Simon's Megalomaniacal Legal Resources

Medical Professionals (RHPA) - Investigations [HPPC s.75]

. 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:

[4] 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”).

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[33] 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.

[34] 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.

[35] 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.

[36] 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.

[37] 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, [2006] 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.

[38] 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.

[39] 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.

[40] 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.

. 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.

. Kustka v. College of Physicians and Surgeons of Ontario

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 dismissed judicial reviews of RHPA investigation appointments as premature, as such challenges had an alternative statutory route ["can and should be made before the Discipline Committee": para 29]:

Are Dr. Kustka’s Applications for Judicial Review Premature?

[29] As this Court recently confirmed in Kilian, judicial review applications challenging decisions to initiate investigations under s. 75(1)(a) of the Code are generally dismissed as premature: Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2022 ONSC 1220, at para. 7. Challenges to the appointment of investigators, including the College’s compliance with any statutory requirements, can and should be made before the Discipline Committee, if the matter proceeds to that stage.

[30] In this case, Dr. Kustka seeks a declaration that s. 76 of the Code is “unconstitutional insofar as it allows warrantless searches and seizures of constitutionally protected private information” and privileged information of patients. Dr. Kustka submits that because she seeks declarations relating to the constitutionality of s. 76 of the Code, either the doctrine of prematurity does not apply, or this case raises “exceptional circumstances” warranting review at this stage. Dr. Kustka relies upon the Court of Appeal’s decision in Sazant v. The College of Physicians and Surgeons of Ontario, 2012 ONCA 727, 113 O.R. (3d) 420 to argue that she ought to be able to proceed at this stage because she has a right to prevent a breach of s. 8 of the Charter before it occurs.

[31] In Kilian, this Court dismissed the challenge relating to the appointment of investigators as premature, despite the fact that the applicant raised constitutional grounds. Dr. Kustka seeks to distinguish Kilian on the basis that in that case, no declaration of constitutional invalidity was sought. The importance of a constitutional question does not result in exceptional circumstances warranting a departure from the doctrine of prematurity. Moreover, the fact that a tribunal cannot grant the same declaratory relief as a superior court does not constitute exceptional circumstances: Gill v. College of Physicians and Surgeons of Ontario, 2021 ONSC 7549, at paras. 45-56. See also: Luchkiw v. College of Physicians and Surgeons, 2022 ONSC 5738, at paras. 34-39. If the matter proceeds before the Discipline Committee, that body has jurisdiction to consider constitutional arguments and challenges, and to grant appropriate relief.

[32] Again, we see no basis on which to distinguish Kilian.

[33] Dr. Kustka’s reliance on Sazant to argue that she has a right to prevent a s. 8 Charter breach before it occurs is misplaced. In that case, the Court of Appeal rejected the same arguments that are made here, in the context of the summons power under s. 76(1) of the Code, finding that s. 76(1) did not violate the applicant physician’s right not to be subject to unreasonable search and seizure under s. 8 of the Charter. In doing so, the Court of Appeal highlighted the member’s statutory duty to cooperate with an investigation under s. 76(3.1) of the Code, as well as the investigator’s duty of confidentiality under s. 36 of the RHPA.

. Kilian v. CPSO

In Kilian v. CPSO (Div Court, 2023) the Divisional Court extensively reviewed RHPA/HPPC s.75 and related investigation provisions:

The Statutory Regime

[44] The decision to grant a stay must be put into its legal context. The Code is an extensive and long-standing set of provisions that govern the discipline and management of a considerable number of health professions in the Province of Ontario. Section 75 permits the CPSO to appoint investigators. Section 75(1) states:

75 (1) The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Inquiries, Complaints and Reports Committee approves of the appointment;

(b) the Inquiries, Complaints and Reports Committee has received information about a member from the Quality Assurance Committee under paragraph 4 of subsection 80.2 (1) and has requested the Registrar to conduct an investigation; or

(c) the Inquiries, Complaints and Reports Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation.

[45] In other words, the Registrar forms reasonable and probable grounds to investigate and then asks the ICRC to appoint the investigators. It is the ICRC that provides the supervision as to whether the Registrar’s request for the appointment of investigators is reasonable. The ICRC’s decision is not appealable but is subject to judicial review in the Divisional Court. In all but exceptional cases, a reviewing Court will not intervene in an investigation (or a decision to appoint investigators) until the conclusion of the proceeding: Volochay v. College of Massage Therapists 2012 ONCA 541.

[46] Section 76 of the Code states as follows:

76 (1) An investigator may inquire into and examine the practice of the member to be investigated and section 33 of the Public Inquiries Act, 2009 applies to that inquiry and examination. 2009, c. 33, Sched. 6, s. 84.

Reasonable inquiries

(1.1) An investigator may make reasonable inquiries of any person, including the member who is the subject of the investigation, on matters relevant to the investigation. 2009, c. 6, s. 1.

Idem

(2) An investigator may, on the production of his or her appointment, enter at any reasonable time the place of practice of the member and may examine anything found there that is relevant to the investigation. 1991, c. 18, Sched. 2, s. 76 (2); 2007, c. 10, Sched. M, s. 54.

Obstruction prohibited

(3) No person shall obstruct an investigator or withhold or conceal from him or her or destroy anything that is relevant to the investigation. 1991, c. 18, Sched. 2, s. 76 (3).

Member to co-operate

(3.1) A member shall co-operate fully with an investigator. 2009, c. 6, s. 1.

Conflicts

(4) This section applies despite any provision in any Act relating to the confidentiality of health records. 1991, c. 18, Sched. 2, s. 76 (4)

[47] If a member fails to cooperate, then section 87, reproduced at paragraph 14, above, permits the CPSO to apply to the Superior Court for an injunction. These injunctions are generally referred to as statutory injunctions.

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[51] On a section 87 application, the investigation is ongoing. The purpose of a section 87 application is to compel a non-cooperating doctor to cooperate in an investigation. The scope of review is necessarily more limited. Indeed, previous Courts have recognized the limitations in section 87 applications. For example, in College of Physicians and Surgeons of Ontario v. Ravikovich, 2010 ONSC 5714, Swinton J. was faced with a challenge to a s. 87 application by a doctor who argued that there had not been reasonable and probable grounds to appoint investigators. Swinton J. rejected that argument, stating (at para 10):

[10] An order directing a person to comply with the Code, pursuant to s. 87, is in effect a statutory injunction. When such an order is sought, in a case such as this, the Court must ask whether there has been a continued breach of the statute by the person against whom the injunction is sought and whether the statute permits the Court to make an order against that person. The College is not required to prove irreparable harm if the order is not made. A Court has discretion to refuse such an order - for example, where the order would be of questionable utility or inequitable (see, for example, Ontario (Minister of Agriculture and Food) v. Georgian Bay Milk Co., [2008] O.J. No. 485 (S.C.) at para. 34).

[52] Counsel for Dr. Kilian argued that this decision was incorrect. Counsel argues that the onus in a section 87 application is on the CPSO, and that the CPSO must demonstrate that the demand is lawful before a section 87 order may be made. In support of this argument, counsel relied upon the decision in Canon v. CPSO 2018 ONSC 4815 and, specifically, the passage at paragraph 43, where Perell J. stated:

[43] Where a public authority applies to the court to enforce legislation, and a clear breach of the legislation is established, only in exceptional circumstances will the court refuse an injunction to restrain the continued breach.[11] The onus to raise the exceptional circumstances lies with the respondent,[12] and those circumstances are limited; for example, to where there was a right that pre-existed the enactment contravened or where the events do not give rise to the mischief the enactment was intended to preclude”

[53] There are two problems with counsel’s submissions. First, the facts of Canon are distinguishable. Mr. Canon was practicing medicine without a licence and was, therefore, not a member of the CPSO. The CPSO had to demonstrate that a breach of the legislation was established before it could obtain the injunction. In this case, section 76 (3) of the Code requires a member to cooperate with an investigation. In other words, a breach of the legislation will be established the moment that the CPSO can demonstrate to the Court that Dr. Kilian was the subject of an investigation and was not cooperating with that investigation.

[54] Second, less than five paragraphs before the paragraph reproduced above, Perell J. had repeated and relied upon Swinton J’s decision in Ravikovich. In other words, Canon applies the same principles as Ravikovich. Those principles, which are repeated in the cases cited in both Canon and Ravikovich, permit a very narrow review by the Superior Court of Justice on a section 87 application.

[55] This brings me to the Court of Appeal’s decision in Sazant v. College of Physicians and Surgeons of Ontario, 2012 ONCA 727, (2012) 113 O.R. (3d) 420. This decision established that the powers sought to be exercised by the investigator under s. 76 of the Code, in this case to obtain patient files from Dr. Kilian, were constitutional.

[56] In that decision, the Court stated (at para. 154):

[154] Contrary to this assertion, in my opinion, a proper interpretation of the relevant statutory provisions demonstrates that, when used by investigators appointed under s. 75(1)(a) of the Code, the s. 76(1) summons power is a reasonable power, properly constrained by the requirement that it be used solely to obtain information that is relevant to a duly authorized investigation into specified professional misconduct, and further restricted by the requirement that the information sought cannot be privileged.

[57] In Sazant, the Court of Appeal went on to consider the limitations on the summons power under section 76 of the Code. As discussed in Sazant, the powers of the ICRC flow from the principles that apply under the Public Inquiries Act. As the Court of Appeal noted at paragraph 173:

[173] Like I do, the Divisional Court concluded that the scope of the investigation and the nature of the documents and other information that may be compelled is properly constrained, restricted and reviewed by (i) the restrictive scope of the investigation that is authorized; (ii) the limiting factors of relevance and privilege; and (iii) the requirement that the Executive Committee review the registrar's initial determination of reasonable and probable grounds before the appointment is approved.

[58] When the passages from Sazant are considered together, it is clear that the section 76 powers are constitutional and that there are limits to those powers. The Superior Court judge hearing the section 87 application is tasked with considering whether the requests for information that the investigators have made are within the scope of their investigatory powers as described in the previous paragraph. In granting the stay, the Applications Judge failed to turn her mind to the structure of the legislation and her role within it.

[59] Dr. Kilian also relies upon the decision in Kelly v. Ontario (2008) 2008 CanLII 22557 (ON SC), 91 O.R. (3d) 100 (S.C.J.). In that decision, the Superior Court was considering an application to find section 76 of the Code unconstitutional. The application had been brought by four physicians, including Dr. Sazant. The CPSO brought a motion to stay the application pending the outcome of the investigative processes before the ICRC and the Discipline Committee.

[60] The stay was denied because the doctors were seeking a declaration of constitutional invalidity under section 52 of the Charter. Neither the ICRC nor the discipline committee had the jurisdiction to provide that remedy. As a result, the application was permitted to continue before the Superior Court.

[61] The Kelly decision is distinguishable from this case on two grounds. First, the Kelly decision was issued before the Court of Appeal found that section 76 of the Code was constitutional in Sazant. Second, in this case there was no application before the Applications Judge to find section 75 of the Code unconstitutional. As a result, Dr. Kilian was not seeking a general declaration of constitutional invalidity as part of the section 87 proceeding. As Himel J. noted in Kelly (at para. 30), the ICRC and/or Discipline Committee has the jurisdiction to grant individual constitutional remedies. In this case, the remedies for any individual violations of the Charter claimed by Dr. Kilian are within the jurisdiction of the ICRC and/or discipline committee. Those individual remedies are not within the jurisdiction of the Superior Court on a section 87 application.

[62] When the points set out above are considered together, it becomes clear that there was no risk of inconsistent findings between the section 87 application and the judicial review proceeding. In the section 87 application, the Court was required to consider whether the preconditions for granting a statutory injunction are met. The narrow scope of that review is described at paragraph 51, above.

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[66] Second, this legislative requirement to grant a stay exists within the larger public policy framework. An investigation by the ICRC does not just engage the rights of the member being investigated. It engages the public interest, which includes questions of public safety and the protection of the members’ patients. Indeed, the case law has recognized that the primary purpose of an Order under section 25.4 is the protection of patients. Thirlwell v. College of Physicians and Surgeons of Ontario 2022 ONSC 2654 at para. 23 and Fingerote v. The College of Physicians and Surgeons of Ontario 2018 ONSC 5131 at para. 24.