Monitoring doctor who issued improper COVID-19 exemption letters reasonable: Ontario Court of Appeal

The Ontario Court of Appeal has refused stay an order requiring a doctor who issued improper COVID-19 exemption letters to consent to monitoring and unannounced visits.

In Thirlwell v. College of Physicians and Surgeons of Ontario, 2022 ONCA 494, the College received reports that one of its members, Dr. Celeste Thirlwell, was providing improper medical letters exempting people from COVID-19 vaccinations. The College investigated and discovered that Thirlwell operated a special clinic which sold exemptions for up to $300. This suggested a generalized approach to vaccine exemptions for profit, rather than an individual assessment of each patient, according to the College’s Inquiries, Complaints and Reports Committee (ICRC).

The College concluded that Thirlwell’s conduct exposed, or was likely to expose, patients to harm or injury, so it issued interim orders that required Thirlwell to provide irrevocable consent for the College to make appropriate enquiries of the Ontario Health Insurance Plan (OHIP) and to monitor her compliance with the terms of the order. The College also ordered her to provide a log of all patient encounters and to submit to unannounced inspections.

Thirlwell contested the OHIP term and the order requiring her to submit to unannounced inspections. The College asserted that the unannounced visits were necessary to monitor Thirlwell’s compliance with the order.

Divisional Court upholds order

The Ontario Divisional Court ruled in favour of the College, finding that Thirlwell’s motivations to issue exemptions were not based on any concern for her patients’ health but from an ideology about state actions in response to COVID-19. It also ruled that Thirlwell’s unwillingness to co-operate with the College in the past provided justification for monitoring her compliance with the terms of the order.

Thirlwell brought a motion to stay the Divisional Court’s order while her appeal was pending. The Ontario Court of Appeal considered three factors – whether there was a serious question to be tried, whether the applicant would suffer irreparable harm if the application was refused, and an assessment of the balance of convenience as to which of the parties would suffer greater harm from the granting or refusal of a stay order.

Serious question to be tried

The court noted that in a previous decision, it had ruled that “a moving party failed to establish that there was a serious issue to be tried where the moving party raised the same argument on appeal previously considered and rejected by the court and the administrative tribunal below.”

In this case, the court found that Thirlwell’s proposed appeal did not have much merit and stood little chance of succeeding, because the Divisional Court had reasonably explained why patient logs were insufficient to monitor compliance with the interim order and why the OHIP term was justifiable. The appeal court emphasized that this decision was afforded a high degree of deference, and consequently there was no serious issue to be tried.

Irreparable harm

The second factor required the court to consider whether Thirlwell would suffer irreparable harm if the stay was not granted. “This one factor likely weighs in favour of a stay, as a dismissal of this motion would immediately enable the College to compel Thirlwell to consent to a review of her OHIP records, rendering the appeal itself nugatory,” said the appeal court.

Balance of convenience

The third factor required the court to undertake a balance of convenience analysis by considering which party would suffer the greater harm from granting or refusing the say. The court concluded that public interest outweighed Thirlwell’s personal interests.

Both the College and the Divisional Court found that the OHIP term was necessary in order to effectively monitor Thirlwell’s activities. The appeal court noted that public interest included the public’s confidence in the administration of justice and the College’s disciplinary system.

“The public’s confidence in the College’s ability to regulate its members would be eroded were Ito grant the stay, and as such the Divisional Court order upholding the OHIP term should be operationalized without further delay,” the Court of Appeal said.