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Medical Professionals (RHPA) - Investigations (2). El Kabbani v. Ontario College of Pharmacists
In El Kabbani v. Ontario College of Pharmacists (Div Ct, 2026) the Divisional Court granted the College's motion to quash a JR, here brought against the College decision to commence "an investigation into the conduct of the four pharmacists".
Here the court considers Health Professions Procedural Code ("Code") law regarding 'complaints' and investigations:B. Complaints and Registrar-Initiated Investigations
[14] The applicants’ central submission is that by persuading the SCPP to change its “complaint” to a “report,” the OCP effectively denied them of procedural protections they would otherwise have had. Section 25(6) of the Code requires that a member be given notice of a complaint within 14 days of when it is received. Section 28(1) of the Code requires that complaints be dealt with within 150 days, failing which the member can seeks a remedy from the Health Professions Appeal and Review Board (“HPARB”) pursuant to s. 28(5). More than 150 days have passed since the complaints were made in this case, and the applicants submit that having been denied access to the HPARB, their only recourse is to this court.
[15] Whether and when it is permissible for the OCP to cause a complaint to be replaced by a registrar-initiated investigation was the issue in Abdul v. College of Pharmacists, 2018 ONCA 699, 142 O.R. (3d) 682. In that case, the court held, at para. 15, that the Code did not preclude recourse to a registrar-initiated investigation of a matter that had initially been the subject of a complaint. However, the court noted, at para. 19, that there may be instances when doing so “may amount to an abuse of process and bar prosecution of charges because of a failure to accord procedural fairness to the accused member.”
[16] Abdul makes it clear, at para. 28, that it may or may not be acceptable for the OCP to proceed with a registrar-initiated investigation in relation to the subject of a complaint, depending on whether there was prejudice to the member. In Abdul, that determination was initially made by the Discipline Committee, which could consider the entire investigation and balance the public interest in the investigation and prosecution with the requirement of procedural fairness to the member: Abdul, at para. 22.
[17] As in Abdul, it will be open to the applicants to challenge the OCP’s decision to proceed with a registrar-initiated investigation if this matter is ultimately referred to a Disciplinary Committee. They can “air their grievances” before the Discipline Committee and, if unsuccessful there, can seek judicial review before this court, which will by then have the benefit of a full evidentiary record: Foulds v. Justice of the Peace Review Council, 2017 ONSC 5807 (Div. Ct.), at paras. 23-24; Wahbi v. Ontario College of Teachers, 2023 ONSC 3713 (Div. Ct.), at para. 22. In other words, a remedy will be available if the administrative process is allowed to run its course.
[18] The same reasoning applies to the applicants’ other complaints about the conduct of the investigation. If they were denied procedural fairness, they can raise this before the Discipline Committee. . Leigh v. Goldhar
In Leigh v. Goldhar (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a complainant-patient's JR, this against HPARB findings that upheld a conclusion of the Inquiries, Complaints, and Reports Committee (“ICRC” or the “Committee”) of the College of Physicians and Surgeons of Ontario "no concerns with Dr. Goldhar’s management of the case."
Here the court considers the adequacy of the ICRC investigation:[11] Mr. Leigh seeks to make the same arguments before this court as he did to the HPARB. Mr. Leigh’s primary concern at the hearing was his disappointment that neither the College nor HBARB determined liability or the causation for the poor outcome of his surgery. The Code sets out the role of the ICRC in conducting an investigation. The Divisional Court has found that section 26(1) of the Code requires the ICRC to make “reasonable efforts” to consider the records and documents that it considers relevant to the complaint and the ICRC “is not required to examine all records and documents, conduct interviews, hear testimony, or make findings of credibility.” (Togerson v. Health Profesions Appeal and Review Board, 2021 ONSC 74, para.45).
[12] In regard to Mr. Leigh’s concern about liability or causation not having been determined in this matter, the HPARB found:28. The Board notes that the Committee does not determine liability or causation, and its function is not to punish physicians. Rather, the Committee’s mandate is to screen complaints about its members. The Committee considers the information it obtains to determine whether, in all of the circumstances, a referral of specified allegations of professional misconduct to the OPSDT is warranted or if some other remedial action should be taken.
29. For this reason, the Board finds that it was not necessary for the Committee to conduct a further investigation to determine whether the November surgery was the cause of the blindness the Applicant developed in his left eye or to determine who was responsible for the Applicant’s unfortunate outcome regarding his left eye. [13] This finding is reasonable and there is no basis to intervene.
[14] Mr. Leigh’s second concern was that the College did not investigate his complaint. In addition to Mr. Leigh’s complaint and his additional submissions, the College obtained and considered Dr. Goldhar’s response, his medical records, the hospital records where the surgery took place and the medical records from the two specialists to whom Dr. Goldhar referred Mr. Leigh and who treated him. In addition, the ICRC was a specialized panel and one of the members was an ophthalmologist. The HPARB found that the Committee’s investigation was adequate because it was supported by the information and documents obtained as a result of the investigation.
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[17] We would not interfere with the HPARB’s decision that the College’s investigation was adequate and that the ICRC’s decision was reasonable. . Welkoff v. Ontario (Health Professions Appeal Review Board)
In Welkoff v. Ontario (Health Professions Appeal Review Board) (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this against an HPARB decision that "upheld the decision of the screening committee, the Inquiries, Complaints and Reports Committee (“ICRC”), of the Royal College of Physicians and Surgeons (the “College”) .... that resolved the complaint .... by way of remedial agreement". The remedial agreement was by way of self-study "in the risk factors and management of personality disorders and persistent depressive disorders and discharge planning and submit a 2000-word report to be reviewed by the College".
Here the court considered an HPARB decision that an ICRC investigation was adequate:Issue 1: Was the HPARB’s finding unreasonable that the ICRC’s investigation was adequate?
[31] The applicant submitted that the ICRC’s investigation was inadequate because: (i) no interviews were conducted to clarify facts, and (ii) the investigation did not include all the complaints that the applicant brought forward, including some that she characterized as the “most important” (i.e. that the respondent doctor “blatantly lied” in her response to the ICRC).
[32] In its Decision, the HPARB examined the adequacy of the ICRC’s investigation. It noted that an adequate investigation need not be exhaustive. Rather, the ICRC must seek to obtain the essential information relevant to making an informed decision regarding the issues raised in the complaint.
[33] The HPARB held that s. 26(1) of the Health Professions Procedural Code[8] (the “Code”) requires the ICRC to make “reasonable efforts” to consider the records and documents that it deems relevant to the complaint. The ICRC “is not required to examine all records and documents, conduct interviews, hear testimony, or make findings of credibility”: Torgerson v. Ontario (Health Professions Appeal and Review Board), 2021 ONSC 7416 (Div. Ct.), at para. 45.
[34] The HPARB found that the ICRC provided the applicant with the respondent doctor’s responses and an opportunity to reply and make additional comments. The ICRC spoke with the applicant three times (although the applicant states that these were simply requests by her for updates on the status of the complaint).
[35] The HPARB acknowledged the applicant’s submissions regarding inaccuracies in the record. The HPARB found that the ICRC relied on the health records which did not contain compelling information to contradict the record. The HPARB found that the ICRC’s Decision makes specific and frequent reference to the information in the Record to support its conclusions, and the conclusions were reasonable.
[36] The HPARB found that the investigation included the concerns that the applicant raised. It found that the ICRC’s investigation covered the event in question, and that it obtained the essential information relevant to making an informed decision regarding the issues raised in the complaint.
[37] The HPARB found that the ICRC considered the applicant’s allegations that the respondent doctor made inappropriate and untrue statements and profiled her. The HPARB found that the ICRC reviewed the medical records and while it was critical of the curtness of the respondent doctor’s discharge note where the patient felt misunderstood, it did not find that there were untrue statements in it.
[38] The HPARB Decision outlines its reasons for finding the ICRC’s investigation to be adequate and the HPARB’s finding was reasonable. . 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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