Milner v. Registered Nurses' Association (B.C.), (1999) 25 B.C.T.C. 241 (SC)

• Judge: Boyd, J.
• Court: Supreme Court of British Columbia (Canada)
• Case Date: July 23, 1999
• Jurisdiction: British Columbia
• Citations: (1999), 25 B.C.T.C. 241 (SC)

Milner v. RNA (1999), 25 B.C.T.C. 241 (SC)

MLB headnote and full text

Temp. Cite: [1999] B.C.T.C. TBEd. DE.191

Cynthia Milner (appellant) v. Registered Nurses Association of British Columbia (respondents)

(A972468)

Indexed As: Milner v. Registered Nurses' Association (B.C.)

British Columbia Supreme Court

Vancouver

Boyd, J.

December 3, 1999.

Summary:

The Professional Conduct Committee of the Registered Nurses' Association of British Columbia (RNABC) found Milner guilty of incompetence and having acted contrary to the ethical standards of the nursing profession and in breach of the Registered Nurses Act. Following a sentencing hearing, the Committee terminated Milner's membership in the RNABC. The Board of Directors of the RNABC heard an appeal and upheld the findings of the Committee. Milner appealed from the decisions. She argued that because of the RNABC's failure to disclose the investigator's notes and report, as well as other documents, she was unable to make full answer and defence. She also submitted that the legislation which authorized the RNABC to withhold the investigator's notes and report (rule 7.12 of the Nurses' Act Rules) was ultra vires in that it was contrary to both the rules of natural justice and s. 7 of the Charter. Milner sought an order reversing the decisions appealed from and granting a stay of proceedings.

The British Columbia Supreme Court held that rule 7.12 was contrary to the rules of natural justice and that the late disclosure or nondisclosure of certain items had had a significant effect on the conduct of Milner's defence. However, the court held that Milner's ability to make full answer and defence had not been irreparably impaired and that Milner was entitled to the lesser remedy of a new hearing. The court allowed the appeal and remitted the matter to the RNABC for a new hearing.

Administrative Law - Topic 2617

Natural justice - Evidence and proof - Disclosure - See paragraphs 1 to 112.

Civil Rights - Topic 3188

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to make full answer and defence - See paragraphs 1 to 112.

Medicine - Topic 6951

Nurses - Discipline - Hearing - Duty of fairness - See paragraphs 1 to 112.

Cases Noticed:

Siad v. Canada (Secretary of State) (1996), 206 N.R. 127 (F.C.A.), refd to. [para. 4].

R. v. Dixon (S.), [1998] 1 S.C.R. 244; 222 N.R. 243; 166 N.S.R.(2d) 241; 498 A.P.R. 241, refd to. [para. 4].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R.(2d) 193; 8 C.R.(4th) 277; 68 C.C.C.(3d) 1, refd to. [para. 6].

Biscotti, Costantini and Orton v. Ontario Securities Commission (1991), 45 O.A.C. 293; 1 O.R.(3d) 409 (C.A.), refd to. [para. 6].

Markandey v. Board of Ophthalmic Dis­pensers (Ont.), [1994] O.J. No. 484 (Gen. Div.), refd to. [para. 6].

Knutson v. Saskatchewan Registered Nurses' Association, [1991] 2 W.W.R. 327; 90 Sask.R. 120 (C.A.), refd to. [para. 6].

Nuosci v. Canada (Attorney General), [1994] 1 F.C. 353; 167 N.R. 153 (F.C.A.), refd to. [para. 6].

Hannos v. Registered Nurses' Association (B.C.), [1996] B.C.J. No. 138 (S.C.), refd to. [para. 9].

Hammami v. College of Physicians and Surgeons (B.C.) (1997), 36 B.C.L.R.(3d) 17 (S.C.), refd to. [para. 10].

Bailey v. Registered Nurses' Association (Sask.), [1998] 10 W.W.R. 536; 167 Sask.R. 232 (Q.B.), refd to. [para. 11].

Université du Québec à Trois-Rivières v. Syndicat des employés professionnels de l'Université du Québec à Trois-Rivières, [1993] 1 S.C.R. 471; 148 N.R. 209; 53 Q.A.C. 171; 101 D.L.R.(4th) 494, refd to. [para. 26].

Consolidated Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321; 68 D.L.R.(4th) 524, refd to. [para. 26].

Canada (Attorney General) v. Public Service Staff Relations Board (1977), 14 N.R. 257; 74 D.L.R.(3d) 307 (F.C.A.), refd to. [para. 26].

Circosta v. Lilly, [1967] 1 O.R. 398; 61 D.L.R.(2d) 12 (C.A.), refd to. [para. 26].

Statutes Noticed:

Nurses Act Rules - see Nurses (Registered) Act Regulations (B.C.).

Nurses (Registered) Act Regulations (B.C.), Nurses Act Rules, rule 7.12 [para. 15].

Authors and Works Noticed:

Blake, Sara, Administrative Law in Canada, pp. 36, 37 [para. 21].

Casey, James T., The Regulation of Pro­fessions in Canada, pp. 8-23 [para. 11]; 8-24 [paras. 11, 12]; 8-24.1 [para. 12].

Counsel:

Cynthia Milner, in person;

Michael Carroll, Q.C., and Kathryn Den­hoff, for the respondents;

Chris Buchanan, for the intervenor, British Columbia Nurses' Union.

This appeal was heard in chambers on June 23, 24, 25 and 29 and July 23, 1999, at Vancouver, British Columbia, before Boyd, J., of the British Columbia Supreme Court, who delivered the following decision on December 3, 1999.