CITATION: Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931

DIVISIONAL COURT FILE NO.: 922/21

DATE: 20221107

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

Swinton, Lederer and LeMay JJ.

BETWEEN:

ROCHANGÉ KILIAN, JOHNS DOE, JANE DOES Applicants

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent

Paul Slansky and Samantha Coomara, for the Applicant Rochangé Kilian Amina Sherazee, for the Applicant John Does, Jane Does Paul Le Vay and Fredrick R. Schumann, for the Respondent College

HEARD at Toronto (by videoconference): September 28, 2022

THE COURT:

Overview

[1] The applicant Dr. Kilian is a member of the College of Physicians and Surgeons of Ontario (“CPSO”). She practised medicine in Owen Sound. In September of 2021, the CPSO received complaints and information from third parties that Dr. Kilian was providing patients with exemptions from the COVID-19 vaccine requirements without medical justification. The Registrar of the CPSO recommended that an investigation should be launched into Dr. Kilian’s conduct. The matter was referred to the Inquiries, Complaints and Reports Committee of the College (“ICRC”), which approved the appointment of investigators.

[2] On October 15^th, 2021, after receiving some information from the investigation, the ICRC imposed interim restrictions on Dr. Kilian’s certificate of registration. Information then came to the attention of the ICRC that Dr. Kilian was not complying with these restrictions. As a result, on October 27^th, 2021, the ICRC imposed an interim suspension on Dr. Kilian’s certificate. This suspension is effective while the investigation is ongoing.

[3] Numerous proceedings in respect of this matter have been commenced before both this Court and the Superior Court of Justice. The proceeding that came before us for hearing was an application for judicial review of the three decisions of the ICRC, as discussed in detail below. It was filed by Dr. Kilian and an anonymous group of some 37 patients of hers. The CPSO brought a motion to quash the judicial review application as it pertains to the patients on the basis that they have no standing to bring it. The CPSO also brought a motion for a publication ban over certain portions of the record of proceedings.

[4] After hearing argument on these two motions, we granted the motion to quash the patients’ application for want of standing and the motion for a publication ban, with written reasons to follow. These reasons deal with those motions, as well as Dr. Kilian’s judicial review application, which we also dismiss.

Background

The Parties

[5] The applicant, Rochangé Kilian, is a medical doctor who received her certificate of registration (“certificate”) from the CPSO in 2016. She had previously practised medicine in both South Africa and British Columbia. She was employed by Grey-Bruce Health Services (“GBHS”), primarily in Owen Sound, providing emergency medicine services until she resigned on August 23^rd, 2021. Her resignation was over a dispute with the hospital in respect of measures related to COVID-19 and vaccines.

[6] The other applicants, Johns Doe and Janes Doe, are all allegedly Dr. Killian’s patients. However, there is no evidence, even sealed evidence before us, confirming the identity of any of these individuals. They have advised the Court, through counsel and by way of an affidavit from an unidentified individual who claims to be a patient, that they have declined to disclose their identities because of concerns over reprisals. However, permission to bring the application on an anonymous basis was never sought from the Court, nor has the process for appointing litigation guardians been followed with respect to the Baby Doe applicants. We will refer to these individuals as the “Patient Applicants.”

[7] The respondent, the CPSO, has the statutory responsibility for regulating the practice of medicine in the Province of Ontario. That responsibility includes investigating complaints brought by both patients and members of the public with respect to alleged professional misconduct or incompetence of a physician. The primary purpose of this regulatory regime is to ensure the delivery of proper medical care while allowing an appropriate level of procedural protection to physicians who are the subject of any complaint or expressed concern.

The Events Giving Rise to the Investigation

[8] Dr. Kilian developed concerns about the way that the COVID-19 pandemic was being managed. Contrary to the prevailing medical advice and understanding, she opposed the widespread use of vaccines. She saw direction from the CPSO respecting her communications with patients as impinging on what she referred to as her freedom of speech as well as the rights of her patients.

[9] On August 20^th, 2021, GBHS distributed an e-mail to staff advising that they were developing a vaccine mandate that would require all health care workers to either vaccinate or lose their employment. There was a town hall meeting held by GBHS on August 23^rd, 2021, and Dr. Kilian attended and expressed concerns about various vaccine and COVID-19 policies.

[10] Following this town hall meeting, Dr. Kilian resigned from GBHS. She then accepted a number of public speaking engagements to discuss the issues of vaccination and COVID-19. She continued with her public speaking and advocacy activities both before and after her suspension by the CPSO.

[11] In the late summer of 2021, Dr. Kilian began to sign exemption forms for people who did not wish to get the COVID-19 vaccine. She provided these exemptions in three different ways: through her own practice, through an organization known as “EnableAir”, and through an organization known as White Knight Medical. Her association with “EnableAir” was limited and is now the subject of a complaint to the RCMP in British Columbia. The details and outcome of that complaint are not relevant to the issues we have to determine in this case.

[12] The decision of GBHS to require staff to be vaccinated was a decision that flowed from directions received from the Ministry of Health and Long Term Care (“MHLTC”). In addition to requirements that hospital staff be vaccinated, the MHLTC published guidelines on when exemptions from a COVID-19 vaccine should be provided to patients. The Ministry’s advice and directions were issued on September 14^th, 2021 and stated, inter alia, “that there are very few actual contraindications to available COVID-19 vaccines that would qualify as medical exemptions and most individuals can safely receive COVID-19 vaccines.” The document goes on to outline specific situations when exemptions would be medically supported.

[13] Based on this policy, third parties raised concerns with the CPSO about the vaccine exemptions that Dr. Kilian was providing. These concerns led to the investigation by the CPSO.

The Investigation and Subsequent Proceedings

[14] The CPSO has issued two policies that are relevant in this Application. First, on April 30^th, 2021, the CPSO released a statement on Public Health Misinformation, which states, in part:

The College is aware and concerned about the increase of misinformation circulating on social media and other platforms regarding physicians who are publicly contradicting public health orders and recommendations. Physicians hold a unique position of trust with the public and have a professional responsibility to not communicate anti-vaccine, anti-masking, anti-distancing and anti-lockdown statements and/or promoting unsupported, unproven treatments for COVID-19.

[15] Second, on or about September 1^st, 2021, the Registrar of the CPSO, Dr. Nancy Whitmore, sent all members of the CPSO a notice discussing vaccine mandates. That notice acknowledged that the Province of Ontario had released its vaccine passport plan as well as the fact that a number of organizations, especially in health care, had adopted mandatory vaccine policies. Dr. Whitmore’s notice concludes by commenting on the requirement to explain and document any exceptions that may apply to those who otherwise are to be vaccinated:

Given the rarity of these exceptions and in light of the fact that vaccines have been proven to be both safe and effective, any notes written for patients who qualify for a medical exemption need to clearly specify:

• The reason they cannot be vaccinated against COVID-19 (i.e. document clear medical information that supports the exemption); and

• The effective period for the medical reason (i.e. permanent or time-limited).

[16] This requirement to document the reason for any exemption underscores how rare these exceptions are. This rarity and the requirement to provide reasons for any exemption were recognized and repeated in directions issued by the MHLTC on September 14, 2021.

[17] Starting in mid-September of 2021, the CPSO received a series of complaints about Dr. Kilian. None of these complaints came from her patients. The complaints can be divided into two broad categories. First, there were complaints from employers who had been presented with vaccine exemptions for their employees signed by Dr. Kilian. Those exemptions did not include any medical explanation as to why the employee should be exempted from COVID-19 vaccines. Instead, these exemption forms included reference to a litany of legal authorities, including the Canadian Constitution and the Nuremberg Code. They also referred to “medical and psychosocial exemptions” that are likely to last for a minimum of ten years.

[18] Second, there were complaints about public statements Dr. Kilian made concerning the COVID-19 vaccine. These included her comments at the town hall meeting that took place on August 23, 2021. The comments were critical of the COVID-19 policies that dealt with the requirement that local health care workers were to be vaccinated. On September 17, 2021, she spoke to a group identified as Strong and Free Canada. She is said to have asked, “How many people are we going to kill if we keep following this [vaccine based] narrative?”

[19] On September 29^th, 2021, pursuant to s. 75(1)(a) of the Health Professions Procedural Code, being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the “Code”), the Registrar sought authorization to appoint investigators from the ICRC. Pursuant to s. 75(1)(a),

The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Inquiries, Complaints and Reports Committee approves of the appointment … (emphasis added)

[20] The ICRC approved the request on October 1, 2021 (the “Investigation Decision”), and the Registrar appointed investigators. The issues to be investigated included whether Dr. Kilian in her “communications and conduct regarding the COVID-19 pandemic and her completion of medical exemptions for COVID-19 vaccines, has engaged in professional misconduct or is incompetent.”

[21] Dr. Kilian was informed the same day and was provided redacted documents to support the conclusion of reasonable and probable grounds.

[22] The investigation revealed further statements made in public by Dr. Kilian about COVID-19 and vaccines, as well as details on further exemptions that she was signing for individual patients. Dr. Kilian was asked to provide a complete list of the patients for whom she had provided medical exemptions for COVID-19 vaccines, mask mandates or testing. She was also asked to provide the records of patients for whom she had prescribed certain medications. Finally, she was asked to provide the supporting medical records for all of these patients. This information was requested by the CPSO investigators on a number of occasions starting on October 1^st, 2021. She declined to provide this documentation.

[23] Dr. Kilian’s failure to provide that information is the subject of a separate application in the Superior Court of Justice that we will touch on briefly below. In a letter dated October 11^th, 2021, she advised that she expected the CPSO to respect the fiduciary relationship she had with her patients, and that the CPSO should not be imposing arbitrary deadlines on providing patient information. Although Dr. Kilian promised to cooperate with the investigation, she did not provide her patient files.

[24] On October 15^th, 2021, the investigator provided the information that had been obtained to that date to the ICRC. The ICRC considered this information and determined that it was necessary to make an interim order pursuant to s. 25.4(1) of the Code (the “Restrictions Order”). That subsection provides:

The Inquiries, Complaints and Reports Committee may, subject to subsections (2) and (6), at any time following the receipt of a complaint or following the appointment of an investigator pursuant to subsection 75 (1) or (2), make an interim order directing the Registrar to suspend, or to impose terms, conditions or limitations on, a member’s certificate of registration if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury.

The Order was made without notice pursuant to s. 25.4(7), which states,

Despite subsection (6), an order may be made under subsection (1) without notice to the member, subject to the right of the member to make submissions while the suspension or the terms, conditions or limitations are in place, if the Committee is of the opinion, on reasonable and probable grounds, that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury and urgent intervention is needed.

[25] The Restrictions Order prohibited Dr. Kilian from providing any exemptions to patients for COVID vaccines, COVID testing or mask wearing. It also required her to notify patients of these restrictions. There were also monitoring and reporting requirements in the Order that required Dr. Kilian’s irrevocable consent allowing the CPSO to make enquiries of the Ontario Health Insurance Plan to monitor her compliance with this Order.

[26] After the Restrictions Order, the investigation continued. Dr. Kilian was asked again for the patient information described at paragraph 22 above. She did not provide the requested information. In addition, the CPSO discovered that further exemptions had been given by Dr. Kilian through the White Knight site. The most recent one was dated October 21^st, 2021, but more than one had been written since she had been directed not to provide exemptions for COVID-19 vaccines, testing and masks. On October 25^th, Dr. Kilian was provided an opportunity to explain these further exemptions and was directed to provide her response by October 26^th, 2021, as the matter was being placed back before the ICRC on October 27^th, 2021. The investigators followed up with a telephone call to Dr. Kilian’s husband, who had claimed to be acting as her representative. No response was received from either of them before the deadline had passed.

[27] The ICRC considered whether to order further measures pursuant to s. 25.4(1) of the Code on October 27^th, 2021. Based on the information before it, the ICRC ordered the suspension of Dr. Kilian’s certificate effective the end of the day on October 27^th, 2021 (the “Suspension Decision”).

[28] On October 25, 2021 the Compliance Case Manager had sent a letter to Dr. Kilian requesting further information about the White Knight exemptions that had been provided over Dr. Kilian’s signature. Dr. Kilian sent a reply addressed to the “Compliance Monitor”. This email is dated October 8, 2021 but states it is in response to “your communique dated October 25th, 2021” and is shown to have been sent on October 27, 2021. It was delivered after the deadline set by the CPSO had passed and was not before the ICRC when it determined to suspend the certificate of Dr. Kilian. The e-mail outlined that the exemptions had been provided automatically by the White Knight website, and that this was an administrative error. Her e-mail concluded with the following statement:

Despite the bone fide [sic] error, Dr. Kilian as a medical ethicist, is allowed to provide medical-legal exemptions. These medical-legal exemptions form part of Medical Ethics and do not fall within the jurisdiction of the College of Physicians and Surgeons of Ontario. The principles of Medical-Ethics is trite law and is guided by Common Law and guarded by the Supreme Court of Canada. Trite of which both Dr. Kilian and the CPSO is subject to.

[29] Dr. Killian never asked to make representations to the ICRC respecting the Suspension Decision, in accordance with s. 25.4(7) of the Code.

[30] Since Dr. Kilian refused to provide patient records sought by the investigators pursuant to s. 76 of the Code, an urgent application was brought to the Superior Court pursuant to s. 87 of the Code to enforce the orders that the ICRC had made. Section 87 provides:

The College may apply to the Superior Court of Justice for an order directing a person to comply with a provision of the health profession Act, this Code, the Regulated Health Professions Act, 1991, the regulations under those Acts or the by-laws made under clause 94 (1) (l.2), (l.3) (s), (t), (t.1), (t.2), (v), (w) or (y).

[31] The CPSO’s application was commenced on October 21^st, 2021, approximately a month before Dr. Kilian commenced her application for judicial review. On February 14, 2022, a motion was brought by a large number of individuals who were allegedly patients of Dr. Kilian, seeking to intervene. The parties could not agree as to the substantive issues to be raised on the s. 87 application. In the absence of understanding the issues, the motion judge found she could not determine whether the patients should be allowed to intervene. She found that “the parties must be given an opportunity to make submissions on what the issues are for determination by this court in the Application and what the subject matter of the Application is.” The motion was “reserved until the court has made a determination on the subject matter of the scope of the Application”. On March 21, 2022 the judge heard submissions from the parties, including the proposed intervenors as to the issues to be resolved. She noted:

Dr. Kilian's position is that a s. 87 order would be an abuse of process. The evidence creates a strong circumstantial case to support the conclusion that the present CPSO investigation is politically motivated. The uncontradicted evidence is that the Respondent exercised medical judgment based on science and research. The investigation is founded on assumptions, unreliable hearsay, allegations of not following policy and persecution for public statements contrary to CPSO's policies. The Proposed Intervenors support the position of Dr. Kilian.

[32] From this, the judge determined not to make any finding identifying those issues and made no finding as to whether the patients should be permitted to intervene. Rather she found that there was an issue as to the jurisdiction of the Superior Court to hear the issues being raised by Dr. Kilian. She asked for submissions as to whether she should stay the s. 87 application until the Divisional Court rendered its decision on this judicial review. She then ordered that stay. This being so, the question of whether the Patient Applicants have any interest that would support their standing to be parties in this judicial review remains for this Court to determine.

[33] We note that the CPSO sought leave to appeal that decision to the Divisional Court. Leave was granted earlier this year, and the appeal will be heard by a different panel of the Divisional Court. What will become plain as these reasons proceed is that, based on the material before us, we did not see any evidence that would support, much less confirm, the concerns raised by the submissions attributed to Dr. Kilian on March 21, 2022. However, the question of whether the Patient Applicants should be allowed to intervene in the s. 87 application or its appeal are for the Courts hearing those proceedings to determine.

The Issues Before the Divisional Court

[34] The issues to be determined by this Court are as follows:

1. Should the application for judicial review brought by the Patient Applicants be quashed for a lack of standing?

2. Should Dr. Kilian’s Application for Judicial Review be granted or denied? This second issue requires us to address three sub-issues:

(i) Should the Application in respect of the Investigation Decision be dismissed as premature?

(ii) Was the ICRC decision to impose interim restrictions on Dr. Kilian’s certificate reasonable?

(iii) Was the ICRC decision to suspend Dr. Kilian’s certificate reasonable?

3. Should a publication ban be granted in the form sought by the CPSO?

Issue #1- The Motion to Quash the Patients’ Application for Judicial Review

[35] The CPSO brought a motion to quash the Patients’ Application on the grounds that they lacked both private and public interest standing.

[36] In support of their claim to private interest standing, the Patients make two submissions. First, they claim that their medical information is private, protected and privileged and can only be disclosed to the CPSO with their consent. Second, they argue that their bodily autonomy is infringed if they cannot obtain a vaccine exemption.

[37] In considering the first of these submissions, it is important to note that the decisions before us in this application were made pursuant to ss. 75(1)(a) and 25.4 of the Code – the authorization to appoint investigators and the interim restrictions on Dr. Kilian’s certificate and subsequent suspension. The Patients’ main concerns are with the effect of the powers of investigators set out in s. 76, which provides:

(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.

(2) An investigator may, on the production of his or her appointment, enter at any reasonable time the place of practice of the member and may examine anything found there that is relevant to the investigation.

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

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

(4) This section applies despite any provision in any Act relating to the confidentiality of health records.

[38] The Court of Appeal upheld the constitutionality of the summons power under that section in Sazant v. The College of Physicians and Surgeons of Ontario, 2012 ONCA 727. It rejected the argument that the summons power was an unreasonable search and seizure contrary to s. 8 of the Canadian Charter of Rights and Freedoms. The Court stated (at para. 154):

… in my opinion, a proper interpretation of the relevant statutory provisions demonstrates that, when used by investigators appointed under s. 75(1)(a) of the Code, the s. 76(1) summons power is a reasonable power, properly constrained by the requirement that it be used solely to obtain information that is relevant to a duly authorized investigation into specified professional misconduct, and further restricted by the requirement that the information sought cannot be privileged.

[39] This quotation demonstrates that the policy concern that underlies this regulatory regime is the conduct of physicians, with the goal of ensuring that the advice they provide is appropriate medical advice that responds to medical concerns. In this case the CPSO’s concern is that Dr. Kilian acted beyond the medical sphere. She dealt with the COVID 19 pandemic from an ideological, political and broader social policy perspective and did so in a way that was inconsistent with the advice and direction of the CPSO.

[40] The Court in Sazant went on to discuss the scope of the expectation of privacy of doctors and patients with respect to the powers of investigators:

[174] Moreover, the fact that the s. 76(1) summons power may give an investigator access to documents and information that could only be obtained through a warrant in other contexts carries little weight. For the purposes of s. 8 of the Charter, it is the claimant’s reasonable expectation of privacy that defines the scope of the constitutional protection. In the context of a self-governing professional regulatory scheme where the regulator has reasonable and probable grounds to believe that a member has committed an act of professional misconduct, a member has a limited expectation of privacy in relation to an authorized investigation.

[175] Practising a profession such as medicine is not a right; rather, it is a privilege conferred by statute where a person possesses the necessary qualifications and undertakes to abide by the governing regulatory regime.

[181] As for members of the public, they are not the target of the investigation and an investigator has a broad duty of confidentiality in relation to the information they provide. This duty is set out in s. 36 of the Regulated Health Professions Act, 1991, and reproduced in Appendix B.

There is No Private Interest Standing

[41] Neither the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 nor the RHPA deal with the issue of standing to bring an application for judicial review of a decision of the ICRC approving the appointment of investigators or imposing interim restrictions on a member’s certificate. At common law, a party must have either private interest standing or public interest standing to bring an application for judicial review.

[42] For private interest standing, the applicant must show a direct, personal interest in the operation or application of a law (Finlay v. Canada (Minister of Finance) at para. 19). Factors that have been considered to determine whether there is such an interest are the statutory purpose, the subject matter of the proceeding, the person’s interest in the subject, and the effect that the decision might have on that interest (Canadian Elevator Industry Education Program v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80 at para. 42).

[43] Recently, the Ontario Court of Appeal summarized the principles from the case law in Carroll v. Toronto-Dominion Bank, 2021 ONCA 38 (at para. 33):

To have private interest standing, a person must have a personal and direct interest in the issue being litigated: Campisi v. Ontario (Attorney General), (2018), 144 O.R. (3d) 638, [2018] O.J. No. 5825, 2018 ONCA 869, at para. 4, leave to appeal to S.C.C. refused [2019] S.C.C.A. No. 52. They must themselves be “specifically affected by the issue”: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, [2012] 2 S.C.R. 524, [2012] S.C.J. No. 45, 2012 SCC 45, at para. 1. It is not enough that the person has a “sense of grievance” or will gain “the satisfaction of righting a wrong” or is “upholding a principle or winning a contest”: Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607, [1986] S.C.J. No. 73, at para. 21, citing Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980), 28 A.L.R. 257, 146 C.L.R. 493 (H.C.A.), at p. 270 A.L.R. As it is sometimes put, to have private interest standing, a person must have a “personal legal interest” in the outcome: Landau v. Ontario (Attorney General), [2013] O.J. No. 4443, 2013 ONSC 6152, 293 C.R.R. (2d) 257, at para. 16. Where the party initiating the litigation has a personal legal interest in the outcome, standing exists as of right: Landau, at para. 21. An appeal of a private interest standing decision is therefore evaluated using a correctness standard: Miner v. Kings (County), [2017] N.S.J. No. 20, 2017 NSCA 5, 60 M.P.L.R. (5th) 1, at para. 23.

[44] The Patient Applicants do not have a personal legal interest in the ICRC’s decisions to authorize an investigation of Dr. Kilian’s conduct or to place restrictions on her certificate. They have concerns that their medical records will be disclosed to the College investigators, but that does not justify a grant of private interest standing, given the purpose of the regulatory regime and the subject matter of the judicial review proceeding.

[45] Any finding of private interest standing of the Patients would be contrary to the statutory purpose. The College has the statutory responsibility to regulate physicians’ conduct in the public interest. An important way in which it does so is through investigation of possible professional misconduct or incompetence by its members, as well as by placing interim restrictions on a member’s practice where necessary to protect patients from harm.

[46] Consideration of patient files is obviously a key element of those investigations. Investigators from the CPSO and from the regulators of other health professions routinely obtain patient files and medical information in carrying out their duty to protect the public. The confidentiality of this information is protected by s. 36 of the RHPA. Subsection 76(4) of the Code specifically provides that the powers of an investigator under s. 76 apply despite any provisions in any Act relating to the confidentiality of health records. This follows from an understanding that the overall regime is directed to ensuring that physicians act in a manner consistent with their obligation to provide proper health care to their patients.

[47] The Code specifically grants patients standing but in very limited circumstances – that is, where a member seeks disclosure of patient documents in a discipline hearing (Code, s. 42.2(4)), or where a patient is a complainant seeking to review a decision of the ICRC respecting the complaint (s. 29(2)). We accept the CPSO’s argument that the grant of standing to the Patients here would disrupt professional regulation. It would entitle thousands of patients to standing whose charts are obtained each year, since there is nothing unique about these Patient Applicants.

[48] These Patients do not have a direct legal interest in the proceedings between the CPSO and Dr. Kilian just because their medical records may be examined in the course of an investigation. Investigations of members by a professional regulator have been held to involve some intrusion into physician-patient confidentiality (Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at paras. 23-24). Moreover, this Court has held that the CPSO can obtain all relevant evidence despite patient objections (College of Physicians and Surgeons of Ontario v. Kayilasanathan, 2019 ONSC 4350 (Div. Ct.), at para. 70).

[49] Nor do the Patients have a direct interest in the decisions under review, which involve the regulator and a member of the CPSO. The Patients’ main concern is the exercise of investigators’ powers under s. 76, an issue that does not arise in the review of the impugned ICRC decisions.

[50] With respect to restrictions on Dr. Kilian’s certificate and subsequent suspension, these decisions do not affect the Patients’ legal interests. The Patients are not in a unique position, as compared to any other patient of any other physician practising under restrictions.

[51] The second ground on which the claim for private interest standing is based, being the supposed loss of personal autonomy caused by an inability to obtain an exemption from vaccination, is similarly flawed. There is no forced vaccination in issue, despite the Patients’ suggestion that the restrictions on access to vaccine exemptions equate to a vaccine mandate. Denying someone an automatic exemption from the COVID-19 vaccine is not the same as forcing them to take the vaccine. Someone who chooses not to take the vaccine may not be able to do certain things in the wider community. However, the decision to take (or not take) the vaccine remains a personal choice.

[52] What is plain is that the restrictions on Dr. Kilian’s certificate were imposed to protect her patients from harm and, as such, were directed to and consistent with the primary goal of the regulatory regime to ensure proper medical care for all patients.

[53] We find that the Patient Applicants do not satisfy the test for private interest standing.

Public Interest Standing is Denied

[54] Even if a party does not have private standing, the Court has a discretion to grant public interest standing in matters of public interest. This would include the constitutionality of legislation. The Court is required to consider a number of factors in determining whether to grant public interest standing, including

• Whether there is a serious justiciable issue
• Whether the party bringing the proceeding has a real stake or a genuine interest in the outcome and
• Whether the proceeding is a reasonable and effective means to bring the issue before the courts.

(Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society¸ 2012 SCC 45, [2012] 2 S.C.R. 524 at para. 2).

[55] This is not a case where it is appropriate to grant public interest standing to the Patient Applicants. With respect to the review of the ICRC decisions imposing restrictions on Dr. Kilian’s certificate and then a suspension, the Patient Applicants do not have a real stake or genuine interest in the outcome.

[56] With respect to the Investigation Decision, the Patients fail to raise a serious justiciable issue, because they have no reasonable expectation of privacy against a medical regulator accessing patient records, and there is no interference with bodily autonomy under s. 7 of the Canadian Charter of Rights and Freedoms, since the CPSO is not “mandating inoculation.” Rather, the CPSO is investigating a member out of concern that she may have committed professional misconduct – in particular, by giving unjustified medical exemptions from the COVID-19 vaccination, thus stepping outside the obligation to provide proper medical care.

[57] Most importantly, there is no need for the proceeding brought by the Patient Applicants. The review of those decisions is being pursued by Dr. Kilian herself, the party directly affected by each of the decisions. In the absence of any interest that would justify standing, there is nothing the Patients can add.

[58] For these reasons, we refuse to grant public interest standing. Given the lack of private and public interest standing, the CPSO motion is granted, and the application for judicial review of the Patient Applicants is quashed.

Issue #2 – Dr. Kilian’s Application for Judicial Review

The Standard of Review

[59] The standard of review with respect to the three ICRC decisions is reasonableness. In each decision, the ICRC applied the Code having regard to the information before it in the record. There is no extricable issue of constitutional law that would give rise to review on the standard of correctness.

Judicial Review of the Investigation Decision is Premature

[60] Judicial review is a discretionary remedy, and the courts have frequently refused to exercise the power of judicial review on the ground of prematurity. Courts are reluctant to review decisions made in the course of an ongoing administrative proceeding because of concerns for administrative efficiency, respect for the administrative process, avoiding fragmentation of the administrative process, and judicial economy.

[61] The CPSO submits that the review of the Investigation Decision is premature, and there are no exceptional grounds for review at this time. With respect to the Restriction and Suspension Decisions, the CPSO does not argue prematurity, given the impact of the restrictions on Dr. Kilian’s ability to carry on her livelihood.

[62] Dr. Kilian argues that the CPSO is precluded from raising the issue of prematurity because to do so is an abuse of process. What she fails to appreciate is that the Court, on its own, can and does raise prematurity as an issue in applications for judicial review.

[63] We agree with the CPSO that the review of the Investigation Decision is premature, and there are no exceptional grounds that would lead us to hear this aspect of the application on the merits.

[64] The Divisional Court recently reiterated the governing principles in Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2022 ONSC 1220 at paras. 9-11. See as well, Lala v. College of Physiotherapists (Div. Ct.) at para. 2; Gore v. College of Physicians and Surgeons of Ontario (2008), 92 O.R. (3d) 195 at paras. 67-68; and Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 at para. 59. In each of these cases, the Court refused to hear the issue raised respecting the appointment of investigators under the Code.

[65] Dr. Killian argues that there are exceptional circumstances that warrant a hearing on the merits. In particular, she argues that the judicial review is intertwined with her s. 87 application before the Superior Court.

[66] We disagree. This is not a case where an administrative proceeding is fatally flawed, or the Court might intervene to prevent disclosure of privileged information. There are no exceptional grounds here that warrant a review of the Investigation Decision at this time. The issues perceived by the motion judge who considered the possible intervention in the application under s. 87 of the Code as possibly being of concern (the idea that the actions of the CPSO were politically motivated, and that the actions of Dr. Kilian in the public statements she made and the exemptions issued over her name and signature were based on research and science) simply do not arise in this case.

[67] Accordingly, we dismiss the application for judicial review, as it pertains to the Investigation Decision, as premature.

The Restrictions Decision was Reasonable

[68] Subsection 25.4(1) of the Code permits the ICRC to make an interim order directing the Registrar of the CPSO to suspend or to place terms, conditions or limitations on a physician’s certificate of registration “if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury.” Subsection 25.4(7) of the Code permits the ICRC to make interim orders on an ex parte basis if there is urgency.

[69] The determinations of the ICRC to impose interim terms or an interim suspension must be made on the basis of evidence (Fingerote v. College of Physicians and Surgeons of Ontario, 2018 ONSC 5131 (Div. Ct.) at paras. 6-7). In making an interim decision, the task for the ICRC is to determine whether there is evidence of probable harm to patients (Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882 (Div. Ct.) at para. 48). On this application, our task is to determine whether the decisions of the ICRC are reasonable (Kadri at para. 32).

[70] The Restrictions Decision of the ICRC outlines, in detail, the evidence that had been collected to that point as a result of the investigation. The decision also set out the policies of the MHLTC and the CPSO in respect of vaccines and exemptions. The ICRC provided a detailed outline of the conclusions supporting their decision to impose restrictions on Dr. Kilian’s certificate. In summary, the ICRC concluded as follows:

• The Applicant’s provision of vaccine exemptions will expose or is likely to expose her patients to harm or injury. This conclusion was reached because patients would rely on these exemptions to gain access to higher risk settings without the protection of vaccines. The same conclusion was reached in respect of exemptions for mask use and COVID-19 testing.
• The Applicant was providing exemptions to COVID-19 testing for people who were not her actual patients.
• The Applicant was providing those exemptions for what appeared to be, in the words of the ICRC, “ideological” reasons. The ICRC was clearly concerned that the Applicant was providing these exemptions because of her opposition to the administration of the COVID-19 vaccine and not because of any specific medical condition that individual patients may have had to justify an exemption.
• The Applicant’s conduct in providing these exemptions was contrary to both Regulation 645/21 made under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 and the directions provided by the CPSO.
• The forms on which the Applicant was providing the exemptions from COVID-19 vaccines also had spaces for exemptions from wearing a mask, which suggested that she would be willing to provide exemptions from other COVID-19 related restrictions.

[71] Based on all these considerations, the ICRC decided that restrictions must be placed on Dr. Kilian’s certificate. She was notified of the restrictions on her certificate on the same day and was provided with a copy of the reasons on October 18^th, 2021.

[72] The restrictions that were placed on Dr. Kilian were similar in nature to the ones that this Court reviewed in Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654. In that case, as in the case before us, the doctor in question was prepared to write vaccine exemptions for more than one patient without complying with either the MHLTC or the CPSO directives. As the Court noted (at para 29):

…. In this case, there is more than enough to evoke concern for the safety of patients. This is not a circumstance where the court is being asked to speculate based ‘in essence on one incident’ or where the court is being asked to search for the existence of the evidence. The history demonstrates the willingness of Celeste Jean Thirlwell to put at risk, not just the health of these patients, but all members of the general public who may, without knowing of the exemption, come in contact with those patients.

[73] In this case, the Applicant has demonstrated the same willingness to write vaccine exemptions as Dr. Thirlwell had demonstrated. When the ICRC considered her case on October 15^th, 2021, it had evidence before it that demonstrated both her rejection of the medical efficacy of vaccines and her willingness to write exemptions for people who had no medical condition justifying an exemption. The ICRC also considered that this was the least restrictive order that would provide protection for patients. Based on this, the ICRC’s decision is reasonable.

[74] This brings us to the question of urgency. It was reasonable for the ICRC to have acted on an ex parte basis because not only were patients being put at risk, but the risks that those patients would face were immediate, to say nothing of the risk to others.

[75] The restrictions that were placed on the Applicant on October 15^th, 2021 were both reasonable and supported by the evidence that the ICRC had before it. There is no basis for judicial intervention.

The Suspension Decision was Reasonable

[76] The decision to suspend Dr. Kilian’s certificate on an interim basis is also reasonable for the reasons set out below.

[77] After Dr. Kilian was provided with a copy of the reasons for the Restriction Decision, numerous efforts were made by the CPSO’s investigators to contact her. She did not provide the CPSO with the information that it was seeking. As discussed at paragraph 78 below, COVID-19 exemptions continued to be issued over her signature. As a result, the ICRC considered Dr. Kilian’s case again on October 27^th, 2021. At that time, the ICRC had all of the information that was before it on October 15^th, 2021 as well as the information that had come to light since October 15^th, 2021.

[78] The ICRC decided to suspend Dr. Kilian’s certificate on October 27^th, 2021. The ICRC’s reasons can be summarized as follows:

• The ICRC had the same concerns and had reached the same conclusions as they did in their decision of October 15^th, 2021. In particular, the ICRC concluded that the provision of exemptions continued to be an immediate threat to patient safety.
• In addition, the ICRC concluded that the Applicant had provided the October 20^th and 21^st exemptions from White Knight Medical after she had been served with the October 15^th, 2021 Order of the ICRC. The Applicant was given an opportunity to address the October 20^th and 21^st, 2021 exemptions provided over her signature and had not provided a response by the time the ICRC made its decision. Based on these facts, the ICRC concluded that the Applicant was deliberately breaching the interim Order of the ICRC.
• The Applicant had failed to cooperate with the CPSO’s investigation by refusing to turn over patient records. Although this was not a breach of the ICRC’s October 15^th, 2021 Order, the failure to cooperate raised concerns about the Applicant’s governability.

[79] Based on the foregoing, the ICRC determined that they had grave concerns about Dr. Kilian’s governability, as well as the “harm that her practice of giving exemptions exposes or is likely to expose patients.” As a result, the ICRC determined that the only order that would protect patients was an interim suspension of Dr. Kilian’s certificate.

[80] In terms of urgency, the ICRC concluded that the granting of non-medical COVID-19 vaccine exemptions in the middle of the Delta wave of COVID-19 and the province-wide requirements to provide vaccination status in many circumstances put patients at immediate risk. This immediacy was the justification for the ICRC’s decision to proceed ex parte.

[81] Counsel for Dr. Kilian argues that the decision to suspend her certificate was improper for the following reasons:

• There was no evidence of harm that justified proceeding ex parte pursuant to s. 25.4(6) of the Code in this case.
• Had there been notice and an opportunity to participate for the Applicant, “the speculation of the complaints and the allegation of violation of practice restrictions would have been rebutted.”
• The provisions of s. 25.4(7) of the Code are unconstitutional if they, as a matter of law, permit the suspension of the Applicant.

[82] None of these arguments have any merit. First, as we have noted at paragraph 78, above, there was evidence of harm both to the patients and to others who would be exposed to those persons who had been given vaccine exemptions by the Applicant. The harms are the same as those described in Thirlwell, supra.

[83] Further, on the evidence that the ICRC had before it, the Applicant had continued to provide vaccine exemptions to people in spite of restrictions on her licence prohibiting her from doing so. Specifically, the evidence before the ICRC established that exemptions from COVID-19 vaccinations continued to be provided by White Knight Medical under the Applicant’s name even after she was notified of the restrictions placed on her medical licence. That fact alone was sufficient to raise concerns of both patient harm and governability as set out in the ICRC’s decision.

[84] This brings us to the Applicant’s argument that, if the ICRC had all of the evidence before it, the need for a suspension would have been rebutted. Specifically, the Applicant states that these exemptions were given out automatically by the White Knight Medical website and that she was not aware that they were being given out. This argument fails for two reasons. First, this information was not before the ICRC and is not properly before us on this issue. The decision of the ICRC is normally reviewed on the record that is before the ICRC and not on the basis of other information that was not before the ICRC. See Kadri, supra at para. 21 and the cases cited therein.

[85] Second, there is no evidence that the Applicant asked the ICRC to reconsider its decision, as she was entitled to do.

[86] Finally, there is no merit to the argument that the restrictions on Dr. Kilian’s practice or the suspension violated her constitutional right to freedom of expression. These measures were put in place to protect patient safety and were a reasonable constraint on her practice of medicine.

[87] We should also briefly touch on Dr. Killian’s position that s. 25.4(7) of the Code is unconstitutional. Dr. Killian advances two argument, neither of which have any merit.

[88] First, she argues that, if the Court finds that suspension was appropriate as a matter of law, then the law is arbitrary and therefore unconstitutional. This is a circular argument. The Court found that the suspension was appropriate because it was a reasonable exercise of the ICRC’s powers. Once the Court has determined that a power was exercised reasonably then it follows that the decision was not arbitrary.

[89] Second, Dr. Kilian argues that the provision is a breach of s. 7 of the Charter. There are two responses to this argument. First, the fact that the ICRC has the power to suspend someone from practice on an interim basis does not create a violation of s. 7 of the Charter. Second, as noted in Sazant, supra, at para. 175, practising medicine is a privilege and not a right. Thus, there is no basis to find s. 7 of the Charter was violated in this case.

[90] Accordingly, as the Suspension Decision was reasonable, there is no basis for judicial intervention. The application for judicial review is dismissed in its entirety.

Issue #3- The Publication Ban

[91] The CPSO brought a motion seeking a publication ban over information in the record of proceedings as follows:

• An e-mail sent on September 17^th 2021 enclosing a vaccine exemption form signed by the by Dr. Kilian;
• Personal identifying information about other doctors in the Applicant’s personnel file from GBHS; and
• E-mails on October 22^nd, 2021 enclosing two “medical-legal” exemptions signed by Dr. Kilian.

[92] CPSO notified the media that this publication ban would be sought, and no one from the media attended the hearing. When it prepared its factum, the CPSO thought that this motion was on consent. However, the Applicant opposed the motion on the basis that the ban was not necessary. Applicant’s counsel also pointed out that some of the information that the CPSO seeks to redact has been part of the public record for some time.

[93] In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada reconfirmed the importance of the open courts principle. A party seeking an exception to the open courts principle must demonstrate three factors. Those factors, as set out at para. 38 of Sherman, are:

• Court openness poses a serious risk to an important public interest;
• The order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
• As a matter of proportionality, the benefits of the order outweigh its negative effects.

[94] In this case, the starting point is an understanding of the extent of the publication ban. In essence, the CPSO seeks to prevent the publication of the names and other identifying information of people who have made complaints to the CPSO about the Applicant’s conduct, as well as the names and other identifying information of other physicians who worked with her. These are not public officials or regulators. 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 (College of Physicians and Surgeons of Ontario v. O’Connor, 2022 ONSC 195 at paras. 58-60). 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 (Turner v. Death Investigation Council, 2021 ONSC 6625).

[95] However, as the Court noted in Turner, the fact that the interest is significant is not sufficient. It must also be shown that court openness poses a serious risk to that interest. In this case, we are satisfied that it does. Part the Record filed by the CPSO in this case is made up of numerous communications from individuals who are extremely unhappy with the CPSO’s decision to suspend the Applicant. It is not a great leap for the Court to conclude that these individuals might express their unhappiness with the people who made the complaints by sending them harassing emails or other electronic communications. In other words, there is a risk both that the current complainants will be harassed for complaining and that there could be a chilling effect on other potential individuals who provide information to the CPSO. The first branch of the Sherman test is satisfied.

[96] The second and third branches are also easily satisfied in this case. If the information that the CPSO seeks to keep confidential is published, then the risks in the previous paragraph come to pass. There is no alternative to publishing or not publishing the information. The CPSO has not sought to keep the entirety of these documents confidential. Instead, it only seeks to keep the identifying portions of the documents confidential. There are no reasonably alternative measures that can be taken in this case. Therefore, the approach urged upon us by the CPSO is proportionate.

[97] As part of his argument, counsel for the Applicant stated that the request for a publication ban was akin to the concept of a confidential informant in criminal law. This submission misunderstands the nature of the publication ban sought by the CPSO. In criminal law, it has long been accepted that the identity of confidential informants who assist the police with their investigations should be kept confidential from everyone, including the accused. This principle only gives way when the innocence of the accused is at stake if the identity is not disclosed (R. v. Hunter (1987), 59 O.R. (2d) 364).

[98] This case is different. The publication ban sought by the CPSO does not prevent Dr. Kilian from receiving all the information that the CPSO has about the various complaints it has received, including the names of the people who have made the complaints. The publication ban simply prevents the publication of the names or other identifying information of the people who have complained to the CPSO about Dr. Kilian’s conduct. This distinction should have been clear from the motion record that the CPSO filed. Part of the relief that the CPSO requests is that, once an undertaking is signed by counsel for the Applicant, an unredacted copy of the materials will be provided to counsel. The Applicant’s arguments about confidential informants do not assist her in the publication ban motion either.

[99] For these reasons, the motion for the publication ban in the form sought by the College was granted at the conclusion of the hearing on September 28^th, 2022. It was effective that day.

[100] As we indicated at the hearing, any issue over redacting information that was inadvertently included in the CaseLines file was left to the parties to resolve. If they have not been able to resolve that issue, they should schedule a case conference with a single judge of the Divisional Court to assist in resolving the issue, if necessary.

Conclusion

[101] For the foregoing reasons, the CPSO’s motion to quash the Patients’ application for judicial review is granted and the motion for a publication ban is granted. Dr. Kilian’s application for judicial review is dismissed.

[102] If the parties cannot agree on costs, the CPSO shall make brief written submissions on costs, not to exceed three pages, by posting them on Caselines within 10 days of the release of these reasons. The Patient Applicants and Dr. Kilian shall each have 10 days to make brief responding submissions, not to exceed three pages.

Swinton J.

Lederer J.

LeMay J.

Date of Release: November 7, 2022