Kuny v College of Registered Date:, 2018 MBCA 21

Citation: Kuny v College of Registered Date: 20180228 Nurses of Manitoba, 2018 MBCA 21 Docket: AI16-30-08692 IN THE COURT OF APPEAL OF MANITOBA Coram: Chief Justice Richard J. Chartier Mr. Justice Marc M. Monnin Madam Justice Janice L. leMaistre BETWEEN : DOUGLAS KUNY ) F. H. K. Li ) for the Appellant Appellant ) ) K. T. Williams and - and - ) E. J. B.

Day ) for the Respondent COLLEGE OF REGISTERED NURSES ) OF MANITOBA ) Appeal heard and ) Decision pronounced: Respondent ) February 28, 2018 Chartier CJm ( for the Court): [ 1 ] Douglas Kuny (Kuny), a registered nurse, appealed the decision of the Discipline Committee Panel (the Discipline Committee) of the College of Registered Nurses of Manitoba (the College). The Discipline Committee found Kuny guilty of professional misconduct and conduct unbecoming a member. It also held that he was ungovernable. In terms of penalty, it ordered that Kuny’s registration be cancelled and that he pay costs of $30,000.

After hearing the appeal, we dismissed it with brief reasons to follow. These are those reasons. [ 2 ] Kuny appealed the Discipline Committee’s finding that he was ungovernable, as well as the penalties imposed. He accepted all other findings of the Discipline Committee. This Court has previously held that the appropriate standard of review in cases involving findings of discipline committees is one of reasonableness (see Coffey v College of Licensed Practical Nurses (Man) , 2008 MBCA 33 ). [ 3 ] With respect to the first ground, we were all of the view that there was absolutely no merit.

As this Court recently stated in another appeal involving Kuny, Kuny v College of Registered Nurses of Manitoba , 2017 MBCA 111 (at para 73 ): A finding of ungovernability is based on a case-by-case analysis in which the guiding principle is the public interest. Members of a profession must be willing to be governed by their regulator; otherwise, the public cannot be protected.

A demonstrated inability or unwillingness to abide by the decision of a regulatory body will support a finding of ungovernable conduct . [ 4 ] In this case, the Discipline Committee found that Kuny had, by his actions and words, refused to accept the authority or take direction from his governing body and was therefore ungovernable.

Based on the evidentiary record before us, it was most certainly open for the Discipline Committee to find that Kuny was ungovernable. [ 5 ] Regarding the second ground, Kuny submitted that the cancellation of his registration and the $30,000 costs order were excessive and unduly harsh. He referred to other cases in which nurses have been subject to far less severe penalties. Kuny also argued that it was not appropriate for the Discipline Committee to have considered his lack of remorse as an aggravating factor in establishing a penalty.

The College, for its part, referred to other cases where a finding of ungovernability had led to the cancellation of a member’s registration. [ 6 ] The fundamental purpose of sentencing for professional misconduct is to ensure that the public is protected from these kinds of acts (see James T Casey, The Regulation of Professions in Canada , vol 2 (Toronto: Thomson Reuters, 2016) at 14-6 to

14-7). In the case at hand, the Discipline Committee was aware that Kuny had previously been found guilty of misconduct and found to be ungovernable. It cannot be said that it was unreasonable for the Discipline Committee to have increased the severity of the penalty in light of Kuny’s previous disciplinary matter, where his conduct had been found to be ungovernable. Cancellation was certainly, in the circumstances of this case, a penalty that fell within a range of possible and acceptable outcomes.

We concluded that the same could be said with respect to the costs award. [ 7 ] The final argument we considered was whether the Discipline Committee erred in the way it considered Kuny’s lack of remorse or failure to accept responsibility. Members are entitled to maintain their innocence and to contest the allegations against them. The Discipline Committee would have erred if it had considered any lack of remorse as anything more than a factor disentitling Kuny to leniency with respect to penalty. However, the Discipline Committee never mentioned “remorse” or lack thereof in its decision.

It did, at one point, state that Kuny failed “to accept responsibility or to be accountable for his actions”, but that was when the Discipline Committee was considering the governability issue, as opposed to the appropriate penalty, and it was therefore a relevant consideration in that part of the analysis. A fair reading of the Discipline Committee’s reasons led us to conclude that it did not err in its analysis. [ 8 ] In the result, we dismissed the appeal with costs. CJM JA JA