Reviewing Decisions of the College of Optometrists of Ontario at the Health Professions Appeal and Review Board (HPARB)
The Inquiries, Complaints, and Reports Committee (“ICRC”) of the College of Optometrists of Ontario is responsible for dealing with formal complaints against optometrists. While the process may end with the ICRC’s decision, optometrists and complainants may both request a review before the Health Professions Appeal and Review Board (“HPARB”). Based on our experience at HPARB proceedings, here is a brief overview of the review process.
The HPARB is an independent adjudicative agency that is responsible for reviewing the decisions of all regulated health colleges, including the College of Optometrists of Ontario. The Minister of Health and Long-Term Care appoints HPARB members. While panels of the ICRC must include optometrists, members of the College of Optometrists of Ontario cannot be HPARB members. HPARB members are often, though not necessarily, lawyers.
After receiving the ICRC’s decision and reasons, optometrists and complainants will typically have 30 days to make a written request for a review. The HPARB will review final dispositions only, and will not address interim orders, or referrals for discipline or health inquiries. The HPARB may not proceed with requests it deems frivolous, vexatious, made in bad faith, or otherwise an abuse of process. A review before the HPARB will not proceed if an optometrist or complainant withdraws their request and the other party consents to the withdrawal.
Once it commences the review process, the HPARB will provide optometrists and complainants with notice as well as instructions on next steps. The HPARB may require additional information from these parties.
As part of its review, the HPARB will receive all the material gathered during the complaint investigation stage. Optometrists and complainants will also receive this material, though certain information may be redacted for privacy reasons. This lengthy package of disclosure is known as the Record of Investigation. It is prudent for optometrists to carefully review the Record of Investigation. Optometrists may consider contacting a lawyer who is familiar with the HPARB to assist them with their review. Once retained, legal counsel will help navigate the process and will typically become the primary point of contact with the HPARB.
After it discloses the Record of Investigation to optometrists and complainants, the HPARB may facilitate a Case Conference. Optometrists and complainants will receive a written notice confirming the date and time of the Case Conference, which is a teleconference meeting informing the parties about the HPARB process, mandate, and powers, as well as the date and time of the review. The Case Conference will also provide the parties with an opportunity to clarify or settle any issues before the HPARB review. A lawyer will typically appear on behalf of an optometrist at the Case Conference.
Reviews will typically take place at the HPARB offices in Toronto, though they may proceed elsewhere in the province if requested. Optometrists and complainants are entitled to legal representation at HPARB reviews, which are generally open to the public. While not a party to the process, the College of Optometrists of Ontario will likely have a representative attend the review to answer questions from the HPARB panel.
The HPARB panel, typically comprised of three members, will conduct a limited scope review of an optometrist’s matter. Generally, witnesses will not be called, transcripts and recordings will not be permitted, and it is unlikely that new evidence will be admitted. Under section 33(1) of the Health Professions Procedural Code, the HPARB panel must only review two grounds: (1) whether the College of Optometrists of Ontario’s investigation was adequate, and (2) whether the decision made by the ICRC was reasonable. The HPARB will not assess technical aspects of an optometrist’s care.
Generally, the applicant party will provide their submissions on adequacy and reasonableness first, and will be followed by the respondent’s submissions. Optometrists and complainants may then comment on issues that arise during the review, but cannot question each other. The HPARB panel will likely have questions for the parties or their representatives, and for the member appearing on behalf of the College of Optometrists of Ontario.
Once the HPARB panel has considered the parties’ submissions, it will issue a written decision with reasons to optometrists and complainants. Each decision made by the HPARB panel is a public document that will be posted on the internet.
The HPARB panel may do any of the following:
- Confirm the ICRC’s decision;
- Refer the matter back to the ICRC;
- Make recommendations to the ICRC; or
- Require the ICRC to undertake any action of which it is legally capable, other than requesting the Registrar to conduct an investigation.
The HPARB panel cannot do the following:
- Provide optometrists with legal advice;
- Make any professional determination;
- Award money or damages; or
- Investigate issues that were not raised in the initial complaint.
Rather than appealing an HPARB decision, optometrists or complainants who are dissatisfied with the outcome of a review are able to apply for judicial review to the Divisional Court of the Superior Court of Justice.
Participating in an HPARB review can be time consuming and challenging for any optometrist. Retaining legal counsel can assist with the process. As an HPARB review has the potential to affect an optometrist’s career, they should proceed accordingly.
Josh Koziebrocki is the principal lawyer and founder of Koziebrocki Law. He represents numerous optometrists and has extensive experience dealing with regulatory issues. He can be reached at 416-925-5445.
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