Duty to Cooperate Immediately

The message from Ontario’s highest court to regulated professionals under investigation is to cooperate first and ask questions later.

In College of Physicians and Surgeons of Ontario v. Kilian, 2024 ONCA 52 (CanLII), the registrant, a physician, was investigated for issuing COVID exemption certificates and prescribing unapproved drugs for COVID. The physician declined to cooperate on various grounds including the absence of reasonable and probable grounds to initiate the investigation, the privacy of patient health information, and the purported unconstitutionality of the process and provisions. The regulator obtained a court order to cooperate (similar to an injunction) requiring the registrant to cooperate. The registrant appealed.

The Court upheld the order to cooperate without addressing the registrant’s arguments. Allowing the registrant’s challenge would interrupt an ongoing process. Absent exceptional circumstances, the regulatory process must first conclude before a court will interfere. This important administrative law policy principle does not change where constitutional issues are raised. Intervening at this stage “would substantially undermine the effective and efficient regulation of health care professionals….” The registrant must first raise these grounds at any discipline hearing that results from the investigation.

The Court said: “For these reasons, we find the College did not need to prove its demand for production of documents was lawful before making the order.” All that is required for the court order is for the regulator to establish that “the requests for information that the investigators have made are within the scope of their investigatory powers…. and [the registrant] was not cooperating with the investigation.”

Regulators will welcome this decision as it will enable them to proceed with investigations with less interruption. (This investigation had begun more than three years before the Court’s decision.) However, the downside for regulators is that it appears to condone at least some challenges to the investigation and referral process at the discipline hearing itself. Some previous court decisions suggested that these were not proper issues for the discipline panel to address and that they should be addressed separately in court: Krop v. College of Physicians and Surgeons of Ontario, 2002 CanLII 53258 (ON SCDC). As a result, discipline hearings may become more complicated.

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