It is sometimes difficult for complainants to appreciate the role of regulators of professions when dealing with their complaints. In Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742 (CanLII), the Divisional Court took some time to explain that role to a self-represented complainant.
In that case the complainant was concerned about a registrant’s (a nurse’s) conduct related to the death of the complainant’s elderly mother. The complainant alleged that the registrant had improperly administered an ice pack and that this error had contributed to the mother’s death. The regulator (and indirectly the independent review Board) concluded that while the ice pack had been left on too long, in the circumstances (e.g., “staffing levels, demands on her time by all residents in the facility and supervision and processes within the care facility”), no action was warranted. They also concluded that the ice pack had not contributed to the mother’s death.
The Court upheld the findings as reasonable. The Court indicated the role of the regulator was to assess whether the alleged conduct of the registrant warranted regulatory action based on misconduct or incompetence concerns. It was not for the regulator to determine if there had been negligence, which is a different legal concept. The Court suggested that it was not even the regulator’s duty to assess whether the registrant’s conduct contributed to the death of the mother. However, the Court was sympathetic to the limited assessment of the regulator and the review Board on the point. Indeed, the Court made its own observations that, based on the available information, the death of the mother was not related to the administration of the icepack.
The Court also confirmed that the role of the review Board was to review the information in the record before the regulator. In fact, the Court declined to admit additional evidence submitted by the complainant on the basis that it was neither properly proffered (e.g., a collection of articles and lay opinions) nor relevant to the issues. A review is different from a rehearing or even an appeal.
The Court also gave an example of a finding of fact that was open to the complaints screening committee. Because such committees do not conduct hearings, they can only make limited findings of fact. The Court indicated that it was appropriate for the committee to conclude based on the record that “the ice packs were left on too long, though not so long as Ms Gao alleged”.
The judicial review was dismissed. Significant costs were awarded to the registrant payable by the complainant.