An Update Following the March 10 CPSO Hearing, From Constitutional Lawyer Michael Alexander.


College of Physicians and Surgeons of Ontario v. Drs. Trozzi, Phillips and Luchkiw

In a decision rendered on January 19, 2023, the Discipline Tribunal of the College of Physicians and Surgeons of Ontario ruled that the Covid-19 restrictions the College placed on over 30,000 Ontario doctors in 2021 were merely recommendations. The ruling vindicated Drs. Trozzi, Phillips and Luchkiw, who argued that the College could not continue to prosecute them for simply deciding against following recommendations or guidelines that did not have the force of law. However, in a surprise twist, the Discipline Tribunal also ruled that the prosecutions against the doctors could continue on technical grounds.

Update from the Legal Trenches in Ontario

On Friday, March 10th, I appeared before the College of Physicians Tribunal to argue a novel point of law that could finally prevent the College from imposing Covid-19 restrictions on doctors and patients across Ontario. Those restrictions have prohibited doctors from saying anything contrary to public policies and recommendations, providing medical exemptions for Covid-19 injections and prescribing ivermectin for the prevention and treatment of Covid.
About a month ago, the Tribunal delivered a ruling based on a motion hearing held in November of 2022, where I argued that the College’s Covid-19 restrictions were merely recommendations or guidelines that did not have the force of law, which meant they could not be enforced against my clients, Drs. Trozzi, Phillips and Luchkiw, and their patients. The Tribunal ruled in our favour, but then ruled that the prosecutions could continue on technical grounds.
So, I argued for a new motion hearing to challenge the view that the prosecutions could continue on technical grounds. Specifically, I submited that insofar as the restrictions were merely guidelines, they should never have been used to issue investigation orders against the doctors as if they had committed acts of professional misconduct - failing to follow a guideline is not defined as professional misconduct under the Medicine Act

At Friday’s hearing, submissions from both sides lasted an entire afternoon. The exchange was heated at times. The College argued that it could use guidelines to establish standards of practice the violation of which would amount to professional misconduct. I submitted that Ontario’s Regulated Health Professions Act clearly states that the College can establish standards of practice only with the approval of Cabinet; and, since the College has never been successful in persuading Cabinet to approve standards of practice, the College’s argument must fail. Other finer points were advanced by the College along this line, but I believe I successfully rebutted them in my oral and written submissions. 
I expect to receive a decision in approximately three weeks. If I’m successful, almost all the evidence gathered under the faux investigation orders will have to be thrown out, and the prosecutions should come to an end. That result would also bring the prosecutions of dozens of other doctors to an end as well. And, overall, the College will no longer have the power to control how Covid-related health care is delivered to Ontario’s 14.5 million patients.
Michael Alexander, JD, LLM
Watch the Hearing Re-Play on YouTube
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