While the language for regulatory interim order provisions vary, most relate in some way to the risk of harm. But how does the non-cooperation of registrants (or their ungovernability) factor into that analysis?
In Kilian v. College of Physicians and Surgeons of Ontario, 2025 ONSC 2829 (CanLII), a physician was under investigation for (amongst other things) issuing COVID exemption certificates on non-medical grounds. An interim order restricting the issuance of such certificates was made. After certificates continued to be issued in the physician’s name, an interim order suspending her registration was made. Two years later the physician sought a reconsideration of the interim suspension on the basis that she had not specifically authorized the issuance of the latter certificates (they were issued with her signature from a third-party website) and the nature of the COVID pandemic had changed. She also challenged the investigation into her alleged non-cooperation.
The regulator declined to alter or lift the interim order. It concluded that the physician’s conduct still exposed or was likely to expose patients to harm or injury in large part because the physician still refused to cooperate with the investigation.
On judicial review, the Court declined to intervene. First, the application challenging the appointment of investigators for non-cooperation was premature because the matter of her non-cooperation was coming before the discipline tribunal. [NB: a finding has now been made: College of Physicians and Surgeons of Ontario v. Kilian, 2025 ONPSDT 14 (CanLII).]
Second, the refusal to reconsider the interim suspension was reasonable. The Court indicated that some deference was appropriate when reviewing such orders:
In considering whether to impose an interim order, the ICRC must consider whether there is evidence of probable harm to patients…. On judicial review, the court’s task is to determine whether the factual conclusions were reasonable, given the evidence before the ICRC, and whether the conclusions were explained logically, coherently and rationally. The court will not reweigh the evidence…. The standard is not an onerous one. The interim nature of the s. 25.4 orders and their protective purpose must be kept in mind. Thus, the court need only be satisfied that there was “some evidence” before the ICRC to justify the order….
The Court also said that evidence of ungovernability was relevant to the likelihood of harm requirement for interim orders:
Finally, it was reasonable for the ICRC to conclude that Dr. Kilian’s failure to cooperate with the College’s investigation was itself evidence of probable harm to patients…. The College has a duty to regulate physicians in the public interest and to protect patients. The College cannot effectively do so without physicians complying with their duty to cooperate. When physicians fail to cooperate with the College, the safety of patients and the public is endangered.
While context matters, ungovernability is always of significant concern to regulators.