Court File and Parties

COURT FILE NO.: CV-21-00670633 DATE: May 8, 2023 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: COLLEGE OF PHYSICIANS AND SURGEONS OF ONTARIO, Applicant AND: ROCHAGNÉ KILIAN, Respondent

BEFORE: Dineen J.

COUNSEL: Peter Wardle, Evan Rankin and Adam Rose, for the Applicant Paul Slansky, for the Respondent

HEARD: April 25, 2023

Endorsement

[1] The College of Physicians and Surgeons of Ontario applies for an order pursuant to s. 87 of the Health Professions Procedure Code requiring the Respondent to produce patient records as part of an investigation, and to otherwise cooperate with the investigation as required by the Code. The Respondent resists the order sought on many bases, arguing primarily that it unjustifiably infringes on the privacy interests of the patients whose records are sought.

Factual background

[2] The Respondent is a doctor and member of the Applicant College of Physicians and Surgeons (CPSO). The Applicant began an investigation of the Respondent in response to complaints it received beginning in September, 2021. None of these complaints came from her patients.

[3] Some of the complaints concerned unusual COVID-19 vaccine exemption certificates that the Respondent had apparently signed. These did not explain a medical basis for exemption and cited legal authorities including the Nuremberg Code. Some complaints asserted that the Respondent was providing these certificates to people who were not her patients. Other complaints involved public statements made by the Respondent in which she was critical of vaccine mandates for health care workers and skeptical of the efficacy and safety of COVID-19 vaccines.

[4] On September 29, 2021, the Registrar of the Applicant sought authorization from the Inquiries, Complaints and Reports Committee (ICRC) to appoint investigators pursuant to s. 75(1)(a) of the Health Professions Procedural Code. This request was granted on October 1. The terms of the investigation included whether the Respondent in her medical practice and conduct with respect to the COVID-19 pandemic had engaged in professional misconduct or was incompetent.

[5] An investigator wrote to the Respondent on October 1, 2021 and asked her to provide a complete list of patients for whom she had completed a COVID-19 exemption for vaccination, masking, or testing, or for whom she had prescribed certain medications for COVID-19 that were not recommended by Health Canada. He further requested the complete medical file for each such patient.

[6] The Respondent declined to provide any such information, citing concerns about the confidentiality of her relationship with her patients. She takes the position that the investigation is based on frivolous complaints about her legitimate exercise of expression. She further denies that she signed any vaccine exemption without assessing the patient and concluding that he or she was at risk of specific adverse reactions from vaccination.

[7] Following further complaints, the ICRC made an interim order limiting the Respondent’s ability to make COVID-19 exemptions. Even more complaints followed, including complaints about exemptions that appeared to have been signed by the Respondent after the ICRC’s interim order. As a result, the Respondent’s certificate of registration was suspended. The Respondent has filed an affidavit in which she says this was the result of an error where an online service that was meant to provide “medical-legal exemptions” without a medical assessment accidentally went live for a period of 48 hours. This service, which she says she participated in but did not operate, used without her knowledge an electronic signature that she had previously provided.

[8] To date, the Respondent has continued to refuse to provide the information requested by the investigator.

Procedural history

[9] These proceedings have an inordinately long and complex history. The CPSO brought this application on an urgent basis on October 21, 2021 and it was initially scheduled to be heard on January 7, 2022 with three companion cases. It was then adjourned due to the illness of the Respondent’s then counsel to February 8, 2022 while the companion cases were argued separately. On that date it again did not proceed as a result of an application by a group of anonymous patients of the Respondent who sought to intervene.

[10] Pollak J. heard both the application to intervene and the underlying application on the merits. On April 19, 2022, she issued a ruling staying the CPSO’s application pending a judicial review brought by the Respondent. In that separate Divisional Court proceeding, the Respondent challenged the appointment of investigators and the interim sanctions imposed by the CPSO. Pollak J. granted the stay in order to prevent the possibility of duplicative proceedings and inconsistent findings. The CPSO was subsequently granted leave to appeal the stay to Divisional Court.

[11] On November 7, 2022, the Divisional Court dismissed the Respondent’s application for judicial review in its entirety: Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931. The appeal from the stay of the CPSO’s application was heard by a different panel on December 5, 2022 and allowed in reasons delivered on January 5, 2023: College of Physicians and Surgeons of Ontario v. Kilian, 2023 ONSC 5. During the hearing of that appeal, the parties disagreed on whether the stay under appeal was spent with the dismissal of the judicial review application such that the appeal was moot. As I will discuss shortly, this issue was also the subject of controversy before me.

[12] LeMay J., who had also been on the panel that heard and dismissed the Respondent’s judicial review application, delivered reasons for the panel that heard the appeal of the stay of the CPSO’s application. He held that the appeal should be decided on its merits even assuming that it was moot. He concluded that the stay had been unjustified and rested on an insufficient appreciation of the very narrow scope of a section 87 application. I will review his reasons in more detail later in this judgment. He held that the stay issued by Pollak J. should be lifted, and he remitted “the questions that remain to a different judge of the Superior Court of Justice for determination in as expeditious a way as is possible” (at para. 75). I have been assigned as the new application judge.

[13] On March 10, 2023, Chalmers J. dismissed the application of the Respondent’s patients to intervene in the application by CPSO that is now before me. The patients appealed that decision to the Ontario Court of Appeal and applied to that Court for a stay of this application pending the appeal. This application was heard by Harvison Young J.A. on April 20, 2023 and dismissed with reasons delivered on April 24, 2023 on the basis that the appeal did not raise a serious issue: Kilian v. College of Physicians and Surgeons of Ontario, 2023 ONCA 281. Specifically, she rejected the proposition that the patients have a reasonable expectation of privacy in their health records that can be asserted against a regulator seeking access to the records for the purpose of investigating a physician. Given that the rights of the patients were not engaged on the s. 87 application, they had no right to intervene.

The statutory framework

[14] Under s. 75 of the Code, the registrar may appoint investigators to determine whether a member of the CPSO has committed an act of professional misconduct or is incompetent based on a belief supported by reasonable and probable grounds. The sufficiency of these grounds is determined by the Inquiries, Complaints and Reports Committee who must approve the appointment.

[15] Section 76 of the Code grants powers to the investigators:

76 (1) An investigator may inquire into and examine the practice of the member to be investigated and section 33 of the Public Inquiries Act, 2009 applies to that inquiry and examination

(1.1) An investigator may make reasonable inquiries of any person, including the member who is the subject of the investigation, on matters relevant to the investigation.

(2) An investigator may, on the production of his or her appointment, enter at any reasonable time the place of practice of the member and may examine anything found there that is relevant to the investigation.

(3) No person shall obstruct an investigator or withhold or conceal from him or her or destroy anything that is relevant to the investigation.

(3.1) A member shall co-operate fully with an investigator.

(4) This section applies despite any provision in any Act relating to the confidentiality of health records.

[16] This application is brought under s. 87 of the Code:

87 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).

Issues

Am I bound by the decision of the Divisional Court setting aside the stay of this application and giving guidance about its proper scope?

[17] In the course of his ruling for the Divisional Court setting aside the stay of this application, LeMay J. for the panel gave detailed reasons about the proper scope of this application and rejected the Respondent’s position on the subject:

On a judicial review application, a party can challenge the appointment of an investigator, an interim suspension or a disciplinary penalty imposed at the end of an investigation and the related processes. On a judicial review application, the merits of the investigation, including its constitutionality, can be challenged. Indeed, Dr. Kilian raised a number of those issues in her recently concluded application for judicial review.

On a section 87 application, the investigation is ongoing. The purpose of a section 87 application is to compel a non-cooperating doctor to cooperate in an investigation. The scope of review is necessarily more limited. Indeed, previous Courts have recognized the limitations in section 87 applications. For example, in College of Physicians and Surgeons of Ontario v. Ravikovich, 2010 ONSC 5714, Swinton J. was faced with a challenge to a s. 87 application by a doctor who argued that there had not been reasonable and probable grounds to appoint investigators. Swinton J. rejected that argument, stating (at para 10):

An order directing a person to comply with the Code, pursuant to s. 87, is in effect a statutory 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 (see, for example, Ontario (Minister of Agriculture and Food) v. Georgian Bay Milk Co-operative Inc. at para. 34).

Counsel for Dr. Kilian argued that this decision was incorrect. Counsel argues that the onus in a section 87 application is on the CPSO, and that the CPSO must demonstrate that the demand is lawful before a section 87 order may be made. In support of this argument, counsel relied upon the decision in Canon v. College of Physicians and Surgeons of Ontario, 2018 ONSC 4815 and, specifically, the passage at paragraph 43, where Perell J. stated:

Where a public authority 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. The onus to raise the exceptional circumstances lies with the respondent, and those circumstances are limited; for example, to where there was a right that pre-existed the enactment contravened or where the events do not give rise to the mischief the enactment was intended to preclude.

There are two problems with counsel’s submissions. First, the facts of Canon are distinguishable. Mr. Canon was practicing medicine without a licence and was, therefore, not a member of the CPSO. The CPSO had to demonstrate that a breach of the legislation was established before it could obtain the injunction. In this case, section 76 (3) of the Code requires a member to cooperate with an investigation. In other words, a breach of the legislation will be established the moment that the CPSO can demonstrate to the Court that Dr. Kilian was the subject of an investigation and was not cooperating with that investigation.

Second, less than five paragraphs before the paragraph reproduced above, Perell J. had repeated and relied upon Swinton J’s decision in Ravikovich. In other words, Canon applies the same principles as Ravikovich. Those principles, which are repeated in the cases cited in both Canon and Ravikovich, permit a very narrow review by the Superior Court of Justice on a section 87 application. [Emphasis added]

[18] LeMay J. went on to hold that the Court of Appeal in Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727 had established that the power of the investigator “to obtain patient files from Dr. Killian” was constitutional:

When the passages from Sazant are considered together, it is clear that the section 76 powers are constitutional and that there are limits to those powers. The Superior Court judge hearing the section 87 application is tasked with considering whether the requests for information that the investigators have made are within the scope of their investigatory powers as described in the previous paragraph.

As Swinton J. noted in Ravikovich, Dr. Kilian is required to comply with the law pending any challenge to it. Questions of general constitutionality were not before the Court below and, in any event, Sazant’s finding that section 76 of the Code is constitutional is binding on both this Court and the Superior Court. Questions of whether Dr. Kilian’s individual rights were violated are properly questions for the ICRC and/or Discipline Committee to determine in the first instance. Those questions, once determined by the ICRC and/or Discipline Committee can then be subject to judicial review.

[19] While LeMay J. declined to determine the CPSO’s application on its merits in part because the intervention application by the patients was outstanding, he noted that the Divisional Court’s reasons would “provide the Applications Judge some guidance in resolving the issues raised in the application.”

[20] Notwithstanding this decision, the Respondent seeks to expand this application well beyond the limits carefully delineated by LeMay J., and to argue issues engaging the constitutionality of the Code and the legality of the underlying investigation. She submits that because the Divisional Court’s ruling was made in the context of a moot appeal, it is obiter dicta in its entirety, and she submits further that I should disregard it as erroneous. She similarly submits that the subsequent decision of Chalmers J. denying the patients leave to intervene rests on “obvious reversible errors” and should be ignored, and that Harvison Young J.A.’s recent rejection of the stay of these proceedings sought by the patients pending the hearing of their appeal from Chalmers J.’s decision demonstrates a misunderstanding of the concept of a reasonable expectation of privacy.

[21] With respect to the decision of the Divisional Court, the Respondent acknowledges that the Supreme Court of Canada in R. v. Henry, 2005 SCC 76 held that some obiter, at least from that Court, is intended to be binding. As Binnie J. explained at para. 57:

All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not “binding” in the sense the Sellars principle in its most exaggerated form would have it.

[22] The Respondent submits that this analysis applies only to the Supreme Court of Canada, and not to other courts with appellate jurisdiction. I disagree. In Duggan v. Durham Region Non-Profit Corporation, 2020 ONCA 788, Feldman J.A. for the Court of Appeal directly applied paragraph 57 of Henry, reproduced above, in analyzing the binding effect of Divisional Court decisions on the Superior Court. In any case, I see no principled reason to distinguish the Supreme Court of Canada from other appellate courts in considering the scope of stare decisis. It is similarly appropriate for other courts with appellate jurisdiction to, in appropriate circumstances, provide guidance that is intended to be authoritative.

[23] The Divisional Court expressly indicated that its reasons were intended to provide guidance on the conduct of this application. Even if I doubted the correctness of its decision, which I do not, I conclude that I would be bound to apply it. I also reject the Respondent’s invitation to disregard judicial comity and disapprove of the many other adverse rulings that have been delivered in the course of the litigation involving her and the physicians involved in the former companion cases.

Should I decline to limit the scope of this application as directed by Divisional Court on the basis that doing so would be unconstitutional?

[24] The Respondent adds a further reason that I should decline to follow the process and the limits set out by the Divisional Court. She now argues that, accepting the finding of the Divisional Court that Sazant has definitively concluded that the investigator’s s. 76 powers are constitutionally compliant, the implication of this is that s. 87 is unconstitutional. She has accordingly filed a notice of constitutional question challenging the Charter-compliance of that section and makes a series of arguments closely paralleling her prior attacks on s. 76.

[25] For instance, the Respondent relies on the holding in Sazant that a finding of reasonable and probable grounds by what is now the ICRC is a crucial component of the constitutionality of the s. 76 powers. She submits that I accordingly cannot order compliance under s. 87 with a demand made pursuant to the s. 76 powers without independently satisfying myself that reasonable and probable grounds exist, and that if I were to fail to do so, such an order would be inconsistent with the Charter.

[26] I disagree. This argument by the Respondent is in my view simply a repackaged attempt to argue that the Divisional Court’s ruling in this case was wrongly decided. In my view, when the Divisional Court concluded in this context that Sazant had resolved the issue of s. 76’s constitutionality, it was obviously implicit that this included s. 76’s enforceability through a s. 87 application.

[27] The holding in Sazant as interpreted by the Divisional Court provides that the ICRC’s determination of reasonable and probable grounds is sufficient to make the exercise of the investigator’s s. 76 powers constitutional. The ICRC exercises the “quasi-judicial” function of assessing in advance whether the preconditions for the exercise of the s. 76 powers are satisfied. A member of the CPSO is then required to comply and the Superior Court does not make an independent determination of the reasonable grounds issue before compelling compliance under s. 87.

[28] Under the Divisional Court’s interpretation of the legislative scheme, the ICRC’s determination that it has reasonable grounds is not left entirely unreviewable by the courts, but simply requires any review to occur at a later stage. As the Divisional Court held, any challenge to the ICRC’s finding of reasonable and probable grounds should take place before the Discipline Committee if any disciplinary proceedings are brought. The review of their decision is within the jurisdiction of the Divisional Court by way of judicial review. The Respondent cannot in the meantime decline to comply with the investigator’s 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. I accordingly reject the Respondent’s argument that the Divisional Court directed me to apply an unconstitutional process under s. 87.

[29] I similarly will not entertain the Respondent’s other arguments that would require me to disregard the direction of the Divisional Court and to review the legality of the ICRC’s decision to authorize an investigation and the scope of the directions it provided to the investigators. This is not the appropriate forum for those arguments.

[30] I also decline to impose as Constitutionally-mandated an extension of the procedure set out in the Supreme Court of Canada’s decision in R. v. O’Connor, [1995] 4 S.C.R. 411 to a s. 87 application where the records of patients are sought. This position of the Respondent rests on the submission that the production of these records in this process intrudes upon the Constitutionally-protected privacy interests of patients.

[31] In her reasons dismissing the stay application brought by the Respondent’s patients, Harvison Young J.A. explained why this argument cannot succeed:

[15] The applicants’ position rests on the premise that the patients of a physician have a reasonable expectation of privacy in health records which can be asserted as against a regulator seeking access to those records for purposes of investigating the physician. If this were true, no health regulator could ever access patient records for purposes of an investigation without patient notification and consent. It would stymie regulation of health professionals.

[16] In such a regulatory context, the protection against unreasonable search and seizure lies not in the requirement for individual warrant or pre-authorization, but rather within the context of the regulatory scheme which is there with the primary purpose of the protection of the public. The framework here includes strong confidentiality protections for individual medical information contained in patient files disclosed to the College in the course of any proceedings. Section 36 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 sets out the broad duty of confidentiality of investigators in relation to the information that comes within their knowledge in the course of their duties.

[17] The applicants’ position fails to take account of the long-established law that a person's reasonable expectation of privacy varies depending on the context. As Dickson J. explained in Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145, at p. 159, the freedom to be protected from “unreasonable” search and seizure enshrined in s. 8 of the Charter can be expressed as an entitlement to a “reasonable” expectation of privacy. Depending on the context, reasonable expectations of privacy vary: Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420, at paras. 106, 118, leave to appeal refused, [2012] S.C.C.A. No. 549.

[18] In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, La Forest J. wrote a “less strenuous and more flexible standard of reasonableness” applies to regulatory searches, and one’s reasonable expectation of privacy has to be considered within the investigative scope of the Act: at pp. 506, 516. As he observed, at p. 507:

It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course. In a society in which the need for effective regulation of certain spheres of private activity is recognized and acted upon, state inspection of premises and documents is a routine and expected feature of participation in such activity.

[19] In the regulated professional environment context, this subjects the patients’ expectation of privacy in their medical records to “the higher need to maintain appropriate standards in the profession”: Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at para. 24, citing College of Physicians and Surgeons of British Columbia v. Bishop (1989), 56 D.L.R. (4th) 164 (S.C.), at p. 171.

[20] The fact that the patients did not initiate the complaints against Dr. Kilian does not change that reality or render the intrusion unreasonable, as they argue. As Morgan J. observed in College of Physicians and Surgeons v. SJO, 2020 ONSC 1047, at para. 46, the authority to override concerns about patient confidentiality is broad. For example, “where the College is engaged in an investigation prompted by a patient complaint, it is entitled to continue that investigation even if the patient subsequently wishes to withdraw the complaint”: SJO, at para. 46, citing Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 46. While I am not bound by SJO, I believe that it is correct.

[21] There is no policy reason for distinguishing these cases. The concern for the protection of the public remains the same regardless of the source of the information initiating the complaint.

[22] The fact that the applicants are not the target of any investigation by the College is also relevant to the assessment of the reasonableness of any intrusion into their privacy interests. At this point, the only issue in the application is whether Dr. Kilian can be required to cooperate by providing patient files. The applicants may be in a position to seek declaratory or injunctive relief if and when they or any of them are summoned. That would be the more appropriate procedural framework within which to assert their interests, whether it would be ultimately successful or not.

[32] I disagree with the Respondent’s position that this reasoning rests on the “risk analysis” rejected by the Supreme Court of Canada in R. v. Duarte, [1990] 1 S.C.R. 30 and many subsequent cases. The point is not that the privacy interests of the patients are completely eliminated by the possibility that their physician might share their records with others. Rather, the normative standard of a reasonable expectation of privacy in medical records properly takes into account the highly regulated nature of heath care and the statutory framework that both empowers the regulator to conduct effective investigations and imposes stringent duties on its investigators to protect the privacy of patients.

[33] The Respondent also argues that s. 76(3.1), if interpreted as requiring a member of the CPSO to comply with any imaginable demand from investigators, would be unconstitutional. I am satisfied that the section requires co-operation with, among other things, “reasonable inquiries” made by the investigator pursuant to s. 76(1.1) and this includes providing records that are reasonably linked to the terms of the investigation, and that there is no constitutional issue with this requirement.

Is the test for a statutory injunction under s. 87 satisfied?

[34] As outlined by the Divisional Court, this critical issue can be assessed quite simply: has the CPSO established that the Respondent was the subject of an investigation and that she was not cooperating with the investigation?

[35] I have no difficulty in concluding that the CPSO has established grounds for a s. 87 order. The request made by the investigator for the records he sought was a proper one given the terms of the investigation ordered by the ICRC. The records sought are relevant to the relatively broad terms of his appointment to assess the Respondent’s conduct concerning the COVID-19 pandemic. The Respondent is indisputably refusing to cooperate and has not established any legitimate reason for doing so.

Should I exercise my discretion to deny the CPSO’s application on the basis that it would be of questionable utility or inequitable or otherwise inappropriate?

[36] The Respondent makes five arguments in support of her submission that I should exercise my discretion not to order her compliance. First, she submits that my discretion cannot be exercised in an unconstitutional way and this should preclude the order the Applicant seeks. As discussed above, I do not agree that the order sought violates the Charter rights of either the Respondent or her patients.

[37] Second, she submits that the order sought is properly characterized as a mandatory injunction rather than a statutory injunction and accordingly requires a more stringent approach. As outlined above, the Divisional Court in this case adopted Swinton J.’s characterization of this as a statutory injunction and description of the scope of discretion in Ravikovitch, and I do not accept that I should depart from that approach.

[38] Third, the Respondent submits that the requests made by the investigator are unreasonably overbroad in that they include demands for information about prescriptions of Ivermectin, Hydroxychloroquine, and other non-approved medication even though the complaints against the Respondent contained nothing whatsoever suggesting that she had made any such prescriptions.

[39] I accept that this is a legitimate concern, though I note that the Respondent in her affidavit does discuss her interest in Ivermectin as a possible early treatment for COVID-19.

[40] However, in my view the proper forum for this argument is the Discipline Committee should any proceedings there ultimately be brought. The inquiry for me is whether the requests of the investigator are properly pursuant to the investigation authorized by the ICRC. The terms of the investigation are broad and include the Respondent’s “conduct regarding the COVID-19 pandemic.” As I have already stated, in my view the requests by the investigator are reasonably connected to the terms of his appointment.

[41] To the extent that those terms could be argued to be overbroad based on the information the CPSO had that formed the basis for directing the investigation, that is a challenge to the ICRC’s determination of reasonable and probable grounds and authorization of the investigation. That determination is reviewable in the Divisional Court and is not an issue relevant to this proceeding about whether the Respondent is refusing to cooperate in an investigation.

[42] Fourth, the Respondent renews her argument that discretionary relief is appropriate to protect doctor-patient confidentiality concerns. For the reasons already described, I do not agree that the Respondent’s patients have a reasonable expectation of privacy in the contents of their records as against the investigator in this case.

[43] Finally, the Respondent argues that the CPSO has conducted this case abusively and has caused extensive and unreasonable delay in concluding these proceedings, causing her particular prejudice while she is suspended and unable to practice.

[44] I agree with the Respondent that these proceedings have been unduly protracted, but I disagree with her that this is the result of abusive tactics by the CPSO. Rather, it appears to me that the primary underlying cause has been the Respondent’s own scorched earth litigation strategy whereby she and her patients have taken every possible procedural step and advanced every imaginable argument to avoid cooperating with the investigation, continuing to do so in the face of a series of adverse decisions. The Respondent cannot in my view rely on delays flowing from this litigation strategy to avoid an otherwise justified s. 87 order.

[45] Accordingly I conclude that the order sought is appropriate.

Should a publication ban be ordered?

[46] The Applicant seeks a publication ban identical to that granted by Morgan J. in the companion case CPSO v. O’Connor, 2022 ONSC 195. I adopt paragraphs 53-61 of his reasons in that case and would make an equivalent order.

Disposition

[47] The application is allowed and the Respondent is directed to comply with ss. 76(3) and (3.1) and to cooperate fully with the investigator in the exercise of his or her powers. The Respondent argued that compliance with s. 76(2) should not be required because her last location of practice was a home office and any attendance there would be unduly intrusive. I do not accept that full compliance with s. 76 can be avoided by practicing out of one’s home. In any case, the Respondent testified in cross-examination (before being cut off by her counsel) that the patient files sought are all in electronic form. Assuming the Respondent complies with the requests made by the investigator, there is nothing in the record that causes me concern that any unreasonable search of a defunct home office will be undertaken that might engage my discretion to deny the order sought by the Applicant.

[48] The Applicant is entitled to its costs. It claims $42,998.85 in fees and disbursements at a partial indemnity rate. This is slightly less than the amount docketed by the Respondent’s counsel.

[49] The Respondent argues that the costs sought by the Applicant should be reduced on two bases. First, she notes that some of these costs reflect work on the initially scheduled hearing for January 7, 2022 that did not proceed against her after her counsel’s illness. She submits that these amounts are inappropriate. Second, she argues that the costs award should reflect that this is public interest litigation from her point of view in that her intention was to protect the privacy of her patients. She does not argue against the award of any costs but says the amount should be discounted.

[50] I do not accept the Respondent’s submission that no work conducted in preparation for the January 7, 2022 hearing can properly be captured in this costs order. The Applicant does not seek any costs for the attendance on that date and claims only a proportionate share of its costs during the period where the Respondent’s case was joined to the companion cases. I do not agree that those costs should have been sought from Morgan J. while this application was continuing.

[51] In the companion case, Dr. O’Connor also argued that this application should be characterized as public interest litigation, going further than the Respondent and arguing against the award of any costs at all. Morgan J. rejected this submission, holding that Dr. O’Connor was not a public interest litigant but rather a physician being investigated for alleged wrongdoing. The same position was also rejected by the Divisional Court panel who heard the Respondent’s application for judicial review: Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 6871. I agree with those decisions and would award the Applicant the amount it seeks. In my view, it is a reasonable amount in view of the scope of the proceedings and the many issues litigated on this motion.

Dineen J.

Date: May 8, 2023