Role of Complainants

The role of a complainant in the complaints process is unclear. Are they merely a source of information? Do they have a legal interest in the outcome? Are they full parties to the complaints screening process? In Ontario and British Columbia, a significant participatory role is granted to complainants by health regulatory legislation. By virtue of their right to challenge a decision on the basis of inadequate investigation or its unreasonableness on the merits, complainants are active participants throughout the process, albeit in an undefined role. However, in other statutory contexts, the role of complainants is more circumscribed. The extent of that limited role is still in flux.

In Toutsaint v Investigation Committee of The Saskatchewan Registered Nurses’ Association, 2023 SKCA 11 (CanLII), a divided Court of Appeal illustrated two different viewpoints. In that case the complainant, an inmate, complained about the actions of the registrant, a registered nurse, who had reported the complainant’s behaviour following a difficult professional encounter. The report resulted in disciplinary action against the complainant, which he believed flowed from the registrant’s conflict of interest and breach of confidentiality in making the report. The screening committee dismissed the complaint but provided only conclusory reasons for doing so.

The majority of the Court confirmed a lower court’s decision upholding the screening committee’s disposition. Because of the grounds of review raised by the complainant, the Court did not address the reasonableness of the screening committee’s decision on the merits, although their reasoning suggested that a review of this issue was not available to complainants. The majority of the Court focused on whether the screening committee provided procedural fairness to the complainant.

The majority of the Court reviewed court decisions from various jurisdictions noting that their approach to the duty of procedural fairness “is varied”. The majority said that the complainant was not a party to the process, which was between the regulator and the registrant. The majority said that the decision of the screening committee had no legal effect on the complainant (only the registrant’s legal rights were affected). The complainant only had “an indirect personal interest in the proper consideration of his own complaint.” The registrant, and the public as a whole, had the greatest interest in the decision. As a result, the duty of procedural fairness to the complainant was “at the low end of the spectrum”. Even though the reasons of the screening committee did not engage the issues raised by the complainant, it was apparent from reviewing the investigation record that the committee had put its mind to each of the issues. That was all that was required of the screening committee.

The dissenting Justice noted the vulnerable position of the complainant who had no choice in his caregiver and had little recourse for any unprofessional behaviour. In the circumstances, the registrant had significant ethical and professional obligations to the complainant. The dissenting Justice concluded that the reasons of the screening committee did not indicate that it had engaged the serious issues raised by the complaint. The committee essentially treated the complaint as a “minor matter of no consequence”.

Fundamental disagreement continues as to the role of complainants in the complaints process and, where the legislation does not provide a review mechanism, when and on what grounds a complainant can challenge the decisions of screening committees in court.

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