Enforcing Cooperation with Investigations

Regulators often enforce their registrants’ duty to assist with investigations by disciplining them for non-cooperation. However, regulators with a provision in their enabling legislation authorizing compliance orders, can use that provision, as well.

In Kilian v College of Physicians and Surgeons of Ontario, 2023 ONSC 2689 (CanLII), the regulator sought an order compelling the subject of the investigation to cooperate with its investigation. The investigation related to various COVID-19 concerns, including issuing questionable exemption certificates and the making of various public statements. The Court issued an order requiring full cooperation. In doing so, it made the following points.

  • The Court declined to reconsider previous decisions in the many related proceedings determining that the investigative powers provisions of the regulator were constitutional.
  • The Court also declined to reconsider previous decisions that the privacy of the patient records did not provide a basis for the registrant to refuse to provide the records to the regulator.
  • The Court also declined to reconsider previous decisions that it was premature for the registrant to challenge whether there were reasonable and probable grounds for the appointment of the investigator. That issue should first be taken up with the discipline tribunal.
  • To succeed in the application, the regulator need only establish that the registrant is the subject of an investigation and that the registrant was not cooperating with it. In this case, the requested information was proper given the scope of the investigation.
  • The Court was somewhat concerned that some of the requests for information related to the registrant’s possible prescriptions, including Ivermectin and Hydroxychloroquine, as these drugs were not mentioned in the original complaints. However, the Court indicated that this concern should be raised first with the discipline tribunal. The Court noted that the wording of the scope of the investigation was broad enough to cover this request.
  • The Court did not accept the argument that the order should not be issued because the registrant had a home office. The Court said: “I do not accept that full compliance with s. 76 can be avoided by practicing out of one’s home.” In any event, it appeared that the registrant had electronic records and the Court was confident that cooperation could be achieved without “any unreasonable search of a defunct home office”.

The order to cooperate was made more than one and a half years after the application was initiated. However, there were an unusual number of legal steps initiated by the registrant in this case. And, once issued, such an order is enforceable through contempt proceedings. Thus, on balance, this option for enforcement may be more efficient in obtaining the information than prosecuting the registrant for non-cooperation.

It should be noted that some legislation may provide for administrative enforcement of cooperation obligations, including through administrative suspensions or monetary penalties. See, for example, the Health Professions and Occupations Act of British Columbia.

More Posts

The Business Did It

Business structures for registrants are quickly evolving in many sectors. Accountability for registrants is sometimes disputed where only the individuals, and not the business entities

A Suspension Is a Suspension

Ontario’s Divisional Court has upheld a finding that a registrant engaged in professional misconduct by trying to circumvent the impact of a suspension. In Casella

Couldn’t Disagree More

Can a regulator make a finding of professional misconduct against a registrant based largely on the evidence of a witness who has a strong motivation