More Interim Order Guidance

Interim orders are rare protective measures that have been used more frequently in recent months. Yet another pandemic related case builds on the points made in Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654 (CanLII).

In Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931 (CanLII), the registrant, a physician, was investigated for inappropriately issuing vaccine exemption certificates, among other things. After receiving information that she continued issuing certificates despite an interim order prohibiting precisely that, her registration was suspended on an interim basis. She, and apparently some of her patients (they were anonymous), sought judicial review of both the decision to investigate her and the imposition of the interim orders. The following points were made by the Court:

  • The patients did not have standing to seek judicial review of the interim orders against the registrant. They had no direct legal interests at stake in the regulator’s actions towards their physician. They also had no public interest standing, in part because they had no reasonable expectation of privacy from the regulator accessing their medical records for regulatory purposes. In addition, they did not bring a perspective different than from what the registrant would bring.
  • In terms of the challenge to the decision to investigate the registrant, the application for judicial review was premature. She should await the outcome of the process first.
  • The issuing of inappropriate vaccine certificates exposed both the registrant’s patients and others to harm or injury.
  • In fact, the exposure to harm was immediate and justified an urgent order made prior to hearing submissions from the registrant.
  • As in Thirlwell, the ungovernability of the registrant reinforced the exposure to harm of patients. Anything less than a suspension was unlikely to protect patients.
  • Additional information that was not before the regulator at the time the interim order was made should generally not be considered on judicial review. Rather, the registrant should provide the information after the fact, seek a reconsideration of the interim order, and then seek judicial review, if necessary, of the reconsideration decision.
  • The Court dismissed the challenge based on the life, liberty and security of the person provision found in s. 7 of the Canadian Charter of Rights and Freedoms in a single, four-line paragraph.

The Court also ordered a publication ban on the identities of the patients whose records were reviewed and of the other registrants who assisted in the investigation. There was evidence to suggest that they might be harassed. The Court said:

There is a public interest in encouraging patients, members of the public and other doctors to identify and report potential misconduct on the part of members of the CPSO [the regulator] …. This interest is significant, and it is related to the public interest in protecting the integrity of ongoing investigations and encouraging witnesses to be truthful …. [citations omitted]

This order did not prevent counsel for the registrant from accessing the evidence, with reasonable restrictions to maintain its privacy.

Where there is evidence of exposure to harm, courts are supportive of the reasonable imposition of interim orders.

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