2016 MBCA 122, 2016 MBCA 122

Citation: Kuny v College of Registered Nurses of Manitoba, Date: 20161215 2016 MBCA 122 Docket: AI16-30-08692 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : DOUGLAS KUNY ) ) D. J. Kuny Appellant ) on his own behalf ) ) K. T.

Williams - and - ) for the Respondent ) ) Chambers motion heard: COLLEGE OF REGISTERED NURSES ) December 1, 2016 OF MANITOBA ) ) Decision pronounced: Respondent ) December 15, 2016 STEEL JA [ 1 ] This is a motion for a stay pending appeal of an order of the Discipline Committee Panel (the panel) of the College of Registered Nurses of Manitoba (CRNM) cancelling the registration of the applicant. [ 2 ] The applicant has two appeals pending to this Court arising out of decisions of the Discipline Committee of the CRNM.

The first appeal, for which a factum has been filed, I shall refer to as the 2015 discipline decision and order. However, there is also a 2016 discipline decision and order and it is that order which the applicant seeks to stay until the resolution of his appeal from the 2015 discipline decision and order. He argues that the two are inextricably linked and the resolution of the latter appeal depends on the result of the former appeal. He also argues that it would constitute an extreme hardship to require him to pursue two appeals at the same time. [ 3 ] The CRNM argues that the two are not related at all.

While the 2015 discipline decision and order and the 2016 discipline decision and order both involve the applicant, they relate to separate and distinct allegations of misconduct that arise from different acts and omissions which resulted in two distinct referrals to the Investigation Committee at different times and consequently, two distinct referrals to different discipline panels for dispositions.

As well, it is submitted that, among other matters, to allow an ungovernable member to continue to practice as a nurse would be contrary to the public interest. [ 4 ] Some further explanation of the facts is obviously necessary. The Facts [ 5 ] In 2014, the Investigation Committee of the CRNM referred a complaint to the panel alleging that the applicant had refused to co-operate with the Investigation Committee, as he was required to do. [ 6 ] The panel found that the applicant had failed to co-operate with the investigation without reasonable explanation, and therefore, was guilty of professional misconduct.

The panel suspended the applicant for four months, ordered him to co-operate with the investigation, complete a paper and pay costs in the amount of $15,000.

This is the decision presently under appeal (the 2015 discipline decision and order). [ 7 ] Meanwhile, in relation to different complaints that arose in 2011, the Investigation Committee had reached an agreement with the applicant’s lawyer that, instead of proceeding with these different allegations, the applicant would successfully complete certain workshops and write a paper that demonstrated insight and learning regarding the issues involved in the allegations. [ 8 ] The applicant did not renew his registration for 2014, so this agreement was held in abeyance.

When he returned to the practicing register, he was given notice that he was required to complete the terms of his agreement and specifically, that the paper in

question was to be completed by September 17, 2015. [ 9 ] The Investigation Committee alleged that the applicant did not complete the paper as agreed and therefore had breached the agreement. The Investigation Committee referred the breach of that agreement to the panel for disposition.

After a very lengthy hearing, the panel agreed that the applicant had breached that agreement, that he had knowingly misstated facts in his correspondence to the executive director of the CRNM and that he was guilty of professional misconduct and ungovernable. [ 10 ] As a consequence of those findings, the panel cancelled the applicant’s registration and ordered the applicant to pay costs in the amount of $30,000. This is the decision (2016 discipline decision and order) that the applicant wishes to stay until the resolution of his appeal of the 2015 discipline decision and order.

Analysis and Decision [ 11 ] The law relating to the granting of a stay pending appeal is clear.

It is a matter of judicial discretion and there is a heavy onus on the applicant since the presumption is in favour of the correctness of the decision of the tribunal. (See Gateway Packers Ltd v Greyhound Canada Transportation Corp et al , 2004 MBCA 38 at para 5 ; Bank of Montreal v Superior Management Ltd et al , 2010 MBCA 72 at para 4 ; and Granite Mortgage Corp v Jurcevic , 2011 MBCA 59 at para 2 , 268 ManR (2d) 152 ). [ 12 ] This Court must carefully consider three principles in determining whether to grant the stay: 1. Whether there is an arguable case that the order sought to be appealed from is wrong.

In determining whether there is an arguable case, it is appropriate to consider that the applicable standard of review on appeal here would be one of reasonableness unless bias or natural justice is at issue. See Coffey v College of Licensed Practical Nurses (Man) , 2008 MBCA 33 , 228 ManR (2d) 64 ; and Consumers’ Association of Canada (Manitoba) Inc et al v Manitoba Hydro , 2005 MBCA 55 at para 12 , 195 ManR (2d) 12 , followed on this point in Eibner v Superintendent of Pensions (Man) et al , 2014 MBCA 65 at paras 34-35 , 306 ManR (2d) 250 . 2.

Whether the applicant would, unless the stay is granted, suffer irreparable harm, namely, harm that is not susceptible or is difficult to be compensated in damages; Kassian v Hill , 2002 ABCA 140 at para 6 , 303 AR 391 ; Brett et al v Amica Mature Lifestyles Inc , 2004 NSCA 93 at para 14 , 225 NSR (2d) 175 ; and Yazdanfar v College of Physicians and Surgeons (Ont) , 2012 ONSC 2422 at para 64 , 292 OAC 341 (DC) . 3. On the balance of convenience, which of the parties involved would suffer the greater harm from the granting or the refusal to grant a stay pending the disposition of the appeal on its merits?

On this last criteria, the court must not only consider the interests of the litigants but, in a case such as this, the interests of the public at large. See Bennet v Registered Psychiatric Nurses’ Association (Man) , 2003 MBCA 53 at para 6 ; and Yazdanfar at para 67 . [ 13 ] The decision of the 2016 panel was made after a lengthy hearing and its reasons are thorough and detailed. The 2015 decision and the 2016 decision are separate and distinct regulatory proceedings arising at different times from different conduct and different allegations which resulted in completely different dispositions.

When deciding on the penalty for the 2016 decision, the panel specifically stated they were not going to consider the 2015 decision that is presently under appeal. [ 14 ] Irreparable harm is customarily defined as harm that cannot be compensated by way of damages.

Even in the event that the applicant is successful on his appeal, while I do not wish to minimize the emotional trauma and stress arising from financial hardship and not being able to work, monetary damages will adequately compensate him for any income loss suffered throughout the period of time that he was without his registration. [ 15 ] In circumstances where granting the stay would allow the applicant to treat patients, the balance of convenience must favour the protection of the public. Here, the member has been found to be ungovernable.

The reasons themselves make it clear that the panel cancelled the applicant’s registration because it was concerned with the protection of the public. The Panel has considered whether, based upon the evidence before it, and in the absence of the other discipline matter, a lengthy period of suspension, with a requirement for both a course of studies and counseling (with specific reference to accountability and communication), with provision for supervision upon reinstatement and the maximum fine, would be appropriate.

However, the Panel is concerned, having regard to the Member’s complete lack of insight, his failure/refusal to acknowledge or accept any responsibility, and his overall conduct throughout, that any period of suspension with remediation could facilitate the required change in this Member’s behaviour. Conclusion [ 16 ] At this preliminary stage, I am not prepared to conclude that there is no arguable case. I am denying the stay primarily on the third criteria.

The balance of convenience favours refusing a stay in order to protect the public interest as opposed to granting the stay, which would effectively permit the applicant to return to practice and may put the public at risk. [ 17 ] However, I would stay the condition that the applicant pay the CRNM costs of $30,000 within 12 months of the order. It is true money does not normally constitute irreparable harm. Yet, this applicant is not able to work in his chosen profession while he pursues his remedies with respect to two appeals. The CRNM will not suffer irreparable harm if the payment of these costs is delayed.

On the other hand, the applicant may find the combination of lack of employment, the pursuant of two appeals to the Court of Appeal and the payment of two sets of costs to the CRNM at the same time so crushing that it effectively prevents him from pursuing his rights of appeal.

[ 18 ] The stay is denied except with respect to the order to pay costs of $30,000 contained in the 2016 discipline decision and order. JA