October 16, 2020

Inquiry committees and procedural fairness

Administrative Law
Inquiry and Investigations
Professional Regulation

When a regulatory authority withdraws a proposed consent agreement and refers a complaint matter for a discipline hearing, the registrant may attempt to challenge the decision on procedural fairness grounds. But as recently reviewed by the Saskatchewan Court of Queen’s Bench, the demands of procedural fairness are limited at investigative and screening stages: Dabao v. Saskatchewan Registered Nurses’ Assn, 2020 SKQB 242.

In Dabao, an Investigation Committee offered a consent agreement to a nurse, but when the nurse continued to propose amendments and did not sign an agreement by a final deadline, the committee order that her matter proceed to a discipline hearing. The nurse asserted that the committee breached a duty of fairness by unreasonably changing its mind about resolving the complaint through an agreement.

Applying principles set out in Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111, the court recognized that, “the duty of fairness at the investigation stage requires the disclosure of the substance of the individual allegations such that the member will be able to respond reasonably”. [31] However, as also determined in Kuny (which cited the following principles set out by an English court), an investigating body “need not hold a hearing. It can do everything in writing. It need not allow lawyers. It need not put every detail of the case against a man. Suffice it if the broad grounds are given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employ secretaries and assistants to do all the preliminary work and leave much to them. But, in the end, the investigating body itself must come to its own decision and make its own report.” [31]

The court held the nurse could have no reasonable expectation that the investigative committee would again extend the final deadline for her to return a signed agreement. Accordingly, the investigation committee did not fail in its duty to provide the nurse with procedural fairness.

Dabao v. Saskatchewan Registered Nurses’ Assn, 2020 SKQB 242.

Lisa C. Fong, Q.C. and Michael Ng