2003 SKQB Q.B.G. A.D. 2002 No. 2163 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LICENSED PRACTICAL NURSES ACT AND BYLAWS AND IN THE MATTER OF COMPLAINTS AGAINST WILLIAM WHATCOTT OF REGINA, SASKATCHEWAN BETWEEN: WILLIAM WHATCOTT and THE SASKATCHEWAN ASSOCIATION OF LICENSED PRACTICAL NURSES RESPONDENT Thomas A. Schuck for the applicant Merrilee Rasmussen, Q.C. for the respondent JUDGMENT GUNN J. January 7, 2003 [1] The applicant seeks the following relief:(a) A declaration that the charges against the applicant cannot constitute professional misconduct without contravening provisions of the Charter and The Saskatchewan Human Rights Code;(b) An order of prohibition to prohibit the discipline committee of the Saskatchewan Association of Licensed Practical Nurses (“SAPLN” or the Association”) from hearing the said charges;(c) A declaration that the charges are res judicata;(d) A request for an order for particulars;(d) Costs. [2] The applicant is member of the Association and is charged with professional misconduct contrary to s. 24 of The Licensed Practical Nurses Act, 2000, S.S. 2000, c. L-14.2 (the “Act”). The Notice of Hearing provided to the applicant sets out that professional misconduct is alleged based on his: ... engaging in conduct that displayed actions that: (i) were harmful to the best interests of the public or the members; and/or (ii) tended to harm the standing of the profession; and/or (iii) are breach of the Act or the bylaws, including the Code of Ethics. [3] For the purposes of this application the facts alleged in the Notice of Hearing are admitted by the applicant. They are the following: (i) On or about April 19 and April 26, 2002, May 20, 2002, May 16, 2002, and June 28, 2002, he publicly demonstrated/picketed with approximately five other people outside of the office of Planned Parenthood Regina’s Sexual Health Centre located at 1431 Victoria Avenue in the City of Regina; (ii) He carried signs which were seen by the public and patients or potential patients of the health facility that were printed with words to the effect “Planned Parenthood Aborts Babies”. He also shouted such phrases as “Planned Parenthood will give you Aids”, “This place is the world’s biggest baby killer”, “Don’t let Planned Parenthood corrupt you”, and “Planned Parenthood murders innocent babies”, etc. The statements referred to are incorrect and he knew or should have known them to be incorrect about Regina Planned Parenthood; (iii) He shouted at patients or potential patients of the health care facility that they were “fornicators” and showed people pictures of aborted fetuses; (iv) He took photographs of the demonstration; (v) Patients and staff of the health care facility were intimidated by this conduct; (vi) People or patients were potentially denied their right to health care as result of these actions; (vii) Patients or potential patients of the health care facility had or may have had their identity revealed through the taking of photographs. [4] These facts are alleged to support the conclusion that the applicant is guilty of professional misconduct as described above. THE LEGISLATION [5] The Act provides framework for dealing with complaints about the professional competence and professional conduct of members of the profession. Both the counselling and investigation committee and the discipline committee are statutorily created. When the Association receives written complaint, the counselling and investigation committee is required to investigate it. Once it concludes its investigation, the committee is required to make written report to the discipline committee recommending one of the following pursuant to s. 26(2) of the Act: (a) that the discipline committee hear and determine the formal complaint set out in the written report; or (b) that no further action be taken with respect to the matter under investigation because: (i) the matter has been resolved with the consent of the complainant and the member who is the subject of the investigation; or (ii) in the opinion of the counselling and investigation committee, no further action is warranted on the facts of the case. [6] What constitutes “professional incompetence” and “professional misconduct” is defined by ss. 23 and 24 of the Act and these definitions must guide the investigation committee and the discipline committee in its findings. licensed practical nurse who is aggrieved by decision of the discipline committee has the right to appeal that decision either to the Council of the Association or directly to the Court, and by leave on question of law to the Court of Appeal. 1. Provision of Particulars. 2. Are the charges against the applicant res judicata? 3. Should the SALPN discipline committee be prohibited from proceeding with the hearing of the charges? Re: 1. Provision of Particulars. [7] The notice of hearing sets out one charge against the applicant, that being that he is guilty of professional misconduct, as that is defined in the Act. Section 24 of the Act sets out the definition of professional misconduct. The Notice of Hearing particularizes the factual allegations on which the charge is based. These allegations are specific as to time and the nature of the allegations. [8] No order will be made for the provision of any further particulars at this stage. Re: 2. Are the charges against the appellant res judicata? [9] The applicant submits that the matters in question in this case are res judicata. am not satisfied this is so as the only matter previously considered by the discipline committee of the SALPN dealt with whether there was any professional misconduct established arising out of criminal convictions for illegal picketing prior to the applicant becoming member of SALPN. Re: 3. Should the SALPN discipline committee be prohibited from proceeding with the hearing of the charges? [10] The applicant seeks writ of prohibition to prohibit the discipline committee from proceeding with the hearing into his conduct on the grounds that his Charter rights will be infringed if the discipline committee determines that whatever occurred while he was picketing Planned Parenthood amounts to professional misconduct within the meaning of the Act. [11] The SAPLN takes the position that this Court should not entertain the application where there is convenient alternative remedy provided in the Act. The Act provides an elaborate and detailed complaints investigation and discipline process, with access to the courts through rights of appeal for the member being disciplined. [12] The leading case on this issue is Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] W.W.R. 676 (S.C.C.) which establishes the doctrine of the “adequate alternative remedy” as bar to judicial review. The existence of an adequate alternative remedy is held to constitute bar because judicial review is discretionary remedy. Thus, if an adequate alternative method of securing justice for the parties is available it ought to be accessed. [13] Mr. Justice Beetz, writing for the majority, set out the test to be applied in making the determination of whether or not an alternative remedy is adequate in the following manner at p. 697: In order to evaluate whether appellant’s right of appeal to the senate committee constituted an adequate alternative remedy and even better remedy than recourse to the courts by way of prerogative writs, several factors should have been taken into consideration, among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by body which was not professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of previous finding, expeditiousness and costs. [14] The Supreme Court re-examined the issue in Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] S.C.R. at 31, Lamer, C.J. set out the factors to be considered in determining whether or not to enter into judicial review as follows: ... [T]he convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant. [15] In addition, the applicant alleges that his Charter rights will be infringed if the discipline committee determines that whatever occurred while he was picketing Planned Parenthood amounts to professional misconduct within the meaning of the Act. It is not possible to determine whether this would be so without hearing to determine the facts. [16] I am satisfied that the Act provides an adequate alternative remedy which should be pursued and find there are no special circumstances here upon which I would exercise my discretion to determine the merits of this application or provide the relief sought by the applicant. [17] In the exercise of my discretion, the applicant’s application is dismissed in its entirely. The SAPLN shall have its costs of this application to be taxed.
The applicant sought a declaration that the charges against her could not constitute professional misconduct without contravening the Charter and Saskatchewan Human Rights Code; an order of prohibition to prevent the SAPLN discipline committee or Association from hearing the charges; a declaration that the charges are res judicata; an order for particulars; costs. HELD: The application was dismissed in its entirety with taxed costs to SAPLN.  1)No order for further particulars was made at this time. The Hearing Notice particularizes the factual allegations and is specific as to time and their nature. 2)The only matter previously considered by the discipline committee dealt with whether there was any professional misconduct established arising out of criminal convictions for illegal picketing prior to the applicant becoming a member of SALPN. 3)The Act provides an adequate alternate remedy, which should be pursued. There were no special circumstances upon which the court could exercise its discretion to determine the merits of this application or to provide the relief sought.