Doré Applied

Regulators are required to respond proportionately when their public protection mandate involves imposing consequences on a registrant’s expression: Doré v. Barreau du Québec, 2012 SCC 12 (CanLII), [2012] 1 SCR 395.

In Trozzi v. College of Physicians and Surgeons of Ontario, 2024 ONSC 6096, Ontario’s Divisional Court found that the tribunal’s application of Doré was “impeccable and stands as a guide for future tribunals confronted with serious constitutional considerations.” The physician had been found to be incompetent and to have engaged in professional misconduct for statements they made about COVID and vaccinations, issuing vaccination exemptions in an incompetent manner, and failing to cooperate with the regulator. The physician’s registration was revoked.

The physician’s statements were characterized as conspiracy theories in which the pandemic was, in essence, a hoax. He called the pandemic and the response a “criminal covid enterprise”, a “global dictatorship” and “crimes against humanity”. He said COVID vaccinations killed millions of people, and he accused Canadian health regulators of being part of the criminal conspiracy.

The Court commended the tribunal for balancing the physician’s freedom of expression rights both at the finding stage and at the sanctions stage.

At the finding stage, the tribunal described how important it is that physicians, who have specialized knowledge and are highly trusted, not provide harmful or misleading information during a public health emergency. The Court accepted the significance of the regulator’s objective of protecting the public interest and maintaining the integrity and reputation of the profession. The tribunal accepted the importance of the physician’s right to freedom of expression and the chilling effect that a finding against him could create. However, the harm caused by the physician’s statements outweighed his right to freedom of expression. In addition, the type of expression here was not high-valued political speech. It was far-fetched, unfounded, inflammatory, and reckless. The finding did not impair the physician’s freedom more than was necessary to achieve the statutory objectives of the regulator; it was proportionate.

At the penalty stage, the tribunal also considered whether anything less than revocation could balance the physician’s expression rights against the College’s objectives but given all the findings (including failing to cooperate with the investigation), the tribunal concluded that the physician was ungovernable. The physician had not proposed an alternative sanction that would protect the public and the tribunal itself could not identify one. Nothing else would address the physician’s lack of insight or a willingness to accept the authority of the regulator.

The Court also held that:

  • The tribunal made no error in accepting the expert opinion that the physician’s statements constituted harmful misinformation about COVID and vaccines.
  • The tribunal was correct not to treat published guidelines as binding on it, but as some evidence to guide it in determining standards of practice and professionalism. In addition, it was appropriate for the regulator to use such guidelines when forming reasonable and probable grounds for an investigation.
  • “No law provides that a physician is excused from cooperating with the College on the basis that his lawyer says he has grounds to challenge the investigatory process…. The [lawyer] has no authority to excuse non-performance.”

This decision provides regulators with guidance on how to apply Doré.

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