Preliminary Screening Out of Complaints

One increasingly popular mechanism for regulators to allocate resources and avoid subjecting registrants to unnecessary stress is to decline to investigate complaints that are frivolous, an abuse of process, have no realistic chance of resulting in regulatory action, or do not serve the public interest. However, regulators need to avoid being overly dismissive of complaints that might contain some merit. One way to balancing these considerations is to have a review process for dismissed complaints.

Such a review process was the topic in Fawcett v College of Physicians and Surgeons of Alberta, 2022 ABQB 452 (CanLII), https://canlii.ca/t/jq1nz. That case dealt with two internal reviews where the internal appeal body directed there be a fuller investigation of the concerns before a decision was made to take no action. The first complaint was dismissed because there was a parallel complaints process within the health care system raising duplication concerns. The internal review resulted in a requirement for further investigation because the parallel complaints system dealt with issues other than professional misconduct. It was determined that the regulator should consider the professionalism aspects of the concern.

The second complaint dealt with public comments that were not directly related to the practice of the profession. The internal review sought additional information as to whether the comments reflected upon the professionalism of the registrant even though they were made outside of the practice of the profession.

On judicial review the Court upheld the internal review decisions to require further investigation. The judicial review applicants were premature as there were no special circumstances warranting interfering with the ongoing processes. In addition, the decision to require additional investigation was coherent, rational, and displayed no fatal flaws and were, thus, reasonable.

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