“Must” or “May”?

“Must” or “may”? Is a professional college required to forward an application for review to a college’s complaint review committee? This was an issue that emerged during an investigation of a complaint about a health professions college.

An individual complained to the Ombudsman that his concerns about a health professional were dismissed, and a request for review was not forwarded by the hearings director to the college’s complaint review committee.

The question became one of interpretation. The college’s reading of the Health Professions Act was that a hearings director “may” deny a request for review. This allowed the hearings director to act as a gatekeeper, while ensuring complainants meet certain requirements included in their requests for review. In effect, the hearings director decided which requests for review would be considered by the complaint review committee – or which requests would not.

The Ombudsman identified under Section 68 of the Act, the wording was “must.” This meant the hearings directors “must” forward applications to the complaint review committee.

Among its recommendations, the Ombudsman suggested the college stop the practice of having a hearings director screen review applications, and leave the decision to review the application up to the complaint review committee itself. (Of course, complaint review committees should be presented with sufficient evidence or rationale to allow a review. Simply disagreeing with the original decision is not sufficient to trigger a review.)

The Ombudsman met with the college to discuss the issue. The college’s hearings director has now been forwarding complaints to the complaint review committee, and we continue to work with the college as it implements this recommendation.

How is this fair for Albertans?

Albertans have a legal right to ask for a review of an administrative decision. Our investigation showed that, sometimes, the interpretation of a law can result in that right being undermined. In fact, a person’s complaint review request must be considered by the proper body, armed with the legal right to decide whether to review or not.