Inquiry Committees and Credibility

One of the nuances of an inquiry committee considering how to handle an investigation, is that it is not an adjudicative body and does not make findings of credibility. On the other hand, in order to make a good decision about whether to take no further action, to refer a matter for hearing or what terms to include in a consent agreement,an inquiry committee often has to effectively "weigh evidence" especially where the investigation has yielded conflicting evidence. How far can an inquiry committee go? The Ontario Health Professions Appeal and Review Board considered the role of an Inquiry Committee in Reyhanian v. Ontario (HPARB) 2013 ONSC 297 Ontario Superior Court of Justice (Divisional Court). In this case, a dentist was found guilty of professional misconduct. He had been assessed by a psychiatrist who found him to be suffering from a mental disorder and unfit to practice. The dentist complained about the psychiatrist to the College of Physicians and Surgeons. That College considered the complaint and the evidence to support it. Even though there was some conflicting evidence, it decided to take no further action. The dentist challenged this decision taking the position that unless a complaint was frivolous or vexatious, or of such a minor nature that referral was unnecessary, all complaints had to be referred to the Discipline Committee. This argument was made partly on the basis that an inquiry committee is not adjudicative and does not make findings of credibility. This argument was rejected. The Court held that an inquiry committee is "entitled to take a critical look at the facts underlying the complaint and the evidence that does and does not support it, along with a myriad of other issues (such as, the record of the respondent, special circumstances surrounding the incident, policy concerns, the capacity of the discipline committee, among others). The factual record revealed from the investigation must necessarily be part of that analysis. If the applicant's argument was correct on this issue, the ICRC would be obliged to refer to discipline a case in which a wild and unsupported accusation was made about conduct that occurred in front of 10 independent witnesses, all of whom asserted that the incident did not happen at all. That is simply not the test." While the decision does not articulate a clear test of how far an inquiry committee can permissibly go when considering conflicting evidence, it is useful because it recognizes the practicalities of the committee's role and the inevitablity that some consideration must be given to evidential differences.