As the readers of this newsletter are well-aware, the conduct of regulated health professionals in Ontario is overseen by regulatory colleges, which investigate complaints and may impose remedial orders to protect the public and uphold professional standards. When complaints arise, members have a chance to make written submissions in response to the issues raised in the complaint and/or corresponding investigation report. The Inquiries, Complaints and Reports Committee (“ICRC”) of the applicable regulatory college then reviews the written materials and decides whether to refer the matter to a disciplinary hearing, or whether another remedial order may be sufficient to address the public interest.
Bortolon v College of Occupational Therapists of Ontario, 2025 ONSC 3848, emphasized the procedural fairness the ICRC owes members during these complaint investigations, including the scope of notice and opportunity to respond that must be provided prior to imposing remedial orders.
I. FACTUAL BACKGROUND
Ms. Bortolon is a registered occupational therapist. She worked as an independent contractor at the Play Clinic, which provided mental health services to children. The owner of the clinic filed a complaint with the College alleging that Ms. Bortolon, contrary to their fee agreement, had instructed some clients to pay her directly (rather than through the clinic), and that she had then billed the clinic for the same services. These were the two issues that the College investigated.
Upon receiving the investigation report, Ms. Bortolon noticed inaccuracies in the documents and summaries regarding other, unrelated issues. She contacted the investigations manager to ask whether she should respond to these unrelated issues. The investigations manager confirmed that she should only focus on the two issues the College had investigated in her response, as would the ICRC when making their decision.
After the ICRC reviewed the complaint, it ordered Ms. Bortolon to complete a Specified Continuing Education or Remediation Program (“SCERP”). The reason it provided for this order was Ms. Bortolon’s “lack of administrative processes, including billing, as well as [her] decision to use the Clinic’s system for her own clients,” which indicated a “significant gap in [her] knowledge, skill and judgement.” The ICRC stated this order was appropriate given Ms. Bortolon’s disorganized billing practices. There was no suggestion she had acted knowingly or dishonestly, which would warrant referring the matter to discipline. The ICRC did not make any specific findings about the two issues that were the subject of the College’s investigation.
Ms. Bortolon challenged the ICRC’s decision on both procedural and substantive grounds. Firstly, she argued that it was procedurally unfair for the ICRC to order her to complete a SCERP based on findings of fact unrelated to the two billing issues raised in the complaint and investigation report, which she was told to focus her response on. Had she known broader practice management concerns would form the basis for the ICRC’s decision, she argued she would have addressed them. Secondly, Ms. Bortolon argued the decision was substantively unreasonable because the ICRC failed to obtain relevant and material evidence, made findings of fact in the absence of evidence, and misapprehended the evidence before it.
II. THE DIVISIONAL COURT DECISION
The Divisional Court agreed with Ms. Bortolon that the ICRC’s decision was procedurally unfair. It adopted the reasoning from RS v EF, 2023 CanLII 7337 (HPARB), which held that professional regulators must provide their members with notice and an opportunity to respond when they identify new concerns or interpret the issues differently than how the member understood them during an investigation, and when the regulator plans to criticize the member's practice and take action against them. At a minimum, members must have notice of these new concerns, and an opportunity to respond to them when they form a substantial basis for the findings of the ICRC.
Citing Dr. Rajiv Maini v HPARB, 2022 ONSC 3326 (Div Ct), the College argued the duty of procedural fairness at the investigative stage is limited, as the ICRC exercises a screening rather than an adjudicative function, and because it has no authority to order sanctions or penalties. However, the Court concluded that even if a SCERP is not considered a “sanction” by the College, the ICRC’s order reflected its findings that Mr. Bortolon had serious deficiencies in her administrative practices, and lacked insight and accountability regarding the consequences of these deficiencies. The SCERP would also be available on her public record and would be considered by any future ICRC panel considering her conduct. The Court also noted that while Maini may indicate the College is not required to give members access to all information gathered at the investigative stage, this decision also confirmed notice of the allegations or substance of the complaint must be provided that is sufficient to allow the member to meaningfully respond.
The Court also confirmed that discussions about her practice management during the interview stage were not “notice” to Ms. Bortolon that her practice management itself was under investigation. The complaint centered on allegations that Ms. Bortolon had engaged in dishonest and criminal activity. It was reasonable to expect she would focus on these allegations in her response, rather than the adequacy of her practice management. The Court was not persuaded by the College’s argument that it was not the investigation manager’s responsibility to provide legal advice to Ms. Bortolon (who was self-represented at the time) in crafting her response. Despite agreeing with this general principle, the Court found the investigation manager’s email led Ms. Bortolon to reasonably understand she should restrict her response to the two billing issues identified in the investigation report.
Based on these procedural fairness issues, the Court allowed Ms. Bortolon’s application and quashed the ICRC’s decision. It found remitting the matter to the College for further investigation or reconsideration would serve no useful purpose, especially given Ms. Bortolon was no longer working at the clinic and the practice management concerns the ICRC identified were no longer an issue. The Court acknowledged Ms. Bortolon understood the importance of practice management, and she had undertaken remedial activities on her own and sought advice on these practices.
The Court also noted that because Ms. Bortolon’s former employer had refused to provide client files and records to Ms. Bortolon during the investigation, she would have to rely entirely on her memory, which was now faded, to respond to concerns with her practice management.
III. TAKEAWAYS
Drawing on HPARB jurisprudence, the Divisional Court confirmed regulators must provide clear notice and an opportunity to respond whenever they intend to rely on issues beyond the original complaint, or if they interpret the issues differently than how the member understood them during the investigation. Although the ICRC does not exercise an adjudicative function, the Court noted that the remedial orders it can impose, such as a SCERP, may carry significant consequences for the member. Accordingly, even these remedial orders attract a meaningful level of procedural fairness. Regulators must ensure members can understand and address all issues that form the basis of a decision.
The Court’s remedy also drew on Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, which notes it may not be necessary to remit a matter to the original decision-maker if doing so would serve no useful purpose. The Court quashed the ICRC’s decision without sending it back because the circumstances had changed, and because key evidence was no longer accessible. Further investigation would not achieve a practical or useful outcome.
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