Can a Person Suspected of Professional Misconduct Be Interviewed Without First Receiving Reasonable Notice and Disclosure From the Investigating Regulatory Authority?

A Regulatory Authority Is Required to Provide Reasonable Notice of Suspicion or Investigation For Misconduct Concerns Prior to Conducting An Interview of the Subject Person.

Understanding the Administrative Law Requirement to Provide Reasonable Notice to Persons Who Are Under Investigation

Man in blue shirt with blue tie ready to take notes of interview discussion. When a person is under investigation by a regulatory body, such as when a licensing board is contemplating a discipline proceeding and is conducting an interview following conduct complaints, the regulatory body is required to inform or otherwise provide notice to the person being investigated.

The Law

Persons under regulatory investigation are entitled to know that an investigation is underway, to know what the allegations are, to know what evidence is already collected, and to review that evidence prior to answering questions at an interview.  This requirement was clearly stated in the case of Samatar v. Canada (Attorney General), 2012 FC 1263 where it was stated:

[108]  No matter who the witness is, a person summoned to an interview must be made aware of the suspicions weighing against him or her, and even have access to documents relevant to the investigation. A witness must be able to, if applicable, invoke the protection granted to him or her under section 5 of the Canada Evidence Act, RSC 1985, c C-5, even though it no longer seems really necessary because of section 13 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 (Charter). On this point, see R v Henry, 2005 SCC 76 (CanLII), [2005] 3 SCR 609.

The Samatar case involved breaches of procedural fairness within an administrative investigation for fraud conducted by the Public Service Commission following applications for certain positions within the Office of the Secretary to the Governor General.  During the investigation, Ms. Samatar was interviewed and questioned without being advised that the purpose of the interview and questioning related to a fraud investigation in which Ms. Samatar was the suspect.  Accordingly, without being advised of the investigation, and therefore being without knowledge of the investigation, Ms. Samatar was also without an opportunity to know of the specific allegations or the evidence already collected.  Instead, the investigation and interview was improperly conducted in an ambush fashion.

Interestingly, and as emphasized by the court in Samatar, where an administrative body suspects wrongdoing and is conducting an investigation, especially when investigating issues that could relate to, and possibly lead to, criminal allegations, the failure to provide notice of the purpose of an interview potentially presents as a constitutional rights violation.

Summary Comment

The rules of procedural fairness that apply to matters of administrative law, such as investigations by a regulatory authority, require that witnesses under suspicion of misconduct be provided reasonable notice of the purpose of interviews.  A witness under suspicion of misconduct must, generally, receive notice of complaints, notice of the alleged facts and gathered evidence, and notice of whom is the complainant.

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