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COVID - Vaccinations (5). Komer v. Health Professions Appeal and Review Board
In Komer v. Health Professions Appeal and Review Board (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought against the dismissal of a complaint made against the registrar of the CPSO "and the findings of the College’s Inquiries, Complaints and Reports Committee (the “ICRC”) and of the Health Professions Appeal and Review Board (the “Board”) respecting that complaint".
A central issue in the case was whether the complaint, which in part opposed accepted COVID treatment policy "respecting the safety and efficacy of COVID-19 vaccines, and measures taken to minimize the spread of misinformation respecting vaccines", was "frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process":[3] Shortly after receiving the applicant’s complaint, exercising the discretion afforded to it by s. 26(4) of the Health Professions Procedural Code (the “Code”), Schedule 2, Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “RHPA”), the ICRC formed the preliminary opinion that the complaint against Dr. Whitmore was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process and that the ICRC would therefore take no action respecting the complaint. As required by the Code, before making a final decision on the matter, the ICRC invited the applicant to make written submissions. The applicant supplied such submissions and, after considering them, the ICRC then made a final decision, pursuant to s. 26(5) of the Code, that it would take no action on the complaint against Dr. Whitmore. The ICRC stated its conclusions as follows:. The Committee considered the following points in reaching its decision:. These concerns do not relate to care to a particular patient and there is no evidence of a physician-patient relationship between the Complainant and the Respondent. Rather, the Complainant is concerned about the Respondent’s decisions or actions in her role as Registrar for the College.
. The Committee is not the appropriate body to review the Respondent’s decisions while carrying out her duties as an officer of the College. [4] The applicant then wrote to the Board requesting a review of the ICRC’s decision. The Board advised the parties of its intention not to review the ICRC decision, given that it had formed an initial opinion that the request was frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process (see s. 30(2) of the Code). The Board invited submissions from the applicant on the issue, which he supplied. After receiving those submissions, the Board declined to review the ICRC’s decision (Code, s. 30(3)). In its Final Order, the Board found that the request for a review bore the characteristics of a vexatious proceeding, and then expressed its conclusions as follows:The Board finds that there is no physician/patient relationship between the parties. The Applicant’s concerns are not related to the practice of medicine but, rather, pertain to the actions and decisions of the Respondent in her role as Registrar of the College. This is an issue that neither the Committee nor the Board can address. The Applicant has provided no new information indicating that the public interest would be served by proceeding with a review.
Given the Board’s jurisdiction and complaint process, the Board finds that the Applicant’s request for review has no reasonable chance of success and it would serve no practical purpose to conduct a review of this matter. ....
[9] The Code affords both the ICRC and the Board a broad discretion to decline to investigate or review complaints which are frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. This list of descriptors is disjunctive. In other words, if a complaint fits into any one of the listed categories, the ICRC or the Board may properly decline to investigate or review it. The goal is to weed out unmeritorious complaints which have no chance of success: Catford v. Health Professions Appeal and Review Board, 2017 ONSC 7411 (Div. Ct.), at paras. 22 – 28.
[10] Here, it was open to the ICRC and the Board to conclude respectively that the complaint and the request for review exhibited many of the badges of a vexatious proceeding, some of which were helpfully catalogued by Henry J. in Re Lang Michener and Fabian (1987), 1987 CanLII 172 (ON SC), 59 O.R. (2d) 353 (S.C.J.), which judgment the Board quoted in its Final Order: see also Amikwabi v. Pope Francis, 2021 ONSC 1069, at para. 39, aff’d 2022 ONCA 236. It was evident that the complaint and the requested review had no chance of success and that it was brought for a purpose other than the legitimate assertion of the applicant’s rights.
[11] It was, instead, an assertion by the applicant that the College, including its registrar and governing council, had pursued misguided policies in connection with the COVID-19 emergency and had thereby committed professional misconduct. The applicant’s original complaint was a closely written polemic against the use of vaccines, and against the College’s policies which encourage the use of vaccines. His response to the ICRC’s invitation to provide further submissions was similar in nature, as was his response to the Board’s invitation to provide further submissions. All three documents made extensive reference to links to internet sites, many of which appear to offer information respecting the alleged dangers and/or inefficacies of vaccines: compare Amikwabi, at para. 39.
[12] It was reasonable for the ICRC and the Board to conclude that a complaint of professional misconduct was not the appropriate forum for the ventilation of the applicant’s concerns respecting vaccines. First, the allegations against Dr. Whitford and the governing council are not obviously caught by any of the definitions of professional misconduct under the Medicine Act, 1991, S.O. 1991, c. 30 (see: “Professional Misconduct”, O. Reg. 856/93 (the “Definition of Professional Misconduct”)), even accepting that professional misconduct may be committed by acts unrelated to the practice of medicine or to a doctor/patient relationship, but which are “unbecoming a physician.”
[13] Second, the legislation which governs the College provides for immunity from civil liability for College employees and council members for acts taken in good faith in the performance of duties carried out in those capacities: RHPA, s. 38. As the respondents argue, this is “a strong signal that the legislature intended the actions and decisions of College officials to be insulated from complaints by private individuals.” This is especially so given that the there are other avenues for the pursuit of the applicant’s policy concerns respecting vaccines, including voting or otherwise participating in elections for membership on the College’s council, or by seeking judicial review of College policy.
[14] Neither the ICRC nor the Board concluded, as the applicant alleges, that they had no jurisdiction over the registrar of the College, or that complaints of professional misconduct against physicians must relate to a doctor/patient relationship. They simply observed that the complaint in this case did not refer to such a relationship, as most complaints do. The making of this observation was sensible given that the scope of the College’s authority to investigate and discipline outside of the doctor/patient sphere is limited: College of Physicians and Surgeons of Ontario v. Jha, 2022 ONSC 769, para. 119. In this respect, a complaint alleging professional misconduct in the development and implementation of College policy is atypical, to say the least. These were relevant factors in the decisions made by both the ICRC and the Board.
[15] Moreover, to the extent that the applicant’s complaint against Dr. Whitmore might be said to relate to claims “respecting the utility of a remedy, treatment, device or procedure,” such claims are expressly excluded from the definition of professional misconduct where they “can be supported as reasonable profession opinion”: Definition of Professional Misconduct, s. 1(1), paragraph 14. That vaccines were a safe and efficacious response to the COVID-19 emergency has been found to be a fact susceptible to judicial notice: J.N. v. C.G., 2023 ONCA 77, at paras. 20 – 30. It was, therefore, reasonable for Dr. Whitmore to hold that professional opinion, even if some physicians, including the applicant, hold a different opinion. The applicant’s complaint against her was, for this reason also, doomed to fail.
[16] In light of all these observations, it was reasonable for the Board to conclude that there was no public interest in allowing the review to proceed: the complaint was not meritorious; no real issue of professional misconduct was raised by it; its focus was, instead, institutional and policy-based in nature; and the concerns expressed in it were better dealt with in other fora. It was, as the College submits, a collateral attack on College policy with which the applicant disagrees. The College’s decision to decline to investigate was reasonable, as was the Board’s decision to decline to review that decision.
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