College of Physicians and Surgeons of Ontario v. Kilian, 2022 ONSC 1526

Court File and Parties

COURT FILE NO.: CV-21-670633 DATE: 20220314 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: College of Physicians and Surgeons of Ontario, Applicant AND: Rochagne Kilian, Respondent

BEFORE: Pollak J.

COUNSEL: Amina Sherazee, for the Proposed Intervenor Peter Wardle & Evan Rankin, for the Applicant Paul Slansky & Samantha Coomara, for the Respondent

HEARD: February 18, 2022

Endorsement

Overview

1In this Application, the College of Physicians and Surgeons of Ontario (the “CPSO”), seeks an order requiring Dr. Rochagne Kilian (“Dr. Kilian”), to provide all patient files (for whom she provided a COVID vaccine exemption) among other relief. The CPSO requests an order pursuant to s. 87 of the Health Professions Procedure Act, 1991 S.O. 1991 c. 18 (the “Code”) to enforce compliance. Dr. Kilian objects on numerous grounds and has not provided the CPSO with these patient files.

Background

2On October 1, 2021, the Registrar and Chief Executive Officer of the CPSO appointed investigators pursuant to the Code.

3On October 27, 2021, the ICRC, suspended Dr. Kilian’s certificate to practice, pursuant to section 25.4 of the Code on the basis that her conduct is likely to expose patients to harm or injury.

4Dr. Kilian commenced a judicial review of the CPSO’s decision on December 1, 2021. The requested relief would result in the CPSO losing jurisdiction to proceed with their investigation, as well as a challenge to s. 76- 87 of the Code.

Dr. Kilian's Position on the Application

5A summary of Dr. Kilian’s position on this Application is as follows:

(a) Failure to follow O’Connor process: The CPSO seeks the health records of patients who are not complainants in the underlying investigation. Unlike in proceedings where the investigation is initiated by the patient’s complaint, where the patient has waived privilege, these patients have not waived their privacy and privilege rights under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms (the “Charter”), and the principles outlined by the Supreme Court of Canada in O’Connor apply;

(b) The CPSO has not complied with s. 75 of the Code: In order for s. 76 to be authorized and constitutionally valid, the CPSO must comply with s. 75. The CPSO has not complied with s. 75. Accordingly, section 76 powers are not available. The CPSO did not comply with s. 75 of the Code because:

1. Reasonable and Probable grounds were not established.

(c) The CPSO is acting unlawfully in relying on violation of a policy because:

(i) If the policy is being treated as mandatory, it creates a mandatory vaccination with very limited exceptions which violates the constitutional rights of patients;

(ii) If the policy is being treated as non-mandatory, it is unlawful to treat violation as professional misconduct because:

i. It is unlawful to set such standards as policy (as opposed to legislation or regulation);

ii. Violation of a non-mandatory policy cannot be equated with professional misconduct or incompetence as required by s. 75.

(d) The CPSO investigation is based on the alleged public expressions of opinion by Dr. Kilian not in respect of professional misconduct or incompetence but is constitutionally protected speech.

(e) Search and seizure:

1. The CPSO were required to bring an application for a search warrant under section 77 of the Code and they have not done so. Section 87 of the Code is unconstitutional to the extent it permits a court order to by-pass the search warrant provisions of the Code.

2. Subsections 76(1.1) to (4) do not authorize the search and seizure. Properly interpreted, the provisions do not authorize the seizure of private patient records when such records are not those of the complainants. In the alternative, these provisions are ambiguous and s. 8 of the Charter demands this interpretation. In the further alternative, section 76 of the Code is unconstitutional and cannot be used to seize Dr. Kilian’s medical records.

(f) An order under section 87 of the Code should not be made:

1. The CPSO’s failure to describe the authorized investigation creates unreasonable search;

2. The CPSO is acting unlawfully in relying on violation of a policy because:

(i) If the policy is being treated as mandatory, it creates a mandatory vaccination with very limited exceptions which violates the constitutional rights of patients;

(ii) If the policy is being treated as non-mandatory, it is unlawful to treat violation as professional misconduct because:

a) It is unlawful to set such standards by policy (as opposed to legislation or regulation);

b) Violation of a non-mandatory person cannot be equated with professional misconduct or incompetence as required by s. 75.

c) The CPSO investigation is based on the alleged public expression of opinions by Dr. Kilian not in respect of professional misconduct or incompetence but is constitutionally protected speech.

A. Search and Seizure:

1. The CPSO were required to bring an application for a search warrant under section 77 of the Code and they have not done so. Section 87 of the Code is unconstitutional to the extent it permits a court order to by-pass the search warrant provisions of the Code.

2. Subsections 76(1.1) to (4) not authorize the search and seizure. Properly interpreted, the provisions do not authorize the seizure of private patient records when such records are not those of the complainants. In the alternative, these provisions are ambiguous, and s. 8 of the Charter demands this interpretation. In the further alternative, section 76 of the Code is unconstitutional and cannot be used to seize Dr. Kilian’s medical records.

B. An order under s. 87 of the Code should not be made:

1. The CPSO’s failure to describe the authorized investigation creates unreasonable search, going live, the CPSO suspended her license without notice on the basis that Dr. Kilian was ungovernable and was issuing exemptions despite the restrictions placed on her practice.

6The Application was brought without any notice to the patients of Dr. Kilian.

The Motion to Intervene

7On this motion in this Application, the Proposed Intervenors request an Order:

(a) granting the Patients leave to intervene in this Application as a Party pursuant to Rule 13.01 of the Rules of Civil Procedure;

(b) permitting the Patients to file Affidavit evidence;

(c) permitting the Patients to file a factum not exceeding 30 pages;

(d) permitting the Patients to present oral argument at the hearing of the Application;

(e) that the Patients will not seek costs and that no costs will be ordered against them, and

(f) abridging the time for service and filing of this Notice of Motion, supporting affidavits, if permitted, and factum.

8About forty anonymous individual patients seek orders including:

a. an order granting leave to intervene as full parties pursuant to Rule 13.01(1);

b. an order appointing the parents of minor patients and those under a disability as litigation guardians under Rule 7.03(1); and

c. an order permitting the patients to protect their identities by being named Jane and John Does, “with provision for confidential ex-parte disclosure of their names to the Court”.

9The Intervenors submit that the relationship between Dr. Kilian and “Jane and John Doe patients”, is one of trust and privilege, and is protected by privacy, under statute, common law and the Constitution. Jane and John Does submit that they have a Constitutional right to decide whether to accept or reject medical interventions and control over their bodily integrity, as well as a right to informational privacy, even after that information has been collected and is in the hands of health care providers. They seek standing to make submissions regarding the release of their own personal information and health information contained in the medical records in possession of Dr. Kilian.

10The supporting evidence on this motion is an affidavit sworn by a law clerk, Ms. Jelisa Phillips, who works with counsel to the Proposed Intervenor, Ms. Amina Sherazee.

11The Applicant submits that this affidavit cannot be relied on by the Court, and the motion should be dismissed on this basis alone. Ms. Phillips does not state the source of her information about the Proposed Intervenors’ intended submissions or prejudice. If the source of this information is counsel for the Proposed Intervenors Ms. Sherazee, then this is double hearsay and not permitted.

12The Proposed Parties submit that they have a central interest in the subject matters raised in this Application, including:

a. Advancing the Applicant College’s purpose in protecting patients and patient interests, when the patients are not the Complainants of, and/or the trigger for initiating, an investigation on their behalf against their physician;

b. Whether the test set out under section 75(1)(a) of the Code has been met in the particular circumstances of this case (this is an issue to be decided in the judicial review being heard by the Divisional Court, which I have referred to above);

c. Whether their health records can be characterized as described under sections 33(1)(b) or 33(13) of the Public Inquires Act;

d. Whether and what the requirements for adequate procedural protections for patient privacy and for the protection and preservation of the sacrosanct relationship of trust between patient and physicians should be in place before the Respondent produces their records.

13The Proposed Intervenors also submit they may be adversely affected by a judgment to compel production of their private health information and protected medical records.

14Further, the Proposed Intervenors submit that they will not unduly delay or prejudice the determination of the rights of the parties and that any alleged or purported delay must be balanced with the public interest. They argue that since the Supreme Court of Canada decision in R v O’Connor, [1995] 4 SCR 411 (“O’Connor”), the law on standing for patients and medical record keepers has evolved in favour of granting greater participatory rights in proceedings, for both patients/complainants and record keepers where the production of records is requested.

Issues on the Motion

15The Proposed Intervenors submit that the issues on this Motion are:

1. Whether the Proposed Parties have met the test to be added as parties to the Application as set out in Rule 13.01?

2. Whether the addition of the Proposed Intervenors at this stage unduly delays or will prejudice the rights of the parties in the proceedings? and

3. Whether the interests of justice require the parties to be added for matters of public interest and public policy? (CPSO notes that there has been no motion to add the proposed Intervenors as parties pursuant to Rule 15.02).

Analysis

16The Court may grant leave to a party to be added as a party in a proceeding where at least one of the factors under Rule 13.01 are satisfied. Rule 13.01 states:

Leave to Intervene as Added Party

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding. R.R.O. 1990, Reg. 194, r. 13.01 (1).

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just. R.R.O. 1990, Reg. 194, r. 13.01 (2).

Interest in the Subject Matter

17The Proposed Intervenors submit that the “subject matter” of these proceedings is the production of patient medical records in the possession of Dr. Kilian. The records contain the personal, private and protected information of her patients. The Patients Jane and John Does have a personal interest in this subject matter as they have a right to control access to and disclosure of their personal information.

18CPSO relies on section 76 (4) of the Code for the proposition that any privacy interests of the Patients are trumped by the regulatory interests of the CPSO. However, the Proposed Intervenors submit that section 76 (4) of the Code only applies if the appointment of the investigator under section 75 (1) was valid and the “complaints” properly constituted. The Proposed Intervenors submit there is no basis for the CPSO to obtain records or information about the Patients seeking standing as they are not the subject of any “concern” or “complaint”.

19They submit that the CPSO “complaints” could have been discovered and dealt with under section 76 (1.1). There is no need to request that this Court require the release of all patient records in order to deal with the “complaints” before the CPSO. The CPSO had the opportunity to contact the patients who received the exemptions to request their consent to access their medical records but did not do so. There is an alternative to resolving the complaints and conducting investigation which the CPSO has not exhausted before resorting to the Court. Both a properly constituted complaint, and an investigation which meets the requirements are pre-requisites, and have not been fulfilled, prior to the Applicant seeking this Order from the Court.

20It is argued that whether or not the type of disclosure of patient records required by the Applicant is authorized by section 75(1)(a) of the Code, or warranted and necessary, in light of the lack of investigation by the Applicant are both issues that impact on the privacy interests of the Proposed intervenors.

21On this basis, it is submitted that the Proposed Intervenor, Jane and John Does have an interest in the subject matter.

22The CPSO’s position is that “an interest in the subject matter of the proceeding” is different from an interest in the “outcome” of the proceeding. It is submitted that the Proposed Intervenors do not have an interest in the subject matter of this proceeding, which is whether Dr. Kilian should be ordered to comply with her statutory obligations. The Proposed Intervenors may have an indirect interest in the outcome of the Application if Dr. Kilian is ordered to comply with the investigation, her medical records might be given to the CPSO.

23There is a significant dispute between the parties on what the “subject matter” of the Application is.

24The CPSO’s position is that it has a statutory duty pursuant to s. 3(2) of the Code “to serve and protect the public interest.” In light of this duty to protect the public, Courts have consistently held that CPSO must be given the tools and powers “necessary to carry out their important duties” and have “emphasized the need for courts to interpret professional discipline statutes with a view to ensuring that such statues protect the public interest in the proper regulation of the professions.”

25It is submitted that while the public has an expectation that medical records will generally be kept confidential, that expectation is subject to the higher need to maintain appropriate standards in the profession. The legislation specifically addresses patients’ privacy interests in health records. Section 76(4) of the Code states that the CPSO’s investigative powers apply “despite any provision in any Act relating to the confidentiality of health records.” Like other provisions in the Code, s. 76(4) “should be given a broad and purposive interpretation to enable an investigator to carry out his or her duty to investigate.” This Court has rejected the argument that medical records are covered by privilege.

26Dr. Kilian’s position on what the subject matter of the Application is much broader. She submits that the issues are as follows:

A. Whether the proper parties (patients) have been provided an opportunity to participate in this application (O’Connor)?

B. Where there has been compliance with section 75 of the Code:

1. Is compliance with section 75 necessary for the constitutionality and legality of searches under the Code?

2. Has there been compliance with s. 75 of the Code?

a) Are there reasonable and probable grounds (“RPG”) to believe that Dr. Kilian has engaged in professional misconduct or has been incompetent?

b) Is the investigation legitimate in:

(i) a policy is being used to create a mandate which is unconstitutional

(ii) (ii) If a policy is not creating a mandate, such a policy cannot

(A) be used to set professional standards but such standards must be set through legislation or regulation)

(B) equate non-compliance with misconduct or incompetence;

c) Is this proceeding based on Dr. Kilian’s exercise of free speech?

C. Search and seizure:

1. Whether section 76 of the Code is available in respect of a practice based out of Dr. Kilian’s home or whether a search warrant under s. 77 of the Code must be utilized?

2. Whether sections 25.4(7), 75(1)(a), 76, 78, 79 and/or 87 of the Code are unconstitutional?

D. Whether the order should be refused because:

1. The failure to describe what investigation was authorized creates an unreasonable search?

2. The search violates the privacy rights of patients under ss. 7 and/or 8 of the Charter?

3. Whether the search and seizure for patient records cannot produce relevant evidence since such records are covered by class privilege or privilege in this case?

4. Whether such an order would constitute an abuse of process disentitling the CPSO based on:

a) Failure to investigate allegations not founded on first hand information;

b) Failure to seek a response from Dr. Kilian;

c) Targeting Dr. Kilian for failure to follow an unenforceable policy;

d) Targeting Dr. Kilian based on her constitutionally protected speech?

E. Whether the suspension of Dr. Kilian’s licence should be set aside because section 25.4(7) of the Code in unconstitutional or otherwise?

27Neither party has had the opportunity to be heard on their submissions with respect to the issues in the Application.

Common Issues

28The Proposed Intervenors submit that the common issues between the parties are as follows:

(a) Privilege;

(b) The O’Connor Process;

(c) The conflict between s.75 and the patients’ constitutional rights;

(d) Reasonable and Probable Grounds;

(e) Patients’ Right to Medical Treatment of Choice/ Informed Consent;

(f) Publication Ban

(g) Prematurity.

29The CPSO submits that almost all of the common issues on which the Proposed Intervenors rely, are not properly raised in this Application. They therefore cannot be common issues in the Application for the purpose of intervention under Rule 13.01(1)(c). Specifically:

a. The existence of reasonable and probable ground is not properly raised in this Court. That issue is for the Divisional Court to determine in Dr. Kilian’s ongoing judicial review.

b. The issue of prematurity is not articulated in the Proposed Intervenors’ factum. Presumably this relates to whether a judicial review is premature, in which case this too should be addressed at the Divisional Court.

c. The issue of “patients’ right to medical treatment of choice/informed consent” is not at issue in this Application and is not raised in Dr. Kilian’s Notice of Constitutional Question as a basis for relief. If the Proposed Intervenors are suggesting that certain provincial regulations or statutes are invalid for constituting compelled treatment, they must file an originating process, which neither they nor Dr. Kilian has done.

d. There is no dispute that there should be a publication ban in respect of patients’ identities and health information. This is not an “issue” to be determined.

e. The issue of whether the CPSO was constitutionally required to follow the process found in O’Connor is not raised in Dr. Kilian’s Notice of Constitutional Question. It is therefore not an issue the Proposed Intervenors can have in common with her.

f. It is not clear what issue “the conflict between s. 75 and the patients’ constitutional rights” is meant to capture. Section 75 of the Code relates to the appointment of investigators. As set out above, that issue can only be raised at the Divisional Court. Moreover, this issue is not identified in Dr. Kilian’s Notice of Constitutional Question. Intervenors are not permitted to raise new grounds of challenge.

30Dr. Kilian notes that CPSO is using 76(1.1) and (3.1) of the Code, instead of the summons power pursuant to s. 76(1). As a condition of Dr. Kilian being required to provide the CPSO with her patient’s health records, the existence of reasonable and probable grounds must be established. She submits that this must be decided on the judicial review I have referred to above, or the issue must be determined on this Application.

31The CPSO concedes that the claim that the records are covered by physician-patient privilege is in common with a defence raised by Dr. Kilian, who has already fully argued this issue in her factum. Further, this issue has already been addressed by this Court in a recent decision, and the Proposed Intervenors would not be able to assist the Court further.

32Dr. Kilian objects to this court making a determination on the issues of the “subject matter and scope of this Application”, without having had the chance to make proper submissions. These are significant disputes which must be decided in this Application. I agree that the parties must be given the opportunity to make their arguments on this issue.

Delay, Prejudice, and Discretion

33The CPSO submits that even if the moving party establishes one of the requirements in Rule 13.01 (1), subsection (2), after requiring the court to consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding, gives the court a discretion as to whether leave should be granted. In exercising that discretion, the court is to consider the nature of the case, the issues that arise, and the likelihood of the proposed intervenor being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. The Proposed Intervenors are seeking to introduce approximately 40 affidavits into the record. The CPSO would then be required to consider cross-examining each individual on their affidavit (subject to the issue of anonymity). For example, did these individuals receive Exemption Documents through Enable Air or through White Knight Medical? What medical information had these patients provided to Dr. Kilian at the time the exemption was issued?

34It is also argued that the Proposed Intervenors wish to file a 30 page factum. This too will require a response by the CPSO, further delaying and complicating the adjudication of the Application.

35The Applicant emphasizes that if this Court were to hold that the patients of a physician under investigation could always intervene in legal proceedings brought by the CPSO by virtue of a privacy interest in their physicians’ records, the CPSO would be vulnerable to patients delaying investigations through opportunistic (and time consuming) motions to intervene. This would have profound consequences in investigations where, for example, child or sexual abuse by a physician is suspected but the patient (or their guardian) does not want the investigation to proceed. The added procedural complexity will force the CPSO to expend substantial additional resources on this litigation. This prejudice is unlikely to be compensated by costs given the Proposed Intervenors’ request for (i) anonymity, and (ii) an order that no costs be sought against them.

36Further, it is submitted that the Proposed Intervenors will not make a useful contribution to the Application:

a. Most of the alleged “common issues” are not properly before this Court.

b. The Proposed Intervenors’ anticipated submission on physician-patient privilege have already been fully made in Dr. Kilian’s factum. The issue was also recently canvassed by this Court in College of Physicians and Surgeons v SJO, 2020 ONSC 1047. There is nothing more for the Proposed Intervenors to say on this subject.

c. The Proposed Intervenors’ anticipated submission on the CPSO’s requested publication ban has already been made in Dr. Kilian’s factum.

37CPSO argues that in the context of a public health crisis, they must be permitted to continue its urgent investigation.

Rule 5.03 and the O'Connor Process

38Dr. Kilian’s position on the Application and on this motion is that although the Applicant patients have sought to intervene as full parties under Rule 13.01 of the Rules of Civil Procedure (the Rules), Rule 5.03 is more appropriate. This submission is made in detail by Dr. Kilian in her response to this Application. The rights of the applicant patients under sections 7 and 8 rights under the Charter, require that the process dictated in O’Connor apply, requiring that Dr. Kilian’s patients, “shall” be included as full parties unless their inclusion is an abuse of process.

39In the alternative, Dr. Kilian submits that the intervenors:

1. Have an interest in proceedings in which records are sought that relate to their privacy and/or privilege interests;

2. The production of these records may result in the public disclosure of their private information which would adversely affect their privacy; and/or

3. Raise issues of fact and/or law that are common with the positions of the Respondent.

40Further, Dr. Kilian submits that while the full participation of the Applicant patients must be ordered in this case, the Court should consider that other patients have the constitutional right to be notified and to participate in this Application. Practically, the failure of the CPSO to recognize that they have a constitutional duty to notify all of the Respondent’s patients and to allow them to participate precludes the main Application from proceeding.

41It is submitted that the O’Connor process would make these patients, parties with full standing to participate in the Application.

42Dr. Kilian has raised these arguments in the Application but has not yet had the opportunity to make her submissions on this issue.

43On this motion, Dr. Kilian submits:

1. That the Applicant patients should be added as parties under Rule 5.03;

2. In the alternative, that the applicant patients be added as intervenors under Rule 13.1;

3. In any case, that the CPSO be ordered to comply with the O’Connor procedure by:

a) providing notice to the Respondents’ patients through the Respondent; and

b) allowing the patients, through pseudonyms, to participate fully in the main s. 87 application.

Decision

44As I have found above, I agree with Dr. Kilian that the parties must be given the opportunity to make their submissions on what the issues are for determination by this court in the Application and what the subject matter of the Application is. I find that it is not possible for this court to consider the factors to be examined on this Intervenor motion until the subject matter and scope of this Application, which is a major issue in dispute between the parties, is resolved. In light of this significant dispute between the parties on the “subject matter of the proceeding” (the Application), I reserve the decision on this motion until the court has made a determination on the subject matter and scope of the Application.

45To allow the parties the opportunity to make their submissions on the subject matter and issues to be determined on this Application, a hearing has been scheduled for March 21, 2022.

Pollak J.