Combined Investigations Upheld

The Ontario Court of Appeal has held that under the Regulated Health Professions Act the regulator is permitted to combine various processes into a single investigation. In Abdul v Ontario College of Pharmacists 2018 ONCA 699, http://canlii.ca/t/htpdg, the regulator received both a formal complaint and additional, overlapping, information about the conduct of the practitioner. The regulator discussed the options with the complainant who agreed to withdraw her complaint so that the entire matter could be investigated through a single Registrar’s investigation. This use of the Registrar’s investigation process was challenged, in part, on the basis that the complaints process, requiring the Registrar to notify the practitioner early on, was not followed. The Divisional Court accepted this argument concluding that there was no mechanism for allowing the withdrawal of the complaint and that the mandatory complaints procedures were not followed. The Divisional Court would have required parallel investigations of the two matters. The Court of Appeal reversed the decision of the Divisional Court, concluding that the legislation did not prohibit the withdrawal of a complaint (with the consent of the regulator) and that combining the matters into a single Registrar’s investigation was both practical and authorized. The Court of Appeal found that there was no denial of procedural fairness by using the alternative investigative process (the requirements of which had been followed).

The Court of Appeal held that the use of the alternative process was subject to abuse of process safeguards but found there was no prejudice to the practitioner (which is often required to establish an abuse of process) on the facts of this case. In reaching this decision the Court sidestepped the either/or dichotomy to the narrow/liberal interpretation of legislation dispute and indicated that the legislation should be interpreted in a manner that protects the public but is still fair to the practitioner. The regulator was allowed to proceed with its discipline hearing.

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