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2 Key Lessons for Regulators: Forum & Penalty

Published:

September 28, 2022

Author(s):

• Marjorie Hickey, KC
• Jeremy Ryant, MC Alum

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On August 25, 2022, the P.E.I. Supreme Court dismissed an appeal of the P.E.I. College of Registered Nurses Hearing Committee in Llewellyn v. College of Registered Nurses of P.E.I. – but not before taking a shot across the bow at the penalty the Hearing Committee imposed. Regulators can learn two key lessons from the Court’s decision in Llewellyn:

Forum. The first lesson is that a regulatory hearing (e.g., a hearing committee or discipline committee) is the proper place for a member to raise arguments about violations of their rights protected by the Canadian Charter of Rights and Freedoms. With very few exceptions, a member cannot wait until an appeal of a committee decision at a court to raise their Charter arguments. Additionally, if a member intends to challenge any laws on the basis they are not complaint with the Charter, the member must first give the Attorney General of the province to which the law pertains notice of that constitutional question.

Penalty. The second lesson is that regulators should take special care to explain their rationale for imposing a penalty on a member with reference to penalties imposed for similar actions committed in similar cases. It is imperative that regulators include reference to other cases with similar facts when justifying why their chosen penalty is fit in the circumstances. Regulators will not be held to a standard of perfection when courts are asked to review the fitness of a penalty. However, the Llewellyn decision shows that courts can, and sometimes will, take a “hands on” approach to ensuring penalties are just and proportionate. 

The Background

Tonya Llewellyn was a registered nurse and a member of the College of Registered Nurses of Prince Edward Island. The College commenced an investigation into Ms. Llewellyn after receiving a complaint against her relating to issues that occurred in a hospital in October 2018. Based on the results of its investigation, the College alleged that Ms. Llewelyn engaged in conduct that violated the P.E.I. Regulated Health Professions Act by:

• Failing to follow established policies and procedures regarding infection prevention and control while visiting a family member in hospital and providing related nursing care.

• While visiting that family member, engaging in conduct towards staff that was demeaning, disrespectful and unprofessional.

• Leaving a threatening and unprofessional voicemail with the complainant after becoming aware of the complaints made against her.

On June 16, 2020, the Hearing Committee issued a decision finding Ms. Llewellyn guilty of professional misconduct and incompetence and imposed the following penalty:

• A two month suspension from practicing nursing.

• Within six months of the decision, the completion of ethics training at Ms. Llewellyn’s own expense.

• A fine in the amount of $5,000.

• Costs in the amount of $10,000.

• The requirement that Ms. Llewellyn provide a copy of the written decision to her employer or to any employer who offers her employment as a registered nurse, with proof in writing. This requirement remains in place until all conditions on Ms. Llewellyn’s registration have been removed.

Ms. Llewellyn appealed the Hearing Committee’s decision to the Supreme Court of Prince Edward Island, raising nine errors that, in her view, the Hearing Committee made in its decision. 

The Court’s Analysis

The Court dismissed Ms. Llewellyn’s appeal on all nine errors she raised. Many grounds of appeal Ms. Llewellyn raised related to alleged failures by the Hearing Committee to assess witness credibility or address contradictions in witness testimony. The Court dismissed these concerns swiftly, noting the Hearing Committee “extensively articulated the reasons for the findings which were made” (at para. 30). The Court focused its review on two key areas: Ms. Llewellyn’s Charter argument and the penalty.

To frame its analysis, the Court reiterated the principle from the Supreme Court of Canada’s landmark Vavilov decision that courts are to show little deference to administrative decision makers on their legal conclusions, and considerable deference on factual conclusions, when the governing legislation allows for an “appeal” to the Court. Here, section 59 of the Act allows respondents to “appeal” Hearing Committee decisions to the P.E.I. Supreme Court. It follows that, instead of reviewing a Hearing Committee decision on the deferential “reasonableness” threshold, the Court was entitled to review the decision for its legal correctness and any palpable or overriding factual errors.

Forum. One unique ground of appeal Ms. Llewellyn raised was that the Hearing Committee erred in law by failing to consider both her rights and that of the patient (her mother) under section 7 of the Charter. In dismissing this argument, the Court reminds us that if Charter arguments are to be raised, the appropriate place to make those arguments is before the administrative tribunal at the hearing – not before the Court at the appeal stage (at para. 35):

The general rule on appeal is that issues not raised at the hearing cannot be raised for the first time on appeal. Several courts have previously noted there is a reluctance to decide constitutional issues in a vacuum, in the absence of adjudicative facts. (Kupsar v. Regina Provincial Correctional Centre, 2020 SKCA 142). In the case at bar, no submissions of any kind were made to the Committee about section 7 rights to life, liberty or security of the person. I pause to prematurely note that no submissions were made of the issue of spoliation of evidence identified in the appellant’s seventh and eighth grounds of appeal. As a consequence, the Committee had no reason or opportunity to consider and make decisions on these issues.

In this case, the College argued that there was nothing in the record preventing Ms. Llewellyn from raising the Charter issues at the hearing, and that the Hearing Committee had the full statutory authority to rule on those issues, had they been raised. Another important point the College raised was that no Notice of Constitutional Question had been served on the Attorney General. These notices are required when a party intends to challenge a law’s constitutional validity.

Penalty. Notably, Ms. Llewellyn did not include as a stand-alone ground of appeal that the Hearing Committee erred in imposing an appropriate penalty in the circumstances. Despite Ms. Llewellyn not contesting the fitness of the penalty itself, the Court determined that it was necessary to satisfy itself that the penalty was appropriate in the circumstances. In determining that the penalty was unfit, the Court reasoned as follows (at para 53-56):

The decision does not refer to any case precedents which may have been relied upon by the parties or considered by the Committee in reaching its decision on penalty. This court is therefore left with little understanding of what led the Committee to impose the penalty which it did. The decision correctly enunciates the reasons why a penalty is necessary, including elements of specific and general deterrence and the protection of the public, and the need for nurses to be held accountable for their actions at all times, and particularly in a health care setting. 

Unfortunately, in the absence of reasons which reference case precedents, I am unable to find that the penalty is fit or unfit by comparison to a range of other penalties. This is problematic and something which tribunals should be mindful of in future cases. 

… 

After much consideration, I have concluded that the penalty imposed is disproportionate in all of the circumstances and therefore, clearly unfit. One of the options available to this court under s-s. 59(4) of the Act is to vary the order appealed from and I have determined I will exercise my discretion in that regard. … I conclude that, at the penalty stage, it would have been fair and appropriate for the Committee to make some recognition of the fact that, particularly relating to the first and second allegations, the appellant was in a circumstance of personal distress, dealing with a critically ill parent. Those are the sort of personal circumstances which are also properly factored into the determination of a fit and proper sentence. In reviewing the penalty in the entire context of the matter, I have decided to vary the order by removing the $5,000 fine which was imposed.  I also reduce the amount which the appellant is required to pay to the College in respect of the investigation and adjudication of the complaint to $5,000. 

In all other aspects, the Court upheld the Hearing Committee’s decision.

The Key Lessons

Regulators can learn two key lessons from the Court’s decision in Llewellyn.

Forum. In many ways, Llewellyn reiterates well-established legal principles relating to the threshold for reviewing administrative tribunal reasons and the appropriate forum in which to raise constitutional issues. On the latter point, it is important for regulators to remember that the Charter is a part of the legal landscape in which they operate. Members may raise Charter issues in the course of a hearing and it is incumbent on regulators to address those issues when they have the authority (either explicitly from statute or implicitly by common law) to do so. As the Supreme Court of Canada writes in Martin v. Nova Scotia (Workers’ Compensation Board) (at para. 29):

The Charter is not some holy grail which only judicial initiates of the superior courts may touch. The Charter belongs to the people. All law and law-makers that touch the people must conform to it. Tribunals and commissions charged with deciding legal issues are no exception. Many more citizens have their rights determined by these tribunals than by the courts. If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals.

Penalty. One somewhat unusual element of the decision is the Court’s substitution of its own view for what might constitute an appropriate penalty. In criminal law, sentencing is a discretionary activity that relies heavily on judges making their own assessment of the facts and using that assessment to come up with a just penalty. Appeal courts are hesitant to interfere with this discretionary exercise unless the sentence is “clearly unfit”, that is, there is some plainly seen error that is an unreasonable departure from the principle of proportionality (see R v. Lacasse, at para 53). Proportionality is measured in relation to the individual circumstances of the offence committed, and by comparison with sentences imposed for similar offences committed in similar circumstances. The Supreme Court of Canada has not had the final word on the threshold courts must apply when reviewing a penalty imposed by an administrative tribunal, such as the College’s Hearing Committee in Llewellyn. However, other courts have applied criminal laws’ “clearly unfit” threshold to their review of administrative tribunal sanctions. In College of Physicians and Surgeons of Ontario v Peirovy, the Ontario Court of Appeal noted (at para. 57):

A similarly high threshold applies in the administrative context. To be clearly unfit, the penalty must fall outside of the range of reasonableness. A reasonable penalty will be “guided by proportionality and an assessment of the range of appropriate penalties dependent upon the facts of each case, [and] guided by penalties imposed in other cases”: Reid, at para. 100.

In Llewellyn, the Court latched on to two errors that, in its view, rendered the Hearing Committee’s penalty “clearly unfit”:

• The decision does not refer to “any case precedents which may have been relied upon by the parties or considered by the Committee in reaching its decision on penalty”.
• The Hearing Committee should have given consideration to Ms. Llewelyn’s “personal distress” when crafting its penalty.

Unfortunately, in its reasoning, the Court appears to have replicated the very errors it says the Hearing Committee made. In substituting its own view for the appropriate penalty, the Court, too, neglects to canvas any penalties imposed in other cases to justify its own conclusion. The Court also does little to explain why it was a palpable and overriding error for the Hearing Committee to fail to recognize Ms. Llewellyn’s personal distress in its determination of a fit and proper sentence.

Some may view the Court’s decision to overturn and redraft the penalty imposed by the Hearing Committee as overly interventionist. This is especially so given that paragraph 59(4)(b) of the Act allows the Court to refer the matter back to a committee for further consideration. Nonetheless, this decision is an important reminder to regulators that Courts can, and sometimes will, take a “hands on” approach to ensuring penalties are just and proportionate. Regulators should take special care to explain their rationale for imposing a penalty on a member with reference to both the individual circumstances relevant to the allegations and penalties imposed for similar actions committed in similar circumstances. Regulators will not be held to a standard of perfection in this justificatory exercise. However, they must demonstrate why the penalty imposed is fit in the circumstances.

Please contact your McInnes Cooper lawyer or any member of our Regulation of Professions Team @ McInnes Cooper  to discuss how to ensure your decisions adequately explain the rationale for penalties imposed.

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