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	Investigating Complaints: How Much Control Should the Complainant Have?
	by Bernard C. LeBlanc
	October 2004 - Vol 6 No 1

	One of the most important functions of a regulator is investigating complaints and, where appropriate, disciplining its members. A question often arises as to how much influence a complainant should have over the complaints or investigation process. One of the leading authorities in Ontario established not long ago that complainants should not have the right to determine if and when a regulator should investigate a complaint if the complaint raises serious issues and the complainant’s intentions are unclear. In McIntosh v. College of Physicians and Surgeons of Ontario, (unreported decision of the Divisional Court, November 25, 1998), a complainant made serious allegations against a physician. However, over the course of several months, she purported to withdraw the complaint, and then reactivate it, several times. The Divisional Court held that a regulator’s responsibility to act in the public interest may involve investigating a complaint, especially if it is unclear whether the complaint has been withdrawn. In addition, in that case the complaints were very serious (they included allegations of sexual abuse), and the Divisional Court held that where serious complaints are made, the College should consider them. Another aspect of a complainant’s control over the investigation process was recently considered in Christie v. Canada (Attorney General), [2004] F.C.J. No. 1667. In that case, the complainant complained to the Canadian Human Rights Commission that her employment was terminated with the federal government because she was diabetic. After investigating the matter, the Commission decided not to hold a hearing. The complainant brought an application for judicial review. She argued, among other things, that the investigation was not conducted appropriately because the investigator did not interview all of the witnesses that she thought should have been interviewed. In dismissing the application, Mr. Justice Phelan held that investigators have discretion as to how an investigation should be conducted. In this case, the Court held that the investigator had good reason not to interview certain people because they did not have relevant information. Importantly, Justice Phelan went on to hold that an investigator “must be given certain latitude to conduct the investigation”. The Court therefore dismissed the application, in part, on the basis that regulators are not obliged to conduct investigations in a manner suggested by the complainant. These two cases fairly clearly establish that complainants do not have the right to control how investigations are conducted. In the case of McIntosh, the Court admonished the College for allowing its process to be “turned on and off” by the complainant. The Court held that the College should have taken the information provided by the complainant and conducted its own investigation, regardless as to whether the complainant herself wanted the investigation to continue. In Christie, the Court held that a complainant cannot determine how an investigation should be conducted, including who should be interviewed or what evidence should be obtained. These cases reflect a fairly strong judicial inclination against allowing complainants to drive the investigative process. At the same time, regulators must ensure that they conduct investigations fairly, and ensure that they are always acting in the public interest. [Professional Practice and Liability on the Net is a monthly Internet newsletter addressing issue 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, 393 University Avenue, Suite 2000, Toronto M5G 1E6. Or, call 599-2200, ext. 232, or email: bleblanc@sml-law.com. Visit our website at http://www.sml-law.com. Comments and suggestions are also welcome. ]



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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.