Many regulators frequently provide a copy of the registrant’s response to a complaint to the complainant for comment. Doing so can assist in providing the complaints-screening body with a complete-as-possible information base for its decision. It also inspires confidence that the concerns are being fully addressed. However, even regulators who do so routinely make exceptions. For example, the response by the registrant may contain sensitive information about other persons to which the complainant is not entitled. There may also be concern that the complainant might misuse the response by the registrant for collateral purposes.
In Watson v. Nova Scotia Barristers’ Society, 2025 NSSC 332 (CanLII), the Court upheld the discretion of regulators to limit the ability of the complainant to see the registrant’s response in some cases. The complaint was against eight registrants. After obtaining their responses, the regulator sent 14 follow-up questions to the complainant. The complainant requested a copy of the registrants’ full responses. The regulator provided the complainant with a 19-page summary of the responses, rather than full copies saying: “we have considered factors including the nature of the allegations, confidentiality, related civil and other legal proceedings that you have initiated, and your prior public statements about the Complaints.” The complainant brought an application to court arguing that she was entitled to the full responses as a matter of procedural fairness.
While questioning the standing of the complainant to bring the application, the Court dealt with the issue on the merits. The duty of procedural fairness to complainants is on the “lower end of the spectrum”. The Court said:
Mandatory disclosure of investigation information to a complainant, as of right, could undermine the NSBS’s ability to investigate complaints in a manner that protects the public and preserves the integrity of the legal profession….
It is the prerogative of the NSBS [regulator] to determine whether the objectives of protecting the public and preserving the integrity of the legal profession are better served by disclosing or withholding copies of the members’ responses. The exercise of this discretion warrants deference….
It appears to me that she wants the opportunity to rebut the members’ responses to her complaints, rather than to provide the further information requested by the investigator. This is not the role of a complainant in the investigation process.
While this decision is tied somewhat to the legislative scheme for complaints for this regulator, the general principle that there may be circumstances in which a complainant is not entitled to the response of the registrant, may have wider application.
