Risky Resolutions

Negotiated resolutions are generally considered a good thing, including in the discipline hearing context. They generate an almost certain outcome, without the risk of unpredictable litigation. They save registrants and witnesses from the stress of a hearing. Also, registrants are more likely to alter their behaviour when they agree to remediation rather than having a discipline order imposed on them.

However, a recent decision indicates that there may be a risk to regulators in pursuing negotiated solutions: Thmbran v The British Columbia College of Nurses and Midwives (BCCNM), 2024 BCSC 441 (CanLII). There the regulator investigated a complaint against a nurse, who was the Director of Care at a residential facility, for not responding appropriately to sexually assaultive behaviour by a cognitively impaired resident. On two separate occasions, the regulator attempted to negotiate a consent order. On both occasions the nurse refused, stating that the allegations were false and insisting on having the opportunity to clear her name at a discipline hearing. Steps were taken to initiate the discipline process, including publishing the allegations against the nurse. However, in the course of preparing for the hearing, the regulator determined that the outcome was too uncertain and unilaterally issued a Letter of Expectations to the nurse, effectively ending the process.

The nurse sued the regulator and various of its representatives for malicious prosecution, defamation (referrable to the published notice of the planned discipline hearing), and misfeasance in public office, among other things. The regulator and its representatives tried to end the lawsuit on a summary basis on the grounds that the pleadings and evidence disclosed no cause of action and because the immunity provision protecting them, other than for malicious acts or bad faith, applied.

The Court permitted the action to proceed against those most involved in the handling of the complaint. The Court concluded that there was a possibility of establishing malice or bad faith given the cumulative history of the handling of the matter. While the Court was concerned about the alleged inadequacy of the investigation, the fairness of the summaries of the investigation, disclosure issues, and the failure to schedule a pre-hearing conference, those did not appear to be the core issues. Rather, the Court was most troubled by the fairness of the content (i.e., requiring the nurse to agree to facts apparently not established by the investigation) and manner (i.e., indicating possible consequences if there was no agreement) of the resolution proposals and then the effective withdrawal of the allegations, denying the nurse an opportunity to vindicate herself at a discipline hearing.

The nurse has a long way to go to establish bad faith at trial. The regulator may well have reasonable explanations for its approach to the complaint. There will likely be complex legal issues about the privileges that protect settlement discussions, regulatory committee deliberations, and legal advice. However, what is most surprising is that an assertion of bad faith can potentially be founded on resolution discussions. Resolution discussions are intended to be frank and forthright, without the parties having to worry about their communications being later used against them. Hopefully a subsequent court will provide guidance as to whether, or when, those discussions can constitute bad faith.

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