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RHPA - Appeals. Carrasco v. College of Massage Therapists of Ontario
In Carrasco v. College of Massage Therapists of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court considered the 'balance of convenience' element of a professional discipline stay pending appeal motion (RJR):C. The Balance of Convenience
[50] Under this leg of the test, the court must balance the prejudice to the moving party of not granting the stay against the prejudice to the responding party in granting it. In a case involving professional discipline, it is the public’s interest that must be balanced against the moving party’s. See: Yazdanfar v. College of Physicians and Surgeons of Ontario, 2012 ONSC 2422 at paras. 67-68.
[51] In this leg of the test, the public interest is paramount. Schabas, J. words at para.38 of Kitmitto are appropriate here:In my view, the balance of convenience favours the public interest over the private interests of the moving parties in not staying the market participation bans pending the appeals. To continue the interim stay would ignore the fundamental change in circumstances brought about by the Tribunal’s findings about each of the moving parties, the legislative direction that sanctions are not to be delayed absent meeting the test for a stay, the limits on supervision of Goss, and the need to preserve public confidence in the administration and enforcement of the Securities Act. [52] Prior to his being found to have breached the Code of Conduct, the Appellant faced only allegations. Things are different, now - he has been found to have engaged in professional misconduct. His conviction is for acts which are viewed by his regulator as being sufficiently heinous as to merit cancellation of his licence. A stay would undermine public confidence in the self-regulation of members of his profession and other similar professions. See: Aboujamara, supra, at para. 25.
[53] Finally, the Appellant faces the presumption that the decision was correct until he succeeds on the appeal.
[54] The Appellant argues that he will suffer prejudice because of the suspension because he cannot continue to serve his clients in a field built on trust between the client and the service provider. It is an inherently personal profession requiring consistent client engagement over long career to build trust and loyalty between the client and service provider.
[55] The determination by the College that the Appellant had engaged in professional misconduct caused that damage, not the stay. . Carrasco v. College of Massage Therapists of Ontario
In Carrasco v. College of Massage Therapists of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court considered the 'irreparable harm' element of a professional discipline stay pending appeal motion (RJR), including the factor of delay in bringing the motion:B. Will the Appellant suffer Irreparable Harm?
[42] Irreparable harm must be more than loss of income or financial loss. Were this the standard, then every case in which the moving parties suffer a loss of income would meet the test. Indeed, in a professional disciplinary matter where there is a suspension or revocation of licence, economic losses are to be expected. See: Aboujamra, supra, at para. 17 to 18; Kitmitto et al. v. Ontario Securities Commission, 2023 ONSC 1739 at para. 13.
[43] Emotional harm, reputational harm, and psychological attachment to a profession will almost always exist in a professional discipline case, something more must exist, otherwise, irreparable harm as a consequence would always exist and weigh in favour of granting a stay. See: Sazant v. College of Physicians & Surgeons (Ontario), 2011 CarswellOnt 15914 (ONCA) at para. 13; Noriega v. College of Physicians and Surgeons of Ontario, unreported, October 22, 2015 (Div. Ct.) at para. 26; Aboujamra, supra, at paras. 18-20, Kitmitto, supra, at para. 14; Doe v. College of Physicians and Surgeons, 2021 ONSC 7550 at para. 12. These kinds of harm are not irreparable. They are addressed by vindication on appeal. See Doe, supra, para. 12.
[44] Irreparable harm must be harm that is incapable of quantifying, or which cannot be cured because one party cannot collect damages from the other. It is the nature of the harm that is to be considered, not its magnitude. Evidence of irreparable harm must be clear and not speculative, so too the evidence that the moving party will suffer it. Evidence of possible or likely harm is not enough. See: Sazant at para. 11; Noble v. Noble, 2002 CarswellOnt 4445 (ONSC) at para. 16; Kitmitto, supra, at para. 13.
[45] Mr. Carrasco states he has suffered serious harm. He faces bankruptcy, although he is trying to delay that event. He says that he has borrowed money from his family but they say that they can no longer provide him with money. Finally, he has few assets to call upon.
[46] Bankruptcy, alone, does not constitute irreparable harm, unless, for example, it would destroy a commercial business, for example. The possibility of bankruptcy and speculative evidence about how bankruptcy will affect the moving party is not enough. See: Aboujamra, supra, at para. 18.
[47] The threshold for establishing irreparable harm is high. See: Barnwell v. LSO, 2024 ONSC 5826 at para. 16.
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[49] Delay also works against the Appellant’s claim of irreparable harm. Generally, a stay motion must be brought at the earliest opportunity, which is usually between when the decision appealed from is released and when the appeal is commenced. See: Law Society of Ontario v. A.A., 2024 ONSC 2681 at para. 27. In this case, the Appellant brought his motion to stay 3 months after the decision appealed from and 2 months after commencing his appeal. Much of the economic impact he alleges as creating irreparable harm, occurred during this delay period. It is not appropriate to consider as irreparable harm under the stay analysis, harm incurred by the Appellant’s own lack of diligence. . Brodsky v. College of Nurses of Ontario
In Brodsky v. College of Nurses of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from "decision of the Discipline Committee of the College of Nurses" that "found that the appellant committed acts of professional misconduct".
Here the court noted the appellate SOR for RHPA penalties:[35] With respect to the appeal from penalty, the Appellant must show that there was an error in principle or that the penalty was clearly unfit. To be clearly unfit, the penalty must be disproportionate or fall outside the range of penalties for similar offences in similar circumstances: Gill v. College of Physicians and Surgeons of Ontario, 2022 ONSC 49 (Div. Ct.), at para. 82. . Brodsky v. College of Nurses of Ontario
In Brodsky v. College of Nurses of Ontario (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here from "decision of the Discipline Committee of the College of Nurses" that "found that the appellant committed acts of professional misconduct".
Here the court noted it's Discipline Committee appeal jurisdiction:[17] The Divisional Court may hear appeals on questions of law or fact or both with respect to proceedings before the Discipline Committee: s. 70 of the Health Professions Procedural Code, being Sched. 2 to Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”).[1] . Casella v. Ontario (College of Chiropodists)
In Casella v. Ontario (College of Chiropodists) (Div Court, 2024) the Divisional Court considers an HPPC s.70(1-2) appeal from a misconduct finding (and related sanctions and costs) of the "Discipline Committee (the “Committee”) of the College of Chiropodists of Ontario". Here the court cites it's RHPA-HPPC appeal authorization:24. The Divisional Court is authorized to hear appeals on questions of law or fact or both with respect to proceedings before the Committee and has all the powers of the Committee that dealt with the matter: Code, ss. 70(1) and (2).
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