Court File and Parties

COURT FILE NOS.: CV-21-00670634, CV-21-00670655, CV-21-00670173 DATE: 20220119 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Applicant – and – MARY ELIZABETH O’CONNOR, Respondent

AND RE: COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Applicant – and – MARK RAYMOND TROZZI, Respondent

AND RE: COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Applicant – and – PATRICK BRIAN PHILLIPS, Respondent

BEFORE: Justice E.M. Morgan

COUNSEL: Peter Wardle and Evan Rankin, for the Applicant Michael Swinwood, for the Respondent, Mary Elizabeth O’Connor No one appearing for the Respondents, Mark Raymond Trozzi and Patrick Brian Phillips

HEARD: January 7, 2022

Application to comply with investigation

[1] The three Respondents in this set of Applications are physicians who believe that vaccinations are a misguided and ineffective way to address the ongoing health issues caused by COVID-19. Although the specifics of each of their cases differ somewhat, they are each under investigation by the Applicant for their conduct and practices in acting on this belief.

[2] None of the Respondents are prepared to cooperate in the usual way with the Applicant’s investigation. They are each of the view that the investigation and the disclosure and production requirements that accompany an investigation amount to an abuse of the regulator’s power and a violation of their rights under the Canadian Charter of Rights and Freedoms (the “Charter”).

I. Procedural background

[3] All three of the Respondents have been outspoken critics of public health authorities during the COVID-19 pandemic. In particular, they have all voiced strongly-held objections to vaccines, diagnostic testing, and other public health approaches to the spread of the virus.

[4] The Applicant’s record in this proceeding indicates that it received reports that the three Respondents have been issuing patients medical exemptions to COVID-19 vaccinations and diagnostic testing that did not appear to be medically indicated. It was the view of the Applicant’s Inquiries, Complaints and Reports Committee (“ICRC”) that this practice could potentially amount to professional misconduct. Between June and October 2021, the ICRC approved the appointment of an investigator to examine the medical practice and conduct of each of the three Respondents pursuant to section 75(1)(a) of the Health Professions Procedure Code (the “Code”), being Schedule 2 to the Regulated Health Professions Act, 1991, SO 1991, c 18.

[5] In the words of the formal Appointment of Investigator documentation, the inquiries were to examine each of the Respondents’ practices “including in relation to COVID-19 and [his or her] completion of medical exemptions for COVID-19 vaccinations and diagnostic testing”. For the Respondent, Patrick Brian Phillips, the Applicant had an additional concern regarding his use of online websites and social media to disseminate what the Applicant characterized as misleading health information about COVID-19, as well as his posting on social media, copies of what were supposed to be confidential communications from the Applicant. The Appointment of Investigator in respect of Dr. Phillips mandated the investigator to investigate his medical practice “including in relation to communications and conduct relating to the COVID-19 pandemic”.

[6] The Applicant seeks an Order requiring each of the Respondents to comply with its investigative requests for information and documentation regarding their practices. It also seeks a publication ban on the names of its staff and other public health officials involved in the investigation of the Respondents, as well as an Order that Dr. Phillips refrain from publishing on any website or social media platform all information regarding the Applicant’s investigation of his practices.

[7] Two of the Respondents, Mark Raymond Trozzi and Patrick Brian Phillips, are represented by the same counsel, Michael Alexander. Two days before the hearing before me, Mr. Alexander and Michael Swinwood, counsel for the Respondent, Mary Elizabeth O’Connor, moved to adjourn the proceeding. They brought their adjournment request together with that of a fourth physician, Dr. Rochagné Kilian, who was subject to a similar Appointment of Investigator and who was a Respondent in a similar Application as the ones at bar. Dr. Kilian’s counsel, Rocco Galati, had served a Notice of Constitutional Question, dated December 13, 2021, challenging the Applicant’s proceedings against Dr. Kilian.

[8] The adjournment request was heard by Akbarali J., who granted an adjournment of the hearing in respect of Dr. Kilian. Mr. Galati had sent an agent to speak to the adjournment request, who explained that Mr. Galati was seriously ill in hospital and would not be able to attend at the hearing to argue Dr. Kilian’s case.

[9] Mr. Alexander and Mr. Swinwood appeared before Justice Akbarali at the same time and similarly requested an adjournment of the hearing in respect of their clients. They indicated that they, too, were planning to argue the constitutionality point raised by Mr. Galati, but that they needed more time to prepare that argument. Their adjournment request was not granted.

[10] In dismissing the request sought by Messrs. Alexander and Swinwood, Justice Akbarali indicated that all parties and their counsel had agreed to a timetable for the Applications set out by Myers J. at a case conference held the previous month, in November 2021. She stated that all counsel were aware of the timetable and the length of time that they would have to prepare if they chose to raise a constitutional challenge.

[11] In a short but strongly worded endorsement, Justice Akbarali went on to comment on the need to proceed expeditiously and the unacceptable nature of counsels’ (other than Mr. Galati’s) late-in-the-day adjournment request. Her endorsement, at para 3, left little doubt that the matter was to proceed as scheduled against Drs. O’Connor, Trozzi, and Phillips:

The Court is facing a backlog as a result of the pandemic. Counsel cannot squander the months they have to prepare for a hearing when court time is reserved for them and then seek a new date at the last minute because they have not done what they should have done earlier. The Court does not have the luxury of a surplus of time available to accommodate the whims of counsel.

II. Scope of the instant hearing

[12] At the hearing before me, counsel for the Applicant were in attendance, as was Mr. Swinwood on behalf of Dr. O’Connor. Mr. Alexander did not appear on behalf of his clients, Drs. Trozzi and Phillips, and he sent no one to court to explain his non-appearance.

[13] Lead counsel for the Applicant, Peter Wardle, advised me that he had, the previous day, received a short email from Mr. Alexander indicating that Mr. Alexander was “withdrawing” from the case. Mr. Wardle said that this took him somewhat by surprise since he knew of no procedure for counsel to simply withdraw from a case in this way on the eve of a hearing.

[14] Mr. Wardle’s view is, of course, correct; there is no procedure authorizing counsel to unilaterally withdraw from a case when he or she is on record for a client. Under the Rules of Civil Procedure, a party represented by counsel of record may change counsel by issuing a Notice of Change of Solicitors pursuant to Rule 15.03, or a lawyer can have herself removed from the record by bringing a motion under Rule 15.04.

[15] Mr. Alexander’s abandonment of his clients would have been unauthorized and improper at any time but having done so the day before a long-scheduled hearing whose adjournment had been denied left those clients in something of a void. I have his factum which he had previously filed on Drs. Trozzi and Phillips’ behalf, but no one was present to represent them or to make oral submissions at the hearing.

[16] At the outset of the hearing, Mr. Swinwood, on behalf of Dr. O’Connor, repeated his request for an adjournment of the hearing. Mr. Swinwood also advised me that he had not heard from Mr. Alexander and was unaware that he would not be in attendance. He indicated, however, that under the circumstances he was willing to consider himself agent for Mr. Alexander, at least for the purpose of reiterating the adjournment request on behalf of all the Respondents.

[17] I appreciate Mr. Swinwood’s act of collegiality toward Mr. Alexander and his concern for Mr. Alexander’s otherwise abandoned clients. That said, Mr. Swinwood provided no new grounds for the adjournment that had not already been answered rather forcefully by Justice Akbarali. Her observations about the court’s crowded docket and the need for counsel to adhere to timetables were well taken. As there was no reason for me to revisit the question, I declined the renewed adjournment request and proceeded with the hearing.

[18] The hearing then proceeded on the merits without any constitutional argument being made by Mr. Swinwood. I indicated that since the constitutional challenge was not being pursued, I would not be ruling on it. I explained that in that sense the Application would be decided without prejudice to the Respondents potentially raising a further constitutional challenge when they and their counsel are in a position to do so.

[19] Mr. Wardle submitted that in any case, the Respondents’ constitutional point would be more appropriately framed as an application for judicial review of a decision to commence a proceeding against them if that should transpire, or perhaps as an application to quash the appointment of an investigator. He argued that the Applicant considers the present framing of the constitutional questions to be procedurally flawed.

[20] Mr. Wardle’s procedural point may or may not be accurate, but I do not have to decide it or any other aspect of the proposed constitutional challenge. Respondents’ counsel’s entire point before Justice Akbarali and before me was that they were not prepared to proceed with the constitutional argument. Since they did not in fact proceed with any constitutional challenge, there is no constitutional question for me to rule on. If and when they actually bring their constitutional challenge to court (in whatever form it might take), it will be considered either by me or by another judge at that time.

III. The duty to cooperate

[21] It was Mr. Swinwood’s view that his entire response to the Application is really wrapped up in the constitutional challenge launched by Mr. Galati. He submitted that without arguing the constitutional point (which he was not prepared to do), he had little to say on the merits of the present Application. In his brief submissions, he did attempt to make some points about what his client sees as the ineffectiveness of COVID vaccines and how the Applicant should be investing its resources more productively than in investigating doctors that oppose them. I advised Mr. Swinwoood that I did not consider those submissions to be addressed to the legal issues as raised in the Application.

[22] The subject matter of the Application is that of cooperation with the investigator and disclosure of documents by the Respondents. The Applicant’s investigator has sought a number of documents from the Respondents relating to their medical practice, which the Respondents have refused to disgorge.

[23] The record demonstrates through correspondence and other statements that the Respondents have no intent to provide the requested documents or to otherwise cooperate with the investigator. Their communications to the Applicant indicate that they are not prepared to respond to the matters that the investigator is investigating. The Respondents’ approach since commencement of the investigation has been to argue that the Applicant is seeking to enforce what they view as medically unsound vaccinations. The only production they have made is to forward to the Applicant and its investigator various published articles that advocate their position on COVID vaccines.

[24] Section 87 of the Code provides:

The College may apply to the Superior Court of Justice for an order directing a person to comply with a provision of the health profession Act, this Code, the Regulated Health Professions Act, 1991, the regulations under those Acts or the by-laws made under clause 94 (1) (l.2), (l.3) (s), (t), (t.1), (t.2), (v), (w) or (y).

[25] Given the Respondents’ failure to cooperate with the investigation, the Applicant seeks an Order under section 87 of the Code requiring each of them to comply with sections 76(3) and (3.1) of the Code. Those sections require a physician’s cooperation with an investigation and prohibit a physician from obstructing an investigation.

[26] The particulars of the Orders sought here are rather lengthy and have been specified in the Notices of Application. They include, perhaps most importantly, an Order requiring that the Respondents provide all medical charts and patient information requested by the investigator. Given that the Applicant is frequently in the position of investigating allegations of physicians’ incompetence, section 76(4) of the Code overrides the patients’ right of confidentiality of health records in the event of an investigation by the Applicant. The Applicant has all the statutory authority it needs to obtain the documentation that it is seeking from the Respondents.

[27] The Order sought by the Applicant under section 87 is, in effect, a statutory injunction. This Court held in College of Physicians and Surgeons of Ontario v. Ravikovich, 2010 ONSC 5714, at para. 10, that the test for a statutory injunction is different in several significant ways from a common law injunction:

When such an order is sought, in a case such as this, the Court must ask whether there has been a continued breach of the statute by the person against whom the injunction is sought and whether the statute permits the Court to make an order against that person. The College is not required to prove irreparable harm if the order is not made. A Court has discretion to refuse such an order - for example, where the order would be of questionable utility or inequitable.

[28] Generally speaking, a statutory injunction does not place as onerous a burden on the party seeking it as does a mandatory injunction at common law: Ontario (Minister of Agriculture & Food) v Georgian Bay Milk Co., [2008] O.J. No. 485, at para. 34 (S.C.J.). Where a regulator “applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach”: College of Physicians and Surgeons of Ontario v. Canon, 2018 ONSC 4815, at para. 43. “Exceptional circumstances” includes instances where the physician has ceased the activity, making the injunction moot, or where there is uncertainty as to whether the physician has done anything to justify an injunction by the Applicant: Gavin Downing v. Agri-Cultural Renewal Co-operative Inc. O/A Glencolton Farms, 2018 ONSC 128, at para. 113.

[29] The Respondents are all in continual breach of their obligations under the Code. They have put forward no reason for their refusal to comply with their obligations in this regard, except to reiterate their objection to vaccines. As indicated, what the investigator seeks is production of records; the investigation does not seek to compel vaccinations or any other specific medical treatment. Accordingly, the Respondents’ position is unresponsive to the investigator’s request and their argument about the efficacy or inefficacy of COVID vaccines is a non-sequitur.

[30] Given that there are no professional disciplinary proceedings against them, the Respondents will suffer no legal prejudice in complying with the investigator’s requests. As regulator of the medical profession, the Applicant and its investigative staff play an important role in “monitoring competence and supervising the conduct of professionals [which] stems from the extent to which the public places trust in them”: Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 SCR 513, at para. 36. This function is an integral part of its mandate, since under section 3(1)2 of the Code it is vested with a duty to serve and protect the public interest: College of Physicians and Surgeons v. SJO (2020), 2020 ONSC 1047, 150 O.R. (3d) 423, at para. 41 (SCJ).

[31] The record establishes that the Applicant has ample grounds for the section 87 Order that it seeks.

IV. Publication ban

[32] In conjunction with its request for an Order compelling the Respondents to cooperate with the investigator and to produce documents and medical records, the Applicant seeks a publication ban with respect to certain aspects of its investigation. Some background to the dealings between the parties is required to properly evaluate that request.

[33] On May 7, 2021, the Applicant received a report from a Medical Officer of Health, referred to in the Applicant’s materials as Dr. X, expressing concerns about Dr. Phillips’ intervention in the care of an infant and his reporting of a number of incidents of Adverse Events Following Immunization (“AEFI”). Weeks later, on June 24, 2021, the Applicant appointed investigators pursuant to section 75(1)(a) of the Code to investigate whether Dr. Phillips, in his conduct and in his Family Medicine and Emergency Medicine Practice, had engaged in professional misconduct or is incompetent. The investigation was said to include Dr. Phillips’ communications and conduct relating to the COVID-19 pandemic and vaccinations.

[34] That same day, the investigator initiated contact with Dr. Phillips by sending a letter marked “PRIVATE AND CONFIDENTIAL”, notifying him of the Appointment of Investigators. Enclosed with this letter was a copy of the information considered by the Applicant’s Registrar at the time she formed reasonable and probable grounds to commence the investigation.

[35] The evidence establishes that Dr. Phillips has acquired a significant presence on Twitter. As of the initiation of the investigation, his Twitter account had approximately 20,000 followers. In late June 2021, Dr. Phillips posted a tweet on his publicly accessible Twitter account announcing that he intended to publicize on Twitter his experiences with the Applicant. His tweet indicated that no patient information would be publicized. He also posted the complaint he had received from the Applicant along with an early draft of what he said would be his defense to the complaint.

[36] The investigator has deposed that imbedded in Dr. Phillips’ tweet was a link to a Google Drive, to which Dr. Phillips had uploaded the investigator’s letter of March 4, 2021 and the enclosed Registrar’s investigation materials. These materials included the unredacted names and contact information of two physicians, identified in the Applicant’s materials as Dr. A and Dr. B, who had assisted the Applicant in its review of information about Dr. Phillips and his practice. The record shows that this tweet received 306 Retweets, 21 Quote Tweets, 767 Likes, and a large number of replies that mentioned Dr. A and Dr. B. The following day, Dr. A called the investigator to advise that Dr. Phillips’ supporters were now “coming after him” on Twitter.

[37] On June 25, 2021, Dr. Phillips posted a further tweet to his Twitter account stating that he was under investigation by the Applicant after Dr. X had complained about his AEFI reports. This tweet began with the exclamation: “The backlash is real.” It ended with the promise: “Stay tuned for documents!” and posed the rhetorical question: “How many others don’t report because they’ll be investigated?”

[38] Dr. Phillips posted further tweets on June 25, 2021, in which he uploaded screen shots of the June 24, 2021 notification letter and the Appointment of Investigators. The investigator has deposed that when the screen was clicked, images of the entire documents appeared. Later that same day, Dr. Phillips announced to his Twitter following that, “The complaint minus any patient information will be coming when my defense is fully prepared…”.

[39] The investigator took screen shots of Tweets and responses directed at Drs. A and B. Those images are now part of the evidentiary record produced by the Applicant. The following is a list reproduced from the Applicant’s counsel’s factum that identifies what the Applicant considers the most egregious of the responses directed toward the two doctors who provided information to its investigators. The language for the most part reflects typical social media shorthand:

(i) ‘#CrimesAgainstHumanity’ (ii) ‘Disgusting. How do you sleep at night?’ (iii) ‘Blatantly stealing the soul of kids… judgement day is coming!’ (iv) ‘You’re complicit in Nuremberg code violations. The trials will come for you. I will make sure of it’ (v) ‘IMHO, you’re a criminal.’ (vi) An image of Gollum, a goblin-like creature from the Lord of the Rings with the Caption ‘Murderer…’ (vii) ‘#CrimesAgainstChildren’ (viii) ‘#Nuremberg2 #CovidCourts’ (ix) ‘This is great. I will be filing my first complaint against you for pushing lockdown policies without a risk/benefit exercise being completed.’

[40] In addition, once the ICRC’s investigation of the Respondents became public, the President of the Applicant and some of its staff received emails and voice messages which Applicant’s counsel describe as “designed to intimidate”. These communications are described in their factum as follows:

An individual called and left a voicemail for the President of the College referring to her as a ‘corporate medical thug’ and expressing the view that she ‘belong[s] behind bars’ for ‘aiding and abetting an experimental injection that is harming and destroying lives.’

A variety of emails have been received, including by College counsel, making threatening comments including that ‘we will soon see tribunals for all who participated in this manipulative, coercive, destructive agenda. […] Maybe Trudeau can grant you immunity though?’ Another asks: ‘Have you read about the fate of the Nazi doctors and nurses who experimented on people?’ Still another states: ‘You guys are a disgrace, lowlives [sic] and should be absolutely ashamed of yourselves. For your roll in this genocide.’ The author then suggests that it will not be long before ‘[y]ou are all locked behind bars…’

[41] Finally, Applicant’s counsel seek a publication ban due to conduct which they place under the heading “Intimidating Conduct at Health Care Facilities”. In this category they do not particularize any acts aimed at the Applicant’s personnel or at participants in the Applicant’s investigative process; likewise, they do not allege any intimidating conduct engaged in by or linked to the Respondents. Rather, Applicant’s counsel refer to social protests at large that oppose vaccinations and other pandemic control measures. As Applicant’s counsel put it in their factum: “It is common knowledge that individuals and groups with ideological opposition to vaccination have conducted intimidating protests at health care facilities across Canada in relation to COVID-19 health measures.”

[42] On this latter point, I would say that if there were evidence of actual intimidating conduct by or on behalf of the Respondents, the entire rest of the Applicant’s argument would be unnecessary. Intimidation of participants in a regulatory, judicial, legislative, or other legal process would certainly qualify as conduct that demands extraordinary measures such as a non-publication Order. For that matter, intimidation of people engaged in health care, education, transportation, commerce, or any other societal activity would also demand scrutiny and, potentially, legal intervention. I would not hesitate to issue the Order sought by the Applicants if the evidence showed the Respondents or people acting on their behalf or in their support actually engaged in physical intimidation of anyone going about their business.

[43] But that is not what the evidence shows. The Applicant’s point is that people who share a viewpoint with the Respondents and their supporters have engaged in intimidating behaviour. That is a form of guilt by ideological association and is not a legal argument that a Court can accept. It is akin to 1950s-era initiatives to impugn all expressions of Communism because some Communists were dangerous: see Switzman v. Elbing, [1957] SCR 285. This argument can be dismissed.

[44] What the Applicant actually wants is a ban on verbal harassment, not physical intimidation. I agree that verbiage can be also disturbing and even fear-inducing and could potentially lead to a publication ban on the identities of persons at whom it is targeted. However, it must be examined for what it is, and not confused with other forms of intimidating conduct that the evidence does not show.

[45] On June 28, 2021, the Applicant’s investigator wrote to Dr. Phillips, through counsel, regarding Dr. Phillips’ public dissemination of the investigation materials. He requested that Dr. Phillips remove from the internet and social media all information which publicly identified individuals involved in the Applicant’s investigations and, going forward, that he redact information that identified individuals involved. He enclosed with this correspondence copies of the Applicant’s “Statement on Social Media – Appropriate Use by Physicians”, which included a linked page of Frequently Asked Questions and the Applicant’s policy on Physician Behaviour in the Professional Environment.

[46] The Applicant sent a follow-up letter on September 22, 2021 indicating that the linked investigation materials were still available online. In this letter, the Applicant warned Dr. Phillips, through his counsel:

As you are aware, the College and its personnel are bound by a duty of confidentiality set out at s. 36 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. Information received by the College, including in the context of an investigation, may only be disclosed in accordance with exceptions set out in the legislation. Investigative information was provided to Dr. Phillips on March 4, 2021, in accordance with these legislative exceptions, in order to permit him to respond to issues raised in the College’s investigation. All information provided to Dr. Phillips in the context of any investigation is subject to an implied undertaking that it shall be used only for the purpose provided.

I am writing to require that Dr. Phillips immediately remove all College investigative information which he has posted publicly, in any forum, and that he refrain from posting confidential investigative information publicly in future. If your client does not comply with this request, we will be forced to bring an application before the Courts requiring him to comply. [Emphasis in original]

[47] The Applicant received no reply to this correspondence. On October 21, 2021, the present Application against Dr. Phillips was commenced. The Applicant seeks, inter alia, a non-publication Order in respect of the names and identifying information of patients, sources, witnesses and the Applicant’s staff and other individuals associated with the Applicant’s investigations.

[48] In support of this request, Applicants’ counsel rely on the Supreme Court of Canada’s recent decision in Sherman Estate v. Donovan, 2021 SCC 25, at para 38. Justice Kasirer, for a unanimous Court, set out the test for a publication ban along the lines proposed here:

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[49] In analyzing whether the current circumstances meet this test, it is important to keep in mind the discussion that preceded the articulation of the test in the Supreme Court’s judgment. To put the issue in perspective, Kasirer J. summarized the previous jurisprudence on sealing orders and publication bans. He stressed, at para. 30, that the privacy concerns that drive requests for such orders must be weighed against the open society and democracy concerns that apply to all legal proceedings:

Court openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, at para. 23; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at paras. 23‑26). Reporting on court proceedings by a free press is often said to be inseparable from the principle of open justice. ‘In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so’ (Khuja v. Times Newspapers Limited, [2017] UKSC 49, [2019] A.C. 161, at para. 16, citing Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at pp. 1326‑39, per Cory J.). Limits on openness in service of other public interests have been recognized, but sparingly and always with an eye to preserving a strong presumption that justice should proceed in public view (Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, at p. 878; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at paras. 32‑39; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, at para. 56).

[50] In Sherman Estate, the appellants argued that their interest in personal privacy and dignity would be undermined with publication of certain details about their family’s lives and dealings. The Court accepted that, like safety and security, personal dignity is a public value that in the right case can override, or partially override, the public interest in open and transparent legal proceedings. But in doing so, it was careful to indicate that the analysis must focus very precisely on the actual nature of the private information and its impact on the dignity value at stake. The Court did not accept generalized statements about the need for confidentiality and the “sweeping privacy interest relied upon by the [appellants]” as satisfying the test: Ibid., at para. 34.

[51] Importantly, the Court was of the view that the dignity interest asserted by the appellants must be demonstrated in the evidentiary record. In Justice Kasirer’s words, Ibid., at para. 35: “I hasten to say that applicants for an order making exception to the open court principle cannot content themselves with an unsubstantiated claim that this public interest in dignity is compromised any more than they could by an unsubstantiated claim that their physical integrity is endangered.”

[52] Accordingly, it is essential to the legal test for a non-publication Order that the specific social media postings that the Applicant characterizes as “disturbing and threatening communications” be carefully analyzed. The analysis must keep in mind that the test for overriding the governing principle of openness in legal proceedings is an inherently “high bar”: Ibid., at para. 34. Sweeping generalizations about the disturbing nature of the communications in question will not meet the test; on the other hand, specific threats to individuals engaged in the Applicant’s investigative process will meet the test.

[53] Turning first to the Applicant’s request for a publication ban on patient information, this is both the least contentious and the least necessary of the remedies that the Applicant seeks. Nobody, including the Respondents, questions the need to keep patients’ personal medical records out of public scrutiny.

[54] It is self-evident from its overall mandate that the Applicant regulates its members for the benefit of the patients that rely on them, and not for the detriment or embarrassment of those patients. Section 76(4) of the Code authorizes the Applicant itself to gain access to patients’ health records despite the provisions of other statutes that protect the confidentiality of those records, but the Applicant’s exercise of this authority must “prevent public disclosure of confidential patient information”: Gore v. College of Physicians and Surgeons of Ontario (2009), 2009 ONCA 546, 96 O.R. (3d) 241, at para. 24 (Ont. C.A.).

[55] Having said all of that, there is no evidence in the record that confidential patient information has in fact been publicly disclosed by the Respondents. Dr. Phillips, in writing to his social media audience, specifically said that he would be posting his dealings with the Applicant’s investigation without disclosing any patients’ medical information. I would not hesitate to grant a non-publication Order with respect to the improper disclosure of confidential medical information belonging to a patient. But under the circumstances, this seems like a ‘straw man’ target. The evidentiary record as it now stands does not demonstrate the need for such a remedy.

[56] Next, the Applicant seeks a publication ban on anything identifying the “sources” who have provided information to the Applicant or its investigators. It also seeks an Order specifically against Dr. Phillips covering the period during which he posted the investigation materials online, along with the Order prohibiting the posting or publication of the identities of the Applicant’s sources of information and witnesses. Unlike the request with respect to patient health information, there is evidence in the record to prompt this request.

[57] I take the Applicant’s concerns for the anonymity of its “sources” to be a reference to Dr. A and Dr. B. As previously stated, they are private physicians who have provided medical expertise to the Applicant in identifying concerning practices and conduct by the Respondents. The Applicant’s reference to “sources” may also refer to the Medical Officer of Health, Dr. X, who brought the conduct and practices of the Respondents to the Applicant’s attention in the first place.

[58] In my view, the two doctors referred to as Dr. A and Dr. B deserve to have their identities protected at this early investigative stage. They are not public officials or regulators, and there is a public interest in encouraging the reporting of misconduct and in assisting the Applicant in identifying misconduct: Pothier v. Canada (Attorney General), 2021 FC 979 at para. 42.

[59] While the reporting of physician misconduct can often come from patients, it can just as often come from other physicians. In fact, it may frequently be the case that only another doctor will have the medical knowledge needed to identify professional misconduct by another doctor. Patients and physicians alike require some assurance that they can register complaints and report to the Applicant without public exposure.

[60] This interest also meshes with the public interest in protecting the integrity of ongoing investigations and fostering witness candour: Turner v. Death Investigation Council, 2021 ONSC 6625, at para. 56. Reason and logic support the proposition that even the spectre of harassment will potentially chill other physicians from acting as sources of medical information and witnesses in assisting the Applicant’s investigative mandate: Work Safe Twerk Safe v. Her Majesty the Queen in Right of Ontario, 2021 ONSC 1100, at para. 23 citing AB v. Bragg Communications Inc., 2012 SCC 46, at para 16.

[61] Without some anonymizing of doctors who come forward in an effort to assist the medical community at large by assisting the regulator, the Applicant may be unable to operate efficiently and effectively: Osif v. College of Physicians and Surgeons of Nova Scotia, 2008 NSCA 113, at para. 23. That is not to say that the identity of physicians who act as sources of information is to be withheld from the Respondents themselves (who have a right to know their accusers). But there is no overriding reason for the public at large to know the identities of individual doctors assisting the Applicant at this stage.

[62] Finally, the Applicant seeks non-publication Orders with respect to the identities of its own investigative staff and of Dr. X, the Medical Officer of Health who instigated some of the subject investigations. As public sector personnel and public officials engaged in the enforcement activity of a regulatory body, I view this request in a different light than the request with respect to private physicians lending their expertise to the Applicant. Public sector investigators, lawyers, and medical officers must bear a higher level of public accountability in carrying out their duties.

[63] The prospect of anonymizing the involvement of public officials such as a Medical Officer of Health, or regulatory personnel such as the Applicant’s investigatory and legal staff, raises a concern about public governance. The question must consider the discomfort and safety of the individuals involved; but it must also ask whether in seeking a publication ban, the regulation of the health professions and enforcement of the Code is diverging from the values of an open, democratic society.

[64] The Supreme Court of Canada has described good governance as a matter of appropriately balancing privacy and “confidentiality...with the public’s interest in having transparent and open governmental institutions”: Ontario (Community Safety and Correctional Services) v. Ontario (Information and Privacy Commissioner), 2014 SCC 31, [2014] 1 SCR 674, at para. 66. Public policy scholars have likewise observed that transparency and accountability of public institutions are weakened when concerns over privacy are elevated: see Amy Conroy and Teresa Scassa, “Promoting Transparency While Protecting Privacy in Open Government in Canada” (2015), Alta Law Rev No. 1.

[65] The record before me has no direct evidence from Dr. X or any public officials and/or employees of the Applicant as to their subjective views of the emails and tweets they have read. Applicant’s counsel submits that this Court can nevertheless conclude that those communications represent serious risks to the Applicant’s efficiency and integrity of the Applicant’s enforcement function based on a reasoned, objective assessment of them.

[66] My reading of the communications cited by the Applicant and its counsel is that they are laced with anger. The language of Dr. Phillips’ followers, in particular, is vituperative and certainly not to my liking. It appears defamatory and may be actionable. But it does not really threaten violence or indicate that the authors will take other illegal action against public officials or the Applicant’s personnel. Rather, for the most part it consists of people vowing to take legal action – unfounded legal action, to be sure – but nevertheless not illegal or extra-legal action.

[67] To make an obvious point, threatening to engage in a criminal prosecution or a “war crimes” prosecution is ridiculous, but it is not quite the same as threatening to engage in a criminal act or a war crime. Comparing the fate that will befall the Applicant’s personnel to that which befell the defendants at Nuremburg is an utterly absurd analogy, but the reference is to a legal process. If there is a threat in this kind of communication, it is along the lines of a too-aggressive legal missive which misguidedly advises the recipient to “govern yourself accordingly”.

[68] It has not escaped my attention that the Twitterati that comment on the Applicant’s investigation have a distasteful tendency to tarnish their targets by calling them “Nazis”. The examples provided by the Applicant’s counsel are replete with this type of reference. I cannot and do not condone this language. Analogizing an Ontario regulator’s enforcement of vaccine and other health policies to history’s most genocidal regime is so outlandishly wrongheaded that it does not require me to even articulate a contrary argument.

[69] In my view, however, the real sin of bandying about the “Nazi” label in this way is that it belittles the actual victims of Nazism. But the misguided tweets impugned by the Applicant do not truly threaten a Medical Officer of Health or the Applicant’s personnel. They need not fear a supposed Nuremberg-like trial or the social media users who promise to bring one on.

[70] Contrary to its murderous historical connotation, the “Nazi” label has unfortunately passed into general discourse as a commonplace form of lowbrow insult. In fact, it has become an internet adage that the longer an online discussion goes on, the higher the probability that a Nazi comparison will be invoked: Mike Godwin, “Meme, Couter-meme”, Wired (October 1, 1994) https://www.wired.com/1994/10/godwin-if-2/. The era of digital communication has, sadly but undeniably, greatly inflated the frequency of such inappropriate and hyperbolic comparisons: Mike Godwin, “I Seem To Be a Verb: 18 Years of Godwin’s Law”, Jewcy (April 30, 2008) https://jewcy.com/arts-and-culture/i_seem_be_verb_18_years_godwins_law.

[71] While no one would relish being insulted in this way, the use of outrageous language has lost its intimidating nuance in the “crude mirror of our culture” that is the contemporary media environment: Michiko Kakutani, “Culture Zone: Howard Stern and the Highbrows”, The New York Times Magazine, January 28, 1996, section 6, p. 22. Its use on social media – notorious for “trolling, spam, manipulation, and other kinds of misbehaviour” – only adds to the dismissal that such language deserves: Hannah Bloch-Wehba, “Automation In Moderation”, 53 Cornell J Int’l Law 41, 52 (2020).

[72] The social media name calling identified by the Applicant is excessive and insulting, but it is not fear-inducing. Without some perspective on such hyperbole, “the inflation of language…detracts from precise consideration of what is involved here”: Del Zotto v. Canada (1997), 116 CCC (3d) 123, at para. 46 (Fed. C.A.) (Stayer JA, dissenting), dissent adopted [1999] 1 SCR 3. If being called a “Nazi” on Twitter could actually paralyze regulatory officials in the course of their duties, one can only imagine what it would do to a Prime Minister or provincial Premier who are targeted non-stop. In the current social media-dominated world, all of government would have to operate in secret in order to avoid such language.

[73] A non-publication Order in legal and regulatory proceedings with the aim of moderating or eliminating unwanted social media content, “comes at a significant cost to civil liberties” and democratic governance: Kakutani, Ibid., at p. 87. If the Applicant’s staff members and other public officials were in need of physical protection from the angry tweeters, they would be justified in thinking that sticks and stones will break their bones and a non-publication Order would be called for. As it is, however, being taunted with name-calling on Twitter is qualitatively different.

[74] Outrage and exaggeration on social media is far from unique to this case: Yael Frish and Dov Greenbaum, “Is Social Media a Cesspool of Misinformation? Clearing a Path for Patient-Friendly Safe Spaces Online” (2017), 17 Am J Bioethics 19. Were it to justify anonymizing our public officials and law enforcers, the threshold for keeping the public in the dark about people in authority would be set too low.

[75] I am therefore not inclined to grant a non-publication Order with respect to the identities of the Applicant’s investigators and other regulatory personnel or an official in Ontario’s Medical Officer of Health office. If threats of violence or actual intimidation emerge, the Applicant will of course be free to revisit this issue in the face of fresh evidence.

V. Disposition

[76] The Respondents shall each comply with sections 76(3) and (3.1) of the Code in respect of the ongoing investigations of them by the Applicant. More specifically, they shall refrain from obstructing the investigator and shall not withhold from the investigator things relevant to the investigation. They shall cooperate fully with the investigator in carrying out the investigation.

[77] The above compliance and cooperation includes providing medical charts and patient information as requested, facilitating the investigator’s inquiry into their practices and conduct, permitting the investigator entry to their premises to carry out investigative functions, permitting the investigator to copy (at the Applicant’s expense) any documents relevant to the investigation, and permitting the investigator to remove any documents relevant to the investigation.

[78] This Order is without prejudice to the Respondents’ right to bring a constitutional challenge to the investigation by the Applicant.

[79] There shall be a non-publication Order in respect of sources and witnesses (other than the Applicant’s staff or Medical Officer of Health) associated with the Applicant’s investigation of the Respondents. The balance of the Applicant’s request for a non-publication Order is dismissed.

[80] There shall be an Order directing Dr. Phillips to refrain from publishing or publicly disclosing the names and identifying information of Dr. A and Dr. B, and to remove from any website or social media posting the names and identifying information of those physicians. The balance of the Applicant’s request for an Order with respect to Dr. Phillips’ social media and internet use is dismissed.

[81] The parties may make written submissions as to costs. I would ask counsel for the Applicant to provide my assistant with brief submissions within two weeks of today and counsel for Dr. O’Connor to provide brief submissions within two weeks thereafter.

Morgan J.

Date: January 19, 2022