Executive Summary: Key Legal and Evidentiary Issues

• David Chochinov, an occupational therapist, sought a stay of discipline and penalty decisions pending his appeal to the Manitoba Court of Appeal.
   
• The applicable test for a stay pending appeal is the three-part RJR — MacDonald test: arguable issues, irreparable harm, and balance of convenience.
   
• Charges of professional misconduct arose from an incident with a young female client, involving a comment about her "cleavage," disclosure of her treatment information without consent, and unsolicited text messages.
   
• The court found the appeal raised arguable issues, noting it was neither frivolous nor vexatious despite some grounds having a low chance of success.
   
• Irreparable harm was established based on the appellant's inability to seek compensatory damages against his regulator and the financial impact of transferring his clientele during a four-month suspension.
   
• Public protection was considered in the balance of convenience, but the court found the risk to the public would not be significant if the penalty was stayed pending appeal.

Facts of the case

David Chochinov, an occupational therapist and member of the College of Occupational Therapists of Manitoba (the college), was found guilty of seventeen charges of professional misconduct following a hearing by a panel of the Inquiry Committee of the College of Occupational Therapists of Manitoba (the panel). The charges mainly arose from an incident with a young, female client (the complainant). During a session, Chochinov made a comment about the complainant's "cleavage," causing her to leave the session very upset. Without the complainant's consent, Chochinov subsequently discussed aspects of her treatment with her mother after the mother called him. He also sent the complainant several text messages. The incident that gave rise to the complaint occurred in August 2018; the complaint was filed in June 2020; after an investigation, it was referred to the respondent in November 2022. The panel rendered the discipline decision in November 2025 and the penalty decision in April 2026. During this period, Chochinov continued to see clients without complaint, and the college did not place any conditions or restrictions on his practice.

The penalty imposed by the panel included a four-month suspension of Chochinov's registration, together with several conditions he would need to fulfill before resuming his occupational therapy practice. Chochinov then sought a stay of both the discipline decision and the penalty decision pending his appeal, pursuant to section 48 of The Occupational Therapists Act, CCSM c O5.

Legislative provisions at issue

The stay application was brought under section 48 of The Occupational Therapists Act, CCSM c O5. The parties agreed that the test governing a stay pending appeal is the three-part test from RJR — MacDonald Inc v Canada (Attorney General), [1994] 1 SCR 311, 1994 CanLII 117 (SCC), which requires the applicant to establish: (1) that there are arguable issues to be determined on appeal; (2) that the appellant will suffer irreparable harm if the stay is not granted; and (3) that the balance of convenience favours granting the stay.

Reasoning and analysis

On the first branch, Justice Turner noted that the threshold for a serious issue is relatively low — the appeal need only be neither frivolous nor vexatious — citing Ghazali v Guisti, 2024 MBCA 94. Chochinov raised twenty-five grounds of appeal, summarized as alleged procedural errors, issues of delay, issues of bias, and failures to follow several provisions of the Act. While the court acknowledged that some of those grounds had a low chance of success given applicable standards of review, the appeal as a whole was found to raise serious arguable issues.

On the second branch, the court observed that professionals facing regulatory sanctions generally cannot obtain compensatory damages from their regulator, and that reputational harm is difficult to quantify, referencing Hove v College of Physicians & Surgeons of PEI, 2025 PECA 3. Chochinov had practiced in Manitoba for approximately twenty-four years, treating over 3,000 clients, and the complaint that led to these proceedings was only the second complaint made against him in his career — the first having been dismissed by the college. The penalty decision impaired his ability to earn a livelihood by requiring him to transfer his clients to other occupational therapists, with the prospect that he might not recover those clients. He is also the sole breadwinner for a family that includes five children. The court was satisfied that irreparable harm had been established.

On the third branch — balance of convenience — the court was required to consider the protection of the public as part of the analysis where a stay relates to a professional regulatory order, referencing Hove at paragraph 31. The court acknowledged the seriousness of the complaint and its impact on the complainant, but noted that Chochinov had continued to practice without incident from the time of the original complaint through to the penalty decision, with no conditions or restrictions imposed by the college. In those circumstances, the court was not satisfied that the public would be placed at risk if the penalty was stayed pending appeal.

Ruling and overall outcome

Justice Turner granted Chochinov's request for a stay of the discipline and penalty decisions pending appeal. The balance of convenience favoured the appellant in the circumstances. The issue of costs was reserved to be determined with the appeal; accordingly, no costs were ordered at this stage.