Case Report – Ontario’s top court affirms order granting compelled observation of surgery

Today, the Ontario Court of Appeal held that investigators appointed under the Ontario Health Professions Procedural Code have the power to compel observation of surgery conducted by an investigated physician and the power to compel an individual physician under investigation to submit to an interview.

Registrars of the self-regulating colleges may appoint investigators to look into whether a member has committed an act of misconduct or is incompetent. They must report the results of an investigation to a committee which, in turn, decides whether to proceed with discipline or incompetence charges in accordance with the procedures outlined in the Code. Investigators enjoy the following grant of power:

An investigator may inquire into and examine the practice of the member to be investigated and has, for the purposes of the investigation, all the powers of a commission under Part II of the Public Inquiries Act.

Last September, the Divisional Court held that the power to “inquire into and examine,” interpreted purposively, allowed for compelled observation of surgeries. It stressed that the College’s evidence showed observation is an effective, customary and even necessary process for assessing a health care practitioner’s competence. It held that the grant of power in the Code was unambiguous, so there was no scope for interpreting it narrowly to conform with Charter values that weigh against self-incrimination and unreasonable search.

The Court of Appeal fully endorsed the Divisional Court’s reasoning and made clear that the power to compel observation of surgery applies notwithstanding recent amendments to the Code. Its reasoning stressed that the plain meaning of the words “inquire into and examine” and the purpose of the self-regulatory enactment outweighed any narrowing inference about legislative intent that might be drawn from the other text in the Code. It rejected the appellants’ argument that the Divisional Court erred in failing to consider the entire legislative context, and said, “…it would take clear words to deprive the investigator of powers necessary to carry out this important public interest [in effectively regulating the medical professions].”

Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546. 

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