Facts:
Dr. K was investigated by her regulator, the College of Physicians and Surgeons (“CPSO”), after the CPSO received complaints that she was issuing false COVID-19 vaccine exemption certificates and prescribing medications for COVID-19 that were not approved by Health Canada.
Although s. 76 of the Health Professions Procedural Code (“Code”) required Dr. K to cooperate with the investigation, she failed to provide the investigator with the patient records for the patients to whom she wrote COVID-19 vaccine exemption certificates upon request.
The CPSO brought a ‘compliance application’ to the Superior Court under s. 87 of the Code to compel Dr. K to cooperate with the investigation. Dr. K opposed the s. 87 application on the grounds that the demand by the investigator was not lawful and that s. 76 and/or s. 87 of the Code is unconstitutional.
The application judge granted the CPSO’s application and dismissed Dr. K’s constitutional arguments, concluding that (i) he did not have jurisdiction to consider the constitutional arguments; (ii) the CPSO met the requirements for a s. 87 order; and (iii) he would not exercise any residual discretion in favour of denying the CPSO the relief sought.
Decision:
Appeal dismissed (per Benotto, Miller, and Thorburn JJ.A.)
On an application under s. 87 of the Code, a court cannot assess the lawfulness of the underlying investigation (including demands made in the course of such an investigation) or the statutory scheme. To do so would be premature and contrary to the Court of Appeal’s decision in Volochay v College of Massage Therapists of Ontario1. It is a well-settled principle that the courts will not interfere with administrative processes until they are complete, except in exceptional circumstances. This prevents fragmentation of the process, piecemeal court proceedings, as well as unnecessary costs and delays. For the court to play its proper role, the professional must raise these issues before the administrative decision maker first. The court’s role is only to review administrative decisions—not preempt them.
Dr. K was required to comply with the investigation, even though she intends to argue that s. 76 is unconstitutional. Until a court actually finds the impugned section of the Code unconstitutional, the Code is presumed to be valid. To do otherwise would only serve to undermine public confidence in the regulatory scheme.
With respect to the requirements for a s. 87 compliance order, they were satisfied here. Section 87 only requires the CPSO to show that the doctor breached the legislation. Here, Dr. K breached s. 76 of the Code by failing to comply with the investigator’s request for documents, which was proper and consistent with the scope of the investigation.
Finally, there is no basis to interfere with the application judge’s decision not to exercise his discretion to deny the s. 76 order. In ordering the investigation to be completed before seeking judicial review, the application judge was simply applying longstanding principles relating to prematurity.
Commentary:
This decision is a welcome affirmation and clarification of the limited scope of what can be challenged in applications to compel compliance under s. 87 of the Code (and, presumably, other similar statutory regimes). Attempts to resist such applications by challenging the underlying validity of the legislative scheme will fail: regulated professionals are obliged to comply with legislation—including in the course of an investigation—until and unless that legislation is found to be unconstitutional. Arguments relating to unconstitutionality should be advanced before the relevant discipline committees or tribunals at first instance (assuming they have the power to consider and address such arguments), and are then subject to review by courts under statutory appeals or judicial review applications.
The facts in Kilian are a stark demonstration of the problems with adopting a fragmented approach that would invite interlocutory judicial review applications on these issues, rather than letting the administrative process run its course. The CPSO investigator was appointed in late 2021 and, due to the repeated appearances before three levels of courts, over two years later, the professional had not even complied with a basic request for patient files, effectively stymieing the investigation.