The Impact of Non-Cooperation on Interim Orders

Issuing an interim order restricting or suspending a registrant’s ability to practise pending an investigation is an exceptional power for regulators of professions. Given the impact of such orders and the limited ability of registrants to challenge such orders internally, other than asking for reconsideration, courts will often entertain a judicial review application of it even though it is midway through the investigation process.

In Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 (CanLII), the Ontario Divisional Court considered the impact of a registrant’s non-cooperation with the investigation. Dr. Luchkiw (the registrant) was the subject of two investigations related to allegedly issuing an inappropriate vaccine exemption to a high-risk immunocompromised patient, employing inadequate infection prevention and control practices, and disseminating misinformation about COVID-19, among other concerns. The registrant declined to cooperate with several attempts to obtain information about the concerns, arguing that the regulator had no jurisdiction to investigate the matters.

The regulator was unable to obtain a copy of the vaccine exemption document. However, it had a report from the hospital where the registrant worked that a patient told their care team that they obtained the exemption from their physician, whom they would not name, and that the registrant was the patient’s family physician. When the hospital asked to meet with the registrant to discuss the patient, the registrant resigned her hospital privileges. The registrant’s legal counsel implicitly confirmed that the registrant had issued the exemption by submitting to the regulator that it did not have the authority to police exemptions. The registrant did not deny that she provided the exemption.

In terms of the infection prevention and control practices, the regulator had received several concerns expressed by various individuals on the topic and the observations of the regulator’s investigators of deficiencies in the waiting room of the registrant’s office when they were refused admission for investigatory purposes.

The regulator had access to a recording of the alleged misinformation.

The regulator can impose an interim order only where the registrant’s conduct exposes, or is likely to expose, patients to harm or injury. While the regulator could not impose an interim order for non-cooperation, alone, the Court held that the non-cooperation could support the concern of patient harm. The Court said: “I am of the view that [the registrant’s] failure to co-operate, or to recognize the authority of the College, is a reasonable basis to conclude that she is ungovernable. This raises additional concerns with respect to patient safety.”

Some other comments by the Court on making interim orders are as follows:

  • Courts will generally not review the validity of the appointment of the investigators during the investigation unless there are exceptional circumstances. Challenging an interim order does not provide a “back door” route to challenge, prematurely, the validity of the appointment.
  • The regulator can refer to external guidelines from such organizations as the National Advisory Committee on Immunization and the Ministry of Health in determining the issue of exposure of patients to harm.
  • The Court found that the existence of another option for the regulator (specifically applying for a restraining order to enforce its earlier direction that the registrant cease issuing vaccine exemptions) did not prevent the regulator from issuing an interim order suspending her ability to practice. There was no legitimate expectation that only one enforcement option would be used.
  • The regulator did not have to balance the benefits of the interim order against the speculative negative impacts of the order to other patients of the registrant. The regulator could just focus on the safety of the patients exposed to harm by the continued practice of the registrant.
  • The regulator is not required to address every argument made by the registrant in its reasons. The freedom of expression issue raised by the registrant was not a central issue at this time, where patient safety was the primary concern.
  • There was no procedural unfairness in the regulator failing to disclose a lengthy document listing threatening and inflammatory complaints made by members of the public about the regulator’s approach to investigating registrants for their COVID-19 views. The Court held that this information did not relate to the core safety issue. Rather, it was placed before the committee for the purpose of deciding whether their names should be withheld from the decision imposing the interim order. Their names were not included with the decision and the registrant did not take issue with that.

Non-cooperation with an investigation can support a decision to impose an interim order during an investigation, not for the purpose of compelling cooperation, but rather to support the inference that the registrant will not practice safely.

This article was originally published by The Lawyer’s Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.

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