A psychiatric nurse was terminated by his employer for having a sexual relationship with a patient. His union grieved the matter. His regulatory college, which had been notified by the employer of the termination, conducted a preliminary investigation but held disciplinary proceedings in abeyance until the outcome of the grievance arbitration.

The arbitrator upheld the dismissal on the basis that the sexual relationship was made out. Following the outcome of arbitration, the College resumed disciplinary proceedings. It sought as a preliminary matter to have the nurse barred from relitigating the matter and urged the tribunal to adopt the arbitrator’s findings of fact. Counsel for the nurse objected, arguing that it would be unfair to deprive him of the ability to present evidence afresh.

The tribunal considered recent Supreme Court direction, which established that duplicative litigation should be avoided in the interests of finality in litigation and preventing abuse of process,1 but also that tribunals retained a residual discretion to permit relitigation where not doing so would raise fairness concerns.2 Applying the multi-factorial approach set out by the SCC in Penner, the tribunal held in this case that there were no significant fairness concerns, since the process, purpose and stakes (i.e., the nurse’s ability to continue in the profession) involved in the two proceedings were sufficiently similar, and the nurse had had both reason and opportunity to “defend himself with vigour” at the earlier proceeding. As such, there was no unfairness in depriving him of a second chance.

Comment: Re Mamdeen illustrates how one professional disciplinary tribunal resolved the ongoing tension between finality and fairness. It provides an example of the factors that come into play when assessing whether a professional regulatory tribunal can adopt previous findings or must hold a fresh hearing.