The doctors are at risk of losing their licences for allegedly committing professional misconduct in certain actions they engaged in while taking issue with some of the COVID-related public health directions given by the Ontario College of Physicians and Surgeons (CPSO), such as to do with vaccination and treatment.
The doctors involved are Mark Trozzi, Patrick Phillips, and Crystal Luchkiw, who argued in their motion that the CPSO’s prosecution against them is “unlawful” on jurisdictional grounds.
Allegations against them include “making misleading, incorrect or inflammatory statements about vaccinations, treatments and public health measures concerning COVID-19,” “failing to cooperate with College investigations,” and “issuance of vaccine exemptions.”
The trio have been speaking out against COVID-19 mandates and restrictions publicly, appearing in videos and interviews. Currently being suspended from their practice, they sought to have the Ontario Physicians and Surgeons Discipline Tribunal dismiss their cases without referring them to merits hearings.
Their argument was based on both administrative law and constitutional law. The administrative law argument asserted that the allegations are based on investigations that college registrar Dr. Nancy Whitmore lacked statutory authority to launch. The constitutional law argument was that the allegations relied on the college’s COVID-related direction that itself breached two guarantees in the Canadian Charter of Rights and Freedoms: freedom of expression and the right to life, liberty, or security of the person.
The tribunal dismissed their motion on Jan. 19.
“In our view, several court decisions (involving physicians including the three moving parties before us) released before our hearing of the motion have effectively disposed of the administrative law arguments,” the tribunal ruled.
The tribunal added that a charter ruling should not be made on the motion as the doctors’ charter arguments could be relevant at the disciplinary hearings, where the doctors “can argue that the panel has to apply a constitutional analysis to determine whether and to what extent the [CPSO’s] Statements can support findings of professional misconduct.”
The tribunal noted that in 2021 and 2022, the CPSO published statements on its website as guidance to the profession about COVID-19.
The statements centred on medical exemptions for vaccines, whether precautionary drugs should be prescribed to combat COVID-19, and concerns about “misleading or deceptive comments” made by some doctors that “put the public at risk by rejecting scientific evidence and encouraging conduct that is contrary to public health orders and recommendations.”
The doctors contested that the statements were “merely guidelines” and not “binding legal norms,” and that the college was attempting to limit free speech and discipline them on the basis of prohibitions or directions that it has no statutory authority to order.
They submitted that “the Statements amount to a direction that limits medical exemptions, curtails physician comments about COVID-19, targets ‘anti-vaxxers’ and ‘anti-maskers’ and impedes the discussion for informed consent of patients to the use of precautionary medications,” the tribunal said in its ruling.
The CPSO did not disagree with the doctors. The tribunal held that the college was not seeking a finding of professional misconduct based on a breach of its statements, but for other alleged actions.
In addition, the tribunal held that since the college agreed that its COVID statements “are only guidelines,” the doctors’ charter challenge on the motion has become “hypothetical.”
The doctors argued that the investigation launched by Whitmore exceeded her jurisdiction when she authorized investigators to engage in overly broad “fishing expeditions,” requesting them to cooperate and provide documents “including in relation to COVID-19 and [his or her] completion of medical exemptions for COVID-19 vaccinations and diagnostic testing.”
The registrar had said she had “reasonable and probable grounds” to believe the doctors had committed acts of professional misconduct or were incompetent, the tribunal heard.
Objections to the investigations were heard previously in a Divisional Court and Superior Court, but weren’t successful.
Attorney Michael Alexander, who represents all three doctors, told The Epoch Times in an email that he and his clients will be seeking a review of the tribunal’s ruling.
“The hearing panel simply refused to address our key submission, which was that the Registrar, Dr. Nancy Whitmore, did not have reasonable and probable grounds to order investigations of the doctors,” he wrote.
“Furthermore, the panel also ignored our submission that the College had failed to establish that the doctors had violated a standard of practice.”
On the tribunal’s stance to regard CPSO’s statements as merely guidelines and not binding rules or regulations, Alexander said, “in taking this position, the panel could not explain the basis for the charges brought against the doctors.”
“This decision does not meet the most basic standards of legal reasoning. Thus, we plan to appeal the decision within the College and also bring another motion to resolve these issues,” he said.
The dates of the disciplinary hearings have yet to be scheduled.