In a discipline hearing, procedural fairness is intended to ensure that the registrant knows the concerns and has a full opportunity to respond to them. However, the registrant has some obligation to be fair to the tribunal too. For example, it is unfair for a registrant to agree to a procedure (or, at least, not object to it) and then argue on appeal that the tribunal should have acted otherwise. This theme recurs frequently in Llewellyn v. College of Registered Nurses and Midwives of P.E.I., 2024 PESC 41 (CanLII).
A nurse was found to have breached standards of practice and engaged in professional misconduct by engaging in threatening and inappropriate behavior towards a facility resident. The resident had earlier been aggressive towards the nurse (including shoving his walker into her legs leaving bruises). The Court upheld the finding and the sanction (which included a four-month suspension and terms and conditions). In responding to several grounds of appeal, the Court made the following points.
- The nurse could not argue on appeal that the discipline panel acted beyond the scope of the notice of hearing where the nurse fully responded (including with evidence and argument) to the full course of events without objection. It was appropriate in the circumstances for the panel to address the entire series of transactions on the relevant date and not just the main incident when the resident returned to the facility.
- The nurse could not argue on appeal that the panel should not have relied on hearsay evidence contained in a joint book of documents filed in evidence without raising the issue at the hearing. In any event, less formal rules of evidence were permitted under the relevant statute.
- The nurse could not argue on appeal that the panel should have provided reasons for its finding of misconduct before receiving submissions on sanction when the process had been discussed at the beginning of the hearing and the nurse made submissions without objection once the finding was made. The nurse had been notified of the finding itself before filing submissions on sanction.
- The statutory obligation to provide reasons for decision within 60 days of the end of the hearing was not mandatory. There were no consequences specified for missing the deadline. The reasons were only a month late and an explanation was offered for the delay. “The Courts have found that where a discipline committee is performing a public duty, rather than resolving a dispute between two private individuals, the complainant, the public and the profession would all suffer injustice and inconvenience if the provision was regarded as mandatory.”
- While the reasons for the panel’s decision were not what a Court might have written, it was evident that the panel did not conclude that every breach of standards always constitutes professional misconduct.
- The sanction did not contain an error in principle. It was appropriate for the panel to consider the prior finding against the nurse, including that the nurse had not fulfilled the previously required conditions. (NB no stay was sought during the nurse’s appeal of the previous order.) It was also appropriate for the panel to give less weight to unsigned letters of support where it was not clear what the authors knew about the nurse’s conduct history or the current findings.
It seems that courts are increasingly resistant to issues being raised for the first time on appeal.