Dr. Sonja Kustka Applicant – v. –, 2023 ONSC 2325

CITATION : Kustka v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2325 DIVISIONAL COURT FILE NOS.: 294/22, 297/22 and 365/22 DATE: 20230421 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT D.L. Corbett, Nishikawa and O’Brien JJ. BETWEEN: Dr. Sonja Kustka Applicant – and – The College of Physicians and Surgeons of Ontario, Leslie Peel, John and Jane Doe, and John and Jane Doe #2 Respondents AND BETWEEN: Leslie Peel, N.Z., M.Z. (By their Litigation Guardians Slawomir Zinkiewicz and Anna Zinkiewicz), Johns and Janes Doe Applicants – and – The College of Physicians and Surgeons of Ontario and Dr.

Sonja Kustka Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Paul Slansky , for Dr. Sonja Kustka Rocco Galati , for Leslie Peel, N.Z. and M.Z. (By their Litigation Guardians) and Johns and Janes Doe Paul Le Vay, Justin Safayeni and Amy Block , for the College of Physicians and Surgeons of Ontario Rocco Galati , for Leslie Peel, N.Z. and M.Z. (By their Litigation Guardians) and Johns and Janes Doe Paul Le Vay, Justin Safayeni and Amy Block , for the College of Physicians and Surgeons of Ontario HEARD at Toronto: March 30, 2023 reasons for decision

THE COURT Overview [ 1 ] The Applicant, Dr. Sonja Kustka, is a member of the College of Physicians and Surgeons of Ontario (“CPSO”) and practices family medicine. She has been registered since 1985. In late 2021, the CPSO received complaints that Dr. Kustka provided two questionable medical exemptions from COVID-19 masking requirements and that she inappropriately prescribed ivermectin to an elderly patient to treat COVID-19. [ 2 ] In February 2022, the Registrar of the CPSO appointed investigators to investigate Dr. Kustka for potential acts of professional misconduct or incompetence pursuant to s. 75(1)(

a) of the Health Professions Procedural Code (the “Code”),

Schedule 2 to the Regulated Health Professions Act , 1991, S.O. 1991, c. 18 [the “ RHPA ”]. The College’s Inquires Complaints and Reports Committee (“ICRC”) later issued an interim order imposing restrictions and monitoring obligations on Dr. Kustka’s certificate of registration under s. 25.4 of the Code. On June 9, 2022, the ICRC confirmed the interim restrictions and monitoring obligations. On the same date, the Registrar appointed investigators to investigate Dr. Kustka for her lack of cooperation with the initial investigation and in respect to her compliance with the interim order. [ 3 ] Dr.

Kustka brings two applications (Court File Nos. 294/22 and 365/22) seeking judicial review of the following decisions: • The appointment of investigators by the Registrar to investigate Dr. Kustka’s COVID-19 practices, dated February 24, 2022 (the “Appointment Decision”); • The ICRC’s interim order, dated May 3, 2022, imposing restrictions on Dr. Kustka’s certificate of registration (the “Interim Order”); • The ICRC’s decision, dated June 9, 2022, confirming the interim restrictions but deciding not to suspend Dr.

Kustka’s certificate of registration (the “Confirmation Decision”); and • The Registrar’s decision, dated June 9, 2022, appointing investigators to investigate Dr. Kustka’s cooperation with the investigation of her COVID-19 practices and her compliance with the Interim Order. [ 4 ] In her applications for judicial review, Dr.

Kustka challenges the validity of the appointments, the reasonableness of the interim restrictions and monitoring obligations, and the constitutionality of both the Registrar’s decisions and s. 76 of the Code, which, among other things, grants the CPSO the authority to obtain patient records. [ 5 ] In addition, a number of Dr. Kustka’s patients (the “Patient Applicants”) commenced an application for judicial review challenging the February 2022 appointment of investigators and the CPSO’s ability to obtain patient records through the investigation.

The Patient Applicants then commenced a second application for judicial review, which incorporated the first application and also challenged the Interim Order (Court File No. 297/22). The Patient Applicants challenge the CPSO’s ability to obtain their medical records without their knowledge and consent and argue that the investigation violates their rights under ss. 7 and 8 of the Canadian Charter of Rights and Freedoms . Dr. Kustka named the Patient Applicants as respondents to her applications for judicial review.

The Patient Applicants include one named patient, two minor patients, 22 patients who wish to be identified by initials only and 65 patients who do not wish to be identified in any form. [ 6 ] The CPSO brought a motion to quash the Patient Applicants’ application for lack of standing and to strike them as respondents in Dr. Kustka’s applications. After the conclusion of argument on the motion, the panel indicated that the motion was allowed, with reasons to follow.

Those reasons are set out below. [ 7 ] In respect to Dr Kustka’s two applications for judicial review, for the reasons that follow, those applications are dismissed. Issues [ 8 ] The issues on the CPSO’s motion to quash are as follows: (

a) Do the Patient Applicants have private interest standing to bring an application for judicial review? (

b) Do the Patient Applicants have public interest standing to bring an application for judicial review? (

c) Are the Patient Applicants necessary or proper parties to Dr. Kustka’s applications for judicial review? [ 9 ] In addition, the issues to be determined on Dr. Kustka’s applications for judicial review are as follows: (

a) Are Dr. Kustka’s applications for judicial review premature?

(

b) If not, was the Appointment Decision reasonable? (

c) Was the Interim Order of the ICRC imposing interim restrictions on Dr. Kustka’s certificate reasonable? (

d) Was the Confirmation Decision reasonable? Analysis The Motion to Quash the Patients’ Applications for Judicial Review [10] The issue of public and private interest standing was recently examined in detail by this Court in Kilian v. College ofPhysicians and Surgeons, 2022 ONSC 5931 (Div. Ct.). The Patient Applicants’ applications for judicial review in this case areanalogous to the patients’ applications for judicial review in Kilian. We see no basis to depart from this court’s decision in Kilian, whichwe find to be persuasive.

Should the Patient Applicants be Granted Private Interest Standing? [11] A party must have either private interest standing or public interest standing to bring an application for judicial review. Forprivate interest standing, the applicant must show a direct, personal interest in the operation or application of a law: Finlay v. Canada(Minister of Finance), (SCC), [1986] 2 S.C.R. 607, at p. 619. A “sense of grievance” is not sufficient, a person must havea “personal legal interest” in the outcome: Landau v.

Ontario (Attorney General), 2013 ONSC 6152, at para. 16. [12] The relevant factors in determining whether there is such an interest include: the statutory purpose, the subject matter of theproceeding, the person’s interest in the subject, and the effect that the decision might have on that interest: Canadian Elevator IndustryEducation Program v. Nova Scotia (Elevators and Lifts), 2016 NSCA 80, [2016] N.S.J.

No. 435, at para. 42. [13] In Kilian, at para. 44, this Court confirmed that patients have no private interest standing in the circumstances where theCPSO has initiated an investigation into a member’s conduct, stating as follows: The Patient Applicants do not have a personal legal interest in the ICRC’s decisions to authorize an investigation of Dr. Kilian’s conductor to place restrictions on her certificate.

They have concerns that their medical records will be disclosed to College investigators, butthat does not justify a grant of private interest standing, given the purpose of the regulatory regime and the subject matter of the judicialreview proceeding. [14] In Kilian, at para. 45, this Court held that a finding of private interest standing would be contrary to the statutory purpose,which is to regulate physicians’ conduct in the public interest.

A finding of private interest standing would “disrupt” professionalregulation because it would entitle thousands of patients to standing at the investigation stage: Kilian, at para. 47. This Court also notedthat the Code grants patients standing in certain limited circumstances, further demonstrating the legislature’s intention to circumscribepatient participation in the regulatory process. [15] Moreover, in Kilian, this Court went on to find that the patients have no direct interest in the decisions under review, whichinvolve the regulator and the member.

Similarly, the restrictions on the physician’s certificate in that case did not affect the patients’legal interests: Kilian, at paras. 49-50. We see no reason to depart from the thorough and persuasive analysis conducted by this Court in Kilian. [16] The Patient Applicants distinguish their applications for judicial review from those brought by the patients in Kilian on thebasis that in this case, they seek to challenge s. 76 of the Code, while Kilian was limited to considering an investigation under s. 75 of theCode. In our view, this is a distinction without a difference.

In Kilian, the CPSO had brought a parallel application in the Superior Courtpursuant to s. 87 of the Code to compel the production of records under s. 76. While, in the circumstances, this Court did not specificallyaddress s. 76, the underlying factual scenario was the same as in this case. The patients in Kilian argued that they had standing to bringan application for judicial review because their private medical records would be disclosed to CPSO investigators. [17] The production of private medical records pursuant to s. 87 was subsequently addressed by Chalmers J. of the Superior Courtin Kilian v.

College of Physicians and Surgeons of Ontario, 2023 ONSC 1654 (Sup. Ct.) [Kilian SCJ]. In that case, Chalmers J., relyingon College of Physicians and Surgeons of British Columbia v. Bishop (1989), (BC SC), 34 B.C.L.R. (2d) 175, heldthat the expectation of privacy in medical records is subject to the higher need to maintain appropriate standards in the profession: atpara. 34. In addition, patient records are protected by the requirement that the CPSO maintain their confidentiality under s. 36 of theRHPA.

As a result, courts have rejected the argument that patient-physician privilege precludes an order requiring the production ofpatient records: Kilian SCJ, at paras. 36 and 51. [18] Accordingly, there is no basis upon which to distinguish this case from Kilian. The Patient Applicants lack private intereststanding to bring applications for judicial review to challenge the interim order and investigation decision. Should the Patient Applicants be Granted Public Interest Standing? [19] In determining whether to grant public interest standing, the court considers the following factors: (

i) Whether there is a serious justiciable issue;

(ii) Whether the party bringing the proceeding has a real stake or a genuine interest in the outcome; and (iii) Whether the proceeding is a reasonable and effective means to bring the issue before the courts. Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 54 , [2012] 2 S.C.R. 524, at para. 2 . [ 20 ] In Kilian , at para. 55 , this Court found that with respect to the ICRC decisions imposing restrictions on the physician’s certificate and her suspension, the patients did not have a real stake or genuine interest in the outcome.

On the decision to investigate, this Court found that the patients failed to raise a serious justiciable issue because they had no reasonable expectation of privacy against a medical regulator accessing patient records and there was no interference with their bodily autonomy under s. 7 of the Charter . [ 21 ] In this case as well, the Patient Applicants have failed to raise a serious justiciable issue.

Their claims under ss. 7 and 8 of the Charter are fatally flawed because patients have no reasonable expectation of privacy against a medical regulator accessing patient records and because the interim order does not affect the Patient Applicants’ choice of medical treatment or bodily autonomy. [ 22 ] As noted above, the Patient Applicants do not have a real stake or genuine interest in the ICRC’s decision to impose restrictions on Dr Kustka. [ 23 ] Finally, by virtue of Dr. Kustka’s applications for judicial review, there is a proper alternative means for bringing the matter to court.

The Patient Applicants’ application is not a reasonable or effective means of bringing the matter to court. On this application, Dr. Kustka can and has put forward arguments regarding the proper scope of the investigation, whether there were reasonable and probable grounds to support the investigation, and whether the Interim Order imposed was reasonable. Absent an interest that would justify standing, the Patient Applicants’ participation in the applications adds nothing to this analysis. [ 24 ] As a result, the Patient Applicants have not met the test for public interest standing.

Are the Patients Necessary and Proper Parties to Dr. Kustka’s Application? [ 25 ] Dr. Kustka has named the Patient Applicants as respondents to her applications for judicial review. She seeks no relief from the Patient Respondents. [ 26 ] This Court recently affirmed that “[t]he parties to an application for judicial review are limited to the parties to the original proceeding with the addition of the decision maker. Where an applicant adds improper parties as respondents on an application for judicial review, this Court will remove those parties”: Macmull v.

Ministry of Health , 2022 ONSC 182 , at para. 7 . [ 27 ] The Patient Respondents do not fit within either recognized category of a proper respondent on an application judicial review: (

i) they were not parties to any of the impugned decisions in the proceedings below, and (ii) they are not the decision maker. For the same reasons that we deny them public and private interest standing, their presence is not necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding. As a result, they are not proper parties to Dr. Kustka’s applications for judicial review. [ 28 ] Accordingly, the applications for judicial review brought by the Patients were quashed for lack of standing and the Patients were struck from Dr. Kustka’s applications. Are Dr.

Kustka’s Applications for Judicial Review Premature? [ 29 ] As this Court recently confirmed in Kilian , judicial review applications challenging decisions to initiate investigations under s. 75(1)(

a) of the Code are generally dismissed as premature: Berge v. College of Audiologists and Speech-Language Pathologists of Ontario , 2022 ONSC 1220 , at para. 7 . Challenges to the appointment of investigators, including the College’s compliance with any statutory requirements, can and should be made before the Discipline Committee, if the matter proceeds to that stage. [ 30 ] In this case, Dr. Kustka seeks a declaration that s. 76 of the Code is “unconstitutional insofar as it allows warrantless searches and seizures of constitutionally protected private information” and privileged information of patients. Dr.

Kustka submits that because she seeks declarations relating to the constitutionality of s. 76 of the Code, either the doctrine of prematurity does not apply, or this case raises “exceptional circumstances” warranting review at this stage. Dr. Kustka relies upon the Court of Appeal’s decision in Sazant v.

The College of Physicians and Surgeons of Ontario , 2012 ONCA 727 , 113 O.R. (3d) 420 to argue that she ought to be able to proceed at this stage because she has a right to prevent a breach of s. 8 of the Charter before it occurs. [ 31 ] In Kilian , this Court dismissed the challenge relating to the appointment of investigators as premature, despite the fact that the applicant raised constitutional grounds. Dr. Kustka seeks to distinguish Kilian on the basis that in that case, no declaration of constitutional invalidity was sought.

The importance of a constitutional question does not result in exceptional circumstances warranting a departure from the doctrine of prematurity. Moreover, the fact that a tribunal cannot grant the same declaratory relief as a superior court does not constitute exceptional circumstances: Gill v. College of Physicians and Surgeons of Ontario , 2021 ONSC 7549 , at paras. 45-56 . See also: Luchkiw v. College of Physicians and Surgeons , 2022 ONSC 5738 , at paras. 34-39 .

If the matter proceeds before the Discipline Committee, that body has jurisdiction to consider constitutional arguments and challenges, and to grant appropriate relief. [ 32 ] Again, we see no basis on which to distinguish Kilian . [ 33 ] Dr. Kustka’s reliance on Sazant to argue that she has a right to prevent a s. 8 Charter breach before it occurs is misplaced. In

that case, the Court of Appeal rejected the same arguments that are made here, in the context of the summons power under s. 76(1) of theCode, finding that s. 76(1) did not violate the applicant physician’s right not to be subject to unreasonable search and seizure under s. 8 of the Charter. Indoing so, the Court of Appeal highlighted the member’s statutory duty to cooperate with an investigation under s. 76(3.1) of the Code, aswell as the investigator’s duty of confidentiality under s. 36 of the RHPA. [34] Finally, Dr. Kustka’s reliance on Kelly v. Ontario (2008), (ON SC), 91 O.R. (3d) 100 (Sup.

Ct.) issimilarly misplaced. That case did not involve an application for judicial review but, rather, a motion to strike a Rule 14 applicationbefore the Superior Court. The Merits of Dr. Kustka’s Applications [35] Given our finding that Dr. Kustka’s challenge to the Appointment Decision and Confirmation Decision is premature, we donot address all of Dr. Kutska’s substantive arguments on the merits of her applications. For example, we do not consider it appropriate tofurther address the constitutionality of s. 76 of the Code without a full record.

In addition, as the CPSO submits, the challenge to theInterim Order is moot because the ICRC considered the issue of restrictions afresh, with the benefit of submissions and evidence fromDr. Kustka. The restrictions were subsequently confirmed in the Confirmation Decision, which is the operative decision. We nonethelessfind it appropriate to make the following limited observations about some of the arguments Dr. Kustka raises.

Standard of Review [36] The standard of review for the ICRC’s imposition of interim terms, conditions and limitations, and for whether the Registrarhad reasonable and probable grounds is reasonableness. There is no basis to depart from the presumption of reasonableness as set out inCanada (Minister of Citizenship and Immigration v. Vavilov), 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 23 where the Registrar andICRC are interpreting their home statute. See also: Luchkiw, at para. 51; Thirlwell v. College of Physicians and Surgeons of Ontario,2022 ONSC 2654, at para. 21.

Reasonable and Probable Grounds [37] The test for determining whether reasonable and probable grounds exist to appoint investigators under s. 75 of the Code is notrigorous. In the criminal context, an arresting officer requires something less than a prima facie case to satisfy the reasonable andprobable ground requirement prior to an arrest: 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656, 132 O.R. (3d)241, at paras. 49-50; Allen v. Alberta (Law Enforcement Review Board), 2013 ABCA 187, 553 A.R. 140, at para. 27.

In the professionalregulatory context, there is no arrest and the Registrar’s appointment of investigators only initiates an investigation. [38] In determining that she had reasonable and probable grounds, the Registrar had before her specific information regardingthree instances that raised concerns about Dr. Kustka’s responses to COVID-19 treatment and protections. The information included thatDr. Kustka had provided ivermectin to a patient suffering from COVID-19 without examining the patient.

The patient’s daughter statedthat this resulted in her mother waiting to seek medical attention and eventually resulted in her death. The Registrar also receivedinformation from a Girl Guide leader who raised a concern about Dr. Kustka providing potentially illegitimate mask exemptions for twosisters. The sisters had not previously reported medical conditions when registering with Girl Guides and the sisters did not live near Dr.Kustka’s office, which raised a question as to whether they were her patients. In addition, the exemption letter from Dr. Kustka failed toprovide any medical reason for the exemptions.

This information was sufficiently detailed as to be beyond mere suspicion. It wasreasonable for the Registrar to conclude that the test to appoint investigators was met. Reliance on Policy/Regulation [39] Dr. Kustka’s submission that the Registrar and ICRC impermissibly relied on policy documents and a regulation ismisconceived. When the Registrar concluded she had reasonable and probable grounds to appoint investigators and the ICRC approvedthe Registrar’s appointment of investigators, they had before them authoritative guidance from multiple sources regarding mask-wearing.These sources included O.

Reg. 364/20, which provided that face masks should be worn in most indoor public areas, subject to limitedexceptions for those with medical conditions.

They also included guidance from the Ontario College of Family Physicians stating thatvery few conditions justified an exemption and from the Canadian Thoracic Society supporting mask-wearing and stating that there wasno evidence that masks would exacerbate an underlying lung condition. [40] With respect to ivermectin, the record before the Registrar and ICRC included guidance from Health Canada and the OntarioScience Table that ivermectin should not be used to prevent or treat COVID-19. [41] The Registrar and ICRC’s reliance on these sources does not constitute an impermissible delegation of authority, as argued byDr.

Kustka. In J.N. v. C.G., 2023 ONCA 77, the Court of Appeal recently confirmed that it is appropriate to rely on guidance fromHealth Canada and other well-known medical organizations with respect to the COVID-19 pandemic.See also A.V. v. C.V., 2023 ONSC 1634 (Div. Ct.) and Spencer v. Spencer, 2023 ONSC 1633 (Div. Ct.). There is no basis on which to intervene in theconclusion that these sources supported the existence of reasonable and probable grounds. Confirmation Decision [42] The ICRC’s Confirmation Decision, which confirmed the interim terms, conditions and limitations imposed on Dr.

Kustka’scertificate, was not overbroad. The committee’s reasons for the ongoing restrictions and monitoring were justified, intelligible andtransparent. There was sufficient information before the ICRC in the three instances forming the basis for the complaints for it to bereasonably concerned that Dr. Kustka was exposing patients to harm. The ICRC also had good reason to impose monitoring obligationsgiven Dr. Kustka’s failure to cooperate with the CPSO’s investigation. She had by that point refused to provide logs of all encounters

with patients and had also refused to consent to the CPSO inquiring with the Ontario Health Insurance Plan . Dr. Kustka had an obligation under s. 76(3.1) of the Code to “co-operate fully” with the CPSO’s investigation. Her refusal to do so has escalated this litigation and delayed the proceedings before the CPSO. It was reasonable for the ICRC to require ongoing monitoring conditions given its concerns about Dr. Kustka’s governability.

Disposition and Costs [ 43 ] Accordingly, the applications for judicial review are dismissed. [ 44 ] As the successful party, the CPSO is entitled to its costs of the motion, as against the Patient Applicants, and its costs of the applications for judicial review, as against Dr. Kustka. We find the quantum sought by the CPSO to be reasonable. The Patient Applicants shall pay costs of the motion of $4,249.00, all-inclusive, to the CPSO. Dr.

Kustka shall pay costs of her applications of $24,848, all-inclusive, to the CPSO. [ 45 ] Given that all but one of the Patient Applicants are unidentified, the parties may seek further assistance from the court, if necessary, for the purposes of enforcing the costs order. _______________________________ D.L. Corbett J. _______________________________ Nishikawa J. _______________________________ O’Brien J. Released: April 21, 2023 CITATION : Kustka v. College of Physicians and Surgeons of Ontario, 2023 ONSC 2325 DIVISIONAL COURT FILE NOS.: 294/22, 297/22 and 365/22 DATE: 20230421

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: Dr. Sonja Kustka Applicant - and - The College of Physicians and Surgeons of Ontario, Leslie Peel, John and Jane Doe, and John and Jane Doe #2 Respondents AND BETWEEN: Leslie Peel, N.Z., M.Z. (By their Litigation Guardians Slawomir Zinkiewicz and Anna Zinkiewicz), Johns and Janes Doe Applicants - and - The College of Physicians and Surgeons of Ontario and Dr. Sonja Kustka Respondents REASONS FOR DECISION The Court Released: April 21, 2023