Discretion to Refuse to Process Complaints

Policy makers are torn about how much discretion to give regulators to refuse to process complaints that are outside of the regulator’s jurisdiction or are otherwise without merit. The competing values, on the side of minimal discretion, include ensuring that the complaints process is available to all, that serious issues are not missed on a preliminary screening, and that the process be held accountable. On the other hand there is the value of ensuring that regulators are permitted to focus their resources on serious concerns and not waste them on matters that are unlikely to go anywhere.

Some statutes require all complaints to be formally investigated and determined. Others require any decision not to proceed with the matter to be handled by a statutory committee that has public representation. Some Acts permit staff to decline to process a complaint. Legislation also varies as to whether there is an external review of decisions not to process a complaint.

An example of a complaints process where maximum flexibility is given to the regulatory body is found at: Fabrikant v Law Society of Ontario, 2018 ONSC 7393, <http://canlii.ca/t/hwj6n>. Dr. Fabrikant made a complaint against a lawyer who advised a human rights commission. The basis of the complaint was that Dr. Fabrikant was not given access to the lawyer’s advice to the commission. The lawyer’s regulator took no action on the complaint because it related to a legal dispute and not the professionalism of the lawyer’s conduct and was, therefore, outside of the jurisdiction of the regulator to address.

The Divisional Court held that the enabling legislation gave the regulator discretion as to how the complaints were to be screened. Under the legislation it was open for a staff person at the regulatory body to decide not to proceed with a complaint that was outside of the mandate of the regulator. In addition, the complaints review process was only available for disposition of complaints on their merits and was not available for complaints screened out by staff on a preliminary basis for not being within the mandate of the regulator.

The facts of this case might illustrate why policy makers gave such a broad discretion to this regulator to decline to process complaints.

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