Regulators investigate complaints. Many regulators investigate a lot of complaints. A recurring issue is how thorough those investigations need to be. Courts have repeatedly said that such investigations do not need to be exhaustive, just adequate. In Kastner v. Health Professions Appeal and Review Board, 2023 ONSC 629 (CanLII), Ontario’s Divisional Court gave guidance on what constitutes an adequate investigation. In that case, a third party made a complaint based in part on an investigative report by the Globe and Mail summarized as follows:
The complaint against Dr. Duic fell into two categories of allegations. First, that for 16 years, Dr. Duic used his authority as Emergency Department Chief at two major Ontario hospitals to block the hiring of women doctors and encouraged a workplace that was openly hostile to women. Second, that in order to increase department profitability, Dr. Duic demanded that the physicians in his department use involuntary psychiatric detention (Form 1) and driver’s licence reviews (MTO reports) against vulnerable patients, without medical justification.
The newspaper article contained statistical information supporting both concerns. In addition to providing a hyperlink to the article, the complainant also provided correspondence with the Chief of Staff of one the hospitals that, while disputing the concerns, provided some data supporting the gender discrimination allegation. All 31 of the emergency physicians at that hospital were men, which was quite disproportionate to the percentage of female emergency physicians in the province generally and at other comparable hospitals. The complainant also provided a list of twelve witnesses who would be willing to provide information on the concerns to the regulator, but not to the complainant. He also provided a will-say statement of another physician supportive of some of the concerns. The complainant also provided a copy of an email sent by the registrant (Dr. Duic) to his colleagues that was supportive of the second concern.
The regulator conducted what the Court called a “limited investigation”. While the registrant was interviewed, no other witnesses were. An assessor reviewed 30 files containing forms and found concerns with six of them, but accepted the registrant’s explanations for them based on information that was not in the charts. The registrant had 19 prior complaints, 11 of which related to completion of forms.
The regulator took no action on the complaint, in part because the allegations were “not supported” and because it accepted the registrant’s explanations. The review Board upheld the decision. The Court determined that it was unreasonable to call the investigation adequate and sent the matter back for further inquiries. The Court made the following observations:
- There is no absolute rule as to whether a witness needs to be interviewed. In some cases, it is unnecessary. It is not the role of the screening committee to make findings of fact or resolve issues of credibility. However, in other cases involving serious allegations, witnesses may not voluntarily come forward to provide written statements for fear of retaliation or for other reasons. Actively approaching them for a statement may provide valuable information. This is especially true where the witnesses are registrants who have an obligation to cooperate with the regulator.
- An important consideration as to whether to conduct a more intensive investigation is the seriousness of the allegations, particularly where there is some basis to support them. The Court characterized these complaints as very serious:
… gender discrimination that was alleged to have persisted over 17 years at two major hospitals and improper or fraudulent billing that could have a devastating impact on vulnerable patients. Detaining a person on a Form 1 takes away a person’s liberty and autonomy and depriving someone of the right to drive could impact on their ability to maintain their employment or perform the normal tasks of daily living.
- It is particularly risky for a regulator to accept a registrant’s explanation where the witnesses with contrary information have not been interviewed or given a comprehensive written statement.
- Regulators should generally treat hyperlinked documents as part of the complaint. They should be considered where they are reasonably relevant to the issues.
- It is not a defence for an inadequate investigation to characterize interviewing witnesses as a “fishing expedition”. That phrase applies to situations where there is no basis for concern in order to find a problem. Where there is a basis for concern, witnesses who are in a position to have relevant information can properly be approached.
- Where there are multiple aspects to a complaint, a regulator should not rely on the apparent explanation to one of the concerns as establishing that the other concerns are unfounded. The Court noted that the investigation focussed on only one of the two hospitals identified.
- Beware of template language in one’s reasons for decision. A template phrase frequently used by the review Board that “it is unlikely that any information provided by those witnesses would have changed the outcome of the Committee decision” was found by the Court to be unreasonable on the facts of this case.
- Where a complaint involves an allegation of systemic discrimination, there may be more of an onus to investigate whether the individual in power contributed to the result. A denial by that registrant may be insufficient to address the concern.
- The Court sidestepped the issue of whether the complainant should have been given an opportunity to respond to the registrant’s submissions to the regulator. The Court simply indicated that, if there was unfairness, it was cured by the opportunity for the complainant to respond fully to the review Board.
Even in returning the matter to the regulator, the Court did not prescribe the precise nature and extent of the investigation required. However, this decision should still provide guidance to anyone conducting investigations.
This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.