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