Trozzi v College of Physicians and Surgeons of Ontario, 2024 ONSC 6096
CITATION: Trozzi v College of Physicians and Surgeons of Ontario, 2024 ONSC 6096
DIVISIONAL COURT FILE NO.: 127/24
DATE: 20241101
ONTARIO SUPERIOR COURT OF JUSTICE
Newton RSJ, Myers, and Shore JJ
BETWEEN:
DR. MARK RAYMOND TROZZI Appellant
-and-
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
Michael Alexander, for the Appellant
Sayran Sulevani and Ruth Ainsworth, for the Respondent
HEARD at Toronto: October 8, 2024
FL Myers J:
REASONS FOR DECISION
INTRODUCTION
[1] Dr. Trozzi appeals the decision of the Ontario Physicians and Surgeons Discipline Tribunal dated October 6, 2023, reported as College of Physicians and Surgeons of Ontario v. Trozzi, 2023 ONPSDT 22.
[2] In its decision, the tribunal found that,
[Dr. Trozzi] has engaged in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional, has failed to maintain the standard of practice of the profession and failed to respond appropriately or within a reasonable time to a written inquiry from the College. We also find the member incompetent as defined by subsection 52(1) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c. 18.
[3] Dr. Trozzi also appeals the penalty imposed by the tribunal in its further decision dated January 24, 2024, reported as College of Physicians and Surgeons of Ontario v. Trozzi, 2024 ONPSDT 2. In that decision, the tribunal ordered the revocation of Dr. Trozzi’s certificate of registration i.e., it revoked his licence to practise medicine in Ontario. It also ordered Dr. Trozzi to appear before the tribunal to be reprimanded. Finally, it ordered Dr. Trozzi to reimburse the College for legal costs of $94,960 by February 23, 2024.
(a) This Appeal is not about Freedom of Expression Generally.
[4] It is important to note at the very outset that this appeal is not about Dr. Trozzi’s freedom to express himself generally to the public. Dr. Trozzi is and remains free to express his political views and his scientific views to the public. He is free to express “his truth” whether it includes objectively verifiable facts, minority views, objectively incorrect facts, deception, or conspiracy theories. He can do so as often and as loudly as he wishes.
[5] No one is prohibiting Dr. Trozzi from expressing himself to the public.
[6] But expression can also create legal obligations. For example, if we tell lies about a person to the pubic, he or she may be entitled to sue for libel or slander. If we make statements that discriminate against a person based on his or her race or sex or another prohibited ground, we may be held liable under the Human Rights Code.
[7] Freedom of expression is not a magic mantra that frees us from responsibility and accountability for our lawful obligations. If a law violates freedom of expression and is not a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society, it may be struck down as unconstitutional under the Charter of Rights. But in cases where valid laws might penalize expression, the freedom of expression gives people the ability to choose to express themselves knowing that they may be held accountable for doing so.
(b) This Appeal involves applying Valid Regulations to a Doctor’s Expression.
[8] In this case, Dr. Trozzi does not challenge the validity of the law that enables and requires the College to license physicians or that governs the College’s ability to discipline them. From a constitutional perspective there is also nothing wrong with the authority of a regulator to revoke a doctor’s licence when he or she has engaged in professional misconduct. This is not a case of a law itself being unconstitutional because on its face it violates freedom of expression as guaranteed by the Charter of Rights.
[9] In this appeal, Dr. Trozzi has been accused of professional misconduct partly because of things he has written online. (He was also accused of giving vaccine exemptions in an incompetent manner and failing to cooperate with the College in its investigation). But there is no doubt that he has lost his licence due, in part at least, to things he wrote. He says that the valid, general disciplinary regulations are being applied against him in a way that undermines his freedom of expression. I agree with him. More significantly, the tribunal also agreed that its findings of professional misconduct impacted adversely Dr. Trozzi’s freedom of expression.
[10] The Supreme Court of Canada has ruled that when the exercise of statutory discretion under a general, valid, regulatory law negatively affects a person’s rights or fundamental freedoms, then, when the regulator decides how to exercise its discretion, it must consider the effect on the individual’s right or freedom that is engaged. According to the Supreme Court of Canada, the question then, is whether, on balance, the harm to Dr. Trozzi is out of proportion to the public good achieved by the objectives of the regulatory law.[^1]
[11] No one says that Dr. Trozzi cannot write what he has written. The issue is whether he ought to be allowed to continue to be a licenced physician in Ontario in light of the things that he wrote. Does the very significant negative impact on Dr. Trozzi by revoking his licence to practise medicine due to the words he expressed outweigh the public interest advanced by the application of professional regulation to him?
[12] The tribunal answered this question with a resounding “no”. For the reasons that follow, I agree and would dismiss Dr. Trozzi’s appeal.
BACKGROUND FACTS
[13] There is no dispute about what Dr. Trozzi has written. He says that he is,
…proud to be among the tiny percent of scientists and doctors around the world, who are standing against the criminal covid enterprise (CCE).
[14] Dr. Trozzi does not just challenge the efficacy of COVID-19 vaccines. He challenges the existence of the pandemic. He writes, “Covid-19 is a deceptive criminal campaign.” The tribunal quoted many of Dr. Trozzi’s most extreme statements, including:
- The criminal covid enterprise spent years creating and patenting biologic weapons, infiltrating governments, quietly changing rules and definitions, and preparing their covid schemes. They prepared extensively, before launching their deceptive assault on us in late 2019.
- The covid ‘pandemic’ was an excuse for a global state of emergency, which was the excuse for: a global dictatorship; lock-downs and other human rights abuses; and the authorization of the forced ‘experimental’ covid injections which have killed millions of people (so far), injured many more, and made record profits for the murderous criminals running the scam, including Bill Gates who has profited more than 200 billion dollars.
- Fauci’s NIAID, UNC Chapel Hill, and Moderna were making deals creating, dealing, and exchanging bio-engineered coronaviruses and mRNA vaccines, before the so-called pandemic began. This is solid evidence of the pre-planning of the covid crimes against humanity.
- The agenda is locking down societies, destroying economies, basically creating a global government using the World Health Organization, really a criminal organization, to hack into the control with a fake pandemic that didn’t exist.
- The pandemic, PCR tests lockdowns, masking and forced injections are all rooted in deception and corruption.
- There is a profoundly corrupt relationship between central banks, big pharma, Bill Gates, Anthony Fauci, the World Health Organization, and many meat puppets installed in governments and institutions around the world.
- If the criminal covid enterprise completes their agenda, we enter a very dark age. The covid criminals’ plans involve most of us dying and the rest being modified, microchipped and enslaved.
[15] Dr. Trozzi wrote that public health measures taken in Canada cannot be trusted, are evil and dangerous, and may be crimes against humanity. He called for the “lawful” killing of Bill Gates, Dr. Anthony Fauci, World Health Organization officials, TV personalities Don Lemon and Dr. Sanjay Gupta, and others.
[16] Dr. Trozzi branded Canadian health regulators as part of the criminal conspiracy; writing that the College has an “assigned role in the lying and killing, and the punishments dished out to doctors who do not go along with it.”
[17] While he was on sabbatical from his hospital duties, Dr. Trozzi provided medical exemption letters from vaccines to 27 patients based on his and their views rather than any examination of the patient’s personal health circumstances. None, for example, were examined and found to be allergic to the vaccines or any of their components.
[18] Finally, while he was challenging the lawfulness of the College’s investigation into his practices, Dr. Trozzi failed or refused to produce files and information required by the College on a timely basis and, in some cases, at all.
RELEVANT PROVISIONS
[19] The Health Professions Procedural Code, being Sched. 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 provides the authority of the College to regulate the professions of physicians and surgeons in Ontario. The College has the right to develop standards of practice that must be maintained by doctors.
[20] Subsection 3 (2) of the Code explicitly prioritizes the public interest duties of the College as follows,
(2) In carrying out its objects, the College has a duty to serve and protect the public interest.
[21] Clause 51 (1)(c) of the Code requires the panel of the College’s Discipline Committee that sits as a hearing tribunal to find that a doctor committed professional misconduct if he or she committed an act defined as professional misconduct in the applicable regulations.
[22] Subsection 52 (1) of the Code is an explicit provision regarding incompetence. It says,
52 (1) A panel shall find a member to be incompetent if the member’s professional care of a patient displayed a lack of knowledge, skill or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that the member’s practice should be restricted.
[23] Acts of professional misconduct are defined in the Professional Misconduct Regulation, O. Reg. 856/93, under The Medicine Act, 1991, SO 1991, c. 30. Subsection 1 (1) of the regulation defines the following as acts of professional misconduct under s. 51 (1)(c) of the Code,
Failing to maintain the standard of practice of the profession.
Contravening the Act, the Regulated Health Professions Act, 1991 or the regulations under either of those Acts.
Failing to respond appropriately or within a reasonable time to a written inquiry from the College.
An act or omission relevant to the practice of medicine that, having regard to all the circumstances, would reasonably be regarded by members as disgraceful, dishonourable or unprofessional.
[24] Section 5.1 of The Medicine Act, 1991 imposes a caveat that protects non-traditional medical therapy and therapy that departs from prevailing medical practice from being found to be professional misconduct or incompetence unless, “the therapy poses a greater risk to a patient’s health than the traditional or prevailing practice.”
JURISDICTION AND STANDARD OF REVIEW
[25] An appeal lies to this court from the findings of the tribunal under s. 70 of the Code.
[26] The standard of review on questions of law is correctness. For questions of fact and mixed fact and law, the standard of review is palpable and overriding error. Questions of law that are extricable from a question of mixed fact and law are reviewed for correctness: Housen v. Nikolaisen, 2002 SCC 33.
ISSUES
[27] We were not provided a clear roadmap, or a specific listing of issues relied upon by Dr. Trozzi. Based on oral argument and the factum, it appears to me that most of Dr. Trozzi’s complaints deal with the manner by which the tribunal assessed the evidence before it. Much of the factum in particular is simply re-argument of the case before the tribunal.
[28] During the oral hearing counsel submitted that:
a. The tribunal erred in its treatment of the expert evidence of Dr. Gardam;
b. The tribunal erred in its application of the Supreme Court of Canada’s Doré decision;
c. The tribunal erred by giving professional guidelines and policies status as binding standards of practice; and
d. The tribunal erred in finding that the College had reasonable and probable grounds to embark on an investigation of Dr. Trozzi’s conduct in the first place;
(a) Dr. Gardam’s Evidence
[29] The tribunal recognized Dr. Gardam as a highly credentialed expert in infectious diseases, infection prevention and control in health care and community settings, and communication in those areas.
[30] The tribunal accepted Dr. Gardam’s testimony that Dr. Trozzi,
"...does not meet the standard of his profession, in that many of his public statements are incorrect, misleading, inflammatory, or suggest underlying conspiracies and are beyond what I would consider reasonable scientifically informed debate."
[31] The tribunal held that none of Dr. Trozzi’s evidence “came close” to dispelling the undeniable fact that the pandemic existed. As to COVID-19 vaccines, the tribunal ruled,
…we have no reason to doubt the overwhelming consensus from well-known, reputable and authoritative sources that the COVID-19 vaccines are safe and effective. In claiming they are "dangerous", "experimental", "designed" to cause disease and death and constitute "bio-weapons", among other things, the member spreads misinformation. Again, we find it unlikely that a medical professional could genuinely believe these extreme assertions, an observation we would also apply to many other of the member's statements.
(i) The Errors Submitted by Dr. Trozzi
[32] Dr. Trozzi submits that the tribunal erred by failing to consider that in his cross-examination, Dr. Gardam admitted he had not reviewed the studies relied upon by Health Canada that were the basis for the Minister of Health to bypass normal due diligence requirements for vaccine approval.
[33] He submits that the tribunal erred in accepting Dr. Gardam’s evidence that with eight billion doses of vaccine given, there is a good understanding of its side effects profile. He submits that the tribunal ought to have considered that Dr. Gardam did not recite any back-up studies to support his view that the vaccines have an excellent safety profile especially since Dr. Gardam agreed that long term studies are still under way.
[34] Dr. Trozzi submits that the tribunal erred in law by failing to follow the decision of the Saskatchewan Court of Appeal in O.M.S. v E.J.S, 2023 SKCA 8 holding one cannot determine that a drug is generally safe and effective because safety and effectiveness vary by patient and every drug carries a risk of side effects as set out in its monogram. The essence of the decision was that a chambers judge erred in taking judicial notice of the safety and efficacy of the vaccines. However, the tribunal followed the more recent decision of the Ontario Court of Appeal in J.N. v. C.G., 2023 ONCA 77 and made no error in the scope of judicial notice.
[35] Dr. Trozzi submits that the tribunal erred by not putting more weight on Dr. Gardam’s acceptance that there is chronic under-reporting of adverse vaccination effects in the US. He relies on studies that show that the formal US database that collects physician reports may receive reports for as little as 1% of adverse events. The tribunal failed to consider that with the database recording some 7,500 adverse events, studies would suggest the actual number was closer to 750,000. What counsel did not tell us in his submission is that when confronted with this argument in cross-examination, Dr. Gardam testified that the studies do not purport to establish causation between the COVID-19 vaccines and the adverse events reported.
[36] In this regard, Dr. Gardam disagreed with studies purportedly put forward by Dr. Trozzi in an unsworn reply report. Dr. Trozzi did not give evidence or put the studies into evidence. But his counsel submits that the tribunal erred in failing to find that Dr. Gardam’s evidence lacked credibility due to his failure to respond to the studies listed by Dr. Trozzi but which were not in evidence before the tribunal.
[37] Dr. Trozzi’s counsel submits that the tribunal erred in not giving more weight to Dr. Gardam’s admission in cross-examination that the COVID-19 vaccines were a novel form of vaccine. He views this as support for Dr. Trozzi’s assertion that the vaccines are a genetic experiment and a “bio-weapon.”
[38] Dr. Trozzi submits that the tribunal erred in failing to consider that Dr. Gardam accepted as correct that PCR tests show higher false positives at higher ends of the cycle rate including the cycle rate typically used in Ontario.
[39] Dr. Gardam agreed that the drug Ivermectin is available for use by doctors and is not harmful. He said that studies showed it was ineffective as a treatment for COVID-19. But Dr. Trozzi points to s. 5.1 of The Medicine Act that protects doctors from findings of misconduct for non-traditional therapies unless they cause a greater risk of harm to patients than traditional therapies.
[40] Dr. Trozzi submits that the tribunal erred in not acting on Dr. Gardam’s evidence that minority views can become a majority views one day. Dr. Trozzi submits that minority views, and even lies, can fall within the purposes of freedom of expression. That may be so, but the converse does not necessarily hold true. That is, freedom of expression does not necessarily apply well or with much vigour to protect a regulated professional’s right to lie to his vulnerable client base.
(ii) Analysis
[41] Other than the one error of law asserted and considered above, Dr. Trozzi’s submissions all go to the weight to be accorded to Dr. Gardam’s testimony. Counsel submitted that the tribunal erred in its exercise of discretion or made palpable and overriding errors by failing to reject Dr. Gardam’s evidence based on the errors identified above and in his factum.
[42] I am unaware of any legal discretion exercised by the tribunal in weighing evidence. The tribunal made no error in principle or in the exercise of discretion in simply performing its task to weigh evidence. Absent an error in legal principle, an appellant cannot turn an issue of fact or mixed fact and law into an error of law.
[43] None of the issues raised above amounts to a palpable and overriding error. A “palpable error” is an obvious one that is plain to see on the evidence. An “overriding error” is an important error that may affect the ultimate outcome. Waxman v. Waxman, 2004 39040 (ON CA), at paras. 296 and 297.
[44] All of the complaints listed above were points that were or could have been argued before the tribunal that ultimately bear on the tribunal’s acceptance of Dr. Gardam’s evidence. None of the errors alleged is an obvious mistake and none is individually so impactful so as to demand a change of either the tribunal’s view of the Dr. Gardam’s evidence or its ultimate decision.
[45] On an appeal, the court cannot re-weigh the evidence that was before the tribunal. Absent an error of law or any palpable and overriding error of fact or mixed fact and law, this ground of appeal is dismissed.
(b) The Doré Balancing
[46] The tribunal was very thorough and careful in its dealings with Doré. It understood that it was impacting Dr. Trozzi’s rights and it followed the Supreme Court of Canada’s teachings with rigour both at the liability stage and in its determination of the appropriate penalties. This is not a case where a tribunal fails to grapple with Doré directly and the court is called upon to assess whether the tribunal considered the correct factors nevertheless.
[47] The tribunal recited the correct case law and determined that it was required to conduct a “robust proportionality analysis”. It first considered the statutory objectives at play. It then balanced those objectives against the impact on Dr. Trozzi’s freedom of expression.
[48] The tribunal recognized that the general public lacks the specialized knowledge held by professionals in a regulated field like doctors. Moreover, the public necessarily places great trust in professionals to guide them. The tribunal recited the Supreme Court of Canada’s decision in Pharmascience Inc. v. Binet, 2006 SCC 48 at para. 36 noting that the vulnerability of the public imposes serious and onerous obligations on regulators to oversee the competency and honesty of the members of the regulated profession.
[49] The tribunal wrote that “[i]t is hard to imagine a more pressing statutory objective than protecting the public during a public health emergency.”
[50] Dr. Trozzi objects to the tribunal setting out its understanding of two important statutory objectives arising from the public health emergency caused by the global pandemic:
- protecting the public interest in the context of the pandemic, by preventing the spread of harmful misinformation;
- maintaining the integrity and reputation of the profession and promoting trust in the profession by rejecting unprofessional and uncivil discourse.
[51] Dr. Trozzi submits that the tribunal derived its two statutory objectives out of thin air. They are not written in the statute, the Code, or any regulation. He submits this was an error of law.
[52] I disagree. The primary statutory obligation set out in the statute and by the Supreme Court of Canada is for regulators to protect the vulnerable public from dishonest or incompetent professionals on whom they are told they can rely. The tribunal put specific context to the basic obligation by stating it in terms of a global pandemic response based on the evidence before it. The tribunal considered it vital in a pandemic in particular to protect the public from the spread of disinformation by its regulated professionals and to maintain the integrity of the profession by rejecting unprofessional and uncivil discourse. Neither objective is surprising or beyond the scope of the issues already covered in the Code and the Professional Misconduct Regulation.
[53] The tribunal then accepted a large and liberal understanding of Dr. Trozzi’s rights. It found,
[85] The member's right to express his views on COVID-19 is thus protected by the Charter, however distasteful, wrong or hateful others may find those views. A finding of professional misconduct would affect his fundamental right to freedom of expression. It would also have a chilling effect on other members who might be deterred from giving expression to their own views. The impact on this fundamental right must be considered in deciding whether a finding of professional misconduct arising out of the member's expressive activity is justified.
[54] The tribunal set about its balancing by first considering the nature of the statements in issue on the evidence before it. It assessed specifically public statements by Dr. Trozzi categorized as:
a. The pandemic is a hoax;
b. COVID-19 vaccines are dangerous; and
c. Effective alternative treatments for COVID-19 have been deliberately suppressed.
[55] The tribunal then considered the evidence that Dr. Trozzi’s statements were harmful to the public. Dr. Trozzi submits that the tribunal erred in accepted that his statements caused harm when there was no evidence of any specific individual being harmed by him or by pandemic misinformation.
[56] The tribunal heard evidence of Dr. Noni MacDonald who was qualified as an expert in vaccinology and the public health impacts of misinformation. She testified about a peer reviewed study referred to as “Fault Lines” in which she had participated. The findings of the study included:
- Science and health misinformation contributes to a "decline in trust, including trust in scientific, government, and healthcare workers and institutions.”
- It also leads to inaction or delayed public policy action.
- "Messaging is more influential if it is repetitive and simple, provides a clear and unambiguous explanation for some event or circumstance (such as a conspiracy theory), and appears to come from a trusted, credible source."
- There is robust evidence on the impact of science and health misinformation on vaccine hesitancy.
- "Misinformation contributes to a lack of adherence to public health measures and to vaccine hesitancy, which can result in vaccine-preventable disease outbreaks, increased healthcare costs, and elevated risk to the health and well- being of vulnerable populations."
- "Misinformation - as estimated by the proportion of those who reported believing that COVID-19 is a hoax or exaggerated - contributed to vaccine hesitancy in over 2.3 million people in Canada between March 1 and November 30, 2021." Eligible people went unvaccinated, increasing the number of cases of COVID- 19, hospital admissions, intensive care visits, deaths and hospitalization costs.
[57] The tribunal concluded,
[106] We accept that the consequences of the spread of misinformation about COVID-19 are real and significant. Further, the impact of misinformation is magnified when it comes from a physician (in the words of the report, a "trusted, credible source"). Berge highlighted the "power imbalance between health practitioners and patients that arises because of the superior knowledge of the former." On this theme, the Tribunal recently stated in College of Physicians and Surgeons of Ontario v. Rona, 2022 ONPSDT 45 at para. 13:
Since physicians hold a unique position of authority and public trust, their words and actions have the potential to significantly influence public perceptions and behaviour. Members of the public are more likely to perceive a physician's Twitter feed as providing a balanced and reliable source of scientific information, and to give significant weight to health care information provided by physicians, given their profession.
[107] We conclude that by spreading misinformation about COVID-19, the member's actions had the potential to contribute to the socioeconomic and health impacts discussed in Fault Lines. To the extent the member intended to dissuade members of the public from following public health advice, and whether it can be proven that he caused a specific case of COVID-19, hospitalization or death, his communications contributed to the overall environment of misinformation discussed in that report.
[58] The tribunal also found that Dr. Trozzi caused harm to specific people by republishing an article that clearly and groundlessly implied that 80 named health care professionals died because of COVID-19 vaccines. The article was found to have caused trauma to the families of the deceased professionals.
[59] After concluding that Dr. Trozzi’s acts constituted professional misconduct, the tribunal then specifically balanced the issues as directed by Doré.
[60] It started by finding that Dr. Trozzi’s statements were protected but were not high-value speech. It held,
[127] Likewise, the member's far-fetched conspiracy theories, unfounded accusations of criminal conduct and reckless rhetoric lie far from the core values underpinning members' expressive rights. Beyond their inflammatory and intemperate tone, they go beyond reasonable scientifically informed debate and use his position as a physician to attempt to dissuade the public from following authoritative public health recommendations during a pandemic. During what has been described as the "defining public health issue of our time" (Gill at para. 315), his communications contribute to real harm to the public good.
[61] Dr. Trozzi submitted before the tribunal and then again before us that his statements were high value political speech. But once again, context is everything. As noted at the outset, Dr. Trozzi’s right to make his political statements is undeniable. He is free to stand at a Canadian Hyde Corner or to run for office and make whatever statements he wishes (subject to applicable laws of course).
[62] But as noted by the tribunal, Trozzi was not speaking as a politician but as a licenced physician. In fact, he held himself out as one of the “tiny percent” of doctors in the world who were brave and honest enough to speak out. In rejecting his submission that he was engaged in highly protected political speech the tribunal held,
First, although some of his statements attack public health officials and the College, they cannot be separated from the overall theme of his communications which is to undermine the scientific basis for public health measures taken during the pandemic. The member speaks as a "scientist and doctor" providing "objective, accurate and scientific information" about the pandemic. Second, to the extent there exist areas of reasonable, scientifically informed debate about public health measures taken during the pandemic, the member's communications are not within that realm.
[63] The tribunal concluded its balancing process with the following findings,
[130] We have identified the fundamental importance of expressive rights, the negative effects a finding of professional misconduct would have on the member's freedom of expression, and the potential for such a finding to create a chilling effect on the exercise of the Charter right by others. The positive benefits to the public good of a finding a finding [sic] of professional misconduct include the prevention of the spread of harmful misinformation intended to undermine public health measures during the pandemic. It would also promote confidence in the College's ability to regulate the profession in the public interest by showing that the College can take steps to protect the public during the pandemic. A finding of professional misconduct would serve to maintain the integrity and reputation of the profession and promote trust in the profession during a public health emergency.
[131] A finding of professional misconduct does not impair the member's freedom of expression more than is necessary to achieve the objectives of protecting the public interest in a global pandemic, maintaining the integrity and reputation of the profession and promoting trust in the profession. It does not impair his right to engage in debate, even heated debate, about public health measures during the pandemic and the science underlying those measures. It does impair his ability to engage in speech which is misleading, inflammatory and contributes to harm to the public during a public health emergency, lending that speech credibility because of his medical training and profession.
[132] In light of the statutory objectives, a finding of professional misconduct is a proportionate response relative to the impact on the member's freedom of expression. We have considered whether there are other reasonable possibilities that would give effect to Charter protections more fully while still furthering those objectives and find none. The College would not be fulfilling its responsibility to regulate the profession in the public interest if it did not take action to investigate and deter such conduct. While recognizing that the impact of our finding on the member's Charter rights is significant, in our view, in these circumstances, the statutory objectives are paramount and the effect on expressive rights is no more than necessary.
[64] The tribunal also considered Doré and the need to balance Dr. Trozzi’s rights against the public interest in considering the penalty to be assessed against Dr. Trozzi. The tribunal concluded that Dr. Trozzi was “ungovernable” due to matters beyond his public statements. In addition to findings of incompetence and lack of cooperation, some of his public statements expressly rejected the legitimacy of the College as regulator. The tribunal also noted that Dr. Trozzi continued to make the same types of statements even after being found to be committing professional misconduct.
[65] In light of its finding that Dr. Trozzi was ungovernable, the tribunal turned to consider the penalty of revocation of his licence. It considered the seriousness of the penalty to Dr. Trozzi as follows,
[6] The penalty of revocation has undeniably serious professional consequences for a registrant. It means that the registrant may no longer engage in the practice of medicine. As the College observes, however, it is not necessarily the permanent exclusion of a registrant from the profession. A registrant whose certificate of registration has been revoked may apply for reinstatement after one year (in the case of revocation because of sexual abuse, after five years). In a reinstatement hearing, the former registrant has the onus to justify reinstatement of their certificate: Margaliot v. College of Physicians and Surgeons of Ontario, 2022 ONPSDT 20 at para. 11. Notwithstanding the possibility of reinstatement, we recognize the severe impact of revocation on a registrant.
[7] Revocation will prevent the registrant from espousing his views as a registered member of the profession. The penalty of revocation does not prohibit the registrant from expressing his views about COVID-19 but he will not be able to do so with the appearance of authority that comes from holding a certificate of registration.
[66] The tribunal concluded,
[37] We considered whether a penalty other than revocation would give effect to the registrant's Charter rights while still achieving public protection objectives. Apart from disputing the College's request for revocation, and despite being invited to by the panel, the registrant made no submissions on an appropriate penalty or terms, conditions and limitations that might protect the public. Neither party provided any basis for believing that a suspension accompanied by terms, conditions or limitations could achieve the purposes of a penalty order in this case. The evidence before us leaves us with no faith that a suspension of the registrant's certificate, even with terms, conditions, or limitations, will lead to insight or a willingness to accept the authority of the College.
[38] Given this, we find no other reasonable possibilities that would give effect to Charter protections more fully, while fulfilling statutory objectives. We find the circumstances of this case distinguishable from those considered by the Court of Appeal in Lauzon in determining that the removal of a justice of the peace from office was not justified. In its decision, the court emphasized the importance of the constitutional dimensions of judicial independence underpinned by the separation of powers, as well as the importance of judicial impartiality. Removal of a judicial officer for writing an opinion piece which the court described as "truthful speech if intemperately expressed," has systemic implications for the justice system that are far removed from the circumstances before us. In addition, in deciding whether removal from office was a proportionate response, the court found relevant the fact that there was no repetition of the impugned behaviour after the complaints were made, showing that the JP understood her duties.
[39] The type of speech in the case before us, with its deliberately inflammatory dissemination of misinformation designed to dissuade the public from following public health measures during a pandemic, is very different from the types of views expressed by the JP in Lauzon. The regulatory context, impact on the public's health, and the registrant's actions following our finding of misconduct also distinguish the two cases.
[40] In supplemental written submissions on the application of Doré to the issue of penalty, the registrant argues that he has "an absolute right to express minority opinions, which obviates the penalty of revocation” and that regulation of his expression cannot be justified unless the College can link his statements to the threat of clear and immediate physical harm. We did not accept these same arguments in the previous stage of this proceeding, and we reject them here. In the professional regulatory context before us, the registrant's right to freedom of expression is subject to a Doré proportionality analysis, balancing that right against statutory objectives.
(i) The Error Submitted by Dr. Trozzi
[67] In oral argument, counsel for Dr. Trozzi essentially repeated the argument that Dr. Trozzi’s expression was so fundamentally political that it was protected per se without any need to consider Doré balancing. He submitted that the spread of a minority view or even harmful disinformation is protected under the Charter citing cases such as R. v. Zundel, 1992 75 (SCC). He submits that by analogy to R. v. Oakes, 1986 46 (SCC), there is no need to consider proportionality where the underlying measure is itself a violation of rights.
[68] Dr. Trozzi submits that his freedom of expression can only be proscribed when there is a “clear and immediate” danger of inciting violence or physical harm, or the expression is hate speech, child pornography, a criminal threat of death or assault, or defamatory. He cites Irwin Toy Ltd. v. Quebec (Attorney General), 1989 87 (SCC), 1989 CarswellQue 115; Fleming v. Ontario, 2018 ONCA 160, Bracken v. Fort Erie (Town), 2017 ONCA 668, R. v. Keegstra, 1990 24 (SCC), 1990 CarswellAlta 192, R. v. Sharpe, 2001 SCC 2, and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) 655:
(ii) Analysis
[69] Dr. Trozzi’s submission impermissibly merges the analysis of the constitutionality of a statute or regulation with administrative regulation. Dr. Trozzi has not sought a declaration that the applicable regulations violate the Charter in general or as applied to him. Rather, as discussed in Doré and later cases, the tribunal and the court are dealing with the intersection of regulatory discretion and Charter values. Had Dr. Trozzi challenged the constitutionality of the governing legislation, the issues might have fallen to be decided on a balancing under s. 1 of the Charter. But Doré applies here, where discretion is exercised under a presumptively valid statutory scheme. Doré provides an analogous analysis, but it takes into account the specific regulatory context and public interest as well.
[70] An argument that under the Charter a doctor can never lose his or her licence due to expression is not supported by any legal theory or precedent. The Supreme Court of Canada has said that when regulatory decision-making raises constitutional concerns, the Doré balancing approach is appropriate. Accordingly, I reject the submission that the court can or should overrule the tribunal on constitutional grounds without getting to Doré.
[71] In my view, the tribunal’s Doré analysis was impeccable and stands as a guide for future tribunals confronted with serious constitutional considerations. As noted in other cases, such as Gill v. Health Professions Appeal and Review Board, 2024 ONSC 2588 and Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, not all regulatory remedies are punitive or as severe as a licence revocation. The tribunal was correct in this case to note that the constitutional issues were especially significant due to the severity of the remedy and to deal expressly and extensively with Doré. The tribunal found that the seriousness of the context and the extreme nature of Dr. Trozzi’s misconduct satisfied the Doré balance. It properly considered whether there were less restrictive alternatives. It is hard to fathom a contrary decision on the facts as found.
(c) Did the Tribunal Err by Treating Guidelines and Policies as having Statutory Force?
[72] Dr Trozzi objects to being found to have committed misconduct based on breach of non-statutory policies. He submits that the categories of failing to maintain the “standard of practice” and committing conduct “that
would reasonably be regarded by members as disgraceful, dishonourable or unprofessional” are vague and cannot be filled by non-binding guidelines and policies.
[73] The lack of specific regulatory definitions of professional misconduct was also the basis of Dr. Trozzi’s challenge of the “reasonable and probable grounds” for the College’s initial investigations. He argued that he was not required to produce files as ordered because there were insufficient particulars of the alleged misconduct to support an investigation and a production order.
[74] This issue has previously been resolved by this court. In The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579, aff’d 2019 ONCA 393, this court held,
[28] The Policies have been adopted by the CPSO as policies of general application. The Policies establish broad expectations of physician behaviour and are intended to have normative force. They articulate what the CPSO believes the tenets of medical professionalism require independently of CPSO policy. There is no issue that the Charter applies to the Policies.
[29] However, the Policies have not been adopted pursuant to the authority granted to the CPSO under the RHPA to enact regulations. Nor are the Policies a "code, standard or guideline relating to standards of practice of the profession" adopted pursuant to section 95(1.1) of the Code of which compliance is required pursuant to such provision. Accordingly, non-compliance with the Policies is not a specific act of professional misconduct under the professional misconduct regulation of the CPSO, being Professional Misconduct, O. Reg. 856/93. The Policies also do not provide for a penalty for non-compliance with their terms and no mandatory consequences flow from their breach.
[30] This raises the applicability of the Policies in respect of any allegation of professional misconduct involving a breach of a provision of the Policies by a physician. Whether a physician's actions amount to such misconduct would require a determination by the Discipline Committee of the CPSO, having regard to the standards of practice and professionalism. The Policies may be used as evidence of such professional standards, and of the conduct expected of a physician in particular circumstances, in support of an allegation of professional misconduct. However, a physician remains entitled to seek to lead contrary evidence and to argue that failure to adhere to the Policies' guidance did not, on the particular facts, constitute professional misconduct.
[75] The tribunal was alive to the role of policies before it. In discussing the concept of “disgraceful” conduct, the tribunal received several policies and other guidance documents that were in evidence before it and reasoned,
[64] The above documents do not bind the Tribunal in our determination of what constitutes professional misconduct, but they do provide useful guidance in determining what conduct "would reasonably be regarded by members as disgraceful, dishonourable or unprofessional." Taken together, they establish that the profession's core values and expectations include behaving professionally while advocating for patients, in a manner that promotes the health and well-being of the public. Even when engaged in debate or conflict, members should be civil, collaborative and work towards the public good. Physicians are also expected to stay informed during a public health emergency and, in the context of the COVID-19 pandemic, should not undermine public health measures. [Emphasis added.]
[76] The bolded words in the preceding quotation correctly express the court’s decision in The Christian Medical and Dental Society of Canada.
[77] In Yazdanfar v. The College of Physicians and Surgeons, 2013 ONSC 6420, this court discussed the determination of standards of practice from evidence reflecting a common understanding within the profession. The court wrote,
[36] A standard of practice exists even when it is not explicitly set out in a written code; a reviewing tribunal may ascertain it "by reference to evidence of a common understanding within the profession as to expected behavior of a reasonable professional, or by deducing it from the profession's fundamental values": Walsh v. Council for Licenced Practical Nurses, 2010 NLCA 11, 295 Nfld. & P.E.I.R. 222, at para. 48, Green C.J.N.L ., concurring. The ASPS guideline was not found to comprise a binding code in the present case; rather, it was found to be reflective, after consideration of extensive evidence, of a common understanding within the profession of which the appellant had a responsibility to be apprised.
[78] In discussing how to determine “standards of practice” in connection with the claim that Dr. Trozzi failed to maintain standards of practice, the tribunal again found,
[68] College policies can provide guidance as to the standards against which the actions of physicians are assessed (Khan v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2096 at para. 60)…
[69] In this case, we rely on the College's policies and statements, as well as the CanMEDS Framework, as evidence of a common understanding within the profession as to the expected behaviour of members with regards to communications during a pandemic. Dr. Gardam's opinion also assists in determining the applicable standard of practice. As we will discuss in more detail below, we find that what is "reasonably expected of the ordinary, competent practitioner" is that they refrain from spreading misinformation and conspiracy theories intended to undermine public health measures during a pandemic.
[79] The tribunal did not give statutory force to any policies or guidelines. This ground of appeal is dismissed.
(d) Did the tribunal err in Finding that the College had Reasonable and Probable Grounds to Embark on an Investigation of Dr. Trozzi’s Conduct?
[80] I do not need to decide if this ground of appeal lies given the tortured procedural history by which it was dealt with and appealed below. Even if the issue remains appealable, I would dismiss this ground of appeal.
[81] The principal submission made to oppose the investigation was that the College was basing its charges on the non-statutory guidelines and policies. As described in para. 20 of the tribunal’s interlocutory decision dated March 10, 2023, Dr. Trozzi argued that without those guidelines and policies being treated as binding standards of law, the investigation was just a fishing expedition under an order that lacked reasonable and probable grounds.
[82] The tribunal correctly found in both its interlocutory decisions that the College only advanced guidelines and policies as evidence and not as binding statements of law. As such there is no reason why they could not stand as a reasonable and probable grounds to support an investigation. This court found as much in the case of Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738 at para. 65.
(e) Additional Issue
[83] In his reply submission, counsel for Dr Trozzi argued that in finding Dr. Trozzi had engaged in professional misconduct by failing to cooperate with the College, the tribunal erred by not referring to Dr. Trozzi’s good faith reliance on legal advice.
[84] Given that Dr. Trozzi did not testify, it is not clear to me how that fact is in evidence or is stated as a fact by counsel.
[85] In any event, there is no basis to argue that Dr. Trozzi was free to disregard his obligation to cooperate with the College and produce documents even if a lawyer told him that the charging documents could be void if challenged. The lawyer’s opinion, even if stated as a legal fact, is just an opinion. As this case so amply demonstrates, sometimes opinions may be incorrect. In fact, in every piece of litigation there is a winner and a loser. They may all have opinions justifying their positions. The opinions may be qualified in any number of ways. The opinions may weigh the risks and benefits of non-compliance in different possible scenarios.
[86] No law provides that a physician is excused from cooperating with the College on the basis that his lawyer says he has grounds to challenge the investigatory process. The College is the regulator with legal authority to make orders. The lawyer is just the agent of the member physician. Only the former has authority to make orders. The latter has no authority to excuse non-performance.
[87] Counsel tried to submit that Dr. Trozzi was cooperative as required by the “honest, open, and helpful” standard set out by the Court of Appeal in Law Society of Ontario v. Diamond, 2021 ONCA 255 at para. 50. But that submission cannot overcome the tribunal’s finding of fact that,
The member's piecemeal, prolonged and ultimately incomplete approach to providing documents and information to the College was less than "honest, open and helpful."
[88] This finding is well-grounded in the evidence. In fact, there is no evidence to the contrary; just submissions.
OUTCOME
[89] The appeal is dismissed.
[90] The College was successful on the appeal and is presumptively entitled to its costs. The College seeks $19,750 on a partial indemnity basis. Dr. Trozzi’s Costs Outline claims almost $66,000 on the same basis. In my view, the amount sought by the College is fair, reasonable, and proportional.
[91] Dr. Trozzi will pay costs to the College fixed at $19,750 all-inclusive.
Myers J
I agree _______________________________
Newton RSJ
I agree _______________________________
Shore J
Released: November 1, 2024
CITATION: Trozzi v College of Physicians and Surgeons of Ontario, 2024 ONSC 6096
DIVISIONAL COURT FILE NO.: 127/24
DATE: 2024101
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Newton RSJ, Myers and Shore JJ
BETWEEN:
DR. MARK RAYMOND TROZZI Appellant
-and-
COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO Respondent
REASONS FOR DECISION
FL Myers J.
Released: November 1, 2024
[^1]: Doré v. Barreau du Québec, 2012 SCC 12, at paras. 55-56; Loyola High School v. Quebec (Attorney General), 2015 SCC 12 at paras. 3 and 4