Further guidance has been given by Ontario’s Divisional Court as to when an extensive delay in investigating a complaint amounts to an abuse of process. It is established that in some circumstances the delay can result in setting aside an investigatory (i.e., screening committee) decision: Young v. College of Nurses of Ontario, 2022 ONSC 6996 (CanLII).
However, in RS v. Ontario (Health Professions Appeal and Review Board), 2024 ONSC 4137 (CanLII), a three-year delay was found to be acceptable, but just barely. The decision required a psychologist to undergo remediation regarding managing dual roles in family custody matters. The psychologist was both an expert witness in court on behalf of one of the parents and, through his clinic, had a role in the treatment of the child that included professional interactions with the other parent.
In distinguishing the Young decision, the Court in RS found there was no excessive delay because, among other things:
- The 150-day statutory timeline to complete complaints matters was a goal and not a strict requirement.
- The registrant did not exercise his opportunity to ask the independent Review Board to take over the investigation when it was not completed on time.
- The stakes for the registrant before the complaints screening committee were lower than at the discipline hearing, particularly here where a remedial order was ultimately made.
- There was no evidence (only a general assertion) of prejudice to the registrant caused by the delay.
- Throughout the process the registrant remained in the same position, professionally, so the remediation order was still relevant to his practice.
- The registrant was aware of the precise concerns under investigation.
- The concerns were complex and there were challenges in obtaining the necessary information, including from the registrant’s clinic.
The Court did express concern about the length of the investigation and the complaints screening committee’s failure to address the delay in its reasons for decision. However, this latter concern was ameliorated by the Review Board’s discussion, in its own decision, of why the delay did not amount to an abuse of process.
Whether a lengthy delay amounts to an abuse of process depends on the circumstances. In addition to proceeding expeditiously, regulators are well advised to specifically address delays in their reasons for decision when disposing of a complaint.