Reasonable And Probable Grounds Test In Appointing Investigators In The Regulatory Context ' Kustka v CPSO

• Published date: 04 August 2023
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Trials & Appeals & Compensation, Government Measures
• Law Firm: WeirFoulds LLP
• Author: Ms Jill Dougherty, Kelsey L. Ivory and Wamika Razdan (Summer Student)

The COVID-19 pandemic has had a substantial impact on all facets of society, especially within the healthcare system. In navigating these unprecedented terrains, health professionals have turned to diverse treatments, some of which lacked scientific and evidence-based support. Regulated health professionals and patients alike have at times sought to challenge the guidance and decisions of health regulators concerning COVID-related treatments and public health measures, including by bringing applications for judicial review. The resulting court decisions provide welcome guidance on these issues, which are still largely uncharted and are being grappled with in the aftermath of the pandemic.

Overview

In Kustka v. College of Physicians and Surgeons of Ontario,¹ the Divisional Court considered applications for judicial review seeking to quash the College of Physicians and Surgeons of Ontario's (the "CPSO"'s) appointment of investigators and the Inquires Complaints and Reports Committee's ("ICRC") interim order. In Kustka, a family medicine practitioner was alleged to have inappropriately prescribed ivermectin to an elderly patient to treat COVID-19, and to have inappropriately issued two COVID-19 mask exemptions. The physician's patients joined her in the application for judicial review, arguing that the CPSO had violated their Charter rights.

The Court provided strong reasoning in support of its decision to remove the patients as respondents, to decline the patients standing, and to quash the applications for judicial review as premature. It went on to provide useful commentary with respect to the "reasonable and probable grounds" test that applies where investigators are appointed under section 75(1)(a) of the Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the "Code"), and with respect to the CPSO's reliance on the following sources to support its reasonable and probable grounds:

• Reg 364/20, which provided that face masks should be worn in most indoor public areas subject to limited exceptions for those with medical conditions;
• Guidance from the Ontario College of Family Physicians stating that very few conditions justified an exemption;
• Guidance from the Canadian Thoracic Society supporting mask-wearing and stating that there was no evidence that masks would exacerbate an underlying lung condition; and,
• Guidance from Health Canada and the Ontario Science Table indicating that ivermectin...