Procedural Fairness in Negotiations

Complaints screening committees, unlike true adjudicative committees, sometimes directly engage in negotiations with registrants. For example, they might propose a remedial disposition, the acceptance of which by the registrant would indicate that a more formal disposition, such as a referral to discipline, is not warranted. Do such negotiations entail a duty of procedural fairness? That issue arose in Hamilton v. Health Professions Appeal and Review Board, 2022 ONSC 3221 (CanLII),

In that case the registrant, a physician, was involved in an obstetrical case in which the baby died. The screening committee identified deficiencies in the registrant’s management of the delivery. A representative of the regulator proposed a voluntary undertaking, indicating that if the proposal was not accepted, all of the possible dispositions remained available to the committee. The registrant made a counterproposal that had a lesser impact, especially in terms of publication. The regulator did not respond to the counterproposal. The screening committee rendered a decision imposing a caution and mandatory remediation (arguably, a more significant outcome than the initially proposed voluntary undertaking).

The Court upheld the decision of the review Board that there was no procedural obligation, in those circumstances, for the screening committee to notify the registrant that it did not accept the counterproposal and to give the applicant an opportunity to accept the original proposal. In fact, the Court indicated that the role of the Board was to assess the reasonableness of the final decision and not to review the negotiations.

The Court also disagreed with the registrant that the regulator did not follow its own Decision Tree. The Court noted that the Decision Tree was not binding on the screening committee and, in any event, the screening committee appeared to act in general accordance with it, especially when it offered a voluntary undertaking.

The Court also disagreed with the argument that the screening committee and review Board failed to consider an expert report submitted by the registrant indicating that the registrant had met accepted standards of practice. The Court indicated that the screening committee was entitled to conduct a limited weighing of the facts. This role included not accepting the expert opinion provided by the registrant and using its specialized expertise to determine that there were some deficiencies in the registrant’s care:

Using its expertise, the Committee provided reasons for concluding that there were deficiencies in the standard of care provided by the Applicant to his patient and hence, the justification for its decision of a caution.

Such “findings” are more likely to be accepted where it relates to the interpretation of facts rather than the making of a significant credibility determination. Also, such “findings” are more likely to be accepted where the conclusion about the nature of the conduct is expressed in language (e.g., deficiencies) dissimilar to disciplinary language of professional misconduct or incompetence.

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