Good faith or unfair attack? Saskatchewan appeal court to rule on nurse’s Facebook posts

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Judges will decide whether she had the right to comment on grandfather’s health care

CBC News · Posted: Sep 17, 2019 5:00 AM CT | Last Updated: September 18, 2019

The nurse who was found guilty of professional misconduct over a Facebook post will soon learn whether she had the right to make those comments.

Three judges of the Saskatchewan Court of Appeal reserved their decision Tuesday on the matter until a later date.

The court heard the Facebook post was made in good faith and was an exercise of her free speech. 

Court also heard that the post may constitute fake news, although that wasn’t discussed at a lower court hearing, and that there are no charter rights that protect unprofessional conduct.

Post violated social media policy

In 2015, Carolyn Strom wrote a post on Facebook criticizing the health care her grandfather received while in palliative care. 

In the post, Strom said staff at St. Joseph’s Integrated Health Centre in the town of Macklin, about 225 kilometres west of Saskatoon, needed to do a better job of looking after elderly patients.

“It is evident that not everyone is ‘up to speed’ on how to approach end-of-life care … or how to help maintain an aging senior’s dignity (among other things!),” read part of the Facebook post.

Some of the nurses in the hospital felt Strom’s post was a personal attack and complained. The Saskatchewan Registered Nurses Association ruled the post brought the nursing profession into disrepute and violated its social media policy.

Strom was found guilty of professional misconduct and given a $1,000 fine by the association and was ordered to pay $25,000 in tribunal costs. 

She appealed the ruling but her appeal was dismissed because the judge could find no reason to interfere with the association’s decision, setting the stage for Tuesday’s appeal hearing.

‘Made in good faith’

On Tuesday, Strom’s lawyer Marcus Davies argued her comments never mentioned nurses — just staff.

He said there were roughly 40 staff at the health centre, and it’s hard to know specifically who Strom was referring to. 

Davies also argued the comments were made in good faith, and that she exercised her right to free speech.

“In the discipline committee, it says, ‘It is accepted that Ms. Strom was not driven by malice,'” Davies said. “Well, that means her comments were made in good faith, if she was not driven by malice, then she was driven by good faith.”

The nurses association argued Strom should have gone through the correct channels and lodged an official complaint. 

‘Fake news’

Roger Lepage represented the Saskatchewan Registered Nurses Association at Tuesday’s hearing.

He took the position that there is no charter right protecting unprofessional conduct and that there is no right for individuals to harm the reputation of other individuals.

Lepage argued that Canadians would be harmed if nurses would be able to say whatever they wanted about the health-care system. 

He argued Strom’s post qualifies “fake news,” but the judges presiding stated the previous hearing never found Strom’s comments to be untrue, and said Lepage himself shut down that argument then.

Lepage argued Strom’s post amounted to venting on social media and that other staff members “had their hands tied” by professional ethics.

Lepage also argued that Strom’s post was not free speech or part of the public discourse, but rather an attack on an individualized group.

“If you read her post, it’s very personal, she’s zeroing in on St. Joseph’s, she’s zeroing in on Macklin, she’s zeroing in on identifiable people who work there, the staff,” Lepage said. 

“That’s what takes this out of the protection that Ms. Strom would ask of this court and was asking of the discipline committee.”

Lepage said that Strom should have filed a formal complaint with the Saskatchewan Health Authority, but didn’t.

‘I wish it didn’t have to be this hard’

Strom spoke with reporters outside court on Tuesday, after the judges decided to reserve their decision.

When asked if she regretted making the posts on Facebook, Strom said she will always stand up for her family and she had no regrets about it. 

“What I don’t think is fair is … what this has turned into,” Strom said. “I didn’t expect this… I wish it didn’t have to be this hard.”

She said she was shocked to hear Lepage comment Canadians would be hurt if nurses were able to say what they want, when they want. 

Strom responded to accusations that she was a liar and didn’t have her facts right, made by the Saskatchewan Registered Nurses Association’s legal representation, and said they were false.

“I just cannot believe that, that was low, that was false, and I just don’t understand how people get away with that,” Strom said. “There was absolutely no reason for that to have been said.”

Strom, who is working as a nurse part time in Prince Albert, Sask., said the court case has led her to question whether she wants to be a nurse. 

Strom said she couldn’t decide today whether she would carry on the case if the judges don’t rule in her favour.

“It will depend; every step is different and it gets harder every time, with respect to the toll that it takes to recover from all of this,” she said. “It’s just so hard to stay composed when you’re so involved.”

3 groups intervene

Three groups have applied for intervener status in the case, including the British Columbia Civil Liberties Association, the Saskatchewan Union of Nurses and the Canadian Constitution Foundation.

The Saskatchewan Union of Nurses (SUN), represented by Ronni Nordal, was the first group to speak on behalf of the interveners.

SUN argued the post was directed specifically at the St. Joseph’s Integrated Health Centre, not at the nurses generally. 

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SUN argued there was no factual basis for which a finding of professional misconduct could be found.

SUN also argued that one of Saskatchewan Registered Nurses Association’s statutory mandates is to promote the standing of the registered nurse professionally, not to defend or protect individual nurses, and the organization’s argument was not rationally connected to its mandate.

The B.C. Civil Liberties Association, represented by Greg Fingas, argued the informal nature of social media meant that speech should not be compared to a letter from a judge.

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The Canadian Constitution Foundation argued citizens should be allowed to express opinions and criticize health care and services without punishment and noted that because public health care dominates public policy, people should be allowed to speak about it. 

The federation also asked the court to consider what kind of precedent this decision sets for all professionals who want to share their opinions or concerns.