As we summarized in our recent 2021 professional regulation round-up, governments that are implementing COVID-related measures, such as mask and vaccine mandates, have met vocal opposition from small groups of health professionals asserting a right to freedom from such measures. Part of this opposition included several physicians in Ontario who are being investigated for issuing medical certificates to exempt individuals from vaccination and masking requirements, but without genuine medical basis. As a result, the College of Physicians and Surgeons of Ontario (CPSO) commenced investigations into their conduct. The physicians declined, however, to cooperate with document and information requests. They would only provide articles supporting their views. As a result, the CPSO sought an order of the court to compel them to cooperate with the investigation which was granted: College of Physicians and Surgeons of Ontario v. O’Connor, 2022 ONSC 195.
This case raises one of the many challenges facing regulatory bodies in enforcing Covid-19 health and safety standards, and provincial health orders. In BC, colleges have at least three ways to enforce cooperation with investigations, where registrants possess information relevant to regulatory matters, especially records relating to patients (or purported patients).
First, if a regulatory authority has a bylaw which expressly requires that a registrant cooperate, the authority may apply for a court order to enforce that duty. For example, section 52 of the Health Professions Act, RSBC 1996, c 183, provides that any person “may apply to the Supreme Court for an interim or permanent injunction to restrain a person from contravening any provision of this Act, the regulations or the bylaws.” An example of an express duty of cooperation is Bylaw s. 175(1) of the College of Speech and Hearing Health Professionals of BC, which provides, “A registrant must cooperate with the inquiry committee during an investigation of a complaint against that or any other registrant.”
Second, even without an express bylaw requiring cooperation, section 29(1) of the HPA provides a right of any person authorized by an inquiry committee to apply to the Supreme Court for an order “(b) to require the production of any record, property, assets or things and to inspect, examine or analyze them….” The “test” under HPA s. 29(3) allows the court to make an order if satisfied, “that there are reasonable grounds for believing that evidence may be found… (b) that a person who is a registrant… (iii) has acted in a manner that constitutes professional misconduct….”
Third, registrants owe at least a common law duty to cooperate: Artinian v. College of Physicians and Surgeons of Ontario,  O.J. No. 1116, 1990 CanLII 6860; and Reid v. College of Chiropractors of Ontario, 2016 ONCA 779. Whether based on a common law duty to cooperate, or an express duty to cooperate, a regulatory authority may discipline a registrant for failing to cooperate: Law Society of Ontario v. Diamond, 2021 ONCA 255.
Discipline orders by the Law Society of Ontario illustrate suspensions for non-cooperation of at least one month, but that persist until the registrant complies. For example, see Law Society of Upper Canada v. Ricci, 2016 ONLSTH 123 (one-month suspension followed by an indefinite suspension until the member cooperates), and Law Society of Ontario v. Chung, 2019 ONLSTH 136 (suspension effective immediately, to end one month after the respondent provides a complete response to the requests made by an investigator).
The Ontario Institute of Chartered Accountants has a notable history of ordering that a member cooperate with an investigation, and that if they fail to cooperate, they shall be suspended until such time they comply, but also that, should they not comply within a fixed period they will be expelled, e.g., Bertrand (Re), 2010 LNICAO 14 (March 31, 2011). (Similarly, see Chandler (Re), 2009 LNICAO 6 (order to cooperate, and in the event of non-compliance, suspension “until such time as she does comply, provided that she complies within three (3) months from the date of her suspension, and in the event she does not comply within the three month period, she shall thereupon be expelled from membership….”) Indeed, this approach by the Institute traces at least as far back as Carroll (Re), 1992 LNICAO 17, where a panel concluded, “ The committee has provided Mr. Carroll sufficient time to comply with its Order. Should he fail to do so, the member will initially be suspended, and, if he fails to rectify the situation within thirty days, ultimately expelled from membership. Failure to comply with the order will demonstrate that Mr. Carroll does not wish to be governed by the Institute and that, therefore, he should no longer remain a member.” (emphasis added) This approach reflects a form of ultimate sanction appropriate for a registrant who continues to refuse to be governed.
In British Columbia, the concept of ungovernability has been much considered by discipline hearing panels of the Law Society, which has held that, “if a lawyer repeatedly conducts himself in a manner that obstructs the ability of the Law Society to govern that lawyer, then that lawyer is ungovernable.” Law Society of British Columbia v. Welder, 2015 LSBC 35 at para. 23. Although ungovernability may arise from misconduct in one’s practice, one factor relevant to ungovernability includes, “A consistent and repetitive failure to respond to the Law Society’s inquiries.” In that case, the panel found a member lawyer ungovernable, after noting the lawyer’s “ … inability or unwillingness to co-operate with the Law Society investigators” involving “a deliberate and prolonged failure or refusal to cooperate with the Law Society’s investigators.” The panel noted that the member had failed to respond substantively to seven letters from the Law Society and that his actions were “obstructionist” in nature. A Law Society panel more recently reviewed ungovernability principles in Law Society of British Columbia v. Pyper, 2019 LSBC 21.
If a registrant refuses to cooperate and provide an inquiry committee with documents or information necessary to an investigation, the inquiry committee has the option of seeking the help of the court, or directing a citation so that the registrant may be disciplined, and further suspended until they cooperate. An ongoing period of obstruction may raise the issue of ungovernability. However, instead of ordering automatic cancellation, a discipline hearing panel might better order that a college have a right, after a period of ongoing obstruction, to apply to the panel for a further order the registrant’s licensure cancelled. This would ensure some opportunity for an uncooperative registrant to advise why they have actually been cooperative, or that they are legitimately unable to comply with an investigator’s requests. In essence, a hearing panel might order a suspension, coupled with a “suspended” cancellation of registration, both of which aim to address and dissuade an ongoing course of misconduct by a registrant.
Lisa C. Fong, Q.C. and Michael Ng