Canadian HR Reporter

www.hrreporter.com 9 "You also need to look at the tone, the content, the purpose of the commentary and all those other contextual factors." Jason Kully, Field Law enshrined in the Charter, but are also exemplified, hopefully, by the actions that are undertaken by your regulator." It's concerning to see a regulator trying to restrict a member's commentary, "specifically as it relates to public interest aspects of the profession," says Ha-Redeye. "[Strom] is actually eliciting discussion and seeking different perspectives and points of view that is very, very important." Contextual analysis The decision is significant in that there has always been a recognition that professionals are held to a high standard, even when they're off duty, "but that level of scrutiny shouldn't be so much as to invade their privacy in every part of their everyday life," says Kully. "And that's where that contextual analysis comes in, to see is this something that actually warrants scrutiny?" At the same time, this decision provides examples as to what factors should be taken into consideration "that maybe regulators and employers hadn't seen as being particularly relevant before," he says. These include: whether the speech was the result of emotional distress or mental health issues; the truth or fairness of any criticism; and whether the public expression by the the regulator's obligation to promote and protect the public interest." Professional regulators The regulator's job is to protect the public, but there must be a sufficient nexus or connection to do so, says Koziebrocki. "If [Strom's posts] were reprehensible comments alone, I think a court would be more critical of what would be appropriate for a professional. But the court, and they reference the Charter, they don't want to diminish healthy freedom of speech in that regard." There has been a trend toward increased regulation of the private lives of professionals, he says. "To a degree, this decision places some limitation on that approach by the colleges, so I think it's a good thing." Toronto lawyer Omar Ha-Redeye says he is happy with the appeal court's decision. "I do think the regulator went too far," he says. "We do want to encourage measured and careful responses and measured and careful critiques of professional practices, especially by members of the profession, because that's how we create a better profession. It's consistent with those values of a free and democratic society, which are nurse was intended to contribute to social or political discourse about an important issue. The discipline committee was focused on the negative comments and the fact that they were made by a professional, but that is just one part of the assessment, says Kully. "You also need to look at the tone, the content, the purpose of the commentary and all those other contextual factors. And [the court uses] the word 'one- dimensional' when describing the analysis that was conducted by the regulator in this case." Social media usage The courts are only beginning to scratch the surface around social media use in the context of employment law, and they haven't done a very good job, says Ha-Redeye. "What I would like to see is greater effect provided to the intention of the user. In other words, if [I have] a private account… and I posted something privately… I have demonstrated a deliberate intention to restrict the audience in that way. And courts, unfortunately, haven't given enough effect to that," he says. "The fact that we need to have spaces where we can talk about things — either to advance the public interest but also to get emotional support — this is the one of the key parts of this decision that I think really the regulator dropped the ball on." The Court of Appeal did say that Strom's commentary started off with trying to generate a discussion that could lead to potential improvements in this area of health care, says Kully. "That was important because it wasn't just a member of the profession going on Facebook and saying very defamatory or critical things about particular nurses or organizations and just venting." CHRR A registered nurse in Saskatchewan got into trouble with a regulatory body over her social media posts.

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