Many registrants serve as staff or on the governing board and committees of their regulator. An issue arises as to whether the regulatory-complaints process can be used where someone disagrees with the regulatory actions made by those registrants. After all, regulators often take the position that a registrant is accountable for “conduct unbecoming” even when they are not practising the profession.
An Ontario court has provided guidance on the issue in Komer v. Health Professions Appeal and Review Board, 2025 ONSC 7084 (CanLII). A physician made a complaint against the registrants on the regulator’s board of directors and against its registrar (also a registrant) for making (and in the case of the registrar, for implementing) policies “respecting the safety and efficacy of COVID-19 vaccines, and measures taken to minimize the spread of misinformation respecting vaccines.” The complaints-screening committee took no action because it felt the complaints were “frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process.” The Review Board upheld the decision (only the complaint against the registrar was pursued there).
The Court agreed, saying:
It was evident that the complaint and the requested review had no chance of success and that it was brought for a purpose other than the legitimate assertion of the applicant’s rights…
It was reasonable for the ICRC and the Board to conclude that a complaint of professional misconduct was not the appropriate forum for the ventilation of the applicant’s concerns respecting vaccines. First, the allegations against [the registrar] and the governing council are not obviously caught by any of the definitions of professional misconduct … even accepting that professional misconduct may be committed by acts unrelated to the practice of medicine or to a doctor/patient relationship, but which are “unbecoming a physician.”
Second, the legislation which governs the College provides for immunity from civil liability for College employees and council members for acts taken in good faith in the performance of duties carried out in those capacities: RHPA, s. 38. As the respondents argue, this is “a strong signal that the legislature intended the actions and decisions of College officials to be insulated from complaints by private individuals.” This is especially so given that the there are other avenues for the pursuit of the applicant’s policy concerns respecting vaccines, including voting or otherwise participating in elections for membership on the College’s council, or by seeking judicial review of College policy…
In light of all these observations, it was reasonable for the Board to conclude that there was no public interest in allowing the review to proceed: the complaint was not meritorious; no real issue of professional misconduct was raised by it; its focus was, instead, institutional and policy-based in nature; and the concerns expressed in it were better dealt with in other fora. It was, as the College submits, a collateral attack on College policy with which the applicant disagrees.
The Court also held that there was no procedural unfairness in the complaints-screening committee notifying the complainant that it was of the preliminary view that the complaint was frivolous without providing particulars as to why it thought so.
It also held that there was no evidence of an appearance of bias in the complaints-screening committee having an alleged “vested interest” in protecting its registrar from scrutiny.
The decision is a strong precedent for the proposition that registrants making good faith regulatory decisions for regulators are not subject to the regulatory complaints process.
