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How deep should an investigator dig?

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In a recent blog post, I discussed a case1 where the Ontario Superior Court found an investigation to be inadequate and unfair because it was based on rumour, gossip, and hearsay, and ultimately resulted in the employer making an unjustified and costly decision to terminate an employee’s position. The central error was a lack of thoroughness in conducting the investigation.

Another recent case, Szommer v Ontario College of Nurses,2 comes at thoroughness from the other side, addressing when an investigator can reasonably decide they have looked deep enough.

In 2019, an individual (the “applicant”) brought a complaint to the Ontario College of Nurses (“the College”), alleging that a nurse at a fertility clinic had falsified medical records. The records in question indicated that the applicant had visited the clinic on a particular date in 2010. The applicant denied she had visited the clinic on that date, and claimed the records were falsified in order to bill the Ontario Health Insurance Plan (“OHIP”), or to give the impression that she had consented to a treatment.

The nurse provided a written response to the claim. She maintained that the visit had in fact occurred, and pointed to various documents, including the health records, the appointment list, and the applicant’s history of visits to the clinic as evidence. She further noted that the clinic would only bill OHIP for a consultation with a doctor, and this particular visit was a consultation with just the nurse.

The College’s Inquiries, Complaints and Reports Committee (“ICRC”) conducted an initial investigation, which involved interviewing the applicant, reviewing the written response of the nurse, interviewing the office administrator of the clinic, and reviewing the health records and sign-in sheets. The College concluded that the available documentary evidence and records showed the visit did in fact take place on the date in question. The College determined to take no further action with respect to the complaint.

The applicant sought a review of the decision before the Ontario Health Professions Appeal and Review Board. The applicant took the position that the College’s investigation was not thorough enough. She claimed, for example, that the College should have also obtained the actual OHIP billing records, rather than relying on the evidence of the office administrator and the nurse that they did not bill OHIP for such procedures.

The Board found3 that the College had obtained the essential information necessary for it to make an informed decision, and that there was no indication that further information was available that would have changed its conclusion. With respect to the applicant’s assertion that the records relied on had been falsified, the Board noted that health records are legal documents which health care professionals are required to make, and absent any compelling information to the contrary, which did not exist here, can be assumed to be reliable. Though the applicant disputed that the documents were legitimate, she was not able to point to any evidence to show this beyond her own assertion that she had not visited the clinic on the day in question. The Board accepted the College’s decision to rely on the electronic health records, rather than the applicant’s personal recollections of a day some 10 years earlier, and found that the College’s decision to take no further action on the complaint was reasonable.

The applicant challenged the decision by judicial review to the Divisional Court. The Court dismissed the application as frivolous and vexatious, holding that this was one of the “clearest of cases,” where there was no argument that the decision of the Board, and by extension the decision of the College, was unreasonable.

In notice given to the applicant prior to the matter being dismissed, the Court noted:

Ms Szommer’s application is based on an argument that a more thorough investigation of her allegations could have led the ICRC to a different conclusion. It is always possible to investigate a matter more thoroughly. On the basis of the investigation that the ICRC did conduct, it found corroboration for the respondent nurse’s position and no basis to corroborate the complainant’s version. The events in question took place a decade ago, and although it is not stated, it is implicit that the complainant’s oral evidence about these events could not be sufficient to displace the existing medical records to justify disciplinary proceedings against the nurse.

The Court also noted that what may be required will depend on the nature of the investigation. In this case, the Court noted that this was a professional disciplinary complaint brought almost 10 years after the fact, and that it was reasonable for the College to be mindful of the difficulty in defending historical allegations such as these. The Court did suggest the circumstances may be different in the case, for example, of a private lawsuit.

The important issue in this case for those conducting impartial investigations is that “thorough” is not the same thing as “exhaustive.” Not every possible avenue has to be explored, nor every potential witness interviewed, nor does every theory of potential wrongdoing have to be tested, in order for an investigation to be thorough and for the outcome to be reasonable. Though an investigation will need to address the allegations and explore what evidence there is to substantiate the claims, an investigation does not have to be come a “fishing expedition” to find evidence to support bald allegations. There is a point where a reasonable investigation will have found the evidence needed to make an impartial decision on the case.

1 McGraw v Southgate (Township), 2021 ONSC 7000 (CanLII).

2 Szommer v Ontario College of Nurses, 2021 ONSC 8463 (Div Ct)

3 Szommer v Fowler, 2021 CanLII 77472 (ON HPARB)

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