Kuny v College of Registered Date:, 2017 MBCA 111

Citation: Kuny v College of Registered Date: 20171121 Nurses of Manitoba, 2017 MBCA 111 Docket: AI15-30-08519 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Madam Justice Holly C. Beard Madam Justice Jennifer A. Pfuetzner BETWEEN : DOUGLAS KUNY ) F. H. K. Li ) for the Appellant Appellant ) ) W. G. Haight and - and - ) E. L. M.

Edwards ) for the Respondent COLLEGE OF REGISTERED NURSES ) OF MANITOBA ) Appeal heard: ) April 26, 2017 Respondent ) ) Judgment delivered: ) November 21, 2017 STEEL JA [ 1 ] This appeal raises the issue of the degree of disclosure that is owed to a member of a professional body in an investigation as compared to a disciplinary hearing. [ 2 ] Douglas Kuny (Kuny), a registered nurse, has appealed the decision of the Discipline Committee Panel (the Discipline Committee) of the College of Registered Nurses of Manitoba (the College).

The decision ordered Kuny to serve a four-month suspension, complete a reference paper and pay costs of $15,000. The College determined that Kuny had committed professional misconduct for his lack of cooperation during the College’s investigation into the reasons for his two workplace suspensions and ultimate termination from the Winnipeg Regional Health Authority (WRHA).

The College also found that Kuny’s lack of cooperation with the investigation breached the Code of Ethics for Registered Nurses and found Kuny’s behaviour to be ungovernable. [ 3 ] Kuny appealed the decision, arguing that the lack of disclosure given to him during the investigation was a breach of procedural fairness. While the standard of procedural fairness in an investigation is not as high as in a disciplinary hearing, a member is entitled to a certain level.

The level of procedural fairness will vary depending on the context and a number of other factors. [ 4 ] In this case, for the reasons detailed below, I find 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. I also find that Kuny was given the substance of the allegations sufficient to satisfy the duty of fairness. Consequently, the appeal is dismissed. Facts [ 5 ] Kuny was a registered nurse employed by the WRHA.

Sandy Wilson (Wilson), the team manager at Kuny’s WRHA workplace, suspended Kuny twice for various work issues, and ultimately terminated his employment with the WRHA for ongoing issues, all occurring in 2013. The issues included allegations of lack of respect for co-workers, ongoing issues with inappropriate wound care technique, ongoing issues with proper documentation of client information and improper use of a mechanical lift. Kuny had grieved his suspensions and termination.

The WRHA provided Kuny with a warning letter and two suspension letters (the letters of discipline) setting out the dates of occurrence of the alleged work issues and a

summary of the allegations. The grievance was resolved by way of settlement in late 2014, in which the WRHA rescinded the letters of discipline and Kuny withdrew the grievance. [ 6 ] As required by The Registered Nurses Act , CCSM c R40 (the Act ) [1] , Wilson reported each of Kuny’s suspensions and termination to the College (the WRHA complaints), and the College sent letters to Kuny requesting a written response to each of

those complaints. Kuny’s reply to each letter essentially indicated that he could not respond until a more specific and detailedexplanation of the performance issues was given to him, including the evidence upon which each complaint was based. He indicatedthat it was “impossible for me to respond”.

As a result, the College’s Investigation Committee (IC) required Kuny to appear before it toanswer questions about the issues raised in the WRHA complaints. [7] At the appearance, Kuny answered some questions, but the IC found that he provided “a consistent message to all ofthe issues raised by [the WRHA]; that he could not respond as he had not been provided with specific information regarding these issuesby [the WRHA] and that he did not have any personal knowledge regarding them.” [8] After Kuny’s appearance, the IC directed an investigation into the matters raised by the WRHA complaints inaccordance with section 21(1) of the Act and placed conditions on Kuny’s practice (which were subsequently removed on appeal). [9] Robert Marshall (Marshall) conducted the investigation.

Marshall’s first interview of Kuny was conducted on July 7,2014 (the July 7 interview), for approximately four hours and a number of the allegations were discussed. A second interview was set upfor July 16, 2014, but after Kuny was told that his wife (who was taking notes) could not attend, Kuny refused to proceed withoutsomeone taking notes and without disclosure of the medical records related to the allegations.

Marshall consequently agreed to giveKuny access to relevant medical records and to provide a court reporter at their next meeting on August 22, 2014. [10] After reviewing the medical records on August 22, 2014, Kuny refused to proceed with the interview until he hadreceived additional documentation, including written statements, occurrence reports, timelines and “the specific accusation which shouldbe correlated to the WRHA generic accusation.” [11] Marshall subsequently advised Kuny that he would be submitting his report to the IC without further input from him.

After reviewing Marshall’s report, the IC directed that Kuny’s conduct during the investigation of the WRHA complaints be referred tothe Discipline Committee.

The IC was aware that the WRHA had rescinded the letters of discipline as part of the grievance settlement,but it was of the view that Kuny’s lack of cooperation was a separate issue that did not end with the WRHA settlement. [12] The Discipline Committee found that Kuny had failed to cooperate with the investigative process without a reasonableexplanation, determined that this constituted professional misconduct, and found Kuny’s behaviour to be ungovernable. [13] Kuny argued on appeal that he was given insufficient disclosure during the investigation of the WRHA complaints andthat the duty of fairness required the College to provide him with specifics and documentation about the WRHA complaints beforeasking him to respond.

He argued that the College breached this duty of fairness, which meant that he could decline to respond untilsuch documentation was provided. Furthermore, he contended that both the decision of the Discipline Committee and the penaltyimposed were unreasonable.

The Law What is the Duty of Fairness that Applies to an Investigatory Body as Opposed to a Disciplinary Body? [14] In Canada (Attorney General) v Mavi, 2011 SCC 30, Binnie J, for the Court, confirmed that, “there is, as a generalcommon law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of alegislative nature and which affects the rights, privileges or interests of an individual” (at para 38, quoting Cardinal v Director of KentInstitution, (SCC), [1985] 2 SCR 643 at 653). [15] This principle has been repeated many times by the courts and it is a fact-based exercise to determine the nature ofprocedural fairness owed in any particular situation.

As often stated by the Supreme Court of Canada, “the concept of proceduralfairness is eminently variable and its content is to be decided in the specific context of each case” (Knight v Indian Head School DivisionNo 19, (SCC), [1990] 1 SCR 653 at 682; Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817 at para 21; and Dunsmuir v New Brunswick, 2008 SCC 9 at para 79).

See also Green v Law Society ofManitoba, 2017 SCC 20 at para 56. [16] In Baker, L’Heureux-Dubé J reviewed the factors that should be considered when determining the precise content of theduty of procedural fairness in a given case (see paras 23-28). These factors, which are non-exhaustive, include: 1. the nature of the decision being made and the process followed in making it.

In this regard, “‘the closeness of the administrativeprocess to the judicial process should indicate how much of those governing principles should be imported into the realm ofadministrative decision making’” (at para 23); 2. the nature of the statutory scheme and the terms of the statute pursuant to which the body operates. In this regard (at para 24): The role of the particular decision within the statutory scheme and other surrounding indications in the statute help determine the contentof the duty of fairness owed when a particular administrative decision is made.

Greater procedural protections, for example, will berequired when no appeal procedure is provided within the statute, or when the decision is determinative of the issue. 3. the importance and impact of the decision on the individual or individuals affected. For example, in Kane v Bd of Governors ofUBC, (SCC), [1980] 1 SCR 1105, Dickson J stated that, “A high standard of justice is required when the right tocontinue in one’s profession or employment is at stake. . . . A disciplinary suspension can have grave and permanent consequences upona professional career” (Kane at 1113);

4. the legitimate expectations of the person challenging the decision. If the affected party has a legitimate expectation that a certainprocedure will be followed, this procedure will be required by the duty of fairness.

It will generally be considered unfair foradministrative decision-makers to act in contravention of its regular practices or in contravention of promises made as to procedure; and 5. the choices of procedure made by the agency itself (at para 27): [T]he analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure madeby the agency itself, particularly when the statute leaves to the decision-maker the ability to choose its own procedures . . . [w]hile this,of course, is not determinative, important weight must be given to the choice of procedures made by the agency itself and its institutionalconstraints. [17] It follows from the principles set out above that, when a disciplinary body is considering allegations of professionalmisconduct, a very high duty of procedural fairness is required, given the consequences that might flow from a negative decision.

Numerous cases have confirmed this principle. See Kane at 1113; Ruffo v Conseil de la magistrature, (SCC), [1995] 4SCR 267 at para 77; and Therrien (Re), 2001 SCC 35 at para 81. [18] This high duty of procedural fairness includes a duty upon the disciplinary body to disclose with reasonable specificitythe act or conduct that is alleged to amount to professional misconduct.

For example, in Mondesir v Manitoba Association ofOptometrists, 2001 MBCA 183, leave to appeal to SCC refused, 2002 CarswellMan 278, Philp JA, for the Court, explained that, “Theact or conduct must be described ‘in such a way as to lift it from the general to the particular’” (at para 27). [19] Similarly, in Histed v Law Society of Manitoba, 2006 MBCA 89, leave to appeal to SCC refused, 2007 CarswellMan117, when discussing whether adequate disclosure had been provided, Hamilton JA stated that, “The test is whether the appellant knewwith reasonable certainty what conduct of his was alleged to amount to professional misconduct” (at para 67). [20] The level of disclosure owed by a disciplinary body was explained by Trafford J of the Ontario Court of Justice inMarkandey v Ontario (Board of Ophthalmic Dispensers), 1994 CarswellOnt 2601 (Ct J (Gen Div)) as follows (at para 43): [T]ribunals should disclose all information relevant to the conduct of the case, whether it be damaging to or supportive of a respondent’sposition, in a timely manner unless it is privileged as a matter of law.

Minimally, this should include copies of all witness statements andnotes of the investigators. The disclosure should be made by counsel to the Board after a diligent review of the course of theinvestigation. Where information is withheld on the basis of its irrelevance or a claim of legal privilege, counsel should facilitate ofreview of these decisions, if necessary. The absence of a request for disclosure, whether it be for additional disclosure or otherwise, is ofno significance. The obligation to make disclosure is a continuing one.

The Board has a positive obligation to ensure the fairness of itsown processes. The failure to make proper disclosure impacts significantly on the appearances of justice and the fairness of the hearingitself. Seldom will relief not be granted for a failure to make proper disclosure. [21] In

summary, where a disciplinary body embarks upon a hearing which could affect the right of a member to continue inhis or her profession, the disciplinary body’s duty regarding disclosure requires that the conduct at issue is fully and clearly identifiedand particularized for the member such that the member is able to properly prepare a defence. This will include disclosure of theevidence in the hands of the regulator which will be presented to the disciplinary committee, as well as exculpatory evidence in the handsof the regulator. [22] The duty of disclosure in the investigatory stage is not the same.

The case law suggests that there is a reduced duty offairness at the investigatory stage. Where an investigatory body has the power to refer charges to a disciplinary hearing, there will be aduty to inform the member of the substance of the complaint and provide the member with an opportunity to respond.

If theinvestigatory body simply has the ability to investigate and report, but not to refer or recommend charges, then the duty of fairness maybe even more reduced. [23] Syndicat des employés de production du Québec et de l’Acadie v Canada (Canadian Human Rights Commission), (SCC), [1989] 2 SCR 879 (SEPQA), is a decision dealing with the duty of fairness owed by human rights investigators. InSEPQA, the issue was whether the Human Rights Commission violated the complainant’s right to either natural justice or proceduralfairness by dismissing the complaint without a hearing.

In SEPQA, the Commission’s appointed investigator looked extensively into thecomplaint, his report to the Commission explained why the complaint was unsubstantiated and concluded that it should not be referred toa tribunal hearing. After considering the report and the complainant’s response to the report, the Commission dismissed the complaintas unsubstantiated. Justice Sopinka, for the majority of the Court, stated (at 899-900): I adopt the statement of Lord Denning, M.R., in Selvarajan v.

Race Relations Board, [1976] 1 All E.R. 12 (C.A.), quoted hereunder. . . .Lord Denning said, at p. 19: In recent years we have had to consider the procedure of many bodies who are required to make an investigation and form an opinion . . .. In all these cases it has been held that the investigating body is under a duty to act fairly; but that which fairness requires depends on

the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if aperson may be subjected to pains or penalties, or be exposed to prosecution or proceedings, or deprived of remedies or redress, or in somesuch way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fairopportunity of answering it. The investigating body is, however, the master of its own procedure. It need not hold a hearing. It can doeverything in writing. It need not allow lawyers.

It need not put every detail of the case against a man. Suffice it if the broad groundsare given. It need not name its informants. It can give the substance only. Moreover it need not do everything itself. It can employsecretaries and assistants to do all the preliminary work and leave much to them.

But, in the end, the investigating body itself must cometo its own decision and make its own report. [24] One of the earliest appellate cases discussing the issue of disclosure in a similar context to the one at bar is Roy vNewfoundland (Medical Board), (NL CA), 1996 CarswellNfld 240 (SC (AD)), leave to appeal to SCC refused,1997WL1922782 (on another point). In Roy, the Board sent Dr. Roy a copy of a complaint made against him, but, prior to deciding tohold a hearing into the complaint, did not disclose a second letter from the complainant which elaborated upon the allegations discussedin the first letter.

The second letter was eventually given to Dr. Roy and his counsel on the day of the hearing. [25] Dr. Roy argued that there was a breach of natural justice when the Board failed to disclose the second letter prior to itsdecision to hold a hearing on the merits. Although Dr. Roy conceded that the degree of procedural fairness is less rigorous prior to thedecision to hold a hearing than it is after that decision is made, he argued that there is a right to know the details of the information uponwhich the decision to hold a hearing is to be made and a right to make submissions in response.

See para 20. [26] Justice Cameron concluded that, like the Commission’s decision in SEPQA, the Board’s decision to hold a hearing wassimply a preliminary decision and full disclosure was not necessary at that stage. [27] In different circumstances, the British Columbia Court of Appeal similarly determined that full disclosure at theinvestigatory stage was not necessary. In Strauts v College of Physicians & Surgeons (British Columbia), 1997 CarswellBC 1403 (CA),the College had passed a resolution to investigate physicians practising chelation therapy due to recent bad publicity.

It wrote to Dr.Strauts indicating its intention to direct a visit to his office to investigate his chelation therapy practice and included a copy of itschelation therapy resolution. When Dr. Strauts refused, the College successfully sought a court order, and, on appeal, Dr. Strauts arguedthat the College’s letter and resolution lacked the particularity required to inform him of the complaint against him and to enable him torespond. Dr. Strauts also argued that he was entitled to know exactly the “complaint” against him.

The Court of Appeal rejected thesearguments, stating that, by the material provided to him, Dr. Strauts knew that the College was investigating his practice of chelationtherapy and had provided sufficient information, given the early stage in the proceedings, to obligate him to open his records.

Seeparas 14, 16. [28] In Ontario, both the Ontario Court of Appeal and the Ontario Divisional Court have similarly determined that fulldisclosure of the details of a complaint are not required to be given during investigations by self-regulating professional bodies. [29] For example, in Silverthorne v College of Social Workers & Social Services Workers (Ontario), 2006 CarswellOnt 279(Sup Ct J (Div Ct)), Swinton J, for the majority, considered the Baker factors and, based primarily on the nature of the decision and thestatutory scheme, determined that full disclosure at the investigatory stage was not required. [30] Several other recent Ontario Divisional Court decisions have also considered the Baker factors and have determinedthat the regulatory bodies of self-governing professions have a reduced duty of procedural fairness at the investigation stage (comparedto the disciplinary hearing stage), but that duty includes disclosing the substance of the complaint to the member and giving the memberan opportunity to adequately respond to the complaint.

That means that it is adequate for the member to know the substance of thecomplaint against him/her, but not all of the information obtained during the course of the investigation.

See, for example, Gopinath vThe College of Physicians and Surgeons of Ontario, 2014 ONSC 3143; and D’Mello v The Law Society of Upper Canada, 2015 ONSC5841 at para 64, wherein the Court agreed with the comments of Abraham Feinstein, Q.C. in Law Society of Upper Canada vMunyonzwe Hamalengwa, 2008 ONLSHP 30, who stated that, “The case law is clear that persons under investigation are not entitled todisclosure of the entire investigatory file while the investigation is ongoing” (at para 23) and that the member was “not entitled to makehis co-operation conditional upon receipt of disclosure” (at para 25). [31] Other appellate decisions involving investigatory bodies, but not involving self-regulating professions, similarlyindicate that full disclosure at the investigation stage is not required to meet the duty of procedural fairness. [32] For example, in Michael Di Biase v City of Vaughan; Integrity Commissioner of the City of Vaughan, 2016 ONSC5620, the City’s Integrity Commissioner had investigated a complaint against the Deputy Mayor alleging a breach of the City’s Code ofEthical Conduct and eventually submitted her report to the City Council with her recommendation that the Deputy Mayor’s pay besuspended for 90 days.

The Council accepted the recommendation and imposed the suspension.

The Deputy Mayor complained that hehad not been given complete disclosure prior to the submission of the Commissioner’s report and that, before he could respondcompletely, he required copies of the information that prompted the Commissioner to interview 32 individuals, the names and statementsof all 32 individuals, the case law which the Commissioner relied upon to support her decision to not disclose the names of theseindividuals and witness statements, and the information given to the Commissioner by members of Council who did not participate in thedecision to suspend the Deputy Mayor’s pay. [33] The Court rejected the Deputy Mayor’s claim of a breach of procedural fairness and stated that, “An administrativebody that investigates and makes recommendations must disclose the substance of the allegations” (at para 146), but was not required toprovide “every detail of the case”; rather, it was sufficient if the broad grounds were given.

In this regard, after looking through theevidence, the Court concluded that, “The applicant knew the case against him; he decided not to respond to the substance of it” (at para139). See generally paras 138-39,146-49. Analysis and Decision

[ 34 ] In this case, Kuny complains of the actions of the investigator (Marshall) appointed by the IC. The investigator of an investigatory committee will be subject to some aspects of the same duty of fairness as the investigatory committee itself, depending on the specific role delegated to the investigator.

If the investigator is only tasked with collecting information about the complaint, then the investigator would not have to comply with any disclosure duties, but this would not relieve the investigatory committee of this duty. [ 35 ] However, where, as in this case, the investigator is tasked with not only collecting information about the complaint, but is also tasked with receiving the impugned member’s response to the complaint, the investigator would have to comply with the requirement of providing the member with the substance of the allegations so that the member can meaningfully respond to the allegations and the investigator’s questions.

The Supreme Court of Canada in SEPQA has indicated that an investigator, appointed by an investigatory committee to report back to it so that it may decide whether to refer the matter to a discipline committee, should be treated as an extension of the investigatory committee.

See SEPQA at 897-98. [ 36 ] Looking to the statute in this case, we see that the Act indicates that, “Where the investigation committee considers it appropriate . . . the investigation committee shall direct that an investigation into the conduct of a member . . . be held and shall appoint an investigator to conduct the investigation” (at section 21(1)). The Act further indicates that the investigator may require the member to produce records to the investigator and may require the member to attend before the investigator to be interviewed (see section 21(3)).

Finally, the Act indicates that the investigator “shall report his or her findings to the investigation committee” (at

section 22 ). [ 37 ] Furthermore, the College provides instructions to its investigators through an investigator’s handbook. This is indicative of the procedure adopted by the College. According to an excerpt from that handbook (in evidence with the consent of counsel for Kuny), the investigator would normally be expected to interview the member during the last stages of the investigation in order to hear his or her explanation of the allegations, and the investigator is told that the member should be provided with a

summary of the allegations so that he or she knows what to respond to. In the present case, Marshall did indeed choose to interview Kuny, as instructed by the handbook. [ 38 ] Given the role of the investigator under the Act , the instructions given to investigators in the handbook, and Marshall’s decision to interview Kuny, it would appear that Marshall acted as an extension of the IC and would thus have owed to Kuny the same duty of fairness as the IC. What Was the Duty of Fairness Owed in this Case, and Was it Met? [ 39 ] Under the Act , the executive director of the College is required to refer a complaint to the IC (see

section 19) and may refer any other matter to the IC, including a report of an employer who has suspended or terminated a registered nurse (see section 65(3)). The IC is given the power to attempt to resolve the complaint or other matter informally (see

section 20) or to direct that an investigation into the member’s conduct be held (see section 21(1)). Where an investigation is directed, the IC must appoint an investigator who is to report his or her findings to the IC (see sections 21(1), 22). [ 40 ] After review or investigation, the IC may direct that the matter be referred to the Discipline Committee, direct no further action, or accept the member’s submission to other sanctions or rehabilitative steps (see section 23(1)). The IC also has to give the member and the complainant written notice setting out its decision and reasons (see section 23(2)).

The Act specifically indicates that the IC is not required to hold a hearing or to give anyone an opportunity to appear or make formal submissions before making its decision (unless the member is agreeing to a censure) (see section 23(3)). Furthermore, by virtue of sections 38(2) and 62 of the Act , members of the IC and the investigator must preserve the secrecy of all information obtained during the course of the investigation, unless it relates to a criminal act (see

section 31). This is the extent of the IC’s role under the Act . [ 41 ] In contrast to the role of the IC, the Discipline Committee must hold a hearing into the complaints or matters referred to it (see section 34(1)). Many procedural protections are set out in the Act , including specific provisions regarding notice (see section 34(3) ), the right to appear and be represented (see section 35(1) ), the right to receive disclosure (see sections 36(1) , 36(3) , 37 ), and the right to call evidence and cross-examine witnesses (see sections 39(2) , 40(3) ).

If, at the conclusion of the hearing, the Discipline Committee finds the member guilty of professional misconduct or other contraventions (see

section 42), it has the power to discipline the member by way of reprimand, suspension, the imposition of conditions on practice, an order to reimburse money paid to the member, or cancellation of the member’s registration (see section 43(1)).

The Discipline Committee must issue written reasons for its decision within 90 days (see section 45(1)) and the member may appeal the decision to the Court of Appeal (see section 47(1)). [ 42 ] As can be seen, the nature of the IC’s decision and the statutory scheme reveals that the IC does not adjudicate complaints, but simply performs a type of screening role to determine whether the complaint should be subjected to a full hearing. In addition, unlike the Discipline Committee, the Act does not require the IC to hold a hearing when determining what to do with the complaint.

The IC’s decision to refer a complaint to the Discipline Committee also does not permanently affect the member’s ability to practice his or her profession. All of these factors suggest a lower level of procedural fairness than that which would be required at a disciplinary hearing. [ 43 ] Furthermore, with respect to Kuny’s legitimate expectations, the legislation does not require the IC to follow a specific procedure, other than requiring the IC to appoint an investigator if the matter is to be investigated (see section 21(1)).

The legislation suggests that the investigator could interview the member to obtain relevant information (see section 21(3)(b)). There is no evidence to suggest that Kuny was advised of a specific procedure that would be followed, other than Marshall advising Kuny, at the third scheduled interview, that he would continue to employ the same interviewing technique used during their July 7 interview—that he would provide him fully with the nature of the allegations and give him the opportunity to respond.

Marshall did promise to give Kuny access to relevant medical documents in his possession, and that promise was fulfilled by allowing Kuny to review medical documentation upon which the College intended to rely prior to the third scheduled interview. There is no evidence that promises of more extensive disclosure were made by Marshall to Kuny, so no legitimate expectation of additional disclosure could have arisen in that regard.

[ 44 ] Considering the College’s public policies, it does not appear that those could give rise to any legitimate expectations respecting procedure during an investigation.

Board Policy EE-6.1 simply indicates that, “The Executive Director shall ensure due process and the duty of procedural fairness in applying the legislation” (online: <www.crnm.mb.ca/uploads/ck/files/EE- 6_1%20Applications%20of%20the %20RN%20Act%20and%20Regulations.pdf>), but it does not outline any specific procedure to follow in order to meet the duty of procedural fairness. [ 45 ] Finally, as the legislation does not require a particular procedure to be followed by an investigator during an investigation, this suggests that the procedure chosen by the IC and Marshall should be afforded deference.

The procedure set out in the handbook appears to be reasonable, taking into account the fact that Marshall and the IC are simply investigating the complaint, not adjudicating it. The handbook indicates that the member is not entitled to full disclosure and that the investigator should provide the member with a

summary of the allegations so that the member knows what to respond to, but need not tell the member all the details. The handbook allows the investigator to make broader disclosure if it would advance the investigation, and notes that full disclosure will be made if the allegations are referred to a hearing. However, the handbook does not specify the manner in which the investigator has to provide the

summary of allegations—whether orally or in writing. [ 46 ] A comparison to other statutory professional associations regarding disclosure reveals that the procedure described above is similar. Some associations give more disclosure and some give less. For example, in some professions, members are given a copy of the complaint at the outset. Rule 5-64(2) of the Rules of the Law Society of Manitoba states that a member must be sent “a copy of the complaint or the relevant information”.

On the other hand, The Chartered Professional Accountants Act , CCSM c C71 mandates that the investigation give the member “reasonable particulars of the complaint” unless it would significantly harm the investigation (see section 52(1) ). The Association of Manitoba Land Surveyors, by-law No 1, General By-laws (23 September 2016) stated that the member shall be informed of “the nature of the complaint”, if the complainant wishes to proceed with an “informal resolution process” (see

section 19.5). [ 47 ] With respect to the procedure adopted for nurses in other provinces, it appears that the nature of disclosure at the preliminary investigation stage for most of the other provinces is not set out in statute or regulations. Instead, the complaint procedures are detailed on the various regulators’ websites. In British Columbia, the website of the College of Registered Nurses states that, “The nurse is provided with an opportunity to review the evidence and respond to the allegations” (online: <www.crnbc.ca/Complaints /Resolution/Pages/Default.aspx>).

The website of the College & Association of Registered Nurses of Alberta indicates that, “The Investigator interviews the investigated nurse to obtain the investigated nurse’s accounting of what happened.

The Investigator shares all of the information obtained from the complainant and the complainant’s witnesses with the investigated nurse” (online: <www.nurses.ab.ca/content/carna/home/learn-aboutcarna/compla ints---conduct/investigation-process.html>). [ 48 ] While information about the procedure followed by other statutory professional associations or nurses associations in other provinces may assist in determining what should be considered procedurally fair in the circumstances, it should be remembered that the Supreme Court of Canada has indicated in Mavi , that just because one statutory body’s procedure is procedurally fair, does not mean that a different procedure cannot also be procedurally fair.

See para 75. [ 49 ] Consequently, an application of the Baker factors leads to the conclusion that in this case, Kuny was entitled to disclosure of the substance, but not necessarily all of the details of the allegations so that he could meaningfully respond to the allegations.

Furthermore, how the IC and Marshall decided to disclose the substance of the allegations to Kuny (orally) should be afforded deference, as long as Kuny was actually made aware of the substance of the allegations to be able to respond in a meaningful way. [ 50 ] It appears from the evidence that a general description of the conduct which was the subject of the WRHA complaints was set out in the letters of discipline given to Kuny. The complaints which were made by multiple individuals, refer to lack of knowledge, skill and judgment relating to wound care treatment, among other things.

Details such as the name of the complainant, location of the incident and the patient involved are not indicated, but the dates are disclosed. [ 51 ] There is evidence that the specific allegations were discussed with Kuny very shortly after the incidents during WRHA meetings, following which the letters of discipline were given. This evidence includes indications in the letters themselves and in the notes of other persons present at the WRHA meetings that the specific matters were discussed with Kuny. Kuny was accompanied at those meetings by a union representative, Dan Kushneryk.

Also, Marshall testified that Kuny’s team manager, Wilson, stated to him that, “specifics and details of all allegations were presented at meetings where suspensions were invoked.” [ 52 ] The exact content of those discussions is not clear, as there is no transcript of the meeting, and both Kuny and Kushneryk testified that they received insufficient information about the allegations during the WRHA meetings. Wilson indicated, in an email to Marshall, that there were no written statements from the staff and that the complaints were made to her orally and she made notes of those complaints.

Kuny responded by email on a number of occasions that it is impossible for him to respond because of the lack of specificity in the complaints.

What he complains of in his emails, and what he demands during his meetings with Marshall, are details, evidence and documents to support the allegations. [ 53 ] It is clear, however, that even without any background documents, Kuny was able to recall and discuss one incident relating to the lifting of a patient using a Sera lift, when pressed to give information about it at the IC’s October 28, 2013 meeting, indicating that he was aware of the gist of this allegation by that date, such that he was able to make a response.

When asked about the WRHA’s concern regarding his improper use of a mechanical lift, Kuny initially responded that he did not remember and that, “the accusation was too vague”. However, when reminded of his duty to be honest and candid, he indicated that he did remember the incident and that “my recollections are fairly good on some of these things”. He then went on to provide details regarding the incident in question. [ 54 ] The July 7 interview was conducted without the production of any documentation aside from the letters he had already

received. However, it is clear, that during that interview, Marshall supplied Kuny with the details of the allegations relating to all of the WRHA complaints contained in the WRHA warning letter and the WRHA’s first suspension letter, as well as some additional allegations that were not addressed in any of the letters of discipline. [ 55 ] It is also clear that Kuny was able to respond to all of Marshall’s inquiries except one and was able to explain his view of the matters discussed.

Marshall’s report sets out the specifics that he provided to Kuny of the allegations in all of the letters of discipline, as well as additional concerns raised during interviews with other nurses.

Marshall’s report also sets out, in some detail, the gist of Kuny’s responses to these allegations. [ 56 ] In his testimony, Marshall stated that he presented the specifics of several allegations to Kuny during the July 7 interview and that Kuny recalled the incidents and responded without difficulties, despite a lack of medical documentation, with the exception of an incident relating to one patient, whom Kuny could not recall. Kuny’s own testimony also indicates that he responded to Marshall’s questions, explained his viewpoint, and discussed several allegations during the July 7 interview.

So, for example, with respect to the wound care of one patient, Kuny responded that he did not have the proper equipment. Jason Trottier, the coordinator of professional conduct at the College, who was present at the July 7 interview, also testified that Marshall told Kuny about the specifics of several allegations and that Kuny provided verbal responses. [ 57 ] In

summary, it appears that the specific incidents were discussed with Kuny at the meetings with the WRHA very shortly after the incidents and Marshall provided Kuny with details about the allegations in the WRHA warning letter, the first WRHA suspension letter and some additional allegations during the July 7 interview. In my view, the details as contained in Marshall’s report, reveal more than just the substance of the complaint.

The details were clearly sufficient, as Kuny was able to respond to the allegations, save for one, which was due not to the lack of detail but, rather, to Kuny being unable to recall the patient.

Marshall also testified that he asked Kuny if he was satisfied with the degree of specifics that had been provided to that point (the July 7 interview) and Kuny responded yes. [ 58 ] With respect to the allegations made in the second WRHA suspension letter and the WRHA’s termination letter, and some additional allegations discovered by Marshall in the course of the investigation, the specifics of these allegations were not discussed between Kuny and Marshall during the July 7 interview due to time constraints. Kuny had a prior commitment and had to leave.

Arrangements were made for the interview to continue on July 16, 2014, but this interview did not proceed when Kuny was advised, on that day, that his wife could not attend with him as his note-taker. [ 59 ] Thereafter began a series of emails between the parties, with Kuny demanding a number of documents as well as insisting that the College correlate each document with each allegation. In Kuny’s email correspondence with Marshall, he indicated, among other things, that the College was attempting to manipulate the investigation to its advantage.

He made a number of requests including that Marshall send him a list of questions prior to the interview, that a court reporter be present and that documents be provided to him in advance. [ 60 ] A third interview was set up to take place on August 22, 2014, in the presence of a court reporter (as requested by Kuny). A number of documents regarding these complaints, as requested by Kuny, were made available to him, including nursing care plans, client flow sheets, wound assessment and treatment forms, wound management flow charts, community health communication forms, doctors’ orders and progress notes.

However, certain documentation requested by Kuny was not produced, in particular, occurrence reports and signed statements of his former co-workers, which reports and statements either were not in the College’s possession or did not exist. Kuny refused to be interviewed without having access to these documents and, therefore, the interview did not proceed. [ 61 ] It is clear that Marshall told Kuny on August 22, 2014, that he would provide him with the details of the nature of the remaining allegations, give him the opportunity to respond, and that a court reporter was present to transcribe the interview.

However, Kuny was still unwilling to proceed until the WRHA occurrence reports and signed statements by his former co-workers complaining about his conduct were produced.

It is also clear that Marshall later advised Kuny that he would submit his report to the IC without asking for Kuny’s further input, and that Kuny did not ever come forward to be interviewed again. [ 62 ] Kuny was not advised about the substance or details of the remaining allegations by Marshall and did not respond to the remaining allegations because Kuny refused to continue the interview on August 22, 2014, despite being given access to the medical documentation he requested, and despite being advised that he would be given the details of all the allegations and be given the opportunity to respond to the allegations during the interview, as had occurred during the July 7 interview. [ 63 ] In my view, reasonable attempts were made to afford an appropriate level of procedural fairness to Kuny regarding disclosure, but Kuny circumvented the process by refusing to proceed with the interview.

Kuny then used his own refusal to be interviewed to support his claim that he was treated unfairly when he was already aware of the incidents and his attendance at the interview with Marshall would likely have provided him with further details of the complaints and given him an opportunity to respond. Kuny cannot dictate the course of the investigation. Nor should the level of disclosure turn an investigation into a discipline hearing and unnecessarily delay matters.

Based on the evidence reviewed, I have concluded that the duty of fairness was met in this case. [ 64 ] I understand that the main issue in this case is not Kuny’s competence as a nurse, but his failure to cooperate with the investigation into the complaints regarding his competence. Yet, his lack of cooperation impedes the investigation and affects the ability of the College to protect the public interest as much as any other issue. For example, in D’Mello , the Law Society was investigating a complaint against D’Mello, and he was asked for documentation relating to the transaction involved.

D’Mello had concerns about the genuineness of the complaint, and, rather than supplying the requested documentation, he asked for disclosure of an electronic version of the original complaint letter so that he could have it forensically examined. Letters went back and forth between the Law Society and D’Mello, with the Law Society refusing to provide an electronic version of the letter and D’Mello refusing to provide the requested documentation. Eventually, the Law Society filed charges of professional misconduct against D’Mello, alleging a failure to co-operate with the investigation.

[ 65 ] The charges proceeded to the hearing panel and D’Mello’s defence was that he believed there were sufficient concerns about the genuineness of the complaint and that he was not required to provide the requested documents until he could forensically examine the electronic version of the undisclosed letter. The panel rejected this argument and convicted D’Mello of professional misconduct.

After the Law Society’s Appeal Panel dismissed his appeal, D’Mello appealed to the Divisional Court. [ 66 ] The Divisional Court analyzed the appeal by discussing the importance of the investigative role of a regulator of a self- governing profession. Justice Perell, for the Court, stated (at para 62): [T]here are very powerful public policy reasons for requiring the members of a self-governing profession to co-operate with an investigation by their regulator. I agree with the comments of Larry Banack in Law Society of Upper Canada v. Joseph Dannial Ernest Stewart Baker , [2006] L.S.D.D. No. 31, at paras. 6-7: 6.

It is of paramount importance that members of the Law Society co-operate with investigations and promptly and substantively respond to communications from the Law Society in order that it may fulfill its statutory mandate of governing the profession in the public interest. Members’ failure to do so delays investigations, jeopardizes the collection of evidence including the recollection of witnesses, results in a backlog of investigations and can lead to an erosion of public confidence in the self-regulatory authority of the Law Society. 7.

Members must be aware that their failure to co-operate and/or respond in a prompt and substantive fashion results in the implementation of a second investigative process to compel the member’s compliance. This diverts attention from the primary complaint or investigation at a cost of time and Law Society resources funded by all members of the Society.

Members who choose to not co-operate or respond promptly and substantively interfere with the proper functioning of the Law Society, diminish the public’s respect for the profession and the self-regulatory process of the Law Society and cause otherwise avoidable expense to be incurred.

See also Round v Institute of Chartered Accountants of Ontario , 2015 ONSC 7099 . [ 67 ] Even if I am wrong and the duty of fairness had been breached at this stage, a breach of the rules of procedural fairness at a pre-hearing or investigatory stage of proceedings could have been cured or corrected if the rules of natural justice were complied with at the hearing stage, unless the breach of procedural fairness at the investigatory stage has substantially prejudiced the member’s right to a full and fair hearing into the complaints laid.

A member is not entitled to object to a breach of fairness at the investigatory level by refusing to cooperate with the investigation. Concerns should be brought to the attention of the discipline committee.

See Histed at paras 48-61 ; and Hnatiuk v The Society of Management Accountants of Manitoba , 2013 MBCA 31 , where Hamilton JA, for the Court, wrote that, “While not explicitly stated, this passage reflects the principle that subsequent proceedings that provide a full and fair opportunity to be heard can correct unfairness at the prehearing stage” (at para 78), and concluded that, “this is a full answer to the appellant’s argument of procedural unfairness” (at para 79).

Also see Violette v New Brunswick Dental Society , 2004 NBCA 1 at 7; Volochay v College of Massage Therapists of Ontario , 2012 ONCA 541 at paras 68-69 , 74-75; and more generally, Halifax (Regional Municipality) v Nova Scotia (Human Rights Commission) , 2012 SCC 10 at paras 35-36 . Conclusion [ 68 ] An analysis of the statute and the entire context of the facts of this case indicates that there is a reduced duty of fairness that applies to an investigatory body as opposed to a disciplinary body.

The duty of fairness at the investigation stage requires the disclosure of the substance of the allegations such that the member will be able to respond to the allegations in a meaningful way. Disclosure of evidence and all of the details are not required at this stage, and the manner by which the disclosure of the substance of the allegations is made (whether orally or in writing) falls within the discretion of the investigatory body.

In this case, Marshall acted as an arm of the IC and will be subject to the same duty of fairness as the IC itself. [ 69 ] Kuny was given the substance of the complaints in his meetings with the WRHA within days after the incidents and further details were discussed at the July 7 interview with Marshall. The details given were set out in Marshall’s report, but were given orally to Kuny. The details were clearly sufficient, as Kuny was able to give detailed responses, except with respect to one patient.

Kuny received medical records regarding most of the complaints, but did not receive the details of the remaining complaints against him from Marshall because he refused to attend further interviews unless he received additional documents that did not exist or were not in the possession of the College. He refused, despite being told that he would be advised of the details of the complaints and that he would have the opportunity to respond. [ 70 ] Even if adequate disclosure is not given to a member during the investigatory process, the member is not entitled to refuse to participate in the investigation.

Ideally, the member should wait to raise the concerns at the next level of the administrative process (usually the discipline level) and seek relief there, unless it is clear that the breach of procedural fairness cannot be cured at the discipline level. [ 71 ] Consequently, the decision of the Discipline Committee was both correct and reasonable when it found that Kuny failed to cooperate with the investigation and that such failure constituted professional misconduct.

The Discipline Committee’s finding that Kuny failed to cooperate clearly falls within a range of possible, acceptable outcomes which are defensible in respect of the facts of this case (see Doolan v Law Society of Manitoba , 2016 MBCA 57 ). It would not be helpful in this case to enter into a discussion as to whether the standard of review with respect to issues of procedural fairness have changed from the traditional standard of correctness to one of reasonableness. See Boeing Canada Operations Ltd v Winnipeg (City) Assessor , 2017 MBCA 83 at paras 30-34 .

[ 72 ] The proper test for whether conduct of a professional crosses the line and becomes misconduct is whether the individual, in the pursuit of his or her profession, has done something which would reasonably be regarded as improper by his or her professional peers of good repute and competency. A professional can be found guilty of professional misconduct based on a breach of the standards of conduct of the profession (see James T Casey, The Regulation of Professions in Canada (Toronto: Carswell, 1994) vol 2 (loose-leaf updated 2005, release 2) at 13-2 to 13-3).

Failure to cooperate with an investigation without due cause may be considered improper conduct, depending on the context, even though it has nothing to do with the member’s competence or dealings with patients (see Law Society of Upper Canada v Junior Osas Ebagua , 2012 ONLSHP 123 ). As mentioned earlier, it impedes the ability of the regulatory body to govern the profession and protect the public interest. [ 73 ] A finding of ungovernability is based on a case-by-case analysis in which the guiding principle is the public interest.

Members of a profession must be willing to be governed by their regulator; otherwise, the public cannot be protected. A demonstrated inability or unwillingness to abide by the decision of a regulatory body will support a finding of ungovernable conduct. [ 74 ] Kuny argues that the Discipline Committee did not provide sufficient reasons for its finding that Kuny’s behaviour is ungovernable. I disagree. The Discipline Committee provided a detailed review of the evidence regarding his failure to cooperate with the investigation.

After reviewing the evidence, the Discipline Committee found that Kuny failed to cooperate with the investigative process without a reasonable explanation. It found “that every effort was made by the [IC] to conduct full and substantive interviews in regard to the allegations and that [Kuny] did not cooperate.” The Discipline Committee found that Kuny was “inconsistent with his reasons for declining to cooperate with the investigation” and it did not accept Kuny’s position that he was given insufficient documentation to refute the allegations.

The Discipline Committee provided examples of evidence that supported these conclusions. The Discipline Committee also found that based upon Kuny’s ability to recall events from the client concerns discussed at the July 7 interview, there was sufficient documentation for him to proceed with the interview on August 22, 2014. [ 75 ] In

summary, the Discipline Committee provided a detailed path to reach its decision regarding ungovernable conduct. See Guttman v Law Society of Manitoba , 2010 MBCA 66 .

Penalty [ 76 ] Kuny argues that the reasons for the penalty are insufficient and that the penalty is too severe. [ 77 ] As the primary purpose of the Act is the protection of the public, “it follows that the fundamental purpose of sentencing for professional misconduct is also to ensure that the public is protected from acts of professional misconduct” (Casey at 14-5). [ 78 ] The factors which ought to be taken into account in determining how the public might best be protected, include specific deterrence of the member, general deterrence of other members of the profession, rehabilitation of the offending member, punishment of the offending member, isolation of the offending member, the denunciation by society of the conduct, the need to maintain the public’s confidence in the integrity of the profession’s ability to properly supervise the conduct of its members and assuring that there is no disparity with penalties imposed in other cases.

These principles, plus the presence or absence of any mitigating circumstances, are the principles to be applied in determining the appropriate penalty. [ 79 ] Here, it is clear from Kuny’s conduct and the application of the aforementioned principles that the penalty falls within a range of possible and acceptable outcomes which are defensible in respect of the facts and law. Failure to cooperate with an investigation is a serious matter which makes it impossible to determine if the complaint is substantiated or not. [ 80 ] The appeal is dismissed with costs.

JA I agree: JA BEARD JA (concurring): [ 81 ] I concur with my colleague’s decision as to the applicable law regarding disclosure at the investigatory stage, which requires that the member be advised of the substance of the allegations such that he or she can make a meaningful response. I also concur with the outcome of this appeal as it relates to the facts of this case.

I do, however, have a concern about the fairness of the investigation procedure that has been adopted by the College, which relates to both the content and timeliness of disclosure that, in my view, requires further comment. [ 82 ] The College, in its handbook, gives the following directions for dealing with the member:

The interview will often be the regulator’s last opportunity to learn the explanation of the [member] to the allegations and the interview will assist the regulator to prepare for that explanation if a hearing is held. Once the matter is referred to a hearing, defence counsel will often advise the [member] not to speak with representatives of the regulator.

There is generally no obligation on defence counsel to tell the regulator what its defence will be prior to the hearing. [ 83 ] The handbook also states that the member has the right to consult counsel and to have a lawyer present during the investigation interviews. [ 84 ] It is clear that the College is using the investigation as a tool to force the member to provide information that can be used against him or her at a later disciplinary hearing.

While it acknowledges that the member has the right to be represented by counsel and to refuse to disclose his or her defence prior to the discipline hearing, that is an illusory right if that member has already been forced to disclose his or her position during the investigation under threat of being charged with a breach of professional ethics if he or she refuses to do so.

While the protection of the public may justify this incursion into the member’s rights, that incursion becomes unfair if the member has not been given the opportunity to know the specific events being investigated prior to the interview so that he or she can prepare a meaningful response. [ 85 ] The right to be represented by counsel at the investigation interview is also illusory if the member has not been given sufficient information in advance of the investigatory interview to identify the event or events under investigation.

There is little that a lawyer can do to assist the member at that stage, where the member is required to respond (there being no right to silence) if the member cannot know, in advance, exactly what he or she must respond to. What advice can a lawyer give? Further, a member may spend a significant amount of time and resources attempting to identify the events at issue and prepare a response, only to find that the complaint relates to a different event.

This is surely inquiry by ambush. [ 86 ] While the investigator proposed to provide details of the incidents orally during the interview, this late disclosure would prevent the member from taking steps to refresh his or her memory of the events, to gather information regarding events about which he or she may have little memory, or to consult with a lawyer in any meaningful way prior to being required to respond. If the member’s initial response is inaccurate, that inaccuracy can be used to attack his/her credibility at a later stage.

Saying that Kuny was able to recall the events once provided with the information during the interview does not answer the fairness concerns set out above. [ 87 ] The requirement for fairness at the investigatory stage is heightened due to the fact that the IC has the power to impose immediate sanctions on the member which, while temporary, can be significant, including directing the executive director to suspend the member’s registration, thus taking away the right to work. (See section 28(1) of the Act .) In this case, the IC imposed a condition on Kuny’s registration on October 28, 2013, that had the effect of making him unemployable as a registered nurse, effective immediately. [ 88 ] As noted at paras 46-47 herein, a review of the procedures of other professional regulators shows that many provide either full disclosure, as it exists at the time of giving notice, or at least reasonable particulars of the complaints, prior to the investigatory interview.

While I accept that there is a range of procedures that will qualify as being procedurally fair, in my view, to come within that range the member must be provided with identifying details of the allegations and underlying events in advance, so that he or she has the opportunity to consult counsel and to make a meaningful response. That cannot occur if the identifying details are withheld until the time of the interview.

This does not mean that the regulator must make full disclosure of every detail and every document in its possession, although that is the practice of some regulators, but the member must be able to understand the specifics of the allegations and the events in question with sufficient detail and on a timely basis to be able to prepare his or her response.

Anything less does not satisfy the requirement to provide the member with the substance of the allegation and does not permit of a meaningful response, with the result that the procedure is not, in my view, fair. [ 89 ] In this case, the letters of discipline that the College sent to Kuny described the complaints in very general terms, with no details that would enable him to identify the specific events about which he was expected to respond.

For example, the first issue related to the College’s letter dated July 5, 2013, and is described as “Lack of respect to co-workers by showing anger and making inappropriate comments causing them to feel intimidated”, while part of the second issue states, “Wound Care—Technique (

a) Unable to provide rational for use and when to change a dressing”. Kuny was working with a number of nurses and, in the course of providing care for several patients, he changed a number of dressings, so it would be impossible for him to determine, without further details, which of the events were the subject of these allegations.

Both the IC at its meeting of October 28, 2013, and Marshall were of the view that Kuny should have appeared and responded without being provided with any further information in advance. [ 90 ] While, in my view, this notice procedure was not, on its own, fair, it is clear that, when looked at in the context of all of the facts, it did not result in procedural unfairness to Kuny. The complaint to the College was initiated by the WRHA, as a result of it having taken disciplinary steps against Kuny.

The evidence shows that Kuny and his union representative attended meetings with the WRHA to discuss the complaints that led to those disciplinary steps and that he was aware that the College would be notified of those proceedings. Thus, in this case, the member was aware from the WRHA meetings of the substance of the complaints being pursued by the College, as a result of which he had sufficient notice of the details of the complaints to respond in a meaningful way to the College’s investigator.

It is for this reason that the College’s otherwise unfair procedure was not unfair in this case. ______________________________ JA