RIGHT TO COUNSEL DURING REGULATORY INVESTIGATIONS

When a regulator asks to interview a physician, nurse or other professional, one of the first questions is often: Can I have my lawyer with me?

The answer is not always straightforward.

A regulatory investigation is not a criminal prosecution, and the familiar Charter right to counsel that arises on arrest or detention does not automatically apply simply because an inspector wants to ask questions. At the same time, an investigation can have serious consequences for a professional's reputation, employment, privileges and professional licence.

Whether counsel is entitled to be present therefore depends on the legislation governing the investigation, the nature of the questioning and the consequences that may flow from it.

WHY THE DISTINCTION MATTERS

Regulatory investigations are often described as "fact-finding." That description can make the process sound relatively informal.

In practice, an interview with an investigator can be anything but informal.

The professional may be required by law to cooperate. The investigator may have access to clinical records and statements from other witnesses. Answers given during the interview may influence a public report, a referral to a professional College, a disciplinary proceeding or separate civil litigation.

Having legal advice before that interview can therefore be just as important as having representation at a later hearing.

THE LEADING CASE: PARRISH

An important Canadian decision is Parrish (Re), [1993] 2 F.C. 60.

The case involved the investigation of a marine accident. The investigator required the captain of a vessel to attend and give evidence but refused to allow his lawyer to be present.

The Federal Court held that procedural fairness required counsel to be permitted to attend.

The Court identified several circumstances that may make the presence of counsel particularly important: where a person is compelled to attend and answer questions, where failure to cooperate carries consequences, where the resulting report may become public, where the person's livelihood or professional status may be affected, and where other serious harm could result.

The Court also recognized an important qualification. Having counsel present does not mean that the lawyer controls the investigation. The investigator may limit the number of lawyers present and may restrict counsel's participation so that the investigation can proceed effectively.

Read Parrish (Re), [1993] 2 F.C. 60

PROCEDURAL FAIRNESS DEPENDS ON THE CIRCUMSTANCES

The Supreme Court of Canada took a similar contextual approach in Irvine v. Canada (Restrictive Trade Practices Commission), [1987] 1 S.C.R. 181.

The Court emphasized that procedural fairness is flexible. The protections required in one regulatory investigation may be quite different from those required at a formal disciplinary hearing.

The nature of the investigation, the eventual report, whether information will become public and the consequences for the individual are all relevant. At the same time, an investigative process does not necessarily give counsel the full range of rights that would exist in a courtroom, such as an unrestricted right to cross-examine witnesses or control the questioning.

Read Irvine v. Canada at the Supreme Court of Canada

THE LEGISLATION STILL MATTERS

Procedural fairness does not operate independently of the statute creating the investigation.

In Ocean Port Hotel Ltd. v. British Columbia, 2001 SCC 52, the Supreme Court confirmed that common-law procedural protections can be altered by sufficiently clear legislation.

Similarly, in Wood v. Schaeffer, 2013 SCC 71, the Supreme Court considered the rights of police officers involved in Special Investigations Unit investigations. The Court emphasized the importance of interpreting the right to legal advice within the particular statutory and regulatory scheme governing that investigation.

The practical lesson is that there is no single "right to counsel" rule covering every professional or regulatory investigation.

The statute needs to be examined first.

LONG-TERM CARE INVESTIGATIONS ARE AN UNUSUAL EXAMPLE

Ontario's long-term-care legislation illustrates the point particularly well.

Under the former Long-Term Care Homes Act, 2007, an inspector could question a person, but the legislation expressly stated that the person had a right to have counsel present. An inspector could exclude other people from the interview, but not the person's lawyer.

Ontario changed that provision in 2018. The express protection for counsel was removed, and inspectors were given authority to exclude "any person" from questioning.

The current Fixing Long-Term Care Act, 2021 continues that approach. Section 150 gives an inspector extensive investigative powers, including the power to question a person. Section 150(5) provides that the inspector "may exclude any person from the questioning."

Ontario's Fixing Long-Term Care Act, 2021

This means that a physician or nurse being interviewed during a Ministry of Long-Term Care inspection should not assume that there is an absolute statutory entitlement to have counsel sitting beside them throughout the interview.

It does not, however, mean that counsel must be excluded.

The inspector has a discretion. In an investigation focused on the professional's own conduct, counsel can ask that the professional be permitted to have a lawyer present, particularly where statements may appear in a public inspection report or may have implications for a subsequent College investigation.

The considerations identified in Parrish remain highly relevant to how that discretion should be exercised.

COMPARE THAT WITH RETIREMENT-HOME INVESTIGATIONS

The wording of Ontario's Retirement Homes Act, 2010 is noticeably different.

When a Retirement Homes Regulatory Authority inspector questions an individual, the legislation permits the inspector to exclude other people except counsel for the individual being questioned.

In that context, the legislation expressly protects counsel's attendance.

Ontario's Retirement Homes Act, 2010

The comparison demonstrates why the specific statute matters.

PROFESSIONAL COLLEGE INVESTIGATIONS

Physicians, nurses and other regulated health professionals may also be investigated by their professional College under the Regulated Health Professions Act, 1991.

Section 76 of the Health Professions Procedural Code allows an investigator to make reasonable inquiries of any person, including the professional under investigation. It also expressly requires the member to cooperate fully with the investigator.

Ontario's Regulated Health Professions Act, 1991 and Health Professions Procedural Code

The legislation does not create the same express right to have counsel physically present during every investigative interview that appears in the Retirement Homes Act. Nevertheless, a professional can obtain legal advice, have counsel communicate with the College and request counsel's participation where an interview is contemplated.

The precise role of counsel will depend upon the investigative process being used.

WHAT CAN COUNSEL ACTUALLY DO?

Where counsel is permitted to attend, the lawyer's role is usually protective rather than adversarial.

Counsel can help ensure that the professional understands the question, identify an ambiguous or inaccurate premise, raise solicitor-client privilege, request an opportunity to consult privately, identify relevant documents and ensure that an answer is not misunderstood.

Counsel can also help distinguish between what the professional independently remembers, what appears in the clinical record and what the professional knows only because the record has subsequently been reviewed.

Those distinctions can become very important.

Counsel should not, however, answer factual questions on behalf of the professional, coach answers during the interview or obstruct legitimate questioning. A regulatory interview is not a cross-examination.

COOPERATING DOES NOT MEAN GIVING UP LEGAL ADVICE

A professional can have a legal duty to cooperate with an investigator and still obtain legal advice about how that duty should be fulfilled.

Those two principles are not inconsistent.

Indeed, early legal advice can help a professional cooperate effectively while avoiding unnecessary problems such as speculation, accidental concessions, disclosure of privileged communications or inaccurate attempts to reconstruct events from memory.

Where the investigation could affect professional standing, result in a public report, trigger a College referral or create exposure in another proceeding, obtaining advice before the interview occurs can be particularly important.

BEFORE SPEAKING WITH THE INVESTIGATOR

A physician, nurse or other regulated professional contacted by an investigator should first determine what legislation governs the investigation, why the person is being interviewed, whether their own conduct is under investigation, whether participation is compulsory, whether the interview will be recorded and whether counsel will be permitted to attend.

Those questions should ordinarily be addressed before a detailed substantive interview begins.

The law does not provide one universal answer to the right-to-counsel question. But the more the investigation resembles the circumstances identified in Parrish — compelled testimony, serious professional consequences and possible public reporting — the more important the procedural protections surrounding the interview become.

If you are a regulated professional facing an investigation by a Ministry, professional College or other regulatory authority, obtaining advice at the beginning of the process can help protect both your legal position and your professional interests.

This article provides general legal information and is not legal advice. Regulatory rights and obligations depend upon the particular legislation and circumstances involved.