CITATION: Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513

DIVISIONAL COURT FILE NOS.: 059/22 and 327/22

DATE: 20220930

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Edwards, R.S.J., Backhouse and O’Brien JJ.

BETWEEN:

KRISTAL PITTER

Applicant

– and –

COLLEGE OF NURSES OF ONTARIO

Respondent

AND BETWEEN:

LIUBOV ALVIANO

Applicant

– and –

COLLEGE OF NURSES OF ONTARIO

Respondent

A. Boissonneau-Lehner, for the Applicant

M. Shortreed, D. Cooney and C. McNevin, for the Respondent

A. Boissonneau-Lehner, for the Applicant

M. Shortreed, D. Cooney and C. McNevin, for the Respondent

HEARD: September 13, 2022, at Toronto by videoconference

REASONS FOR DECISION

O’Brien J.

Overview

[1] These applications for judicial review arise from public statements made by the Applicants, who are both registered nurses, in the early months of the COVID-19 pandemic. As a result of the Applicants’ statements, the Respondent, College of Nurses of Ontario (“CNO” or “College”) commenced investigations into the conduct of each Applicant. At the conclusion of its investigations, CNO’s screening committee, the Inquiries, Complaints and Reports Committee (“ICRC” or “committee”), was concerned that both Applicants had made statements that were contrary to public health guidelines and contained what could be harmful misinformation. The ICRC directed that the Applicants appear to be cautioned with respect to CNO practice standards and that they each attend remedial education programs.

[2] The applications were argued together by the same counsel. These Reasons therefore address both applications. Throughout the Reasons, I identify where specific facts or arguments relate to only one Applicant.

[3] The Applicant, Ms. Pitter, was a nurse practitioner working as a long-term care inspector for the Ministry of Health and Long-Term Care. In June and July 2020, approximately four months into the COVID-19 pandemic, Ms. Pitter made public posts on Facebook about the COVID-19 virus and public health measures. On the Facebook profile she used to make the posts, Ms. Pitter was identified as a “Nurse Practitioner”. Although the material before the ICRC included hundreds of pages of Ms. Pitter’s public Facebook posts in which she identified herself as a nurse, the ICRC ultimately expressed concern only about the four following statements:

a. On June 12, 2020, Ms. Pitter posted an article titled “Bill Gates Explains that the COVID Vaccine Will Use Experimental Technology and Permanently Alter Your DNA”.

b. On July 12, 2020, Ms. Pitter made a public post on Facebook in which she provided a link to a YouTube video and authored the following commentary:

Please listen to this very important audio recording by the President of Ghana on the evil that is going on in the name of COVID-19, masterminded by Bill Gates, Anthony Fauci, together with WHO and the Rockefeller Foundation. The document he is reading from was written 10 years ago. It was “predicted” (PLANNED) that humanity would be subjected to a global pandemic and lethal vaccines with identification capabilities, which can track and manipulate the thoughts, movements and the whereabouts of every human being.

c. On July 16, 2020, Ms. Pitter posted a link to an article titled “Masks are Neither Effective Nor Safe: A Summary of the Science.” Alongside the article, Ms. Pitter wrote: “Please read the research shared here. Great information.”

d. On or around July 19, 2020, Ms. Pitter shared a link to a YouTube video titled “Masks Exposed and the Health Risks Involved”. Alongside the video, she posted the comment: “Mandating masks is irresponsible, negligent, and dangerous.”

[4] The Applicant, Ms. Alviano, was a registered nurse who worked in hospital critical care units. On or about August 23, 2020, approximately five months into the COVID-19 pandemic, she made a speech at a “Hugs Over Masks Celebration of Life & Freedom” gathering in the Kitchener-Waterloo area. Ms. Alviano introduced herself at the outset of the speech as an “RN”. She was wearing scrubs and a stethoscope. She addressed the crowd using a loudspeaker. Although her speech was approximately nine minutes long, the ICRC raised concerns only with the following four statements:

a. “Cancer came, actually start to come, after they start vaccinate [sic] our children”;

b. “Big pharma doesn’t want doctors to treat with Hydroxychloroquine”;

c. “They want to give our kids, prophylactically…DNA of abortion materials”; and

d. “This current vaccine is just a RNA vaccine, see and educate yourself what does that mean, how it will change our body, our kids’ body. Our kids will not have kids, therefore the main agenda, Bill Gates…to decrease population, with his wicked rich wife”.

[5] The Applicants submit that the decisions of the ICRC were unreasonable on the basis that the committee did not undertake a robust analysis of their right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”). According to the Applicants, there is no authority, such as a practice standard or guideline, that requires nurses to refrain from sharing information that contradicts public health measures. The Applicants also submit that the ICRC decisions are devoid of analysis as to how the evidence before the committee was considered in arriving at their decisions.

[6] Ms. Pitter further submits that the ICRC in her case improperly made findings of fact and determinations of professional misconduct, contrary to its role as a screening committee.

[7] The crux of the Applicants’ submissions is that they were entitled to express unpopular views. In their submission, positive change cannot occur without constructive criticism of public institutions and policies. However, as further set out below, the committee did not find the statements here to engender positive public debate. Instead, its concern was that the Applicants, having publicly identified themselves as nurses, spread serious misinformation during a public health crisis. In my view, there is no basis to interfere with the ICRC’s decisions. In its Charter analyses, the ICRC appropriately considered the relevant statutory objective and reasonably determined that the remedial actions it took were proportionate to the Applicants’ right to freedom of expression. The ICRC’s decisions, though brief, were otherwise reasonable, particularly taking into account its role as a screening committee. For the reasons that follow, the applications are dismissed.

Charter Rights

[8] The Applicants submit that the ICRC failed to undertake the required robust analysis in concluding that cautioning the Applicants and requiring them to complete remedial education programs was a proportionate response to any Charter rights and values engaged. In particular, the Applicants emphasize that the right to freedom of thought, belief, opinion and expression protected under s. 2(b) of the Charter includes the right to express minority views, even if unpopular.

[9] The framework for administrative decision makers to consider alleged Charter violations is set out by the Supreme Court of Canada in Doré v. Barreau du Québec, 2012 SCC 12, [2012] S.C.R. 295, at paras. 55-58, and Loyola High School v. Quebec (Attorney General, 2015 SCC 12, [2015] S.C.R. 613, at para. 35. Under the Doré/Loyola framework, the administrative decision-maker first should consider its statutory objectives. Next, the decision-maker should ask how the Charter rights or values at issue will best be protected in view of the statutory objectives.

[10] There is no dispute that on judicial review, the reviewing court is to apply a reasonableness standard to the administrative decision-maker’s analysis. The question is whether the administrative decision reflects a proportionate balancing of the statutory mandate and the Charter protections at play. If it does, the decision will be found to be reasonable: Doré at para. 58.

[11] Here, the decisions of the ICRC reflected such a proportionate balancing. In its decisions concerning the Applicants, the ICRC expressly indicated that it had considered the potential impact of its decision on their s. 2(b) rights. As required, the committee first considered its statutory mandate. The ICRC noted its objective to protect the public interest. Specifically, subsection 3(2) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1992, S.O. 1991 c. 18 provides that the College’s overriding duty is to serve and protect the public interest.

[12] The committee then raised its concerns with the Applicants’ statements in the context of its public interest mandate. As the committee stated, Ms. Pitter’s comments suggested that vaccines would alter DNA, had the ability to track and manipulate thoughts and movement, or were part of a conspiracy. These comments were extreme and plainly misleading. The committee noted that the statements were not based on evidence, spread what could be dangerous misinformation, and were directly contrary to public health guidelines.

[13] Ms. Alviano’s statements raised the same concerns. The committee noted that her comments, among other things, inaccurately suggested that vaccination generally causes cancer and that the vaccine will affect future fertility as part of an effort to decrease the global population. The committee was concerned that Ms. Alviano’s statements could mislead the public with respect to public health measures, including vaccine development, efficacy, and safety and the need to take steps to prevent the spread of COVID-19.

[14] Given its statutory mandate, it was reasonable for the ICRC to be concerned about the Applicants’ statements. As the committee noted, in their public statements, both Applicants identified themselves as health professionals. Ms. Pitter publicly identified herself as a nurse practitioner and Ms. Alviano publicly identified herself as a registered nurse. This not only put the public at risk of being guided by false information, but also risked impacting the reputation of the profession.

[15] The ICRC issued a proportionate response to its concerns about the impact on the public interest. In understanding the ICRC’s response, it is important to appreciate its function as a screening committee. The ICRC is a statutory committee, established by the Code. It has defined powers. It performs a screening function by reviewing complaints and considering reports CNO receives about the conduct of College members and determining an appropriate regulatory disposition.

[16] After considering the results of CNO’s investigation into a member’s conduct, the ICRC may take a limited number of actions. These include referring a specified allegation against the member to CNO’s Discipline Committee, taking no action, requiring a member to appear before a panel of the ICRC to be cautioned, and taking action “it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws”: Code, s. 26(1). One of these actions is a Specified Continuing Education and Remediation Program (“SCERP”).

[17] In the cases of Ms. Pitter and Ms. Alviano, the ICRC declined to refer the matter to CNO’s Discipline Committee. Had it done so, the Applicants would have faced full disciplinary proceedings to determine whether they had engaged in professional misconduct at the risk of disciplinary penalties. Instead, the ICRCs required both Applicants to attend to be cautioned and to complete a SCERP. The committee characterized these outcomes as preventive, educational and remedial.

[18] I acknowledge the Applicants’ submission that, once a caution or other remedial order is issued, a notation to that effect appears on CNO’s public register under the individual nurse’s name. This is not an insignificant impact given that anyone can search the registry, including potential employers. Nonetheless, it does not undermine the fundamental point that, as found by this Court, these are remedial and not disciplinary responses: Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 (Div. Ct.). A caution or other remedial order cannot result in a finding of professional misconduct with associated penalties. In the context of the serious concerns raised by the Applicants’ conduct, I accept the ICRC’s conclusions that the remedial and educative responses minimally impaired the Applicants’ Charter rights. The committee’s decisions were proportionate.

[19] Contrary to the Applicants’ submissions, their cases are not comparable to Guelph and Area Right to Life v. City of Guelph, 2022 ONSC 43 (Div. Ct.). In that case, this Court found that the administrative decision-maker failed to undertake the Doré/Loyola analysis when considering complaints with respect to anti-abortion advertising. It did not identify the relevant legislative objectives and failed to have regard to the right to free expression: at para. 81.

[20] By contrast, in the cases at bar, the ICRC did undertake the Doré/Loyola analysis. In addition, the committee in both cases specifically acknowledged the Applicants’ right to free expression, stating that it recognized the member was entitled to express her personal opinions. Although the committee ultimately found it was appropriate to take remedial action, it did so only after having taken into account the Applicants’ rights to free expression and having engaged in the required balancing exercise.

[21] With respect to the Applicants’ submission that the ICRC’s Charter analyses were not lengthy, this is in keeping with its role as a screening committee. The ICRC is composed of members of the nursing profession and public members. It does not have two parties before it and does not hear witnesses or receive sworn evidence. Instead, it receives the documentary results of the investigation and considers submissions from the member. Indeed, in these cases, both Applicants’ submissions made only passing reference to the Charter. Ms. Pitter’s Charter submissions were limited to two sentences in her written submissions of over 30 pages (plus a further 42-page appendix). Ms. Alviano’s Charter submissions are found in one brief paragraph in submissions of almost ten pages.

[22] As set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] S.C.R. 653, at para. 133, reasonableness review is expected to reflect the stakes of the decision to the impacted individual. Where a decision has a particularly harsh consequence to the individual, there is a higher onus on the decision-maker to explain its decision. The corollary is that where, as here, a screening committee requires a remedial and educative response to a member’s conduct, a reasonableness review permits less detailed reasons.

[23] For example, it was appropriate for the committee here to provide less detailed reasons than was required in Strom v. Saskatchewan Registered Nurses’ Association, 2020 SKCA 112, 453 D.L.R. (4th) 472, at para. 155. Unlike in the current cases, there, the regulatory body’s discipline committee was making determinations of professional misconduct. That said, the ICRC’s decisions in the Applicants’ cases engaged in the required analysis by undertaking the steps set out in the Doré/Loyola framework. Overall, the reasons were appropriate to the context and reasonable.

ICRC Decisions Otherwise Reasonable

[24] The Applicants further submit that the ICRC decisions were unreasonable for their failure to address the evidence the Applicants provided in support of their public statements. The Applicants submit that, while their statements were unpopular, they are in some cases scientifically supported. They submit the ICRC was obligated to explain why it found the public statements to be misleading. They also submit that there is no published authority, such as a practice standard or guideline, that requires nurses to refrain from sharing information that contradicts public health measures.

[25] I reject these submissions. A reasonableness review does not require an administrative decision-maker to address every argument or piece of information put before it. Instead, review of an administrative decision should not be divorced from the decision-maker’s institutional context: Vavilov, at para. 91. As set out above, the ICRC does not hear witnesses or receive expert evidence. In its screening function, it is limited to reviewing the record of investigation and submissions of the member.

[26] In addition, reviewing courts are required to be attentive to a decision-maker’s demonstrated expertise: Vavilov, at para. 93. Here, the ICRC had highly relevant expertise. In both cases, the panel of the ICRC included three members of the nursing profession.

[27] The Applicants’ statements were not within the range of rational public debate. Rather, the committee raised serious concerns about the statements being dangerous and contrary to public health guidelines. In my view, the committee provided a sufficient explanation for their concerns to meet a reasonableness standard. In the context of what appear on their face to be plainly false statements, it is appropriate for this Court to defer to the panel’s expertise.

[28] I also reject the Applicants’ submission that there is no published authority preventing College members from sharing information contrary to public health guidelines. Standards of practice are not necessarily found in writing nor expected to address precisely every factual scenario. However, CNO has published standards and information that are relevant to the situations under review. For example, the expectations set out in CNO’s Professional Standards and Ethics documents include (1) that nurses are accountable for conducting themselves in ways that promote respect for the profession; and (2) that nurses are obligated to uphold and promote truthfulness, integrity, honesty and professionalism in all dealings with the public. Further, CNO has published a webcast entitled Social Media: Reflect Before You Post. The webcast sets out the expectation that nurses ensure their posts do not reflect negatively on the nursing profession or affect the public’s trust in the profession. It encourages nurses to find relevant educational resources related to their posts.

[29] Deference is owed to the ICRC in applying standards of practice to the Applicants’ conduct. In its decisions in the instant cases, the committee set out its expectation of nurses when making public statements and identifying themselves as nurses. These included the following: the information be accurate, evidence-informed and not contradict public health information; that nurses refrain from using their platform as healthcare providers to share misinformation; and that nurses share information that keeps the public and patients safe. These statements are consistent with CNO’s published authorities. The Applicants have not shown a basis to interfere with the committee’s application of these statements to the facts in issue.

ICRC’s Jurisdiction to Raise Concerns in Ms. Pitter’s Case

[30] Ms. Pitter also submits that, in her case, the ICRC unreasonably and unjustifiably exceeded its statutory grant of authority by making findings of fact and determinations of professional misconduct. She focuses in particular on the committee’s statement that, in its “view,” Ms. Pitter failed to maintain the profession’s standards by making public statements which were false, inaccurate or seriously misleading.

[31] I do not accept that the committee’s comments represent findings of fact or of misconduct. It is evident given its screening role that the ICRC has no authority to make findings of professional misconduct. The committee at no point exceeded this role. It did not state that it had made a finding of professional misconduct, nor did it take any action reflective of such a finding. Instead, the outcomes it ordered were statutorily available to it given its screening role. It perhaps would have been better for the committee to express its comments as “concerns” rather than a “view.” Regardless, it acted at all times appropriately within its jurisdiction.

Disposition

[32] Both applications for judicial review are dismissed. In accordance with the parties’ agreements, Ms. Alviano shall pay costs to CNO in the amount of $14,000.00 all-inclusive. Ms. Pitter shall pay costs to CNO in the amount of $17,500.00 all-inclusive.

O’Brien J

I agree _______________________________

Edwards R.S.J.

I agree _______________________________

Backhouse J

September 30, 2022

CITATION: Pitter v. College of Nurses of Ontario and Alviano v. College of Nurses of Ontario, 2022 ONSC 5513

DIVISIONAL COURT FILE NOS.: 059/22 and 327/22

DATE: 20220930

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Edwards, R.S.J., Backhouse, and O’Brien JJ.

BETWEEN:

KRISTAL PITTER

Applicant

– and –

COLLEGE OF NURSES OF ONTARIO

Respondent

AND BETWEEN:

LIUBOV ALVIANO

Applicant

– and –

COLLEGE OF NURSES OF ONTARIO

Respondent

REASONS FOR DECISION

O’Brien J.

Released: September 30, 2022