Another Investigation Proceeds

There have been several reported cases where registrants have been unsuccessful in trying to prevent an investigation of their conduct by their regulator. The most recent example is Kustka v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2325 (CanLII).

In that case, the registrant (a physician) was investigated for issuing two questionable medical exemptions from COVID-19 masking requirements and prescribing ivermectin to an elderly patient for the purpose of treating COVID-19. The registrant did not cooperate with the regulator and was subject to an interim order restricting and monitoring theirs practice and a separate investigation for failing to cooperate. The registrant and several patients brought judicial review applications challenging the investigation (including a challenge to the regulator obtaining access to the patient records) and the interim order. They relied on sections 7 and 8 of the Canadian Charter of Rights and Freedoms to challenge the validity of the enabling provisions. In dismissing the application, the Court made the following points:

  • The patients did not have “private interest” standing (i.e., authority) to bring the application. Following Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931 (CanLII), the Court found that the regulatory investigation was between the regulator and the registrant and patients had no direct interest in it. The patients’ expectation of privacy in their health records “is subject to the higher need to maintain appropriate standards in the profession”. That position has since been reaffirmed in College of Physicians and Surgeons of Ontario v. Kilian, 2023 ONCA 281 (CanLII).
  • Similarly, the patients did not meet the test for “public interest” standing to bring their application.
  • Even though the registrant was challenging the constitutionality of the provisions authorizing the regulator’s actions, the application was premature. There is no right to prevent such an alleged Charter breach before it occurs.
  • “The test for determining whether reasonable and probable grounds exist to appoint investigators under s. 75 of the Code is not rigorous.” It is lower than the “prima facie case” test, especially since the decision is only to commence an investigation. The complaint in this case “was sufficiently detailed as to be beyond mere suspicion”.
  • In appointing the investigators, the regulator was entitled to rely on guidelines from government and health profession organizations about mask-wearing exemptions and the use of ivermectin.
  • In imposing the interim restrictions, three instances were sufficient for the regulator to be reasonably concerned that the registrant was exposing patients to harm. This decision was reinforced by the registrant’s failure to cooperate fully with the investigation, which escalated the litigation and delayed the proceedings before the regulator.

The applications for judicial review were dismissed with costs of over $4,000 ordered against the patients and almost $25,000 ordered against the registrant.

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