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Oct 1, 2008

Saskatchewan Association of Licensed Practical Nurses v. Whatcott

By Ryan White

The relationship between free speech rights and professional duties have often caused difficulties for professionals. The Saskatchewan Court of Appeal recently released a decision addressing the degree to which professional regulatory bodies can restrict the actions of their members during political protests. In Saskatchewan Association of Licensed Practical Nurses v. Whatcott (2008), 289 D.L.R. (4th) 506 (Sask. C.A.), the Saskatchewan Court of Appeal reviewed the decision of the Saskatchewan Association of Licensed Practical Nurses (SALPN) to suspend a member, William Whatcott, for picketing outside the office of Planned Parenthood Regina (PPR). While protesting, Whatcott carried signs accusing PPR of conducting abortions on-site and made a number of comments including, “Planned Parenthood will give you AIDS”, and those which accused PPR of performing abortions and of being a “baby killer”.

The issue was brought before the SALPN’s Discipline Committee after PPR made a complaint to the regulatory body. The PPR also brought an action for defamation against Whatcott. In June 2002, PPR obtained an injunction prohibiting Mr. Whatcott from making a number of assertions including incorrect accusations that PPR performed abortions on site, that PPR employees were murderers and abortionists, and that PPR was responsible for the spread of AIDS.

Decision

The Discipline Committee found that Whatcott had committed professional misconduct on the basis that his comments were both factually incorrect and defamatory, and that they would have the effect of harming the standing of the nursing profession in the eyes of the public. The Discipline Committee did not address Whatcott’s argument that his actions were constitutionally protected speech. In light of its findings, the committee suspended and fined him.

Whatcott appealed the Committee’s decision to the Court of Queen’s Bench. Applying a standard of reasonableness, the Court of Queen’s Bench concluded that Whatcott’s conduct would have a negative impact upon the public image of nurses in Saskatchewan and that his actions were a violation of the SALPN’s Code of Ethics. While the court found that s.24 of the Licensed Practical Nurses Act, 2000 – which governs professional misconduct and nursing in the province– infringed on Whatcott’s freedom of speech rights under s.2(b) of the Charter, it determined that this infringement was justified.

Whatcott appealed this decision of the Court of Queen’s Bench to the Saskatchewan Court of Appeal which overturned the Discipline Committee’s initial decision. In quashing the suspension, the Court of Appeal held that the lower court had erred in focussing on the constitutionality of s.24 of the Licensed Practical Nurses Act rather than on the impact of the Discipline Committee’s decision to suspend Mr. Whatcott. 

The Court of Appeal concluded that the suspension represented an infringement of Whatcott’s freedom of expression that could not be justified at law. It was held that there was no rational connection between the discipline ordered and Whatcott’s actions. The Court of Appal concluded that Whatcott had not identified himself as a nurse while picketing and that “few persons” would have known that he held such a title.

This finding can be contrasted with the decision in Kempling v. British Columbia College of Teachers, [2005] B.C.J. No. 1288 (B.C.C.A.), in which the British Columbia Court of Appeal upheld the suspension of a secondary school teacher who had published an article and several letters to the editor in a local newspaper containing statements found to discriminate against homosexual men. The discipline ordered by the British Columbia College of Teachers against Mr. Kempling was upheld by the Court of Appeal on the basis that the individual identified himself as a teacher and the speech in question could therefore be said to be capable of having a negative influence upon the public perception of teachers.

In contrast, Whatcott was identified only after PPR filed its complaint and the SALPN issued a press release on the issue.  The Court of Appeal held that any connection between Whatcott’s protest and his job, such as the fact that both were related to the provision of medical procedures, was “tangential at best” and that there was no evidence that the public would think less of nurses because of Whatcott’s behaviour. In the absence of a stronger connection to his job duties or evidence of harm to the profession’s public image it held that discipline was inappropriate.

SALPN sought leave to appeal the decision to the Supreme Court but were denied.

What Does this Decision Mean for Professionals in Ontario?

Whatcott provides some helpful clarification when attempting to determine whether a professional regulatory body has acted appropriately in disciplining a member. The Saskatchewan Court of Appeal made it clear that when assessing discipline it is not necessary to look at the constitutionality of the underlying statutes that govern professional conduct in a given profession. Rather, the impact of the disciplinary decision itself must be analysed to determine whether it infringes upon the constitutional rights of the member disciplined and whether such an infringement can be justified.

It should be noted that the Saskatchewan Licensed Practical Nurses Act defines professional misconduct differently from many similar statutes in Ontario. Under the SLPNA, misconduct is defined specifically and includes acts which are harmful to the best interests of the public or which would have a negative impact on the standing of the profession. In contrast, most Ontario regulations are defined broadly and make no direct reference to the public’s perception of the profession.

Instead, Ontario regulations prohibit acts which would be seen as “disgraceful, dishonourable or unprofessional” or conduct which is “unbecoming a member.” For example, O. Reg. 799.93 to the Nursing Act at s.1(37) prohibits: “Engaging in conduct or performing an act, relevant to the practice of nursing, that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.” It would seem that the definition of misconduct adopted in Ontario may be broad enough to encompass controversial public speech.

The different definitions may have the effect of lowering the burden placed upon regulatory bodies in professional misconduct cases. For example, whereas SALPN was required to provide evidence demonstrating that Whatcott’s actions would have a negative impact upon the public image of the profession, in Ontario it would only be necessary to show that actions were disgraceful, dishonourable or unprofessional.



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