A registered nurse ("Heffel") was unsuccessful on appeal to the Northwest Territories Supreme Court from a decision of the Board of Inquiry under the Nursing Profession Act.

[2015] N.W.T.J. No. 22

2015 NWTSC 16

Northwest Territories Supreme Court

V.A. Schuler J.

April 16, 2015

Heffel had been found guilty of unprofessional conduct based on an incident where the Board found that she had covered a patient's airway. The Board dismissed an allegation that she had slapped the same patient, because it had not been established on the evidence. Heffel was reprimanded and required to complete an advanced practice health assessment course and/or outpost nursing course, pending the successful completion of which her license would be suspended. She was also ordered to pay costs of $10,000.

Heffel had been involved in providing nursing care to a 15 year old ward of the state who was brought into a nursing station by police officers after being found in a lake with hypothermia. He had reportedly been drinking and may have been under the influence of other substances. He was uncooperative and resisted nursing care, including spitting at nurses and struggling against them.

However, based on Heffel's care of the patient, two of the other nurses involved in this patient's care brought concerns to the attention of Social Services, which prompted criminal, employment, and disciplinary proceedings against Heffel. The criminal proceedings were stayed. Heffel was dismissed from her employment, but subsequently successfully grieved the dismissal and was reinstated.

In the disciplinary proceedings, Heffel faced a charge that she had used a blanket or her hand or both to cover the patient's airway, and that in so doing she had failed to meet accepted standards of nursing practice. There was also an allegation that she had struck a patient in the face.

The Nursing Profession Act provided that the College could make standards for the practice of nursing. If complaints were not dismissed at a preliminary stage, they could be referred to a Board of Inquiry for hearing.

The statutory appeal allowed the court to make any finding that it thought should have been made by the Board of Inquiry, or to affirm, reverse, or modify the decision or order of the Board of Inquiry, or to refer the matter back to the Board of Inquiry for further consideration. The court held that the standard of review of the Board's decision should be one of reasonableness. The only exceptions would be where there was a true question of jurisdiction requiring the Tribunal to decide whether its governing legislation authorized it to decide a particular issue, or where there was a question of law of central importance to the legal system outside of the Tribunal's expertise. Those exceptions would require a standard of correctness.

The court held that the Board's finding of unprofessional conduct was reasonable. The Board found that the patient was spitting and was verbally abusive to nurses, and the Board also found that the slapping incident was not made out because the evidence only supported a finding of accidental contact occurring between Heffel and the patient. However, with regard to the finding that Heffel had covered the patient's airway with her hand, the Board held that Ms. Heffel held her hand over the patient's mouth and nose for an extended period of time and that in doing so, she demonstrated a lack of the required critical thinking and sound clinical judgement referenced in the standards of nursing practice for registered nurses, prepared by the College.

The Board also held that Ms. Heffel told the patient, "If you stop, I'll stop", which exacerbated her actions and suggested an intention that was in the realm of punitive, rather than the realm of defensive.

The court did not interfere with the findings of fact of the Board. There was some evidence upon which these findings of fact could be made, and accordingly, deference should be shown to the trier of fact. Further, it was clear that the Board did not accept all of the evidence of the other nurse witnesses, but carefully considered their recollections. The trier of fact was entitled to accept some, all, or none of the evidence of a particular witness. In addition, the appellant's own evidence was unhelpful to her. The Board did not accept Heffel's position that her hand was beside but not on the mouth of the patient. There was evidence that the patient's voice changed, which suggested that her hand was on his mouth. The court held that it could not revisit the conclusion about unprofessional conduct and the finding was reasonable.

Heffel also argued that proceedings before the Board were an abuse of process because allegations against her had been dismissed by an arbitrator dealing with the grievance of the termination of her employment. The court found that proceedings before the Board were not an abuse of process. Rather, the Tribunals did not have concurrent jurisdiction. They had different mandates with respect to different questions to decide. The disciplinary proceedings were not an abuse of process as they were separate and distinct from the employment grievance arbitration proceedings.

There was also an appeal of the penalty imposed on Heffel by the Board. The Board ordered a reprimand and that Heffel complete an advanced health assessment course and/or an outpost nursing course. Her license was to remain suspended until proof of successful completion of the course. Heffel's objection that the course of study had not been specified was premature. The Board was simply awaiting Heffel's input. Heffel attempted to argue that if the practice standard that should apply when a nurse is dealing with a violent patient or one who spits is a matter of common sense, as opposed to one that required expert evidence before the court, then no training or education or any course should be required.

The Court held that the Board's conclusion that she required some further training or education in the public interest was reasonable. The costs award was also reasonable, in that costs had been the subject of submissions at about $45,000, but the Board had reduced this to a $10,000 costs award based on the fact that not all of the allegations of unprofessional conduct had been proven.

Heffel alleged that there was a reasonable apprehension of bias on the part of one member of the Board of Inquiry, a Ms. Snyder, because she had some connection with the witness, Ms. Flood. Ms. Flood testified for the College, against Ms. Heffel. The evidence was that Ms. Snyder and the witness, Flood, knew each other and on occasion had attended the same social functions eight to nine years before the Board of Inquiry hearing. Their connection in the intervening period was limited to a few brief public encounters where pleasantries were exchanged. They were Facebook friends, but there was evidence that they had not communicated with each other further through that medium. Further, the court held that where a "Facebook" friendship indicates that the parties know each other, it does not, without more, establish a relationship which would result in a reasonable apprehension of bias. More evidence is required.

A reasonable apprehension of bias was found in Canadian Union of Postal Workers v. Canada Post Corp., where an arbitrator's Facebook page listed as friends Federal Government Ministers with responsibility for the appointment of the arbitrator and of Canada Post, a party to the labour dispute the individual was appointed to arbitrate. There was also evidence of Facebook activities and interests connected to the Minister's political party and only two years had elapsed since the arbitrator halted his partisan activities.

By contrast, in this case, Ms. Flood and Ms. Snyder ceased working at the same hospital eight or nine years prior to the hearing. Their connection when they worked at the hospital included some social contact but only brief unplanned contact for a few occasions after that. They did not intentionally maintain a friendship. The listing as friends on each other's Facebook pages added nothing of significance.

A reasonable person informed of the circumstance would not be concerned that Ms. Snyder would be pre‑disposed to favour Ms. Flood's testimony or the respondent's position. The Board was correct in dismissing the rejection regarding reasonable apprehension of bias.

The appeal was dismissed.