Court of Appeal Weighs in on College Investigations
Must regulated professionals always comply with a College’s investigation of their practice, and when is it appropriate to seek review of an administrative decision maker’s process? In College of Physicians and Surgeons of Ontario v. Kilian, the Ontario Court of Appeal provides guidance on these questions.
Background
The appellant in this case was Dr. Kilian, a physician who had been registered with the CPSO since 2016. In 2021, following a decision from the Ontario government making COVID-19 vaccination policies mandatory for high-risk settings, Dr. Kilian began signing exemption forms for people who did not wish to get the COVID-19 vaccine. The CPSO received a series of complaints about Dr. Kilian in September 2021. None of the complaints came from Dr. Kilian’s patients. Some of the complaints were from employers who had been presented with vaccine exemptions for their employees signed by Dr. Kilian, which did not include any medical explanation as to why the employee should be exempted from the vaccine. There were also complaints made to the CPSO about the public statements Dr. Kilian was making about the COVID-19 vaccine, in which she criticized policies that required health care workers to be vaccinated.
These complaints led to an investigation by the CPSO. The issues to be investigated included whether Dr. Kilian engaged in professional misconduct in her communications and conduct regarding the COVID-19 pandemic and her completion of medical exemptions for COVID-19 vaccines. Dr. Kilian was asked to provide a complete list of the patients for whom she had provided medical exemptions for COVID-19 vaccines, mask mandates, or testing. She was also asked to provide the records of patients for whom she had prescribed certain medications, and was asked to provide all supporting medical records for all of these patients. Dr. Kilian declined to provide the documentation, citing concerns about the confidentiality of her relationship with her patients.
Following further complaints made about Dr. Kilian, the Inquiries, Complaints and Reports Committee of the CPSO (the “ICRC”) made an interim order limiting Dr. Kilian’s ability to make COVID-19 exemptions. Dr. Kilian was prohibited from providing any exemptions to patients for COVID vaccines, COVID testing, or mask wearing. The order also required her to notify patients of these restrictions.
Even more complaints followed the imposition of these restrictions, including complaints about exemptions that appeared to have been signed by Dr. Kilian after the ICRC’s interim order. As a result, Dr. Kilian’s certificate of registration was suspended on October 27, 2021. Dr. Kilian again did not provide the information requested, so the CPSO commenced an urgent application for an injunction requiring Dr. Kilian to produce patient records as part of an investigation, and to otherwise cooperate with the investigation as required by the Health Professions Procedural Code. In doing so, the CPSO invoked s. 87 of the Code, which provides as follows:
The College may apply to the Superior Court of Justice for an order directing a person to comply with a provision of the Health Professions Act, this Code, the Regulated Professions Act, 1991, the regulation under those Acts, or the by-laws.
Superior Court of Justice Decision
The application was heard on April 25, 2023 at the Superior Court of Justice (reported at 2023 ONSC 2689). The Court allowed the application, and directed Dr. Kilian to comply with sections 76(3) and (3.1) of the Code. These provisions set out the power of investigators, and specifically state as follows:
76 (3) No person shall obstruct an investigator or withhold or conceal from him or her or destroy anything relevant to the investigation.
(3.1) A member shall co-operate fully with an investigator. Specifically, Dr. Kilian was ordered to provide the medical charts, patient information and other relevant information requested by the CPSO investigators and allow them to make copies or remove any relevant documents for the purpose of the investigation; facilitate the investigators’ inquiry into, and examination of, her practice and conduct; and permit the investigators to enter into the place of her practice and examine anything else relevant to the investigation.
Dr. Kilian argued that the CPSO was required to prove the legality of the underlying investigation, before the Court could require her to produce records, and made arguments about the constitutionality of the legislation and its application. However, the Court held that issues such as these, or issues relating to the legitimacy of the investigation or the investigators’ actions should be reviewed by the CPSO Discipline Committee at first instance, not the Court on a s. 87 application. As such, the application judge declined to consider the merits of the investigation, and rejected Dr. Kilian’s arguments.
Overall, the application judge held that all that is required on a s. 87 application is for the CPSO to show that there was a breach of the statute (the Code, in this case) and that the statute permits the Court to make the order requested. The application judge wrote that he had “no difficulty” in concluding that the CPSO had established the grounds for a s. 87 order, writing that “the request made by the investigator for the records he sought was a proper one given the terms of the investigation” and “the records sought are relevant to the relatively broad terms of [the investigator’s] appointment to assess [Dr. Kilian’s] conduct concerning the COVID-19 pandemic.” He concluded that Dr. Kilian was “indisputably refusing to cooperate and has not established any legitimate reason for doing so.”
Court of Appeal Decision
Dr. Kilian then appealed the order of Justice Dineen to the Court of Appeal for Ontario. Dr. Kilian raised three main grounds of appeal: (1) whether the application judge erred in finding that he did not have jurisdiction to consider the arguments relating to the lawfulness of the s. 76 demand and the constitutional arguments; (2) whether the application judge erred in finding that the requirements of s. 87 were met; and (3) whether the application judge erred in refusing to exercise his residual discretion not to order Dr. Kilian’s compliance. The Court of Appeal upheld the Superior Court’s order requiring Dr. Killian to cooperate, dismissing Dr. Kilian’s appeal.
The panel found that Justice Dineen was correct to find that issues relating to the lawfulness of the s. 76 demand and constitutional arguments were not properly before him, noting that the scope on a s. 87 application is limited to considering whether the requests for information made by the investigator are within the scope of the investigator’s regulatory powers. Writing for a unanimous Court, Justice Benotto wrote “this process does not preclude Dr. Kilian from seeking judicial review but rather, requires her to first raise [these issues] before the Discipline Committee and only then, by way of judicial review”. It was open to Dr. Kilian to challenge the outcome of an administrative process through judicial review, but not until the administrative process was complete.
The Court also held that the CPSO only had to establish that the requests for information that the investigators made were within the scope of their investigatory powers, and that Dr. Kilian was not cooperating with the investigation. This is the bar that needs to be met for a court order under s. 87.
Takeaway
This decision is a reminder that regulated health professionals must cooperate with ongoing investigations. The Court of Appeal confirmed that a court will not interfere until a regulatory process has concluded, barring exceptional circumstances. The panel noted that the application judge was applying the principle of not interfering “with an ongoing administrative process until it is complete” as “[t]o do otherwise would fragment the tribunal’s process and enable Dr. Kilian to seek judicial review simply by refusing to cooperate with the College”. A Registrant can seek judicial review of an administrative decision maker’s decisions, but not until the administrative process is complete.
The Court of Appeal decision also confirmed that the scope of review by the court on an application under s. 87 of the Code is limited to simply enforcing compliance with s. 76 of the Code. A court is only able to consider whether the requests for information made by the investigator are within the scope of their investigatory powers under the Code. If a College is able to demonstrate that a Registrant was the subject of an investigation and was not cooperating with the investigation, then a breach of the Code will be established. The College does not have to prove that that the requests that it was making were reasonable or lawful in order to establish this breach.
