Snider v. Manitoba Association of Registered Nurses, (1999) 136 Man.R.(2d) 1 (QB)

• Judge: Clearwater, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: March 02, 1999
• Jurisdiction: Manitoba
• Citations: (1999), 136 Man.R.(2d) 1 (QB)

Snider v. RNA (1999), 136 Man.R.(2d) 1 (QB)

MLB headnote and full text

Temp. Cite: [1999] Man.R.(2d) TBEd. MR.011

Gail Snider (applicant) v. Manitoba Association of Registered Nurses (respondent)

(CI 97-01-03614)

Indexed As: Snider v. Manitoba Association of Registered Nurses

Manitoba Court of Queen's Bench

Winnipeg Centre

Clearwater, J.

March 2, 1999.

Summary:

Snider allegedly slapped, pinned and pinched several patients. The Discipline Committee of the Manitoba Association of Registered Nurses found Snider guilty of professional misconduct and caused her name to be erased from its register. Snider appealed.

The Manitoba Court of Queen's Bench allowed the appeal and remitted the matter to the same panel of the Discipline Committee for reconsideration in accordance with the judgment.

Medicine - Topic 6944

Nurses - Discipline - Hearing - Procedure -Snider was accused of eight charges of slapping, pinning or pinching patients over a 14 year period - The Discipline Com­mittee of the Manitoba Association of Registered Nurses found Snider guilty of professional misconduct and caused her name to be erased from the register - Snider appealed, submitting that the Com­mittee permitted its counsel to participate in the decision making process - The Manitoba Court of Queen's Bench rejected this ground of appeal - The Committee's counsel provided advice from time to time, mainly with respect to evidentiary ques­tions, but there was no evidence that the Committee's counsel participated in any improper way in the deliberations of the Committee - Moreover, Snider did not request any particulars of what occurred at the Committee's deliberations - See para­graphs 26 to 29.

Medicine - Topic 6949

Nurses - Discipline - Hearing - Evidence - Snider was accused of eight charges of slapping, pinning or pinching patients over a 14 year period - The Discipline Com­mittee of the Manitoba Association of Registered Nurses found Snider guilty of professional misconduct and caused her name to be erased from the register - Snider appealed, submitting that the Com­mittee received inadmissible and preju­dicial evidence as to disposition - The Manitoba Court of Queen's Bench rejected this ground of appeal - The evidence in question came from Snider's co-workers and the Committee accepted their evidence as consistent and credible - See paragraph 38.

Medicine - Topic 6949

Nurses - Discipline - Hearing - Evidence - Snider was accused of eight charges of slapping, pinning or pinching patients over a 14 year period - The Discipline Com­mittee of the Manitoba Association of Registered Nurses found Snider guilty of professional misconduct and caused her name to be erased from the register - Snider appealed, submitting that there was no expert evidence before the Committee respecting whether her conduct constituted professional misconduct - The Manitoba Court of Queen's Bench rejected this ground of appeal - Opinion evidence was only necessary when the trier of fact needs an expert's assistance to understand some complex issue outside one's usual or ordi­nary knowledge - See paragraphs 22 to 25.

Medicine - Topic 6951

Nurses - Discipline - Hearing - Duty of fairness - Snider allegedly slapped, pinned and pinched several patients - The Disci­pline Committee of the Manitoba As­sociation of Registered Nurses found Snider guilty of professional misconduct and caused her name to be erased from the register - Snider appealed - She submitted, inter alia, that she did not receive a fair hearing, where the Committee conducted a hearing into eight separate events alleged to have taken place over 14 years - The Manitoba Court of Queen's Bench con­cluded that severance of the charges was not necessary provided the Committee was careful to apply the evidence relating to each charge only to that charge - See paragraphs 33 to 36.

Medicine - Topic 6952

Nurses - Discipline - Professional miscon­duct - What constitutes - Snider was accused of eight charges of slapping, pinning or pinching patients over a 14 year period - The Discipline Committee of the Manitoba Association of Registered Nurses found Snider guilty of professional miscon­duct and caused her name to be erased from the register - Snider appealed, sub­mitting that the Committee's decision was against the evidence - The Manitoba Court of Queen's Bench examined Snider's conduct toward the patients and found that in most cases it was not appropriate and constituted professional misconduct - See paragraphs 18 to 48.

Medicine - Topic 6954

Nurses - Discipline - Standard of proof - The Manitoba Court of Queen's Bench stated that the standard of proof which lies on the prosecuting arm of any self-govern­ing profession remains proof on a balance of probabilities - The court stated that it was recognized that there were degrees of probability within the civil standard, de­pending on the nature of the case - See paragraphs 16 to 17.

Medicine - Topic 6955

Nurses - Discipline - Judicial review - General - The Manitoba Court of Queen's Bench stated that the standard of review to be applied by a court on an appeal from a decision of a disciplinary committee of a self-governing profession is the standard of reasonableness - The court stated that "it is the function of this court ... to apply the standard of reasonableness on the appeal and ensure, as best it can, that the govern­ing body (and this court) assessed the evidence always keeping in mind the fol­lowing: (a) the seriousness of the alle­gations and the seriousness of the ultimate disposition ...; (b) the burden or standard of proof which lies upon the prosecuting arm of any self-governing entity; (c) all of the rules of natural justice, including en­suring that the member in question received a fair hearing in all of the circum­stances" - See paragraphs 10 to 15.

Medicine - Topic 6965

Nurses - Discipline - Punishments - Revo­cation of licence - Snider was accused of eight charges of slapping, pinning or pinching patients over a 14 year period - The Discipline Committee of the Manitoba Association of Registered Nurses found Snider guilty of professional misconduct and caused her name to be erased from the register - Snider appealed - The Manitoba Court of Queen's Bench held that the findings of professional misconduct with respect to three of the charges did not by themselves or in conjunction with the disposition respecting any of the other charges justify striking Snider's name from the register - The court remitted the dis­position to the Committee for the imposi­tion of the appropriate penalty - See para­graph 50.

Cases Noticed:

Law Society of Manitoba v. Frohlinger (1997), 118 Man.R.(2d) 89; 149 W.A.C. 89 (C.A.), refd to. [para. 10, Schedule E].

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; [1991] 6 W.W.R. 289, refd to. [para. 11, Schedule E].

Wilson v. Law Society of British Columbia (1986), 9 B.C.L.R.(2d) 260 (C.A.), refd to. [para. 11, Schedule E].

Lensen v. Lensen, [1987] 2 S.C.R. 672; 79 N.R. 334; 64 Sask.R. 6; [1988] 1 W.W.R. 481, refd to. [para. 13, Schedule E].

Laurentide Motels Ltd. et al. v. Beauport (Ville) et al., [1989] 1 S.C.R. 705; 94 N.R. 1; 23 Q.A.C. 1, refd to. [para. 14, Schedule E].

Anderson v. Anderson (1994), 92 Man.R.(2d) 150; 61 W.A.C. 150 (C.A.), refd to. [para. 15, Schedule E].

Dalton Cartage Co. v. Continental In­surance Co. and St. Paul Fire & Marine Insurance Co., [1982] 1 S.C.R. 164; 40 N.R. 135; 131 D.L.R.(3d) 559, refd to. [para. 16, Schedule E].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 17, Schedule E].

Smith v. Smith, [1952] 2 S.C.R. 312, refd to. [para. 17].

Olson v. Law Society of Manitoba (1997), 115 Man.R.(2d) 147; 139 W.A.C. 147 (C.A.), refd to. [para. 20, Schedule E].

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; 68 D.L.R.(4th) 524; 90 C.L.L.C. 14,007; 42 Admin. L.R. 1, refd to. [para. 27, Schedule E].

Khan v. College of Physicians and Sur­geons (Ont.) (1992), 57 O.A.C. 115; 94 D.L.R.(4th) 193 (C.A.), refd to. [para. 29, Schedule E].

Kerster v. College of Physicians and Sur­geons (Sask.) (1970), 72 W.W.R.(N.S.) 321; 13 D.L.R.(3d) 453 (Sask. Q.B.), refd to. [para. 33, Schedule E].

College of Physicians and Surgeons (Ont.) v. Keil (1987), 19 O.A.C. 51; 36 D.L.R.(4th) 707 (C.A.), refd to. [para. 33, Schedule E].

Achiume v. College of Physicians and Surgeons (Ont.) (1992), 60 O.A.C. 318 (Div. Ct.), refd to. [para. 33, Schedule E].

Reza v. General Medical Council, [1991] 2 All E.R. 796; 126 N.R. 90 (P.C.), refd to. [para. 33, Schedule E].

Stone and Law Society of Upper Canada, Re (1979), 102 D.L.R.(3d) 176 (Ont. Div. Ct.), refd to. [para. 33, Schedule E].

Traders Finance Corp. v. Norray Distribut­ing Ltd. et al. (1967), 60 W.W.R.(N.S.) 129 (Man. Q.B.), refd to. [Schedule E].

Reddall v. College of Nurses (Ont.) (1983), 42 O.R.(2d) 412 (C.A.), refd to. [Schedule E].

Camgoz, Re (1989), 74 Sask.R. 73 (C.A.), refd to. [Schedule E].

Liwiski v. Manitoba Pharmaceutical As­sociation et al. (1990), 65 Man.R.(2d) 184 (Q.B.), refd to. [Schedule E].

Stephen v. College of Physicians and Sur­geons (Sask.) (1991), 95 Sask.R. 176 (Q.B.), refd to. [Schedule E].

Law Society of Manitoba v. Shead, [1993] M.J. No. 319 (C.A.), refd to. [Schedule E].

Huerto v. College of Physicians and Sur­geons (Sask.), [1994] 9 W.W.R. 457; 124 Sask.R. 33 (Q.B.), refd to. [Schedule E].

Nassar v. College of Physicians and Sur­geons (Man.) (1994), 96 Man.R.(2d) 141 (Q.B.), affd. (1995), 100 Man.R.(2d) 10; 91 W.A.C. 10 (C.A.), refd to. [Schedule E].

Ahluwalia v. College of Physicians and Surgeons (Man.) (1998), 128 Man.R.(2d) 161 (Q.B.), affd. (1999), 134 Man.R.(2d) 152; 193 W.A.C. 152 (C.A.), refd to. [Schedule E].

Crawford v. College of Physicians and Surgeons, [1929] 3 D.L.R. 62 (Alta. S.C.), refd to. [Schedule E].

Ringrose v. College of Physicians and Surgeons (Alta.) (1978), 8 A.R. 113; 83 D.L.R.(3d) 680 (C.A.), refd to. [Schedule E].

Huerto v. College of Physicians and Sur­geons (Sask.), [1996] 4 W.W.R. 153; 141 Sask.R. 3; 114 W.A.C. 3 (C.A.), refd to. [Schedule E].

R. v. Burns (R.H.), [1994] 1 S.C.R. 656; 165 N.R. 374; 42 B.C.A.C. 161; 67 W.A.C. 161; 89 C.C.C.(3d) 193, refd to. [Schedule E].

Schulman v. College of Physicians and Surgeons (Ont.) (1980), 29 O.R.(2d) 40 (Div. Ct.), refd to. [Schedule E].

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

Smith v. Association of Professional En­gineers (Ont.) (1989), 38 Admin. L.R. 212 (Ont. H.C.), refd to. [Schedule E.].

Stoller v. Public Accountants Council (Ont.), [1960] O.R. 631 (C.A.), refd to. [Schedule E].

Glassman v. College of Physicians and Surgeons (Ont.) (1966), 55 D.L.R.(2d) 674 (Ont. C.A.), refd to. [Schedule E].

Trotter v. College of Nurses (Ont.) (1991), 44 O.A.C. 302 (Div. Ct.), refd to. [Schedule E].

Statutes Noticed:

Registered Nurses Act, R.S.M. 1987, c. R-40; C.C.S.M., c. R-40, sect. 26, sect. 42 [para. 5].

Authors and Works Noticed:

Casey, James T., The Regulation of the Professions in Canada (1994), pp. 11-3 to 11-9 [para. 16]; 11-16, 11-17 [para. 35]; 11-25 to 11-27 [para. 23].

Macaulay, Robert W. and Sprague, James. L.H., Practice and Procedure Before Administrative Tribunals (1995), vol. 2, pp. 20-10.47 [para. 27]; 22-10.63 [para. 29].

MacKenzie, Gavin, Lawyers and Ethics, Professional Responsibility and Disci­pline (1993), generally [Schedule E].

Sopinka, John, Lederman, Sidney N. and Bryant, Alan W., The Law of Evidence in Canada (1992), generally [para. 17].

Counsel:

Sidney Green, Q.C., for the applicant;

David I. Marr and Colleen Geary, for the respondent.

This appeal was heard before Clearwater, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the follow­ing judgment on March 2, 1999.