October 8, 2014

Challenging a referral to discipline by an inquiry (complaint-screening) committee

Administrative Law
Inquiry and Investigations
Professional Regulation

When an inquiry committee disposes of a complaint by issuing a citation for a disciplinary hearing, to what extent is that committee’s decision subject to challenge based on either procedural fairness or on its substantive merits? A recent decision of the Nova Scotia Supreme Court confirms that procedural fairness before a complaints committee does not include a right to receive and respond to all information before the complaint-screening committee, and a court will only set aside such a decision on the merits if the committee had no reasonable basis to refer the complaint to a discipline hearing: Levesque v. Nova Scotia College of Optometrists, 2014 NSSC 22 (“Levesque”).

Levesque involved a complaint that an optometrist delayed referring a patient to an ophthalmologist, and she suffered a partial loss of vision in one eye. [6] The optometrist explained in a response that he intended to her to an ophthalmologist within a few days if her symptoms did not improve. [7] The College obtained the optometrist’s chart notes for patient, [7] audited his office to review various patients’ charts, [10] and obtained an independent opinion [8-9]. The committee referred the question of whether the optometrist met minimum standards to the hearing committee. [11]

1. Procedural fairness: The court found that the content of the optometrist’s right to procedural fairness depended on the nature of the decision being made, did not require that he have an opportunity to know of and respond to the consulting optometrist’s opinion. [20] The court cited a BC case, Puar v. Association of Professional Engineers and Geoscientists, 2009 BCCA 487, where the BC Court of Appeal concluded that procedural fairness did not require disclosure of an investigation report at the investigation stage; rather, “while early disclosure may be useful, it is not normally required until the adjudicative stage where the member can expect to be afforded a hearing”. [19]

2. The merits of the decision to refer a matter to a hearing: The court noted that an initial investigation and screening decision is rarely subject to judicial review and that the preferred route is for the administrative process to continue to its conclusion. [22] The court also noted the difficulty of assessing the reasonableness of a decision by a complaint-screening committee which does not test evidence or make factual findings. [25] The court asked whether the committee had any reasonable basis on the law or the evidence to refer the complaint to a hearing, based on a Supreme Court decision on preliminary decisions in the human rights context, Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10. [27] Notably, although the optometrist argued that an isolated breach of a standard of care could not amount to unprofessional conduct, the court determined that one could reasonably interpret s.10 of the applicable regulation could include a single incidence of negligence. (Section 10 defined unprofessional conduct as including conduct “displaying a lack of competence, skill or judgment in providing professional services, including services related to diagnostic and therapeutic optometric drugs”.) [30-31]

Levesque v. Nova Scotia College of Optometrists, 2014 NSSC 22 (“Levesque”).

Lisa Fong and Kate Parisotto