Physician’s application for review of the College’s decision to first restrict her practice then suspend her was dismissed. The physician’s patients were held to not have standing in the proceedings and a publication ban over certain information was granted

Administrative law – Decisions reviewed – College of Physicians and Surgeons – Publication ban – Judicial review – Standing – Investigations – Physicians and surgeons – Suspensions

Kilian V. College of Physicians and Surgeons of Ontario, [2022] O.J. No. 4890, 2022 ONSC 5931, Ontario Superior Court of Justice, November 7, 2022, K.E. Swinton, T.R. Lederer and W.M. LeMay JJ.

Dr. Kilian is a member of the College of Physicians and Surgeons of Ontario (“CPSO”). The CPSO received complaints that Dr. Kilian was providing patients with exemptions from COVID-19 vaccine requirements without medical justifications. The CPSO’s Inquiries, Complaints, and Reports Committee (“ICRC”) commenced an investigation of her practice (the “Investigation Decision”) and placed restrictions on her practice (the “Restrictions Decision”). When she acted contrary to the Restrictions Decision, the ICRC suspended her from practice (the “Suspension Decision”).

Numerous proceedings have been commenced with respect to these issues, but the present application for judicial review of the Investigation Decision, Restrictions Decision, and Suspension Decision was made by Dr. Kilian and an anonymous group of 37 of her patients. The application was dismissed. The Court also considered motions from the CPSO (1) to quash the patients’ judicial review application for lack of standing and (2) for a publication ban over portions of the record of proceedings, both of which were granted.

Dr. Kilian was opposed to widespread use of COVID-19 vaccines and spoke about her views at various speaking engagements. In late summer of 2021, Dr. Kilian began to sign exemption forms for people who did not wish to get vaccinated without appropriate medical explanation. The College received complaints from employers who received these forms as well as complaints from others with respect to Dr. Kilian’s public statements that were critical of the COVID-19 policies for local health care workers.

An investigation was commenced by the ICRC. Dr. Kilian was asked to provide a complete list of the patients for whom she had provided medical exemptions for COVID-19 vaccines, mask mandates or testing, along with their medical records. She declined to provide this documentation. As a result, the ICRC provided Dr. Kilian with notice of their Restrictions Decision, which prohibited Dr. Kilian from providing any exemptions to patients for COVID vaccines, COVID testing or mask wearing. The evidence suggests Dr. Kilian continued to issue exemption letters after receipt of the Restrictions Decision. The ICRC then issued the Suspension Decision. Dr. Kilian sought judicial review of the ICRC’s decisions, with 37 anonymous patients also named as applicants.

The CPSO brought a motion to quash the patients’ application on the basis that they had no standing. The Court agreed that the patients did not have private or public interest standing and their application was accordingly quashed.

The Court went on to dismiss Dr. Kilian’s application for review of the Investigation Decision on the basis that it was premature, as the ICRC’s investigation was ongoing and there were no exceptional grounds for review at that time.

The Court considered the Restrictions Decision and Suspension Decision. The Court held they were reasonable. With respect to the Restrictions Decision, the ICRC considered evidence of probable harm to patients and placed the least restrictive orders on Dr. Kilian’s practice that would provide protection for patients. The Court held it was reasonable for the ICRC to have acted on an ex parte basis because patients were being put at immediate risk.

With respect to the Suspension Decision, Dr. Kilian had continued to provide exemptions to patients after she had been served with notice of the Restrictions Decision. Further, she had not been cooperating with the ICRC’s investigation and had not provided them with requested medical records, giving rise to grave concerns with respect to her governability. This combined with the harm that her practice of giving exemptions exposed or was likely to expose to patients was held to be a reasonable basis for the Suspension Decision.

Finally, the CPSO sought a publication ban over information in the record of the proceedings, including the names of complainants and individuals that came forward with information in the ICRC investigation. Though Dr. Kilian opposed the motion, the Court agreed, as Dr. Kilian would still have access to this information, but the information simply would not form part of the public record.

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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