Confirmation of Concepts

Those working in a specialized area often become secure in the notion that certain concepts apply to their field. Sometimes it is helpful to get reassurance that those concepts are still valid. Rowe v College of Nurses of Ontario, 2023 ONSC 3735 (CanLII), provides that kind of assurance to those working in the complaints and investigations process, especially for health regulators in Ontario. In that case an employer reported to the regulator concerns about the practice of the registrant, a registered nurse. After an investigation, the screening committee directed that the registrant attend before it to receive a caution in person. The registrant attended the caution, but also brought an application for judicial review to Court.

The application to Court was initiated months after the deadline for doing so had passed. The Court refused to grant an extension of time for bringing the application. The Court made the following points:

  • The reviewable decision was made when the screening committee directed the registrant to attend the caution. The time for seeking judicial review did not stretch to the date when the caution was actually administered.
  • To obtain an extension, the registrant needed to explain the delay, supported by evidence. Submissions to the court that the registrant’s lawyer did not explain the option of judicial review will not be accepted without evidence. Similarly, accommodation for mental health issues requires evidence of how the disability prevented timely commencement of the proceedings.
  • It is permissible for a regulator to make informal inquiries without appointing a formal investigator. Those inquiries can form the foundation for reasonable and probable grounds to appoint a formal investigator. A difference between informal inquiries and a formal investigation is that the former gathers information voluntarily; the latter has an array of compulsory powers they can use.
  • Investigators need not possess a particular qualification (such as being a member of the profession): “Investigators’ tasks are primarily driven by an information-gathering function, including collecting documents, materials, and other information about possible misconduct….”
  • Members of the screening committee do not need to be “peers” of the registrant or to practise in their field of interest: “The expertise required to screen a complaint does not require expertise in the area of practice….”
  • Screening committees do “not make findings of fact or assessments of credibility. This is consistent with the ICRC’s [the screening committee] role as a “screening committee” with no authority to make findings of professional misconduct …. It would have been inappropriate for the ICRC to resolve any inconsistencies in the written record.” However, the screening committee may make a remedial order based on concerns about the registrant’s practice based on the overall information in the record before them.
  • In determining whether a 25-month delay in the investigation is inordinate, one must look at all of the contextual factors. “In my view, the merits of this argument are weak, particularly having regard to the College’s case load and the prioritization of high-risk cases.”
  • Having said that, the public interest in timeliness and finality creates a presumption of prejudice where the registrant seeks an extension of time to commence an application for judicial review well after the 30-day period prescribed in the legislation has elapsed. This is particularly the case where only a caution was directed, which is consistent with the regulator’s mandate of public protection.
  • On an even more technical matter, a Registrar’s investigation based on a mandatory report is not a complaint. As such, notice is given to the registrant at the end of the investigation, not when the mandatory report arrives. In addition, there is no review before the Health Professions Appeal and Review Board.

As you were. Regulators can proceed to continue processing complaints and investigations.

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