As reported in the March 2002 issue of this newsletter, the Divisional Court in Ontario recently affirmed a regulator’s right to investigate its members for, among other things, professional misconduct.  In Butterworth v. College of Veterinarians of Ontario, [2002] O.J. No. 1136, the Divisional Court held that regulators are not obliged to provide the same procedural protections to their members during the investigative phase as they must provide during the adjudicative (i.e. Discipline Committee) phase.  The basis for this principle is that investigators typically do not decide whether a member has engaged in professional misconduct but simply report the results of the investigation to the Registrar.  Therefore, some regulators have taken the position that they are under no obligation to disclose information to members during the course of an investigation, particularly when the investigation is just commencing, although many regulators disclose information to the member at some point before the conclusion of the investigation.

This issue arose in a recent case in which practitioners who were being investigated demanded the release of information that formed the basis of the appointment of the investigator.  Essentially, the members wanted the College to provide them with the information upon which the Registrar formed an opinion that there were reasonable grounds to believe that the members had engaged in professional misconduct.

In Lala v. College of Physiotherapists of Ontario (unreported decision of the Divisional Court of Ontario dated November 24, 2003), several physiotherapists brought an application for judicial review for an order stopping an investigation. In that case, it was alleged that the College did not have reasonable grounds to appoint an investigator and the members demanded that the College release information upon which the College relied to make the appointment.  In order to protect the integrity of the investigation, the College declined the physiotherapists’ request for disclosure, but indicated that it would likely disclose information relating to the investigation at a later time and provide them with an opportunity to respond before the College decided how to proceed.

In defending its decision not to disclose information at the beginning of its investigation, the College argued that while members who are facing discipline have extensive rights at what is called the “adjudicative stage” of proceedings, in other words, for purposes of a Discipline Committee hearing, the law is clear that practitioners have considerably fewer rights during the “investigative stage”, that is, when an investigation is proceeding.

Further, the College argued that the application for judicial review brought by the physiotherapists was premature.  The College referred to extensive judicial authority for the proposition that where a member wants to challenge decisions made by the College, they should wait until the process is completed.

The Divisional Court agreed with the College that the application for judicial review was premature.  Relying on these well-established authorities, the Court held that if, after the process had been completed, the physiotherapists still wished to challenge it, they would be free to do so. However, the Court affirmed its view that investigations should not be interrupted by a court challenge unless the case were somehow “exceptional”. Merely challenging the existence of reasonable grounds for the appointment of an investigator, in the court’s view, did not meet that test.

The physiotherapists who brought the application for judicial review have since brought a motion to the Court of Appeal for leave to appeal the Divisional Court’s decision. The result of that motion will be reported in a future issue of this newsletter.

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