Regulating Professionals On Social Media

• Published date: 14 November 2020
• Subject Matter: Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Trials & Appeals & Compensation, Social Media
• Law Firm: MLT Aikins LLP
• Author: Ms Sharon Au, Walter Pavlic, Q.C. and Jessica Reid

To what extend do professionals have the right to express their personal views outside of their professional lives?

In the recent decision of Strom v Saskatchewan Registered Nurses' Association, 2020 SKCA 112, the Saskatchewan Court of Appeal provided further clarity regarding the degree of analysis expected of professional regulators in assessing whether a member's off-duty comments amounts to professional misconduct.

Background

Carolyn Strom, a registered nurse was licensed by the Saskatchewan Registered Nurses' Association ('SRNA'). While on maternity leave, and following the death of her grandfather, Ms. Strom posted critical comments on Facebook about the level of care received by her grandfather in his final days at a long-term care home and long-term care in general. Ms. Strom also posted a link to an article about end-of-life care and tweeted the posts to the Saskatchewan Minister of Health and the Saskatchewan Opposition Leader.

Ms. Strom was found guilty of professional misconduct by the SRNA Discipline Committee for the public Facebook posts. The Discipline Committee focused on the fact that she did not go through proper channels to voice her concerns. As she identified herself as a registered nurse in the Facebook posts, the Discipline Committee found that Ms. Strom's posts harmed the nursing profession's reputation. The Discipline Committee found that although its decision infringed on Ms. Strom's freedom of expression, the infringement was justified as the Discipline Committee needed to ensure that nurses advocate in a professional manner. The Saskatchewan Court of Queen's Bench subsequently affirmed the Discipline Committee's decision.

Saskatchewan Court of Appeal Decision

On appeal, the Saskatchewan Court of Appeal overturned both the lower court's and the Discipline Committee's decisions. They held that in order to determine whether off-duty comments amount to professional misconduct, a regulator must look at the entire context behind the comments. The Saskatchewan Court of Appeal found that the Discipline Committee failed to do this thereby missing key factors including: Ms. Strom was grieving the loss of her grandfather; that she also made comments praising certain staff members; and that her posts were intended to raise awareness on improving palliative care in Canada in general. The tone, content and purpose of the post were all important factors to consider when determining whether Ms. Strom's off-duty conduct would be considered...