Administrative - Investigation. Fagbemigun v College of Physicians and Surgeons of Ontario
In Fagbemigun v College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered a doctor's RHPA s.70 HPPC appeal of orders of the 'Ontario Physicians and Surgeons Discipline Tribunal', here centering on overbilling misconduct.
In these quotes, the court considers Charter s.8 ['search and seizure'] challenges to both use of admissions made during investigations and document seizures:
 On this appeal, the Appellant challenges three decisions of the Tribunal. The first decision, dated May 17, 2021, dismissed a pre-hearing motion to exclude evidence pursuant to ss. 8 and 24(2) of the Charter (the “Charter Decision”). The second is the Misconduct Decision described above, dated March 21, 2022. The third decision, dated June 9, 2022, ordered several penalties, including the revocation of the Appellant’s Certificate of Registration, effectively shutting down his medical practice (the “Penalty Decision”). . College of Physicians and Surgeons of Ontario v. Kilian
 The Appellant’s submissions on this issue rely on the Court of Appeal’s analysis of the constitutional validity of ss. 75(1)(a) and 76(1) in College of Physicians and Surgeons of Ontario v. Sazant, 2012 ONCA 727, 113 O.R. (3d) 420. There the Court held that the College’s investigatory powers are constrained by the requirement to have RPG for believing a member committed an act of professional misconduct or is incompetent. RPG is not only a prerequisite for the Appointment of Investigators under s. 75(1)(a), but it also defines the scope of what may be reasonably and constitutionally subject to the College’s search and seizure powers under s. 76(1) once an investigation is authorized.
 The Appellant submits the Tribunal erred on the pre-hearing Charter motion in two ways. First, it placed the onus on the Appellant to prove the search was unjustified, when in fact it was the College’s burden to prove it was justified.
 The Appellant’s submission relies on an inapt analogy to warrantless searches in the criminal context. In any event, the College adduced ample evidence demonstrating that obtaining the Hart Medical documents was authorized and reasonable. This included evidence from three investigators who attended the office inspection, including the lead investigator who prepared the RPG package and led the inspection.
 Second, the Appellant argues that the Appointment of Investigators lacked the constitutionally mandated description of RPG described in Sazant to authorize the seizure of the Hart Medical documents. I disagree. As the Court of Appeal made clear in Sazant, the authorized scope of the investigation must be determined in consideration of the entirety of the materials reviewed by the Registrar. In this case, the material before the Registrar included a memo from the Investigator requesting an investigation into whether the Appellant “ordered and/or provided diagnostic services for reasons other than medical necessity.” Referring patients for cardiac testing – diagnostic tests – in exchange for a fee is clearly relevant to an investigation into whether the Appellant ordered or provided diagnostic services for reasons other than medical necessity. Consequently, there were RPG to investigate the referrals for cardiac testing.
 I would add that the Tribunal’s finding is consistent with an established line of authority providing that statutory investigative powers given to regulated health colleges must be interpreted in a broad and purposive manner, consistent with their obligation to regulate professions in the public interest: Pharmascience Inc. v. Binet, 2006 SCC 48,  2 S.C.R. 513, at paras. 36-37; Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, 96 O.R. (3d) 241, at paras. 17 and 29; Beitel v. The College of Physicians and Surgeons, 2013 ONSC 4658 (Div. Ct.), at para. 42; Sazant, at para. 99.
 The Appellant’s third complaint is, assuming he is correct in identifying a s. 8 breach with respect to the Hart Medical documents, the Tribunal erred in failing to exclude them pursuant to s. 24(2) of the Charter. He argues that, by extension, the statements about the referral fees were derivative of the breach in seizing the Hart Medical documents and should have been excluded.
 I disagree, for two reasons. First, the Tribunal made no palpable or overriding error in finding that the statements the Appellant made regarding the referral fees were not temporally, contextually or causally connected to the seizure of the Hart Medical documents to be considered derivative evidence. The subject of the Hart Medical documents was never raised during either interview. While the College investigator asked about lease arrangements, the subject of cardiac referral fees did not arise until the Appellant, on his own initiative, brought it up.
 Second, there is no palpable or overriding error in the Tribunal’s conclusion that the admission of the Hart Medical documents would not bring the administration of justice into disrepute. While the Appointment of Investigators lacked much of a description, there was a very detailed description in the Investigator’s memo, clearly setting out the scope of the investigation. The Hart Medical documents, which together showed patients being referred to Hart Medical in exchange for fees, were relevant to an authorized investigation into whether the Appellant provided services or referrals for reasons other than medical necessity. Thus, even if there was a breach in this case, it was not serious. Further, the impact on the Appellant was minimal. As a regulated health professional, he does not enjoy a high expectation of privacy in his business records. Finally, there is strong public interest in the adjudication of a hearing on its merits in the regulatory context, where the purpose is protection of the public. The Tribunal’s findings are owed deference and should not be interfered with in this case.
In College of Physicians and Surgeons of Ontario v. Kilian (Ont CA, 2023) the Court of Appeal considered a COVID-related stay pending application in an appeal of an RHPA investigation decision where patients objected to release to the College of Physicians and Surgeons of their medical records under Charter s.8 ['unreasonable search and seizure']:
 The essence of the claim that there is a serious issue with respect to the appeal of the refusal of intervenor status rests on characterization of the patients’ privacy interests and whether they are placed at risk by the s. 87 proceeding against Dr. Kilian.. Kustka v. College of Physicians and Surgeons of Ontario
 Section 8 of the Charter provides as follows:
Everyone has the right to be secure against unreasonable search or seizure. [Emphasis added.] It is trite law that s. 8 protects against only unreasonable search and seizure. The applicants and Dr. Kilian argue that the absence of individual pre‑authorization of any individual breach of a privacy interest renders the intrusion unreasonable, relying heavily on criminal case law. Without the right to intervene, they submit, there will be no way of challenging the reasonableness of the search.
 I disagree. This is not the law as it applies in this situation.
 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.
 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.
 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 CanLII 33 (SCC),  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,  S.C.C.A. No. 549.
 In Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC),  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. 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), 1989 CanLII 2674 (BC SC), 56 D.L.R. (4th) 164 (S.C.), at p. 171.
 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.
 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.
 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.
 This brings me to the judicial review decision of the Divisional Court in this matter. The moving parties argue that Chalmers J. erred by “grafting” the ruling of the Divisional Court judicial review application, which dealt with s. 75 of the Code, onto the s. 87 application. They submit that this raises a serious issue.
 I disagree.
 The Divisional Court found that the patients “do not have a direct legal interest in the proceedings between the CPSO and Dr. Kilian just because their medical records may be examined in the course of an investigation.” It emphasized that investigations of members by a professional regulator can involve some intrusion into physician-patient confidentiality and that the College can obtain all relevant evidence despite patient objections: Gore, at paras 23-24, College of Physicians and Surgeons of Ontario v. Kayilasanathan, 2019 ONSC 4350 (Div. Ct.), at para. 70. While those comments were made in the context of a judicial review of a s. 75 investigation, the point remains. It was relevant to the determination of the motion for leave to intervene in the s. 87 application.
 In short, I agree with the respondent College that the s. 8 Charter rights of the applicants will not be contravened by the denial of intervenor status. The applicants’ claim rests on the faulty premise that, as far as the s. 87 application is concerned, their privacy interests are at risk and that they therefore have the right to intervene to ensure that any intrusions are pre-authorized. I do not believe that this raises a serious issue on appeal. This is sufficient to dispose of the motion for a stay of proceedings: Haudenosaunee Development Institute, at paras 5-7.
In Kustka v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court considered COVID RHPA judicial reviews, here 2 JR applications by a physician and 2 by patients. These reasons for decision are from a motion to quash all of them, which was granted in full.
In these quotes the court considers the test for appointment of RHPA investigators, here in an administrative context:
Reasonable and Probable Grounds. Korchinski v Office of the Independent Police Review Director
 The test for determining whether reasonable and probable grounds exist to appoint investigators under s. 75 of the Code is not rigorous. In the criminal context, an arresting officer requires something less than a prima facie case to satisfy the reasonable and probable ground requirement prior to an arrest: 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d) 241, at paras. 49-50; Allen v. Alberta (Law Enforcement Review Board), 2013 ABCA 187, 553 A.R. 140, at para. 27. In the professional regulatory context, there is no arrest and the Registrar’s appointment of investigators only initiates an investigation.
 In determining that she had reasonable and probable grounds, the Registrar had before her specific information regarding three instances that raised concerns about Dr. Kustka’s responses to COVID-19 treatment and protections. The information included that Dr. Kustka had provided ivermectin to a patient suffering from COVID-19 without examining the patient. The patient’s daughter stated that this resulted in her mother waiting to seek medical attention and eventually resulted in her death. The Registrar also received information from a Girl Guide leader who raised a concern about Dr. Kustka providing potentially illegitimate mask exemptions for two sisters. The sisters had not previously reported medical conditions when registering with Girl Guides and the sisters did not live near Dr. Kustka’s office, which raised a question as to whether they were her patients. In addition, the exemption letter from Dr. Kustka failed to provide any medical reason for the exemptions. This information was sufficiently detailed as to be beyond mere suspicion. It was reasonable for the Registrar to conclude that the test to appoint investigators was met.
Reliance on Policy/Regulation
 Dr. Kustka’s submission that the Registrar and ICRC impermissibly relied on policy documents and a regulation is misconceived. When the Registrar concluded she had reasonable and probable grounds to appoint investigators and the ICRC approved the Registrar’s appointment of investigators, they had before them authoritative guidance from multiple sources regarding mask-wearing. These sources included O. Reg. 364/20, which provided that face masks should be worn in most indoor public areas, subject to limited exceptions for those with medical conditions. They also included guidance from the Ontario College of Family Physicians stating that very few conditions justified an exemption and from the Canadian Thoracic Society supporting mask-wearing and stating that there was no evidence that masks would exacerbate an underlying lung condition.
 With respect to ivermectin, the record before the Registrar and ICRC included guidance from Health Canada and the Ontario Science Table that ivermectin should not be used to prevent or treat COVID-19.
 The Registrar and ICRC’s reliance on these sources does not constitute an impermissible delegation of authority, as argued by Dr. Kustka. In J.N. v. C.G., 2023 ONCA 77, the Court of Appeal recently confirmed that it is appropriate to rely on guidance from Health Canada and other well-known medical organizations with respect to the COVID-19 pandemic.See also A.V. v. C.V., 2023 ONSC 1634 (Div. Ct.) and Spencer v. Spencer, 2023 ONSC 1633 (Div. Ct.). There is no basis on which to intervene in the conclusion that these sources supported the existence of reasonable and probable grounds.
In Korchinski v Office of the Independent Police Review Director (Div Court, 2022) the Divisional Court considered the standard to be met on a JR of an investigation by the OPIRD:
A. Investigative Deficiencies. Dr. Luchkiw v. College of Physicians and Surgeons of Ontario
 In addition to claiming that the Director’s findings were unreasonable, the Applicant has also alleged several deficiencies in the OIPRD investigation. However, the law does not require a perfect investigation and this Court will not intervene in the investigative steps made by a statutory decision-maker unless there is bad faith or patent unfairness (Law Society of Upper Canada v. Brooks, 2014 ONLSTH 183 at para 84; Society of Ontario v. De Rose 2018 ONLSTH 120 (CanLII) at para 77). Neither of these are present here. The Director’s discretion to take or not take certain investigative steps was reasonable and does not warrant judicial intervention.
 In dealing with the tort of negligent investigation, the Supreme Court of Canada, in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, at para 73, set out the standard of care the police owe citizens in performing their duty as that of a reasonable police officer in similar circumstances. The Court said:
This standard should be applied in a manner that gives due recognition to the discretion inherent in police investigation. Like other professionals, police officers are entitled to exercise their discretion as they see fit, provided that they stay within the bounds of reasonableness. The standard of care is not breached because a police officer exercises his or her discretion in a manner other than that deemed optimal by the reviewing court. A number of choices may be open to a police officer investigating a crime, all of which may fall within the range of reasonableness. So long as discretion is exercised within this range, the standard of care is not breached. The standard is not perfection, or even the optimum, judged from the vantage of hindsight. It is that of a reasonable officer, judged in the circumstances prevailing at the time the decision was made — circumstances that may include urgency and deficiencies of information. The law of negligence does not require perfection of professionals; nor does it guarantee desired results (Klar, at p. 359). Rather, it accepts that police officers, like other professionals, may make minor errors or errors in judgment which cause unfortunate results, without breaching the standard of care. The law distinguishes between unreasonable mistakes breaching the standard of care and mere “errors in judgment” which any reasonable professional might have made and therefore, which do not breach the standard of care. The reasonableness of an officer's conduct must be examined considering the circumstances as they exist at a particular time. An officer is expected to use discretion and judgment in the course of his duties and that discretion or judgment ought not to be examined scrupulously by the benefit of hindsight. Rather, an examination of the circumstances under which the officer exercised discretion or independent judgment is required (Brown v Ontario Provincial Police, 2006 ONCPC 9 at page10; Constable Steven Mousseau and the Metropolitan Toronto Police Force, 1981 CanLII 3042 (ON CPC) at p. 4).
 As well, the impugned conduct must include an element of willfulness in the police officer’s neglect or there must be a degree of neglect which would make the matter cross the line from a mere job performance issue to a matter of misconduct. In other words, mere failure to comply is not enough. There must be some evidence of deliberateness or recklessness to the failure to comply or some meaningful level of moral culpability to attract disciplinary penalties (Brown, supra, at p.11); Allen v Alberta (Law Enforcement Review Board), 2013 ABCA 187 at para 33).
 As a breach of the Code is a serious finding against an officer which may result in significant penalties, not every misstep or failure to follow policy would “extend into the realm of misconduct.” (Kraljevic and Svidran, 2017 ONCPC 21 (CanLII) at para 24; P. (G.) v. Ontario (Attorney General),  O.J. No. 1298 (Div.Ct.) at paras 85 to 87).
In Dr. Luchkiw v. College of Physicians and Surgeons of Ontario (Div Court, 2022) the Divisional Court considered a JR of a disciplinary finding of the 'Inquiries, Complaints and Reports Committee' (ICRC) of the College of Physicians and Surgeons of Ontario (CPSO), here regarding issuing COVID vaccination exemptions and related COVID matters. In this quote the court cites the requirement that a doctor co-operate with a CPSO investigation:
 Section 76(3.1) of the Code, requires all members to co-operate with an investigation. Even if Dr. Luchkiw believes that the investigation is unlawful, she is under a positive obligation to co-operate: College of Physicians and Surgeons of Ontario v. Ravikovich, 2010 ONSC 571, at para. 12.. Rak v. Ontario College of Pharmacists
In Rak v. Ontario College of Pharmacists (Div Court, 2022) the Divisional Court considered informal administrative investigative powers:
 We see no error in the Committee’s conclusion that the investigation was lawful. In Rassouli-Rashti v. College of Physicians and Surgeons of Ontario, 2009 CanLII 62055, this Court held that regulators have an implied authority to do an informal investigation where they do not need the powers accompanying a formal appointment to investigate. When the investigators observed the appellant in their visit in early August, they made observations, but they did not use any of the powers that accompany a s. 75 appointment.
 Moreover, the appellant mistakenly relies on Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, which does not stand for the proposition that all observations of a member’s practice require a formal appointment. There, the issue was the inspector’s authority to observe surgery while acting under a formal appointment to investigate.