Bailey et al. v. Saskatchewan Registered Nurses' Association, (1998) 167 Sask.R. 232 (QB)

• Judge: Grotsky, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 20, 1998
• Jurisdiction: Saskatchewan
• Citations: (1998), 167 Sask.R. 232 (QB)

Bailey v. RNA (1998), 167 Sask.R. 232 (QB)

MLB headnote and full text

Temp. Cite: [1998] Sask.R. TBEd. JN.013

In The Matter Of an appeal pursuant to section 34 of the Registered Nurses Act, 1988 by the appellants Mary Ann Bailey, Beverley Knezacek and Marion (Joan) Lebastard of a decision of the Discipline Committee of the Saskatchewan Registered Nurses' Association dated the 16th day of January 1995.

Mary Ann Bailey, Beverley Knezacek and Marion (Joan) Lebastard (appellants) v. The Saskatchewan Registered Nurses' Association (respondent)

(1995 Q.B. No. 514)

Indexed As: Bailey et al. v. Saskatchewan Registered Nurses' Association

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Grotsky, J.

April 20, 1998.

Summary:

The Discipline Committee of the Saskatchewan Registered Nurses' Associ­ation found three registered nurses guilty of pro­fessional incompetence and/or pro­fessional misconduct. The nurses appealed.

The Saskatchewan Court of Queen's Bench, in a judgment reported 135 Sask.R. 14, allowed the appeals. The Association appealed. At issue was the admissibility of affidavits filed in support of a claim of bias against the Association.

The Saskatchewan Court of Appeal, in a judgment reported 137 Sask.R. 244; 107 W.A.C. 244, allowed the appeal and remitted the matter to the trial court for adjudication on the admissibility issue and reconsider­ation on the merits.

The Saskatchewan Court of Queen's Bench, in a judgment reported 142 Sask.R. 1, determined the portions of the affidavits that were inadmissible. Subsequently, in a judgment reported 145 Sask.R. 133, the court allowed the appeal and quashed the findings of guilt, holding that the nurses were denied natural justice and procedural fairness. The court held that the Discipline Committee's decision was null and void and ordered that the charges against the nurses could not be raised again. The court awarded the nurses solicitor and client costs. The Association appealed. The nurses applied for an order staying the decisions of the Disci­pline Committee under s. 36 of the Regis­tered Nurses Act and reinstatement of their licences. The court, in a judgment reported 146 Sask.R. 6, held that it lacked jurisdiction to provide the relief sought by the nurses. The Association appealed.

The Saskatchewan Court of Appeal, in a judgment reported 148 Sask.R. 156; 134 W.A.C. 156, allowed the appeal. The funda­mental requirement of audi alteram partem was violated when the Association was not permitted to file a response. The court set aside the decision below, including the costs disposition and remitted the matter for a de novo hearing. The nurses again applied to stay the decisions of the Discipline Commit­tee under s. 36 of the Act and for reinstate­ment of their licences.

The Saskatchewan Court of Queen's Bench, in a judgment reported 151 Sask.R. 291, allowed the application. The nurses then applied to have the court read and consider several affidavits and supplementary affida­vits in support of their bias argument.

The Saskatchewan Court of Queen's Bench, in a judgment reported 153 Sask.R. 27, held that the affidavits, as edited by the court to remove portions which violated the rules of evidence or were not relevant, could be considered by the court on appeal. The nurses asked the court to reconsider its decision to strike a particular paragraph from the affidavit of one of the nurses (Bailey).

The Saskatchewan Court of Queen's Bench, in a judgment reported 154 Sask.R. 201, allowed the application and varied its judgment accordingly. Subsequently, the Association filed six affidavits in response to the nurses' affidavits. At issue was the ad­missibility of these affidavits.

The Saskatchewan Court of Queen's Bench, in a judgment reported 161 Sask.R. 23, determined which portions of the affida­vits were admissible. The appeal was subsequently heard by the court.

The Saskatchewan Court of Queen's Bench allowed the appeal, quashed the findings of guilt and set aside the penalties imposed. The nurses were denied procedural fairness and a fair hearing where, inter alia, the investigation committee and discipline com­mittee failed to make full and timely dis­closure of all documents, should have granted the nurses a requested adjournment and where the nurses should have been tried in a hearing room with adequate facilities, including adequate interview rooms. The court ordered a prohibition against further proceedings respecting the subject charges. The court rejected the nurses' request for solicitor and client costs.

Administrative Law - Topic 525

The hearing and decision - Conduct of hearing - Facilities - Three nurses disci­plined by their Association's discipline committee submitted, on appeal, that improper facilities for conducting the hearing breached the rules of natural jus­tice - The room was arranged so that the nurses could not see the witnesses and Committee members at the same time - Access to their counsel was impeded, necessitating adjournments for consulta­tions in a public hallway - The hearings were frequently interrupted by other per­sons in the building - The Saskatchewan Court of Queen's Bench held that improper facilities for conducting the disciplinary hearing breached the rules of natural jus­tice - See paragraphs 146 to 155.

Administrative Law - Topic 526

The hearing and decision - Conduct of hearing - Adjournments - Three nurses disciplined by their Association's discipline committee submitted, on appeal, that the committee erred in refusing to grant an adjournment to permit their counsel to review a late disclosed file before cross-examining a witness - The committee told counsel to review the file over the lunch hour - The Saskatchewan Court of Queen's Bench held that an adjournment should have been granted - The denial of an adjournment may have affected the nurses' right to make full answer and defence to the disciplinary charges - See paragraphs 156 to 168.

Administrative Law - Topic 547

The hearing and decision - Decisions of the tribunal - Reasons for decisions - When required - The Saskatchewan Court of Queen's Bench stated that "at common law, the full reasons for a decision are not obligatory unless required by statute. Where reasons are required by statute, they must be proper, adequate and intelligible so as to enable an assessment to be made of the availability of grounds for review ... To determine whether a given set of rea­sons are adequate one should consider the following factors: (1) the statutory context; (2) the nature of the case; (3) the issue involved; (4) the nature of the tribunal or board. Adequate reasons should: (1) dem­onstrate that a party's case has been heard and understood; (2) inform the reviewing judge of the basis for the decision; (3) negate perceptions of arbitrariness or un­fairness. I should add that failure to pro­vide proper reasons [may] form a ground for review [appeal] even where reasons are not required by statute." - See paragraphs 79 to 80.

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Suffi­ciency of - [See Administrative Law - Topic 547 ].

Administrative Law - Topic 549

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Suffi­ciency of - Three nurses disciplined by their Association's discipline committee submitted, on appeal, that proper written reasons for the decision were not delivered by the committee - The Saskatchewan Court of Queen's Bench, in rejecting this ground of appeal, stated that the reasons for decision must be proper, adequate and intelligible (i.e., sufficient to assess the availability of grounds for review) - The court held that although the reasons were brief, they were proper, adequate and intelligible - The reasons provided dem­onstrated that the nurses' cases had been heard and understood, informed the re­viewing judge of the basis for the deci­sions and negated any perception or arbitrariness or unfairness - See para­graphs 75 to 86.

Administrative Law - Topic 608

The hearing and decision - Disclosure by tribunal - To parties of material used or relied upon by the tribunal in making its decision - Three nurses appealed a disci­plinary decision by the discipline commit­tee on the ground of, inter alia, nondisclosure of relevant documents by the investigation committee - The Sask­atchewan Court of Queen's Bench held that the nondisclosure of relevant docu­ments constituted a denial of natural jus­tice and procedural fairness - The nondis­closed documents were relevant and may have affected the conduct of the nurses' case - Once the nurses became aware of the documents, they diligently pursued dis­closure of those documents - The fail­ure to pursue disclosure of other docu­ments (existence not known to nurses) was not fatal to their claim - See paragraphs 122 to 145.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal - Bias - Apprehension of - The Discipline Committee of the Saskatchewan Registered Nurses' Association found three nurses guilty of professional incompetence and/or professional misconduct - The nurses alleged a reasonable apprehension of bias resulting from the role of the Association's counsel - Counsel acted as counsel for the Investigation Committee and as prosecutor before the Discipline Committee - Counsel trained members of both Committees and was familiar with some of them - The Saskatchewan Court of Queen's Bench stated that the court had serious concerns about the independence and impartiality of the Association and of both the Investigation and Discipline Committees in this case - See paragraphs 169 to 185.

Administrative Law - Topic 2096

Natural justice - Constitution of board or tribunal - Bias - Waiver - Three nurses appealed a disciplinary decision by the discipline committee on the ground of, inter alia, a reasonable apprehension of bias by the committee - The respondent Nurses' Association claimed that the nurses failure to object before the committee on the grounds of bias constituted a waiver of their right to object - The Saskatchewan Court of Queen's Bench held that there was no waiver, where, inter alia, the nurses did not have all the facts relating to the alleged bias at the time of the hearing - This was not a case of a considered deci­sion not to object and then an attempt to have the decision set aside and reheard after an adverse decision was handed down - See paragraphs 19 to 30.

Administrative Law - Topic 2266

Natural justice - The duty of fairness - Procedural fairness - What constitutes - Three nurses disciplined by their Associa­tion's discipline committee submitted, on appeal, that they were "denied procedural fairness by reason of the training together of the discipline committee, and the inves­tigation committee ...; by the fact that counsel for the investigation committee took part in the training programs for the discipline committee and the investigation committee; by the fact that counsel for the investigation committee is also counsel for the [Association]; and by the composition of the panel of the discipline committee which heard the cases against them" - The Saskatchewan Court of Queen's Bench held that there was no denial of procedural fairness - See paragraphs 87 to 92.

Administrative Law - Topic 2278

Natural justice - The duty of fairness - Remedies - General - The Saskatchewan Court of Queen's Bench allowed an appeal from the decision of the Discipline Com­mittee of the Saskatchewan Registered Nurses' Association on the ground that the Committee breached the rules of natural justice and denied the nurses procedural fairness - The court held that it had the inherent jurisdiction to order a prohibition of further proceedings on the subject com­plaint - A prohibition order was made where the denial of the nurses' right to a fair hearing could not be cured by a new disciplinary hearing - See paragraphs 189 to 194.

Administrative Law - Topic 2481

Natural justice - Procedure - At hearing - General - Three nurses disciplined by their Association's discipline committee sub­mitted, on appeal, that the discipline com­mittee erred in permitting support persons to sit next to investigation committee witnesses - The Saskatchewan Court of Queen's Bench dismissed this ground of appeal - The support persons did not prompt the witnesses, influence them or disrupt the disciplinary proceedings - See paragraphs 93 to 96.

Medicine - Topic 6948

Nurses - Discipline - Hearing - Costs - The Saskatchewan Court of Queen's Bench quashed a decision of the Discipline Com­mittee of the Saskatchewan Registered Nurses' Association finding three nurses guilty of professional incompetence and/or misconduct, on the ground that the com­mittee breached the rules of natural justice and denied the nurses procedural fairness - The nurses sought solicitor-client costs for the hearing and the multitude of court proceedings culminating in the quashing of the disciplinary decision - The court declined to award solicitor-client costs absent a finding that the conduct of the discipline committee was reprehensible, scandalous or outrageous - See paragraphs 195 to 208.

Medicine - Topic 6951

Nurses - Discipline - Hearing - Duty of fairness - The Saskatchewan Court of Queen's Bench quashed a decision of the Discipline Committee of the Saskatchewan Registered Nurses' Association finding three nurses guilty of professional incom­petence and/or misconduct - The court stated that "inter alia, the investigation committee, and the discipline committee, ought to have made full, and timely dis­closure, of the documents in their posses­sion. The discipline committee ought to have granted counsel for the [nurses] the adjournment sought by her in the circum­stances. The [nurses] ought to have been tried in a hearing room with adequate facilities, including adequate interview rooms. The [nurses] ought to have been treated fairly.".

Medicine - Topic 6956

Nurses - Discipline - Judicial review - Scope of - [See Administrative Law - Topic 2278 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Enti­tlement to - Improper, irresponsible or unconscionable conduct - [See Medicine - Topic 6948 ].

Cases Noticed:

Brand v. College of Physicians and Sur­geons (Sask.) (1990), 86 Sask.R. 18 (C.A.), dist. [para. 22].

Wasylyshen v. Law Society of Saskatchewan (1985), 39 Sask.R. 187 (C.A.), refd to. [para. 22].

Wasylyshen v. Law Society of Saskatchewan, [1987] 3 W.W.R. 289; 53 Sask.R. 232 (C.A.), refd to. [para. 22].

Mackey v. Board of Chiropractors (Sask.) (1987), 60 Sask.R. 163 (Q.B.), refd to. [para. 22].

Laporte v. Saskatchewan Government Employees' Union, [1997] 155 Sask.R. 100 (Q.B.), refd to. [para. 29].

R. v. R.D.S. (1997), 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241 (S.C.C.), refd to. [para. 29].

Gale v. Miracle Food Mart (1993), 12 Admin. L.R.(2d) 267 (Ont. Div. Ct.), refd to. [para. 29].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 29].

Huerto v. College of Physicians and Sur­geons (1994), 124 Sask.R. 33; 117 D.L.R.(4th) 129 (Q.B.), affd. (1996), 141 Sask.R. 3; 114 W.A.C. 3; 133 D.L.R.(4th) 100 (C.A.), refd to. [para. 29].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6; [1988] 1 W.W.R. 481; 44 D.L.R.(4th) 1, refd to. [para. 73].

Joubert v. Rosetown (Town) and Sled (1987), 60 Sask.R. 200 (C.A.), refd to. [para. 73].

Miller v. Saskatchewan Psychiatric Nurses' Association (1992), 103 Sask.R. 61 (Q.B.), refd to. [para. 73].

Page v. Saskatchewan Registered Nurses' Association (1983), 26 Sask.R. 108 (Q.B.), refd to. [para. 73].

Camgoz v. College of Physicians and Surgeons (Sask.) (1993), 114 Sask.R. 161 (Q.B.), refd to. [para. 73].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 8 C.R.(4th) 277, refd to. [para. 73].

Markandey v. Board of Ophthalmic Dis­pensers (Ont.), [1994] O.J. No. 484 (Gen. Div.), refd to. [para. 73].

Hammami v. College of Physicians and Surgeons (B.C.), [1997] B.C.T.C. Uned. A95 (S.C.), refd to. [para. 73].

Ciba-Geigy Canada Ltd. v. Canada (Pat­ented Medicine Prices Review Board), [1994] F.C.J. No. 884 (F.C.A.), refd to. [para. 73].

Knutson v. Saskatchewan Registered Nurses' Association (1990), 87 Sask.R. 90 (Q.B.), refd to. [para. 73].

Gilliss v. Barristers' Society of New Brunswick (1986), 68 N.B.R.(2d) 165; 175 A.P.R. 165 (C.A.), refd to. [para. 73].

United Enterprises Ltd. v. Liquor and Gaming Licensing Commission (Sask.) et al. (1996), 150 Sask.R. 119 (Q.B.), refd to. [para. 73].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1; 140 D.L.R.(4th) 577, refd to. [para. 73].

Stephen v. College of Physicians and Sur­geons (Sask.) (1989), 76 Sask.R. 57; 61 D.L.R.(4th) 496 (C.A.), refd to. [para. 73].

Green v. College of Physicians and Sur­geons (Sask.) (1986), 51 Sask.R. 241 (C.A.), refd to. [para. 73].

Sen v. College of Physicians and Surgeons (Sask.) (1969), 69 W.W.R.(N.S.) 201 (Sask. C.A.), refd to. [para. 73].

Mason v. Registered Nurses' Association (B.C.) (1979), 102 D.L.R.(3d) 225 (B.C.S.C.), refd to. [para. 73].

Matheson v. College of Nurses of Ontario (1979), 107 D.L.R.(3d) 430 (Ont. Div. Ct.), refd to. [para. 73].

Sugarman v. Saskatchewan Association of Optometrists (1990), 86 Sask.R. 207 (Q.B.), refd to. [para. 73].

Bailey v. Saskatchewan Registered Nurses' Association (1994), 124 Sask.R. 79 (Q.B.), refd to. [para. 73].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 73].

Hawrish v. Cundall et al. (1989), 76 Sask.R. 208 (Q.B.), refd to. [para. 73].

Holt v. Manitoba Registered Psychiatric Nurses' Association et al. (1992), 84 Man.R.(2d) 8 (Q.B.), refd to. [para. 73].

Katz v. Vancouver Stock Exchange et al. (1995), 82 B.C.A.C. 16; 133 W.A.C. 16; 128 D.L.R.(4th) 424 (C.A.), affd. [1996] 3 S.C.R. 405; 207 N.R. 72; 82 B.C.A.C. 29; 133 W.A.C. 29, refd to. [para. 73].

Mantei v. Workers' Compensation Board (Sask.) et al. (1996), 147 Sask.R. 204 (Q.B.), refd to. [para. 73].

Moore-Stewart v. Law Society of British Columbia (1988), 54 D.L.R.(4th) 482 (B.C.C.A.), refd to. [para. 73].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 89 D.L.R.(3d) 161, refd to. [para. 73].

Paquin v. League of Educational Adminis­trators, Directors and Superintendents (Sask.) (1996), 145 Sask.R. 172 (Q.B.), refd to. [para. 73].

Pearlman v. Manitoba Law Society Judi­cial Committee, [1991] 2 S.C.R. 869; 130 N.R. 121; 75 Man.R.(2d) 81; 6 W.A.C. 81; 84 D.L.R.(4th) 105; [1991] 6 W.W.R. 289, refd to. [para. 73].

R. v. Sterling (R.), Sterling (L.) and Ster­ling (T.) (1993), 113 Sask.R. 81; 52 W.A.C. 81 (C.A.), refd to. [para. 73].

Jow v. College of Physicians and Surgeons (Sask.) (1978), 91 D.L.R.(3d) 245 (Sask. Q.B.), refd to. [para. 73].

Samuels v. Council of College of Phys­icians and Surgeons (Sask.) (1966), 57 W.W.R.(N.S.) 385 (Sask. Q.B.), refd to. [para. 73].

Spence v. Spencer and Prince Albert Board of Police Commissioners (1987), 53 Sask.R. 35 (C.A.), refd to. [para. 73].

Thompson v. Chiropractors' Association of Saskatchewan, [1996] 3 W.W.R. 675; 139 Sask.R. 93 (Q.B.), refd to. [para. 73].

Central Western Railway Corp. v. Alberta Surface Rights Board (1987), 56 Alta. L.R.(2d) 115 (Q.B.), refd to. [para. 79].

Dome Petroleum Ltd. v. Public Utilities Board (Alberta) and Canadian Superior Oil Ltd. (1976), 13 N.R. 301; 2 A.R. 453 (C.A.), affd. [1977] 2 S.C.R. 822; 13 N.R. 299; 2 A.R. 451, refd to. [para. 79].

Pacific Western Airlines Ltd., Re (1984), 9 Admin. L.R. 109 (Can. Trans. Comm.), refd to. [para. 82].

Boyle v. Workplace Health, Safety and Compensation Commission (N.B.) (1996), 179 N.B.R.(2d) 43; 455 A.P.R. 43 (C.A.), refd to. [para. 83].

R. v. Dixon (S.) (1998), 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241 (S.C.C.), dist. [para. 123].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 194].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161; [1993] 8 W.W.R. 513; 108 D.L.R.(4th) 193; 84 B.C.L.R.(2d) 1; 18 C.R.R.(2d) 41; 49 R.F.L.(3d) 117, refd to. [para. 202].

Davis v. United Church of Canada (1992), 8 O.R.(3d) 75 (Gen. Div.), refd to. [para. 202].

Statutes Noticed:

Registered Nurses Act, S.S. 1988-89, c. R-12.2, sect. 30(3) [para. 99]; sect. 34(5) [para. 190].

Authors and Works Noticed:

Casey, James T., The Regulation of Pro­fessions in Canada (1994), pp. 8-23, 8-24 [para. 143]; 8-24.1 [para. 144]; 9-11 [para. 29].

de Smith, S.A., Woolf and Jowell, Judicial Review of Administrative Action (5th Ed. 1995), p. 542 [paras. 22, 23].

Jones, David Phillip, and de Villars, Anne S., Principles of Administrative Law (2nd Ed. 1994), p. 489 [paras. 22, 24].

Orkin, Mark M., The Law of Costs (2nd Ed. 1997), pp. 56, 57 [para. 202].

Counsel:

A.M. Wallace and S.L. Joyce, for the appellants;

R.J.F. Lepage and P.T. Bergbusch, for the respondent.

This appeal was heard before Grotsky, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on April 20, 1998.