Why does COM (College of Optometrists of Ontario) disclose Defence to Complainants, and let Complainants respond — unlike CPSO?

Question

When I complained to the College of Optometrists (COM) about an optometrist, the COM emailed me Optometrist's Defence, and gave me the opportunity to respond.

But when I complained to the College of Physicians & Surgeons (CPSO) about a physician, the CPSO refused to disclose the Physician's Defence to my complaint, or let me respond to Physician's Defence. Citing the COM, I requested disclosure and opportunity to respond, by reasons of procedural fairness and consistency. But CPSO still refused me.

Doubtless, this is inconsistent! Physicians include Ophthalmologists. It is illogical to process complaints against optometrists and ophthalmologists so contrastingly! Relevant case law is Kastner v. Health Professions Appeal and Review Board, 2023 ONSC 629 (CanLII), but it doesn't answer my questions.

[35] [. . .] HPARB rejected this submission, finding that the duty of procedural fairness owed to a complainant is more limited, as a complainant faces no professional consequences as a result of a complaint. The [Health Professions Procedural] Code [being Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18, s. 26 (1)] does not require the College to provide a copy of the doctor’s response to the complainant

[47] With respect to the Applicant’s submission that the ICRC did not give him an opportunity to respond to the responses received from Dr. Duic, first there was no such obligation and second, if there was, that defect was cured before the HPARB. In the hearing before HPARB the Applicant had a full opportunity to set out what he would have said in front of the ICRC. As confirmed by the Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, the HPARB is capable of curing any procedural defects that may have occurred before a complaints and investigation committee.

The ONSC

1. didn't explain this inconsistency between COM and CPSO.

2. ought not hastily assume that any complainant can swimmingly appeal to HPARB. Unlike regulators or Colleges' confidential complaints processes — "all HPARB decisions, including complaint reviews, will be published with the full names of the parties unless otherwise ordered by HPARB." Undeniably, some complainants may prefer their privacy, rather than proceeding to appeal to the HPARB and risking publicization of their full name! Then these bashful complainants shall have lost the opportunity to respond to a Defence! Then the CPSO's failure to disclose a defence, and let complainants, respond, would discriminate against those who don't appeal to HPARB, on the basis of privacy.

Answer 1

didn't explain this inconsistency between COM and CPSO.

Colleges are self-regulating bodies with statutory powers and responsibilities under the Regulated Health Professions Act, 1991. Each health profession's college is free to set its own rules and complaint-handling process, within the statutory requirements and consistent with its common law duties.

There are statutory requirements that the complainant must be informed of the reception of the complaint and given a copy of the decision and the reasons if necessary (sections 25 and 27).

There is no statutory requirement or general common law right that the complainant has an opportunity to respond. It is not an adversarial process, and the complainant is not owed a full right to be heard as their individual interests are not at stake (unlike, say, if the complainant sued the professional in a civil court).

Undeniably, some complainants may prefer their privacy, rather than proceeding to appeal to the HPARB and risking publicization of their full name!

This applies to most judicial and quasi-judicial bodies in the interests of transparency. Perhaps unfortunately so, but legally there is no right to privacy to a public proceeding, unless the law creates one. In addition, the law allows the Board to give anonymity in justified cases, which alleviates the concerns. As far as my limited mind is aware, only cases related to children, refugees, and victims of sexual assault are more or less by default anonymized to certain extent.

What an ideal complaint handling process should be is outside the scope of this forum.

Answer 2

As the ONSC noted, the Code does not require a College to disclose the doctor's response to the complainant. This is true for all Colleges under the Regulated Health Professions Act. The ONSC also noted that a College has "wide discretion in how to carry out its investigation beyond the minimum standard of disclosure set out in the Code." Just because one College gives a complainant more insight and more opportunity to respond does not entitle a different complainant to a different College to the same benefit. The main purpose of procedural fairness in a complaints process would be for the benefit of the member, not the complainant.

In any case, the requirements of procedural fairness would be informed by the Baker factors:

1. the nature of the decision being made and process followed in making it;
2. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates;
3. the importance of the decision to the individual or individuals affected;
4. the legitimate expectations of the person challenging the decision;
5. the choices of procedure made by the agency itself.

One would have to argue that these or other factors require that the College disclose to the complainant the member's response. The ONSC addressed at least factors (1), (2), (3), and (5) in its reasonining that you quote.