Investigative Insults

What should a regulator do where a practitioner refuses to cooperate with an investigation and attacks the investigation aggressively on social media including posting documents from the investigation? The traditional option is to refer the non-cooperation and behaviour itself to discipline. However, this approach can delay the regulator’s ability to address the conduct under investigation. In College of Physicians and Surgeons of Ontario v. O’Connor, 2022 ONSC 195 (CanLII), https://canlii.ca/t/jlvck, the regulator sought a court order compelling compliance and limiting the social media postings.

In that case the regulator was investigating a number of practitioners for their conduct related to the pandemic including allegedly issuing medical exemptions on questionable grounds and posting potentially harmful public statements about vaccination, mask mandates and other related topics without scientific support. The practitioners refused to cooperate and posted “angry” statements about the investigation that revealed the identities of regulatory staff, regulatory legal counsel and some practitioners who had been consulted to provide advice on the professional aspects of the alleged conduct.

The Court had little difficulty ordering the practitioners to cooperate fully with the investigation. This was their legal obligation under the legislation.

Generally speaking, a statutory injunction does not place as onerous a burden on the party seeking it as does a mandatory injunction at common law: Ontario (Minister of Agriculture & Food) v Georgian Bay Milk Co., [2008] O.J. No. 485, at para. 34 (S.C.J.). Where a regulator “applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach”: College of Physicians and Surgeons of Ontario v. Canon, 2018 ONSC 4815, at para. 43. “Exceptional circumstances” includes instances where the physician has ceased the activity, making the injunction moot, or where there is uncertainty as to whether the physician has done anything to justify an injunction by the Applicant: Gavin Downing v. Agri-Cultural Renewal Co-operative Inc. O/A Glencolton Farms, 2018 ONSC 128, at para. 113.

The Court had more difficulty with the request for an order banning publication of certain information about the investigation. All those identified had received disturbing postings and messages from members of the public including messages to the effect that they would face legal repercussions, such as a Nuremburg-type or criminal prosecution. The Court said: “What the Applicant actually wants is a ban on verbal harassment, not physical intimidation.”

The Court did agree that the identity of the practitioner consultants should be protected. They were analogous to witnesses and attempts to harass them could undermine the process: “Without some anonymizing of doctors who come forward in an effort to assist the medical community at large by assisting the regulator, the Applicant may be unable to operate efficiently and effectively …” However, the court viewed regulatory investigative staff and legal counsel as being analogous to public servants. The values of an open and democratic society allow for criticism, even unfair criticism. The confidential nature of investigations and the lack of an open hearing before the screening committee were not considered as part of the Court’s analysis. The Court wrote:

My reading of the communications cited by the Applicant and its counsel is that they are laced with anger. The language of [the practitioner’s] followers, in particular, is vituperative and certainly not to my liking. It appears defamatory and may be actionable. But it does not really threaten violence or indicate that the authors will take other illegal action against public officials or the Applicant’s personnel. Rather, for the most part it consists of people vowing to take legal action – unfounded legal action, to be sure – but nevertheless not illegal or extra-legal action.

The Court concluded that “If threats of violence or actual intimidation emerge, the Applicant will of course be free to revisit this issue in the face of fresh evidence.”

The Court has provided some guidance as to when it will be prepared to act proactively to prohibit future conduct to ensure effective investigations. This decision will make it more difficult for regulators to protect their staff and representatives from harassment. Of course, different considerations apply to holding practitioners accountable afterwards for the professionalism of their conduct.

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