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Professionals - Public Statements (Freedom of Expression) (2). Polidoulis v. Health Professions Appeal and Review Board
In Polidoulis v. Health Professions Appeal and Review Board (Div Court, 2024) the Divisional Court dismissed a JR against the Health Professions Appeal and Review Board (HPARB), when it cautioning a doctor "with respect to being mindful of her tone and clarity" in COVID-related "open letters".
Here the court considers the tribunal's application of the administrative Charter case of Dore:[17] The applicant then sought a review by HPARB, also a specialized tribunal. It is responsible for reviewing ICRC decisions on complaints. It is required to consider whether the ICRC investigation was adequate and whether the ICRC decision was reasonable. The HPARB may confirm all or part of the ICRC’s decision, make recommendations to the ICRC and require the ICRC to exercise any of its powers (with an exception that does not apply here).
[18] The applicant raised a number of issues before the HPARB regarding the reasonableness of the ICRC decision, not all of which are still being pursued. The main issue before us is the HPARB review of this issue: whether the ICRC gave sufficient weight to the applicant’s right to freely express her religious beliefs.
[19] In support of the applicant’s request for review of the above issue, the applicant submitted case law to the HPARB, including Strom v Saskatchewan Registered Nurses’ Association, 2020 SKCA 112, [2020] 12 W.W.R. 396, a discipline case that included an analysis under Doré v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395.
[20] As summarized in the applicant’s case of Strom, at para. 36, in Doré, the Supreme Court concluded that a decision of an administrative body that affects Charter rights does not need to be made using a formulaic application of the test in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103. The question is whether the decision reflected a proportionate balance of the decision-maker’s statutory mandate with the Charter right at issue: Doré, at para. 57.
[21] In considering the applicant’s request for review, the HPARB cited the above principle from Doré and found that the ICRC decision reflected the College’s object of promoting relationships between its members and the public in its findings that, “While the [applicant’s] comments engaged her religious faith and were made within her faith community, they were public facing comments involving the transmission of infectious disease, and in some cases associated directly with her identity as a physician.” Further, the ICRC found that, “As a physician, the [applicant] holds a unique position of trust in society; she must therefore recognize that her role as a physician has an authoritative impact on listeners and readers when speaking publicly on public health-related matters.”
[22] The HPARB noted that the ICRC had chosen the remedial approach of a caution, which did reflect a proportionate balancing of the statutory mandate with the Charter right at issue. The HPARB further noted that the ICRC did not preclude the applicant from expressing her religious views in public. The concern was that she identified herself as a physician when doing so.
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[26] Nor is there any issue that the Doré analysis is a highly contextual exercise: Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 41. . 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.
The court considers a Charter argument that the expressive behaviour of the applicant here was "fundamentally political", and holds that this "submission impermissibly merges the analysis of the constitutionality of a statute or regulation with administrative regulation":[67] In oral argument, counsel for Dr. Trozzi essentially repeated the argument that Dr. Trozzi’s expression was so fundamentally political that it was protected per se without any need to consider Doré balancing. He submitted that the spread of a minority view or even harmful disinformation is protected under the Charter citing cases such as R. v. Zundel, 1992 CanLII 75 (SCC). He submits that by analogy to R. v. Oakes, 1986 CanLII 46 (SCC), there is no need to consider proportionality where the underlying measure is itself a violation of rights.
[68] Dr. Trozzi submits that his freedom of expression can only be proscribed when there is a “clear and immediate” danger of inciting violence or physical harm, or the expression is hate speech, child pornography, a criminal threat of death or assault, or defamatory. He cites Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), 1989 CarswellQue 115; Fleming v. Ontario, 2018 ONCA 160, Bracken v. Fort Erie (Town), 2017 ONCA 668, R. v. Keegstra, 1990 CanLII 24 (SCC), 1990 CarswellAlta 192, R. v. Sharpe, 2001 SCC 2, and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) 655: [sic]
(ii) Analysis
[69] Dr. Trozzi’s submission impermissibly merges the analysis of the constitutionality of a statute or regulation with administrative regulation. Dr. Trozzi has not sought a declaration that the applicable regulations violate the Charter in general or as applied to him. Rather, as discussed in Doré and later cases, the tribunal and the court are dealing with the intersection of regulatory discretion and Charter values. Had Dr. Trozzi challenged the constitutionality of the governing legislation, the issues might have fallen to be decided on a balancing under s. 1 of the Charter. But Doré applies here, where discretion is exercised under a presumptively valid statutory scheme. Doré provides an analogous analysis, but it takes into account the specific regulatory context and public interest as well.
[70] An argument that under the Charter a doctor can never lose his or her licence due to expression is not supported by any legal theory or precedent. The Supreme Court of Canada has said that when regulatory decision-making raises constitutional concerns, the Doré balancing approach is appropriate. Accordingly, I reject the submission that the court can or should overrule the tribunal on constitutional grounds without getting to Doré.
[71] In my view, the tribunal’s Doré analysis was impeccable and stands as a guide for future tribunals confronted with serious constitutional considerations. As noted in other cases, such as Gill v. Health Professions Appeal and Review Board, 2024 ONSC 2588 and Peterson v. College of Psychologists of Ontario, 2023 ONSC 4685, not all regulatory remedies are punitive or as severe as a licence revocation. The tribunal was correct in this case to note that the constitutional issues were especially significant due to the severity of the remedy and to deal expressly and extensively with Doré. The tribunal found that the seriousness of the context and the extreme nature of Dr. Trozzi’s misconduct satisfied the Doré balance. It properly considered whether there were less restrictive alternatives. It is hard to fathom a contrary decision on the facts as found.
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