CITATION: Kilian v. CPSO, 2023 ONSC 5
DIVISIONAL COURT FILE NO.: DC-22-248
DATE: 2023 01 05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J. S.C. McWatt, Sachs and LeMay JJ.
BETWEEN:
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Plaintiff (Appellant)
– and –
ROCHAGNÉ KILIAN
Defendant (Respondent)
P. Wardle and E. Rankin, Counsel for the Appellant
P. Slansky and R. Galati, Counsel for the Respondent on Appeal
Heard at Toronto: December 5, 2022
LeMay J.
Reasons for Judgment
Overview
[1] This is an appeal from a decision of Pollak J. (“the Applications Judge”) dated April 19th, 2022, staying an application brought by the College of Physicians and Surgeons of Ontario (“CPSO”). The CPSO’s application sought the production of patient records in the possession of the Respondent, pursuant to section 87 of the Health Professions Procedure Code being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the Code”). Dr. Kilian is a member of the CPSO.
[2] The CPSO investigated Dr. Kilian because of Dr. Kilian’s alleged breaches of the CPSO’s practices and directives on providing medical exemptions for vaccines. As part of that investigation, the CPSO requested that Dr. Kilian produce a series of patient files for review. Dr. Kilian refused to produce them. The section 87 application was brought by the CPSO to compel the production of records. An anonymous group of Dr. Kilian’s patients sought to intervene in the application.
[3] At approximately the same time, Dr. Kilian proceeded with a judicial review application challenging the appointment of investigators, the decision to place restrictions on her licence and the decision to temporarily suspend her licence. That application was heard by this Court earlier this year and was dismissed for written reasons set out at 2022 ONSC 5931.
[4] The temporary stay of the CPSO’s s. 87 application was imposed pending the hearing of the judicial review application. Immediately upon the granting of the stay, the CPSO sought to appeal the Applications Judge’s order. In spite of the fact that the judicial review has now been heard, the CPSO wishes to proceed with its appeal of the Applications Judge’s stay order before this Court.
[5] For the reasons that follow, I would find that it is appropriate for this court to hear the appeal in spite of potential concerns about mootness. I would also allow the appeal and set aside the stay issued by the Applications Judge. I would remit the matter to a different judge of the Superior Court to determine the application, including any question about whether Dr. Kilian’s patients have standing to intervene in the s. 87 application.
Background
The Parties and the Investigation
[6] The Appellant CPSO regulates the membership and conduct of doctors in Ontario. The Respondent is a member of the CPSO. She practiced medicine in Owen Sound, including at the Grey-Bruce Health Sciences Centre (“GBHS”). Dr. Kilian developed concerns about the way that the COVID-19 pandemic was being managed. Those concerns led to her resignation from GBHS in August of 2021.
[7] In September of 2021, the CPSO received a series of complaints from third parties that Dr. Kilian was providing patients with exemptions from the COVID-19 vaccine requirements without medical justification. On September 29th, 2021, the Registrar of the CPSO recommended that an investigation should be commenced. On October 1st, 2021, the CPSO’s Investigation Complaints and Review Committee (“ICRC”) duly authorized the appointment of investigators.
[8] During the investigation, Dr. Kilian was asked on several occasions by CPSO investigators 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. She was also asked to provide the supporting medical records for all these patients. To date, Dr. Kilian has not complied with any of these requests.
[9] On October 15th, 2021, the investigator provided the ICRC with the information that had been gathered to that point. The ICRC considered that information and determined that it was necessary to place interim restrictions on Dr. Kilian’s certificate of registration.
[10] Shortly after the ICRC’s October 15th, 2021, decision, an allegation that Dr. Kilian was improperly breaching the restrictions on her licence came to light. As a result, after considering the issue and inviting submissions from Dr. Kilian, the ICRC determined that it would suspend Dr. Kilian’s certificate of registration effective the end of the day on October 27th, 2021.
[11] The decision to appoint investigators, the decision to place restrictions on Dr. Kilian’s licence and the decision to suspend her licence pending the conclusion of the investigative proceedings were all the subject of a judicial review application that was heard by this Court in September of this year. This Court dismissed all of Dr. Kilian’s applications by way of reasons dated November 7th, 2022 (2022 ONSC 5931). The Court found that the application in respect of the decision to appoint investigators was premature and that the other two decisions of the ICRC were reasonable. I understand that leave has been sought to appeal that decision to the Court of Appeal.
[12] With this background in mind, I now turn to the proceeding before this Court.
The Proceeding Before This Court
[13] As noted in paragraph 8, Dr. Kilian was asked to provide various patient records on a number of occasions. Dr. Kilian either did not respond to these requests or refused to provide the information that was sought by the CPSO’s investigators. Part of the reason for Dr. Kilian’s refusal was her concern that the CPSO was not respecting patient privacy rights.
[14] On October 21st, 2021, after having made multiple requests for the information, the CPSO commenced an urgent application under section 87 of the Code. That section states:
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).
[15] On October 29th, 2021, Glustein J. convened a case conference in this matter, noted the urgency of the matter and set a hearing date of January 7th, 2022. A further case conference was held before Myers J. on November 25th, 2021. At that time, further procedural directions were made to prepare the hearing for the January 7th, 2022, hearing date. The matter was scheduled to be heard with other matters that raised the same issues.
[16] As a result of the illness of Mr. Galati, Akbarali J. adjourned the hearing of Dr. Kilian’s application to February 8th, 2022. The other matters proceeded to a hearing on January 7th, 2022.
[17] On February 7th, 2022, the day before the hearing, a motion to intervene in the application was served by approximately forty (40) anonymous patients of Dr. Kilian’s. On February 8th, 2022, the Applications Judge adjourned both the application and the motion. She adjourned the motion to intervene to February 18th, 2022, and the actual application to March 21st, 2022.
[18] On February 18th, 2022, the Applications Judge heard the motion to intervene and reserved her decision. On March 14th, 2022 she released a lengthy endorsement (2022 ONSC 1526) in which she set out the positions of the various parties in detail. At the conclusion of her reasons, in paragraph 44, she stated:
[44] As I have found above, I agree with Dr. Kilian that the parties must be given the opportunity to make their submissions on what the issues are for determination by this court in the Application and what the subject matter of the Application is. I find that it is not possible for this court to consider the factors to be examined on this Intervenor motion until the subject matter and scope of this Application, which is a major issue in dispute between the parties, is resolved. In light of this significant dispute between the parties on the “subject matter of the proceeding” (the Application), I reserve the decision on this motion until the court has made a determination on the subject matter and scope of the Application.
[19] There was no mention in the March 14th, 2022 endorsement that the Applications Judge was considering imposing a temporary stay.
[20] As the March 14th, 2022 endorsement made clear, there was considerable disagreement among the parties as to the issues to be determined on the section 87 application. Dr. Kilian took the position that granting the section 87 order would be an abuse of process. Dr. Kilian argued that the “preconditions of compliance” under section 75 had not been met in at least three ways: (i) the CPSO had a lack of reasonable and probable grounds to appoint investigators; (ii) the investigation was premised on non-compliance with policy, and; (iii) the investigation is based on alleged constitutionally protected expression.
[21] The CPSO, on the other hand, viewed the section 87 application as being a statutory injunction sought during the investigation and that any issues about the propriety of the investigation or the constitutionality of the CPSO’s actions were a question for the Divisional Court on the judicial review.
[22] On March 21st, 2022, the Applications Judge heard the submissions of the parties on the issues that were to be determined in the section 87 application. At that time, the Applications Judge raised the question of whether she ought to stay the section 87 application until the Divisional Court proceeding was completed. She sought submissions from the parties on this point at the hearing on March 21st, 2022.
[23] On April 19th, 2022, the Applications Judge issued a decision in which she determined that the section 87 application should be stayed to “avoid the possibility of duplicate court proceedings, as well as the possibility of inconsistent findings.”
[24] The CPSO sought leave from this Court to appeal the Applications Judge’s order granting a temporary stay. Leave was granted on August 19th, 2022 (2022 ONSC 4354) and the parties were directed to schedule a case conference in order to determine whether this application should be heard together with the Judicial Review application.
[25] A case conference was held before Matheson J. on August 29th, 2022 and a further case conference was held before Her Honour on September 27th, 2022. At that time, the parties could not agree on the issues to be determined by this Panel. As a result, by e-mail endorsement dated September 28th, 2022, Matheson J. directed that this Court would hear submissions on the following issues:
a) The CPSO’s request that the stay order be set aside; and
b) The issue of whether other issues would be determined by this Court and, if so, whether it would be by this Panel or another panel.
[26] At the time of the case conferences before Matheson J., the judicial review application had not yet been determined.
The Issues
[27] Based on the foregoing, there are three issues that must be resolved in this case:
c) Whether the appeal is moot as a result of this Court’s decision dismissing the judicial review applications;
d) If the appeal is not moot, whether the stay should be set aside; and
e) If the stay should be set aside, whether additional relief should be addressed by the Divisional Court pursuant to section 134 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).
Issue #1- Mootness
[28] The CPSO advances the view that the stay of the Applications Judge is spent because the judicial review application has been determined. However, the CPSO argues that the Court should still hear the appeal of the stay because the test in Borowski v. Canada 1989 123 (SCC), [1989] 1 S.C.R. 342 has been met.
[29] Dr. Kilian argues that the matter is not moot because she has filed an appeal of the judicial review decision. As a result, Dr. Kilian argues that the stay granted by the Applications Judge remains in force. In the alternative, if this Court concludes that the stay is spent, then Dr. Kilian argues that this Court should determine that the matter is moot and should not hear the appeal on its merits.
[30] If the stay is spent, then the matter has become academic and the Court will only hear it if the CPSO can satisfy the test in Borowski. It is not this Court’s role to determine whether an appeal to another Court results in the continuance of a stay. That is the role of the reviewing Court. However, assuming, without deciding, that the stay is spent, I would still hear the merits of the appeal.
[31] If the dispute between the parties has disappeared, then a reviewing Court still has the discretion to hear the appeal. As described in Dagg v. Cameron Estate 2017 ONCA 366, (2017) 136 O.R. (3d) 1 at para 32, the exercise of that discretion is guided by the three rationales that underpin the mootness doctrine:
a) Whether the issues can be well and fully argued by parties who have a stake in the outcome;
b) The concern for judicial economy; and,
c) The need for the court to remain alive to the proper limits of its law-making function in order to avoid intrusions into the role of the legislative branch.
[32] The first factor is easily disposed of. Both parties were fully represented on the hearing of the appeal, and both parties vigorously contested the merits of the appeal.
[33] This brings me to the second factor, judicial economy. The question of whether a stay of a section 87 application should be granted while a judicial review application is pending is likely to come up again and is going to be evasive of review. I reach this conclusion because, as this case demonstrates, it is likely that any related judicial review application concerning an ongoing investigation will be disposed of by the Divisional Court before any issues in respect of a section 87 application can make their way to this Court. The process for appealing this type of order (unlike the judicial review application) requires a leave to appeal application to the Divisional Court. It is the same type of costly multi-stage appeal process as existed in Dagg. This is a concern that supports this Court considering the issue even if it is moot.
[34] I also note that there is a dispute between the parties as to whether the stay is spent. The fact that the parties cannot agree on whether the stay is spent is another good reason to consider the issue when the question of judicial economy is considered.
[35] Finally, as was the case in Dagg, we are not being asked to decide an abstract question and thereby intrude into the legislative sphere. Instead, we are being asked to decide a concrete question about when and under what circumstances the Courts should exercise their powers to temporarily stay a proceeding.
[36] For all of these reasons, I am of the view that the appeal should be determined on its merits even if it is moot.
Issue #2- Should the Stay be Set Aside
The Standard of Review
[37] The Applications Judge’s decision to impose a temporary stay on this matter was an exercise of discretion under section 106 of the CJA. In BTR Global Opportunity Trading Ltd. v. RBC Dexia Investor Services Trust, 2011 ONCA 518, the Court set out the standard that must be met to set aside a motions judge’s granting of a stay at paragraph 10:
[3] The remedy available under s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which provides that a court may stay any proceeding on such terms as are just, is discretionary. The motions judge’s decision will only be set aside if the exercise of his or her discretion is based upon a wrong principle, a failure to consider a relevant principle or a misapprehension of the evidence: Mobile Mini Inc. v. Centreline Equipment Rentals Ltd. (2004), 2004 22309 (ON CA), 190 O.A.C. 149 (C.A.), at para. 2.
[38] I have concluded that, in the case before us, the Applications Judge has based the exercise of her discretion on a wrong principle and has failed to consider relevant principles. She has also misapprehended the evidence before her.
[39] Specifically, the Applications Judge has misapprehended the nature of a section 87 application and erroneously concluded that there was a significant risk of a duplication of proceedings or an inconsistent finding if she heard the matter on its merits. In addition, the Applications Judge failed to consider the fact that there were significant reasons, over and above the interests of Dr. Kilian, to find that this application was urgent.
[40] In reviewing these issues, I will set out the decision under appeal and the statutory framework. I will then consider the two errors in principle that I have enumerated above.
The Decision Under Appeal
[41] The application of the CPSO was an application for an order under s. 87 of the Code, compelling Dr. Kilian’s cooperation with the CPSO’s investigation. On the application, Dr. Kilian challenged the s. 87 application on the basis that the statutory preconditions for the appointment of investigators under section 75 of the Code had not been met on the following grounds:
a) There was a lack of reasonable and probable grounds for the appointment of investigators;
b) The investigation was premised on non-compliance with policy; and
c) The investigation is based on alleged constitutionally protected expression.
[42] The decision granting the stay was released on April 19th, 2022. As I read it, the reasons for granting a stay were focused on the concerns raised by Dr. Kilian. The key reasons (summarized in paragraphs 15 and 16 of the decision) are as follows:
a) There was a significant dispute between the parties as to whether the Applications Judge had the jurisdiction to address the issues that were raised before her;
b) There was a possibility of duplicative Court proceedings; and
c) There was the possibility of inconsistent proceedings
[43] It must also be remembered that, in staying the application, the Applications Judge did not determine either the scope of the issues before her or the motion to intervene brought by Dr. Kilian’s patients. All those issues remain outstanding.
The Statutory Regime
[44] The decision to grant a stay must be put into its legal context. The Code is an extensive and long-standing set of provisions that govern the discipline and management of a considerable number of health professions in the Province of Ontario. Section 75 permits the CPSO to appoint investigators. Section 75(1) states:
75 (1) 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;
(b) the Inquiries, Complaints and Reports Committee has received information about a member from the Quality Assurance Committee under paragraph 4 of subsection 80.2 (1) and has requested the Registrar to conduct an investigation; or
(c) the Inquiries, Complaints and Reports Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation.
[45] In other words, the Registrar forms reasonable and probable grounds to investigate and then asks the ICRC to appoint the investigators. It is the ICRC that provides the supervision as to whether the Registrar’s request for the appointment of investigators is reasonable. The ICRC’s decision is not appealable but is subject to judicial review in the Divisional Court. In all but exceptional cases, a reviewing Court will not intervene in an investigation (or a decision to appoint investigators) until the conclusion of the proceeding: Volochay v. College of Massage Therapists 2012 ONCA 541.
[46] Section 76 of the Code states as follows:
76 (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. 2009, c. 33, Sched. 6, s. 84.
Reasonable inquiries
(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. 2009, c. 6, s. 1.
Idem
(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. 1991, c. 18, Sched. 2, s. 76 (2); 2007, c. 10, Sched. M, s. 54.
Obstruction prohibited
(3) No person shall obstruct an investigator or withhold or conceal from him or her or destroy anything that is relevant to the investigation. 1991, c. 18, Sched. 2, s. 76 (3).
Member to co-operate
(3.1) A member shall co-operate fully with an investigator. 2009, c. 6, s. 1.
Conflicts
(4) This section applies despite any provision in any Act relating to the confidentiality of health records. 1991, c. 18, Sched. 2, s. 76 (4)
[47] If a member fails to cooperate, then section 87, reproduced at paragraph 14, above, permits the CPSO to apply to the Superior Court for an injunction. These injunctions are generally referred to as statutory injunctions.
Misapprehension of Section 87 Application
[48] Counsel for Dr. Kilian is correct in his observation that the granting of a stay is a discretionary remedy. However, judicial discretion has its limits. The test for granting an interim stay of one proceeding until another is resolved is set out in numerous cases, including the recent decision of Crosslinx v. Ontario Infrastructure 2021 ONSC 3567 at paras. 37-38:
a) Whether there is substantial overlap of issues in the two proceedings;
b) Whether the two cases share the same factual background;
c) Whether issuing a temporary stay will prevent unnecessary and costly duplication of judicial and legal resources; and
d) Whether the temporary stay will result in an injustice to the party resisting the stay.
[49] There is no dispute that the judicial review application and the s. 87 application share the same factual background. They are the same case. However, the Applications Judge made errors in principle on the first, third and fourth branches of the test. I will deal with the error on the fourth branch of the test in the next section. The Applications Judge’s errors on the first and third errors of the test stem from a misunderstanding of the different powers of the Divisional Court on a judicial review application and the Superior Court on a section 87 application.
[50] On a judicial review application, a party can challenge the appointment of an investigator, an interim suspension or a disciplinary penalty imposed at the end of an investigation and the related processes. On a judicial review application, the merits of the investigation, including its constitutionality, can be challenged. Indeed, Dr. Kilian raised a number of those issues in her recently concluded application for judicial review.
[51] On a section 87 application, the investigation is ongoing. The purpose of a section 87 application is to compel a non-cooperating doctor to cooperate in an investigation. The scope of review is necessarily more limited. Indeed, previous Courts have recognized the limitations in section 87 applications. For example, in College of Physicians and Surgeons of Ontario v. Ravikovich, 2010 ONSC 5714, Swinton J. was faced with a challenge to a s. 87 application by a doctor who argued that there had not been reasonable and probable grounds to appoint investigators. Swinton J. rejected that argument, stating (at para 10):
[10] An order directing a person to comply with the Code, pursuant to s. 87, is in effect a statutory injunction. When such an order is sought, in a case such as this, the Court must ask whether there has been a continued breach of the statute by the person against whom the injunction is sought and whether the statute permits the Court to make an order against that person. The College is not required to prove irreparable harm if the order is not made. A Court has discretion to refuse such an order - for example, where the order would be of questionable utility or inequitable (see, for example, Ontario (Minister of Agriculture and Food) v. Georgian Bay Milk Co., [2008] O.J. No. 485 (S.C.) at para. 34).
[52] Counsel for Dr. Kilian argued that this decision was incorrect. Counsel argues that the onus in a section 87 application is on the CPSO, and that the CPSO must demonstrate that the demand is lawful before a section 87 order may be made. In support of this argument, counsel relied upon the decision in Canon v. CPSO 2018 ONSC 4815 and, specifically, the passage at paragraph 43, where Perell J. stated:
[43] Where a public authority applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach.[11] The onus to raise the exceptional circumstances lies with the respondent,[12] and those circumstances are limited; for example, to where there was a right that pre-existed the enactment contravened or where the events do not give rise to the mischief the enactment was intended to preclude”
[53] There are two problems with counsel’s submissions. First, the facts of Canon are distinguishable. Mr. Canon was practicing medicine without a licence and was, therefore, not a member of the CPSO. The CPSO had to demonstrate that a breach of the legislation was established before it could obtain the injunction. In this case, section 76 (3) of the Code requires a member to cooperate with an investigation. In other words, a breach of the legislation will be established the moment that the CPSO can demonstrate to the Court that Dr. Kilian was the subject of an investigation and was not cooperating with that investigation.
[54] Second, less than five paragraphs before the paragraph reproduced above, Perell J. had repeated and relied upon Swinton J’s decision in Ravikovich. In other words, Canon applies the same principles as Ravikovich. Those principles, which are repeated in the cases cited in both Canon and Ravikovich, permit a very narrow review by the Superior Court of Justice on a section 87 application.
[55] This brings me to the Court of Appeal’s decision in Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, (2012) 113 O.R. (3d) 420. This decision established that the powers sought to be exercised by the investigator under s. 76 of the Code, in this case to obtain patient files from Dr. Kilian, were constitutional.
[56] In that decision, the Court stated (at para. 154):
[154] Contrary to this assertion, 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.
[57] In Sazant, the Court of Appeal went on to consider the limitations on the summons power under section 76 of the Code. As discussed in Sazant, the powers of the ICRC flow from the principles that apply under the Public Inquiries Act. As the Court of Appeal noted at paragraph 173:
[173] Like I do, the Divisional Court concluded that the scope of the investigation and the nature of the documents and other information that may be compelled is properly constrained, restricted and reviewed by (i) the restrictive scope of the investigation that is authorized; (ii) the limiting factors of relevance and privilege; and (iii) the requirement that the Executive Committee review the registrar's initial determination of reasonable and probable grounds before the appointment is approved.
[58] When the passages from Sazant are considered together, it is clear that the section 76 powers are constitutional and that there are limits to those powers. The Superior Court judge hearing the section 87 application is tasked with considering whether the requests for information that the investigators have made are within the scope of their investigatory powers as described in the previous paragraph. In granting the stay, the Applications Judge failed to turn her mind to the structure of the legislation and her role within it.
[59] Dr. Kilian also relies upon the decision in Kelly v. Ontario (2008) 2008 22557 (ON SC), 91 O.R. (3d) 100 (S.C.J.). In that decision, the Superior Court was considering an application to find section 76 of the Code unconstitutional. The application had been brought by four physicians, including Dr. Sazant. The CPSO brought a motion to stay the application pending the outcome of the investigative processes before the ICRC and the Discipline Committee.
[60] The stay was denied because the doctors were seeking a declaration of constitutional invalidity under section 52 of the Charter. Neither the ICRC nor the discipline committee had the jurisdiction to provide that remedy. As a result, the application was permitted to continue before the Superior Court.
[61] The Kelly decision is distinguishable from this case on two grounds. First, the Kelly decision was issued before the Court of Appeal found that section 76 of the Code was constitutional in Sazant. Second, in this case there was no application before the Applications Judge to find section 75 of the Code unconstitutional. As a result, Dr. Kilian was not seeking a general declaration of constitutional invalidity as part of the section 87 proceeding. As Himel J. noted in Kelly (at para. 30), the ICRC and/or Discipline Committee has the jurisdiction to grant individual constitutional remedies. In this case, the remedies for any individual violations of the Charter claimed by Dr. Kilian are within the jurisdiction of the ICRC and/or discipline committee. Those individual remedies are not within the jurisdiction of the Superior Court on a section 87 application.
[62] When the points set out above are considered together, it becomes clear that there was no risk of inconsistent findings between the section 87 application and the judicial review proceeding. In the section 87 application, the Court was required to consider whether the preconditions for granting a statutory injunction are met. The narrow scope of that review is described at paragraph 51, above.
[63] As Swinton J. noted in Ravikovich, Dr. Kilian is required to comply with the law pending any challenge to it. Questions of general constitutionality were not before the Court below and, in any event, Sazant’s finding that section 76 of the Code is constitutional is binding on both this Court and the Superior Court. Questions of whether Dr. Kilian’s individual rights were violated are properly questions for the ICRC and/or Discipline Committee to determine in the first instance. Those questions, once determined by the ICRC and/or Discipline Committee can then be subject to judicial review.
[64] Had the Applications Judge turned her mind to these principles by defining the issues that were properly before her, it would have been clear that there was no risk of duplicative proceedings or inconsistent outcomes. Given that the risks that form the basis for the Application’s Judge’s decision to grant a stay do not exist, it was an unreasonable exercise of discretion to grant a stay and the stay must be lifted.
Failure to Consider Urgency of the Application
[65] In granting the stay, the Applications Judge stated that “Dr. Kilian’s licence has been suspended by the CPSO”. This statement seems to suggest that the section 87 application is no longer urgent. I disagree for two reasons. First, when a member’s licence is suspended, section 25.4(3) of the Code requires the ICRC to proceed expeditiously with its investigation and give precedence to the matter over other matters. The legislation requires an expeditious process in considering these issues. The Applications Judge failed to consider this legislative requirement in granting a stay.
[66] Second, this legislative requirement to grant a stay exists within the larger public policy framework. An investigation by the ICRC does not just engage the rights of the member being investigated. It engages the public interest, which includes questions of public safety and the protection of the members’ patients. Indeed, the case law has recognized that the primary purpose of an Order under section 25.4 is the protection of patients. Thirlwell v. College of Physicians and Surgeons of Ontario 2022 ONSC 2654 at para. 23 and Fingerote v. The College of Physicians and Surgeons of Ontario 2018 ONSC 5131 at para. 24.
[67] In granting the interim stay, the Applications Judge failed to consider either the structure of the Code or the importance of the public interest in the investigative work that was being completed in this case. Both of these points go to the issue of whether a temporary stay will work an injustice on the party resisting the stay. In this case, there is certainly an argument that granting a temporary stay would work an injustice on the CPSO both because it would be unable to fulfill its statutory mandate in a timely way and because it does not take into account the important principles of public safety and patient protection. The Applications Judge’s failure to consider these issues is a further error in principle that requires the stay to be lifted.
Conclusion on the Stay
[68] For the foregoing reasons, I would lift the stay.
Issue #3- Should This Court Determine the Application on Its Merits
[69] No.
[70] Section 134(1) of the CJA provide an appellate Court with broad powers to deal with the substantive issues in a case even if those issues have not been dealt with by the Court below. Those powers include the jurisdiction to make any order that the Applications Judge ought to have made or could have made. Schaeffer v. Wood 2011 ONCA 716, (2011) 107 O.R. (3d) 721 at para. 48.
[71] In Schaeffer, the Court of Appeal made orders that the Applications Judge would normally have made. However, those orders were made in circumstances where the Applications Judge was prepared to deal with the merits of the case and would have dealt with them but for the fact that the application was struck.
[72] In this case, the Applications Judge had not yet determined either the scope of the application or the question of whether the proposed intervenors should be permitted to intervene. Those are questions that should be decided on a complete record by the court of first instance. This is the type of case where, as noted in Schaeffer (at para. 50), the “court will be reluctant to make any order concerning a matter that has not been the subject of an order from the tribunal appealed from.” The matter should be referred back to the Superior Court for a decision.
[73] I acknowledge the CPSO’s concerns with the urgency of this application. However, these reasons and the reasons from the judicial review proceeding will provide the Applications Judge with some guidance in resolving the issues raised in the application. Further, there are still a number of steps that need to be taken before the application can be resolved. To re-convene this panel to deal with those issues, including perhaps hearing additional argument and receiving additional evidence, is neither practical nor in keeping with the normal role of a reviewing Court. Welsh v. Ontario 2019 ONCA 41 at para. 16.
[74] For the foregoing reasons, the questions that flow from our lifting of the stay are to be sent back to a different judge of the Superior Court of Justice for determination.
Conclusion and Costs
[75] For the foregoing reasons, I conclude that the stay issued by Pollock J. should be lifted. I would also remit the questions that remain to a different judge of the Superior Court of Justice for determination in as expeditious a way as is possible.
[76] Having regard to the agreement of the parties, costs are payable by the Respondent to the Appellant in the sum of $7,500.00 all-inclusive.
LeMay J.
I agree
McWatt A.C.J.S.C.
I agree
Sachs J.
Released: January 5, 2023
CITATION: Kilian v. CPSO, 2023 ONSC 5
DIVISIONAL COURT FILE NO.: DC-22-248
DATE: 2023 01 05
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO
Plaintiff (Appellant)
-and-
ROCHAGNÉ KILIAN
Defendant (Respondent)
REASONS FOR JUDGMENT
McWatt A.C.J.S.C.
Sachs J.
LeMay J.
Released: January 5, 2023