Administrative law – Nurses – Professional misconduct or conduct unbecoming – Investigative bodies – Fairness – Role of legal counsel – Judicial review – Breach of procedural fairness
Fox v. Registered Nurses’ Assn. of Nova Scotia,  N.S.J. No. 486, Nova Scotia Court of Appeal, November 13, 2002, Roscoe, Chipman and Bateman JJ.A.
Mr. Fox was employed as a nurse at the Colchester Regional Hospital in Nova Scotia for a number of years. In 1998, he received unsolicited complaints from patients, family of patients and from a colleague. The hospital filed a complaint with the Registered Nurses Association of Nova Scotia (“RNA’s”). The Complaints Committee of the RNANS referred several of the complaints to the Professional Conduct Committee. A hearing was held on the complaints and the Committee issued a written decision on June 24, 1999. The decision found Mr. Fox guilty of professional misconduct and Mr. Fox’s licence to practice was revoked. Mr. Fox appealed the decision to the Appeal Committee, arguing that the independent legal advisor (Kydd) to the Professional Conduct Committee and the manager of professional conduct services for RNANS had acted inappropriately. The Appeal Committee dismissed the appeal and an appeal was brought to the Court of Appeal. The Nova Scotia Court of Appeal dismissed the appeal. On appeal the central issue was whether Mr. Kydd, as independent counsel to the Committee, had acted improperly. Mr. Fox alleged that Kydd had prepared a draft of a written decision that went beyond mere clarification. The Court of Appeal found that the decision was straightforward and did not reflect complex reasoning which could not have been the product of the Committee’s post-hearing deliberations. It was notable that although the independent counsel sat in on deliberation, the chair had kept notes of deliberation discussions and had drafted her own decision which was forwarded to committee members and Mr. Kydd for review. Mr. Kydd recommended some changes to the draft; however, he did not propose any changes to conclusions or to the Committee’s decisions on the credibility of the witnesses. Mr. Kydd did not propose an alteration to the penalty imposed by the Committee, nor did he introduce issues or authorities to the Committee which were not part of counsel’s submissions. The court referred to the decision of Khan, K.G.N v. College of Physicians and Surgeons of Ontario (1992), 94 D.L.R. (4th) 193 where Doherty J.A. for the court stated:
I cannot accept the view that any advice given by counsel for the Committee which affects the substance of the Committee’s reasons amounts to legal advice. It is the nature of the advice, not its effect on the final product, which must be considered. The phrase ‘legal advice’ in section 12(3) must refer to advice on matters of law. Advice intended to improve the quality of the Committee’s reasons by, for example, deleting erroneous references to the evidence or adding additional relevant references to the evidence, it is not advice on a matter of law but is rather advice as to how the Committee should frame its reasons in support of its decision. If the Committee accepts such advice, it may improve the quality of the reasons ultimately provided by the Committee and render the decision of the Committee less susceptible to reversal on appeal. This does not, however, transform advice as to the content and formulation of reasons into advice on a matter of law.
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