Case information

Charter of Rights and Freedoms — Constitutional law — Administrative law — Boards and tribunals — Statutory injunction — Medical records — Can the Superior Court make an order under s. 87 of the Health Professions Procedural Code to enforce a search and seizure demand of the College of Physicians and Surgeons of Ontario without determining the lawfulness and constitutionality of that demand? — If so, is s. 87 of the Health Professions Procedural Code constitutionally valid? — Can the College of Physicians and Surgeons of Ontario prove that the applicant has breached the Health Professions Procedural Code when the demand is unlawful? — Is the demand under s. 76 of the Health Professions Procedural Code lawful and constitutional? — Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, ss. 76, 87.

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The applicant, Ms. Rochagné Kilian, is a doctor and a member of the respondent, the College of Physicians and Surgeons of Ontario. After receiving complaints mainly related to the issuance of COVID-19 vaccine exemption certificates by the applicant, the respondent began an investigation. Accordingly, on September 29, 2021, the Registrar of the respondent sought authorization from the Inquiries, Complaints and Reports Committee to appoint investigators pursuant to s. 75(1)(a) of the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (Code). On October 1, 2021, the authorization was granted and the applicant received a letter from an appointed investigator requesting that she provide a complete list of patients for whom she had prescribed certain medications for COVID-19 that were not recommended, as well as the complete medical record for each patient. The applicant refused to disclose the requested information by citing concerns about the confidentiality of her relationship with her patients. The respondent informed the applicant that in the event that she failed to provide the requested records, it would bring an application before the Superior Court requiring her to do so. As the applicant did not provide the requested records, the respondent filed an urgent application pursuant to s. 87 of the Code to obtain an order directing the applicant to cooperate with the investigator. The Superior Court of Justice granted the application and the Court of Appeal dismissed the appeal.