CITATION: Kilian v. College of Physicians and Surgeons of Ontario, 2025 ONSC 2829

DIVISIONAL COURT FILE NO.: DC-24-558-00JR

DATE: 2025/05/09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Faieta, Rees JJ.

BETWEEN:

Dr. Rochagne Kilian

Paul Slansky, for the Applicant

Applicant

– and –

The College of Physicians and

Ruth Ainsworth, for the Respondent

Surgeons of Ontario

Respondent

HEARD at Toronto: April 2, 2025

Rees J.

AMENDED REASONS FOR DECISION

Overview

[1] The applicant, Dr. Rochagné Kilian, is a member of the College of Physicians and Surgeons of Ontario. She practised family and emergency medicine in Owen Sound.

[2] In September 2021, the College received complaints and information that Dr. Kilian was providing patients with exemptions from the COVID-19 vaccine requirements without medical justification. The Registrar of the College recommended that investigators be appointed into Dr. Kilian’s conduct. The Inquiries, Complaints and Reports Committee of the College (ICRC) approved the appointment of investigators.

[3] The College investigators requested that Dr. Kilian provide certain information and records relevant to the investigation. Dr. Kilian refused.

[4] In October 2021, after receiving some information from the investigation, the ICRC imposed interim restrictions on Dr. Kilian’s certificate of registration, directing that she not provide various forms of COVID-19 exemptions.

[5] Additional information then came to the attention of the ICRC that Dr. Kilian was not complying with these restrictions. The ICRC therefore imposed an interim suspension on Dr. Kilian’s certificate.

[6] Dr. Kilian continued to refuse to cooperate with the College investigation. In May 2023, the College obtained an order from the Superior Court of Justice under s. 87 of the Health Professions Procedural Code, being Schedule 2 to Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“Code”), requiring Dr. Kilian to cooperate fully with the College’s investigation, including by complying with the requests made by the investigation. The Court of Appeal for Ontario upheld this order and leave to the Supreme Court of Canada was dismissed.

[7] Despite not having sought a stay of the Superior Court’s s. 87 order, Dr. Kilian continued to refuse to provide the records sought until she had exhausted her appeals.

[8] In August 2023, the ICRC referred allegations of professional misconduct to the College’s Discipline Tribunal arising from Dr. Kilian’s alleged failure to cooperate with the investigators. The underlying investigation into her practice and conduct remains at the investigative stage.

[9] In December 2023, Dr. Kilian asked the ICRC to reconsider its interim suspension and appointment of investigators. The ICRC dismissed Dr. Kilian’s request.

[10] Dr. Kilian brings this application for judicial review of the ICRC’s dismissal of the reconsideration request.

[11] I would dismiss the application for judicial review for two reasons. First, Dr. Kilian’s challenges to the appointment of the investigators and her challenges based on the lawfulness of the s. 76 demand, the division of powers, unwritten constitutional principles, the alleged violation of her rights under the Canadian Charter of Rights and Freedoms, and abuse of process are premature. Second, the ICRC’s dismissal of the reconsideration request was reasonable. There was a reasonable basis for the ICRC to conclude that Dr. Kilian’s continued suspension was necessary to protect patients and the public.

Background

Events leading to the initial College investigation

[12] In September 2021, the College received a series of complaints about Dr. Kilian. These complaints arose from two sources. First, there were complaints from employers who had been presented with vaccine exemptions for their employees signed by Dr. Kilian. Those exemptions did not include any medical explanation as to why the employees should be exempted from COVID-19 vaccines.

[13] Second, the College received a complaint about public statements Dr. Kilian made concerning the safety of the COVID-19 vaccine and which were critical of COVID-19 policies and vaccine mandates.

[14] The Registrar sought authorisation from the ICRC under s. 75(1)(a) of the Code to appoint investigators into Dr. Kilian’s conduct.

[15] On October 1, 2021, the ICRC approved the Registrar’s request, and the Registrar appointed investigators. Dr. Kilian was informed the same day and was provided redacted documents to support the conclusion of reasonable and probable grounds to believe that she had committed an act of professional misconduct or is incompetent.

The first interim order: restricting Dr. Kilian’s practice

[16] The investigation revealed further statements made in public by Dr. Kilian about COVID-19 and vaccines, as well as details on further exemptions that she was signing for individual patients.

[17] Under s. 76(3.1) of the Code, registrants must “co-operate fully with an investigator.” Under s. 76(3), no one shall “obstruct an investigator or withhold or conceal from him or her or destroy anything relevant to the investigation.” It is also an act of professional misconduct to fail “to respond appropriately or within a reasonable time to a written inquiry from the College”: O. Reg. 856/93 under the Medicine Act, 1991, S.O. 1991, c. 30, s. 1(1), para. 30.

[18] The investigators asked Dr. Kilian to provide: a complete list of the patients for whom she had provided medical exemptions for COVID-19 vaccines, mask mandates or testing; the records of patients for whom she had prescribed certain medications; and the supporting medical records for these patients.

[19] The investigators requested this information several times. Dr. Kilian refused to provide the information and records. I will return to this below.

[20] On October 15, 2021, the investigators provided the information that had been obtained to that date to the ICRC. The ICRC considered this information and determined that Dr. Kilian’s conduct exposed or was likely to expose patients to harm or injury, and that urgent intervention was required. The ICRC concluded that patients would rely on the exemptions granted by Dr. Kilian to gain access to higher risk settings without the protection provided by vaccines and that the exemptions exposed the general public to harm from an increased likelihood of contracting COVID-19. Further, the ICRC concluded that Dr. Kilian was providing exemptions for what appeared to be ideological rather than medical reasons to individuals who were not otherwise her patients and for a fee that far exceeded reasonable fees for medical notes.

[21] The ICRC made an interim order, without notice, restricting Dr. Kilian’s certificate of practice under s. 25.4(1) of the Code. The interim restriction prohibited Dr. Kilian from providing medical exemptions to patients for COVID-19 vaccines, mask wearing, or testing. The order also required her to notify patients of these restrictions and included monitoring and reporting requirements.

The second interim order: suspending Dr. Kilian

[22] The investigation continued. The College investigators again sought the patient information and records from Dr. Kilian. Again, she refused.

[23] The College discovered that Dr. Kilian had given further exemptions through an organization known as White Knight Medical after the practice restrictions were imposed.

[24] On October 25, 2021, the College provided Dr. Kilian an opportunity to explain these further exemptions by October 26, as the matter was returning before the ICRC on October 27. No response was received before the deadline passed.

[25] On October 27, 2021, the ICRC considered whether to order further measures under s. 25.4(1) of the Code. Based on the information before it, the ICRC ordered, without notice, an interim suspension of Dr. Kilian’s certificate. This order replaced the earlier interim restriction.

[26] The ICRC concluded that Dr. Kilian had breached the interim restriction by providing further exemptions to COVID-19 vaccinations for non-medical reasons and which indicated an ideological opposition to COVID-19 vaccination, rather than an individualized assessment about whether a patient qualified for a medical exemption. The ICRC also concluded that Dr. Kilian had intentionally disregarded the interim restriction because she had been personally served with the order and was aware of the order before she provided the new exemptions.

[27] Finally, the ICRC concluded that Dr. Kilian’s ongoing failure to cooperate with the investigation raised concerns about her governability and willingness to comply with any restrictions the ICRC may place on her certificate.

[28] After the deadline had passed for her response, Dr. Kilian emailed the College on October 27 to explain that the exemptions had been provided automatically by White Knight Medical’s website, and that this was an administrative error. She also argued that she is a medical ethicist and that she is allowed to provide medical-legal exemptions, which she contended does not fall within the jurisdiction of the College.

[29] This email was not before ICRC when it made its interim suspension decision. Although Dr. Kilian had a right under s. 25.4(7) of the Code to make representations to the ICRC after the interim without notice order was made, she did not do so. Instead, two years passed before she sought a reconsideration from the ICRC.

The ungovernability investigation

[30] In January 2022, the ICRC approved a request by the Registrar to appoint investigators to investigate Dr. Kilian’s conduct given her alleged failure to cooperate with the investigation by the College.

[31] In August 2023, the ICRC referred allegations of professional misconduct arising from the investigation into Dr. Kilian’s failure to cooperate to the College’s Discipline Tribunal.

Court proceedings

[32] The College proceedings have been heavily litigated.

[33] Given Dr. Kilian’s ongoing refusal to provide the patient information and records sought by its investigators, the College made an urgent application before the Superior Court under s. 87 of the Code.

[34] The College’s s. 87 application was commenced in October 2021. In April 2022, an application judge stayed the application pending the determination of a judicial review that Dr. Kilian brought in the Divisional Court challenging the appointment of investigators, the decision to place restrictions on her licence, and the decision to temporarily suspend her licence.

[35] In November 2022, the Divisional Court dismissed Dr. Kilian’s judicial review. It held that the judicial review of the appointment of investigators was premature, and that the restriction and suspension decisions were reasonable: Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931.

[36] In January 2023, the stay of the s. 87 application was set aside by the Divisional Court: Kilian v. CPSO, 2023 ONSC 5, 11 Admin. L.R. (7th) 89.

[37] In May 2023, the Superior Court ordered Dr. Kilian, under s. 87 of the Code, to cooperate fully with the College’s investigation, including by complying with the requests made by the investigation: Kilian v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2689. The court specifically ordered Dr. Kilian to:

a. provide the medical charts, patient information and other relevant information requested by the College investigators and allow them to make copies or remove any relevant documents for the purpose of the investigation;

b. facilitate the College investigators’ inquiry into, and examination of, her practice and conduct; and

c. permit the College investigators to enter into the place of her practice and examine anything else relevant to the investigation.

[38] Dr. Kilian appealed the s. 87 order. In January 2024, the Court of Appeal for Ontario dismissed the appeal: College of Physicians and Surgeons of Ontario v. Kilian, 2024 ONCA 52 (“Killian (ONCA)”).

[39] Dr. Kilian sought leave to appeal to the Supreme Court of Canada. On October 10, 2024, leave was denied: Kilian v. College of Physicians and Surgeons of Ontario, [2024] S.C.C.A. No. 100.

[40] Dr. Kilian did not seek a stay pending her appeal to the Court of Appeal and her leave to appeal to the Supreme Court, but she maintained her refusal to provide the investigators with the requested patient information and records until the Supreme Court of Canada denied leave to appeal.

Reconsideration request

[41] On October 18, 2023, Dr. Kilian contacted College staff and the Registrar to request that her interim suspension be “temporarily rescinded”.

[42] On December 4, 2023, Dr. Kilian filed a request with the ICRC to lift the interim suspension.

[43] The College investigators sought further information from Dr. Kilian and ultimately the reconsideration request was considered by the ICRC on July 18, 2024.

[44] In essence, Dr. Kilian raised nine grounds on the reconsideration request.

[45] First, Dr. Kilian argued that she had become a member of White Knight Medical, which she stated issued exemptions to individuals who had ethical rather than valid medical reasons to refuse the COVID-19 vaccine. The exemptions were to be issued without a patient assessment. Dr. Kilian stated that she provided her electronic signature to White Knight Medical to issue these exemptions.

[46] Dr. Kilian contended that on being notified of the October 15, 2021 practice restrictions, she advised White Knight Medical that she could not act for the company. She argued that White Knight Medical delayed notifying its webmaster of this and the company’s system automatically generated exemptions under her name in error and without her knowledge or participation.

[47] Dr. Kilian argued that, once she became aware of the error, she ensured that White Knight Medical informed the recipients that they were improper and were withdrawn. The fees they paid for the exemptions were also withdrawn.

[48] Dr. Kilian argued that she was not responsible for issuing the exemptions.

[49] She further argued that since this information was not known to the ICRC when it made its suspension order, it imposed a suspension on the mistaken belief that she had violated her practice restrictions. Her continued suspension was no longer warranted.

[50] Second, Dr. Kilian argued that her refusal to comply with the College’s demand for information did not demonstrate ungovernability. She argued that it was not misconduct to bring a good faith legal challenge to the lawfulness of the College’s demand for information.

[51] Dr. Kilian further argued that, even if this demonstrated ungovernability, there is no evidence of likely harm to patients. Absent such evidence of harm, there is no basis for Dr. Kilian’s continued suspension.

[52] Third, Dr. Kilian argued that the ICRC’s October 2021 appointment of investigators was unlawful because there were not reasonable and probable grounds to believe that she had committed an act of professional misconduct or was incompetent. In this regard, she maintains that the information that the ICRC received was not detailed, credible or reliable. She argues that it was not compelling information because it was received from non-patients. She also contends that the College did not seek information from her about the allegations before appointing investigators. Finally, Dr. Kilian argued that the violation of public health and policy recommendations could not constitute reasonable and probable grounds that Dr. Kilian committed misconduct or was incompetent.

[53] Fourth, Dr. Kilian maintained that it was an abuse of process to continue a suspension when she had demonstrated that its factual and legal foundations were absent.

[54] Fifth, Dr. Kilian argued that s. 76(3.1) of the Code does not create a freestanding duty to cooperate with the College and comply with all demands of the College, including “search demands”.

[55] Sixth, Dr. Kilian submitted that requiring Dr. Kilian to cooperate with the College by providing patient medical records violates both the patients’ and physician’s constitutional rights to privacy and privilege under ss. 7 and 8 of the Charter.

[56] Seventh, Dr. Kilian argued that her non-compliance with the College’s s. 76 demand was made in good faith and therefore cannot constitute misconduct.

[57] Eighth, Dr. Kilian contended that one of the purposes of the investigation into her practice was to discipline her for the public expression of opinions contrary to the College’s policies, including her criticism of COVID-19 mandates. Dr. Kilian maintains that she did not express that she was anti-vaccination and she argued that there is no evidence that anything she said was untrue.

[58] Finally, Dr. Kilian requested constitutional remedies. In this regard, she asked the ICRC to quash its interim order suspending her certificate of registration and to reinstate her license to practice. She also asked the ICRC to determine that:

a. the appointment of investigators was unlawful and unconstitutional;

b. the failure of the Registrar and ICRC to describe the reasonable and probable grounds for the investigators’ appointment was a violation of s. 8 of the Charter; and

c. the College’s demand for information and documents was unlawful and unconstitutional, and that there was no authority to seize this information under ss. 76(1.1) – 76(4) of the Code.

[59] The ICRC declined to vary the suspension order. I will consider its reasons below.

Discipline Tribunal proceedings

[60] As discussed, the ICRC referred the allegations of Dr. Kilian’s professional misconduct arising from the investigation into Dr. Kilian’s failure to cooperate with the College to the Discipline Tribunal.

[61] Dr. Kilian brought a preliminary motion before the Discipline Tribunal raising the same arguments as were raised before the ICRC. The Discipline Tribunal dismissed the motion. Its decision is not before the court on this judicial review.

[62] In January 2025, the Discipline Tribunal held a hearing on the merits regarding Dr. Kilian’s alleged failure to cooperate. Its decision is under reserve.

Issues

[63] This application for judicial review raises the following issues:

a. Are aspects of Dr. Kilian’s challenge barred by res judicata, collateral attack or prematurity?

b. Was the ICRC’s reconsideration of its suspension decision reasonable?

Analysis

Aspects of Dr. Kilian’s challenge are premature

[64] The ICRC held that there is no provision in the Code that gives the ICRC the power to reconsider an appointment of investigators under s. 75(1)(a). But in any event, the ICRC went on to reject Dr. Kilian’s argument that there were no reasonable and probable grounds to commence the investigation. It concluded that there was a valid s. 75(1)(a) appointment of investigators, and a corresponding duty for Dr. Kilian to cooperate with the investigation. The ICRC also noted that the Court of Appeal had confirmed this duty and that it existed from the outset of the investigation.

[65] On judicial review, Dr. Kilian challenges the appointment of investigators into her conduct for the same reasons as advanced before the ICRC. Dr. Kilian also argues that the ICRC erred in finding it had no jurisdiction to reconsider the appointment of investigators.

[66] The College argues that Dr. Kilian’s challenge to the appointment of the investigators is barred by res judicata, collateral attack, and prematurity.

[67] I agree that Dr. Kilian’s challenge to the appointment of the investigators is premature. No exceptional grounds arise here.

[68] Judicial review is a discretionary remedy. It is a longstanding principle that, absent exceptional circumstances, courts should not exercise their power of review during ongoing administrative proceedings because of concerns for administrative efficiency, respect for the administrative process, avoiding fragmentation of the administrative process, and judicial economy: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69, citing C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at paras. 31-32. All these concerns are engaged here.

[69] As Stratas J.A. observed in C.B. Powell, “only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience”: at para. 42.

[70] For these reasons, this court will, absent exceptional circumstances, decline to hear challenges to the appointment of investigators under the Code: see Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738, 163 O.R. (3d) 517 (Div. Ct.), at paras. 58-59; Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2022 ONSC 1220 (Div. Ct.), at paras. 9-11; Gore v. College of Physicians and Surgeons of Ontario (2008), 2008 48643 (ON SCDC), 92 O.R. (3d) 195 (Div. Ct.), at paras. 67-68; and Lala v. College of Physiotherapists of Ontario (2003), 2003 37231 (ON SCDC), 10 Admin. L.R. (4th) 217 (Ont. Div. Ct.), at para. 2.

[71] On Dr. Kilian’s previous application for judicial review, which included a challenge of the appointment of investigators, this court held that this aspect of her challenge was premature: Kilian, 2022 ONSC 5931, at para. 63. It remains so. Her reconsideration request before the ICRC does not change this.

[72] Dr. Kilian’s challenges based on the lawfulness of the s. 76 demand, the division of powers, unwritten constitutional principles, the alleged violation of her rights under the Charter, and abuse of process are also premature. As the Court of Appeal held in Dr. Kilian’s appeal of the s. 87 order, her arguments regarding the lawfulness and constitutionality of the investigators’ demand must first be raised before the Discipline Tribunal. The Discipline Tribunal is “the proper forum for a party to challenge the appointment of an investigator, the lawfulness of a s. 76 demand and any alleged violation of Dr. Kilian’s individual rights”: Kilian (ONCA), at paras. 30-36. Only at the conclusion of the discipline proceedings will these issues be amenable to judicial review: Kilian (ONCA), at para. 37.

[73] It would be particularly inappropriate to intervene in this case because the ICRC has referred allegations of professional misconduct arising from the investigation into Dr. Kilian’s failure to cooperate to the Discipline Tribunal. On a preliminary motion, the Discipline Tribunal considered and dismissed the same challenges raised by Dr. Kilian before the ICRC. But that decision is not before us on this application, and the merits of the failure-to-cooperate proceedings before the Discipline Tribunal have not yet been finally determined. Moreover, the underlying investigation into Dr. Kilian’s conduct remains ongoing due to her non-cooperation.

[74] I would therefore decline to review the appointment of the investigators at this stage.

[75] Given this, it is unnecessary to address the other arguments the College raises in response to these aspects of Dr. Kilian’s challenge.

The ICRC’s reconsideration decision was reasonable

[76] As discussed, the ICRC declined to lift Dr. Kilian’s interim suspension.

[77] Dr. Kilian contends that a suspension was not available on the record before the ICRC because there was no evidence that the probable harm of not being vaccinated outweighed the likelihood of harm from being vaccinated. She also argues that policy recommendations are not evidence of probability of harm. Further, Dr. Kilian argues that she complied with the practice restrictions and therefore there was no evidence that a suspension was necessary to protect patients. The practice restrictions would have been sufficient. In any event, Dr. Kilian argues that since there are no longer any vaccine mandates, there is no basis for a continued suspension.

[78] Finally, Dr. Kilian argues that it was unreasonable for the ICRC to conclude that there was a risk of harm based on Dr. Kilian’s ungovernability, because she was not ungovernable. She asserts that challenging the lawfulness of a regulator’s demand cannot itself constitute ungovernability.

[79] The standard of review with respect to the ICRC’s reconsideration decision is reasonableness. There is no extricable issue of constitutional law that would give rise to review on the standard of correctness.

[80] The ICRC may make an interim order directing the Registrar of the College to suspend or to place terms, conditions or limitations on a physician’s certificate of registration “if it is of the opinion that the conduct of the member exposes or is likely to expose the member’s patients to harm or injury”: Code, s. 25.4(1). The ICRC may make interim orders without notice to the member if there is urgency: Code, s. 25.4(7). Where an interim order is made without notice, the member has a right to make submissions while the suspension or the terms, conditions or limitations are in place.

[81] In considering whether to impose an interim order, the ICRC must consider whether there is evidence of probable harm to patients: Fingerote v. The College of Physicians and Surgeons of Ontario, 2018 ONSC 5131, 53 Admin. L.R. (6th) 325 (Div. Ct.), at paras. 5-7; Kadri v. College of Physicians and Surgeons of Ontario, 2020 ONSC 5882, 93 Admin. L.R. (6th) 331 (Div. Ct.), at para. 48. On judicial review, the court’s task is to determine whether the factual conclusions were reasonable, given the evidence before the ICRC, and whether the conclusions were explained logically, coherently and rationally. The court will not reweigh the evidence: Kadri, at para. 51.

[82] The standard is not an onerous one. The interim nature of the s. 25.4 orders and their protective purpose must be kept in mind. Thus, the court need only be satisfied that there was “some evidence” before the ICRC to justify the order: Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONSC 2654, at paras. 23, 26-28; Luchkiw, at para. 51.

[83] The ICRC concluded that there were concerns about Dr. Kilian’s governability and that patient and public safety remained at risk. It therefore held that her continued suspension was the least restrictive order necessary to protect the public.

[84] In coming to this conclusion, the ICRC outlined its reasons for its decision:

• While acknowledging that circumstances have changed since the global emergency for the COVID-19 pandemic ended and the province’s health mandates are no longer in effect, the ICRC found that Dr. Kilian’s conduct had not changed. For three years she continued to refuse to comply with the College’s requests for information and records.

• The ICRC also considered that Dr. Kilian’s refusals to cooperate were maintained in the face of a s. 87 order from the Superior Court, which was upheld by the Court of Appeal. The ICRC further considered that these court proceedings made it clear that she was required to cooperate with the College investigation despite her legal challenges.

• The ICRC rejected Dr. Kilian’s argument that there was no evidence of likely harm to patients because exemptions issued through White Knight Medical using her signature after the October 2021 practice restrictions were allegedly made without her knowledge. Nor did the ICRC accept that a suspension was not warranted because practice restrictions would be adequate to protect patients.

• In any event, the ICRC was troubled that Dr. Kilian provided her signature to White Knight Medical to provide “medical-legal exemptions”, on her account, to 101 individuals with whom she had no communications. Even if the ICRC accepted Dr. Kilian’s account, providing her signature for this purpose was very concerning.

• The ICRC considered that Dr. Kilian’s lack of cooperation with the College investigation, on its own, is directly related to patient safety and likely harm. Her non-cooperation has prevented the College from investigating her care of patients. Without access to the patient information and records sought, the ICRC cannot conclude that Dr. Kilian does not pose a risk to patient safety. The College’s ability to regulate the profession in the public interest and protect the public is thwarted when concerns are identified about patient safety, but a physician refuses to cooperate.

[85] It was reasonable for the ICRC to conclude that Dr. Kilian knowingly providing her signature to a third party to provide “medical-legal exemptions” without her having assessed the recipients was very concerning. These exemptions were provided by a third party using Dr. Kilian’s signature and leveraged her status as a physician. There was no patient encounter between Dr. Kilian and the recipients of the exemption – nor was one contemplated. This was sufficient evidence of probable harm to patients. I agree with the College that the alleged conduct goes to the core of medical ethics and professionalism, and that the probable harm to patients continues despite the changing context of COVID-19.

[86] It was reasonable for the ICRC to conclude that Dr. Kilian failed to cooperate with the College. There is ample evidence in the record before the ICRC to support the conclusion that she had refused to cooperate. Her refusal to provide the patient information and records while she contested the lawfulness of the investigators’ request is not disputed.

[87] It was also reasonable for the ICRC to conclude that Dr. Kilian’s failure to cooperate with the College’s investigation raised continuing concerns regarding Dr. Kilian’s governability. It will be for the Discipline Tribunal to determine whether Dr. Kilian has engaged in misconduct by failing to cooperate with the College. In this regard, I make no comment. But I am compelled to address Dr. Kilian’s argument that it was open to her not to comply with the demand for the patient information and records until she exhausted her appeals. The argument was renewed before this court.

[88] On the appeal from the initial application judge’s stay of the s. 87 application, the Divisional Court held that Dr. Kilian was required to comply with the s. 76 demands by the investigators pending any challenge to it before the Discipline Tribunal: Kilian, 2023 ONSC 5, at paras. 50, 63.

[89] The Superior Court, in its reasons for making the s. 87 order, held that the requirement for cooperation with the investigators’ reasonable inquiries “includes providing records that are reasonably linked to the terms of the investigation, and that there is no constitutional issue with this requirement”: Kilian, 2023 ONSC 2689, at para. 33. It also held that Dr. Kilian “cannot in the meantime decline to comply with the investigators’ reasonable requests for information relevant to the terms of the investigation authorized by the ICRC. To hold otherwise would substantially undermine the effective and efficient regulation of health care professionals”: Kilian, 2023 ONSC 2689, at para. 28.

[90] On appeal, the Court of Appeal agreed: Kilian (ONCA), at para. 34. It expressly held Dr. Kilian was required to comply with the law pending any challenge to it: at paras. 30, 32. It also held that the Discipline Tribunal is the proper forum, at first instance, for Dr. Kilian’s various challenges: at para. 35.

[91] The courts have thus repeatedly rejected Dr. Kilian’s arguments that she can decline to comply with the College’s investigation pending the determination of her legal challenges. The courts’ directions could not have been clearer.

[92] Absent a stay of the Superior Court’s s. 87 order, Dr. Kilian was required to comply with the order and cooperate with the investigation. The rule of law requires no less. Before this court, counsel for Dr. Kilian stated that she did not seek a stay because he is acting pro bono and that they focused their resources elsewhere. This is no answer. Court orders must be obeyed.

[93] All of this is sufficient evidence to reasonably ground the ICRC’s concerns regarding Dr. Kilian’s governability.

[94] Finally, it was reasonable for the ICRC to conclude that Dr. Kilian’s failure to cooperate with the College’s investigation was itself evidence of probable harm to patients: see Luchkiw, at para. 69. The College has a duty to regulate physicians in the public interest and to protect patients. The College cannot effectively do so without physicians complying with their duty to cooperate. When physicians fail to cooperate with the College, the safety of patients and the public is endangered.

[95] In sum, the ICRC’s decision was factually grounded and reasonable.

Disposition

[96] Accordingly, I would dismiss Dr. Kilian’s application for judicial review.

[97] The parties agreed to costs of $10,000 to the successful party. Thus, I would award this amount in costs to the College.

“Rees J.”

I agree: “D.L. Corbett J.”

I agree: “Faieta J.”

Released: May 9, 2025

CITATION: Kilian v. College of Physicians and Surgeons of Ontario, 2025 ONSC 2829

DIVISIONAL COURT FILE NO.: DC-24-558-00JR

DATE: 2025/05/09

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

D.L. Corbett, Faieta, Rees JJ.

BETWEEN:

Dr. Rochagne Kilian

Applicant

– and –

The College of Physicians and Surgeons of Ontario

Respondent

AMENDED REASONS FOR DECISION

Rees J.

Released: May 9, 2025