Publication of Complaints Decisions

Health regulators in Ontario are required to post on their website information about complaints decisions that result in remedial directions (e.g., to attend for a caution) even though the matter was not referred to discipline. In Doe v. College of Physicians and Surgeons, 2021 ONSC 7550 (CanLII), https://canlii.ca/t/jkgwj a practitioner sought judicial review of a decision cautioning her for inappropriate comments to colleagues. The practitioner sought the removal of the posting from the regulator’s website until a determination was made about the legality of the complaints decision.

In terms of whether the practitioner would suffer irreparable harm, the Court said:

The applicant argues that she is already experiencing harm in the form of reputational damage and embarrassment, and this experience will not be undone if she is eventually vindicated. In my view this argument cannot prevail. In a great many cases – whether criminal, family, civil litigation, or administrative proceedings, findings are made that cause parties to feel reputational damage and embarrassment. They are found to have acted badly (sometimes very badly). They are not believed. Their conduct may be criticized. Such harm is corrected by the vindication one receives on appeal or review, and the transitory upset one experiences is a normal and inevitable consequence of a public litigation process: it is not irreparable harm within the meaning of the test for a stay.

In terms of the balance of convenience, the Court said:

I do not consider the balance of convenience to tilt particularly strongly in this case, but on balance I find it favours denying a stay. The CPSO has a general policy of reporting ICRC decisions of this kind on its web site once the decisions are rendered. That policy, of general application, is based on balancing the interests of transparency and public accountability with fairness to physicians, interests established by the Legislature. By analogy to other professional regulatory contexts, the point at which a decision is made by a professional regulator is a sensible and appropriate time in the overall process for the disposition to be made available to the public. I see nothing about the circumstances of this case to take it out of the course of general application. This tilts the balance against a stay: professional discipline decisions are reported publicly at this stage in the process, and there is nothing about this case to take it out of this principle of general application.

This decision provides significant support for transparency of complaints decisions by regulators, at least where supported by legislation.

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