As crucial as it is to identify what a complaint form needs to include, it is equally helpful to examine what should not be included. This exercise helps crystallize and clarify the fundamental principles. Many regulators have endeavored to make the complainant more included in the complaint process by providing transparent explanation and providing regular updates. However, it is important to remember that the complainant is not a legal “party.” If a case/investigation gets transferred for a disciplinary hearing, at that point the complainant is treated legally as a witness. As a witness, a complainant does not have standing that affords them any rights of disclosure or participation in the process beyond being a witness. Although most investigations do not end up in discipline, it is important to remember this principle about the complainant’s potential role to manage their expectations throughout. Here we will examine some of the pitfalls regulators can avoid when creating and/or processing complaint forms.
Avoid the complainant determining the issues
Some complaint forms will ask a complainant to categorize what their complaint is about. Although at first this may seem like an efficient way of streaming and triaging complaints from the start, complainants may get the sense that they have more control than they do. Further, some complainants are apt at understanding the true nature of their complaint, while others are not, risking incorrect categorization. For example, some complaints may appear to be a billing issue when the issue was one of communication. Also, if an investigation is initiated, the relevant issues may change in nature as more evidence is gathered.
A complainant’s categorization does not negate the regulator’s need to analyze the complaint themselves, and so the utility of having the complainant explain the issue is lost. To use an analogy, when a person makes a report to the police, the police do not ask that person what they think the charges should be. Instead, the police (or prosecutors) determine what they should be based on experience and expertise. To allow a complainant to categorize or attempt to categorize their complaint may give them a mistaken impression about the role they have or the control they have in the process
Avoid exploring outcomes with the complainant
Some complainants may articulate reasonable responses, such as, “I just want the licensee to be aware, so this doesn’t happen to anyone else.” While others, on the opposite end of the spectrum, may indicate a licensee should lose their license even though the incident does not rise to that level of seriousness. Other complainants may ask for an outcome that is simply not within the regulator’s legal authority, such as monetary restitution.
Consideration around the most appropriate way to communicate outcomes is essential particularly when dealing with those experiencing trauma. Many complaint forms will also ask the question, in some form or another, “Are you willing to testify as a witness at a hearing?” While it is very important, particularly in serious cases, to ascertain a complainant’s willingness to participate because an entire case can hinge on their statement and/or testimony, there can be unintended consequences for asking this question at such an early stage.
Avoid asking if a complainant is willing to participate
First off, for those complainants who may have exaggerated expectations, asking them about testifying in hearing, in addition to asking what they wish for as an outcome, might lead again to further unreasonable expectations. Many complainants who are eager to air their concerns would certainly be willing to check this box, which can lead to an erroneous belief that a hearing will happen. Conversely, asking this question of those complainants that are very tentatively taking their first steps to reporting a more serious infraction, such as sexual or physical misconduct, may have a freezing effect. It may cause them to pause and refrain from making a complaint altogether.
Educating a complainant on the process, making them feel comfortable and preparing them for the potential participation and outcomes are better left to trained investigators. Certainly, efforts at determining a complainant’s likely willingness to testify need to be done as early in the process as possible (and documented), but this takes tact and sensitivity—not a blunt question on a form. In the end, even if a complainant declines to be involved and the case must be closed, at the very least, the receipt of the complaint has been recorded and may be relevant in the future should similar information be subsequently received from others about the same licensee.
Avoid making the complaint form the definitive piece of information
A complaint form provides vital initial information and becomes an integral part of the evidentiary record, but it can only go so far. A 2019 Justice Canada Report can illustrate this point, “It is important for police officers to recognize that [victim] disclosure is process, not a one-time event.” The words “police officers” could easily be substituted with “regulators.” Regulators have legal authority, and they can be intimidating to the public and even distrusted if they have the reputation, fair or not, of protecting the profession they govern.
The report goes on to say, “It is also important for police to recognize that disclosing sexual assault incidents, which victims often experience as humiliating and disempowering, is particularly difficult.” Again, while this sentence speaks to sexual assaults, the experience of coming forward after any sort of traumatic event for a vulnerable person can be difficult. The very act of filling out and submitting a complaint form can be very difficult for someone in distress and, therefore, it may not be complete or thorough.
There is always a delicate balance to be struck between providing the necessary formality involved in a complaints process with the sensitive treatment of complainants. The complaint form can only do so much; it must try not to illicit unreasonable expectations while also not inhibiting would be complainants. It should be designed to help the complainant provide the minimum necessary information to the regulator to allow the regulator to begin the next stage of the complaints process.