July 14, 2011

More on disclosure to complainants during investigations

Administrative Law
Inquiry and Investigations
Professional Regulation

In a recent posting entitled Conference Questions: What should regulatory bodies disclose to complainants? we attempted to address the delicate balancing act that regulatory bodies face when determining what disclosure to complainants is most prudent. This involves the need to afford procedural fairness to complainants, and weighing the merits of greater disclosure against the often-conflicting need to uphold privacy interests when an investigation involves sensitive information of third parties or an investigated registrant, especially when that information might be used for improper purposes outside of the regulatory process. Although a regulatory body may specify that the use of any disclosure to a complainant be limited to the purposes of the investigation, the meaningful enforceability of any restriction on a complainant’s use of information is unclear.

In response to this posting, one British Columbia regulator wrote in to express particular concerns, first with the amount of “policy and political complaints” it receives. This involves situations where a particular professional becomes the target of a complaint that is, at its core, directed at a larger policy or political debate, rather than the specific behavior of the professional. An investigated registrant may be reluctant to provide a full response for fear the disclosed information will be used for improper ancillary purposes, and the regulatory body may inadvertently facilitate the misuse of information disclosed through its investigation process.

A second concern was that complainants may often be lay people, whereas the merits of their complaints (or lack thereof) can be very technical in substance. This may well mean that complainant has little to add to the technical aspects of the investigation and their involvement through fulsome disclosure does little to nothing in terms of aiding the regulatory body’s process.

Finally, this regulator discussed a third concern that complaints to a regulatory body could be used as discovery tool, through which documents might be sought for the purpose of aiding in a civil suit in which the same professional is a defendant, or an expert. In these circumstances the documents would not be admissible in court. However, the concern would again be that the registrant would limit their response, for fear of prejudicing their position in the concurrent civil proceeding.

For these reasons and more, this particular regulator cautions against committing oneself to strict disclosure to complainants throughout the process, as flexibility may be key to ensuring that the right balance between the procedural rights of a complainant and those of the registrant are being struck. A proper balance will depend heavily on one’s enabling legislation, and who presents a greater risk of review for the regulator, an aggrieved complainant or an aggrieved registrant. This again highlights how important it is that regulatory bodies always understand and work within the framework of their own legislation, as there will not be any ‘one size fits all’ solution for any of these issues.

Given the many factors bearing on disclosure of investigation material to a complainant in any given case, and before any given regulator, we will be turning our minds to addressing this issue in our future offerings. Until then, here are some factors for regulators to consider.

1. What is the minimum level of disclosure the regulator owes to a complainant?

This will depend on the express rights of complainants under the regulator’s enabling statute, and whatever disclosure the complainant must receive as a matter of procedural fairness.

2. What factors favour some degree of disclosure at the investigation stage above the minimum level of disclosure required by statute or procedural fairness?

Regulators may consider if particular information ought to be disclosed on the basis the complainant might have pertinent, related information in response. Apart from the merits of a committee gathering all material information, this factor may be of particular practical importance where a complainant has a right under the regulator’s enabling statute to engage in an appeal or a review process, and may become entitled to a degree of disclosure in any event. Disclosure only at a later stage might lead to a finding that the investigation was itself inadequate, e.g., where disclosure might have led to the complainant providing further information that could have affected the investigating committee’s decision, in which case the matter may be remitted so that the committee can reconsider the matter in light of the additional information.

3. Conversely, what factors favour limited or no disclosure?

For our blog entry on when the Health Professions Review Board will limit disclosure of parts of a record to a complainant (with the caveat that the HPRB considers applicants for review to be a full “parties” to the review proceeding, which may not be the case for a regulator during an investigation), click here.

4. Can meaningful disclosure be made short of full disclosure, e.g., through a summary of evidence?

5. When disclosure is made, has the regulator developed standard language that communicates to the complainant the limits to which disclosed information may be put?

In British Columbia, the courts recognize an implied undertaking of parties who obtain documents as part of a litigation process that such documents may not be used for other purposes without the owner’s permission or the court’s leave. How such an undertaking might be enforced outside of a court context is unclear, since a court has a power to enforce any breach of undertaking as contempt of court. A regulator may have possible alternatives, however, such as staying a complaint due to an abuse of process by the complainant. A regulator or a registrant might also seek court assistance, to address any misuse of information by a complainant.

For regulators under the Health Professions Act, disclosure at the review level has recently been addressed by the BC Supreme Court in RM v. College of Physicians and Surgeons, which we deal with in greater detail here.