The Appellant was charged with professional misconduct after publicly demonstrating with a group outside of the Planned Parenthood Sexual Health Centre in Regina. Prior to the hearing, the applicant sought a writ of prohibition to prohibit the Discipline Committee from proceeding with the hearing into his conduct on the grounds that his Charter rights would be infringed if the Discipline Committee determined that whatever occurred while he was picketing amounted to professional misconduct within the meaning of the Act. The court concluded that the Act provides an alternative remedy with rights of appeal for the member being disciplined and that the alternative remedy was adequate. The applicant’s application was dismissed in its entirety and the Association was awarded costs.

Administrative law – Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Charter of Rights – Remedies – Alternative remedies – Self-governing professions – Statutory provisions

Whatcott v. Saskatchewan Assn. of Licensed Practical Nurses, [2003] S.J. No. 54, Saskatchewan Court of Queen’s Bench, January 7, 2003, Gunn J.

The applicant was a member of the Association of Licensed Practical Nurses (the “Association”) and was charged with professional misconduct contrary to section 24 of the Licensed Practical Nurses Act, 2000, S.S. 2000, c. L-14.2 (the “Act”). From April to June 2002, the applicant publicly demonstrated with a group outside of the office of the Planned Parenthood Sexual Health Centre in Regina, Saskatchewan. The applicant carried signs and shouted slogans in opposition to planned parenthood. The applicant took photographs of the demonstration and intimidated patients and staff of the facility. The applicant admitted that patients were potentially denied their right to attend the Planned Parenthood Sexual Health Centre and that patients may have had their identity revealed through the taking of photographs. The Notice of Hearing charged the applicant of professional misconduct. The applicant sought a writ of prohibition to prohibit the discipline committee from proceeding with the hearing into his conduct on the grounds that his Charter rights would be infringed if the discipline committee determined that whatever occurred while he was picketing amounted to professional misconduct within the meaning of the Act. The Association took the position that the court should not entertain the application where there is a convenient alternative remedy provided in the Act. The Act provided for an elaborate and detailed complaints investigation and discipline process with access to the courts through rights of appeal for the member being disciplined. In determining that the Act provides an alternative remedy which should be pursued, the court referred to the words of Mr. Justice Beetz in Harelkin v. University of Regina, [1979] 3 W.W.R. 676 (S.C.C.), which Mr. Justice Beetz wrote for the majority:

In order to evaluate whether the appellant’s right of appeal to the senate committee constituted an adequate alternative remedy and even a better remedy than a recourse to the courts by way of prerogative writs, several factors should have been taken into consideration, among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by a body which was not a professional court of appeal and was not bound to act exactly as one nor like to do so. Other relevant factors include the burden of a previous finding, expeditiousness and costs.

The court then referred to Canadian Pacific Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3 at 31, where Lamer C.J. sets out the factors to be considered in determining whether or not to enter into a judicial review:

…[T]he convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). I do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant.

The applicant’s application was dismissed in its entirety and the Association was awarded costs.

To stay current with the new case law and emerging legal issues in this area, subscribe here.