Curing Procedural Deficiencies

Procedural missteps by a regulator can often be cured. In Volochay v College of Massage Therapist, 2019 ONSC 5718, http://canlii.ca/t/j2np8, serious allegations of sexual abuse had been set aside in 2011 by the Divisional Court because the regulator did not follow the specified complaints procedure. However, on further appeal in 2012, the Court of Appeal found that the practitioner had an adequate alternative remedy and the matter was permitted to proceed. The matter was subsequently investigated, resulting in a referral to discipline. The practitioner was found to have engaged in professional misconduct. On appeal from the discipline decision, the Court held that the initial procedural defects had been cured by the subsequent investigation and hearing process where the practitioner was given notice and an opportunity to participate.

The Court also declined to receive “fresh evidence” that was available at the time of the hearing, the authenticity and relevance of which was questionable. The Court further held that the alleged delay taken to investigate the matter did not amount to procedural unfairness or an abuse of process, particularly since the practitioner was able to practise in the interim and no specific prejudice was established.

The Court also found that the credibility findings were adequately explained in the reasons for the panel’s decision, when read as a whole. The reasons included the basis for finding that the practitioner’s evidence was not credible.

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