Courts rarely give warnings to regulators about future potential problem areas. Courts tend to decide individual matters on specific facts. However, in Welkoff v. Ontario (Health Professions Appeal Review Board), 2025 ONSC 4515 (CanLII), Ontario’s Divisional Court gave regulators a “heads up” about avoiding unsuitable remediation orders as a way to avoid public disclosure.
A physician discharged from hospital a patient with mental health issues, including suicidal ideation, despite the patient’s request for more help. The patient complained to the regulator. The regulator noted several concerns with the physician’s care including insufficient evidence in the records about the patient’s suicidal ideation, offering limited therapy options to the patient while admitted, the lack of documented rationale for what might be seen as a premature discharge of the patient, and a lack of planning for the support of the patient upon discharge.
The regulator also noted that the physician had a “previous written caution around discharge of a patient without assessing the appropriateness of discharge planning.” The regulator concluded, however, that the physician was capable of change and entered into a Remedial Agreement with her. A Remedial Agreement does not appear on the public register, unlike many other remedial options such as a caution or a program of educational upgrading.
The patient sought judicial review. The Court held that there was no procedural unfairness, finding that it was not necessary for the regulator to interview the patient for the investigation to be adequate. The regulator had sufficiently addressed the patient’s concerns including the assertion that the physician had been dishonest. The regulator was also not required to share the details of the physician’s prior complaints history with the complainant.
However, the Court expressed concern that the disposition was not public:
However, given what appear to be the serious findings and the prior written caution in regard to similar issues, albeit dated, the Panel had a concern that the disposition of a remedial agreement was crafted for the purpose of avoiding public disclosure.
The Court further commented:
There is nothing wrong with remedial agreements per se if the facts are not particularly serious. If dispositions are crafted for the purpose of avoiding the transparency provisions of the Code and the amendments thereto in the [legislation], this will undermine the openness and public scrutiny of the College’s regulation and governance of physicians which the legislation seeks to ensure and may result in the disposition being found to be unreasonable.
Having said that, the Court elected not to return this matter for reconsideration because of the time that had elapsed and because the physician had already completed the Remediation Agreement. However, regulators are now warned that the reasons for choosing a private form of remediation in serious cases may be scrutinized by the courts.