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the case
In Kastner v Health Professions Appeal and Review Board, 2023 ONSC 629 the Ontario Superior Court of Justice gave a cautious reminder that while regulatory bodies may be afforded deference in their investigations – such investigations must be fair and balanced when considering the rights of the complainant.
In this case, there were two complaints against Dr. Marko Duic for (1) allegedly using his authority as an Emergency Department Chief at Ontario hospitals to block the hiring of women doctors and (2) allegedly demanding that physicians at the hospitals use involuntary psychiatric detention reviews, without a legitimate basis, for the purpose of increasing department profitability.
The complaint was made by a lawyer who represented “a group of concerned physicians” who took issue with Dr. Duic’s behaviour. The group of physicians wished to remain anonymous due to purported fears of retaliation from Dr. Duic. The complaint only included a summary of the physician’s concerns, a summary of a relevant newspaper article, copies of emails from Dr. Duic, and a list of twelve (12) other potential witnesses.
The Inquiries, Complaints and Reports Committee (the “Committee”) conducted an investigation; however, they did not interview any of the witnesses identified in the complaint or the people identified in the newspaper article. Ultimately, the Committee recommended that no further action be taken as there was no evidence to support taking action against Dr. Duic. This decision was reviewed by the Health Professions Appeal and Review Board (the “Board”) who determined that the Committee had conducted a sufficient investigation and that its decision to take no further action was reasonable.
The Complainant (the lawyer representing the group of concerned doctors) appealed this decision to the Ontario Superior Court of Justice. The Court explained that in assessing the adequacy of the investigation the Board was required to ask “whether the Committee exercised its investigative discretion reasonably having regard to the Committee’s function as a screening process to determine how and in what manner the particular complaint should be dealt with.” While an adequate investigation does not need to be exhaustive, the Committee is obliged to obtain the essential information relevant to making an informed decision regarding the issues in the complaint.
In this case, the Committee failed to do so by not interviewing key witnesses. In the context of this case, the Court explained that the Committee should have made reasonable efforts to determine what the witnesses would have said about these issues. Ultimately, the Court concluded that the Board’s decision be quashed on the basis that it unreasonably concluded that the investigation was adequate and referred the matter back to the Committee to reinvestigate the complaint.
our two cents for free
This case serves as a cautious reminder that professional regulatory bodies should ensure to embark on necessarily fulsome investigations when reviewing complaints. It is advisable for regulators to have properly drafted policies that outlines the investigative process. These policies serve two main purposes: (1) ensuring that professional regulatory bodies acting in a procedurally fair manner and (2) it sets expectations for those parties involved in an investigation.
question
Do your policies currently outline the proper steps to be taken during an investigation?
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