2021 MBCA 59, 2021 MBCA 59

Citation: Hancock v College of Registered Nurses of Manitoba, Date: 20210608 2021 MBCA 59 Docket: AI19-30-09326 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Holly C. Beard Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre BETWEEN : ) S. Hancock ) on her own behalf ) SHANNON HANCOCK ) W. G.

Haight ) for the Respondent ) Appellant ) Appeal heard: ) September 29, 2020 - and - ) ) Judgment delivered: cOLLEGE OF REGISTERED NURSES ) March 10, 2021 OF MANITOBA ) ) Motion under Court of ) Appeal Rule 46.2 Respondent ) ) Decision pronounced : ) June 8, 2021 per curiam [ 1 ] The appellant moves for an order pursuant to r 46.2 of the MB, Court of Appeal Rules , MR 555/88R (the CA Rules ), granting a rehearing of her appeal that was dismissed on March 10, 2021 (see 2021 MBCA 20 ). She asks that the rehearing be conducted orally before Chartier CJM.

She also seeks an order of prohibition “preventing the [r]espondent and the various agents and representatives alleging to act for the [r]espondent from initiating or continuing further quasi-judicial and judicial procedures pending rehearing.” No certificate of decision has yet been entered. [ 2 ] The appellant filed a memorandum of argument and a supplemental memorandum of argument in support of her motion.

The respondent filed a memorandum of argument in response to the motion. [ 3 ] For the following reasons, we are satisfied that oral argument on the motion for a rehearing is not required and that the appellant has not met her heavy burden of establishing exceptional circumstances that would justify a rehearing of the appeal by either the Court or the Chief Justice of Manitoba.

In light of our conclusion, we need not address the appellant’s request for a prohibition order pending a rehearing. [ 4 ] The appellant was found guilty of professional misconduct by a panel of the Discipline Committee of the College of Registered Nurses of Manitoba (the Panel). As a result, her registration to practice was suspended for two months. She was also ordered to successfully complete a remedial course and to pay costs in the amount of $15,000. [ 5 ] On the appeal, the appellant raised issues relating to jurisdiction, delay, sufficiency of reasons and procedural fairness.

She also argued that the penalty was unreasonable. [ 6 ] The appellant’s appeal of the finding of professional misconduct and the penalty imposed was dismissed. [ 7 ] Rule 46.2 of the CA Rules provides for a rehearing of an appeal as follows:

Rehearing 46.2(1) There shall be no rehearing of an appeal except by order of the court or at the instance of the court. 46.2(2) A rehearing of an appeal may be ordered before the certificate of decision has been entered. 46.2(3) A motion requesting a rehearing shall be in writing stating the grounds for the motion, supported by a memorandum of argument. . . . 46.2(9) There shall be no oral argument on the motion requesting a rehearing unless by direction of the court. . . . [ 8 ] As explained by Hamilton JA in Rémillard v Rémillard , 2015 MBCA 42 , relying on Willman v Ducks Unlimited (Canada) , 2005 MBCA 13 , a rehearing of an appeal is to be granted only in exceptional circumstances, where the interests of justice manifestly compel such a course of action (see Rémillard at para 8 ).

Exceptional circumstances warranting a rehearing include (at para 9): . . . 1) there is a patent error on a material point on the face of the reasons; 2) the appeal was decided on a point of law that counsel had no opportunity to address, and which point could not have reasonably been foreseen and dealt with at the hearing; or 3) the court has clearly overlooked or misapprehended the evidence or the law in a significant respect and there is a consequential serious risk of miscarriage of justice. [ 9 ] The standard to establish a miscarriage of justice is significant (see Samborski Garden Supplies Ltd v MacDonald (Rural Municipality) , 2015 MBCA 53 at para 23 ). [ 10 ] The appellant’s grounds for the motion for a rehearing include the following: 1. the decision makes a series of patent errors on material points; 2. the decision overlooks and misapprehends the evidence and the law; and 3. the decision was decided on a point of law that the appellant had no opportunity to address. [ 11 ] The appellant’s main argument is that the Court misapprehended the evidence and that a rehearing will “change the facts”.

She also makes spurious allegations against counsel for the respondent. [ 12 ] The respondent argues that the test for a rehearing has not been met and points out that the appeal was not decided on a point of law that the parties had no opportunity to address. We agree. [ 13 ] At the appeal, the appellant asserted that the Panel erred by failing to dismiss her matter for unreasonable delay. This Court concluded that the appellant had failed to establish any error warranting appellate intervention.

The point of law referred to by the appellant on her motion for a rehearing relates to an issue she raised as a new issue on the appeal (see para 41), so clearly, having raised the point, she had the opportunity to address it. Regardless, the appeal was not decided on this issue. We have not been persuaded that this issue warrants a rehearing of the appeal. [ 14 ] We have also not been persuaded that there is any obvious error on a material point or that this Court has clearly overlooked or misapprehended the evidence or the law resulting in a miscarriage of justice.

A rehearing is not available when a party disagrees with the result on the appeal. It is not an opportunity to reargue the appeal. The appellant’s failure to establish any error warranting appellate intervention on the appeal does not mean that we misapprehended the facts as found by the Panel. [ 15 ] The appellant has not demonstrated any error that would amount to exceptional circumstances warranting a rehearing of

the appeal. [ 16 ] In the result, the appellant’s motion for a rehearing and a prohibition order is dismissed with costs in favour of the respondent in accordance with the applicable tariff. JA JA JA