March 5, 2014

Challenging the Fairness of Investigations

Administrative Law
Inquiry and Investigations
Professional Regulation

Regulators who investigate complaints may face procedural fairness challenges to their investigative processes. The Alberta Court of Appeal has confirmed that the procedural fairness a college must provide during an investigation is at the low end of the spectrum, and if an investigation has proceeded unfairly, a subsequent discipline hearing may cure the unfairness. The court also cautioned against courts interfering with administrative processes prior to the conclusion of proceedings by the regulator: MK Engineering Inc. v. Assn. of Professional Engineers and Geoscientists of Alberta, 2014 ABCA 58.

MK Engineering involved a complaint about MK Engineering (“MK”) to the Association of Professional Engineers and Geoscientists of Alberta (“APEGA”).

Discipline Committee Panel decision: The Investigative Committee of APEGA investigated the complaint, which led to a disciplinary before a five-person Discipline Committee panel. But on a preliminary application, the panel discerned doubt as to what charges the Investigative Committee had referred to a hearing, and found an apprehension of bias by the Investigative Committee, resulting from inflammatory comments, the Director of Investigations’ practice of drafting, with the assistance of legal counsel, charges without ratification by the Investigative Committee; and less-than-objective comments made by the Investigative Committee. [11]

Appeal Board decision: The Investigative Committee appealed the panel’s decision to the Appeal Board of APEGA, which quashed the panel’s decision and remitted the matter to a differently-constituted discipline panel for a new hearing; the panel erred in finding that the Investigative Committee had to approve specific charges, and in finding that the referral by the Investigative Committee was tainted by a reasonable apprehension of bias. [14]

Court of Appeal decision: The Alberta Court of Appeal adjourned the appeal as premature, ruling that an appeal should not be heard before administrative proceedings have completed. Its interfering in the administrative process was not be appropriate, especially given that MK had a right of appeal from any decision made by the new hearing panel. [19]

The court referred to Robertson v. Wasylyshen, 2003 ABCA 279 (“Robertson”), where an appeal related to outstanding disciplinary proceedings against a police officer that had not yet concluded. In Robertson, the Court of Appeal set out reasons why a general prohibition exists against interlocutory appeals, including the possibility that a hearing on the merits may render an appeal moot.

The Court of Appeal drew a clear distinction in MK between procedural irregularities at an investigative stage, and at an adjudicative stage, noting that, “It is well established that duties of fairness at the investigative stage are qualitatively lower than duties owed at the adjudicative stage”, and that “errors at the investigative stage can be corrected” during the adjudicative process. [18]

MK Engineering Inc. v. Assn. of Professional Engineers and Geoscientists of Alberta, 2014 ABCA 58