January 2, 2017

Disciplining registrants for failing to respond to complaints

Administrative Law
Inquiry and Investigations
Professional Regulation

While enabling statutes of professional regulatory bodies may not require that respondents respond to complaints, particular regulators may enact standards that require their registrants to cooperate during investigations. The Ontario Court of Appeal confirmed such a standard in Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, refusing an extension of time to appeal 2016 ONSC 1041 (summarized here).

The Reid case involved findings of misconduct against a chiropractor for inappropriate communications with a colleague, and for failing to cooperate with an investigation by the College of Chiropractors by, among other things, failing to respond to requests from the Complaints and Reports Committee that he respond to a complaint. On appeal before the Divisional Court, the registrant argued that that Health Professions Code allowed, but did not require, members to respond to complaints. The Divisional Court accepted, however, that the College had implemented standards, in the form of a Standards of Practice document, that required that registrants cooperate with the college and its committees when reasonable requests are made for information [ONSC para. 58]: “Although section 25.2 is permissive, the Standard of Practice is mandatory in requiring cooperation and communication in response to reasonable requests.” [ONSC para. 60] The Divisional Court also noted, although it did not expressly rely on, a prior statement by the Divisional Court that, “Fundamentally every professional has an obligation to co-operate with his self-governing body” (Artinian v. College of Physicians and Surgeons of Ontario, [1990] O.J. No. 1116). In assessing the merits of a further appeal, the Ontario Court of Appeal decided that the discipline for non-cooperation was unassailable, given the fact of a professional obligation of members of the College to respond to complaints, and provide requested responses. [31-32]

British Columbia regulators who do not currently have bylaws requiring that registrants cooperate with investigations may wish to consider such provisions. Local examples include the Law Society of British Columbia’s Code of Professional Conduct of BC, section 7.1-1, which says a lawyer must “(a) reply promptly and completely to any communication from the Society” and “(d) cooperate with Law Society investigations, audits and inquiries involving the lawyer or a member of the lawyer’s firm”. Regulators who do not have a specific standard must rely on common law requirements, but must be aware that the existence and content of a common law duty to cooperate may be open to dispute, e.g., in terms of whether a professional must cooperate by answering specific questions during an investigation, or may “respond” simply by denying allegations.

Reid v. College of Chiropractors of Ontario, 2016 ONCA 779, refusing an extension of time to appeal 2016 ONSC 1041

Lisa C. Fong and Michael Ng