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Medical Professionals (RHPA) - Investigations (2). Kilian v. College of Physicians and Surgeons of Ontario
In Kilian v. College of Physicians and Surgeons of Ontario (Div Ct, 2025) the Divisional Court dismissed a JR, here against "the ICRC’s dismissal of the reconsideration request", this from an earlier ICRC "interim suspension and appointment of investigators".
Here the court holds that the JR is premature, and as it challenges an investigation:[67] I agree that Dr. Kilian’s challenge to the appointment of the investigators is premature. No exceptional grounds arise here.
[68] Judicial review is a discretionary remedy. It is a longstanding principle that, absent exceptional circumstances, courts should not exercise their power of review during ongoing administrative proceedings because of concerns for administrative efficiency, respect for the administrative process, avoiding fragmentation of the administrative process, and judicial economy: Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 69, citing C.B. Powell Limited v. Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at paras. 31-32. All these concerns are engaged here.
[69] As Stratas J.A. observed in C.B. Powell, “only at the end of the administrative process will a reviewing court have all of the administrative decision-maker’s findings; these findings may be suffused with expertise, legitimate policy judgments and valuable regulatory experience”: at para. 42.
[70] For these reasons, this court will, absent exceptional circumstances, decline to hear challenges to the appointment of investigators under the Code: see Dr. Luchkiw v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5738, 163 O.R. (3d) 517 (Div. Ct.), at paras. 58-59; Berge v. College of Audiologists and Speech-Language Pathologists of Ontario, 2022 ONSC 1220 (Div. Ct.), at paras. 9-11; Gore v. College of Physicians and Surgeons of Ontario (2008), 2008 CanLII 48643 (ON SCDC), 92 O.R. (3d) 195 (Div. Ct.), at paras. 67-68; and Lala v. College of Physiotherapists of Ontario (2003), 2003 CanLII 37231 (ON SCDC), 10 Admin. L.R. (4th) 217 (Ont. Div. Ct.), at para. 2.
[71] On Dr. Kilian’s previous application for judicial review, which included a challenge of the appointment of investigators, this court held that this aspect of her challenge was premature: Kilian, 2022 ONSC 5931, at para. 63. It remains so. Her reconsideration request before the ICRC does not change this.
[72] Dr. Kilian’s challenges based on the lawfulness of the s. 76 demand, the division of powers, unwritten constitutional principles, the alleged violation of her rights under the Charter, and abuse of process are also premature. As the Court of Appeal held in Dr. Kilian’s appeal of the s. 87 order, her arguments regarding the lawfulness and constitutionality of the investigators’ demand must first be raised before the Discipline Tribunal. The Discipline Tribunal is “the proper forum for a party to challenge the appointment of an investigator, the lawfulness of a s. 76 demand and any alleged violation of Dr. Kilian’s individual rights”: Kilian (ONCA), at paras. 30-36. Only at the conclusion of the discipline proceedings will these issues be amenable to judicial review: Kilian (ONCA), at para. 37. . 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.
Here the court considers a professional's duty to comply with regulatory investigations:[83] In his reply submission, counsel for Dr Trozzi argued that in finding Dr. Trozzi had engaged in professional misconduct by failing to cooperate with the College, the tribunal erred by not referring to Dr. Trozzi’s good faith reliance on legal advice.
[84] Given that Dr. Trozzi did not testify, it is not clear to me how that fact is in evidence or is stated as a fact by counsel.
[85] In any event, there is no basis to argue that Dr. Trozzi was free to disregard his obligation to cooperate with the College and produce documents even if a lawyer told him that the charging documents could be void if challenged. The lawyer’s opinion, even if stated as a legal fact, is just an opinion. As this case so amply demonstrates, sometimes opinions may be incorrect. In fact, in every piece of litigation there is a winner and a loser. They may all have opinions justifying their positions. The opinions may be qualified in any number of ways. The opinions may weigh the risks and benefits of non-compliance in different possible scenarios.
[86] No law provides that a physician is excused from cooperating with the College on the basis that his lawyer says he has grounds to challenge the investigatory process. The College is the regulator with legal authority to make orders. The lawyer is just the agent of the member physician. Only the former has authority to make orders. The latter has no authority to excuse non-performance.
[87] Counsel tried to submit that Dr. Trozzi was cooperative as required by the “honest, open, and helpful” standard set out by the Court of Appeal in Law Society of Ontario v. Diamond, 2021 ONCA 255 at para. 50. But that submission cannot overcome the tribunal’s finding of fact that,The member's piecemeal, prolonged and ultimately incomplete approach to providing documents and information to the College was less than "honest, open and helpful." [88] This finding is well-grounded in the evidence. In fact, there is no evidence to the contrary; just submissions.
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