College of Registered Nurses of Manitoba v Hancock, 2022 MBCA 70

Citation: College of Registered Nurses of Manitoba v Hancock, 2022 MBCA 70 Date: 20220907 Docket: AI21-30-09681 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Diana M. Cameron Mr. Justice Christopher J. Mainella Madam Justice Jennifer A. Pfuetzner BETWEEN: the college of registered nurses ) D. W. Klaudtof manitoba ) for the Appellant ) Respondent ) B. R. Bowley and ) K. M.

Yakimoski- and - ) for the Respondent ) shannon hancock ) Appeal heard and ) Decision pronounced: Appellant ) September 7, 2022 pfuetzner JA (for the Court): [1] After a hearing (the conduct hearing), the appellant was found guilty of misconduct and found to be ungovernable bya decision (the misconduct decision) of an inquiry panel of the respondent (the panel). [2] The appellant did not appeal the misconduct decision to this Court as she was entitled to do under section 131(1)(

b) ofThe Regulated Health Professions Act, CCSM c R117 (the Act). Instead, the appellant sought a reconsideration of the misconductdecision at the subsequent hearing that was held to determine penalty. [3] After the penalty hearing, the panel issued reasons in which it declined to reconsider the misconduct decision, statingthat “the appropriate action for the [appellant] to have taken was to appeal the [misconduct] [d]ecision” to the Court of Appeal.

As topenalty, the panel ordered that the appellant’s registration under the Act be cancelled and it ordered her to pay costs in the amount of$40,000 (the penalty and costs decision). [4] After receiving the penalty and costs decision, the appellant filed a notice of appeal of that decision. [5] The appellant raises numerous arguments regarding both the misconduct decision and the penalty and costs decision.

Her assertions include that the panel failed to perform a correct analysis under the Canadian Charter of Rights and Freedoms; denied herprocedural fairness during the conduct hearing; and made incorrect and unreasonable decisions in finding misconduct, in findingungovernability, in failing to reconsider the misconduct decision, in imposing penalty and in ordering costs. [6] Appellate jurisdiction is entirely statutory—there is no inherent right of appeal to this Court other than what isprovided by statute (see Kourtessis v MNR, (SCC), [1993] 2 SCR 53 at 69-71).

The appellant’s rights of appeal aregoverned by sections 131(1) and 131(2) of the Act which state: Appeal to Court of Appeal 131(1) The investigated member or the college may appeal the following decisions of a panel to the Court of Appeal: (

a) a decision that no further action is to be taken under subsection 124(1); (

b) a finding made under subsection 124(2);

(

c) an order made under

section 126 or 127. How to appeal 131(2) An appeal must be commenced by filing a notice of appeal within 30 days after the decision of the panel is given to the investigated member. If the investigated member appeals the decision, he or she must promptly give a copy of the notice to the registrar. [emphasis added] (See also Sheddy v Law Society of British Columbia , 2006 BCCA 294 at paras 23-25 .) [ 7 ] The appellant failed to comply with the appeal provisions of the Act in respect of the misconduct decision despite that requirement being pointed out to her by the panel in its penalty and costs decision.

At that point, she could have brought a motion for an extension of time to file her notice of appeal but did not do so. [ 8 ] As a result, this Court has no jurisdiction to entertain the appellant’s arguments regarding the misconduct decision as it is not under appeal. However, even if we had jurisdiction, we are not persuaded that there is any arguable case to be made that the panel erred in the ways asserted by the appellant. We would have dismissed the appeal of the misconduct decision if it had been properly before us.

There is no merit to the appeal. [ 9 ] Absent a clear legal error, the standards of review to be applied on a statutory appeal as to the penalty for professional misconduct are deferential (see Law Society of Saskatchewan v Abrametz , 2022 SCC 29 at para 29 ). [ 10 ] A penalty decision will not be interfered with on appeal absent a misdirection in law or on the facts unless the decision is so wrong as to amount to an injustice (see Dhalla v College of Physicians and Surgeons of Manitoba , 2022 MBCA 7 at para 71 ).

A costs award will not be disturbed unless there has been an error in principle or the costs award is plainly wrong (see para 88). [ 11 ] We are of the view that there are no such reversible errors in the penalty and costs decision. [ 12 ] In the result, the appeal is dismissed with costs. JA JA JA