September 4, 2012

Procedural fairness and the statutory opportunity to respond during an investigation

Administrative Law
Inquiry and Investigations
Professional Regulation

The Ontario courts have recently held that where a Complaints Committee of a health professions college in Ontario fails to give a registrant notice of a complaint (e.g., that he slept with a patient-complainant) or an opportunity to respond, in violation of statute (namely sections 25(5) and 26(1) of the Ontario Health Professions Procedural Code), the College fails to accord the registrant procedural fairness. [47]

In that case, the Complaints Committee decided to refer the matter to an Executive Committee to consider a full investigation of the registrant’s practice. But since the registrant had withdrawn his application for review by the Health Professions Appeal and Review Board (HPARB), which review the court found would have been an adequate alternative remedy [76], the court dismissed the registrant’s application for judicial review. (The court found evidence of hardship, prejudice, costs, or delay that would support his bypassing the HPARB to apply for judicial review.) [80]

Putting aside structural differences between statutes, this decision illustrates the mandatory nature of statutory requirements that afford registrants an opportunity to respond (e.g., section 33(5) of the BC Health Professions Act), and the basis for such requirements in demands of procedural fairness:

“Adequate notice is a fundamental component of fairness at common law. It ensures that individuals affected by a decision have sufficient information and a reasonable opportunity to answer the case against them. Section 25(5) of the Code, which required the Registrar to give Volochay notice of the complaint, codifies this rule of natural justice and statutorily imposes a duty of procedural fairness on the College, even at the investigatory stage of its processes. That it does so no doubt reflects the potentially serious consequences for a member who is under investigation.” [48]

The case also confirms that where a complainant withdraws a complaint, a College may continue to investigate: “The College has a statutory mandate to serve and protect the public interest. It need not stop an investigation because the complainant no longer wishes to proceed, especially where it believes that a member may have influenced the withdrawal of the complaint.” [46]

Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541