Throughout regulatory investigations, investigators are required to make numerous choices – like choosing which medical files to review. These choices are sometimes challenged by registrants. But a recent case serves as a reminder of the deference afforded to regulators in such matters: Saeed v. College of Physicians and Surgeons of Ontario, 2025 ONSC 6485.
The Saeed case concerned a registrant’s challenge to a regulator’s investigative choices. The Applicant, a general practice anesthesiologist, was the subject of an investigation by the College of Physicians and Surgeons of Ontario (“CPSO”) following receipt of multiple adverse event reports involving patients at his clinic of practice. Concerns were raised about the Applicant’s clinical care, judgment, and record-keeping. The Registrar of the CPSO appointed a specialist in anesthesiology as the assessor in this matter (the “Assessor”) and to investigate the Applicant’s practice. Following its review, the Inquiries, Complaints, and Reports Committee (ICRC) required the Applicant to complete remedial education.
The Applicant argued that the ICRC’s decision was unreasonable and procedurally unfair on a number of grounds including that the CPSO’s chart selection was skewed, the Assessor was biased and unqualified, and the ICRC failed to consider relevant evidence and address alleged errors in the Assessor’s report.
The court dismissed the application for judicial review, making the following points:
1. Screening committees owe registrants limited procedural fairness: The Court found that the ICRC met its procedural fairness obligations. The Applicant was given notice of the investigation, an opportunity to respond, and the ICRC considered all submissions. The ICRC is a screening committee and does not make findings of fact or of professional misconduct; the court has repeatedly held that the degree of procedural fairness owed by the ICRC to a registrant under investigation is relatively low, and which was satisfied in this case. (Paras. 35-37)
2. Investigators may select records with broad discretion: The ICRC’s decision to review charts of only the Applicant’s most difficult/complex cases was appropriate. The ICRC has wide discretion in choosing which documents to review when disposing of an investigation. Further, the ICRC addressed the Applicant’s concerns about the chart selection and considered the Assessor’s addendum, which acknowledged the limited representation of the charts reviewed. (Paras. 39-41)
3. Decision-maker impartiality defeats alleged assessor bias: The Court rejected the Applicant’s claim of bias, noting that the ICRC, not the Assessor, was the decision-maker. The ICRC was aware of and addressed the Assessor’s errors and shortcomings, demonstrating impartiality and independence in its decision-making. (Paras. 44-47)
4. A screening committee may assess evidence independent of an assessor: The Court held that the College had discretion to appoint the Assessor, who was qualified to evaluate the Applicant’s practice. The ICRC was not bound by the Assessor’s report and independently assessed the evidence. (Paras. 49-52)
5. A remedial order requires only some supporting basis in the record: The ICRC, as a screening committee, was not required to review all the source material, e.g., by detailing findings in all 12 patient files. It has broad discretion regarding which documents it chooses to review in disposing of an investigation. Even if the ICRC relied on just one of the charts, there was sufficient evidence to support its decision. (Paras. 58-64)
6. Minor factual errors must be material, or central to the result, to justify judicial intervention. The Court dismissed the Applicant’s claims that the ICRC misrepresented his history; any minor errors did not undermine the reasonableness of the decision: “[66] … If there are mistakes with some individual items, such mistakes do not reach the threshold required for the court to intervene.” (Paras. 66-68)
Here are some takeaway points:
- Sampling selection should align with the risk or concern.
- The rationale for how sampling selection should appear in the record.
- Decision-makers should ensure their reasons explain why limited sampling provides sufficient evidentiary basis for the disposition, e.g., selected records relate to high-risk patients, or specific concerns may be assessed without a comprehensive review, or identified deficiencies are, on their own, sufficient to justify the committee’s concern.
- Committees are not bound by investigator or assessor opinions, and they should identify where they come to different conclusions or inferences. This may insulate decisions from challenges that allege assessor bias or error.
Saeed v. College of Physicians and Surgeons of Ontario, 2025 ONSC 6485 (CanLII)
Rachel Noble