Canadian HR Reporter

N E W S 8 www.hrreporter.com Just how far is freedom of speech protected on social media? Saskatchewan decision involving registered nurse's off-duty social media posts highlights the importance of doing a proper investigation and using contextual analysis, says Sarah Dobson THE social media posts of a registered nurse (RN) in Saskatchewan were the subject of a recent Saskatchewan Court of Appeal decision that delved into the intersection between professional regulation, people's private lives and the guarantee of freedom of expression in the age of social media. It's a fascinating case, says Josh Koziebrocki, principal lawyer and founder of Koziebrocki Law in Toronto. "This is one of the first occasions we've seen a high court… put some limitations on the colleges and how far they can reach into the personal lives in to the province's minister of health and leader of the opposition. "It is evident that not everyone is 'up to speed' on how to approach end-of- life care... Or how to help maintain an aging senior's dignity (among other things!)," said Strom. "I challenge the people involved in decision-making with that facility to please get all your staff a refresher on this topic and more." Unhappy with the characterization, some St. Joseph's employees reported the posts to the Saskatchewan Registered Nurses' Association (SRNA), which then charged Strom with professional misconduct. In 2016, she was found guilty of professional misconduct. The SRNA decided Strom's comments harmed the reputation of the nursing staff at St. Joseph's and undermined public confidence in the staff. It also found that the infringement of the RN's right to free expression under the Canadian Charter of Rights and Freedoms was justified. Strom was reprimanded, fined $1,000, required to submit two self-reflective essays and ordered to pay $25,000 in costs. She appealed the decision to the Court of Queen's Bench, only to have it dismissed. this capacity. So, it's very interesting," he says. "It will be something that we' ll turn to for guidance in the future. And I've already referenced it in submissions to various colleges, with respect to how to interpret my clients' use of social media and whether it's appropriate or not for the regulators to launch discipline inquiries." In terms of its significance, the decision provides direction and a roadmap as to how possible failures to comply with an organization's obligations and expectations should be assessed, says Jason Kully, professional regulatory lawyer at Field Law in Edmonton. "It provides directions to employers or regulators that they need to keep in mind those contextual factors and the whole analysis when determining if someone's off-duty conduct or communications should be subject to discipline." Background Carolyn Strom complained about the care given to her grandfather at St. Joseph's Health Centre in Macklin, Sask. after he died in early 2015. She posted the comments on Facebook and included a link to a newspaper article about end- of-life care. Strom also tweeted the posts But, recently, the Court of Appeal allowed the appeal. "It is entirely legitimate for a professional regulator to impose requirements relating to civility, respectful communication, confi- dentiality, advertising and other matters that impact freedom of expression. Failing to abide by such rules can be found to constitute professional misconduc t," said Justice Brian Barrington-Foote in the Oct. 6 decision Strom v Saskatchewan Registered Nurses' Association. "However… that does not mean the entire life of a professional should be subject to inordinate scrutiny on the basis of more onerous standards of behaviour, as that would lead to a substantial invasion of the privacy rights and fundamental freedoms of professionals." The question of whether there is a nexus between the off-duty conduct and the profession "that demonstrates a sufficiently negative impact on the profession or the public interest" calls for a contextual analysis, he said. "Off-duty conduct may be found to be professional misconduct if there is a sufficient nexus or relationship of the appropriate kind between the personal conduct and the profession to engage MOST POPULAR PLATFORMS IN CANADA Source: Ted Rogers School of Management 83% Percentage of people with a Facebook account 65% Percentage of people with messaging apps 64% Percentage of people with a YouTube account 54% Percentage of people with an Instagram account

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