Court File and Parties

COURT OF APPEAL FOR ONTARIO

2022 ONCA 494

DATE: 20220623

DOCKET: M53511 (M53507)

George J.A. (Motion Judge)

BETWEEN

Dr. Celeste Jean Thirlwell Applicant (Appellant/Moving Party)

and

College of Physicians and Surgeons of Ontario Respondent (Responding Party)

Counsel: Marco P. Falco and Christoph Pike, for the moving party Lisa Brownstone, for the responding party

Heard: June 15, 2022 by video conference

Reasons for Decision

[1] The moving party, Dr. Celeste Thirlwell (“Thirlwell”), is a psychiatrist and member of the College of Physicians and Surgeons of Ontario (“the College”). In the fall of 2021, the College received reports that Thirlwell was providing improper medical exemption letters from COVID-19 vaccinations. These letters – which were obtained for cash – were described as vague and as failing to identify the medical condition purporting to justify the exemption. The College also received information that Thirlwell had been overheard talking to others about vaccine exemptions, describing someone seeking an exemption as a “Nazi resistor”, and stating that “they are gassing people in Australia”. It was also alleged that Thirlwell had coached an individual on what language to use to justify an exemption letter.

[2] On October 7, 2021, the Registrar of the College appointed investigators to look into whether Thirlwell had engaged in professional misconduct or was incompetent.

[3] When the investigators attempted to begin their work, Thirlwell’s then counsel advised that she would not cooperate and that the College investigators would be “resisted physically, by private security, if necessary”. This prompted the College to commence an application in the Superior Court to require Thirlwell’s compliance with its investigation. On November 4, 2021 – then with new counsel – Thirlwell consented to an order requiring her to cooperate with the investigation, but refused to enter into an undertaking restricting her from providing exemption letters.

[4] On November 5, 2021, the College’s Inquiries, Complaints and Reports Committee (“the ICRC”) met to consider this matter, ultimately issuing an interim order imposing terms on Thirlwell’s registration pursuant to s. 25.4 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the Code”). The ICRC determined that Thirlwell’s conduct exposed, or was likely to expose, patients to harm or injury. It found that Thirlwell’s special clinic, which sold exemptions for up to $300, suggested a generalized approach to vaccine exemptions for profit, and not an individualized assessment of each patient. It made other findings, including that, through her former counsel, Thirlwell threatened physical resistance to investigators. The ICRC held that this was “an extreme case, in which urgent intervention [was] required to protect patients from inappropriate vaccine exemptions amidst the ongoing pandemic” and provincial vaccine requirements. The ICRC recognized that any order should not exceed what is necessary to protect patients from harm, but, given Thirlwell’s conduct, felt it necessary to make an order prohibiting her from issuing vaccine exemptions. This interim order also required Thirlwell to provide irrevocable consent “for the College to make appropriate enquiries of the Ontario Health Insurance Plan (‘OHIP’), to monitor her compliance with the terms of the Order” (“the OHIP term”). Other terms were imposed including that she provide a log of all patient encounters and submit to unannounced inspections.

[5] On November 8, 2021, Thirlwell’s counsel advised that she would accept all of the terms, except the OHIP term and the term which required her to be subject to unannounced inspections, which she requested the ICRC vary. On November 15, 2021 the ICRC reconvened but declined to vary its interim order noting that while there was no OHIP billing code for vaccine exemptions, the OHIP and unannounced visit terms were necessary in order to monitor compliance.

[6] On November 18, 2021, Thirlwell commenced an application for judicial review in the Divisional Court, contesting only the OHIP term. The College agreed to not enforce that term until the Divisional Court rendered its decision.

[7] On May 10, 2022, the Divisional Court released its decision, dismissing Thirlwell’s application. The court reviewed the interim order on a standard of reasonableness. The court concluded that the principal object of an interim order is the protection of patients, and the mandate to protect patients confirms that “some evidence” is enough on which to base an interim order under s. 25.4 of the Code. The court held that as there was evidence that Thirlwell would provide exemptions for cash (even offering a family rate), and that her exemption letters were vague and did not provide any substantive explanation relating to the individual patient to justify the exemption, which in the ICRC’s view placed patients at risk of harm, the OHIP term was justified. In other words, the ICRC’s concerns were not speculative, but based on Thirlwell’s past conduct, and the public safety concerns warranted the OHIP term. The court cited the evidence that suggested Thirlwell’s motivations to issue exemptions were not based on any concern for her patients’ health but from an ideological perspective about state actions in response to COVID-19. The court held that the uncertainty of the impact of this type of personal conviction, and Thirlwell’s unwillingness to cooperate with the College in the past, provided justification for the OHIP term as it was the only real way to monitor and ensure compliance. The court held that the OHIP term was reasonable and dismissed the application.

[8] On May 25, 2022, Thirlwell brought a motion seeking leave to appeal the Divisional Court order. On June 3, 2022, Thirlwell brought this motion seeking to stay the order of the Divisional Court, pending the resolution of the motion for leave to appeal. The question before me is whether the Divisional Court order, upholding the term requiring Thirlwell to consent to the College making inquiries of OHIP, should be stayed pending her motion for leave to appeal.

[9] Thirlwell bears the burden of demonstrating that a stay of the Divisional Court order pending appeal should be granted pursuant to r. 63.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The test for a stay of an order pending appeal requires me to consider these three factors:

i) a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried;

ii) it must be determined whether the applicant would suffer irreparable harm if the application were refused; and

iii) an assessment of the balance of convenience must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

See Zafar v. Saiyid, 2017 ONCA 919, at para. 16.

[10] These factors are not watertight compartments, and the strength of one may compensate for the weakness of another: Zafar, at para. 18. And while the absence of one factor may, depending on the circumstances, be reason to not order the stay, the factors are not prerequisites. The “ultimate test for granting the stay is the interests of justice”: M & M Homes Inc. v. 2088556 Ontario Inc., 2020 ONCA 134, 51 C.P.C. (8th) 253, at para. 42. Here, do the interests of justice call for a stay?

[11] First, does the appeal raise a serious question to be tried? The starting point is to presume the correctness of the decision under appeal: Fontaine v. Canada (Attorney General), 2012 ONCA 206, 289 O.A.C. 190, at para. 34. While the threshold is low, I must be mindful of the fact that the Divisional Court has already determined that the ICRC’s decision was reasonable, and that the appeal of a Divisional Court order – which is intended to be final – is not as of right. On this motion, Thirlwell largely raises the same issues that were raised before, and rejected by, the Divisional Court. I note that this court has previously found that a moving party failed to establish that there was a serious issue to be tried where the moving party raised the same argument on appeal previously considered and rejected by the court and administrative tribunal below: Morguard Residential v. Mandel, 2017 ONCA 177, at para. 21.

[12] The proposed appeal does not have much merit and stands little chance of succeeding. I am not even certain leave will be granted. Factors considered in granting leave to appeal to this court from a decision of the Divisional Court include whether the appeal involves the interpretation of a statute or regulation including its constitutionality, or the interpretation of some general rule or principle of law, and whether the interpretation of the law in issue is of significance only to the parties or whether it is a question of general interest to the public: Iness v. Canada Mortgage and Housing Corp. (2002), 220 D.L.R. (4th) 682 (Ont. C.A.), at para. 4. I note that this appeal does not involve the interpretation of a statute’s constitutionality, nor the interpretation of a general principle of the law, and that this case is only of significance to the parties. Further, “[t]he possibility that there may be an error in the judgment or order sought to be appealed will not generally be a ground in itself for granting leave”: Iness, at para. 4. The bottom line is, the Divisional Court explained why patient logs were insufficient to monitor compliance with the interim order and why the OHIP term was justifiable. That decision is afforded a high degree of deference.

[13] While the threshold is low, given the requirement for leave and in light of the fact that, at least in my view, the appeal lacks merit, I find that there is no serious issue to be tried.

[14] Second, will Thirlwell suffer irreparable harm if the stay is not granted? This one factor likely weighs in favour of a stay, as a dismissal of this motion would immediately enable the College to compel Thirlwell to consent to a review of her OHIP records, rendering the appeal itself nugatory.

[15] Third, I must undertake the balance of convenience analysis, which requires that I consider which party would suffer the greater harm from granting, or refusing, the stay. I am, again, mindful of the fact that the ICRC’s decision and interim order have already been considered and upheld by the Divisional Court, and that the decision below is presumptively correct: J.P.B. v. C.B., 2016 ONCA 996, at para. 37. Even though a dismissal of this motion would, in effect, determine the rights of these parties, this favours not granting the stay.

[16] Even if I am wrong in my assessment that there is no serious issue to be tried, I would still deny the request for a stay as, in the circumstances of this case, the public interest outweighs Thirlwell’s personal interests. The public interest includes public safety and public confidence in the administration of justice and the College’s disciplinary system: Sazant v. College of Physicians and Surgeons of Ontario, 2011 ONCA 799, at para. 15. The balance of convenience weighs against granting a stay.

[17] Two panels of the ICRC, and a panel of the Divisional Court, have unanimously agreed that the OHIP term is necessary in order to effectively monitor Thirlwell’s activities. I find that the public’s confidence in the College’s ability to regulate its members would be eroded were I to grant the stay, and as such the Divisional Court order upholding the OHIP term should be operationalized without further delay.

[18] Accordingly, the request for a stay is denied.

[19] At the conclusion of the hearing, I was remiss by not asking counsel to make costs submissions. I would encourage the parties to come to an agreement, failing which they can file brief written submissions. The College has 15 days to do so; Thirwell 7 days thereafter. Submissions are limited to 3 pages in length and there is no right of reply.

J. George J.A.