Many regulators house the investigation, screening, prosecution, and adjudication of discipline matters within the same organization. Courts have consistently held that where such structures are authorized by the enabling statute, there is no appearance of bias so long as adjudicators (and, to a lesser extent, those making screening decisions) are not influenced by the other branches of the organization. See for example, Brosseau v. Alberta Securities Commission, 1989 CanLII 121 (SCC), [1989] 1 SCR 301.
This principle was reinforced recently in Howe v. Nova Scotia Barristers’ Society, 2026 NSSC 52 (CanLII), where a former lawyer challenged the dismissal of his complaint against the then Executive Director of the regulator. One of the issues he raised was that the screening committee could not be objective when dealing with a complaint against the chief executive officer of the organization. The Court disagreed, saying that in the absence of information suggesting that the chief executive officer attempted to influence the decision, no appearance of bias was established. The Court had information confirming that the chief executive officer refrained from interfering with screening matters. The fact that the chief executive officer signed the cheque paying the screening committee chair was insufficient to create an appearance of bias.
This outcome is consistent with the Ontario case of Komer v. Health Professions Appeal and Review Board, 2025 ONSC 7084 (CanLII), where the Court found such concerns to be speculative absent evidence of actual interference.
The institutional bias concern can be stronger at the adjudication stage of the process. For example, in Gannon v. Windsor Police Service, 2026 ONSC 532 (CanLII), the adjudicator had a conversation with the other branch of the disciplinary regime about how the penalty it had ordered would be administered. The Court found the conversation to be ill advised, but since it occurred after the penalty was finalized, it did not suggest any inappropriate influence upon the adjudicator making their decision.
An example of how regulators can ensure that adjudicative functions are kept separate can be found in College of Physicians and Surgeons of Ontario v. Khan, 2022 ONPSDT 23 (CanLII). There, several layers of safeguards were employed, including appointment of adjudicators for fixed terms, a written agreement articulating the importance of avoiding any interference in individual decisions, and articulating what sorts of topics can be discussed with the chief executive officer (namely “operational or managerial issues and with respect to the Tribunal’s goals, policies and processes”).
While the overlapping of functions within one regulatory body can be appropriate, regulators should still be prudent in preventing any “slippage” in day-to-day communications.
