Sep 28, 2020

It is common for practitioners under investigation to seek full particulars and disclosure before providing their response. It is also common for investigators to not provide detailed particulars (as the investigator does not yet know the facts) and to hold back what other witnesses have said (so that the practitioner responds with their actual recollection of the events). In Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111, this “game of chicken” went all the way to the Manitoba Court of Appeal. Nurse Kuny was disciplined at work. The College investigated the concerns. Mr. Kuny attended a first interview but refused to participate in a second interview until given full particulars of the incidents and signed witness statements from the other participants in the events. Mr. Kuny was disciplined for failure to cooperate and, among other sanctions, was suspended for four months. His appeal was made on the basis that he did not have a duty to cooperate before being given the disclosure.

The Court dismissed the appeal. It concluded that “the duty of fairness at the investigation stage requires the disclosure of the substance of the individual allegations such that the member will be able to respond reasonably” and that this had been provided. The Court expressly determined that there was no obligation to provide the witness statements (which may not even have existed). Whether that degree of disclosure had been provided depends on the facts and circumstances of each case. One Justice expressed concern at the investigator’s proposal to provide additional particulars of each allegation during the interview itself (giving Mr. Kuny and his lawyer no time to prepare to answer the resulting questions), but concluded that no unfairness resulted because Mr. Kuny was well aware of the concerns from his own employer’s disciplinary process.