Can a complainant appeal the outcome of a professional regulatory investigation?

The process for most professional regulatory complaints is largely the same: (1) a complaint is lodged with the regulator; (2) an investigation is undertaken; (3) the investigating body either determines that no further action should be undertaken or the complaint is referred to a discipline hearing.

Of course, a complainant may be unhappy with the outcome of an investigation, particularly if the matter does not proceed to a discipline hearing. It has though been quite rare that a complainant takes steps to appeal the decision of the investigative body.

In a new decision, Cameron v APEGS, 2021 SKQB 318, the court considered an application for judicial review (which is somewhat like an appeal) by a complainant of a decision of an investigative body to not refer a matter to a disciplinary committee. The complainant raised several issues, including that the investigative body’s reasons were insufficient.  The complainant sought disclosure of the evidence compiled during the investigation.

The court dismissed the request for judicial review by the complainant. The court found that a complainant had a very limited right to seek judicial review. A complainant has a right to “procedural fairness” to be heard and for an investigation to be conducted.

The complainant though has no right to challenge the reasonableness of the decision of the investigative body. Further, the court indicated that an investigative body is not required to give reasons for its decision. A complainant is not entitled to receive a copy of the evidence compiled by the investigative body.

Essentially, a professional regulator’s investigation is akin to a police complaint. Ultimately, the Crown or police must determine whether charges will be laid. A complainant cannot force charges to be laid.

This decision supports the rights of regulators to control their own processes and conduct investigations as they deem appropriate.

Contacting a Lawyer on this Subject

The above is for general information only, and not legal advice. Parties should always seek legal advice prior to taking action in specific situations. Contact Sean Sinclair at 1-306-933-1367 or [email protected] to learn more.

Related News and Articles

Importance of the Press

On March 26, 2020, the Government of Saskatchewan further limited the businesses that can continue to operate in the province as a result of COVID-19.  Among the “critical services” that are to be maintained are local and national media. Journalists across our...

read more

Privacy of Intimate Images in a Digital Age

Privacy of Intimate Images and Videos in a Digital Age By Sean Sinclair of Robertson Stromberg LLP   The online distribution of intimate images and videos (often referred to as “revenge porn”) is a growing problem in Canada.  According to the RCMP, as outlined in...

read more

Sean Sinclair Presents at Media Lawyers Conference

The Canadian Media Lawyers Association held their annual meeting in Toronto November 8th and 9th, 2019.  As part of the conference, Sean Sinclair spoke on recent updates and developments in Media Law across the prairies. You can learn more about this organization...

read more

Sean Sinclair on Right to Know Panel

The Public Service Information Community Connection (PSICC) is presenting 2019 Saskatchewan Connections Conference : Access, Privacy, Security, IM, & Health Information September 26 and 27 in Saskatoon. At the conference, the Information and Privacy Commissioner...

read more

Sean Sinclair Represents Media in Police Scanner Issue

Media outlets in Saskatchewan no longer have access to Police One, the police radio scanner that allowed journalists to hear what is happening on the secure police channel. Both Saskatoon and Regina police services say they have closed their scanner channels to media...

read more

Sean Sinclair Clarifies Privacy Laws

CTV Saskatoon asked Sean Sinclair to add an expert's view to a local news story on November 13th.  In an interview on CTV News at 6:00, Sean clarified privacy and defamation laws as they related to the story.

read more

Sean Sinclair to Present at CMLA Conference

The Canadian Media Lawyers Association will hold their annual meeting on November 2, 2018 in Toronto.  Representing our part of the country, Sean Sinclair will present on the openness of administrative tribunals during the cross country check-up portion of the...

read more

Self-sufficiency and Spousal Support

Sean Sinclair recently presented at the Saskatchewan Trial Lawyers Association's "Spousal Support Family Law Conference" on May 11, 2018.  His accompanying paper can be read here.

read more

Pereira and Sinclair are Benchmark Litigation Future Stars

Benchmark Canada is about to release its 6th edition of Benchmark Canada, the Guide to Canada's Leading Litigation Firms and Attorneys.  Benchmark recognizes "up-and-coming legal practitioners who produce the highest quality of work in their respective fields of...

read more

Delay in Professional Disciplinary Cases

Abrametz v Law Society of Saskatchewan is an important new decision from the Saskatchewan Court of Appeal dealing with the impact of delay in professional disciplinary cases.

The charges against a lawyer under discipline, Peter Abrametz, were stayed by the Court of Appeal because of the time it took to investigate and prosecute the case. The investigation in Abrametz started in 2012 and ended with a hearing in 2018. The member was under an interim suspension since 2013.

Some of the important takeaways from Abrametz include:

  1. The courts will look at the delay both in the investigation and prosecution of the charges. This is different than criminal cases, where the courts typically only look at the prosecution length;
  2. To get a stay of charges, there must be “undue delay”. The Court looked at the Law Society’s reasons for delay and attempted to determine which delays were attributable to the regulator, as opposed to the member;
  3. The Law Society was determined to be responsible for 32 ½ months of delay, which was found to be unreasonable;
  4. In order for charges to be stayed, the member had to establish that there was harm or disadvantage suffered that was serious enough that to offend the public’s sense of decency and fairness. The interim suspension against Mr. Abrametz was a significant consideration in relation to this factor.

Abrametz is an extension of the Supreme Court’s decision in R. v. Jordan (2016), 1 S.C.R. 631 dealing with delay in criminal proceedings.

The impact of Abrametz is that it is now more important than ever that regulators investigate and prosecute cases swiftly. To the extent that delays are experienced, regulators should keep careful records as to why the delays are occurring and to who those delays are attributable. If they are delays caused by the member, those delays may not be counted against the regulator in determining whether there was “undue delay”.

Sean Sinclair of Robertson Stromberg LLP would be pleased to answer any questions or concerns that you have in relation to the Abrametz decision or any other regulatory issues. Sean can be reached at [email protected] or 306-933-1367.

Area of ExpertiseProfessional Discipline and Liability