Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20230424 DOCKET: M54207 (COA-23-CV-0342) Harvison Young J.A. (Motion Judge)

BETWEEN

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

and

Rochagné Kilian Respondent (Respondent/Responding Party)

Counsel: Amina Sherazee, for the moving parties/proposed intervenors/appellants Peter Wardle and Evan Rankin, for the responding party/applicant/respondent Paul Slansky, for the responding party/respondent/respondent

Heard: April 20, 2023

Endorsement

[1] This is a motion for a stay pending appeal of the dismissal of the appellant’s application for leave to intervene in the underlying application of the College of Physicians and Surgeons of Ontario (“College”) for an order requiring the cooperation of the respondent Dr. Kilian under s. 87 of the Health Professions Procedural Code (“Code”). The underlying investigation of Dr. Kilian arose in relation to medical exemptions she provided for COVID-19 vaccines. The complainants do not include the patients.

[2] This motion to stay was the subject of a lengthy and very full hearing lasting some three hours. The following day, I advised the parties that the motion was dismissed, with reasons to follow. These are those reasons.

[3] The immediate urgency of this determination arises from the fact that the application is scheduled to be heard in Superior Court on April 25, 2023. While the parties do not agree as to the length of time that the hearing of the application would be delayed in the event that it does not go ahead as scheduled, I am satisfied that it would be delayed once again by many months, most likely into the fall of 2024.

[4] The applicants are allegedly patients of Dr. Kilian. There are approximately forty of them. Their identities to date are entirely undisclosed. They assert that without permitting them to intervene, their s. 8 Charter rights risk being violated because a s. 87 order will of necessity require the disclosure to the College of their medical information, with respect to which they have a legitimate expectation of privacy.

[5] The College has no objection to anonymizing the names of the proposed intervenor patients (whose identities have not been revealed in the course of the application and related litigation to date). It does not agree, however, that their identities should not be divulged to the College because that could impede its ability to pursue an investigation if, following the resolution of the s. 87 application, such an investigation results. For example, the College would not be able to summon the patients as witnesses. Obviously, the College cannot interview people whose identity is undisclosed.

[6] The history of this matter is long and tortured. This appeal is one of the many proceedings that have arisen out of the s. 87 notice and Dr. Kilian’s refusal to provide the College with the requested patient files. [^1] A great deal of the oral argument on this appeal focused on the details of the motion judge’s reasons for dismissing the motion to intervene. While I do not necessarily agree with all aspects of his reasons, I am satisfied that his decision to dismiss the motion to intervene was correct and does not give rise to a serious issue to be tried.

[7] It is common ground that the test from RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 applies. The test requires the court to consider three factors: (i) whether there is a serious issue to be tried; (ii) whether the moving party will suffer irreparable harm; and (iii) an assessment of the balance of convenience between the parties.

[8] While strength in one part of the test can make up for a weakness in another, a stay will not be granted where a prong of the test is not met: Haudenosaunee Development Institute v. Metrolinx, 2023 ONCA 122, at para. 6.

There is no serious issue to be tried

[9] The applicants argue that this case raises a serious issue and that their rights to privacy of their medical information, whether held by Dr. Kilian in her files or in their possession, is engaged. For this reason, they should be permitted to intervene in the application. The applicants argue that without their presence as intervenors, there will have been no opportunity for them to contest the release of their private medical information to the College.

[10] They submit that the present case is novel and distinguishable from the authorities in this area because the complaints that triggered the investigation of Dr. Kilian were not made by patients or pursuant to a doctor’s duty to report. They argue that in this context, the patients’ reasonable expectation of privacy is not subject to the same limits. The respondent College submits that the issues raised are not novel but are based on fundamental principles of constitutional and administrative law that have been settled for some time.

[11] The essence of the claim that there is a serious issue with respect to the appeal of the refusal of intervenor status rests on characterization of the patients’ privacy interests and whether they are placed at risk by the s. 87 proceeding against Dr. Kilian.

[12] Section 8 of the Charter provides as follows:

Everyone has the right to be secure against unreasonable search or seizure. [Emphasis added.]

[13] It is trite law that s. 8 protects against only unreasonable search and seizure. The applicants and Dr. Kilian argue that the absence of individual pre‑authorization of any individual breach of a privacy interest renders the intrusion unreasonable, relying heavily on criminal case law. Without the right to intervene, they submit, there will be no way of challenging the reasonableness of the search.

[14] I disagree. This is not the law as it applies in this situation.

[15] The applicants’ position rests on the premise that the patients of a physician have a reasonable expectation of privacy in health records which can be asserted as against a regulator seeking access to those records for purposes of investigating the physician. If this were true, no health regulator could ever access patient records for purposes of an investigation without patient notification and consent. It would stymie regulation of health professionals.

[16] In such a regulatory context, the protection against unreasonable search and seizure lies not in the requirement for individual warrant or pre-authorization, but rather within the context of the regulatory scheme which is there with the primary purpose of the protection of the public. The framework here includes strong confidentiality protections for individual medical information contained in patient files disclosed to the College in the course of any proceedings. Section 36 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 sets out the broad duty of confidentiality of investigators in relation to the information that comes within their knowledge in the course of their duties.

[17] The applicants’ position fails to take account of the long-established law that a person's reasonable expectation of privacy varies depending on the context. As Dickson J. explained in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159, the freedom to be protected from “unreasonable” search and seizure enshrined in s. 8 of the Charter can be expressed as an entitlement to a “reasonable” expectation of privacy. Depending on the context, reasonable expectations of privacy vary: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, at paras. 106, 118, leave to appeal refused, [2012] S.C.C.A. No. 549.

[18] In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. wrote a “less strenuous and more flexible standard of reasonableness” applies to regulatory searches, and one’s reasonable expectation of privacy has to be considered within the investigative scope of the Act: at pp. 506, 516. As he observed, at p. 507:

It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. In a society in which the need for effective regulation of certain spheres of private activity is recognized and acted upon, state inspection of premises and documents is a routine and expected feature of participation in such activity.

[19] In the regulated professional environment context, this subjects the patients’ expectation of privacy in their medical records to “the higher need to maintain appropriate standards in the profession”: Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at para. 24, citing College of Physicians and Surgeons of British Columbia v. Bishop (1989), 56 D.L.R. (4th) 164 (S.C.), at p. 171.

[20] The fact that the patients did not initiate the complaints against Dr. Kilian does not change that reality or render the intrusion unreasonable, as they argue. As Morgan J. observed in College of Physicians and Surgeons v. SJO, 2020 ONSC 1047, at para. 46, the authority to override concerns about patient confidentiality is broad. For example, “where the College is engaged in an investigation prompted by a patient complaint, it is entitled to continue that investigation even if the patient subsequently wishes to withdraw the complaint”: SJO, at para. 46, citing Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 46. While I am not bound by SJO, I believe that it is correct.

[21] There is no policy reason for distinguishing these cases. The concern for the protection of the public remains the same regardless of the source of the information initiating the complaint.

[22] The fact that the applicants are not the target of any investigation by the College is also relevant to the assessment of the reasonableness of any intrusion into their privacy interests. At this point, the only issue in the application is whether Dr. Kilian can be required to cooperate by providing patient files. The applicants may be in a position to seek declaratory or injunctive relief if and when they or any of them are summoned. That would be the more appropriate procedural framework within which to assert their interests, whether it would be ultimately successful or not.

[23] This brings me to the judicial review decision of the Divisional Court in this matter. The moving parties argue that Chalmers J. erred by “grafting” the ruling of the Divisional Court judicial review application, which dealt with s. 75 of the Code, onto the s. 87 application. They submit that this raises a serious issue.

[24] I disagree.

[25] The Divisional Court found that the 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.” It emphasized that investigations of members by a professional regulator can involve some intrusion into physician-patient confidentiality and that the College can obtain all relevant evidence despite patient objections: Gore, at paras 23-24, College of Physicians and Surgeons of Ontario v. Kayilasanathan, 2019 ONSC 4350 (Div. Ct.), at para. 70. While those comments were made in the context of a judicial review of a s. 75 investigation, the point remains. It was relevant to the determination of the motion for leave to intervene in the s. 87 application.

[26] In short, I agree with the respondent College that the s. 8 Charter rights of the applicants will not be contravened by the denial of intervenor status. The applicants’ claim rests on the faulty premise that, as far as the s. 87 application is concerned, their privacy interests are at risk and that they therefore have the right to intervene to ensure that any intrusions are pre-authorized. I do not believe that this raises a serious issue on appeal. This is sufficient to dispose of the motion for a stay of proceedings: Haudenosaunee Development Institute, at paras 5-7.

[27] The motion is dismissed. If the parties are unable to agree as to costs, they may file brief submissions of no more than 2 pages within 10 days of the release of these reasons.

“A. Harvison Young J.A.”

[^1]: After Dr. Kilian refused to produce a series of patient files for review, the College brought a s. 87 application to compel the production of the requested records. An anonymous group of Dr. Kilian’s patients, the moving parties on this motion, sought to be added as parties or granted intervenor status in the application. Meanwhile, Dr. Kilian and the patients sought judicial review of the College’s decision to initiate an investigation under s. 75 of the Code. Pollak J. stayed the s. 87 application and the intervenors motion pending the judicial review hearing. The Divisional Court (Swinton, Lederer, LeMay JJ.) quashed the patients’ judicial review application for lack of standing and dismissed Dr. Kilian’s judicial review application as premature: Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931. The College also successfully appealed the stay entered by Pollak J. to the Divisional Court (A.C.J. S.C. McWatt, Sachs and LeMay JJ.): Kilian v. CPSO, 2023 ONSC 5. The patients had sought but been denied leave to intervene in that appeal by Leiper J. As a result of the conclusion of the Divisional Court proceedings, the s. 87 proceedings resumed. On March 10, 2023, Chalmers J. denied the patients’ motion for leave to intervene in the s. 87 application. They have now appealed from that decision. Leave to appeal from the two Divisional Court decisions is also pending before this court. The s. 87 application is set to be heard on April 25, 2023.