May 16, 2011

Duty of Ontario health regulators to give notice of a complaint, and an opportunity to respond

Administrative Law
Inquiry and Investigations
Professional Regulation

While the BC Health Professions Act does not expressly require that a registrant receive immediate notice of a complaint (although notice is good and fair practice, and may be mandated by a regulator’s bylaws), it does require an inquiry committee to afford a registrant an opportunity to provide it with any information regarding a complaint matter the registrant believes the committee should consider, pursuant to HPA s.33(5).

In Ontario, by contrast, when a health professions regulator receives a complaint, it must give the registrant notice of that complaint, and advise the registrant of his or her right to make written submissions within 30 days of receiving such notice, pursuant to ss. 25(6) and 25.2(1) of the Health Professions Procedural Code (which is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, ch. 18). A recent finding that such notice is necessary to a fair investigation can be found in the Ontario decision of Volochay v. College of Massage Therapists of Ontario, 2011 ONSC 2225.

In that case, a former patient of a massage therapist filed a complaint with the college, alleging a consensual sexual relationship for more than one year. The College began an investigation, and while it composed a letter notifying the registrant of the complaint, the letter was never sent, because the complainant withdrew her complaint, albeit alleging she had been influenced by the registrant. The College instead told the registrant it had received a complaint, without disclosing its nature, and advised the complaint had been withdrawn. It also said the Inquiry Committee would review the information. [11]

The Complaints Committee proceeded to consider the matter without notice to the registrant of the substance of the complaint, [14] and decided to continue with the complaint, despite the complainant’s withdrawal, [15] by referring the matter to the Executive Committee for a full investigation. [16] More than a year later, the registrant’s counsel requested that the College dismiss the complaint, but the successor body to the Complaints Committee, the Inquiries, Complaints and Report Committee (the “ICRC”) rejected that request, and appointed an investigator. [19]

The registrant sought judicial review, asserting the College breached his right to procedural fairness, and “acted without jurisdiction.” [22] The College submitted judicial review would be premature. [24] The court found that in addition to the College violating its statutorily mandated procedures, the College also did not comply with “the most basic of principles of natural justice and procedural fairness during its investigation and before coming to a decision.” [33] The court found further that the registrant’s right to be heard and make submissions during the investigative process could not cure the unfair process, as “the applicant has been denied the possibility of having the respondent consider, on all of the evidence including the applicant’s submissions, whether or not a next step is required.” [36] Accordingly, its proceedings to date in respect of the complaint were a nullity. [38]

The court found the question a “true question of jurisdiction,” as the College did not have “authority to investigate without according the applicant the right to respond.” [40] Accordingly, the application was not premature.

This decision thus establishes, under the Ontario Code, a pre-investigation step in which procedural fairness, under both statute and the common law, requires that a registrant be given an opportunity respond to a complaint. On this basis, the court quashed the decision of the College to investigate.

Volochay v. College of Massage Therapists of Ontario, 2011 ONSC 2225