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Medical Professionals (RHPA) - ICRC (Inquiries, Complaints, and Reports Committee). RS v. Ontario (Health Professions Appeal and Review Board)
In RS v. Ontario (Health Professions Appeal and Review Board) (Div Court, 2024) the Divisional Court considers administrative delay, here complaint investigation delay by the ICRC under the College of Psychologists of Ontario:Relevant Statutory Provisions
[34] The Code contains the following provisions with respect to timely disposal of complaints:Timely disposal
28 (1) A panel shall dispose of a complaint within 150 days after the filing of the complaint.
Impact of ADR on timelines
(2) Time spent by a complainant and member in an alternative dispute resolution process pursuant to a referral under section 25.1 shall not be included in the calculation of time under this section.
If complaint not disposed of
(3) If a panel has not disposed of a complaint within 150 days after the complaint was filed, the Registrar shall provide the complainant with written notice of that fact and an expected date of disposition which shall be no more than 60 days from the date of the written notice.
If further delay
(4) If a panel has not disposed of the complaint by the expected date of disposition described in subsection (3), the Registrar shall,
(a) provide the member and complainant with written notice and reasons for the delay and the new expected date of disposition which shall be no more than 30 days from the date of the revised notice or from the expected date of disposition described in subsection (3), whichever is sooner; and
(b) provide the Board with written notice of and reasons for the delay as were provided to the member and complainant.
Powers of the Board
(5) The Board, on application of the member or the complainant, shall consider the written reasons for the delay and shall do any one of the following:
1. Direct the Inquiries, Complaints and Reports Committee to continue the investigation.
2. Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.
3. Investigate the complaint and make an order under subsection (9) within 120 days of the decision to investigate the complaint.
Board’s investigatory powers
(6) In investigating a complaint under paragraph 3 of subsection (5), the Board has all the powers of a panel of the Inquiries, Complaints and Reports Committee and of the Registrar with respect to the investigation of the matter and may appoint an investigator under clause 75(1)(c).
Continuing power of Inquiries, Complaints and Reports Committee
(7) The Inquiries, Complaints and Reports Committee may take action under section 26 at any time before the Board completes its investigation.
Same
(8) For greater certainty, if the Inquiries, Complaints and Reports Committee takes action as provided for in subsection (7), the Board no longer has jurisdiction to take action under section 26.
Powers of Board re an investigation
(9) After an investigation, the Board may do any one or more of the following:
1. Refer the matter to the Inquiries, Complaints and Reports Committee.
2. Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.
3. Require the Inquiries, Complaints and Reports Committee or a panel to do anything the Committee or a panel may do under the health profession Act and this Code except to request the Registrar to conduct an investigation.
....
Powers of Board re time limits
28.1 If the Board is satisfied that no person will be unduly prejudiced, it may, on reasonable grounds, extend any time limit with respect to,
(a) a requirement, under subsection 21(1), for a review or hearing by the Board;
(b) a request, under subsection 29(2), for a review by the Board; or
(c) the Registrar’s obligation to give to the Board, under subsection 32(1), a record of an investigation of a complaint against a member and all relevant documents and things. ....
[39] The Applicant’s position is that the ICRC Decision, having failed to address the Applicant’s submissions regarding delay, was unreasonable. Similarly, the HPARB Decision was unreasonable notwithstanding the fact that it addressed the issue of delay, because it failed to address ICRC’s failure to address the issue of delay and failed to address why, given the passage of time, the remedial measures which included a SCERP, remained appropriate.
[40] I agree that the ICRC Decision should have addressed the Applicant’s submissions with respect to delay. As noted by the Supreme Court in Vavilov, an administrative decision-maker cannot be expected to respond to every argument or line of possible analysis. “However, a decision maker’s failure to meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it.” Vavilov, at para. 128.
[41] In this case, however, the allegations of significant delay (1,147 days) to complete the investigation were raised before the HPARB and were reasonably addressed in its decision. The HPARB acknowledged that a Committee should not delay dealing with a complaint and that any unnecessary delays should not be taken lightly. It noted that the Code sets out clear timelines in which the investigation is expected to occur and the receipt of a delayed decision can negatively affect both parties and can negatively impact the public interest.
[42] The HPARB noted that the timelines set out in the Code are directory and not mandatory. A member may request that the HPARB inquire into a Committee’s delay pursuant to s. 28(5) of the Code. The HPARB may take over the investigation itself. The College brought this provision to the attention of the Applicant’s lawyer in response to his concerns about delay. No request was made on behalf of the Applicant pursuant to s. 28(5).
[43] The level of procedural fairness the College was required to provide to the Applicant is to be considered with reference to the Baker factors. The ICRC plays a role as a screening committee, and the stakes are not as high as they are before a discipline panel.
[44] In Young, relied upon by the Applicant, more than four years passed from the time the applicants’ employment came to an end and their receipt of the investigation documents and request for submissions from the ICRC. The applicants submitted that their ability to respond to the allegations was compromised because of the delay and gave specific examples of witnesses who could not be interviewed or documents that were no longer available. Both applicants had moved onto new employment and different positions. They argued that they were prejudiced by the ICRC contacting their current employers, which caused them distress, anxiety and was stigmatizing to them. In the case of Ms. Young, by the time the ICRC issued its order that she be cautioned in relation to her former work in a gynecological unit in the period from January to March 2016, she had been in a new nursing role in long term care without incident for almost five years. This court found that the ICRC’s reasons did not address how or why, given the passage of time, the remedial measures which included a caution, remained appropriate. It was in these circumstances that this court found that the ICRC’s decisions were unreasonable because they failed to adequately address the applicants’ submissions relating to the delay.[2]
[45] The Applicant submitted to the ICRC that the College failed to send out notices required by ss. 28(3) and (4) of the Code and that although the College advised that it was collecting further information, many months went by where no steps were taken. The Applicant’s counsel wrote to the College on his behalf on three occasions regarding the delay. On one of those occasions, on June 3, 2020, over two years after the receipt of the complaint, the Applicant’s counsel advised the College that a complaint investigation can be a very stressful experience for a health care professional and that the Applicant had endured some health issues during the course of the investigation which had been aggravated, in part, as a result of the ongoing investigation.
[46] However it must be said that the Applicant knew from the outset what the College’s concerns were and his consistent denials that he engaged in therapy sessions with the child contrary to the ICRC’s findings undoubtedly lengthened the investigation.
[47] The delay in this case, while concerning, is not as significant as the delay in Young. There is nothing on the record in the instant case to show significant prejudice to the Applicant from the delay. There is no supporting documentation to verify his claim that his health issues had been aggravated by the delay. There is also no changed circumstances of new employment and changed work positions for an extended period after the time of the allegations that existed in Young. It was these factors in Young that this court found made it unreasonable for the ICRC not to address the applicants’ submissions relating to the delay and not to consider whether the remedial measures, including a caution, remained appropriate.
[48] The test for abuse of process due to delay comes from Law Society of Saskatchewan v. Abrametz, 2022 SCC 29, 470 D.L.R. (4th) 328: delay must be inordinate and must have caused significant prejudice. If these two requirements are met, a delay will be abusive if it is manifestly unfair to the party, or would bring the administration of justice into disrepute. In the present case, the delay was not inordinate and did not cause significant prejudice. The investigation took a little over three years and did not end in a referral to discipline. In the circumstances of this case, the Applicant does not meet the test for showing an abuse of process due to delay.
[49] In considering the Applicant’s submissions with respect to delay, the HPARB stated:70. In this case, the Committee may have taken a long time to investigate the complaint, however the Board cannot find that the delay in this specific case resulted in an inadequate investigation of the Respondent’s complaint. The information in the Record demonstrates that the investigation was active and extensive. The Board observes that, as the information was being gathered, the Committee required additional information including responses from the Applicant to concerns the Committee identified.
...
79. The Board finds that, had the Committee not provided the Applicant with an opportunity to respond to the concerns it identified, the Committee’s investigation could have been found to be inadequate. Here, although the additional requests for information may have contributed to delays in the investigation process, they do not render the investigation inadequate but rather, adhere to the concept of procedural fairness owed to the Applicant. [50] The Applicant was not denied procedural fairness, and there is nothing unreasonable in HPARB’s conclusion to that effect.
[51] The finding in Young is distinguishable from the facts of this case as set out above. The HPARB Decision reasonably addressed the Applicant’s submissions regarding ICRC’s failure to comply with the statutory timeline obligations. There was nothing unreasonable about the HPARB’s consideration of the delay.
[52] The HPARB’s Decision was reasonable. Accordingly, the application is dismissed. . Gill v. Health Professions Appeal and Review Board
In Gill v. Health Professions Appeal and Review Board (Div Court, 2024) the Divisional Court dismissed two JRs challenging CPSO cautionary decisions regarding a doctor's social media COVID comments.
Here the court characterizes the ICRC complaint role:[88] The complaint and investigation process is dictated by the College’s governing legislation. The College has no discretion to not investigate a complaint simply because the subject matter is covered by another complaint or a Registrar’s investigation. Provided that a complaint meets the statutory definition, the ICRC is required to consider it and release a decision (Code, ss. 25(1)(4), 26(1), 27(1)).
[89] The initiation of a Registrar’s investigation where a complaint addresses similar conduct, is likewise contemplated by the legislation, which provides the Registrar with broad authority to do what they did here (i.e., initiate an investigation which took a broad view of Dr. Gill’s conduct). The Code does not provide for the consolidation of multiple complaint files or of complaint files with a Registrar’s investigation.
[90] In this case, the College did take the step of listing all the matters before the same ICRC and HPARB panels. It is clear from the decisions that those panels were able to take into account all of the circumstances in rendering their decisions. The fact that the result of the process was the issuing of multiple decisions in relation to the same conduct is due to the statutory scheme and did not undermine the fairness of the proceedings. . Folkes v. College of Nurses of Ontario
In Folkes v. College of Nurses of Ontario (Div Court, 2024) the Divisional Court dismissed a JR against decisions of the ICRC of the College of Nurses, partially on the basis that it's role was one of 'screening':[1] The applicant nurse applies for judicial review of the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Nurses of Ontario dated December 13, 2022. The ICRC decided to require that the applicant complete a specific continuing education or remediation program (“SCERP”) and to appear before the ICRC to be cautioned. The ICRC did not refer the matter to the College’s Discipline Committee.
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[25] On the subject of delay, the applicant correctly submits that Peel ought to have reported within thirty days and the actual report was made after about six months. Then, the investigation took about six months. Although the issue of delay was not raised at the ICRC, we have taken it into account – it does not render the ICRC decision unreasonable.
[26] The reasonableness of the ICRC decision must be considered in the context of its screening role. It is not required to examine all records and documents, conduct interviews, hear testimony, or make findings of credibility: M.J.S. v. Health Professions Appeal and Review Board, 2022 ONSC 548 (Div. Ct.) at para. 41. It is required to make reasonable efforts to consider relevant materials and decide on the appropriate regulatory response.
[27] In this case, the ICRC did not refer the Peel concerns to be addressed in a discipline hearing. It took the remedial steps of a caution and SCERP. The applicant has not shown that the ICRC decision is untenable in light of the relevant factual and legal constraints that bear on it, including its finding as to the dishonest nature of the applicant’s conduct. Nor is there a failure of rationality – the ICRC decision is transparent, justifiable and intelligible. . Schuur v Sas
In Schuur v Sas (Div Court, 2023) the Divisional Court succinctly states the role of the ICRC in the RHPA/HPPC system:[35] The complaint, in this case, went to the ICRC [SS: 'Inquiries, Complaints, and Reports Committee'], which investigates complaints and disposes of them either by referring them to the Discipline Committee, taking remedial action, or taking no action. The ICRC does not make findings of fact nor impose any penalty. It weighs the evidence to determine whether there is sufficient evidence to refer the matter on for discipline. It is the Discipline Committee that will make findings of fact. The ICRC was later [at paras 39] referred to as 'the screening committee'.
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