Interim Orders: A Difficult Decision
Perspectives for the Professions
April 2023 - 5 min read
Legislation for many regulatory processes provides that interim orders, including an interim suspension, may be imposed before the conclusion of the investigation and adjudicative process. An interim order may be essential to protect the public while the regulatory proceeding is concluded. However, it is also exceptional in nature as it impacts the rights and interests of an investigated person prior to any factual finding or conclusion on liability. There is an inherent tension between the presumption of innocence and the need to protect the public pending the completion of the process. As a result, determining whether an investigated person should be subject to orders while a complaint is investigated and decided is one of the most difficult decisions faced in a regulatory process.
One of the issues for an interim order is identifying the test that must be met before any order can be imposed. The starting point is, of course, conducting an examination of the legislation in question to determine if it identifies the test or addresses the factors to be considered. There are three general approaches for tests for imposing interim orders:
- The statute incorporates a very specific test for an interim order.
- The statute incorporates a test for issuing an interim order, but the test is very general, typically focusing on the need to protect the public.
- The statute provides for interim orders but does not specify the test that must be met or the factors to be considered in determining whether to make an interim order. For example, Alberta’s Health Professions Act simply provides that on the recommendation of the complaints director, a person or committee designated by Council may, at any time after a complaint is made until a hearing is completed, impose conditions on the investigated person’s practice or suspend their practice permit.
In circumstances where no test is specified or where the focus is on the need to protect the public, the following factors are useful to consider when determining if an interim order is appropriate:
- Whether there is a real risk to clients/patients, colleagues or other members of the public if an order is not made, it is not enough that an order be merely desirable.
- The seriousness of the risk to members of the public if the individual were allowed to continue practicing without restriction. This includes consideration of the nature and seriousness of the allegation, the nature of the evidence, the circumstances in which the impugned conduct occurred, and the likelihood of the alleged conduct being repeated if an interim order were not imposed.
- The impact an order may have on the registrant. An order will impact the registrant’s right to practice and may also impact financially and on the registrant’s reputation. The consequences of the order should not be disproportionate to the risk from which the decision-maker is seeking to protect the public from.
- The source of the allegation and its potential seriousness. An allegation that is trivial or clearly misconceived should not be given weight.
- Whether interims conditions of practice would be sufficient and proportionate or if an interim suspension is necessary to protect the public. The “least restrictive measures” principle should be applied.
Additional factors may also include:
- The investigated person’s disciplinary history
- Whether new allegations of misconduct were reported or arose during the investigation
- The investigated person’s cooperation with the investigation
- The overall passage of time in the proceedings, including the likely timeline until the conclusion of the proceedings
When examining if an interim order is appropriate, the decision maker is not deciding on the merits of the allegation. The question is usually whether the interim order is necessary to protect the public in the interim. The credibility or merits of a disputed allegation should not be decided at this stage. Nonetheless, a “provisional assessment” of the facts is appropriate to determine if it is manifestly unfounded or exaggerated.
An investigated person is entitled to procedural fairness with respect to an interim order. While the determination of the content of procedural fairness is context-dependent, in the majority of cases, the duty of procedural fairness will be met by:
- Advising the investigated person that the decision-maker is considering imposing a suspension or imposing conditions on practice.
- Disclosing to the investigated person the material being relied upon concerning a potential interim order.
- Providing a reasonable timeframe for the investigated person to make submissions on whether an interim order should be made and, if so, the content of any order. If a suspension is being considered, the investigated person should also be permitted to make submissions on whether practice restrictions would be sufficient and the content of any restrictions. If the possibility of an interim order arises in circumstances where it is urgent to take action, it will be reasonable to expect the investigated person to respond in a shorter time than usual, provided that they are still given a reasonable opportunity to make submissions.
- A decision by the designated decision-maker advising whether an interim order has or has not been made, along with their reasons and rationale for doing so.
Full disclosure of all information is not required, particularly where this could impact the integrity of the ongoing investigation. In most cases, permitting written submissions rather than an in-person meeting should be sufficient. This is especially the case given that there won’t typically be witnesses or cross-examination, and the matter likely needs to be addressed fairly urgently.
If an investigated person considers an interim order to be inappropriate or imposed in an unfair manner, then they can legally challenge the order, but they do not have the option of simply ignoring the interim order.
This article is intended to be legal information and not legal advice. It provides a summary of the general case law, but a regulator must consider the particular test created by the governing legislation, as well as any case law that interprets that legislative test and any case law from the particular province in which the regulator is acting, before making any decision on interim orders. If you require advice on the process of interim orders and the best course of action to take in your particular situation, contact Jason Kully or any member of Field Law’s Professional Regulatory Group.
The content for this article was derived from the “Interim Orders” chapter of the LexisNexis textbook, “The Law of Regulatory Investigations in Canada”, authored by James Casey, KC, Jason Kully, and Michelle Casey. More information on interim orders, including case examples, the assessment of the strength of evidence, and the standard of review applied by courts if an order is challenged, as well as an extensive discussion of other legal issues that arise during investigations, can be found in the textbook which is now available.