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	Fairness in the Investigation Process: What Are Your Rights?
	by Bernard C. LeBlanc
	September, 2001 - Vol. 2 No. 12

	In recent years, regulators have been facing increased scrutiny over how they investigate their members, particularly when the regulator investigates serious allegations of misconduct. Professionals (and their counsel) are making more and more demands during the investigative process and regulators are responding to these demands in a number of ways. First, some general principles. Investigators are generally limited to investigating either particular allegations or similar types of allegations. In other words, simply appointing an investigator does not give the regulator the right to review all aspects of a member’s practice without limitation. Second, investigators must follow the legislative requirements that govern the regulator. For example, many statutory regimes require the regulator to disclose the substance of written complaints to the member and provide the member with a certain period of time to respond, at least in writing. Beyond these general principles, however, there is considerable discretion as to how investigations are conducted. For example, must an investigator give notice of his or her appearance at the member’s office? Must the investigator advise the member of his or her right to counsel? In cases where there is either no written complaint or where written complaints need not be disclosed to the member, to what extent is the investigator obliged to disclose the nature of the allegations to the member? Is there an obligation on the investigator, or the regulator, to disclose the results of the investigation before the regulator decides to refer allegations to discipline? It is now generally accepted that, unless there are serious risks to others or to the integrity of evidence, professionals are entitled to know at least the substance of the allegations against them and given an opportunity to respond in some form. While, as noted, this rule is not absolute, a regulator would probably need a valid reason to consider sending the allegations to a discipline hearing without taking these two steps. Many regulators take the view that, unless there is good reason not to do so, the member should be advised of at least the general findings of an investigation, if not the details of it, before responding to the allegations. However, this view is certainly not unanimous, and many regulators will not disclose the results of the investigation unless and until the matter goes to discipline, at which time these materials are usually disclosed in their entirely. The Divisional Court will be asked to consider many of these issues in a case that will be argued early in 2002. The Court’s findings will be reported in a future issue, after the Court renders its judgment. Meanwhile, in another case, the Ontario Superior Court of Justice recently upheld the principle that prosecutors must remain independent of investigations, at least in cases of provincial quasi-criminal prosecutions, in order that prosecutors can independently review the conduct of investigations: R. v. Moscuzza (2001), 54 O.R. (3d) 459. In a prosecution under the Liquor Licence Act, the Court was critical of the fact that the LCBO prosecuted competitors by retaining its own counsel rather than asking Crown counsel from the Attorney General’s office to prosecute the case. Accordingly to the court, prosecutors must remain independent of investigations and always be indifferent to the outcome of a prosecution. It will be interesting to see the extent, if any, that these principles will be applied to the context of professional regulation.



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	Professional Practice and Liability on the Net is a monthly internet newsletter addressing issues of interest to a wide range of professionals. Please consult with a lawyer for specific legal advice. If you wish to be removed from the list of subscribers, please simply reply to this email. If you wish to reprint this article, please provide appropriate credit, and send a copy of the publication to, Steinecke Maciura LeBlanc, 401 Bay Street, Suite 2308, P.O. Box 23, Toronto, ON M5H 2Y4. Or, call 599-2200, ext. 232, or email bleblanc@sml-law.com. Comments and suggestions are also welcome.