Court Of Appeal For Ontario Upholds “Prematurity” Rulings With CPSO

It’s been challenged many times whether or not professional regulators, like the College of Physicians and Surgeons of Ontario, or CPSO, can have cases taken from them. Typically, the response is to let the internal processes play out, prior to coming to Court. The latest is an Appellate decision in Ontario that confirmed Rochagné Kilian was supposed to exhaust her options with the CPSO first.

The general reasoning behind these decisions is that any doctor — or any professional — could circumvent the internal discipline process by filing with the Court. While Court challenges have come in abundance in recent years, they tend to be thrown out as premature.

Note: This isn’t to justify the rulings that organizations like the CPSO are making, or injection mandates. It’s just to explain procedurally what is going on.

The records in particular that the CPSO was after primarily involved the issuance of exemptions for the injections in 2021. Dr. Kilian is hardly the only doctor to be investigated for doing this, but the procedural history is interesting, to say the least. It’s not just her doing this, but various patients have also tried to intervene.

The Court of Appeal lays out the facts in their ruling, which are largely agreed with. The main issues to be decided were questions of law.

There’s a lot going on, but here’s a timeline.

August 23rd, 2021: Dr. Kilian attends a town hall meeting with Grey-Bruce Health Services (GBHS), which was her employer at the time. She expressed concerns about the injection mandate that was coming up. Around that time, she’d also been issuing exemptions for patients.

On a bit of a side note

[11] In the late summer of 2021, Dr. Kilian began to sign exemption forms for people who did not wish to get the COVID-19 vaccine. She provided these exemptions in three different ways: through her own practice, through an organization known as “EnableAir”, and through an organization known as White Knight Medical. Her association with “EnableAir” was limited and is now the subject of a complaint to the RCMP in British Columbia. The details and outcome of that complaint are not relevant to the issues we have to determine in this case.

October 1st, 2021: Investigators were formally assigned to look into Dr. Kilian, and to the exemptions that were being issued. They also weren’t happy that she wasn’t complying with the “safe and effective” mantra that was expected.

October 15th, 2021: The ICRC, which is the Inquiries, Complaints and Reports Committee of the CPSO, issued restrictions on Kilian’s medical certificate of registration. In particular, it was supposed to prevent the issuance of more exemptions for injections, masks and testing.

October 21st, 2021: The CPSO files an Application to compel Dr. Kilian to turn over patient records, and to cooperate with their investigation. This comes after repeated requests for that information are refused.

October 27th, 2021: Dr. Kilian received an interim suspension of her license, because these restrictions were not being followed.

November 2021: Dr. Kilian files her own Application for Judicial Review, challenging the constitutionality of what the CPSO was doing. At this time, the she hadn’t attempted to resolve it internally.

January 7th, 2022: The CPSO Application is supposed to be heard, but is deferred until February 8th.

February 7th, 2022: A large number of people, approximately 40, applied to intervene in Dr. Kilian’s case, claiming to be patients of hers, and invoking privilege. This was one day before the Application was supposed to be heard. Note, another ruling incorrectly lists the date as February 14th.

February 18th, 2022: The Ontario Superior Court hears an the Motion to Intervene and reserved the decision.

March 14, 2022: The ONSC schedules a hearing on the Application to compel the turning over of medical records of patients. There were patients asking for Intervenor status, since they viewed their medical records as privileged. Justice Pollak deferred the issue of Intervenors until the other questions were settled.

Justice Pollak wrote: “As I have found above, I agree with Dr. Kilian that the parties must be given the opportunity to make their submissions on what the issues are for determination by this court in the Application and what the subject matter of the Application is.”

This is from the ruling. Keep it in mind.

April 9th, 2022: Justice Pollak stays (puts on hold) an Intervenor Motion from Kilian’s patients. This had been argued o February 18th, and March 22nd.

April 19th, 2022: Justice Pollak, ONSC, stays (prevents) the Application from the CPSO for the production of patient files, related to Dr. Kilian and injection exemptions. This was to be until the Judicial Review was heard from Kilian. It ruling be challenged at Divisional Court.

August 8th, 2022: The Divisional Court granted leave (permission) to appeal the Interlocutory stay from Dr. Kilian’s patients.

September 27, 2022: There’s a Case Management Conference on the Appeal, with the hearing to be scheduled for December 5th, 2022.

November 7th, 2022: The Divisional Court granted a Motion from the CPSO to quash (throw out) the Application for Judicial Review of Dr. Kilian’s patients, and a review of her own case. The Court also granted a publication ban as requested.

Dr. Kilian had asked the Divisional Court to look at 3 ICRC decisions, and all were upheld.

  • Judicial Review of the investigation decision is premature
  • The Restrictions Decision was reasonable
  • The Suspension Decision was reasonable

November 8th, 2022: Justice Leiper issued a decision that it wasn’t in the interests of the various patients to be granted Intervenor status. Rules 5.03 and 13.01(2) were both cited, but prematurity was the concern. The original Application still hadn’t been ruled on, and the Court found this to be unnecessarily complication. The patients had also asked for permission to intervene anonymously. However, since they were denied standing — premature at this stage — it was deemed irrelevant if the Court knew who they were.

January 5th, 2023: The Divisional Court lifts the stay that Justice Pollak had ordered on April 19, 2022. Costs of $7,500 were ordered, with the panel saying that a different Judge should handle the case. The Panel was annoyed with her, saying this:

[18] On February 18th, 2022, the Applications Judge heard the motion to intervene and reserved her decision. On March 14th, 2022 she released a lengthy endorsement (2022 ONSC 1526) in which she set out the positions of the various parties in detail. At the conclusion of her reasons, in paragraph 44, she stated:
[44] As I have found above, I agree with Dr. Kilian that the parties must be given the opportunity to make their submissions on what the issues are for determination by this court in the Application and what the subject matter of the Application is. I find that it is not possible for this court to consider the factors to be examined on this Intervenor motion until the subject matter and scope of this Application, which is a major issue in dispute between the parties, is resolved. In light of this significant dispute between the parties on the “subject matter of the proceeding” (the Application), I reserve the decision on this motion until the court has made a determination on the subject matter and scope of the Application.

[19] There was no mention in the March 14th, 2022 endorsement that the Applications Judge was considering imposing a temporary stay.

In other words, Justice Pollak had effectively “scooped” the Application Judge, by imposing a stay that was already under consideration. While this surely was an oversight, it did set things back considerably. And a new Justice would hear the Application.

March 10th, 2023: Justice Chalmers dismissed the Application from Dr. Kilian’s patients to intervene in the proceedings.

April 20th, 2023: The Court of Appeal heard a Motion to stay (defer) pending appeal of the dismissal of the Appellant’s Application for leave to intervene. The Appellants are the patients of Dr. Kilian who wanted intervenor status. They didn’t want the CPSO to hand over their medical data until the other issues were resolved.

April 21st, 2023: The Court of Appeal notifies the Parties that the Appeal has been dismissed, with the reasons to follow.

April 24th, 2023: The Court of Appeal hands down the written reasons. It finds 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”. Therefore, they can’t stop the data from being shared with the CPSO while main Appeal is ongoing.

May 8th, 2023: Justice Dineen grants the CPSO’s Application to compel Kilian to cooperate fully with their investigation. Various arguments against it are all rejected.

July 26, 2023: Dr. Kilian is hit with $16,000 in costs from the Court of Appeals. It’s also determined that the strategy of “adding Intervenors” was largely a tactic designed to stall or prevent the release of records to the CPSO.

January 25th, 2024: The Court of Appeal dismissed the Appeal to comply with the CPSO’s requirement to cooperate, and turn over patient information. Dr. Kilian is hit with $18,000 in costs.

It’s unclear if there will be an attempt to go to the Supreme Court of Canada. Who knows at this point? As long as there’s money to be made, it cannot be ruled out.

Regardless of what one thinks of the CPSO getting access to these files, the case was a mess.

As for another “premature” case….

Privacy Is Your Right Fiasco

The Divisional Court of Ontario heard a challenge on March 30th, 2023, and dismissed it right away. The written reasons were issued on April 21st. What was the problem?

It was filed by a Dr. Sonja Kustka, an Ontario doctor who was challenging several moves from the CPSO, such as:

  • The appointment of investigators by the Registrar to investigate Dr. Kustka’s COVID-19 practices, dated February 24, 2022 (the “Appointment Decision”);
  • The ICRC’s interim order, dated May 3, 2022, imposing restrictions on Dr. Kustka’s certificate of registration (the “Interim Order”);
  • The ICRC’s decision, dated June 9, 2022, confirming the interim restrictions but deciding not to suspend Dr. Kustka’s certificate of registration (the “Confirmation Decision”); and
  • The Registrar’s decision, dated June 9, 2022, appointing investigators to investigate Dr. Kustka’s cooperation with the investigation of her COVID-19 practices and her compliance with the Interim Order.

She also had patients apply to be Intervenors, to involve themselves in the case, and to claim that the CPSO seizing medical records amounted to a breach of medical privilege.

In short, it was a rehash of the Kilian case above.

Back in March 2023, there was a fundraising drive that went on to finance this litigation. At present, it’s before the Court of Appeals. But it wasn’t disclosed that all of the major issues had already been argued and decided ahead of this.

Parallel between CPSO cases and certain employment suits

There is significant overlap between some of these doctors’ challenges, and cases involving unionized or government employers. In both cases, it comes down to lack of jurisdiction.

  • With these types of suits involving doctors and their regulators, Courts are routinely finding that the internal investigations should have been carried out prior to commencing litigation. The Courts may be asked to review only afterwards.
  • With many (former) employees, they aren’t following the terms of their collective bargaining agreements, or for public sector workers, applicable legislation. This usually means that there is some grievance process that must be followed, which often leads to arbitration. There’s no inherent right to sue, unless the process is corrupt or unworkable.

Just because a dispute may involve constitutional issues, the Courts aren’t necessarily able to hear them if there are other avenues to settle them.

Saying that a case is brought prematurely is a polite way of saying that there’s no jurisdiction to hear them. It would be interesting to know what kind of advise such litigants are getting. It seems to be common sense that their lawyers would inquire about their circumstances in advance.

Court of Appeal for Ontario
2024-01-25 College of Physicians and Surgeons of Ontario v. Kilian, 2024 ONCA 52
2023-07-26 College of Physicians and Surgeons of Ontario v. Kilian, 2023 ONCA 515
2023-04-24 College of Physicians and Surgeons of Ontario v. Kilian, 2023 ONCA 281

Superior Court of Justice
2023-05-08 Kilian v College of Physicians and Surgeons of Ontario, 2023 ONSC 2689
2022-03-14 College of Physicians and Surgeons of Ontario v. Kilian, 2022 ONSC 1526

Divisional Court
2022-12-09 Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 6871
2022-11-08 The College of Physicians and Surgeons of Ontario v. Kilian, 2022 ONSC 6345
2022-11-07 Kilian v. College of Physicians and Surgeons of Ontario, 2022 ONSC 5931

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