Whatcott v. Saskatchewan Association of Licensed Practical Nurses, 2008 SKCA 6

• Judge: Jackson, Richards and Hunter, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: June 12, 2007
• Jurisdiction: Saskatchewan
• Citations: 2008 SKCA 6;(2008), 304 Sask.R. 290 (CA)

Whatcott v. LPN (2008), 304 Sask.R. 290 (CA);

      413 W.A.C. 290

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JA.012

William Whatcott (appellant) v. The Saskatchewan Association of Licensed Practical Nurses (respondent) and Canadian Civil Liberties Association (intervenor)

(No. 1338; 2008 SKCA 6)

Indexed As: Whatcott v. Saskatchewan Association of Licensed Practical Nurses

Saskatchewan Court of Appeal

Jackson, Richards and Hunter, JJ.A.

January 16, 2008.

Summary:

Whatcott was a member of the Saskatchewan Association of Licensed Practical Nurses (SALPN). The Discipline Committee of the SALPN found Whatcott guilty of two counts of professional misconduct contrary to s. 24 of the Licensed Practical Nurses Act. The charges arose from Whatcott's actions in picketing outside of Planned Parenthood Regina. The Discipline Committee imposed fines and suspended Whatcott's membership in the SALPN until the fines were paid. Whatcott appealed from the Discipline Committee's decision.

The Saskatchewan Court of Queen's Bench, in a decision reported at 281 Sask.R. 168, dismissed the appeal. The court applied the reasonableness standard of review and held that the Discipline Committee's decision was reasonable. The court also held that while there was an infringement of Whatcott's right to freedom of expression under s. 2(b) of the Charter, the infringement was justified under s. 1 of the Charter. Whatcott appealed.

The Saskatchewan Court of Appeal allowed the appeal. The court held that the Discipline Committee's decision infringed Whatcott's right to freedom of expression under s. 2(b) of the Charter and that such infringement did not constitute a reasonable limit pursuant to s. 1 of the Charter. The court set aside the Discipline Committee's decision and ordered that Whatcott was entitled to his costs against the SALPN in the Court of Appeal on Column 4 and in the Court of Queen's Bench in the usual way.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Administrative Law - Topic 9122 ].

Administrative Law - Topic 6244

Judicial review - Statutory appeal - Remedies on appeal - Remittal of award or decision - The Discipline Committee of the Saskatchewan Association of Licensed Practical Nurses found Whatcott guilty of two counts of professional misconduct contrary to s. 24 of the Licensed Practical Nurses Act based on his actions in picketing outside of Planned Parenthood Regina - Whatcott appealed from the Discipline Committee's decision pursuant to s. 36(1) of the Act - The chambers judge dismissed the appeal - The chambers judge applied the reasonableness standard of review and held that the Discipline Committee's decision was reasonable - The chambers judge also held that while there was an infringement of Whatcott's right to freedom of expression under s. 2(b) of the Charter, the infringement was justified under s. 1 of the Charter - Whatcott appealed to the Court of Appeal pursuant to s. 36(2) of the Act - The Discipline Committee had not addressed the Charter issues raised before it, and an issue arose regarding whether the matter should be remitted to the Committee for a consideration of the Charter arguments - The Saskatchewan Court of Appeal held that it was not appropriate to remit the matter to the Discipline Committee - The court decided to review the decision on the constitutional basis previously provided - See paragraphs 37 to 41.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Administrative Law - Topic 9122 ].

Administrative Law - Topic 9122

Board and tribunals - Administrative appeals - Scope of appeal or standard of review - The Discipline Committee of the Saskatchewan Association of Licensed Practical Nurses found Whatcott guilty of two counts of professional misconduct based on his actions in picketing outside of Planned Parenthood Regina - Whatcott appealed - The chambers judge dismissed the appeal - The chambers judge applied the reasonableness standard of review and held that the Discipline Committee's decision was reasonable - The chambers judge also held that while there was an infringement of Whatcott's right to freedom of expression under s. 2(b) of the Charter, the infringement was justified under s. 1 of the Charter - Whatcott appealed - An issue arose regarding whether the appropriate judicial review model was administrative law or constitutional law, i.e., whether the chambers judge erred in applying the administrative law model and the standard of review of reasonableness - The Saskatchewan Court of Appeal stated that in light of the decision in Multani v. Commission scolaire Marguerite-Bourgeoys (S.C.C.) two matters were clear - First, an administrative tribunal's decision could be challenged on the basis that the decision itself infringed Charter rights - Second, the issues and arguments raised in relation to the decision had to be considered to determine which standard of review model, administrative or constitutional, was to be applied - In this case, it was the compliance of the Discipline Committee's decision with the Charter that was central to the appeal - It was therefore necessary to leave aside the administrative standard of review and consider whether the Discipline Committee's decision infringed Whatcott's freedom of expression - A constitutional analysis had to be conducted and the standard of review was correctness - See paragraphs 29 to 36.

Civil Rights - Topic 1850

Freedom of speech or expression - Limitations on - Picketing - The Discipline Committee of the Saskatchewan Association of Licensed Practical Nurses found Whatcott guilty of two counts of professional misconduct contrary to s. 24 of the Licensed Practical Nurses Act - The charges arose from Whatcott's actions in picketing outside of Planned Parenthood Regina - The Discipline Committee imposed fines and suspended Whatcott's membership in the SALPN until the fines were paid - Whatcott appealed from the Discipline Committee's decision - The Saskatchewan Court of Queen's Bench dismissed the appeal - Whatcott appealed - The Saskatchewan Court of Appeal allowed the appeal - The court held that the Discipline Committee's decision infringed Whatcott's right to freedom of expression under s. 2(b) of the Charter and that such infringement did not constitute a reasonable limit pursuant to s. 1 of the Charter - The court set aside the Discipline Committee's decision - Although Whatcott relied on s. 24(1) of the Charter to request that costs be awarded on an extraordinary basis, the court held that this was not an appropriate case to grant costs beyond those to which Whatcott would otherwise be entitled - The court ordered that Whatcott was entitled to his costs against the SALPN in the Court of Appeal on Column 4 and in the Court of Queen's Bench in the usual way - See paragraphs 43 to 79.

Civil Rights - Topic 1855

Freedom of speech or expression - Limitations on - Regulation of professionals - [See Civil Rights - Topic 1850 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1850 ].

Civil Rights - Topic 8380.7

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Costs - [See Civil Rights - Topic 1850 ].

Civil Rights - Topic 8581.2

Canadian Charter of Rights and Freedoms - Practice - Judicial review (incl. standard of review) - [See Administrative Law - Topic 9122 ].

Civil Rights - Topic 8599

Canadian Charter of Rights and Freedoms - Practice - Appeals - Standard of review - [See Administrative Law - Topic 9122 ].

Medicine - Topic 6952

Nurses - Discipline - Professional misconduct - What constitutes - [See Civil Rights - Topic 1850 ].

Cases Noticed:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 24].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 24].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 26].

Kempling v. College of Teachers (B.C.) et al., [2005] 10 W.W.R. 275; 213 B.C.A.C. 240; 352 W.A.C. 240; 2005 BCCA 327, leave to appeal refused, (2006), 350 N.R. 193 (S.C.C.), refd to. [para. 26].

Multani v. Commission scolaire Marguerite-Bourgeoys et al. (2006), 345 N.R. 201; 2006 SCC 6, consd. [para. 30].

Tranchemontagne v. Disability Support Program (Ont.) et al., [2006] 1 S.C.R. 513; 347 N.R. 144; 210 O.A.C. 267; 2006 SCC 14, dist. [para. 37].

Davidson v. Slaight Communications Inc., [1989] 1 S.C.R. 1038; 93 N.R. 183, refd to. [para. 39].

Baier et al. v. Alberta (2007), 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 43].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81, consd. [para. 45].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, consd. [para. 45].

Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; 218 N.R. 241, refd to. [para. 50].

R. v. Sharpe (J.R.) (2001), 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161 (S.C.C.), refd to. [para. 56].

JTI-Macdonald Corp. et al. v. Canada (Attorney General) (2007), 364 N.R. 89; 2007 SCC 30, consd. [para. 57].

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, dist. [para. 70].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Human Rights Commission (Sask.) et al. v. Bell (1994), 120 Sask.R. 122; 68 W.A.C. 122 (C.A.), refd to. [para. 71].

R. v. Pawlowski (M.) (1993), 61 O.A.C. 276 (C.A.), refd to. [para. 78].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 2(b) [para. 6].

Licensed Practical Nurses Act, S.S. 2000, c. L-14.2, sect. 24 [para. 7].

Counsel:

Thomas A. Schuck, for the appellant;

Bettyann Cox, for the respondent;

Andrew K. Lokan and Brydie Bethell, for the intervenor.

This appeal was heard on June 12, 2007, before Jackson, Richards and Hunter, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Jackson, J.A., on January 16, 2008.