As has been seen throughout the pandemic, health professionals expressing pandemic-related misinformation as professionals may have their right to freedom of expression limited by their regulator, provided the regulator’s decision reflects a proportionate balancing of the Charter protections at play: Doré v. Barreau du Québec, 2012 SCC 12 (CanLII).
In Trozzi v. College of Physicians and Surgeons of Ontario, 2024 ONSC 6096 (CanLII), the court commended the Ontario Physicians and Surgeons Discipline Tribunal for its “very thorough and careful” application of Doré both at the liability and penalty stage (para. 46). The court further commented that “the tribunal’s Doré analysis was impeccable and stands as a guide for future tribunals confronted with serious constitutional considerations” (para. 71). This case concerned an appeal by Dr. Trozzi of the tribunal’s decision which found him to be incompetent and to have engaged in professional misconduct for public statements he made about vaccinations, treatments, and public health measures related to COVID-19 during the pandemic, The tribunal also found Dr. Trozzi committed professional misconduct by failing to cooperate with the College during its investigation and ordered that his licence be revoked.
Dr. Trozzi raised several issues on appeal including the treatment of expert evidence, the application of the Doré decision, and the grounds for the investigation. Dr. Trozzi also argued that the tribunal was incorrect in finding that he engaged in professional misconduct due to his failure to co-operate with the College during its investigation.
The court found that the tribunal underwent a robust proportionality analysis with the tribunal first considering the statutory objectives at play and then balancing those objectives against the impact on Dr. Trozzi’s freedom of expression. The court accepted the significance of the tribunal’s statutory objectives of:
- protecting the public interest in the context of the pandemic, by preventing the spread of harmful misinformation; and
- maintaining the integrity and reputation of the profession and promoting trust in the profession by rejecting unprofessional and uncivil discourse.
The tribunal noted that a finding of professional misconduct would affect Dr. Trozzi’s right to freedom of expression and would have a chilling effect on other registrants who might be deterred from expressing their own views. However, the harm caused by Dr. Trozzi’s statements outweighed his right to freedom of expression. Further, while Dr. Trozzi’s statements were protected, they were not high-value political speech. The context in which Dr. Trozzi made his public statements was also of importance; he was not speaking as a politician but as a licensed physician who “held himself out as one of the “tiny percent” of doctors in the world who were brave and honest enough to speak out” (para. 62). The finding of professional misconduct did not impair Dr. Trozzi’s freedom of expression more than was necessary to achieve the College’s statutory objectives.
Counsel for Dr. Trozzi also argued that in finding that Dr. Trozzi engaged in professional misconduct by failing to cooperate with the College, the tribunal erred by not referring to Dr. Trozzi’s good faith reliance on legal advice. The court dismissed this argument stating that “[N]o law provides that a physician is excused from cooperating with the College on the basis that his lawyer says he has grounds to challenge the investigatory process” (para. 86). The court dismissed the appeal and ordered Dr. Trozzi to the pay the College’s costs.
This case has significant implications for registrants and regulators alike, particularly in terms of public statements and co-operation with regulatory bodies. The decision serves as a reminder that legal advice cannot be used as a defence for non-cooperation with regulators, and provides regulators with guidance on how to apply Doré.
Trozzi v. College of Physicians and Surgeons of Ontario, 2024 ONSC 6096 (CanLII)
Rachel Noble