Case: College of Physicians and Surgeons of Ontario v. Kilian, 2024 ONCA 52

Keywords: Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18; COVID-19 vaccine exemption; patient records; privacy

Synopsis:

The Respondent College of Physicians and Surgeons of Ontario commences an investigation of the Appellant Dr. Rochagné Kilian’s medical practice. As part of its investigation, the Respondent asks the Appellant to disclose patient records. (See para. 4). Sections 76(1), (1.1), and (3.1) of the Health Professions Procedural Code provide that an investigator “may make reasonable inquiries of any person…on matters relevant to the investigation”, that “[n]o person shall obstruct an investigator or withhold or conceal from…or destroy anything that is relevant”, and that members “shall co-operate fully”. (See para. 4). Section 76(4) of the Code indicates that these provisions apply “despite any provision in any Act relating to the confidentiality of health records”. (See para. 5).

The Appellant refuses to produce the patient records. As explained by the Appellant, “even if reasonable and probable grounds were shown, I would decline the [Respondent’s] request on the basis of my fiduciary relationship with my patients”. (See para. 6). The Respondent then invokes s. 87 of the Code, which provides the Superior Court of Justice a means to order compliance with the Code. (See para. 8).

The Application Judge (Dineen J.) finds the requirements for the issuance of a s. 87 order are met. (See para. 15). The Appellant is ordered to “provide medical charts, patient information and other relevant information requested”, allow the Respondent’s investigators to “make copies or remove any relevant documents for the purpose of the investigation”, “facilitate…inquiry into, and examination of, her practice and conduct”, and “permit…investigators to enter into the place of her practice and examine anything else relevant to the investigation”. (See para. 11).

The Application Judge finds the scope of review on a s. 87 application is limited – that any issues related to the constitutionality of the governing statute and its application, or issues relating to the investigation itself should be reviewed by the Respondent’s “Discipline Committee” rather than the Court. (See para. 13). Notwithstanding these findings, and his having “declined to consider the merits of the investigation”, the Application Judge determines “there were no legitimate privacy concerns regarding the patients”. (See paras. 14-16).

The Court of Appeal (Benotto, Miller, and Thorburn, JJ.A.) dismiss the appeal. (See para. 51).

Importance:

The Appellant is alleged to have issued “false COVID-19 vaccine exemption certificates to persons including people who were not her patients”. (See para. 2). As indicated by the Court of Appeal decision herein, she has not complied with the Respondent’s requests, and not complied with the s. 87 order. (See para. 17). The Respondent directed that its Registrar suspend the Appellant’s licence to practise medicine. (See para. 10).

Should finding the correct balance between the privacy interests of the Appellant’s patients and the ends of the Respondent’s investigation be left, at first instance, to the Respondent’s Discipline Committee, or to s. 96 courts? For the Court of Appeal herein, the answer is the Discipline Committee.

The Court of Appeal determined that the Application Judge’s assessment of s. 87 was correct – that s. 87 applications are brought to compel a non-cooperating doctor to comply with their statutory obligations, that an application will be granted where there is “a continued breach of the statute by the person”, and that the scope of review by the court hearing the application is limited. (See paras. 20-22).

The Court of Appeal found that s. 87 applications occur in the context of an ongoing administrative process, and that there is a “long-standing principle not to interfere in an ongoing administrative process until it is complete, absent exceptional circumstances”. (See para. 28). The policy reasons for this principle were described by the Court of Appeal in Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, quoting C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 at para. 42. In brief, Stratas J.A. emphasized the need to reduce or eliminate “large costs and delays associated with premature forays to court”, and the need for, as he put it, “judicial respect for administrative decision-makers”. (See para. 29).

For this Court of Appeal, these policy interests adhere regardless of the constitutional status of the legislation in question: “[c]ompliance with the law pending a constitutional challenge is required for the same policy reasons discussed above”. (See para. 32).

Ultimately, the Court of Appeal found that the Appellant can take these matters up with the Divisional Court in the context of a judicial review application. However, for the Court of Appeal, she must first raise them before the Discipline Committee, which has the power to grant remedies pursuant to s. 24 of the Charter and can decline to apply legislation it determines is unconstitutional. (See paras. 35-37).

Finally, regarding the Application Judge’s finding that the patients in question did not have a reasonable expectation of privacy, the Court of Appeal noted that “extensive reasons” had been provided which referred to a prior decision of Harvison Young J.A. in a parallel proceeding. (See para. 48; College of Physicians and Surgeons of Ontario v. Kilian, 2023 ONCA 281). The Court of Appeal noted that the Appellant had not “shown that this is wrong” and that a separate appeal by the patients had been abandoned. (See para. 48).

Counsel for the Appellant: Paul Slansky (Legal Aid Ontario, Toronto)

Counsel for the Respondent: Peter Wardle and Evan Rankin (Singleton Urquhart Reynolds Vogel LLP, Toronto)

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