Who Drives a Complaints Investigation?Makis v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2020 ABCA 451 (CanLII)
When a complaint is made, the person making the complaint often suggests some investigative steps that the regulator should take. While prudent regulators will consider such requests, it is clear that it is the regulator, not the complainant that decides the appropriate level of investigation. This principle has recently been affirmed in: Makis v College of Physicians and Surgeons of Alberta (Complaint Review Committee), 2020 ABCA 451 (CanLII), http://canlii.ca/t/jc3c6. No details of the nature of the complaint are provided but the prior history of the matter suggests that the respondents were caught up in a broader dispute and the complaint relates to how they responded to the complainant’s concerns. The Court said:
The appellant argues that the Complaints Director did not conduct a full investigation, including interviewing possible witnesses, before dismissing his complaints. The Complaints Director has wide powers under s. 55(2) of the Act, including the power to attempt to resolve the complaint, to request an expert opinion, or to appoint an investigator. The Complaints Director, however, need not do any of those things, and is entitled to dismiss the complaint if it appears to be trivial, or there is insufficient evidence of unprofessional conduct. The Complaints Director is entitled to dismiss a complaint that essentially repeats a previously dismissed complaint. While the complainant is entitled to a fair procedure, that does not include a right to any type of investigation. The absence of a formal investigation did not compel the Complaint Review Committee to set aside the dismissal of the appellant’s complaint.
The Court went on to say:
In a professional disciplinary matter, the complainant is not entitled to dictate whether an investigation should be conducted, or how it should be conducted.
The Court indicated that the duty of procedural fairness was met when the regulator provided the complainant with a full opportunity to present their concerns and the information supporting them.