Fox v. Registered Nurses' Association (N.S.), (2002) 209 N.S.R.(2d) 342 (CA)

• Judge: Roscoe, Chipman and Bateman, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: September 26, 2002
• Jurisdiction: Nova Scotia
• Citations: (2002), 209 N.S.R.(2d) 342 (CA);2002 NSCA 141

Fox v. RNA (2002), 209 N.S.R.(2d) 342 (CA);

 656 A.P.R. 342

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. DE.011

Robert Fox (appellant) v. Registered Nurses Association of Nova Scotia (respondent)

(CA 179201; 2002 NSCA 141)

Indexed As: Fox v. Registered Nurses' Association (N.S.)

Nova Scotia Court of Appeal

Roscoe, Chipman and Bateman, JJ.A.

November 13, 2002.

Summary:

A professional conduct committee found a nurse guilty of professional misconduct and revoked his licence. The Appeal Committee of the Registered Nurses Association of Nova Scotia dismissed the nurse's appeal. The nurse appealed.

The Nova Scotia Court of Appeal dis­missed the appeal.

Editor's Note: for a related decision in­volving the same parties see 207 N.S.R.(2d) 330; 649 A.P.R. 330.

Administrative Law - Topic 551.1

The hearing and decision - Decisions of the tribunal - Reasons for decisions - Par­ticipation of independent counsel in draft­ing reasons - A professional conduct com­mittee found a nurse guilty of professional misconduct - The nurse asserted that Kydd "misunderstood and breached" his role as independent legal counsel to the committee - An appeal committee rejected the asser­tion - The Nova Scotia Court of Appeal affirmed the decision - The mere presence of counsel during the deliberation stage was not a breach of the rules of natural justice - The appeal committee's finding that the decisions on all issues were made by the professional conduct committee was open to the appeal committee, was de­serving of deference and did not reflect palpable or overriding error - There was no evidence to support a contrary inference - The appeal committee's finding that Kydd acted as legal advisor and did not indicate his opinions on the factual issues or determinations that were the pro­fessional conduct committee's responsibili­ty was appropriate - Nothing in the record indicated that Kydd's legal advice or his involvement in the drafting of a stay de­cision or in his suggestion of changes to the merits and penalty decisions, compro­mised the committee's impartiality or independence nor did it render the pro­ceedings unfair or raise a reasonable appre­hension of bias - See paragraphs 27 to 46.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See Administrative Law - Topic 551.1 ].

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - A nurse appealed a finding of professional misconduct, assert­ing that Telfer, the Manager of Profes­sional Conduct Services for the Registered Nurses Association of Nova Scotia, was inappro­priately involved in the decision making process which created "the ap­pearance that the process was not procedurally fair" - The Nova Scotia Court of Appeal stated that Telfer's role was restricted to adminis­trative support - At no stage did she express an opinion on the merits of the complaints - She did not become aware of the results of the hearing until the decision was in final form - There was no evidence that she held any authori­ty or influence over the committee mem­bers - Although it would have been pre­ferable had she not had contact with the committee members during their final telephone conference, neither her role in that regard, nor any of her prior activity, was sufficient to raise a reasonable appre­hension of bias - See paragraphs 47 to 64.

Administrative Law - Topic 2498

Natural justice - Procedure - At hearing - Participation by tribunal's counsel - [See Administrative Law - Topic 551.1 ].

Medicine - Topic 6941.1

Nurses - Discipline - Jurisdiction of dis­ciplinary body or appeals committee - A professional conduct committee found a nurse guilty of professional misconduct - In dismissing the nurse's appeal, the Appeal Committee of the Registered Nurses Association of Nova Scotia ruled that it lacked jurisdiction to entertain a ground of appeal concerning alleged flaws in the investigative process which had not been raised before the professional conduct committee - The Nova Scotia Court of Appeal affirmed the ruling without ex­pressing an opinion as to whether the adequacy of the investigative process was an issue that could have been raised before the professional conduct committee - See paragraphs 21 to 26.

Medicine - Topic 6944

Nurses - Discipline - Hearing - Procedure [See Administrative Law - Topic 551.1 and second Administrative Law - Topic 2088 ].

Medicine - Topic 6951

Nurses - Discipline - Hearing - Duty of fairness - [See Administrative Law - Topic 551.1 and second Administrative Law - Topic 2088 ].

Medicine - Topic 6965

Nurses - Discipline - Punishments - Revo­cation of licence - A nurse was found guilty of professional misconduct respect­ing his treatment of patients and co-workers - The complaints respecting patients involved derogatory language, excessive force, disclosure of confidential information, a lack of concern and dili­gence, speaking disrespectfully and rough­ness - The nurse denied either the underly­ing events or that they constituted pro­fessional misconduct - The professional conduct committee revoked the nurse's licence - The committee considered the effect of the misconduct on the care and trust inherent in the nurse-patient relation­ship - The committee also noted that the nurse's treatment of colleagues constituted a lack of respect to the extent that the integrity of the profession was compro­mised and that such behaviour did not support an environment of safe, ethical nursing care - The Nova Scotia Court of Appeal affirmed the revocation of the licence - There was no evidence that the nurse was genuinely amenable to counselling or that his behaviour could be modified - Revocation was the only penal­ty realistically appropriate - See paragraphs 73 and 74.

Cases Noticed:

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201, refd to. [para. 29].

Khan v. College of Physicians and Sur­geons (Ont.) et al. (1992), 57 O.A.C. 15; 94 D.L.R.(4th) 193 (C.A.), reving. (1990), 43 O.A.C. 130; 76 D.L.R.(4th) 179 (Div. Ct.), refd to. [para. 32].

Snider v. Manitoba Association of Regis­tered Nurses (2000), 142 Man.R.(2d) 308; 212 W.A.C. 308 (C.A.), refd to. [para. 33].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 48].

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 53].

Lippé et autres v. Québec (Procureur géné­ral) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 53].

Ruffo (Juge) v. Conseil de la magistrature et al., [1995] 4 S.C.R. 267; 190 N.R. 1, refd to. [para. 53].

Committee for Justice and Liberty Foun­dation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 53].

Tremblay v. Commission des affaires sociales et autres, [1992] 1 S.C.R. 952; 136 N.R. 5; 47 Q.A.C. 169; 90 D.L.R.(4th) 609, refd to. [para. 54].

Consolidated Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, refd to. [para. 58].

Dhawan v. College of Physicians and Surgeons (N.S.) (1998), 168 N.S.R.(2d) 201; 505 A.P.R. 201 (C.A.), refd to. [para. 65].

Cape Breton Development Corp. et al. v. Penny (1977), 20 N.S.R.(2d) 292; 27 A.P.R. 292; 76 D.L.R.(3d) 186 (C.A.), refd to. [para. 66].

Authors and Works Noticed:

de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th Ed. 1995), p. 286 [para. 65].

Counsel:

Bruce T. MacIntosh, Q.C., and Joel Sellers, for the appellant;

Margorie A. Hickey, Q.C., and Michelle Higgins, for the respondent.

This appeal was heard on September 26, 2002, by Roscoe, Chipman and Bateman, JJ.A., of the Nova Scotia Court of Appeal. Bateman, J.A., delivered the following judg­ment for the court on November 13, 2002.