CITATION: Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738

DIVISIONAL COURT FILE NO.: DC-22-329-JR

DATE: 20221012

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

McWatt A.C.J., Molloy, and Chalmers J.J.

BETWEEN:

DR. CRYSTAL LUCHKIW

Applicant

– and –

COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO

Respondent

M. Alexander, for the Applicant

P. Maguire and E. Rankin, for the Respondent

HEARD: August 16, 2022

chalmers j.

reasons for decision

OVERVIEW

[1] Dr. Crystal Luchkiw brings this application for judicial review of the decision made by the Inquiries, Complaints and Reports of the Committee (ICRC) of the College of Physicians and Surgeons of Ontario (College), suspending her certificate of registration (Suspension Order), effective March 17, 2022.

[2] Dr. Luchkiw is the subject of two College investigations. The investigations were commenced after the College received information that Dr. Luchkiw had issued a vaccine exemption to a high-risk immunocompromised patient, was deficient with her infection prevention and control practices (IPAC) and had disseminated misinformation regarding COVID-19. The College appointed investigators to inspect Dr. Luchkiw’s practice. Dr. Luchkiw did not co-operate with the investigators and took the position that the College lacked the authority to investigate the issue of vaccine exemptions. She did not provide the information requested by the investigators. The College determined that Dr. Luchkiw’s conduct exposed, or was likely to expose, patients to harm and/or injury. The College determined that no measure short of a suspension would protect patients.

[3] For the reasons that follow, I am satisfied that the decision of the ICRC to suspend Dr. Luchkiw’s certificate of registration was reasonable. I am also satisfied that there was no procedural unfairness. The application for judicial review is dismissed.

BACKGROUND FACTS

[4] Dr. Crystal Luchkiw has been practicing family medicine in the Barrie, Ontario region since 2014. She held privileges at the Royal Victoria Regional Health Centre (Hospital) until she resigned from that position on October 22, 2021.

The Statutory Framework

[5] The College’s power to regulate the medical profession is set out in the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the Act) and the Health Professional Procedural Code (the Code). The Registrar of the College may commence an investigation with an appointment of investigators under s. 75(1)(a) of the Code if the Registrar believes on reasonable and probable grounds that a member of the profession has committed an act of professional misconduct or is incompetent. Pursuant to s. 76 (3.1) of the Code, the physician under investigation is under a duty to fully co-operate with the investigator.

[6] If the ICRC forms the opinion that the conduct of the physician may expose patients to harm, the ICRC may make an interim order pursuant to s. 25.4 of the Code directing the Registrar to suspend the member or impose terms, conditions or limitations on the member’s certificate of registration. The interim order remains in place until varied by the ICRC or after the matter is resolved by the ICRC or the Discipline Tribunal.

College Statement on Medical Exemptions for COVID-19 Vaccines

[7] On September 22, 2021, the Registrar of the College posted a column in the virtual magazine provided to members of the profession in which she cited a link to the frequently asked questions page on the College’s website. On the issue of medical exemptions for COVID-19 vaccinations, there is reference to the views of the National Advisory Committee on Immunization (NACI) and recommendations of the Ontario Ministry of Health, that a vaccine exemption should be provided in only two situations, where the patient has had a severe allergic reaction and where a patient has a diagnosed episode of myocarditis or pericarditis after receiving an mRNA vaccine.

College Investigation CAS-368314-T8Z9J6 (COVID Practices Investigation)

[8] On September 10, 2021, a representative of the Hospital wrote to Dr. Luchkiw explaining the Hospital’s vaccination policy. She was advised that a physician could choose not to be vaccinated, but if not vaccinated there would be impacts to their hospital privileges.

[9] On October 4, 2021, Dr. Luchkiw e-mailed the Hospital’s representative and provided a list of 36 questions that she required answered before agreeing to be vaccinated. In the e-mail she stated that even if the questions were satisfactorily answered she would only choose to be vaccinated if she received a written guarantee from the Hospital that she would suffer no harm and another physician took full legal and financial responsibility for any injuries occurring to her. A meeting was arranged between Dr. Luchkiw and the representative of the Hospital to discuss the matter further.

[10] On October 7, 2021, following Dr. Luchkiw’s meeting with the Hospital representative, the representative sent a letter to Dr. Luchkiw reiterating the Hospital’s vaccination policy. In the letter, it was noted that during the meeting they had discussed a podcast in which Dr. Luchkiw provided details of the care of a patient with sufficient detail to identify the patient. It was also noted that Dr. Luchkiw had spread disinformation about COVID-19. She was asked to resign and advised that if she refused to do so, her hospital privileges would be revoked. Her response was requested by October 14, 2021.

[11] On October 14, 2021, Dr. Luchkiw e-mailed the Hospital representative and advised that she was a participant in research study. She stated that she could not be vaccinated because she was in the unvaccinated arm of the study. She attached a letter from Kinexus Bioinformatics Corporation which confirmed her participation in the clinical study. The Kinexus study is not a trial authorized by Health Canada. Dr. Luchkiw stated that she intended to continue her credentialled status at the Hospital.

[12] On October 21, 2021, a representative of the Hospital e-mailed Dr. Luchkiw and stated that a patient of the Hospital advised the care team that he did not wish to be vaccinated and that he had a letter from a physician exempting him. The patient was at high risk for complications from COVID-19 due to his immunocompromised status. The patient did not show the staff the letter and did not provide the name of the physician who wrote the vaccination exemption. Dr. Luchkiw was the patient’s family doctor. The Hospital representative asked Dr. Luchkiw to meet to discuss the matter further. The next day, Dr. Luchkiw resigned her privileges at the Hospital.

[13] On November 18, 2021, a representative of the Hospital wrote to the College. He advised that Dr. Luchkiw had resigned her privileges at the Hospital. The representative advised that at the time she resigned, she was being investigated with respect to an interview she gave which contained inaccurate information about the COVID -19 pandemic. In the interview, an individual patient was discussed in sufficient detail that the patient was identifiable. The Hospital representative also advised that an immunocompromised patient had obtained a vaccination exemption which was suspected had been provided by Dr. Luchkiw.

[14] On November 25, 2021, a College investigator, Janine Pavamani contacted the Hospital representative to obtain further information about the vaccine exemption issue. She was advised that the immunocompromised patient had reported to a gastroenterologist that they had received a vaccine exemption but did not want to show the document because they “did not want to get their physician in trouble.” Dr. Luchkiw was the immunocompromised patient’s family physician.

[15] On December 6, 2021, the Registrar of the College appointed investigators pursuant to s.75(1)(a) of the Code to investigate whether Dr. Luchkiw, “in her family medicine practice, and also in her conduct, including in relation to her completion of medical exemptions for COVID-19 vaccines, has engaged in professional misconduct or is incompetent” (the COVID Practices Investigation).

[16] On December 9, 2021, Ms. Pavamani advised Dr. Luchkiw that investigators had been appointed. Dr. Luchkiw was asked for a list of all patients for whom she had provided various types of treatments and medical exemptions related to COVID-19. Ms. Pavamani also asked for the complete medical records for each patient listed. The records were to be provided by December 23, 2021. Dr. Luchkiw did not provide the requested information. On December 23, 2021, Dr. Luchkiw’s counsel, Michael Alexander, suggested that the production of patient files and information be postponed until after the College’s right to the files had been determined in a separate proceeding.

[17] On January 10, 2022, Ms. Pavamani advised Mr. Alexander that Dr. Luchkiw is required to co-operate with the investigation and that the documents were to be provided immediately. Dr. Luchkiw did not provide the requested information. On February 2, 2022, Ms. Pavamani wrote to Mr. Alexander and asked whether Dr. Luchkiw had provided the vaccine exemption to the immunocompromised patient. No response was received.

College Investigation CAS-357869-X7M9S1 (IPAC and Communication Investigation)

[18] In the summer of 2021, one of Dr. Luchkiw’s patients made a complaint to the College which alleged that she failed to observe proper COVID-19 protocols. Reference was also made to Dr. Luchkiw discouraging the use of COVID-19 vaccines on her Facebook posts. The matter went before the Family Practice Panel of the ICRC. On November 4, 2021, the panel held that there was insufficient evidence at that time to support the complaint.

[19] A similar concern had been raised in December 2020. A former patient alleged that Dr. Luchkiw failed to implement COVID-19 measures in her office including screening and social distancing. It was also alleged that Dr. Luchkiw discouraged vaccination for COVID-19. Dr. Luchkiw denied the allegations and stated that she was in compliance with all infection control precautions. At its meeting on September 9, 2021, the ICRC advised Dr. Luchkiw that it was the expectation of the ICRC that physicians will follow Public Health Guidelines. The College took no further action at that time.

[20] On September 22, 2021, the South Muskoka District Health Unit reported to the College that it had received concerns about Dr. Luchkiw’s IPAC practices and requested the College to investigate. The Health Unit advised that Dr. Luchkiw’s clinic was open to the waiting room without a barrier and that the receptionist was not masked.

[21] On September 22, 2021, the College also received an e-mail from a source linking an interview in which Dr. Luchkiw discussed COVID-19 with Michael Thiessen of the Liberty Coalition of Canada. It was alleged that Dr. Luchkiw was spreading false information about COVID-19, including that it was a government hoax. The video had been sent to the source’s family member who was now refusing to take their second vaccine dose. The College also received an undated letter from an organization which raised concerns about the Thiessen interview. The letter indicated that Dr. Luchkiw may have breached patient confidentiality by discussing a patient encounter in sufficient detail that the patient could be identified.

[22] On November 10, 2021, the Registrar appointed investigators pursuant to s.75(1)(a) of the Code to investigate Dr. Luchkiw “in her family medicine practice, and also in her conduct, including in relation to infection prevention and control practices and communications and conduct regarding the COVID-19 pandemic, has engaged in professional misconduct or is incompetent” (the IPAC and Communications Investigation).

[23] On November 29, 2021, a College investigator, Mark Bellefontaine attended Dr. Luchkiw’s office. He was accompanied by a nurse inspector. The purpose of the visit was to notify Dr. Luchkiw of the investigation and conduct a review of her office to determine if she was complying with public health protocols around the COVID-19 pandemic. Dr. Luchkiw refused to speak to Mr. Bellefontaine. He was not permitted access to her office. Mr. Bellefontaine left the office with the nurse inspector. Before leaving Mr. Bellefontaine noted IPAC deficiencies in the waiting area and bathroom.

[24] After Mr. Bellefontaine and the nurse inspector left the office, Mr. Alexander e-mailed the College and stated that he had advised Dr. Luchkiw to not co-operate in the investigation. It was his position that the College has no legal standing to police exemptions or to regulate a doctor’s right to agree or disagree with public health information. On December 1, 2021, the College’s legal counsel wrote to Mr. Alexander and stated that Dr. Luchkiw has a statutory obligation to co-operate and not obstruct an investigation.

[25] On December 13, 2021, Ms. Pavamani wrote to Mr. Alexander and advised that there were matters that required correction including posting signage at the entrance to the office advising that all patients and visitors are to wear a mask and practice hand washing hygiene, to provide sufficient space for physical distancing, to provide cleanable chairs in the waiting room and to have tissue and/or paper towel and lined waste receptacles available for disposal. Ms. Pavamani stated that a reinspection would occur in approximately 8 weeks.

[26] On January 19, 2022, Ms. Pavamani wrote to Mr. Alexander requesting three dates that Dr. Luchkiw would be available for the reinspection. She asked that the dates be provided by January 28, 2022. No dates were provided.

[27] On January 26, 2022, Ms. Pavamani wrote to Mr. Alexander to provide Dr. Luchkiw an opportunity to respond to the information that had been sent to the Registrar. She also asked that Dr. Luchkiw respond to questions with respect to the Thiessen interview and the report that she disclosed confidential information on the interview.

[28] On February 9, 2022, Mr. Alexander replied to Ms. Pavamani. He took the position that Dr. Luchkiw is not required to justify her conduct. He denied that Dr. Luchkiw had disclosed confidential patient information during the Thiessen interview.

The Restrictions Order – February 22, 2022

[29] On February 14, 2022, Ms. Pavamani advised Mr. Alexander that both the COVID practices and IPAC investigations would be reported to the ICRC on February 22, 2022. Dr. Luchkiw was invited to attend and make submissions. Dr. Luchkiw did not make any submissions to the ICRC at that time.

[30] The ICRC met on February 22, 2022. The ICRC concluded that Dr. Luchkiw’s conduct exposes, or is likely to expose, patients to harm and/or injury and that urgent intervention was required. Although the ICRC did not have a copy of any vaccine exemption written by Dr. Luchkiw, the ICRC stated that the record before it provides sufficient evidence that Dr. Luchkiw had provided a vaccine exemption to an immunocompromised patient. This was based on the following:

(i) the report that an immunocompromised hospital patient told their care team that they had received a vaccine exemption from their physician. Although the patient did not name the physician, Dr. Luchkiw was confirmed to be the patient’s family physician. When the hospital asked Dr. Luchkiw to meet to discuss the patient, she resigned her hospital privileges;

(ii) Dr. Luchkiw’s counsel implicitly confirmed that Dr. Luchkiw had provided exemptions when he asserted in an e-mail that the College does not have the authority to “police exemptions”, despite the fact that the investigator’s attendance was with respect to IPAC practices; and

(iii) To date Dr. Luchkiw has not denied that she provided an exemption and has refused to co-operate with the investigation.

[31] On the basis of the information before it, the ICRC concluded that Dr. Luchkiw’s provision of vaccine exemptions was improper and exposed not only her patients but also the general public to harm or injury from an increased likelihood of contracting COVID-19. The ICRC was of the view that intervention was urgent given the serious nature of Dr. Luchkiw’s conduct.

[32] The ICRC issued a Restrictions Order dated February 22, 2022, that prohibited Dr. Luchkiw from providing medical exemptions in relation to vaccines for COVID-19. She was required to post signage in her office stating that she was unable to provide vaccine exemptions.

The Suspension Order – March 16, 2022

[33] The ICRC continued to have concerns that Dr. Luchkiw’s practices may expose patients to harm. The ICRC was also concerned about Dr. Luchkiw’s failure to co-operate with the investigation. On February 22, 2022, the ICRC gave notice to Dr. Luchkiw that it was considering imposing a suspension of her certificate of registration. Dr. Luchkiw was invited to make submissions.

[34] Dr. Luchkiw provided written submissions on March 8, 2022. She disputed the appointment of the investigators. She claimed that the College did not have authority in this matter and as a result she had no obligation to submit to the College. She argued that “as a matter of law” she could provide medical exemptions for COVID-19 vaccines “as she sees fit”.

[35] On March 16, 2022, the ICRC met with respect to both investigations.

[36] The ICRC reiterated its conclusion reached on February 22, 2022, that Dr. Luchkiw’s conduct with respect to vaccine exemptions exposes, or is likely to expose, patients to harm and/or injury. The ICRC also noted that underlying IPAC issues raised in the file also exposes patients to harm and/or injury. The ICRC stated that its ongoing concerns were exacerbated by Dr. Luchkiw’s failure to co-operate with the investigation.

[37] The ICRC responded to the issues Dr. Luchkiw raised in her response of March 8, 2022. The ICRC stated that the investigators were properly appointed pursuant to the powers set out at sections 76-79 of the Code. Dr. Luchkiw had not sought judicial review of the appointment of the investigators. With respect to her argument that the College did not have jurisdiction over any COVID-19 exemptions, the ICRC stated that it is within the College’s authority to investigate the care and services provided by Dr. Luchkiw in her role as a physician, including medical exemptions she provided under her authority as a physician. The ICRC also stated that Dr. Luchkiw’s failure to provide records in relation to exemptions makes it impossible to assess whether she followed the necessary procedure to obtain valid informed consent from patients.

[38] On March 16, 2022, the ICRC concluded that a suspension was warranted given all of its concerns. The ICRC concluded as follows:

Further, to the extent that the Committee concludes that the Respondent’s failure to cooperate, in and of itself, exposes patients to harm and/or injury, there is no measure short of suspension that will protect patients. Without a suspension, the Respondent will continue to practice without accepting regulatory oversight, which exposes patients to harm and/or injury.

[39] Dr. Luchkiw’s certificate of registration was suspended pursuant to s. 24.4(1) of the Code, effective March 17, 2022, at 12:01 am.

Harassment Order

[40] Between December 2021 and February 2022, the College received e-mails relating to strong opposition to public health measures related to COVID-19, including vaccine exemptions. The ICRC determined in a separate decision that as a result of targeted harassment of College personnel, the names of the panelists would be omitted from its reasons for both the Restrictions Order and the Suspension Order.

THE ISSUES

[41] This Application raises the following issues:

(a) What is the Standard of Review?

(b) Was the decision of the ICRC to suspend Dr. Luchkiw reasonable? and

ANALYSIS

Preliminary Issue - Fresh Evidence

[42] As a preliminary issue, Dr. Luchkiw brought a motion to admit fresh evidence on the judicial review application. She seeks to place before the court 66 affidavits sworn by her patients and clinic staff. She argues that the fresh evidence is necessary to allow the Court to weigh the harm caused to her patients by the Suspension Order.

[43] Fresh evidence, particularly ex post facto evidence is “rarely admissible” in judicial reviews given that the function of the reviewing court is not to hear the case de novo: Grenier v. Canada (Attorney General), 2016 FC 687, at para. 38. The essential purpose of the reviewing court is to review the decision, not to make findings of fact based on evidence that was not before the administrative tribunal: Canada (Attorney General) v. Delios, 2015 FCA 117, at paras. 41, 42.

[44] There are three recognized exceptions to the general rule prohibiting fresh evidence on a judicial review:

(a) Background information to assist the reviewing court in understanding the history and the nature of the case that was before the administrative decision-maker;

(b) Affidavit evidence disclosing a complete absence of evidence on a material point; and

(c) Evidence relevant to natural justice, procedural fairness or fraud that could not have been raised before the decision-maker: Bernard v. Canada (Revenue Agency), 2015 FCA 263, at paras. 20-27.

[45] Dr. Luchkiw relies on the second exception. She argues that the ICRC is to make decisions in the public interest and to focus on the goal of preventing patient harm. To fulfill that obligation, the ICRC has a duty to consider how a suspension order might affect all patients. In failing to consider whether the suspension may harm her patients, she states that the ICRC reached its decision in the absence of relevant evidence. She argues that the admission of the fresh evidence is justified because it advances the fundamental values that should inform the administrative decision-maker.

[46] It is my view that the second exception does not apply in the circumstances of this case. Dr. Luchkiw is not seeking to introduce evidence to tell this court what cannot be found in the original record but instead is attempting to put forward fresh evidence on a new issue. She is attempting to supplement the evidentiary record by introducing evidence with respect to how the Suspension Order may affect her other patients. This issue was not raised by Dr. Luchkiw before the ICRC. Instead, Dr. Luchkiw argued that the College lacked the authority to investigate her. It was open to her to argue that the effect of a suspension order on her patients was a factor to be considered by the ICRC, and to introduce evidence on this issue, but she failed to do so.

[47] Even if one of the exceptions to the admission of fresh evidence applied, it is my view that the proposed evidence is not admissible. Dr. Luchkiw argues that the correct interpretation of s. 25.4 of the Code requires the ICRC to balance the threat of harm or injury to her patients against the harm that may be caused by removing her ability to serve other patients. I disagree. Section 25.4 of the Code requires the ICRC to consider whether the physician’s conduct exposes or is likely to expose the physician’s patients to harm and/or injury. No balancing exercise is set out in the Code.

[48] I am satisfied that the fresh evidence Dr. Luchkiw seeks to introduce does not fit within any of the three recognized exceptions. Her motion to introduce fresh evidence on the judicial review is dismissed.

Standard of Review

[49] The standard of review is not in dispute. Both parties agree that the standard of review of the Suspension Order is reasonableness; Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882 (Div. Ct.) at para. 32.

[50] As held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 100, 101, and 125, the guiding principles for deciding whether an administrative decision is reasonable include:

(a) Reasonableness is concerned with justification, transparency and intelligibility. A decision is unreasonable if it is internally incoherent or if it is untenable having regard to the relevant factual and legal constraints;

(b) The party challenging the decision has the burden of showing that it is unreasonable. To justify a finding of unreasonableness, the flaws or shortcomings must be sufficiently central or significant to the merits of the decision;

(d) It is not the role of a reviewing court to re-weigh the evidence and make factual findings. Absent exceptional circumstances, a reviewing court should not interfere with a tribunal’s factual findings: Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC, 7597, at para. 31.

[51] The following principles apply to the standard of review of ICRC decisions:

(a) If there is a demonstrated likelihood that a doctor will expose their patients to harm and/or injury, the ICRC may act, and its remedial discretion is to be accorded deference: Fingerote v. College of Physicians and Surgeons of Ontario, 2018 ONSC 5131 (Div. Ct.), at para. 31;

(b) In determining reasonableness, a committee with expertise such as the ICRC must be given deference when imposing measures to protect the public: College of Physicians and Surgeons of Ontario v. McIntyre, 2017 ONSC 116, at para. 62; and

(c) The orders of the ICRC are reasonable if there is “some evidence” to justify imposing the order. The s. 25.4 orders are interim, and as a result the reviewing court is to be more tolerant in scrutinizing the decisions: Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654 (Div. Ct.) at paras. 21 and 26.

[52] No standard of review applies with respect to procedural fairness. Rather, the court is to determine whether the required level of procedural fairness has been accorded in the circumstances of the case: Kadri v. College of Physicians and Surgeons of Ontario, at para. 33.

Review of the Suspension Order

Is the Application for Judicial Review Premature

[53] Dr. Luchkiw seeks judicial review of the Suspension Order. She has not sought judicial review of the decision to appoint the investigators or of the Restrictions Order.

[54] The Suspension Order is an interim order, which was made at the investigative stage of the disciplinary proceeding. In the normal course, this Court does not intervene in ongoing administrative proceedings on the basis that intervention is premature. However, in the case of an order suspending the member’s certificate of registration, the application for judicial review is not premature. As stated in Matheson v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7597 (Div Ct):

In this case, the College did not take the position that the application for judicial review is premature. I note that this is consistent with this Court’s jurisprudence in cases such as Dua v. College of Veterinarians of Ontario, 2021 ONSC 6917, where the Court refused to dismiss an application or judicial review on the basis of prematurity in the context of the interim suspension of a veterinarian’s licence. In that case, the Court held that the application was not premature because the applicant would be prevented from practicing for the foreseeable future and, as held at para. 18, “there is no alternate internal remedy available to [the applicant] to appeal or review the order in question”: at para. 29.

[55] I find that judicial review of the Suspension Order is not premature.

The Appointment of Investigators

[56] Dr. Luchkiw challenges the appointment of investigators that led to the Suspension Order. She argues that the Registrar did not have reasonable and probable grounds for believing that she had committed an act of professional misconduct or is incompetent, and therefore the decision to appoint investigators was not reasonable. She also takes the position that the Order authorizes the investigators to look into anything regarding her family medicine practice, and as a result the grant of the investigator’s powers is overly broad and empowered the investigators to engage in a “fishing expedition’.

[57] The College notes that the application for judicial review relates to the Suspension Order and not to the appointment of the investigators. The College argues that a review of the decision to appoint investigators is premature and that Dr. Luchkiw’s “backdoor” attack of this decision is improper.

[58] As a general rule, this Court declines to hear applications for judicial review of the decision to appoint investigators before the administrative process is complete: Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2022 ONSC 1220 (Div. Ct), at paras. 7, and 9. As noted in Lala v. College of Physiotherapists (Ontario), (2003), 127 ACWS (3d) 589 (Div. Ct.), at para. 2:

The only issue in this application relates to the basis for the appointment of an investigator. This Court has consistently followed a well-established line of authority against a piecemeal approach to the judicial review of administrative action. In the absence of exceptional circumstances, it is preferable to allow administrative proceedings to run their full course before the tribunal and to consider the legal issues arising from the proceeding, including procedural matters, against the backdrop of a full record and a reasoned decision of the tribunal.

[59] I find that there are no exceptional circumstances that would allow for a review of the decision to appoint investigators at the investigative stage of the disciplinary proceeding. I find that Dr. Luchkiw’s challenge to the appointment of the investigators is premature and not subject to review.

[60] In any event, it is my view that there were sufficient reasonable and probable grounds for believing Dr. Luchkiw had committed an act of professional misconduct or is incompetent. Before the investigators were appointed, the College received multiple reports of issues with respect to Dr. Luchkiw’s IPAC practices and the suspicion that she may have issued a vaccine exemption to an immunocompromised patient. The multiple reports provided the grounds to justify the appointment of the investigators.

Is the Suspension Order Reasonable?

[61] Dr. Luchkiw advances the following arguments in support of her position that the Suspension Order is not reasonable:

(a) The appointment of investigators was not placed before the ICRC and therefore the committee had no basis for assuming it was appropriate to render a decision;

(b) The College lacked the statutory authority to justify a limitation on medical exemptions;

(d) The ICRC was acting for an improper purpose when it failed to bring an application under s. 87 of the Code to compel her to co-operate with the investigation;

(e) The ICRC failed to turn its mind to Dr. Luchkiw’s patients and how they might be affected by the suspension;

(f) The decision does not reflect the stakes, in that it failed to properly consider the effect of the decision on Dr. Luchkiw and her patients;

(g) The ICRC failed to grapple with Dr. Luchkiw’s argument that her Charter right of freedom of expression trumped the College’s right to regulate vaccine exemptions; and

(h) The decision lacks internal coherence and contains false inferences.

Appointment was not Before the Committee

[62] Dr. Luchkiw takes the position that the Appointment of Investigators was not placed before the ICRC. She argues that in the absence of the appointment, the ICRC did not have proof that an investigation was properly ordered. The College argues that “at best” the absence of the appointment in the record is a “minor flaw”.

[63] There is no dispute that there were valid appointments of investigators pursuant to the orders of the ICRC dated November 10 and December 6, 2021. The investigations were properly ordered pursuant to s. 75 of the Code. The ICRC’s minutes approving the appointment and authorizing the investigation were before the ICRC when they issued the Suspension Order. I agree with the submissions of the College that the failure to place the appointments before the ICRC is a minor flaw and nothing turns on it.

Lack of Statutory Authority

[64] Dr. Luchkiw argues that there is no statutory authority on the part of the College to regulate vaccine exemptions. She states that the College’s statement on immunization is a non-binding guideline or recommendation. She also states that the ICRC has “no right” to rely on documents from NACI or the MOH to establish a uniform standard of practice. She further states that this is an illegitimate approach to regulating medical exemptions and as a result the Suspension Order should be quashed.

[65] I am satisfied that guidelines, such as those established by NACI and the MOH, inform the standard of practice and may be considered by the ICRC when determining whether a physician’s conduct exposes or is likely to expose a patient to harm and/or injury: Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2019 ONCA 393, at paras. 16, and 17. The issue that was determined by the ICRC was whether Dr. Luchkiw’s conduct exposes, or is likely to expose, her patients to harm and/or injury. I find that reference to the guidelines to assist the ICRC in determining the issue of patient harm, does not make the Suspension Order unreasonable.

Dr. Luchkiw’s Lack of Co-operation in the Investigation

[66] Dr. Luchkiw argues that the investigation was unlawful because of fatal defects in the investigation orders and the College’s lack of authority to regulate medical exemptions. She states that she was under no obligation to co-operate with an unlawful investigation and as a result, the ICRC cannot rely on her failure to co-operate as a reason to suspend her certificate of registration.

[67] Section76(3.1) of the Code, requires all members to co-operate with an investigation. Even if Dr. Luchkiw believes that the investigation is unlawful, she is under a positive obligation to co-operate: College of Physicians and Surgeons of Ontario v. Ravikovich, 2010 ONSC 571, at para. 12.

[68] Clearly, Dr. Luchkiw did not co-operate in the investigation. She did not provide the list of patients for whom she had provided various types of treatments and medical exemptions related to COVID-19 and she did not provide the complete medical records for each patient listed. She failed to respond to enquiries as to whether she provided the vaccine exemption to an immunocompromised patient. She failed to provide the investigators access to her office.

[69] I am of the view that Dr. Luchkiw’s failure to co-operate, or to recognize the authority of the College, is a reasonable basis to conclude that she is ungovernable. This raises additional concerns with respect to patient safety. The conclusion of the ICRC with respect to her lack of co-operation and governability is factually grounded and reasonable.

Acting for an Improper Purpose

[70] Dr. Luchkiw argues that the ICRC used its statutory procedure for an improper purpose when it failed to bring an application pursuant to s. 87 of the Code. Section 87 provides a statutory remedy for the College to enforce orders. She states that she had a “legitimate expectation that the College would enforce the order prohibiting her from writing medical exemptions in the same manner”, rather than to proceed with a suspension order. Dr. Luchkiw argues that a decision which departs from a longstanding practice will only be reasonable if it is justified. She argues that the departure is not justified in the circumstances of this case.

[71] The College states that there is no unambiguous practice on how it deals with members who fail to co-operate. The College has, in some cases relied on s.87, and in others it has not. The College argues that Dr. Luchkiw could not have a legitimate expectation since this is not the approach that is always used. The College also argues that Dr. Luchkiw’s position that the College may only proceed under s. 87 in cases of non-compliance would render s. 25.4 meaningless.

[72] For the doctrine of legitimate expectations to apply, the practice or conduct must be “clear, unambiguous and unqualified”: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36. Here, there is no evidence that the College’s clear and unambiguous practice was to bring s. 87 applications whenever a physician failed to co-operate in an investigation or breached an order. I am satisfied that even if there was some evidence that the College had brought s. 87 applications in the past, the doctrine of legitimate expectations is not available where it conflicts with an express provision in a statute: Adam Giffen v. Ontario (Minister of Transportation), 2013 ONSC 7461, at para. 49. Section 76 of the Code imposes a positive obligation on a physician to co-operate with an investigation.

[73] I conclude that there was no unambiguous practice to bring a s. 87 application in cases of noncompliance. The fact the College proceeded with a hearing pursuant to s. 25.4 rather than a s. 87 application does not result in the decision being unreasonable.

The Effect of a Suspension Order on Dr. Luchkiw’s Patients

[74] Dr. Luchkiw argues that modern statutory interpretation requires the words of a statute to be read in their entire context and in their ordinary sense, and in harmony with the objects of the Act. It is her position that the object of the Act and Code is to promote the public interest and to prevent patient harm. The consideration of patient harm requires the ICRC to consider how Dr. Luchkiw’s other patients would be affected by a suspension.

[75] Section 25.4 of the Code requires the ICRC to consider whether the conduct of a member exposes, or is likely to expose, the member’s patients to harm and/or injury. The section does not require the ICRC to balance the degree of harm to patients against the speculative negative impacts of ordering a suspension. Anytime the ICRC determines that it is necessary to suspend a physician’s certificate of registration, the result will be that patients will not be permitted to see that physician. In the case of a physician whose conduct exposes or may expose patients to harm and/or injury, the fact that patients will be unable to see the physician, is not an unreasonable or unwelcome consequence.

[76] I am not satisfied that the failure of the ICRC to refer to how Dr. Luchkiw’s other patients may be affected by the Suspension Order, results in the order being unreasonable.

Decision Does Not Reflect the Stakes

[77] Dr. Luchkiw argues that the ICRC made a decision that had a profound impact on her and her patients. She argues that the ICRC failed to consider the impact of its decision on the lives of ordinary people including the most vulnerable, and as a result the decision is unreasonable.

[78] Essentially, this argument is simply a rewording of the argument that the ICRC failed to take into account the impact of the suspension on Dr. Luchkiw’s patients who would now be deprived of medical care by their doctor of choice. Obviously, the ICRC was well aware of the impact of a suspension. However, the focus of the ICRC is to protect the public from professional misconduct and incompetence. The ICRC concluded on the evidence before it, that the conduct of Dr. Luchkiw exposes, or was likely to expose, patients to harm and/or injury. The decision of the ICRC specifically provides that it issued the Suspension Order to protect the public from harm. There is no merit to the argument that in doing so the ICRC failed to properly reflect the stakes.

Decision Failed to Consider the Charter Argument

[79] Dr. Luchkiw states that the ICRC decision is unreasonable because it failed to consider her argument that the College’s purported right to regulate medical exemptions is trumped by the right to freedom of expression under section 2(b) of the Charter.

[80] The ICRC is not required to avert to every argument made by Dr. Luchkiw. However, it is required to meaningfully account for the central issues and concerns raised by the parties: Canada (Minister of Citizenship and Immigration) v. Vavilov, at para. 127. I am satisfied that in the circumstances of this case, the Charter issue was not a central issue. The central issue before the ICRC was whether Dr. Luchkiw’s conduct exposes or is likely to expose her patients to harm and/or injury. I find that the failure of the ICRC to refer to the Charter issue in its reasons does not lead to the conclusion that the decision was unreasonable.

Decision Lacks Internal Coherence and Contains False Inferences.

[81] Dr. Luchkiw argues that the ICRC’s decision is unreasonable because it contains “numerous fallacies” which include the “far-fetched inference” that she issued medical exemptions.

[82] The ICRC set out the evidence upon which it relied to conclude that Dr. Luchkiw had issued a vaccine exemption to an immunocompromised patient. (See: paragraph 30 above). I am satisfied that the inference that Dr. Luchkiw had issued a medical exemption was not “far-fetched” but instead was a reasonable inference based on the evidence before it. I find that the ICRC’s decision was logical, internally consistent and supported by the evidence.

Summary – Suspension Order Was Reasonable

[83] I find that there was ample evidence to support the decision of the ICRC to suspend Dr. Luchkiw’s certificate of registration. The decision was based on evidence that her conduct with respect to IPAC practices and her issuance of a vaccine exemption to immunocompromised patient, exposed, or was likely to expose, patients to harm and/or injury.

[84] The College received multiple reports with respect to Dr. Luchkiw’s IPAC practices and the issuance of a vaccine exemption to an immunocompromised patient. The investigator who attended at Dr. Luchkiw’s office on November 29, 2021, observed deficiencies related to her IPAC practices. There was no signage at the entrance to the office advising that all patients and visitors are to wear a mask and practice hand washing hygiene. The investigator also noted insufficient space for physical distancing, a failure to provide cleanable chairs in the waiting room and there were no tissue and/or paper towel and lined waste receptacles available for disposal.

[85] I also find that the evidence supports the conclusion that Dr. Luchkiw failed to co-operate in the investigation. She took the position, through her counsel, that the College did not have the lawful authority to conduct the investigation. She did not provide the information or documentation requested by the investigators. She did not provide access to her office. I am satisfied that the conclusion of the ICRC, that she was ungovernable and as a result her patients were exposed to harm and/or injury, is reasonable and supported by the evidence.

[86] I conclude that the decision to issue the Suspension Order was reasonable. I am also satisfied that the decision to suspend her certificate of registration was the least restrictive order available to protect the public: College of Physicians and Surgeons of Ontario v. Matheson, at para. 62. The reasoning of the ICRC decision is intelligible, internally coherent and factually grounded. The decision is entitled to deference.

Procedural Fairness

[87] Dr. Luchkiw takes the position that the Suspension Order lacked procedural fairness because she did not receive a memorandum with a list of threatening and inflammatory complaints made by members of the public concerning the College’s regulation of physician conduct relating to COVID-19. The memorandum consists of 130 pages of material including e-mails of support for Dr. Luchkiw. The memorandum was placed before the ICRC before it began its deliberations but was not provided to Dr. Luchkiw. She argues that this is a violation of procedural fairness and the Suspension Order should be quashed on this basis.

[88] The College argues that although Dr. Luchkiw was not provided with the memorandum in advance, no unfairness resulted. The memorandum was “directed solely to the question of the inclusion of the ICRC panel members’ names on the decision,” and did not specifically address the central issue to be decided, namely whether Dr. Luchkiw’s conduct exposed patients to harm and/or injury. The College notes that the same decision was made with respect to the Restriction Order dated February 22, 2022. Dr. Luchkiw did not take issue with the decision to remove the names of the panel members from the Restriction Order.

[89] I am satisfied that the failure to provide the memorandum to Dr. Luchkiw is not a breach of procedural fairness in the circumstances of the case. The memorandum relates only to the question of whether the ICRC panel members’ names should be on the decisions. The memorandum does not have anything to do with the substantive issues before the ICRC and was not relied on by the ICRC in reaching its decision to issue the Suspension Order.

DISPOSITION

[90] For the reasons set out above, I am satisfied that the decision of the ICRC to issue the order suspending Dr. Luchkiw’s certificate of registration was reasonable. The decision is thorough, and well-reasoned. It is factually supported by the information available to the ICRC at the time. I am also satisfied that the decision was procedurally fair. Dr. Luchkiw’s application for judicial review of the order is dismissed.

[91] As the successful party, the College is entitled to its costs of the application. At the conclusion of the hearing, both counsel stated that they would be content with costs of $8,000 inclusive of counsel fee, disbursements and H.S.T., if successful on the application. I am of the view that costs in the amount of $8,000 is fair and reasonable and within the expectation of the parties. I award costs to the College fixed in the amount of $8,000.

Dated: October 12, 2022

Chalmers J.

I agree _______________________________

Molloy J.