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Freedom of expression or personal attack? Sask. nurse appeals fine for Facebook post

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WATCH: When nurse Carolyn Strom was fined for criticizing her grandparents care home on Facebook, was she unprofessional or did it violate her charter rights?s – Sep 17, 2019

Saskatchewan’s highest court is to decide what’s next for a registered nurse who was fined $26,000 by a regulatory body for criticizing her grandfather’s care on Facebook.

Carolyn Strom, of Prince Albert, Sask., was found guilty of professional misconduct by the Saskatchewan Registered Nurses Association in 2016 and fined $26,000.

READ MORE: Saskatchewan nurse appealing $26K fine over Facebook comments

She is asking the province’s Court of Appeal to quash the disciplinary decision. A panel of three judges heard arguments on Tuesday and reserved their ruling.

Lawyers representing Strom and the nurses association painted very different pictures of how her Facebook comments should be regarded.

The association’s lawyer argued Strom personally attacked an identifiable group without attempting to get all the facts about her grandfather’s care.

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Strom’s lawyer, Marcus Davies, said all his client did was make some staff members uncomfortable while exercising her right to freedom of expression.

“Ms. Strom is guilty of nothing more serious than that,” Davies told the court. “Apparently, she made an institution and some who worked there uncomfortable.”

In February 2015, weeks after her grandfather died, Strom wrote on Facebook that some unnamed staff at his long-term care facility in Macklin, Sask., were not up to speed on delivering end-of-life care. She also identified herself as a registered nurse.

“I challenge the people involved in decision making with that facility, to please get All Your Staff a refresher on the topic And More? to those who made Grandpa’s last years less than desirable, Please Do Better Next Time!” one comment read.

READ MORE: Interveners allowed in appeal of nurse fined $26K for criticizing long-term care home

Strom’s lawyer called the complaint against Strom manufactured and noted that the facility’s executive director made a photocopy of the nurse’s comments and circulated it among staff.

He also argued that the disciplinary committee made many errors, including misquoting legal decisions and misrepresenting the outcomes of cases it relied on to reach its decision.

Roger Lepage, representing the nurses association, told court that Strom’s comments were beyond protection as freedom of expression because they contained serious allegations against an identifiable group.

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He said her comments also couldn’t be considered debate, because the facility’s health-care workers couldn’t respond publicly about the specific care of a patient.

“What she was engaging in was a one-sided attack on the reputation of a facility and an identifiable group of health workers.”

Lepage said a nurse who takes to social media to criticize care and damages an institution’s reputation without seeking to get all the facts first should be disciplined.

He rejected arguments from interveners in the appeal that nurses are being muzzled and that the discipline against Strom sends a warning to health-care workers about speaking out.

“What is true is that Canadians would be harmed if nurses could just say what they want about medical establishments based on how they feel that day,” Lepage argued.

“Canadians would lose trust in the health-care system and lose trust in the interest of all nurses.”

He called Strom’s comments on Facebook “fake news,” but that was challenged by the judges, who noted Strom’s claims about the facility have not been proven false.

Having the honesty of her criticisms called into question cut deep with Strom as she watched the court proceedings from the gallery.

“With being accused of defamation today, and it constantly being said that I didn’t have the facts, calling me a liar, that is false. 100 per cent,” Strom said once court adjourned.

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“I just cannot believe that. That was low, it’s false and I just don’t understand how people get away with that. There’s absolutely no reason for that to have been said.”

In response to whether Strom’s comments were defamatory, Davies challenged LePage and the nurse association to challenge them as defamation in court.

“If there was anything untrue, incorrect or damaging in the comments that Ms. Strom made; please, test it. Test it through defamation,” Davies told the court.

“Challenge the truth of her comments and the faith and intention of her comments, please. Now at the 11th hour they bring out the very allegation we were begging them to test four years ago, please challenge these comments. No one has ever challenged the truth of these comments.”

The Saskatchewan Union of Nurses, Canadian Constitution Foundation and the BC Civil Liberties Association are intervening in the case.

The nurses’ union says the regulatory body’s action against Strom has reasonably lowered the bar for a finding of professional misconduct.

“If this ruling is upheld and her $26,000 fine is upheld, it’s really sending a message that you can’t criticize anything about the health-care system if you are a nurse,” said Megan Tweedie, a lawyer for the civil liberties group.

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With files from Global News’ David Baxter