CITATION: Rogelstad v. Middlesex Health Alliance, 2025 ONSC 263
DIVISIONAL COURT FILE NO.: 297/24 (DC-24-00000297-0000)
DATE: 2025-01-15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse, Faieta JJ.
BETWEEN:
MICHAEL ROGELSTAD
Appellant
– and –
MIDDLESEX HEALTH ALLIANCE
Respondent
Stephen Wolpert and Glenn Brandys, for the Appellant
Patrick Hawkins, Keegan Boyd and Heather Webster, for the Respondent
HEARD at Toronto: January 7, 2025
BACKHOUSE J.
REASONS FOR DECISION
Overview
[1] The appellant, Dr. Michael Rogelstad, appeals from a decision of the Health Professionals Appeal and Review Board (“HPARB”) which upheld the suspension of his privileges and revocation of his hospital appointment on the basis that he failed to vaccinate against COVID-19 in compliance with the Middlesex Hospital Alliance’s mandatory vaccination policy (“the Policy”).
[2] Dr. Rogelstad seeks to set aside the HPARB Decision made April 22, 2024 (reported at 2023 139178) (the “Decision”) which upheld the decision of the Board of Directors of Middlesex Hospital Alliance (“MHA” or “Hospital”). He further seeks an order reappointing him to the Hospital with his medical privileges reinstated. The MHA requests that the appeal be dismissed.
[3] For the reasons set forth below, the appeal is dismissed.
Statutory Background
[4] Under the Public Hospitals Act, R.S.O. 1990, c. P.40 (“PHA”), a hospital’s board of directors appoints physicians as members of their medical staff and may revoke or suspend these appointments pursuant to a recommendation of the Hospital’s Medical Advisory Committee (“MAC”) and the process set out in its By-laws.
[5] The procedures for suspension and revocation of staff privileges at MHA are set out in Articles 3 and 4 of its Professional Staff By-Laws, dated May 30, 2012 (the “By-Laws”). Articles 3.1(a) and 4 set out the grounds that may give rise to mid-term action to suspend or revoke:
ARTICLE 3. SUSPENSION AND REVOCATION OF PRIVILEGES
3.1 Mid-Term Action With Procedural Guidelines
(a) Mid-term action may be initiated wherever the Professional Staff member is alleged to have engaged in, made or exhibited acts, statements, demeanour or professional conduct, either within or outside of the Hospitals, and the same:
(i) exposes, or is reasonably likely to expose a patient, healthcare provider, employee or any other person in the Hospital to harm or injury;
(ii) is, or is reasonably likely to be, detrimental to patient or worker safety or to the delivery of quality patient care within the Hospitals;
(iii) is, or is reasonably likely to be, detrimental to Hospital operations;
(iv) is, or is reasonably likely to constitute, abuse;
(v) results in the imposition of sanctions by the applicable professional College; or (vi) is contrary to the By-Laws, the Professional Staff Rules and Regulations, the Public Hospitals Act, or any other relevant law or legislated requirement.
Article 4.1(a): Where the conduct, performance or competence of a Professional Staff member exposes, or is reasonably likely to expose a patient, health care provider, employee or any other person at the Hospital to harm or injury and immediate action must be taken to protect the patients and no less restrictive measure can be taken, the Chief of Staff may immediately and temporarily suspend the Professional Staff member’s privileges, pending a meeting of the Medical Advisory Committee and a hearing by the Board.
[6] In the present case, the MHA relied on four of the enumerated grounds, namely that Dr. Rogelstad’s conduct in failing to comply with the vaccination policy:
(a) exposed, or was reasonably likely to, expose a patient, healthcare provider, employee or any other person in the Hospital to harm or injury;
(b) was, or was reasonably likely to be, detrimental to patient or worker safety;
(c) was, or was reasonably likely to be, detrimental to Hospital operations; and,
(d) was contrary to the By-Laws and the Professional Staff Rules.
[7] A physician against whom action is taken under Article 3 or 4 is entitled to a formal meeting before the MAC which makes a recommendation to the Hospital Board. A Hospital Board hearing is held if requested by the physician, and the Hospital Board may accept or reject the MAC’s recommendation. A decision of the Hospital Board can be appealed de novo to HPARB under s. 41 of the PHA.
Factual Background & Procedural History
[8] Dr. Rogelstad is an ophthalmologist who had been employed at MHA for over 30 years.
[9] Shortly after Ontario declared a provincial emergency in response to COVID-19, MHA formed a Pandemic Operations Committee (“POC”) to guide the Hospital through the pandemic.
[10] On August 17, 2021, Ontario’s Chief Medical Officer of Health issued Directive #6 under s. 77.7 of the Health Protection and Promotion Act, R.S.O. 1990, c. H.7. This Directive required all public hospitals to implement a vaccination policy for healthcare workers and permitted adoption of mandatory policies. At paragraph 65 of its Decision, HPARB summarized the preamble to the Directive:
On August 17, 2021, Ontario’s Chief Medical Officer of Health issued Directive #6 for Public Hospitals. In its preamble, Directive #6 stated that many healthcare workers in higher risk settings, remain unvaccinated, posing a risk to patients and health care system capacity due to potential (re) introduction in those settings, placing both healthcare workers and patients at risk of COVID-19 infection. The Directive ordered that all Covered Organizations, including Public Hospitals, must establish and implement, by September 7, 2021, a vaccination policy.
[11] The POC unanimously supported a mandatory vaccination policy which was adopted by the MAC. The policy required everyone at the Hospital, including Dr. Rogelstad, to be fully vaccinated or to have a valid exemption. The policy stipulated that non-compliance could result in suspension or loss of privileges.
[12] Following announcement of the policy, Dr. Rogelstad wrote to the Hospital’s Chief of Staff indicating that he did not intend to receive the vaccination based on his view that it did not prevent transmission of the COVID-19 virus, and, in fact, increased the risk of infection for certain individuals. In response, the Chief advised him that his privileges would be suspended if he did not comply by November 29, 2021.
[13] Dr. Rogelstad failed to meet this deadline, and on November 30, 2021, he was notified that his privileges were suspended pursuant to Article 4.1(a) of the By-Laws. He was also provided notice of a MAC meeting on December 3, 2021 to consider making recommendations to the Hospital Board regarding the revocation of his appointment.
Medical Advisory Committee Recommendations
[14] Following its meetings held on December 3, 2021 and January 12, 2022, the MAC recommended that Dr. Rogelstad’s privileges continue to be suspended and that if he did not provide full proof of vaccination by January 31, 2022, his appointment at the Hospital would be revoked. Following the MAC recommendations, he requested a hearing before the Hospital’s Board of Directors.
MHA Board of Directors Decision – April 25, 2022
[15] The Hospital Board released its decision confirming the recommendations of the MAC on April 25, 2022. In reaching this conclusion, the Board relied on evidence provided by employees in the Hospital’s senior leadership, including its Chief of Staff, Chief of Medicine, and its Infection Prevention and Control Specialist, who testified in support of the mandatory vaccination policy and explained why it was adopted.
[16] The Hospital Board also heard from one expert witness, Dr. Dick Zoutman, who it qualified as a specialist in infectious disease. He testified that it was reasonable for the Hospital to require vaccination due to its high-risk patient population, noting that unvaccinated people have a higher likelihood of contracting and transmitting COVID-19. He also discussed various clinical studies demonstrating that the vaccines were safe for almost all demographics. On cross-examination, Dr. Zoutman conceded that he was not involved with the Hospital and was not familiar with its layout or the specific measures adopted there. He also conceded that he was “unaware of any evidence that anyone in particular will be safer if Dr. Rogelstad gets vaccinated”.
[17] Dr. Rogelstad challenged Dr. Zoutman’s evidence and testified that the Policy was out of step with current guidance from experts in the field. He characterized Dr. Zoutman’s evidence as “faulty and generalized”, especially with respect to the risks associated with the vaccine. He led evidence suggesting that anaphylaxis responses to the vaccine have been underreported and that there were further risks of myocarditis and pericarditis as well.
[18] The Hospital Board ultimately concluded that the mandatory Policy was reasonable, given the Hospital’s duty to provide a safe environment for its patients. It also referenced Directive #6 from Ontario’s Chief Medical Officer of Health, which required hospitals to implement vaccination policies and expressly permitted them to impose mandatory policies subject to certain exemptions.
[19] Given the reasonableness of the Policy, it further determined that permitting Dr. Rogelstad to continue practice would violate the By-Laws and Professional Staff Rules. On this basis, it confirmed that the suspension of his privileges and revocation of his hospital appointment would continue unless he provided proof of vaccination.
[20] Following the decision of the Hospital Board, Dr. Rogelstad requested a hearing before HPARB pursuant to section 41(1)(d) of the PHA.
HPARB Decision - April 22, 2024
[21] On appeal, the HPARB considered whether Dr. Rogelstad’s refusal to undergo COVID-19 vaccination as required by the Policy justified the immediate suspension of his privileges. It also considered the related issue of whether the Policy was justified. During a four-day hearing, HPARB heard from six witnesses called by MHA, four employees in the senior leadership of the Hospital, Dr. Zoutman and Dr. David Johnson, an expert qualified in ophthalmology who testified about various opportunities that exist for ophthalmologists to earn a living in Ontario without a hospital appointment. Dr. Rogelstad testified on his own behalf but called no other witnesses. Transcripts of evidence in chief of witnesses and the cross-examination of certain witnesses from the Hospital Board hearing were entered into evidence. Several thousand pages of documentary evidence including recent studies, correspondence, emails, guidance and recommendations from various health organizations and directives from provincial government were submitted to HPARB by both parties. Witnesses were asked questions about the documentation.
Preliminary Issue – Post-Board Hearing Evidence
[22] As a preliminary matter, Dr. Rogelstad argued that after the implementation of the Policy and the Hospital Board decision of April 25, 2022, new evidence had since come to light corroborating his view that vaccines were ineffective. He argued that this evidence was highly relevant to the issues on appeal and urged HPARB to consider it. He also stated that he contracted and recovered from COVID-19 during this interim period which gave him greater natural immunity such that his vaccination was no longer necessary. The HPARB heard this evidence but held that in assessing whether the actions taken against him were justified, the relevant evidence was restricted to that available when those actions were taken.
Reasonableness of Vaccination Policy
[23] The HPARB determined that the mandatory vaccination policy was in the best interests of the Hospital and met the test set out in Matangi v. Kingston General Hospital[^1], as the Policy was administered with fairness, having been applied equally to all workers; consistent with its rationale to protect patients, compatible with its responsibility under Directive #6, and unencumbered with irrelevant considerations.[^2]
[24] This conclusion was based on the many witnesses called by the Hospital, including Dr. Zoutman, who was qualified as an expert “capable of providing opinion evidence in the areas of infectious disease and medical microbiology, including COVID-19 and its effects, prevention, and treatment”. He reiterated his evidence that the vaccines were safe and necessary to prevent transmission among staff and patients as hospital capacity became increasingly stressed, and further that personal protective equipment alone was insufficient.[^3]
[25] In addition to hearing Dr. Zoutman’s testimony, HPARB had before it three reports authored by Dr. Zoutman:
(a) In the first report, dated December 15, 2021, Dr. Zoutman explained the COVID19 virus, the development of the COVID-19 vaccine, adverse effects related to the COVID-19 vaccine, and the use of PPE [Personal Protective Equipment] and COVID-19 testing. At the conclusion of the report, Dr. Zoutman opined that the most potent prevention method against COVID-19 is vaccination, and that while testing, contact tracing, and PPE are important, without vaccination, these methods are not sufficient protection in a high risk environment such as a hospital.
(b) In the second report, dated January 24, 2022, Dr. Zoutman offered comments in response to Dr. Rogelstad’s November 7, 2021 letter to Dr. Ferguson, as well as commentary on the implications of the Omicron variant of COVID-19. Dr. Zoutman concluded that a health care worker who is vaccinated against COVID-19 is much less likely to get COVID-19 and therefore less likely to transmit it to others.
(c) In the third report, dated March 17, 2023, Dr. Zoutman set out that at the time of Dr. Rogelstad’s suspension, the standard for vaccination against COVID-19 was a two dose primary series and that the MHA Policy was “entirely appropriate and in keeping with the protocols recommended nationally and provincially” and “would be expected to provide good protection from COVID-19 infection and reduce the risk of subsequent transmission of COVID-19 to others, particularly highly vulnerable hospitalized patients”.
[26] In addition, HPARB heard evidence about the public health guidance the Hospital had at and around the time the Policy was brought into effect, strongly supporting the implementation of a mandatory vaccination policy. This evidence is summarized in the Decision as follows:
In June 2021, Public Health Ontario provided a publication, Interim Guidance on Infection Prevention and Control for Health Care Providers (HCP) and Patients against Covid-19. It recommended that all HCPs should be vaccinated against COVID-19 and that all health care settings should encourage HCP’s to be vaccinated.
On July 16, 2021, the Ontario Medical Association advised that all HCPs should be required to be fully vaccinated against COVID-19 to protect themselves, their patients, and the community.
On July 26, 2021, the American Medical Association (AMA) issued a release advising of its support of COVID-19 vaccine mandates for HCPs. The release stated, “It is critical that all people in the healthcare workforce get vaccinated against COVID-19 for the safety of our patients and our colleagues.”
On August 3, 2021 the Canadian Medical Association and the Canadian Nurses Association called for mandatory COVID-19 vaccinations for HCPs, “… the vaccination of healthcare workers is an additional measure to protect patients, the health workforce and healthcare system capacity.”
On August 17, 2021, Ontario’s Chief Medical Officer of Health issued Directive #6 for Public Hospitals. In its preamble, Directive #6 stated that many healthcare workers in higher risk settings remain unvaccinated, posing a risk to patients and health care system capacity due to potential (re) introduction in those settings, placing both healthcare workers and patients at risk of COVID-19 infection. The Directive ordered that all Covered Organizations, including Public Hospitals, must establish and implement, by September 7, 2021, a vaccination policy.
On September 3, 2021, Christopher Mackie, the Medical Officer of Health of the Middlesex-London Health Unit, the Health Unit in which MHA is located, authored a letter stating that mandatory vaccination policies have more potential to prevent COVID-19 cases, outbreaks, deaths, and business closures than do symptom screening, physical distancing, masking, and hand-washing hygiene. Medical Officer of Health Mackie “strongly recommended” that all employers ensure that staff, volunteers, on-site contractors, and patrons are fully vaccinated, if eligible.
On September 22, 2021, the Canadian Thoracic Society, the National Society for respirologists, respiratory health care professionals and respiratory scientists, called for all levels of government to mandate COVID-19 vaccinations for healthcare workers across Canada.
On October 13, 2021, a joint statement from the College of Physicians and Surgeons of Ontario, Ontario’s Chief Medical Officer of Health, and Ontario’s Ministry of Health declared that “vaccination is vaccination is the most effective measure to reduce the risk of COVID-19 in individuals and in our community.”
On October 19, 2021, the Ontario Hospital Association recommended a mandatory requirement for all healthcare workers to be vaccinated, including those in hospitals.
Also, on October 19, 2021 the Ontario Science Advisory Table, “a group of science experts advising Ontario on the pandemic” issued a release stating that it supports COVID-19 vaccination mandates for hospital workers.
On October 21, 2021, Public Health Ontario advised HCPs and public health partners that there is no risk of an MRNA vaccine, which includes the Pfizer and Moderna vaccines, causing COVID-19.
On October 28, 2021, Public Health Ontario issued guidance stating that the vaccine effectiveness against severe disease is well maintained over time, however vaccine effectiveness does gradually decrease. This publication stated that studies have shown that those in receipt of a COVID-19 vaccine were less likely to transmit the disease to others.
On November 1, 2021, the Council of Chief Medical Officers, an organization including the “Chief Medical Officers of Health from each provincial and territorial jurisdiction, Canada’s Chief Public Health Officer, the Chief Medical Adviser of Health Canada, the Chief Medical Officer of Public Health of Indigenous Services Canada, the Chief Medical Officer from the First Nations Health Authority and ex-officio members from other federal government departments” advised that, “vaccinated individuals are [protecting] themselves, their families and communities against severe COVID-19 outcomes and [reducing] the risk of virus transmission.”
There was no evidence before the Appeal Board of any public health organization that did not recommend vaccination
[27] In summary, the evidence before HPARB was that at the time the Policy was being considered and brought into effect, public health guidance unanimously supported health care professionals becoming vaccinated, and that vaccination was the most effective measure to reduce the risk of COVID-19 in individuals and the community. Dr. Rogelstad agreed that he was not aware of any public health authority that did not recommend vaccination.
[28] While Dr. Rogelstad provided contrasting evidence and asserted that vaccines did not, in fact, prevent transmission, HPARB noted that this was opinion evidence he was not entitled to give, having made no attempt to qualify himself as an expert witness. As such, wherever he attempted to interpret studies or express opinions on the virus differing from that offered by Dr. Zoutman, HPARB held that it “prefers the evidence of Dr. Zoutman”.[^4]
Suspension and Revocation
[29] HPARB found that it was reasonable for the Hospital and its Chief of Staff to take immediate mid-term action, whether under Article 3.5 or Article 4.1 of the Professional Staff By-Law. Further, it also found that the recommendations of the MAC were justified under Article 3 of the By-Law.
Issues:
[30] Dr. Rogelstad raises the following issues on this appeal:
Did HPARB err in its decision with respect to the admissibility of certain evidence?
Did HPARB provide inadequate reasons to support its decision and/or misapprehend or ignore certain evidence?
Did HPARB apply the appropriate test to assess the reasonableness of the vaccination policy?
Did HPARB err in failing to consider issues raised by Dr. Rogelstad concerning procedural fairness and the Hospital Board’s alleged bias?
Was HPARB required to make findings on the specific harm posed by Dr. Rogelstad’s decision to forego vaccination?
Court’s Jurisdiction
[31] The Divisional Court has jurisdiction over this appeal pursuant to s. 41(5) and s. 43(1) of the PHA.
Standard of Review
[32] The parties agree that appellate standards of review apply. Questions of law are reviewable on a correctness standard. Questions of fact and mixed fact and law from which the legal principle is not readily extricable are reviewable on a standard of palpable and overriding error.[^5] Questions of procedural fairness on a statutory appeal are reviewed on a correctness standard.
Issue 1: Did HPARB err in its decision with respect to the admissibility of certain evidence?
Post-Board Hearing Evidence
[33] Dr. Rogelstad argues that while HPARB did not refuse to hear evidence arising after the Policy’s implementation, it nonetheless declined to consider much of that evidence or reference it in its Decision. His evidence concerning the waning efficacy of COVID vaccinations, the evolution of the virus, and his own natural immunity were all highly relevant to the core issue of the Policy’s reasonableness. He argues HPARB was bound to consider the totality of this evidence given that this was a de novo hearing.
[34] HPARB held:
During the course of the hearing, the Appeal Board did not refuse to hear any evidence on the basis that it arose after the Policy was implemented.
The Appeal Board heard the evidence presented and, in arriving at its decision, considered what weight should be assigned to that evidence.
The Appeal Board finds that in assessing whether the mid-term actions taken by the Respondent were justified under the Hospital’s By-Law, the relevant evidence is that which existed at the time those mid-term actions were taken.
It is only common sense that the assessment of whether a mandatory vaccination policy is reasonable must be based on the state of medical knowledge that existed on the date that the policy was implemented or acted upon. In this case, as the Hospital Board was required to consider the MAC recommendations shortly after they were made and within the Appellant’s credentialling period, it is appropriate to extend the relevant timeframe to the date of the Hospital Board’s decision.
In the event that the Appellant is of the opinion that circumstances have arisen after the Hospital Board decision that have resulted in the Policy no longer being reasonable, it is open to him to reapply for privileges and, at that time, take issue with the reasonableness of the Policy.
[35] Dr. Rogelstad relied on the decisions in Nikore v. Brant Community Healthcare System[^6] and Depass v. Chatham-Kent Health Alliance[^7] which were preliminary decisions made in advance of the hearing to consider what evidence could be admitted at the HPARB hearing. In those decisions HPARB held that its mandate was to review the reasonableness of the policy up to the time of the HPARB hearing. At the hearing in Depass[^8], HPARB reversed itself and adopted the finding in this case and the approach in Ontario v. Trinity Bible Chapel[^9] that hindsight is not the standard.
[36] This is consistent with numerous labour arbitration decisions as referenced by HPARB and also with case law arising from the PHA, including this Court’s decision in Gupta v. William Osler Health System, which support that HPARB ought to only consider evidence that was available at the Hospital Board hearing.[^10] In Gupta, this Court considered the second part of the test set out in subsection 41(5) of the PHA, i.e., what action “ought to be taken in accordance with [the PHA], the regulations and the by-laws” and held that the Appeal Board must consider the physician’s past conduct.[^11]
[37] HPARB did not ignore the evidence with respect to the pandemic and vaccinations that arose following the implementation of the Policy. HPARB outlined the evidence arising following the Policy’s implementation that Dr. Rogelstad argued ought to be considered and addressed the parties’ submissions on the issue. There is nothing unreasonable in HPARB’s holding that hindsight is not the standard.
[38] As noted in the Decision, Dr. Rogelstad has a statutory right to reapply for privileges now or in the future and that is the proper course to follow if he wishes to challenge the current reasonableness of the Policy. It is not the role of HPARB or this Court to assume primary jurisdiction and decide whether privileges ought to be regranted now, in 2025. The issue this Court must determine is whether HPARB committed any palpable and overriding error or error of law in deciding to confirm the 2022 decision of the Hospital Board.
Dr. Zoutman’s Evidence
[39] Dr. Rogelstad argues that HPARB failed to apply the proper test for admissibility of expert evidence as set out in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9. Rather, it simply qualified Dr. Zoutman as an expert capable in the areas of infectious disease and microbiology without providing reasons or any analysis based on the Mohan factors. Had it conducted the proper analysis, Dr. Rogelstad submits that it would have found that Dr. Zoutman’s evidence was not logically relevant, reliable, or even impartial. Since Dr. Zoutman “never set foot” in the Hospital, his opinion about whether it was safe without a mandatory vaccine policy was unreliable.
[40] HPARB set out Dr. Zoutman’s credentials as an expert at paragraph 75 of its Decision:
The Respondent called Dr. Dick Zoutman, who was qualified as an expert capable of providing opinion evidence in the areas of infectious diseases and medical microbiology, including COVID-19 and its effects, prevention, and treatment. In addition to his testimony, three of Dr. Zoutman’s reports were filed. At the time of his first report, December 15, 2021, Dr. Zoutman was a Professor of Pathology and Microbiology and Molecular Medicine and Community Health and Epidemiology, and of Medicine (Infectious Diseases) at Queen’s University. He had been the Chair of the Department of Medical Microbiology and Medical Director of Infection Control, and Chair of the Division of Infectious Diseases at the Southeastern Ontario Health Services in Kingston, Ontario until December 2011, when he was appointed Chief of Staff at Quinte Health Network. From April 2018 until July 2020, he was the inaugural Chief of Staff at the newly formed Scarborough Health Network in Toronto.
[41] Dr. Zoutman has been recognized as an expert in infectious diseases and medical microbiology in legal proceedings, including by the Ontario Superior Court of Justice in a class action relating to COVID-19. He has also been engaged to speak about matters related to COVID-19 and its effects, prevention, and treatment.
[42] Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 gives wide powers to tribunals concerning the admission of evidence, including expert evidence. The Divisional Court has held that decisions to admit expert evidence under the Mohan/White Burgess framework are entitled to deference and appellate interference is justified only where the finding is clearly unreasonable, contaminated by an error in principle, or reflective of a material misapprehension of evidence.[^12] The HPARB decision contained no such error, having outlined Dr. Zoutman’s extensive qualifications which were not challenged by Dr. Rogelstad. It was appropriate for HPARB to qualify Dr. Zoutman as an expert and to admit his evidence.
[43] In addition, Dr. Rogelstad submits that HPARB failed to consider the admissibility and proper weight to be given to Dr. Zoutman’s evidence. He asserts that much of Dr. Zoutman’s testimony went beyond the areas of expertise for which he had been qualified.
[44] Dr. Zoutman’s evidence regarding the pandemic and vaccines was relevant to the core issue in this matter and his evidence was necessary to assist HPARB with assessing the reasonableness of the Policy.
[45] Dr. Rogelstad sets out a list of reasons why he is of the opinion that Dr. Zoutman’s evidence is unreliable, including that he supposedly did not know or read things in the materials submitted by Dr. Rogelstad, and that he allegedly failed to produce journal articles and secondary sources which he relied upon.
[46] On the first point, Dr. Zoutman testified to his knowledge of the literature and efforts to stay current with the thousands of articles written on COVID-19, and HPARB was alive to the different opinions on the literature expressed by Dr. Rogelstad. On the second point, Dr. Rogelstad had Dr. Zoutman’s reports, which list all the articles and secondary sources he relied upon in compliance with HPARB’s rules. The Hospital disputes that a request was made for copies of the articles, which are largely publicly available, despite a case conference and a productions motion specifically to address disclosure issues. In any event, if the Hospital misconstrued the disclosure request, no follow up request was made.
[47] As to Dr. Rogelstad’s argument that Dr. Zoutman was unqualified to opine on the necessity of the mandatory vaccination policy having “never set foot” in the Hospital, this argument ignores the reality that it was not practical, particularly in the context of a pandemic, for an alliance of two small rural hospitals to independently assess whether the specific circumstances of the Hospital made it safe without a mandatory vaccine policy or to attempt to quantify the harm from a single unvaccinated doctor. It was reasonable for the Hospital to consider and be guided by what the larger hospitals were doing and the public health recommendations at the time.
[48] While Dr. Rogelstad frames this argument as being about admissibility of evidence, it is really an argument about the weight HPARB gave to Dr. Zoutman’s evidence. It is not the function of an appellate court to reweigh evidence.
Dr. Rogelstad as Participant Expert
[49] Given his credentials as a medical doctor and various leadership positions at the Hospital, Dr. Rogelstad argues that the HPARB erred in refusing to treat him as an expert participant. While it noted that he “made no attempt to qualify himself as an expert”, he submits that there was no need for him to do so. He cites Westerhof v. Gee Estate[^13] for the proposition that a witness with special skill, knowledge, training, or experience can give opinion evidence without being formally qualified as an expert provided a) the opinion is based on the witness’ own observation or participation in the events at issue; and b) the witness formed the opinion as part of the ordinary exercise of the skill, knowledge, training or experience.
[50] Dr. Rogelstad is an ophthalmologist with no training or expertise in public health, infectious diseases, vaccines, medical microbiology or infection prevention and control. The HPARB did not err in refusing to treat Dr. Rogelstad as an expert.
[51] At the hearing before the MHA Board and HPARB, Dr. Rogelstad submitted volumes of literature from reputable organizations such as the Centers for Disease Control, World Health Organization, Ontario Science Table, Public Health Ontario, and the National Advisory Committee on Immunization, but then did not refer to much of it, refused to agree with the publications’ conclusions, and “cherry-picked” data from isolated articles.[^14] He drew his own conclusions, often contrary to what the particular literature concluded.[^15] For example, a scientific article relied upon by Dr. Rogelstad notes “[t]he vaccines were amazingly effective in preventing COVID-19, saved a large number of lives and changed the impact of the pandemic”, yet he refused to accept this statement.[^16] He refused to agree that the organizations from which he had submitted publications were credible, or that the MHA Board and HPARB could rely on the conclusions and recommendations of these organizations.[^17]
[52] In any event, HPARB was clearly alive to Dr. Rogelstad’s evidence and specifically referred to his argument that the vaccination could be dangerous and did not reduce transmission.
Issue 2: Did HPARB provide inadequate reasons to support its decision and/or misapprehend or ignore certain evidence?
[53] Dr. Rogelstad submits, given the significant consequences of HPARB’s decision, that HPARB had a heightened responsibility to provide adequate justification and reasoning to support its decision. He submits it fell short of this standard, having failed to consider or address any of his evidence which was critical to the disputed issues concerning the relative efficacy of the vaccine, its side effects, the quality of the Hospital’s existing safety protocols, and his natural immunity from the virus. He submits that for HPARB to ignore these issues constitutes a palpable and overriding error undermining its finding that the policy was justified and necessary.
[54] While Dr. Rogelstad complains that HPARB did not address every single one of his arguments or all of his evidence in detail, it was under no obligation to do so. Failure to include all arguments in reasons “does not impugn the validity of either the reasons or the result”.[^18] Furthermore, HPARB explained its rationale for not addressing some arguments in detail given that it was opinion evidence Dr. Rogelstad was not entitled to give and, secondly, that much of the evidence was not relevant since it only arose after the Hospital Board decision was made.
[55] In considering the consequences of the Decision on Dr. Rogelstad, the evidence was that it did not take away his livelihood. He was able to work as an ophthalmologist in a clinic setting following his suspension and revocation of privileges at the Hospital. This undermines Dr. Rogelstad’s argument that there was a heightened responsibility on HPARB to provide justification and reasoning. In any event, HPARB did provide adequate justification and reasoning.
Issue 3: Did HPARB apply the appropriate test to assess the reasonableness of the vaccination policy?
[56] Dr. Rogelstad argues that the HPARB failed to properly assess the Policy’s reasonableness under the test set out in Irving Paper[^19] and KVP[^20] but instead applied the less stringent standard from Matangi[^21].
[57] Irving Paper and KVP dealt with workplace policies between employers and workers which infringe workers’ rights to privacy, autonomy, and bodily integrity. The test developed in those cases was whether the policy strikes a reasonable balance by assessing the nature of the employer’s interests, whether any less intrusive means are available to fulfill them, and the policy’s impact on workers in a labour relations management rights context.
[58] Matangi deals with a physician’s compliance with a hospital’s by-laws and hospital policy. At paragraphs 102-104, the Divisional Court in Matangi adopted the test in Sousa v. Board of Managers of Val Verde Memorial Hospital[^22] that “so long as a hospital’s policy was administered with fairness, geared by a rationale, compatible with the hospital’s responsibility, and unencumbered with irrelevant considerations, a court should not interfere with it”.
[59] There was nothing unreasonable about employing the Matangi test in this case where the dominant consideration was the public interest of a hospital remaining open in a pandemic. HPARB’s decision clearly explained why the policy was justified with reference to the Matangi test, having found that the policy was administered fairly and equally to all workers. It also found that it was compatible with the Hospital’s statutory responsibilities and was not formed based on any irrelevant considerations. It then considered, in light of the policy’s reasonableness, whether the Hospital’s actions were justified under the applicable By-laws. HPARB’s Decision meets the standard of justification, transparency, and intelligibility.
Issue 4: Did HPARB err in failing to consider issues raised by Dr. Rogelstad concerning procedural fairness and the Hospital Board’s alleged bias?
[60] Dr. Rogelstad submits that he raised several issues concerning the Hospital Board’s bias before the HPARB. First, each of the Hospital Board panel members had considered the subject matter of the hearing prior to the hearing and had voted in favour of the policy as members of the MAC. He asserts this violates s. 39(4) of the PHA, as well as the rules of natural justice which require a fair hearing. Section 39 (4) provides:
Hearings
39 (1) Where an applicant requires a hearing by the board in accordance with subsection 37 (7), the board shall appoint a time for and hold the hearing and shall decide the matter in the exercise of its powers under clause 36 (a) or (b). R.S.O. 1990, c. P.40, s. 39 (1).
Members holding hearing not to have taken part in investigation, etc.
(4) Members of the board holding a hearing shall not have taken part in any investigation or consideration of the subject-matter of the hearing before the hearing and shall not communicate directly or indirectly in relation to the subject-matter of the hearing with any person or with any party or representative of a party except upon notice to and opportunity for all parties to participate, but the board may seek legal advice from an adviser independent from the parties and in such case the nature of the advice should be made known to the parties in order that they may make submissions as to the law. R.S.O. 1990, c. P.40, s. 39 (4).
[61] Dr. Rogelstad points out that the panel members did not disclose their involvement and commitment to the Policy to him. He submits that an informed person viewing the matter practically would conclude this created a reasonable apprehension of bias sufficient to colour the entire proceeding. He asserts that the Hospital Board’s decision was tainted by bias for these reasons. Having confirmed the Hospital Board’s decision without considering these issues, the HPARB decision is tainted as well.
[62] The jurisprudence is clear that procedural defects are amenable to rectification on appeal and can be cured by a subsequent hearing in which natural justice is accorded.[^23] There is no suggestion that the members of HPARB who heard Dr. Rogelstad’s appeal had ever considered the issue before. Therefore, there was no need for HPARB to consider whether the members of the Hospital Board who revoked Dr. Rogelstad’s privileges were biased.
[63] There is no merit to Dr. Rogelstad’s argument that HPARB did not hold a de novo hearing and simply deferred to the Hospital Board’s decision. HPARB heard from six witnesses over four days, including an expert in infectious disease. During the hearing thousands of pages of evidence and scientific articles were filed. The fact that HPARB did not agree with Dr. Rogelstad does not mean it deferred to the Hospital Board.
[64] Dr. Rogelstad also submitted that HPARB was biased because it did not consider or reference his request for costs. The fact that the Decision does not reference Dr. Rogelstad’s one sentence request for costs in his written closing submissions does not show bias or make the Decision unreasonable. He did not suggest that he should be awarded costs if he was unsuccessful and it was not necessary for the Decision to reference his request for costs.
[65] The two cases Dr. Rogelstad relies on regarding the issue of bias arise in highly distinguishable circumstances. In Sternberg v. Ontario Racing Commission[^24], bias was found where the decision was prepared before the hearing and the appellant was not allowed to make submissions on penalty. R. v S. (RD)[^25] involved comments made by a judge in her reasons giving rise to an allegation of reasonable apprehension that she was not impartial as between the Crown and the accused.
[66] In this case, there is strong indicia that HPARB considered whether the Policy was reasonable de novo and independently from the Hospital Board and was not itself biased in any way which cured any procedural defect below It is not necessary for us to determine whether there was such a defect.
Issue 5: Was HPARB required to make findings on the specific harm posed by Dr. Rogelstad’s decision to forego vaccination?
[67] Dr. Rogelstad further argues that the Hospital failed to adduce any evidence quantifying the actual or likely harm posed by his refusal to be vaccinated. He submitted that Section 3.5 of the Hospital’s By-Law required that the Hospital establish that Dr. Rogelstad’s conduct exposes or is reasonably likely to expose patients to harm or injury, which it failed to do, and that HPARB was obligated to consider this lack of evidence but failed in this respect as well.
[68] There is no merit to this argument. To hold that a small community hospital is responsible for independently assessing the specific risk posed by a single unvaccinated physician is unreasonable, given the context of a global pandemic where hospitals and health professionals were operating in extremely demanding circumstances.
[69] It was entirely appropriate for the Hospital to rely on public health guidance to assess the risk of unvaccinated workers in the Hospital, as noted by HPARB. Many of the authorities cited by Dr. Rogelstad support vaccination, among health care workers in particular, and there is no evidence to support the assertion that hospitals needed to conduct individualized risk assessments. Nor was there any public health guidance suggesting hospitals should not implement mandatory vaccination policies. To the contrary, Directive 6 expressly permitted hospitals to do so.
Conclusion
[70] HPARB’s Decision is reasonable. The appeal is dismissed.
Costs
[71] As agreed by the parties, MHA, as the successful party, is entitled to costs in the all-inclusive amount of $30,000.
Backhouse J.
I agree _______________________________
Sachs J.
I agree _______________________________
Faieta J.
Released: January 15, 2025
CITATION: Rogelstad v. Middlesex Health Alliance, 2025 ONSC 263
DIVISIONAL COURT FILE NO.: 297/24 (DC-24-00000297-0000)
DATE: 2025-01-15
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, Backhouse, Faieta JJ.
BETWEEN:
MICHAEL ROGELSTAD
Appellant
– and –
MIDDLESEX HEALTH ALLIANCE
Respondent
REASONS FOR DECISION
BACKHOUSE J.
Released: January 15, 2025
[^1]: 1998 18863 (ON SCDC). [^2]: Decision, at paras. 80-81. [^3]: Decision, at paras. 75-77. [^4]: Decision, at para. 79. [^5]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37; see also Tenn-Lyn v. Mackenzie Health, 2024 ONSC 36 at para. 39. [^6]: 2013 44392 (ON HPARB). [^7]: 2023 39134 (ON HPARB) at para. 30. [^8]: DePass v. Chatham-Kent Health Alliance, HPARB Decision November 26, 2024. [^9]: 2023 139178 (ON HPARB) at paras. 45 and 46, aff’d 2023 ONCA 134 at paras. 52-60. [^10]: HPARB Decision at para 41, RC, Tab 71; Gupta v William Osler Health System, 2017 ONSC 1294 [“Gupta”]; Canadian Union of Public Employees, Local 1866 v Worksafe New Brunswick, 2023 1 (NBLA); Lakeridge Health v CUPE LOCAL 6364, 2023 33942 (ON LA); Parmar v Tribe Management Inc., 2022 BCSC 1675 at para 101; Toronto Professional Fire Fighters’ Association, IAAF Local 2888 v Toronto (City), 2022 78809 (ON LA); Revera Inc.(Brierwood Gardens et al) v Christian Labour Association of Canada Award, 2022 28657 (ON LA) at para 126; Lavergne-Poitras v Canada (AG), 2022 FC 1391 at para 32. [^11]: Gupta at para.41. [^12]: Connor Homes v. Director, 2021 ONSC 3195 (Div Ct) at para. 43. [^13]: 2015 ONCA 206. [^14]: Transcript from the Examination-in-Chief of Dr. Vandewalle, March 29, 2023, p. 75, Respondent’s Compendium (“RC”), Tab 1; Transcript from the Cross-Examination of Dr. Rogelstad, August 30, 2023, pp. 158-164, 217-222, RC, Tab 8; News Release – AHS will no longer require COVID-19 Immunization as a Condition of Employment, July 18, 2022, RC, Tab 37; Effectiveness of the Coronavirus Disease 2019 (COVID-19) Bivalent Vaccine dated December 19, 2022, RC, Tab 38. NSW Respiratory Surveillance Report – two weeks ending December 31, 2022, RC, Tab 8. Respondent’s Compendium, Tab 6. [^15]: Transcript from the Cross-Examination of Dr. Rogelstad, August 30, 2023, p. 226-229 RC, Tab 8. [^16]: Nabin K.Strestha et al., Effectiveness of the Coronavirus Disease 2019 (COVID-19) Bivalent Vaccine RC Tab 65, Tab 8. 22 Transcript from the Cross-Examination of Dr. Rogelstad, August 30, 2023, p. 182, RC, Tab 8. [^17]: Transcript from the Cross-Examination of Dr. Rogelstad, February 1, 2022, pp. 121-125 RC, Tab 12; Transcript from the Cross-Examination of Dr. Rogelstad, August 30, 2023, pp. 143-154, RC, Tab 8. [^18]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para.94; Tenn-Lynn v. Trillium Partners, 2022 ONSC 6329, at para. 15; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62. [^19]: Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper Ltd. (Irving Paper), 2013 SCC 34 at para. 81. [^20]: Re Lumber & Sawmill Workers Union Local 2537 and KVP Co. Ltd, 1965 1009 (ON LA). [^21]: Matangi v. Kingston General Hospital, (Matangi), 1998 18863 (Div Ct.) [^22]: (1971), 437 F.2d 173 (1971), at p. 177. [^23]: McNamara v. Ontario (Racing Commission), 1998 7144 (ON CA) at para. 26; and Khan v. University of Ottawa, 1997 941 (ON CA). [^24]: Sternberg v. Ontario Racing Commission, 2008 50515 (ON SCDC). [^25]: R. v S. (RD), 1997 324 (SCC), [1997] 3 S.C.R. 484.