Executive Summary: Key Legal and Evidentiary Issues

• Applicant challenged a regulatory order requiring remedial education, alleging procedural unfairness.

• Investigation focused on two billing-related issues, but the outcome relied on broader practice concerns.

• Applicant had been advised to restrict her response to billing issues and was not given notice of wider allegations.

• Court found the regulator failed to provide adequate notice of the basis for its decision.

• Procedural fairness was breached as the applicant was denied a meaningful opportunity to respond.

• Remedy granted without remitting the matter for reconsideration due to stale evidence and changed circumstances.

Applicant challenged a regulatory order requiring remedial education, alleging procedural unfairness

Tara Bortolon, an occupational therapist formerly working at the Play Clinic, sought judicial review of a decision by the Inquiries, Complaints and Reports Committee (ICRC) of the College of Occupational Therapists of Ontario. The ICRC had ordered Ms. Bortolon to complete a Specified Continuing Education or Remediation Program (SCERP) following an investigation into her billing practices. The complaint, submitted by the clinic’s owner, alleged that Bortolon had instructed clients to pay her directly rather than the clinic and had invoiced the clinic for those same sessions—raising concerns about potential double billing.

Ms. Bortolon denied wrongdoing, stating that any client payments were made with the clinic owner’s knowledge and that any billing errors were unintentional. She also explained that she had been locked out of her clinic records after her termination, limiting her ability to verify financial details. During the investigation, she was advised by the College's investigations manager to respond only to the two billing issues identified in the report and not to broader comments or side allegations.

College ordered a SCERP based on broader practice concerns not previously identified

In its decision, the ICRC concluded that while there was no evidence of intentional dishonesty or client harm, Ms. Bortolon demonstrated serious disorganization and lacked sufficient administrative processes. It ordered a SCERP focused on practice management and cited her use of the clinic’s systems for independent clients as evidence of gaps in judgment and accountability. These conclusions went beyond the original billing concerns that had been the focus of the investigation.

The ICRC did not refer the matter to the College’s discipline committee, stating that her conduct did not rise to that level. However, the SCERP would be publicly recorded and could be considered in any future regulatory proceedings. The program also included the appointment of a practice monitor at her own expense.

Court found procedural fairness was violated by relying on undisclosed issues

On judicial review, the Ontario Divisional Court held that the ICRC’s process was procedurally unfair. The court emphasized that Ms. Bortolon was given notice of only two billing-related issues and was advised by the College to restrict her submissions accordingly. Despite this, the ICRC based its decision on broader concerns about her practice management that she had no opportunity to address.

The court affirmed that even though the ICRC performs a screening—not adjudicative—function, it must provide adequate notice if it intends to rely on new or expanded issues as the basis for regulatory action. The decision to impose a SCERP, particularly one involving findings that could affect her professional record and future proceedings, triggered a higher level of procedural protection. The court concluded that the College failed to give her a fair chance to respond to the real basis of the ICRC’s concerns.

Remedy granted without remitting for reconsideration due to changed circumstances

The court quashed the ICRC’s decision but declined to remit the matter for further investigation or reconsideration. It reasoned that Ms. Bortolon no longer worked at the clinic, and the original records needed to adequately respond to the practice management concerns were still unavailable. Additionally, the events in question had occurred years earlier, and her ability to recall the details had understandably faded.

The court noted that she had already taken steps to improve her administrative practices, including seeking legal and accounting advice. As a result, sending the matter back for further proceedings would serve no useful purpose.

Outcome awarded costs and emphasized fair regulatory process

The application for judicial review was granted. The ICRC’s order requiring a SCERP was quashed, and the court awarded Ms. Bortolon $5,000 in costs. The decision underscores the importance of procedural fairness in professional regulation, particularly where a regulatory body intends to take action based on grounds that go beyond the initial scope of investigation. Even in non-disciplinary contexts, professionals are entitled to clear notice and a meaningful opportunity to respond before being subjected to public findings or remedial orders.