The misconduct convictions imposed by the Respondent were upheld on appeal as the Court held that the Panel was not unreasonable in the exercise of its statutory duty. However, the costs award ordered against the Appellant exceeded the bounds of reasonableness and was set aside.

Administrative law – Nurses – Disciplinary proceedings – Professional misconduct or conduct unbecoming – Penalties – Judicial review – Administrative decisions – Standard of review – Reasonableness simpliciter – Costs

Filipchuk v. College of Licensed Practical Nurses of Manitoba, [2004] M.J. No. 367, Manitoba Court of Appeal, September 29, 2004, Twaddle, Kroft and Monnin JJ.A.

A statutory appeal was commenced by the Appellant nurse from a resolution and order of a Panel of the Discipline Committee of the College of Licensed Practical Nurses of Manitoba. The Appellant was found guilty of professional misconduct or conduct unbecoming a licensed practical nurse with respect to abuse or mistreatment of four elderly women patients. Her certificate of registration was ordered to be suspended for two months and, amongst other things, she was not allowed to work independently and was ordered to pay the College costs in the total amount of $10,000.

The court noted that the appropriate standard of review is to be determined by applying a pragmatic and functional approach which requires the reviewing court to consider four basic contextual factors:

(a)  the presence or absence of a privative clause or statutory right of appeal;

(b)  the relative expertise of the administrative body to that of the reviewing court with respect to the issue in question;

(c)  the purposes of the legislation and of the provision in particular; and

(d)  the nature of the question as one of law, fact, or mixed law and fact.

The application of those factors led the court to the conclusion that the appropriate standard of review on all questions under scrutiny in this case was that of reasonableness. The court held that the Panel was not unreasonable in its exercise of statutory duty. Therefore with respect to the misconduct conviction, the appeal failed. With respect to the punishment imposed on the Appellant, it was noted that while it was severe in its totality and would have a major impact on the Appellant, the court’s right to interfere with the penalty was limited by the standard of reasonableness. The decision may have been tough, but the court was not prepared to say that it was unfit or unreasonable.

However, with respect to the order for costs, the court held that the bounds of reasonableness had been exceeded and that intervention was warranted. The court noted that the members treated the imposition of costs as something mandatory rather than permissive. Given the Appellant’s financial circumstances, the award was harsh, unfit and unreasonable and was therefore set aside.

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