Nurse Grujic acknowledged that it was optional for her to file the Charge Form, but she believed she was required to file a charge against Mr. Toutsaint. Therein lies the essential factual matrix that, in my view, the Committee was required to address. [ 81 ] This is Nurse Grujic’s response in its entirety: Charge forms are completed in order to promote safety within the institution. Although all staff have the option to complete the form it is the institutional head’s responsibility to decide if the charge is justified.

The institutional head is also required to take into consideration the offender’s mental health needs when deciding if the charge is valid and whether it is categorized as minor or serious. Mr. Toutsaint alleges that because I did not know if the charge would be considered minor or serious, I endangered his mental health. In his complaint he reports that he could have received segregation time as a punishment for this offense which could have worsened his mental health.

Although it is correct that I did not know how the charge would be classified, it was still necessary to report the offense as it is not tolerated within the institution . The next day, on March 12, 2019 Mr. Toutsaint’s offense was deemed minor and on May 27, 2019 he was given a $5.00 dollar fine. This is documented by a correctional manager on the inmate offence report I submitted. Contrary to his allegation I believe I did take into consideration Mr. Toutsaint’s mental health when submitting the report and had no ill intentions towards him when doing so. I empathize with Mr.

Toutsaint’s history of hardship and the state of his mental health at the time of this event. I do not believe that reporting this offence impacted my ability to grow and maintain a trusting and therapeutic relationship with Mr. Toutsaint. After this event took place, I continued to provide nursing care to Mr. Toutsaint regularly. Although he continued to have negative actions towards and/or around me, there were also positive interactions. When Mr. Toutsaint was in an agreeable mood, he would show me his artwork, make jokes, ask questions and share thoughts on different topics.

In my opinion, the professional client–nurse relationship between myself and Mr. Toutsaint did not change in any way after I submitted the offence report or after he was charged. As a registered nurse my patients are my priority. However, I believe that even when putting patients first it is important to maintain personal safety and the safety of those around. It is vital to report acts of violence in order to prevent them from becoming normalized within the institution . Working as a nurse in a correctional setting comes with its own set of challenges.

Workplace violence is one of those challenges and unfortunately is very commonly occurring. (Emphasis added) III. The COMMITTEE’S REASONS [ 82 ] The Committee’s reasons for not taking any action in relation to the Complaint are contained in the following passage ( Committee Decision at 2–3): After having considered all information gathered during the above investigative process, the Investigation Committee recommends to the Discipline Committee that this matter be Closed .

The reasons for the decision of the Investigation Committee to move this matter to Closed : Allegation #1: The member violated the ethical obligations of a Registered Nurse (RN) by participating in the discipline of a complainant who was an inmate “by initiating a charge of a disciplinary offence” .

Summary of Evidence: The member is an RN who works in corrections. The member has been a practicing nurse since November 2016 and has had no previous history with SRNA Complaints and Investigation. The complaint stems from an incident that occurred during the administration of medication. The complainant “became distressed and threatened to self-harm” when the member was not able to show them the package the medication came in. The complainant recalls the exchange between themself and the member as “heated”. The member then completed an offence report which could have resulted in “serious disciplinary charges”.

The member’s written response denied the allegations. The member outlined the steps taken regarding the interaction. The member did not

show the complainant the medication packaging and provided the rationale for this. The member followed procedure and notified mentalhealth staff so that the complainant could be attended to as needed. Documentation of the incident and notification of appropriateindividuals was completed as per protocol. Evidence supported that the member took required steps to promote safety within the institutionas defined in organizational procedures. The member indicated that the complainant’s past behavior related to threatening staff and self-harm was also a factor in their decision-making.

The member shared that they continued to provide care to the complainant noting that this interaction did not change the professionalnurse–client relationship with the complainant. In making this decision, the Investigation Committee has considered all the information and submissions before them, whether or not theyare specifically referred to in the conclusion. Conclusion There were conflicting details between the complainant and the member regarding the incident that occurred. Institutional policies werefollowed, and attempts were made by the member to de-escalate the situation.

No evidence was found to indicate that there was any self-harm by the complainant related to this incident. This matter does not meet the threshold for further investigation. The evidence does not support professional misconduct or professionalincompetence. Based on the evidence, the SRNA will not be proceeding with a formal investigation. A copy of this report pursuant to subsection 28(3) recommending no further action has been provided to the Discipline Committee, theCouncil of the SRNA, the report writer and the member who was the subject of the report. (Emphasis in original) IV.

THE CHAMBERS JUDGE’S REASONS [83] The Chambers judge was satisfied that “the [Committee] provided Toutsaint with the type of procedural fairness that waswarranted by the statutory scheme set out under the Act” (Chambers Decision at para 23).

He did so largely on the basis of his analysis ofthe Baker factors: see Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 [Baker]. [84] This is the Chambers judge’s review of the Baker factors: Factor 1 – The nature of the decision in this case [18] The IC [Committee] merely screens matters to determine if there is sufficient evidence of incompetence or misconduct to require thatthe matter be sent to a disciplinary hearing by the discipline committee.

As was stated by counsel on behalf of the SRNA, the decision ofthe IC is akin to the decision of a prosecutor to lay or not to lay a charge following receipt of a complaint. It is not a judicial function likeone that can be expected at the discipline hearing stage. Factor 2 – The nature of the statutory scheme [19]

Section 28 of the Act gives wide latitude to the procedures that can be used by the IC in investigating complaints brought before it.Section 28 states: 28(1) On the report, in writing, of any person alleging that a nurse is guilty of professional incompetence or professional misconduct, theinvestigation committee shall review the report for the purpose of deciding whether the discipline committee should hear and determine acomplaint with respect to the matter disclosed in the report.

(2) The investigation committee may investigate the report by taking any steps it considers necessary.

(3) The investigation committee shall make a written report to the discipline committee recommending that: (

a) the discipline committee hear and determine the complaint set out in the written report; or (

b) no further action be taken with respect to the matter under investigation. The statutory framework therefore provides the IC with the power to investigate the complaint and determine whether further actionwould be required. Factor 3 – The importance of the decision to the individual affected [20] The IC decision has little to no effect upon the individual complainant other than the fact that the complaint was considered not to beserious enough to proceed to discipline. The IC considered the complaint and Grujic’s response to the complaint prior to making thisdecision.

The IC would have been aware that the matters which gave rise to the complaint constituted a minor offence for which thecomplainant was only fined $5, and that there was no evidence of any other adverse consequences for the complainant. Factor 4 – The legitimate expectations of the complainant [21] The complainant would have had no expectation other than that Grujic would have had to respond, which she did.

Factor 5 – The choices of procedure laid out by the statute [22] In this case, the statutory framework under which the IC operated clearly set out the procedure to be followed in receiving the report, requiring the response of the nurse, Grujic, and determining whether further action including referral to discipline would be required.

The process does not require a discipline hearing in every case where a complaint is made. [ 85 ] From this, the Chambers judge concluded that the Committee had fulfilled its procedural fairness obligations: “Therefore, having reviewed all of the five factors from the Baker decision, I am satisfied that the [Committee] provided Toutsaint with the type of procedural fairness that was warranted by the statutory scheme set out under the Act ” (at para 23). V.

STANDARD OF REVIEW AND ISSUES [ 86 ] On an appeal from a judicial review decision, an appellate court’s task is to decide whether the reviewing judge selected the correct standard of review and correctly applied it to the decision being reviewed: see Akpan v The University of Saskatchewan Council , 2021 SKCA 129 at para 16 . Thus, at a high level, the issues on a judicial review appeal are always the same: (

a) Did the reviewing judge select the correct standard of review? (

b) Did the reviewing judge correctly apply that standard? It is in the assessment of the second question where significant questions, idiosyncratic to the particular area of law, can arise. [ 87 ] In this case, the Chambers judge, as the reviewing judge, correctly selected the standard of review of correctness (see paragraphs 12 to 14 of the Chambers Decision ).

However, when I step into the shoes of the Chambers judge, and assess the Committee’s reasons, I conclude that the Chambers judge did not correctly apply that standard. [ 88 ] For ease of understanding, I will begin with my review of the Committee Decision and indicate why I have concluded that the Committee did not accord Mr. Toutsaint procedural fairness in the assessment of the Complaint before expanding on my conclusion why the Chambers judge erred by not reaching this result. VI. ANALYSIS A.

The Complaint and the Committee’s obligation [ 89 ] I agree with my colleagues that the duty owed by the Committee to Mr. Toutsaint was limited, but it is not non-existent: Tran v College of Physicians and Surgeons of Alberta , 2018 ABCA 95 at para 6 , [2018] 5 WWR 446, and Makis v College of Physicians and Surgeons of Alberta (Complaint Review Committee) , 2019 ABCA 341 at para 24 . Even at the bare minimum, the Committee was required to consider the nature of the Complaint and to determine whether further action was necessary in relation to each important aspect of it.

In my respectful view, the Committee did not fulfill these basic tasks. B. Duty of Procedural fairness [ 90 ] The Complaint asked the Committee to address these four issues: (

a) Did Nurse Grujic breach her obligation as a health care professional to Mr. Toutsaint by fulfilling her obligation to her employer, i.e., the dual loyalties issue? (

b) Did Nurse Grujic participate in proceedings that could have resulted in cruel treatment by filing the Charge Form, knowing it could have, as a consequence, resulted in Mr. Toutsaint’s spending up to 30 days in solitary confinement? (

c) Did Nurse Grujic act in Mr. Toutsaint’s best interests by filing the Charge Form, knowing it could have resulted in Mr. Toutsaint’s spending up to 30 days in solitary confinement? (

d) Did Nurse Grujic disclose confidential information about Mr. Toutsaint by filing the Charge Form, disclosing that he had threatened self-harm? [ 91 ] In my view, the Committee did not engage with these issues. In coming to this conclusion, it is only fair to acknowledge that the Committee understood that the matter took place within the prison setting. I say this because this aspect of the context is mentioned twice in the Committee Decision (at 1 and 2): Allegations noted by Report Writer: 1. The member violated the ethical obligations of a Registered Nurse (RN) by participating in the discipline of a complainant who was an inmate “by initiating a charge of a disciplinary offence”.” …

Summary of Evidence: The member is an RN who works in corrections .

(Emphasis added) [ 92 ] It is also fair to note that the Committee’s reasons accurately summarized the essence of the Complaint. The Complaint is about an alleged violation of ethical obligations by initiating a charge of a disciplinary offence, but the Committee can be given no more than minimal credit for demonstrating its understanding. The Complaint is far more complex and multifaceted than the Committee Decision reveals. [ 93 ] I also acknowledge that it is not appropriate to parse a decision-maker’s reasons for error.

A reviewing court’s task is to take the overall sense of a tribunal’s reasons to evaluate whether the important issues have been addressed.

Nonetheless, as I read these reasons, I can find no basis to conclude that the Committee engaged with any of the identified issues. [ 94 ] Breaking down the reasons of the Committee, this is what it said in support of its conclusion that the file should be considered closed (at 3): (a) “There were conflicting details between the complainant and the member regarding the incident that occurred”. (b) “Institutional policies were followed …”. (c) “[A]ttempts were made by the member to de-escalate the situation”. (d) “No evidence was found to indicate that there was any self-harm by the complainant related to this incident”. (e) “The evidence does not support professional misconduct …”.

I will look at each of the above five phrases and outline why I have concluded they do not engage with the important issues raised by the Complaint. Taken individually, or collectively, these responses do not demonstrate that the Committee fulfilled its basic duty in this case. 1. Phrase one – conflicting details [ 95 ] Contrary to what the Committee found, Mr. Toutsaint and Nurse Grujic did not present appreciably different versions of what happened. Mr. Toutsaint had little recollection of the incident and the Complaint appears to have proceeded on the basis of Nurse Grujic’s recitation of the facts.

However, if a conflict had existed, finding so does not address the issues that the Complaint presented. A difference in the evidence might be considered a basis for further inquiries or a hearing. Otherwise, how, in the face of conflicting evidence, was the Complaint dismissed? 2. Phrase two – institutional policies [ 96 ] Phrase two does not address the Complaint, but rather confirms it. There were two institutional policies followed by Nurse Grujic on March 11, 2019: (

a) she filed a mandatory, administrative incident report, called a statement or observation report, and (b), as noted in her submissions to the Committee, she “decided to complete an inmate offence report and notification of charge form. … I decided to complete this form as this was not the first time Mr. Toutsaint was verbally aggressive towards myself or my co-workers”. Only the latter, discretionary, Charge Form could result in the commencement of an institutional disciplinary action.

The essence of the dual loyalties argument is that nurses owe their obligations to their profession and to the patient–prisoner and not to the institution. A statement that institutional policies were followed misses the point. The issue was whether a nurse, in the circumstances of this case, breached an ethical obligation by filing a second report, i.e., the Charge Form, resulting in potential disciplinary action. 3. Phrase three – de-escalation attempts [ 97 ] Attempting to de-escalate and then filing a Charge Form does not answer the issues raised by the Complaint.

The issue was whether Nurse Grujic breached her ethical obligations by filing the report. 4. Phrase four – Mr. Toutsaint did not harm himself [ 98 ] The Complaint directly raised the issue of whether Nurse Grujic had unethically disclosed confidential information about a therapeutic interaction for the purpose of discipline. This includes Mr. Toutsaint’s threat of self-harm. He could not be disciplined for threatening self-harm. This was a medical issue, requiring a medical intervention. Importantly, and to her credit, Nurse Grujic did not seek to justify her actions based on concern about Mr.

Toutsaint’s threat of self-harm. [ 99 ] The implication of this aspect of the Committee’s reasons is that if Mr. Toutsaint had harmed himself, it would make a difference to the outcome. Mentioning it serves to diminish the Complaint but does not show that the Committee engaged with the important issues. Instead, the converse is true. By giving this fact as a reason permits the inference that the Committee chose not to answer the pressing issues before it. In short, saying Mr.

Toutsaint did not harm himself is irrelevant to the question of whether Nurse Grujic breached her ethical obligations by filing the Charge Form. 5. Phrase five – evidence does not support professional misconduct [ 100 ] Phrase five is entirely conclusory and makes no effort to engage with the Complaint. 6. Conclusion on the Committee’s breach of procedural fairness [ 101 ] The Complaint alleged the following instances of unethical conduct on behalf of Nurse Grujic by her filing the Charge Form: (

a) she acted in a conflict of interest;

(

b) she initiated and participated in proceedings that could result in cruel treatment; (

c) she failed to act in Mr. Toutsaint’s best interests as her patient; and (

d) she unethically disclosed confidential information about a therapeutic interaction for the purpose of discipline. [ 102 ] In my view there is no basis to conclude that the Committee considered the nature of the Complaint or determined whether further action was required in relation to each of these important aspects of it. Instead, the whole tenor of the Committee’s reasons is that the Complaint was a minor matter of no consequence and not worthy of further investigation, notwithstanding conflicting details and the significant public interest component raised by it. C.

The Baker factors: Procedural fairness [ 103 ] I will not dwell too much on the reasons of the Chambers judge. However, I will review those aspects of the Chambers Decision as they relate to each of the Baker factors where I believe, with respect, that the Chambers judge fell into error: (

a) Factor 1 – the nature of the decision in this case – as my colleagues indicate, generally, an investigative committee appointed by a professional body charged with addressing questions of ethical breaches must address the important issues in the complaints filed with it. Since this is so, it understates the Committee’s obligation to say, as the Chambers judge commented, that it “merely screens matt

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