COURT OF APPEAL FOR ONTARIO

2024 ONCA 52

DATE: 20240125 DOCKET: COA-23-CV-0626

Benotto, Miller and Thorburn JJ.A.

BETWEEN

College of Physicians and Surgeons of Ontario Applicant (Respondent)

and

Rochagné Kilian Respondent (Appellant)

Counsel: Paul Slansky, for the appellant Peter Wardle and Evan Rankin, for the respondent

Heard: October 11, 2023

On appeal from the order of Justice Michael Dineen of the Superior Court of Justice, dated May 8, 2023, with reasons reported at 2023 ONSC 2689.

By the Court:

OVERVIEW

[1] Dr. Rochagné Kilian appeals the application judge’s order requiring her to comply with the College of Physicians and Surgeons of Ontario’s (the “College”) investigation into her conduct.

[2] The College commenced an investigation after receiving complaints that Dr. Kilian was allegedly issuing false COVID-19 vaccine exemption certificates to persons including people who were not her patients.

[3] Section 75(1)(a) of the Health Professions Procedural Code (the “Code”), Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provides that the College may appoint one or more investigators to determine whether a member of the College “has committed an act of professional misconduct or is incompetent based on a belief supported by reasonable and probable grounds.”

[4] As part of its investigation, the College asked Dr. Kilian to disclose patient records for those for whom she had provided a COVID-19 exemption or for whom she had prescribed certain medications for COVID-19 that were not recommended by Health Canada. In so doing, the investigators relied on s. 76 of the Code which provides that,

(1) An investigator may inquire into and examine the practice of the member to be investigated and section 33 of the Public Inquiries Act, 2009 applies to that inquiry and examination.

(1.1) An investigator may make reasonable inquiries of any person, including the member who is the subject of the investigation, on matters relevant to the investigation.

(3) No person shall obstruct an investigator or withhold or conceal from his or her or destroy anything that is relevant to the investigation.

(3.1) A member shall co-operate fully with an investigator.

See also: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, at paras. 99-100.

[5] Section 76(4) provides that these provisions apply “despite any provision in any Act relating to the confidentiality of health records”.

[6] Dr. Kilian refused to produce the patient records citing patient confidentiality. She explained that “even if reasonable and probable grounds were shown, I would decline the [College’s] request on the basis of my fiduciary relationship with my patients.”

[7] Following Dr. Kilian’s refusal to provide the records requested by the College’s investigator, the College received further complaints about Dr. Kilian. The College therefore made an interim order directing Dr. Kilian not to provide various forms of COVID-19 exemptions. The College then wrote to Dr. Kilian noting her failure to provide the required documents and warning that if she did not provide them to the College, the College would bring an application before the Superior Court requiring her to do so.

[8] Dr. Kilian again did not provide the information requested so the College commenced an urgent application for an injunction requiring Dr. Kilian to cooperate with the investigation. In so doing, the College invoked s. 87 of the Code which provides that,

The College may apply to the Superior Court of Justice for an order directing a person to comply with a provision of the Health Professions Act, this Code, the Regulated Professions Act, 1991, the regulations under those Acts, or the by-laws …

[9] Thereafter, the College received two more medical exemptions signed by Dr. Kilian, despite the interim order prohibiting her from doing so. They contain her electronic signature and were issued automatically after individuals answered two or three questions. Dr. Kilian acknowledged that the exemptions were granted after she was ordered not to do so but claims that they were the result of a technological error.

[10] As a result, the College directed the Registrar to suspend Dr. Kilian’s licence to practice medicine.

THE APPLICATION JUDGE’S REASONS

[11] The application judge granted the College’s application, ordering Dr. Kilian to comply with ss. 76(3) and (3.1) of the Code and specifically, to:

a) provide the medical charts, patient information and other relevant information requested by the College investigators and allow them to make copies or remove any relevant documents for the purpose of the investigation;

b) facilitate the College investigators’ inquiry into, and examination of, her practice and conduct; and

c) permit the College investigators to enter into the place of her practice and examine anything else relevant to the investigation.

[12] The application judge held that all that is required on a s. 87 application is for the College to show that there was a breach of the statute, i.e., the Code, and that the statute permits the court to make the order against Dr. Kilian. He noted that the purpose of an investigation is to compel a non-cooperating physician to comply with their statutory obligations in an ongoing College investigation. The scope of review on a s. 87 application is therefore limited.

[13] The application judge held that issues relating to the constitutionality of the legislation or its application, and issues relating to the legitimacy of the investigation, or the investigators’ actions, should be reviewed by the College’s Discipline Committee at first instance, not the court on a s. 87 application.

[14] As such, he declined to consider the merits of the investigation and rejected Dr. Kilian’s argument that the College was required to prove the legality of the underlying investigation before the court could require her to produce the records.

[15] The application judge held that the requirements for issuance of a s. 87 order had been met. Dr. Kilian did not cooperate with the investigation, in breach of s. 76 of the Code. Furthermore, the records were within the terms of the investigation, were relevant to the assessment of Dr. Kilian’s conduct, and Dr. Kilian offered no legitimate reason for her refusal to cooperate.

[16] The application judge refused to exercise his discretion not to order Dr. Kilian’s compliance because, among other things, he found there was no reason to depart from the scope of discretion available on a s. 87 application, there were no legitimate privacy concerns regarding the patients, and Dr. Kilian had contributed to extensive and unreasonable delay in the proceedings.

[17] As of the time of this appeal, Dr. Kilian had not complied with the order.

ANALYSIS

[18] Dr. Kilian has raised three main grounds of appeal: (i) whether the application judge erred in finding he did not have jurisdiction to consider the arguments relating to the lawfulness of the s. 76 demand and the constitutional arguments; (ii) whether the application judge erred in finding that the requirements of s. 87 were met; and (iii) whether the application judge erred in refusing to exercise his residual discretion not to order Dr. Kilian’s compliance.

I. Whether the Application Judge Erred in Finding He Did Not Have Jurisdiction to Consider Arguments Relating to the Lawfulness of the s. 76 Demand and the Constitutional Arguments

[19] Dr. Kilian claims that the application judge erred by finding that he did not have jurisdiction to determine several issues that related to the lawfulness of the College’s demand under s. 76 of the Code. These issues were: (i) whether the College had “reasonable and probable grounds” to begin an investigation under s. 75 of the Code; (ii) whether the process in s. 76 is constitutional; and (iii) whether s. 87 is constitutional. She also argued that the application judge erred in finding that he could not determine any constitutional issues on a s. 87 application.

[20] In our view, the application judge was correct to find that these issues were not properly before him.

[21] A s. 87 application is brought to compel a non-cooperating doctor to comply with their statutory obligations in an ongoing College investigation. The application will be granted where “there has been a continued breach of the statute by the person against whom the injunction is sought and [where] the statute permits the Court to make an order against that person”: College of Physicians and Surgeons v. Ravikovich, 2010 ONSC 5714, at para. 10.

[22] The scope of review by the court on a s. 87 application is limited. The role of the court in the context of a s. 87 application to enforce compliance with s. 76 of the Code is to consider “whether the requests for information that the investigators have made are within the scope of their investigatory powers”: Kilian v. CPSO, 2023 ONSC 5, 11 Admin L.R. (7th) 89 (Div. Ct.), at para. 58.

[23] As noted by the Divisional Court in Kilian, at para. 53, “breach of the legislation will be established the moment that the [College] can demonstrate to the Court that Dr. Kilian was the subject of an investigation and was not cooperating with the investigation.” [1]

[24] The application judge relied extensively on the Divisional Court’s reasons in Kilian to define the scope of the s. 87 application and therefore his jurisdiction to consider the issues raised by Dr. Kilian. Dr. Kilian takes issue with this, arguing that the relevant portions of those reasons were obiter and the application judge wrongly considered this obiter to be binding on him. In our view, it is not necessary to determine whether the application judge’s comments on the binding nature of this obiter were correct. He was clear that he considered the Divisional Court’s comments to be correct and would have relied on them even if they were not binding.

[25] Dr. Kilian asks this court to find that the application judge was wrong to limit the scope of a s. 87 application. She argues that in order for non-compliance with s. 76 to be a breach, the underlying demand in s. 76 must be lawful; if the demand is unlawful, non-compliance is not a breach.

[26] Dr. Kilian therefore claims that the College must prove the s. 76 demand is lawful in order to succeed on the s. 87 application. To do so, she claims, the court must consider whether there were reasonable and probable grounds to launch the investigation under s. 75 and consider the variety of constitutional arguments she has raised regarding ss. 76 and 87.

[27] Dr. Kilian’s position demonstrates a misunderstanding of the purpose of a s. 87 application and the regulatory context in which it is situated.

[28] The Divisional Court in Kilian correctly noted, at para. 51, that a s. 87 application occurs within the context of an ongoing administrative process. There is a long-standing principle not to interfere in an ongoing administrative process until it is complete, absent exceptional circumstances: Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798 (Div. Ct.); Ravikovich v. College of Physicians and Surgeons, 2010 ONSC 5194 (Div. Ct.), at para. 4; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111. O.R. (3d) 561, at paras. 68-69.

[29] There are legitimate policy reasons for this principle. As described by this court in Volochay, at para. 69, quoting Stratas J.A. in C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 42:

This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway. Further, only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience. Finally, this approach is consistent with and supports the concept of judicial respect for administrative decision-makers who, like judges, have decision-making responsibilities to discharge. [Citations omitted.]

[30] This does not change simply because the respondent raises constitutional claims. As the application judge correctly noted, Dr. Kilian is required to comply with the law pending any challenge to it.

[31] Dr. Kilian argues that this is only because we presume that the law is valid. Since we do not presume the acts carrying out the law are valid, compliance is not required pending her challenge to the demand under s. 76. She also argues that a refusal to consider her constitutional arguments precludes any remedy for a violation of her rights.

[32] We disagree. Compliance with the law pending a constitutional challenge is required for the same policy reasons discussed above.

[33] “As the regulator of the medical profession, the College and its investigative staff play an important role in ‘monitoring competence and supervising the conduct of professionals [as the] public places trust in them’”: College of Physicians and Surgeons v. SJO, 2020 ONSC 1047, 150 O.R. (3d) 423, at para. 41, citing Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513, at para. 36. The College must therefore have “sufficiently effective means at their disposal” to investigate: Pharmascience, at para. 37.

[34] As noted by the application judge, noncompliance while a challenge is pending “would substantially undermine the effective and efficient regulation of health care professionals”. As the College notes, it would allow a physician “to engineer premature judicial review simply by refusing to cooperate with an investigation and waiting for the regulator to commence a s. 87 application. This would simply be a different way to fragment administrative proceedings.” It was for these same reasons that the application judge found that the process under s. 87 was not unconstitutional.

[35] This process does not preclude Dr. Kilian from seeking judicial review but rather, requires her to first raise them before the Discipline Committee and only then, by way of judicial review.

[36] The Discipline Committee has the power to grant remedies pursuant to s. 24 of the Charter and can decline to apply legislation where it determines the legislation is unconstitutional: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorilla v. Quebec (Attorney General), 2005 SCC 16, [2005] 1 S.C.R. 257, at paras. 44-45. It is also the proper forum for a party to challenge the appointment of an investigator, the lawfulness of a s. 76 demand and any alleged violation of Dr. Kilian’s individual rights: Kilian, at para. 50.

[37] After the administrative process is complete, Dr. Kilian can then challenge the outcome of the administrative process through judicial review to the Divisional Court: Judicial Review Procedure Act, R.S.O. 1990, c. J.1, ss. 1, 2, and 6(1). To allow her to do so now before the investigation is complete would be premature: Dioguardi Tax Law v. The Law Society of Upper Canada, 2015 ONSC 3430, 337 C.R.R. (2d) 101, aff’d 2016 ONCA 531, 133 O.R. (3d) 151, leave to appeal refused, [2016] S.C.C.A. No. 407.

[38] For these reasons, we find the College did not need to prove its demand for production of documents was lawful before making the order. As such, the first ground of appeal fails.

[39] Dr. Kilian has argued the merits of each of the above issues, i.e., whether there were reasonable and probable grounds under s. 75, whether the s. 76 demand was lawful, and whether the legislation is constitutional. Given our conclusion that these arguments must be brought before the Discipline Committee before being considered by this court, we decline to consider these grounds of appeal.

II. Whether the Application Judge Erred in Finding that the Requirements of s. 87 Were Met

[40] As noted by the Divisional Court in Kilian, at para. 53, “breach of the legislation will be established the moment that the [College] can demonstrate to the Court that Dr. Kilian was the subject of an investigation and was not cooperating with the investigation.”

[41] Dr. Kilian claims that the College failed to prove the demand under s. 76 was lawful and therefore failed to prove a breach of the Code, as required on a s. 87 application. Given our findings above, we disagree.

[42] As the application judge succinctly stated:

The [College] has established grounds for a s. 87 order. The request made by the investigator for the records he sought was a proper one given the terms of the investigation ordered by the [College]. The records sought are relevant to the relatively broad terms of his appointment to assess the Respondent’s conduct concerning the COVID-19 pandemic. The Respondent is indisputably refusing to cooperate [by providing the requested medical records] and has not established any legitimate reason for doing so.

[43] This ground of appeal therefore fails.

III. Whether the Application Judge Erred in Refusing to Exercise His Discretion to Interfere before the Administrative Process was Complete

[44] Dr. Kilian claims that the application judge erred by refusing to exercise his residual discretion not to order her compliance under s. 87. She makes three arguments: (i) the injunction under s. 87 is a “mandatory” statutory injunction, which requires a higher standard; (ii) privilege was relevant, since the patients could be identified in a public hearing; and (iii) it was the College, rather than Dr. Kilian, that caused delay in the proceedings. She claims the application judge erred in finding against her on these three issues.

[45] The exercise of discretion is entitled to deference on appeal unless the application judge made an error in principle or if the exercise of discretion results in an order that is plainly wrong: Cowper-Smith v. Morgan, 2017 SCC 61, [2017] 2 S.C.R. 754, at para. 46. We see no such error.

[46] As discussed above, in ordering the administrative process and in particular, the investigation to be completed before seeking judicial review, the application judge was simply applying the longstanding principle not to interfere in the ongoing administrative process until it is complete. To do otherwise would fragment the tribunal’s process and enable Dr. Kilian to seek judicial review simply by refusing to cooperate with the College and waiting for them to commence a s. 87 application.

[47] The application judge correctly characterized this as a statutory injunction and correctly described the scope of his discretion on the application. Dr. Kilian has not provided any reason why this should be considered a mandatory injunction or what “higher standards” should be applied.

[48] The application judge also provided extensive reasons as to why the patients did not have a reasonable expectation of privacy in this case, referring to Harvison Young J.A.’s reasons in College of Physicians and Surgeons of Ontario v. Kilian, 2023 ONCA 281. Dr. Kilian has not shown that this is wrong, and indeed, the separate appeal brought by the patients against Harvison Young J.A.’s endorsement has been abandoned.

[49] The application judge's findings on the cause of delay in these proceedings was supported on the record.

[50] Dr. Kilian has not shown any error in principle or that the order is plainly wrong. For these reasons, this ground of appeal fails.

DISPOSITION

[51] For the above reasons, the appeal is dismissed.

[52] The College is entitled to its partial indemnity costs in the amount of $18,000.00.

Released: January 25, 2024 “M.L.B.” “M.L. Benotto J.A.” “B.W. Miller J.A.” “Thorburn J.A.”

[1] Dr. Kilian sought a judicial review of the appointment of the investigators. Pending the hearing, the Superior Court granted a stay of proceedings. Although the judicial review was ultimately dismissed, the Divisional Court heard an appeal from the stay order, allowed the appeal and lifted the stay: 2023 ONSC 5.