Oct 19, 2020

There is little doubt that it is rare for a Court to stay the simple investigation of a complaint pending the outcome of an application for judicial review challenging the investigation. However, Fawcett v College of Physicians and Surgeons of the Province of Alberta, 2019 ABQB 788, http://canlii.ca/t/j2s0s is such an exceptional case.

There, a lengthy and detailed complaint by a co-worker was made against a physician to her employer, a hospital. After a thorough investigation, the hospital dismissed the complaint. The co-worker then complained to the regulator for the physician. The regulator formally decided not to investigate the complaint being of the view it was primarily about work-related issues and did not, on its face, reveal any professional misconduct. The complainant appealed to the regulator’s internal Complaints Review Committee which determined that the complaint warranted investigation. The physician sought judicial review of that decision and requested a stay of the investigation while the judicial review was pending.

The Court granted the stay. It viewed the burden on the physician of responding to the detailed complaint as causing her irreparable harm:

… I am persuaded that a written response other than a blanket denial would be a time-consuming and repetitive exercise. Time alone is a precious commodity, and Dr. Fawcett is statutorily barred under the [the enabling statute] from seeking compensation from the College for either time or mental distress.

Given the above and given the delay in the matter reaching the College, the Court concluded that as between the physician and the College the balance of convenience favoured the physician.

The outcome might have been different if there had not been an initial decision by the regulator that the complaint was not worth investigating.