Making Factual Findings in the Complaints Process

The complaints screening process is not a discipline hearing, so complaints screening bodies should be careful not to make credibility findings as if it were a discipline hearing panel. However, that does not mean that complaints screening bodies can make no factual findings. In Griffith v. Health Professions Appeal and Review Board, 2021 ONSC 5246 (CanLII),, a dentist was cautioned and directed to undergo remediation. The caution, in particular, included an expression of concern about the need for the practitioner to be accurate in their submissions to the regulator, which accuracy the screening body felt was missing in this case. The practitioner appealed to a tribunal that upheld the screening body’s decision. The practitioner then sought judicial review of that decision on the basis that such a finding and caution would have a significant impact on their career.

The factual findings related to submissions that the practitioner made about the treatment plan for a patient and the practitioner’s assertion that this plan was similar to that of the subsequent treating practitioner. The screening body concluded that those assertions to them by the practitioner were inconsistent with the practitioner’s own records. In concluding that these sort of factual findings were permissible, the Court said:

The ICRC is primarily a screening committee, and in carrying out that role it cannot make findings that are reserved to the other committees of the College; it has “no power to make determinations or findings of fact concerning incompetence, incapacity, failure to meet standards or professional misconduct.”

However, it is not correct to say that the ICRC [screening body] has no fact-finding powers at all. Rather, while the ICRC “does not assess credibility per se, [it] is permitted to engage in some limited weighing of the facts to assess the complaint.” The ICRC is entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues. Where an independent account, such as documentary evidence, is available to corroborate a version of events, there is no need for oral evidence or cross-examination for the ICRC to reach factual conclusions. …

In making its determination in this case, the ICRC was squarely within this fact-finding sphere. It looked critically at the documentary record before it and the Applicant’s submissions and identified areas where, in its opinion, it was clear that the Applicant’s submissions were inconsistent with the dental records that he and his staff created. …

The Applicant’s fundamental complaint is simply that the ICRC did not accept his explanations. As set out above, the ICRC is entitled to engage in a limited weighing of the facts. In this case, the ICRC concluded that the dental records prepared by the Applicant and his staff did not support his submissions. This is a decision upon which the ICRC directly brought to bear its expertise and experience. The ICRC’s decision was coherent, rationally supported by the record and reasonable. [footnotes omitted]

The Court also rejected the submission that the screening body and appeal tribunal failed to consider the impact that the caution would have on the practitioner’s career and livelihood. A caution is not a punishment even if it is published. The reasons for decision did not require the kind of extensive analysis as to its impact on the practitioner that a disciplinary sanction would have.

Thus, while complaints screening bodies still need to avoid making credibility findings as if it were a discipline tribunal, there are certain kinds of factual findings that it can appropriately make in assessing what sort of remedial direction it might give.

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