The College’s policies that require physicians to provide an effective referral in cases where the physician is unwilling to provide elements of care on religious grounds are an infringement on some physicians’ religious freedoms, but the infringements are justified because the objectives of the policies are of sufficient importance

Administrative law – Charter of Rights and Freedoms – Freedom of Religion – Human rights complaints – Judicial review – Standard of review – Correctness – Physicians and surgeons – Statutory provisions – Public interest

The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, [2018] O.J. No. 505, 2018 ONSC 579, Ontario Superior Court of Justice, January 31, 2018, Wilton-Siegel, Lococo, Matheson JJ.

The applicants challenged the constitutional validity of two policies of the College of Physicians and Surgeons of Ontario (the “College”) that require physicians who are unwilling to provide elements of care on moral or religions grounds to provide a patient requesting such care with an effective referral to another health care provider (the “Policies”). The applicants took the position that the Policies infringed on their freedom of religion under section 2(a) of the Charter.

The applicants sought a judicial review of the decision of the College to enact the medical assistance in dying (“Maid”) policy, which contains an effective referral requirement, and brought a separate challenge of the constitutionality of the effective referral provision in the College’s human rights policy. The applications were treated in substance as applications for judicial review, and were heard together.

The Court held that the constitutional issues in the two applications should be analyzed using the Oakes framework rather than administrative law principles, as the applications do not involve a review of any present or prospective administrative adjudicative decisions, but rather involve a consideration of whether specific provisions of the Policies have the effect of unduly infringing the Charter rights of the applicants. The Court also concluded that the applicable standard of review of the constitutionality of the Policies is correctness.

At the outset, the Court confirmed that the Policies fall within the College’s statutory mandate and are consistent with its duty to serve and protect the public interest.

The Court went on to consider whether the applicants’ individual rights were infringed as a result of the Policies. The Court held that the Policies do limit the individual applicants’ religious freedoms, but went on to find that the breach is justified because the objective of the Policies are of sufficient importance to warrant overriding the individual applicants’ rights of religious freedom.  When considering the salutary and deleterious effects of the Policies, the Court confirmed that the effects on both the applicants and the effects on patients should be considered.  The Court considered that access to health care and, in particular, the right of patients to equitable access to health care services available under Canada’s publicly-funded health care system are important goals in their own right.  The Court also commented that the applicants do not have a common law right or a property right to practice medicine, much less a constitutionally protected right.  Those who enjoy the benefits of a licence to practice a regulated profession must expect to be subject to regulatory requirements that focus on the public interest, rather than the interests of the professionals themselves.

This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact JoAnne G. Barnum at jbarnum@harpergrey.com.

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