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Medical Professionals (RHPA) - Investigations (2). Trozzi v College of Physicians and Surgeons of Ontario
In Trozzi v College of Physicians and Surgeons of Ontario (Div Court, 2024) the Divisional Court dismissed a JR, here against a decision and penalties [ie. it "revoked his licence to practise medicine in Ontario"] imposed by the Ontario Physicians and Surgeons Discipline Tribunal that found the applicant doctor had engaged "in conduct that would reasonably be regarded by members as disgraceful, dishonourable or unprofessional" and "incompetent" ["as defined by subsection 52(1) of the [Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act"] over a COVID dispute.
Here the court considers a professional's duty to comply with regulatory investigations:[83] In his reply submission, counsel for Dr Trozzi argued that in finding Dr. Trozzi had engaged in professional misconduct by failing to cooperate with the College, the tribunal erred by not referring to Dr. Trozzi’s good faith reliance on legal advice.
[84] Given that Dr. Trozzi did not testify, it is not clear to me how that fact is in evidence or is stated as a fact by counsel.
[85] In any event, there is no basis to argue that Dr. Trozzi was free to disregard his obligation to cooperate with the College and produce documents even if a lawyer told him that the charging documents could be void if challenged. The lawyer’s opinion, even if stated as a legal fact, is just an opinion. As this case so amply demonstrates, sometimes opinions may be incorrect. In fact, in every piece of litigation there is a winner and a loser. They may all have opinions justifying their positions. The opinions may be qualified in any number of ways. The opinions may weigh the risks and benefits of non-compliance in different possible scenarios.
[86] No law provides that a physician is excused from cooperating with the College on the basis that his lawyer says he has grounds to challenge the investigatory process. The College is the regulator with legal authority to make orders. The lawyer is just the agent of the member physician. Only the former has authority to make orders. The latter has no authority to excuse non-performance.
[87] Counsel tried to submit that Dr. Trozzi was cooperative as required by the “honest, open, and helpful” standard set out by the Court of Appeal in Law Society of Ontario v. Diamond, 2021 ONCA 255 at para. 50. But that submission cannot overcome the tribunal’s finding of fact that,The member's piecemeal, prolonged and ultimately incomplete approach to providing documents and information to the College was less than "honest, open and helpful." [88] This finding is well-grounded in the evidence. In fact, there is no evidence to the contrary; just submissions.
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