Re Mamdeen, 2014 CarswellBC 651 (B.C. College of
Registered Psychiatric Nurses Discipline Committee)
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
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
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
1 See for example BC Workers' Compensation Board
v Figliola, 2011 SCC 52
2 See Penner v Niagara Regional Police Services
Board, 2013 SCC 19
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