No Stay Pending Appeal in Ungovernability Case

In Kuny v College of Registered Nurses of Manitoba, 2016 MBCA 122, two findings of professional misconduct were made against nurse Kuny. The first was for failing to cooperate in an investigation and the second was for failing to abide by a remediation agreement (and misleading the College about failing to do so). The second finding resulted in an order of cancellation / revocation. The Court in considering the stay application said: “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.” The Court also applied the test for injunctions (i.e., there must be an arguable case, irreparable harm and the balance of convenience must favour the injunction).

The Court declined to stay the disciplinary order of revocation and appeared to be most influenced by the nurse’s apparent ungovernability. The Court did, however, stay the order to pay the College money as the Court felt that might prevent the nurse from exercising his legal rights since he was not working and had the expenses of the appeal.

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