CITATION: Komer v. Health Professions Appeal and Review Board, 2025 ONSC 7084
DIVISIONAL COURT FILE NO.: DC-23-2811
DATE: 20251218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SHORE, O’BRIEN and SMITH JJ.
BETWEEN:
DR WILLIAM KOMER Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REIVEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, and DR. NANCY WHITMORE Respondents
Garafalia Milousis, Counsel for the Applicant
David P. Jacobs and Amna Farooqi, Counsel for the Health Professions and Review Board, Respondent
Ruth Ainsworth and S. Jessica Roher, Counsel for the College of Physicians and Surgeons of Ontario and Dr. Nancy Whitmore, Respondents
HEARD: At Ottawa on November 21, 2025, by Videoconference
SMITH J.:
REASONS FOR JUDGMENT
Background
[1] In December of 2021, the applicant filed a complaint with the respondent, the College of Physicians and Surgeons of Ontario (the “College”) against the 31 physicians who then served on the College’s governing council and against the respondent, Dr. Nancy Whitmore, the registrar of the College. In his complaint, the applicant took issue with the policies of the College – and the implementation of the policies by Dr. Whitmore and the council – respecting the safety and efficacy of COVID-19 vaccines, and measures taken to minimize the spread of misinformation respecting vaccines.
[2] The College processed 32 separate complaint files. Each was found to be frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. This application concerns only the complaint made against Dr. Whitmore, and the findings of the College’s Inquiries, Complaints and Reports Committee (the “ICRC”) and of the Health Professions Appeal and Review Board (the “Board”) respecting that complaint.
[3] Shortly after receiving the applicant’s complaint, exercising the discretion afforded to it by s. 26(4) of the Health Professions Procedural Code (the “Code”), Schedule 2, Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), the ICRC formed the preliminary opinion that the complaint against Dr. Whitmore was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process and that the ICRC would therefore take no action respecting the complaint. As required by the Code, before making a final decision on the matter, the ICRC invited the applicant to make written submissions. The applicant supplied such submissions and, after considering them, the ICRC then made a final decision, pursuant to s. 26(5) of the Code, that it would take no action on the complaint against Dr. Whitmore. The ICRC stated its conclusions as follows:
The Committee considered the following points in reaching its decision:
• These concerns do not relate to care to a particular patient and there is no evidence of a physician-patient relationship between the Complainant and the Respondent. Rather, the Complainant is concerned about the Respondent’s decisions or actions in her role as Registrar for the College.
• The Committee is not the appropriate body to review the Respondent’s decisions while carrying out her duties as an officer of the College.
[4] The applicant then wrote to the Board requesting a review of the ICRC’s decision. The Board advised the parties of its intention not to review the ICRC decision, given that it had formed an initial opinion that the request was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process (see s. 30(2) of the Code). The Board invited submissions from the applicant on the issue, which he supplied. After receiving those submissions, the Board declined to review the ICRC’s decision (Code, s. 30(3)). In its Final Order, the Board found that the request for a review bore the characteristics of a vexatious proceeding, and then expressed its conclusions as follows:
The Board finds that there is no physician/patient relationship between the parties. The Applicant’s concerns are not related to the practice of medicine but, rather, pertain to the actions and decisions of the Respondent in her role as Registrar of the College. This is an issue that neither the Committee nor the Board can address. The Applicant has provided no new information indicating that the public interest would be served by proceeding with a review.
Given the Board’s jurisdiction and complaint process, the Board finds that the Applicant’s request for review has no reasonable chance of success and it would serve no practical purpose to conduct a review of this matter.
[5] The applicant applies for judicial review of the Board’s decision on three grounds: (i) that the Board’s decision was unreasonable, arbitrary and an inappropriate exercise of its statutory powers; (ii) that the applicant was denied procedural fairness; and (iii) that the administrative process in this case was tainted by a reasonable apprehension of bias.
[6] In this court, the applicant swore and filed an affidavit as part of his application record. In an earlier motion before a single judge, the respondents sought to have that affidavit and its exhibits struck, arguing on several grounds that it was inadmissible. Phillips J. dismissed the respondents’ motion. The respondents now move before the full panel for an order setting aside the order of Phillips J. and for an order striking the applicant’s affidavit.
[7] For the reasons which follow, I would dismiss the application for judicial review. In my view, it is unnecessary to consider the respondent’s motion. Assuming, without deciding that the contested evidence remains in the record, it would not affect the outcome of the application.
Discussion
(i) The reasonableness of the Board’s decision
[8] The parties agree that that the standard of review for the applicant’s first ground of review is reasonableness. The applicant’s submissions respecting this ground have several components which may be paraphrased as follows: that the Board erred by finding that a complaint to the College must be about a doctor/patient relationship; that the Board erred by finding that it and the ICRC had no jurisdiction to review Dr. Whitmore’s conduct as registrar; and that the Board erred by finding that there was no “public interest” in conducting the review requested by the applicant. The applicant also made arguments under this heading which overlap with his second and third grounds for review.
[9] The Code affords both the ICRC and the Board a broad discretion to decline to investigate or review complaints which are frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. This list of descriptors is disjunctive. In other words, if a complaint fits into any one of the listed categories, the ICRC or the Board may properly decline to investigate or review it. The goal is to weed out unmeritorious complaints which have no chance of success: Catford v. Health Professions Appeal and Review Board, 2017 ONSC 7411 (Div. Ct.), at paras. 22 – 28.
[10] Here, it was open to the ICRC and the Board to conclude respectively that the complaint and the request for review exhibited many of the badges of a vexatious proceeding, some of which were helpfully catalogued by Henry J. in Re Lang Michener and Fabian (1987), 1987 172 (ON SC), 59 O.R. (2d) 353 (S.C.J.), which judgment the Board quoted in its Final Order: see also Amikwabi v. Pope Francis, 2021 ONSC 1069, at para. 39, aff’d 2022 ONCA 236. It was evident that the complaint and the requested review had no chance of success and that it was brought for a purpose other than the legitimate assertion of the applicant’s rights.
[11] It was, instead, an assertion by the applicant that the College, including its registrar and governing council, had pursued misguided policies in connection with the COVID-19 emergency and had thereby committed professional misconduct. The applicant’s original complaint was a closely written polemic against the use of vaccines, and against the College’s policies which encourage the use of vaccines. His response to the ICRC’s invitation to provide further submissions was similar in nature, as was his response to the Board’s invitation to provide further submissions. All three documents made extensive reference to links to internet sites, many of which appear to offer information respecting the alleged dangers and/or inefficacies of vaccines: compare Amikwabi, at para. 39.
[12] It was reasonable for the ICRC and the Board to conclude that a complaint of professional misconduct was not the appropriate forum for the ventilation of the applicant’s concerns respecting vaccines. First, the allegations against Dr. Whitford and the governing council are not obviously caught by any of the definitions of professional misconduct under the Medicine Act, 1991, S.O. 1991, c. 30 (see: “Professional Misconduct”, O. Reg. 856/93 (the “Definition of Professional Misconduct”)), even accepting that professional misconduct may be committed by acts unrelated to the practice of medicine or to a doctor/patient relationship, but which are “unbecoming a physician.”
[13] Second, the legislation which governs the College provides for immunity from civil liability for College employees and council members for acts taken in good faith in the performance of duties carried out in those capacities: RHPA, s. 38. As the respondents argue, this is “a strong signal that the legislature intended the actions and decisions of College officials to be insulated from complaints by private individuals.” This is especially so given that the there are other avenues for the pursuit of the applicant’s policy concerns respecting vaccines, including voting or otherwise participating in elections for membership on the College’s council, or by seeking judicial review of College policy.
[14] Neither the ICRC nor the Board concluded, as the applicant alleges, that they had no jurisdiction over the registrar of the College, or that complaints of professional misconduct against physicians must relate to a doctor/patient relationship. They simply observed that the complaint in this case did not refer to such a relationship, as most complaints do. The making of this observation was sensible given that the scope of the College’s authority to investigate and discipline outside of the doctor/patient sphere is limited: College of Physicians and Surgeons of Ontario v. Jha, 2022 ONSC 769, para. 119. In this respect, a complaint alleging professional misconduct in the development and implementation of College policy is atypical, to say the least. These were relevant factors in the decisions made by both the ICRC and the Board.
[15] Moreover, to the extent that the applicant’s complaint against Dr. Whitmore might be said to relate to claims “respecting the utility of a remedy, treatment, device or procedure,” such claims are expressly excluded from the definition of professional misconduct where they “can be supported as reasonable profession opinion”: Definition of Professional Misconduct, s. 1(1), paragraph 14. That vaccines were a safe and efficacious response to the COVID-19 emergency has been found to be a fact susceptible to judicial notice: J.N. v. C.G., 2023 ONCA 77, at paras. 20 – 30. It was, therefore, reasonable for Dr. Whitmore to hold that professional opinion, even if some physicians, including the applicant, hold a different opinion. The applicant’s complaint against her was, for this reason also, doomed to fail.
[16] In light of all these observations, it was reasonable for the Board to conclude that there was no public interest in allowing the review to proceed: the complaint was not meritorious; no real issue of professional misconduct was raised by it; its focus was, instead, institutional and policy-based in nature; and the concerns expressed in it were better dealt with in other fora. It was, as the College submits, a collateral attack on College policy with which the applicant disagrees. The College’s decision to decline to investigate was reasonable, as was the Board’s decision to decline to review that decision.
[17] I would dismiss this ground of review.
(ii) Procedural fairness
[18] When procedural fairness is raised on judicial review, the question for the court is whether the proceedings below were conducted fairly bearing in mind the degree of procedural fairness which the circumstances require: Haddad v. Health Professions Appeal and Review Board, 2024 ONSC 6015 (Div. Ct.), at para. 20. In this case, the degree of procedural fairness owed to the applicant was low given that the stakes of an adverse decision were, for him as a complainant, also low: Schuur v. Sas, 2023 ONSC 2852 (Div. Ct.), at para. 34; Walker v. Health Professions Appeal and Review Board (2008), 2008 7755 (ON SCDC), 234 O.A.C. 127 (Div. Ct.), at paras. 14 – 15.
[19] In the present circumstances, the applicant was advised of the preliminary opinions of the ICRC and the Board and was invited to make further submissions to those bodies. While the applicant complains that neither the ICRC nor the Board provided particulars of their concerns respecting the complaint, both the ICRC and the Board met all the procedural requirements of the Code by requesting further submissions. Further, the Board exceeded the requirements of s. 30(2) of the Code by providing reasons for its preliminary view that the complaint was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. As the College argues, this is not a case where the applicant had no notice of the Board’s concerns. Indeed, he was invited to respond to the very concerns which later formed the foundation of the Board’s final determination.
[20] I would dismiss this ground of review.
(iii) Reasonable apprehension of bias
[21] The applicant’s assertion that the proceedings below were tainted by a reasonable apprehension of bias is based primarily on the same arguments which provide the foundation for the first two grounds of review. He repeats those arguments and, from them, posits that the College must have had a “vested interest” in protecting its own registrar from scrutiny, and that both the ICRC and the Board had a bias in favour of the College’s public policies and against those who oppose those policies. The applicant adds that an administrative error which delayed his request for review also provides evidence of bias.
[22] There is no merit to these submissions. Both the ICRC and the Board afforded the applicant procedural fairness and came to reasonable conclusions. Nothing in the record suggests bias, either actual or reasonably apprehended. The applicant’s speculative arguments to the contrary do not constitute “serious grounds” capable of displacing the presumption in favour of the impartiality and integrity of administrative decision makers: Durham Regional Police Service v. The Ontario Civilian Police Commission, 2021 ONSC 2065 (Div. Ct.), at para. 74. The administrative error to which I have referred was exactly that, an error. It provides no evidence of bias.
[23] I would also dismiss this ground of review.
Disposition
[24] For the foregoing reasons, I dismiss the application.
[25] Pursuant to the agreement of the parties, costs are payable to the College and Dr. Whitmore, by the applicant, in the total amount of $10,000, all inclusive. The Board did not seek costs.
[26] It has not been necessary to consider the respondents’ motion to set aside the order of Phillips J. I would make no costs order in connection with that motion.
I.R. Smith J.
I agree
Shore J.
I agree O’Brien J.
Released: December 18, 2025
CITATION: Komer v. Health Professions Appeal and Review Board, 2025 ONSC 7084
DIVISIONAL COURT FILE NO.: DC-23-2811
DATE: 20251218
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SHORE, O’BRIEN and SMITH JJ.
BETWEEN:
DR. WILLIAM KOMER Applicant
– and –
HEALTH PROFESSIONS APPEAL AND REIVEW BOARD, THE COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, and DR. NANCY WHITMORE Respondents
REASONS FOR JUDGMENT
I.R. Smith J.
Released: December 18, 2025