The Inquiries, Complaints and Reports Committee (ICRC) of the College of Physicians and Surgeons of Ontario (CPSO) has a statutory obligation to investigate complaints received from the public about its members.
The Registrar of the CPSO also has the authority to commence an investigation where there are reasonable and probable grounds to believe that a member is incompetent or has committed an act of professional misconduct.
In the case of either an investigation commenced by the Registrar, or as a result of a public complaint, the ICRC serves as a screening body, reviewing the information gathered during the investigation and rendering a decision. The ICRC may decide, inter alia, to take no further action, to refer the matter to the Discipline Committee of the College or, as in this case, to require the member to appear before a panel of the ICRC to be cautioned.
In the case of a complaint, pursuant to the Health Professions Procedural Code,either the complainant or the member (physician) may request the Health Professions Appeal and Review Board (HPARB) to review the decision of the ICRC. However, the Code does not provide for HPARB review of decisions in respect of Registrar investigations.
On review of an ICRC decision with respect to a public complaint, HPARB must consider both the adequacy of the investigation and the reasonableness of the ICRC's decision, following which the Board may: confirm all or part of the decision; make recommendations to the ICRC; and/or require the ICRC do anything the Committee or a panel may do under the RHPA and the Code. The Board cannot, however request that the Registrar conduct an investigation.
Gill v College of Physicians and Surgeons,2021 ONSC 7549
In Gill v College of Physicians and Surgeons,2021 ONSC 7549, the member, Dr. Gill, brought an application for judicial review of eight decisions of the ICRC, seven of which were with respect to public complaints (the “Complaints Decisions”), and one of which flowed from a Registrar’s investigation (the “Registrar’s Decision”). The underlying issue in each of the complaints and investigations was Dr. Gill’s social media posts regarding COVID-19.
In five of the eight decisions, the ICRC decided to take no further action. However, in two of the Complaints Decisions and the Registrar’s Decision, the ICRC required Dr. Gill to attend in person to be cautioned.
Dr. Gill then brought an application for judicial review, seeking declarations that the College has no authority to regulate her free speech and that the Registrar’s investigation was without jurisdiction; and an order quashing all decisions of the ICRC and prohibiting the College from re-investigating the matters.
The CPSO took the position that Dr. Gills’ application was premature since the Complaints Decisions had not yet been reviewed by HPARB. Accordingly, the CPSO brought a motion to quash Dr. Gill’s application for judicial review of the Complaints Decisions.
The Application for Judicial Review was Premature
It is generally accepted that absent exceptional circumstances, applications for judicial review should not be brought until the end of the tribunal’s proceedings, after all available remedies have been exhausted. This prevents fragmented and duplicative proceedings, while respecting the expertise of administrative decision makers.
In this case, Dr. Gill had sought review of the ICRC’s decision by HPARB, with the hearing having not yet taken place. Should the HPARB hearings and the judicial review proceed at the same time the result will be both fragmented and duplicative. Accordingly, the Court found that the application for judicial review with respect to the Complaints Decisions was premature, as the ongoing HPARB proceedings had not yet concluded.
The Court then considered whether there were exceptional circumstances to justify early judicial review of the decisions.
Analysis of Exceptional Circumstances to Justify Early Judicial Review
Dr. Gill submitted that because her application raised constitutional and jurisdictional issues about the College’s ability to regulate freedom of expression, she should be allowed to proceed. Dr. Gill also raised the argument that HPARB does not have the jurisdiction to grant the declaratory relief she is seeking.
The Court rejected this argument, stating that the importance of legal or constitutional issues are not sufficient to constitute exceptional circumstances required to justify judicial review before the administrative process has been exhausted. The Court also cited the Supreme Court of Canada’s decision in Okuwobi v Lester B, Pearson School Board,2005 SCC 16 for the principle that the mere fact that the tribunal cannot grant a constitutional declaration is not sufficient to bypass it.
Dr. Gill further argued that the Complaints Decisions involve the same complaints, facts and investigation as the Registrar's Decision, and cannot be separated from that Decision. Since the Registrar’s Decision cannot be reviewed by HPARB, her application for judicial review should proceed.
The Court acknowledged that because the Complaints Decisions and the Registrar’s Decision all relate to Dr. Gills social media activity there will inevitably be overlap of the issues before HPARB and before the Court on judicial review. However, the Court held that this was not sufficient to constitute exceptional circumstances justifying early judicial review of the Complaints Decisions before they are reviewed by HPARB. Moreover, the Court highlighted that permitting early judicial review would also impact upon the complainants who have participatory rights before HPARB but would not be parties to the judicial review application.
The Court granted the CPSO’s motion to quash the application for judicial review in respect of the Complaints Decision, allowing only the application for judicial review of the Registrar’s Decision to Proceed.
Note: Our blog does not replace legal advice tailored to your situation. The lawyers at Wise Health Law have years of experience in guiding members through college investigative and disciplinary processes through to judicial review. Please contact us to find out more as we may be able to assist.
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