Procedural fairness in investigations
Procedural fairness like it's 1999 - Baker factors still relevant
Procedural fairness is (mostly) not all that complicated - when in doubt, revert to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), back in 1999. As a refresher, the factors set out by the Supreme Court are:
the nature of the decision being made and the process followed in making it;
the nature of the statutory scheme;
the importance of the decision to the individual or individuals affected;
the legitimate expectations of the person challenging the decision; and
the choices of procedure made by the administrative decision maker itself.
The recent decision of Bortolon v. College of Occupational Therapists of Ontario, 2025 ONSC 3848, provides an example of the application of these factors to the investigation of health professionals - in this case, an occupational therapist.
The Inquiries, Complaints and Reports Committee (ICRC) of the College of Occupational Therapists of Ontario, following an investigation of the therapist’s billing practices, ordered that she complete an educational remediation program. The complaint and investigation addressed two issues: 1) whether she had instructed clients to pay her directly, rather than through the clinic where she worked; and 2) whether she had invoiced the clinic for sessions for which clients had already paid her directly.
After receiving the investigation report, the therapist asked if she should respond to concerns other than those related to the two issues set out in the complaint and investigation. She was told by the College’s investigation manager that she should restrict her response to the two issues and that the ICRC would also limit their decision to these two issues.
ICRC found that there was no information to support that she had acted knowingly or dishonestly, and no evidence of actual or serious harm to clients. The ICRC instead made findings about broader practice management procedures, stating that she was disorganized, lacked appropriate billing processes, and demonstrated gaps in her knowledge and skills because she had used her employer’s systems for her own independent clients. It relied on the findings on these broader issues in its reasons for ordering a remedial education program.
In finding that the decision was procedurally unfair, the Divisional Court noted that the content of the duty of fairness at the investigation stage does not impose the same obligations as it does at a hearing stage, where the rights of a party are finally determined, and sanctions are potentially imposed.
In this case, the ICRC was exercising a screening function, not an adjudicative one. The Committee conducts paper-based reviews, does not determine whether professional misconduct is founded, and has no authority to order sanctions or penalties. It decides whether to refer the complaint to adjudication, or whether some other remedy is appropriate (including educational upgrading).
The court stated that the standard of disclosure at the screening and investigation stage required adequate notice to ensure that the member “has sufficient information to answer the case against him or her” and that the member has enough information to know the allegations or substance of the complaint.
The court also noted that although the College did not consider the imposition of a remedial education program to be a sanction, these findings of serious deficiencies would be:
a matter of public record;
the decision would be considered by any future panel of the ICRC considering her conduct;
the decision ordered the appointment by the College of a practice monitor at the therapist’s expense
The College had argued that the therapist had notice of practice management concerns through discussions during the investigation process. The court noted that discussion about such issues was not notice to her that her practice management was under investigation: “[i]f the ICRC identified new issues and intended to be critical of her practice and to take action against her, she was entitled to notice of those issues and an opportunity to respond”.
The College also argued that the practice management concerns were sufficiently related to the two billing issues raised in the complaint and investigated by the College. The court noted that although poor administrative practices could potentially result in double-billing, the implication of the complaint to the college was that the therapist had engaged in dishonest and criminal activity - and, in those circumstances, it was natural for the therapist to focus on defending those allegations rather than on the adequacy of her practice management.
The College also stated that self-represented parties bear the responsibility of preparing their own case and it was not the role of the College investigation manager to craft her response or provide her with legal advice. The court agreed with these principles but noted that the issue was not whether the guidance given by the manager was adequate - it was that the therapist “reasonably understood” from that guidance that she should restrict her response to the two billing issues raised in the investigation report, as would the ICRC in making its decision.
