June 30, 2011

Conference Questions: What should regulatory bodies disclose to complainants?

Administrative Law
Inquiry and Investigations
Professional Regulation

During our 2011 Professional Regulation Conference, a question arose as to the information inquiry committees may, or should, give to complainants. When a professional body is investigating a complaint, a prudent rule of thumb is to provide both complainant and responding registrant with the same information during the course of the investigation – at least insofar as the investigation concerns events of which the complainant has direct knowledge, and subject to third party privacy concerns. Such a course is rarely a statutorily mandated one, but it is a practical one, given procedural fairness concerns.

In some professions, governing legislation may stipulate a minimum degree of procedural fairness for complainants. For example, sections 34 and 36(1.1) of the Health Professions Act (HPA) require an inquiry committee to provide a written summary of any final disposition of a complaint other than a citation. Furthermore, on an application for review to the Health Professions Review Board, a complainant is prima facie entitled to the whole of the record of the inquiry committee’s investigation and decision in any event. In other professions, governing legislation may make no explicit mention of procedural fairness requirements for complainants. But even in such cases, one can expect a court to recognize that a regulatory body owes some degree of procedural fairness to each complainant. (For another blog article on those duties, click here.)

Functionally, therefore, a process that provides equal and complete information to both complainant and registrant reduces the risk of any challenge based on procedural fairness requirements. Such a process also maximizes the information an inquiry committee may have for a decision, e.g., where a complainant is provided with a registrant’s response to a complaint, and is given opportunity to “reply” to new facts the registrant has raised.

In some circumstances, of course, a regulator giving a complainant complete information is not appropriate. For instance, a complainant should not have automatic access to the private information of third party patients. Indeed, confidentiality of investigative information is presumed under the HPA, which stipulates in s. 53(1) that statutory actors must preserve confidentiality over what they learn when performing duties, unless the disclosure is “necessary to exercise the power or to perform the duty”. Similarly, a complainant under the Engineers and Geoscientists Act, RSBC 1996, c 116, for example, should not, simply by being a complainant, obtain access to trade or design secrets, or other sensitive information that forms part of records gathered by a regulator as part of a disciplinary investigation. Likewise, a complainant who makes allegations against a business-related professional, such as an accountant or a solicitor, should not thereby gain access to sensitive financial or strategic information that may relate to the matter complained about.

In cases where confidentiality of sensitive information is a concern, erring on the side of caution is important since, unlike superior courts, which can prevent misuse of confidential information through court order, professional regulatory bodies have no express power to control what complainants do with information once in their possession. (For health professions, this issue has been highlighted in recent months by the question of what the Health Professions Review Board can do with respect to information released to a complainant as part of the “record” of a decision under review. Next week, we will be examining a recent Supreme Court case which addresses the possibility of a party or tribunal obtaining injunctive relief from a court, to address any misuse of information arising from a disciplinary process.)