October 30, 2016

Letters of caution issued by screening committees

Administrative Law
Professional Regulation

Investigation and screening committees may sometimes find, after an investigation, that a respondent’s conduct, while not necessarily satisfactory, does not justify formal discipline measures. For example, conduct may be non-serious, and may best be addressed by educational or voluntary measures aimed at practice improvements. Under B.C.’s Health Professions Act, an inquiry committee has a power, based on provisional findings, to “take any action it considers appropriate” to resolve the matter between a complainant and a respondent: HPA s. 33(6)(b). This power includes a power to issue a letter of direction, or a caution, about applicable professional standards that falls short of a reprimand.

An Ontario court has recently confirmed the power of an Inquiries, Complaints and Reports Committee to issue a “caution”, rather than refer a matter to its Discipline Committee: Lum v. College of Physiotherapists of Ontario, 2015 ONSC 7227 (Div.Ct.).

Two registrants of the Ontario college who had used social media and flyers to engage in unprofessional communications about former employers or former colleagues each received a caution in their separate matters, advising that the committee had “concerns” about their conduct, and cautioned them to “cease these types of activities”. [10] The court, confirmed, however, that the committee having concerns did not amount to findings of professional misconduct, or findings of fact or credibility. [6-7]

This case is similar in result to the recent decision of the B.C. Supreme Court to deny judicial review of a letter of direction issued by an inquiry committee of the College of Registered Nurses of B.C. under HPA s.33(6)(b) in Ridsdale v. Anderson, 2016 BCSC 942. However, the court in Lum did not reject the cautions as immune to judicial review; rather, it rejected various challenges to the validity of the committee’s decision-making.

The Lum decision usefully confirms that a screening committee may issue a “caution”, based on provisional findings and resulting concerns, that falls something between a letter of direction (which implies no wrongdoing by a recipient) and a reprimand (which arises from a finding or an admission of wrongdoing by a recipient).

Lum v. College of Physiotherapists of Ontario, 2015 ONSC 7227 (Div.Ct.)