In Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513, the Court considered two applications for judicial review of decisions of the Inquiries Complaints and Reports Committee (ICRC) of the CNO regarding statements made by Nurse Practitioner Pitter and Registered Nurse Alviano on social media (Facebook). The statements were made in the early months of the Covid pandemic and pertained largely to masking and vaccination. The statements were contrary to public health guidelines and contained what the ICRC considered to be potentially harmful misinformation
The ICRC directed that both nurses appear to be cautioned with respect to CNO practice standards and that they each attend remedial education programs (SCERP’s). The nurses both applied for judicial review, arguing that the decisions of the ICRC were unreasonable as the Committee did not undertake a robust analysis of the nurses’ right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”).
The Framework for Consideration of Charter Violations
The two-step framework for administrative decision makers to consider alleged Charter violations was set out by the Supreme Court of Canada in Doré v. Barreau du Québec, 2012 SCC 12, and Loyola High School v. Quebec (Attorney General), 2015 SCC 12. It requires the administrative decision-maker to consider and answer the following two questions:
As with other issues raised on an application for judicial review, the standard of review is reasonableness.
Application of the Framework in this Case
In this case, the ICRC expressly stated in its decision that it had considered the potential impact of its decision on the s.2(b) Charterrights of the Applicant nurses. The ICRC appropriately applied the framework outlined by the SCC, first identifying its statutory objective which is to protect the public interest (as stated in s.3(2) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1992, S.O. 1991 c. 18).
The Committee then considered the specific statements made by the nurses, which were misleading and contained misinformation about potential harms related to the Covid-19 vaccine based in conspiracy theories. The Committee appropriately considered that both Applicant nurses identified themselves as nurses, which put the public at risk of being guided by false information and also called into question the reputation of the profession.
The Committee decided to take remedial action only after balancing the statutory objective with applicant’s right to freedom of expression.
The Court stated that while the ICRC’s Charter analyses were not lengthy, they were none the less reasonable. The Court highlighted that the ICRC is a screening committee composed of members of the profession (in this case, nurses), and members of the public. The Committee does not hear witnesses or receive sworn evidence, and the parties do not make oral submissions. Instead, the Committee relies on the documentation gathered in the course of the investigations and written submissions from the complainant nurse(s).
The Court further stated that as previously held by the SCC in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, a review of the reasonableness of the decision is expected to reflect the stakes of the decision to the impacted individual. The harsher the consequence of the decision is on the individual, the higher the onus on decision-maker to explain the reasons for its decision.
In this case, the Court noted that the two nurses made only passing comments regarding their Charter rights in their written submissions, and decisions of the ICRC to require the nurses to attend cautions and complete remedial and educative programs were not disciplinary in nature. In these circumstances, it is reasonable that the reasons for the decision be less detailed.
The Court determined that the decision of the ICRC was reasonable, and dismissed both of the nurses’ applications for judicial review.
This decision is of assistance to regulatory bodies and members alike as it provides a clear and concise overview of the framework for consideration of alleged Charter violations by administrative decision-makers, as well as the factors considered by the Court when assessing the reasonableness of the decision on judicial review.
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