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Charter - s.8 Search and Seizure - Regulatory. College of Physicians and Surgeons of Ontario v. Kilian
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']:[11] 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.
[12] Section 8 of the Charter provides as follows:Everyone has the right to be secure against unreasonable search or seizure. [Emphasis added.] [13] 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.
[14] I disagree. This is not the law as it applies in this situation.
[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 CanLII 33 (SCC), [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 CanLII 135 (SCC), [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), 1989 CanLII 2674 (BC SC), 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.
[23] 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.
[24] I disagree.
[25] 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.
[26] 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. . Binance Holdings Limited v The Ontario Securities Commission
In Binance Holdings Limited v The Ontario Securities Commission (Div Court, 2023) the Divisional Court considers a Charter s.8 ['search and seizure'] argument against regulatory OSC summons and investigation orders:[57] The Summons Amounts to an Unreasonable Search and Seizure and Offends s. 8 of the Charter of Rights and Freedoms: Binance submits that the broad scope of documents described in the Summons, affecting its privacy interests and that of third parties, engages s. 8 of the Charter of Rights. To some extent, this argument relies on a finding that this search was not prescribed by law, where it falls outside of s. 13 of the Act by virtue of being made subject to an improper Investigation Order or by failing to meet the requirements of s. 13. This Charter argument requires a foundation from the previous arguments. As discussed, these are lacking in merit, thus weakening the seriousness of the Charter issue.
[58] Further, the Supreme Court of Canada in British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, confirmed that documents demanded pursuant to securities regulation are subject to a reduced expectation of privacy. There, the majority rejected arguments challenging the power to demand documents in the context of a summons under comparable securities law in B.C. under ss. 7 and 8 of the Charter of Rights.
[59] In Branch, the regulator served summonses on two former officers of Terra Nova, seeking “all information and records […] relating directly or indirectly to Terra Nova and other named companies”.
[60] The majority in Branch confirmed the following general principles concerning the relationship between s. 8 and the reasonableness of searches carried out in this specific regulatory context:. The standard of reasonableness applicable in the criminal context is not the appropriate standard in the administrative/regulatory context (at para. 52, citing Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425);
. The primary goal of securities regulation is investor protection (at para. 54);
. Those who are involved in the business of trading securities do not have a high expectation of privacy with respect to regulatory requirements expressed in securities legislation. It is widely known and accepted that the industry is well regulated, and the reasons for that regulation are also well known (at para. 58);
. The demand for the production of documents by way of a summons is one of the least intrusive of the possible methods used to obtain documentary evidence (at para. 60);
. The important social purpose of securities legislation renders the summons power to obtain documents and things a justifiable intrusion into privacy rights (at para. 61); and
. Documents produced in a regulated, business context attract a diminished degree of privacy than do personal papers (at para. 62, citing La Forest, J. in Thomson Newspapers, at pp. 517-18). . Binance Holdings Limited v. Ontario Securities Commission
In Binance Holdings Limited v. Ontario Securities Commission (Div Court, 2023) the Divisional Court considered a JR against a Capital Markets Tribunal (CMT) decision that it lacked jurisdiction to order the revocation of an "(i)nvestigation Order under s. 144(1) of the Securities Act" (which was initiated "under s. 11(1)(a) of the Securities Act, R.S.O. 1990, c. S.5").
In this quote the court cites a reduced Charter s.8 ['search and seizure'] privacy interest in the securities context:[58] The OSC further relies on British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3. There is no doubt that this is a key decision, setting out important general principles regarding the s. 8 Charter right in the securities context. However, the Supreme Court did not rule that there was no expectation of privacy. It ruled, at para. 58, that people involved in the business of trading securities “do not have a high expectation of privacy with respect to regulatory needs that have been generally expressed in securities legislation.”
[59] Binance accepts that the expectation of privacy is “undoubtedly lower” in the regulatory context but submits that there is a blurred distinction between business and personal records in the modern workplace. Again, the OSC submits that this is unsupported by evidence.
[60] Although Branch is very important to the s. 8 analysis, Branch does not rule that every summons in the securities industry, regardless of its breadth, does not engage s. 8 of the Charter. It therefore does not rule out the need for a balancing of interests under Doré/Loyola.
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