Rarotonga, 2010

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(Ontario/Canada)

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Civil and Administrative
Litigation Opinions
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TOPICS


Complaints


COMMENT

This is a new topic, attempting to draw together the broad but growing issue of 'public complaints'. With the limited exception perhaps of public complaints to the police about other citizen's criminal or regulatory misbehaviour, there is no 'common law' of complaints - it is all statutory. That is, you have no right to 'complain' - be it as a consumer, a parent, a citizen or otherwise - except where a statute say so - and they are in increasingly numerous contexts: a wide range of medical professionals (RHPA), police, judges, unionized employees (ie. grievances), parents of students, consumers (sometimes) and more.

While many fields purport to consider and invite 'complaints' on an informal (ie. non-statutory) basis, you (at most) may find yourselves subject to a self-interested, closed and ill-disclosed policy - if indeed such policy exists. In short, most 'complaint' protocols (even where statutory and formal) may be equivalent to the case-by-case version of corporate self-regulation, where the institution is free to indulge in whatever conflict and bias it can get away with.

Even when done well though, 'complaints" are unique legal beasts where the role of the complainant is quite limited, limited essentially to just stating 'what happened' - ideally in a coherent, chronological and concise manner, devoid of political or personal grousing. In that sense 'making a complaint' is relatively easy, though from a lawyer's or police officer's perspective it is still not often done well, too often falling into personal self-justification and irrelevancies.

Complaints suffer a writ-large version of the chronic administrative law problem of the complainant have little to no control over the process. Institutional 'feedback' after the complaint is filed is unusual, and follow-up with an oppourtunity to file additional evidence is a luxury. Rarely does the complainant walk away with the belief that the institution complained-to truly wants to 'fix the problem'. In short, the 'complainant' has essentially no 'procedural fairness' entitlements as that term is used in modern administrative law. In future, the 'struggle' in complaint law lies in imposing 'fairness', and liability rights, in administrative and civil litigation.

Opening a topic on this issue was driven on my part by observing - within the case law, from clients' experience, and from life generally - the low weight accorded to the 'vindication' interests of the complainant, as opposed to those of the alleged wrong-doer. The classic example in my view is that of Human Rights Code (HRC) institutional processing-delay, where tribunal and court concerns lay not with the HRC-complainant's loss or delay of vindication, but rather with the respondent's concern over the 'stigma' of having a complaint 'hang over your head' unduly. The classic (and only) 'remedy' in such a case is to have to complaint or application stayed (ie. indefinitely suspended) in favour of the respondent-accused and nothing what so ever for the complainant alleged victim.


CASES

Complaints - Teachers
Complaints - Police
Complaints - Unionized Labour
Complaints - Medical Professionals (RHPA)
Complaints - Judges

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Last modified: 26-10-24
By: admin