Sep 23, 2020

Even when ordering remediation, a committee has to provide procedural fairness. In Zaki v Ontario College of Physicians and Surgeons, 2017 ONSC 1613, the Inquiries, Complaints and Reports Committee (ICRC) ordered a Specified Continuing Education and Remediation Program (SCERP) to enhance record keeping (particularly legibility) followed by an assessment. The assessment identified continuing gaps in record keeping, but also noted a number of concerns about the actual treatment provided. The ICRC provided the assessment report to Dr. Zaki, who made a full response. Dr. Zaki’s response was forwarded to the assessor, who replied. The reply accepted the validity of some of Dr. Zaki’s submissions, but disagreed with his other points. Dr. Zaki was not given a copy of the assessor’s reply and another SCERP relating to both record keeping and substantive practice was ordered. The Divisional Court found the failure to provide the reply to Dr. Zaki for comments to be procedurally unfair:

First, procedural fairness must not only be accorded to a party, in fact, it must also be seen to have been accorded to the party. Providing information to the ICRC, upon which it relied in reaching its decision, that was not provided to the applicant, is neither procedurally fair in fact nor in appearance. The adage “no harm, no foul” is not a principle upon which the respondent can rely to overcome a fundamental failure to ensure that the applicant knew the case that he had to meet. The suggestion, that the second report was of no consequence, is a conclusion based on [sheer] speculation as to what the applicant might have done, including what submissions the applicant might have advanced, if the second report had been disclosed.

The Court went on to comment on the SCERP process. The Court said that requiring an assessment as part of the SCERP was not only permissible, but also necessary to ensure that the remediation was effective. However, the assessment should be carefully tailored so that it is rationally connected to the original concern. Where that assessment identified new concerns, it was appropriate for the College to consider them and, in appropriate cases, order a second SCERP with another assessment. However, judicial review remained available should the process descend into an apparently endless cycle of remediation and assessments.