Court File and Parties
CITATION: Polidoulis v. Health Professions Appeal and Review Board, 2024 ONSC 5262
DIVISIONAL COURT FILE NO.: 257/23
DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Matheson and Sheard JJ.
BETWEEN:
DR. IRENE POLIDOULIS Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and ANDREAS C. VIKIS Respondents
COUNSEL:
Matthew Wilton and Abbira Vijayakumaran, for the Applicant
Sayran Sulevani, for the College of Physicians and Surgeons, Respondent
David Jacobs, for the Health Professions Appeal and Review Board, Respondent
No one appearing for Andreas C. Vikis
HEARD at Toronto: September 23, 2024
Reasons for Decision
THE COURT
[1] The applicant seeks judicial review of the decision of the Health Professions Appeal and Review Board (HPARB) dated March 28, 2023, dismissing a review of the decision of the Inquiries, Complaints and Reports Committee (ICRC) dated September 15, 2021.
[2] The applicant is a family physician and a congregant of the Greek Orthodox Church. She made a number of public statements in mid-2020 about a change made by her Church, to stop using a shared communion spoon, in response to the COVID-19 Pandemic. The College of Physicians and Surgeons received a complaint about the applicant’s statements, given that the applicant was identified as a doctor in the communications. The applicant had referred to her status as an MD in her communications but submitted to the College that her communications were intended to be about religion, not medicine.
[3] The ICRC exercised its screening function. It did not refer the complaint to discipline. It decided that the applicant be cautioned “with respect to being mindful of her tone and clarity” in conveying public health-related information and the impact on her audience of her status and position as a physician. The HPARB confirmed the ICRC decision of a remedial caution.
[4] The complaint arose from events at a church service in July 2020, an open letter that the applicant posted online after that service and related online posts.
[5] At the service, the applicant objected to the church’s newly adopted COVID-19 policy for administering Holy Communion. Unknown to the applicant at the time, the service was live-streamed. Prior to the COVID-19 Pandemic, Greek Orthodox churches provided Holy Communion to all congregants using a shared communion spoon. Following the COVID-19 Pandemic, and public health directives regarding religious services, the Greek Orthodox Archbishop of Canada advised all parishes to use separate spoons to prevent transmission of the COVID-19 virus. The applicant wanted one shared spoon or no spoon. The applicant did not identify herself as a physician when she objected at the service, but the priest did so. The applicant was the priest’s physician.
[6] The applicant had posted an open letter to the Archbishop before the service, identifying herself as a “front line physician” and signing as an “MD”, saying, for example:
And finally, your Eminence, [Father], with great concern for the feelings and safety of the flock, makes sweeping and unsubstantiated assumptions about our concerns with deadliness of Covid-19 as pertains to Holy Communion. He also compares the deadliness of Covid-19 with that of past plagues and implies that our current plague is as serious or worse…
… can you please clarify if there is any evidence that HIV, SARS, Ebola, Mers, Tuberculosis, Leprosy, or the Spanish Flu… and the more common Influenza and Pneumococcal Pneumonia which are always in the community, if any of these or other contagions have ever been shown to be spread through the Traditional methods of distributing Holy Communion? This may be an unfair question because I think your answer would be no.
…why would you assume that we are fearful, when many of us lived through HIV, SARS (by the way, I was a front-line physician during SARS and I never stopped taking Holy Communion) and the annuals influenzas which can also be deadly, but we never stopped communing during these annual plagues?
[7] In another online post before the service, the applicant again identified herself as an MD and spoke about the scientific method at length, concluding, for example, with the following:
So much for science? Well, there happens to be one excellent scientific Orthodox experiment whose results repudiates any claims made by the [article], …. and all other similar “scientific” claims. The Traditional practice of the Eucharist in the Orthodox Church is the longest ongoing longitudinal observational study* ever conducted, spanning a 2,000 year period, with an immeasurably large sample size of study participants… who consumed bread and wine from a common physical element and avoided transmissible disease. The quality of this study, due to its excessively long duration and massive sample size, far outweighs in both Level and Grade any other possible type of scientific experimentation or speculation and proves beyond a shadow of a doubt that the Holy Eucharist is, indeed, incorruptible and does not transmit disease.
[8] The applicant posted another open letter to the Archbishop after the service, signed with the following physician credentials after her name, “MD, CCFP, FCPP”. In that letter, the applicant said, for example:
…What better way, then, to bring about a change to the canons regarding Holy Communion than using a virus as a pretext for altering the mode of its distribution for the ‘safety’ of the laity who in reality need no protection from the immaculate Body and Blood of Christ.
…Some hierarchs may be hoping that the reason for continuing adherence to the multiple communion spoons will gradually evolve into a more modern belief that the Eucharist may, in fact, be capable of transmitting disease. The recurring experience and knowledge that communicable diseases have never been transmitted through the common cup or spoon will eventually be forgotten. Instead, more modern scientific principles will prevail and an eventual change in dogma would be the outcome. Perhaps the Covid-19 opportunity has made it too hard to resist such a diabolical experiment on the North American Continent.
[9] The College received a complaint from a member of the public about the events at the Church service and the open letter that followed it. The complainant noted that the applicant was identified as a doctor by the Priest, referred to the contents of the open letter, and concluded by asking the College to remind the applicant of her obligations as a doctor to protect the public. The College initiated the complaints process.
[10] The ICRC is a specialized panel that is responsible for screening complaints that are received from members of the public. A panel of the ICRC is selected to investigate the complaint and decide whether or not allegations should be referred to the Discipline Committee, referred to incapacity proceedings, or another step taken that is less serious for the physician.
[11] In addressing the complaint in this matter, the ICRC considered the following:
(i) the complaint and the physician’s response to it;
(ii) the ICRC’s role, College policy, relevant legislation and range of possible decisions;
(iii) the information before the ICRC arising from its investigation, including the below;
(iv) on the subject of COVID-19, the spread in early 2020, the declaration of the global Pandemic in March 2020, followed by Ontario’s Medical Officer of Health’s COVID-19 Advice about Religious Services to suspend activities that increased the risk of disease transmission, including sharing or distributing materials or objects, such as communion, and the Toronto Public Health Guidance on the same topic;
(v) the decision of the Greek Orthodox Church, following the above, to use separate spoons rather than a common spoon for Communion;
(vi) the events at the Church service in July 2020, when the applicant objected to the change, including her information that she wanted either one spoon or no spoon, it was the Priest, not the applicant, who referred to her being a physician, and that she was unaware that the service was on a livestream broadcast;
(vii) the applicant’s view that she did not write the online posts in her capacity as a physician and that the crux of her open letter to the Archbishop was to express her views about religious issues not to educate Ontario citizens about the risks of Communion or to help the medical community manage the Pandemic.
[12] In the applicant’s response to the complaint, she noted that she had not mentioned her status as a physician at the Church service – it was the priest who did so – and that she did not write her open letter to the Archbishop in her capacity as a physician. She indicated that she was expressing her views on religious issues. Her objections were not medical disagreements. The ICRC panel expressly acknowledged the applicant’s intention to communicate about her religious objection, not medical objection, to using multiple Communion spoons.
[13] The ICRC panel found that given the applicant’s response that she intended to communicate a theological objection, not a medical one, her communications were open to misinterpretation and could reasonably have been heard or read as being provided with medical or scientific authority arising from her status as a physician. They were public-facing statements involving the transmission of infectious disease. Although it was the priest who mentioned that the applicant was a physician at the service, she did so in her written communications.
[14] The ICRC panel was concerned that the applicant’s comments may lead a listener or reader to believe that the applicant was using her position as a physician to suggest that public health measures about the transmission of COVID-19 in religious services were not warranted. According to the applicant that was not her intention.
[15] The ICRC panel did not take the more serious steps open to it. It decided on a caution. The panel concluded that the applicant should attend to be cautioned “with respect to being mindful of her tone and clarity in conveying public health-related information, the impact on her audience of her status and position of trust as a physician and the responsibility it entails.”
[16] A caution arises when the ICRC concludes that a physician would benefit from a direction provided personally and it is also intended to protect the public interest. Cautions and educational directions are remedial and not a sanction or penalty: Longman v. Ontario College of Pharmacists, 2021 ONSC 1610 (Div. Ct.), at para. 44; Pitter v. College of Nurses of Ontario, 2022 ONSC 5513, 164 O.R. (3d) 433 (Div. Ct.), at para. 18; Geris v. Ontario College of Pharmacists, 2020 ONSC 7537 (Div. Ct.), at para. 33. They are meant to improve the member’s practice and benefit the public they serve by avoiding future concerns: Longman, at para. 44.
[17] The applicant then sought a review by HPARB, also a specialized tribunal. It is responsible for reviewing ICRC decisions on complaints. It is required to consider whether the ICRC investigation was adequate and whether the ICRC decision was reasonable. The HPARB may confirm all or part of the ICRC’s decision, make recommendations to the ICRC and require the ICRC to exercise any of its powers (with an exception that does not apply here).
[18] The applicant raised a number of issues before the HPARB regarding the reasonableness of the ICRC decision, not all of which are still being pursued. The main issue before us is the HPARB review of this issue: whether the ICRC gave sufficient weight to the applicant’s right to freely express her religious beliefs.
[19] In support of the applicant’s request for review of the above issue, the applicant submitted case law to the HPARB, including Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112, [2020] 12 W.W.R. 396, a discipline case that included an analysis under Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.
[20] As summarized in the applicant’s case of Strom, at para. 36, in Doré, the Supreme Court concluded that a decision of an administrative body that affects Charter rights does not need to be made using a formulaic application of the test in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. The question is whether the decision reflected a proportionate balance of the decision-maker’s statutory mandate with the Charter right at issue: Doré, at para. 57.
[21] In considering the applicant’s request for review, the HPARB cited the above principle from Doré and found that the ICRC decision reflected the College’s object of promoting relationships between its members and the public in its findings that, “While the [applicant’s] comments engaged her religious faith and were made within her faith community, they were public facing comments involving the transmission of infectious disease, and in some cases associated directly with her identity as a physician.” Further, the ICRC found that, “As a physician, the [applicant] holds a unique position of trust in society; she must therefore recognize that her role as a physician has an authoritative impact on listeners and readers when speaking publicly on public health-related matters.”
[22] The HPARB noted that the ICRC had chosen the remedial approach of a caution, which did reflect a proportionate balancing of the statutory mandate with the Charter right at issue. The HPARB further noted that the ICRC did not preclude the applicant from expressing her religious views in public. The concern was that she identified herself as a physician when doing so.
[23] The HPARB found the ICRC decision reasonable and confirmed it. The applicant then brought this application for judicial review.
[24] The applicant narrowed the grounds for this judicial review just before the hearing. The focus of the judicial review is now the manner in which the ICRC and the HPARB addressed the applicant’s right to religious expression. The applicant submits as follows:
(i) that it was unreasonable for the HPARB to refer to the principles in Doré and discuss and undertake the balancing required under Doré; and,
(ii) that the ICRC decision was unreasonable because the ICRC reasons for decision do not show that the panel did the balancing required under Doré.
[25] There is no issue that the standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653.
[26] Nor is there any issue that the Doré analysis is a highly contextual exercise: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 41.
[27] Beginning with the HPARB decision, the applicant submits that the HPARB reasons for decision show that it was doing its own free-standing Doré analysis rather than reviewing the ICRC decision and submits that the HPARB should not have done so.
[28] We do not agree that the HPARB reasons for decision regarding Doré show that its decision is unreasonable. HPARB was responding to an issue raised by the applicant in her request for a review, and addressing the legal principles put forward by the applicant for HPARB’s consideration. After citing those legal principles, the HPARB went on to consider whether or not the ICRC decision was reasonable having regard to those principles, as it was asked to do. The HPARB considered the ICRC reasons for decision, quoting passages from those reasons that acknowledged the applicant’s religious faith and religious statements, and also that the applicant’s communications were public-facing and connected with the applicant’s position as a physician, with an impact on listeners and readers when speaking publicly on public health-related matters.
[29] The applicant submits that the HPARB should not have quoted the statutory objectives of the College of Physicians and Surgeons, again because this suggests it was doing a free-standing Doré analysis. These submissions suggest the sort of ‘treasure hunt for error’ that should not result in finding a decision unreasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 102. The ICRC reasons for decision referred to the legislation only generally. The HPARB reasons for decision are more legalistic than those of the ICRC. This does not show that either decision was unreasonable.
[30] The applicant submits that the ICRC reasons for decision are inadequate to show that the ICRC did the required analysis and the HPARB should therefore have found the ICRC decision unreasonable. The tribunal should identify the relevant statutory objectives and determine how the Charter rights that are affected are best protected under those statutory objectives.
[31] The applicant agrees that the ICRC did generally mention statutory objectives and did understand that the issue was religious speech. The applicant submits that the ICRC reasons for decision should have expressly stated the relevant statutory objectives, expressly stated the Charter rights at issue (rather than just saying religious speech), expressly acknowledged that they are important, and then expressly stated that the panel was engaged in the balancing required in Doré in arriving at its decision. The ICRC decision is not that formal.
[32] The ICRC reasons for decision must be considered in context. This was a screening decision that resulted in an education-focused caution. “Reasonableness review is expected to reflect the stakes of the decision to the impacted individual. Where a decision has a particularly harsh consequences to the individual, there is a higher onus on the decision-maker to explain its decision. The corollary is that where, as here, a screening committee requires a remedial and educative response to a member’s conduct, a reasonableness review permits less detailed reasons”: Pitter, at para. 22.
[33] We are not persuaded that this screening function, with this result, must include the sort of formality in the reasons for decision that the applicant suggests. The ICRC did rely on the statutory objectives, acknowledged the applicant’s religious speech and, balancing relevant considerations, gave a caution rather than a more serious outcome. The applicant had explained to the College that she intended to communicate about her religious objection, not a medical objection. As noted by the HPARB, the ICRC did not preclude the applicant from expressing her religious views in public. The concern was that she identified herself as a physician when doing so.
[34] This application is therefore dismissed. The applicant shall pay the College costs in the agreed amount of $3,000 + HST. As agreed, there shall be no costs for or against HPARB.
“Lococo J.”
“Matheson J.”
“Sheard J.”
Date: November 5, 2024
CITATION: Polidoulis v. Health Professions Appeal and Review Board, 2024 ONSC 5262
DIVISIONAL COURT FILE NO.: 257/23
DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Lococo, Matheson and Sheard JJ.
BETWEEN:
DR. IRENE POLIDOULIS Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REVIEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO and ANDREAS C. VIKIS Respondents
REASONS FOR JUDGMENT
THE COURT
Date of Release: November 5, 2024