Duty of fairness at investigative stage and the importance of co-operation in an investigation

Registered nurse refused to co-operate with professional investigation into his termination, claiming he needed more details on the investigation
By Leah McDaniel
|employmentlawtoday.com|Last Updated: 03/26/2018
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Kuny v. College of Registered Nurses of Manitoba, emphasizes that the duty of fairness at the investigative stage of a professional disciplinary process requires centrally that a member be advised of the substance of the allegations and be given an opportunity to respond.

Douglas Kuny is a registered nurse in Manitoba. His employment with the Winnipeg Regional Health Authority was tumultuous – he was suspended twice and ultimately terminated as a result of performance concerns. The College of Registered Nurses of Manitoba was notified of the termination and conducted an investigation. During the investigation, Kuny was asked to respond to the allegations and refused, asserting that it was “impossible” for him to do so without a more detailed explanation of the performance issues, including the evidence upon which each allegation was based.

The discipline committee of the college found that Kuny had failed to co-operate with the investigative process without reasonable explanation, determined that this constituted professional misconduct, and found Kuny’s behaviour to be ungovernable. A number of sanctions were imposed.

Kuny appealed, arguing that he did not receive sufficient disclosure during the investigation process, which he asserted was a breach of procedural fairness. The Manitoba Court of Appeal confirmed that a duty of procedural fairness is owed to a member during an investigation, but the extent of the duty is not as high as in a disciplinary hearing. At the investigation stage, the duty requires the disclosure of the substance of the allegations to the member and that the member be provided with the opportunity to respond. In this case, that duty was met, and thus Kuny’s appeal was dismissed.

The court’s conclusions emphasized that the content of the duty of procedural fairness is variable, and will depend on the specific circumstances. At the investigative stage of a professional disciplinary process, there is no adjudication of complaints; rather, the focus is on information gathering. The duty of disclosure is therefore more significant during a subsequent disciplinary hearing process, where the consequences for a member can be more severe. Further, the court confirmed that even if a member does not receive adequate disclosure during an investigation process, the member is not entitled to refuse to participate in the investigation. Rather, in such circumstances, the member should raise the concerns at a subsequent disciplinary process to seek relief there.

Comment
This decision confirms that the level of the duty of disclosure at the investigatory stage requires only that the member be advised of the substance of the allegations and be given an opportunity to respond. The decision also confirms that the duty of disclosure is much more significant at the disciplinary stage, and regulators must be sure to fully disclose the case against a member during any disciplinary process. Further, the decision makes the important point that a member of a professional disciplinary body is not entitled to refuse to co-operate with an investigation because of concerns about disclosure – every member has a duty to participate in an investigation.

For more information see:

  • Kuny v. College of Registered Nurses of Manitoba, 2017 CarswellMan 541 (Man. C.A.).

Leah McDaniel is a lawyer with Field Law in Edmonton, practicing professional regulatory, civil litigation, and labour and employment law. She can be reached at (780) 423-9594 or lmcdaniel@fieldlaw.com. This article has been published with the permission of Field Law, and may be republished only with the consent of Field Law.  "Field Law" is a registered trademark of Field LLP.

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