Pursuant to sections 75 and 76 of the of the Health Professions Procedural Code (the “Code”), which is Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Act”), investigators appointed by the College of Physicians and Surgeons of Ontario have the power to require observation of surgery conducted by members under investigation, require a member to participate in an interview, and compel a member to answer questions put by investigators. Applications for judicial review of the appointment of an investigator were dismissed on the basis that they were premature, as the investigations had only begun looking into the physicians’ practices and no disciplinary actions had been taken.

Administrative law – Decisions of administrative tribunals – College of Physicians and Surgeons – Physicians and Surgeons – Professional misconduct – Incompetence – Investigations – Powers of investigators – Judicial review application – Striking out – Premature – Compliance with legislation – Statutory interpretation

Gore v. College of Physicians and Surgeons of Ontario, [2008] O.J. No. 3757, Ontario Superior Court of Justice, September 26, 2008, S.N. Lederman, F.P. Kiteley and K.E. Swinton JJ.

Three applications for judicial review were commenced against the College of Physicians and Surgeons of Ontario (the “College”) and were heard together. Common to all three applications was the interpretation of ss. 75 and 76 of the Health Professions Procedural Code (the “Code”), which is Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Act”).

The issue before the Court was the extent of the power of an investigator appointed by the College to compel observation of medical procedures and to require a member to be interviewed. An additional challenge was raised in two of the applications with respect to the decision of the Registrar to appoint investigators pursuant to s. 75(a) of the Code, on the basis that the Registrar did not have reasonable and probable grounds to believe that either applicant had committed an act of professional misconduct or was incompetent.

The Court concluded that pursuant to sections 75 and 76 of the Code, the College investigators have the power to require observation of surgery conducted by members under investigation, require a physician to participate in an interview, and compel a physician to answer questions put by investigators.

The applicants’ submission that a physician who is under investigation is not a compellable witness, due to potential disciplinary proceedings and the risk of self-incrimination was rejected, as being based on an incorrect assumption that the sole purpose of an investigation is to gather evidence against the physicians for use in future disciplinary proceedings. In fact, the Court held, the purpose of an investigation by the College was to gather information so that the Executive Committee or the Complaints Committee could decide whether further steps should be taken or not, as well as the nature of those steps. A disciplinary hearing was only one of the possible steps.

Further, as the matters in issue were at a very preliminary stage, namely, an investigation had only begun into the applicants’ practices, the Court dismissed all of the applications for judicial review on the basis that they were premature. The Court held that if the allegations are ultimately referred to the Discipline Committee, the physicians would have a right to a full hearing.

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