Legal Status of a Regulator’s Policies

The Ontario Court of Appeal has re-affirmed the authority of regulators to make policies setting out the expectations of practitioners in the course of their practice. This is so even where the enabling statute authorized the enactment of standards through regulation. The difference is that a regulation is “law” that is directly enforceable at discipline whereas a policy is only a statement of expectations that may form some evidence of the existing standard of practice but is not automatically enforceable at discipline. Despite it not being formal law, it still needs to be consistent with the Canadian Charter of Rights and Freedoms because, at least in this case, it was implementing a specific government objective.

In the case of Christian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario, 2019 ONCA 393, <http://canlii.ca/t/j08wq> the Ontario Court of Appeal accepted the reasoning of the Divisional Court and concluded that the policies appropriately balanced the competing interests of access to health care (especially abortion services and medical assistance in dying) and the religious beliefs of certain physicians. The Court also gave deference to the view of the regulator that simply providing generic information to vulnerable patients of their options was an insufficient balancing of the rights; the regulator was entitled to apply its expertise to require an effective referral to a person or facility that would provide the service.

This case is consistent with other recent cases where the courts give deference to regulators when enacting policies. However, the thorough nature of the Court’s analysis indicates that it is prudent for regulators to conduct a full workup of their policies, especially when rights under the Charter might be affected.

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