Duty Of Fairness At Investigative Stage And The Importance Of Cooperation In An Investigation

Kuny v College of Registered Nurses of Manitoba, 2017 MBCA 111, emphasizes that the duty of fairness at the investigative stage of a professional disciplinary process requires centrally that a member be advised of the substance of the allegations and be given an opportunity to respond.

Douglas Kuny is a registered nurse in Manitoba. His employment with the Winnipeg Regional Health Authority was tumultuous - he was suspended twice and ultimately terminated as a result of performance concerns. The College of Registered Nurses of Manitoba was notified of the termination, and conducted an investigation. During the investigation, Mr. Kuny was asked to respond to the allegations and refused, asserting that it was "impossible" for him to do so without a more detailed explanation of the performance issues, including the evidence upon which each allegation was based.

The Discipline Committee of the College found that Mr. Kuny had failed to cooperate with the investigative process without reasonable explanation, determined that this constituted professional misconduct, and found Mr. Kuny's behaviour to be ungovernable. A number of sanctions were imposed.

Mr. Kuny appealed, arguing that he did not receive sufficient disclosure during the investigation process, which he asserted was a breach of procedural fairness. The Manitoba Court of Appeal confirmed that a duty of procedural fairness is owed to a member during an investigation, but the extent of the duty is not as high as in a disciplinary hearing. At the investigation stage, the duty requires the disclosure of the substance of the allegations to the member and that the member be provided with the opportunity to respond. In this case, that duty was met, and thus Mr. Kuny's appeal was dismissed.

The Court's conclusions emphasized that the content of the duty of procedural fairness is variable...