Ontario Doctors Critical of COVID Measures Will Take Case ‘All the Way to the Supreme Court,’ Says Lawyer

A health-care worker prepares a dose of the Pfizer-BioNTech COVID-19 vaccine at a vaccine clinic in Toronto on Jan. 7, 2021. (The Canadian Press/Nathan Denette)

When COVID-related public health orders were at their most stringent, many doctors questioned them or refused to comply with them. These doctors have since gone through months of disciplinary hearings and we’re now starting to see how their cases are decided.

How such cases play out in Ontario could influence how they play out across the country, says lawyer Michael Alexander.

He represents three Ontario doctors who have had their licences suspended over speaking publicly against COVID measures, among other alleged transgressions.

A disciplinary tribunal announced its decisions in two of those cases this month, for Dr. Crystal Luchkiw and Dr. Patrick Phillips. It also heard the final arguments in Dr. Mark Trozzi’s case on July 17.

“We’re leading the way here in Ontario,” Mr. Alexander told The Epoch Times. “I think that the fate of other doctors and other health care professionals in the country hangs on whether Dr. Luchkiw and Dr. Trozzi are successful.”

Dr. Phillips ultimately chose not to fight the allegations against him and instead resigned. “People who go through a long litigation process are under terrible pressure,” Mr. Alexander said. “It has ramifications in all aspects of their life.”

But with Dr. Trozzi in particular, Mr. Alexander said, he will take it all the way.

“We are committed to taking Dr. Trozzi’s case all the way to the Supreme Court if we have to,” he said. In this case, Mr. Alexander focused heavily on a doctor’s right to freedom of speech.

“What’s at stake here is not one doctor’s right to express himself on issues related to COVID,” he said. “The question is, are we going to allow state censorship in the country?”

He said the College of Physicians and Surgeons of Ontario (CPSO), the professional regulator accusing the doctors of professional misconduct, is essentially an extension of the state.

Mr. Alexander is also taking Dr. Luchkiw’s case further in the courts. He has already moved to appeal the tribunal’s decision.

Dr. Luchkiw

The Ontario Physicians and Surgeons Discipline Tribunal found, after listening to both the CPSO’s and Mr. Alexander’s arguments, that Dr. Luchkiw is guilty of professional misconduct.

Its July 6 decision does not, however, say she is guilty because of what she said or allegedly did contrary to COVID measures, but because she failed to cooperate with the CPSO’s investigation.

Throughout the several days of hearings on Dr. Luchkiw’s case, Mr. Alexander argued that she was not compelled to cooperate because the investigation order was invalid. He says the CPSO did not have “probable cause” in issuing it.

The CPSO and tribunal have both agreed that the CPSO’s COVID-related rules for doctors were “recommendations.” Mr. Alexander argued that recommendations don’t have the force of law and cannot be used to start an investigation into professional misconduct.

Elisabeth Widner, counsel for the CPSO, argued that a doctor has an obligation to cooperate with an investigation regardless of the perceived merit of the investigation order.

“It is completely untrue and inaccurate that the college is relying on guidance documents as if they had the force of law,” Ms. Widner said at the July 17 hearing on the Dr. Trozzi case, which also touched on this issue, though its primary focus was Mr. Alexander’s arguments with respect to free speech.

“The college takes the position, supported by the jurisprudence, that these are guidance documents and that they are appropriately relied on by its experts ... to inform the standard of practice,” she said.

The three recommendations the CPSO set out for doctors were: to not speak publicly against public health orders, to not issue vaccine exemptions except under rare circumstances, and to not prescribe alternative treatments for COVID-19.

Dr. Luchkiw spoke unfavourably of the health orders in a media interview, and she allegedly gave at least one vaccine exemption the CPSO questions.

Dr. Crystal Luchkiw of Barrie, Ont., is facing the potential loss of her license for her criticism of Ontario's COVID-19 public health measures. (Courtesy of Michael Alexander)

While the tribunal agreed with Ms. Widner that Dr. Luchkiw was compelled to cooperate with the investigation, Mr. Alexander said he will appeal this.

“The college, in my opinion, still refuses to deal with our arguments that it never had reasonable and probable grounds to conduct an investigation,” he said.

“The college has admitted that they are just ’recommendations.' But for some reason, the college adjudicators and hearing panels will not take the next logical step and conclude that you can’t prosecute somebody for not following the recommendations.”

In late August or early September, the tribunal will have a penalty hearing for Dr. Luchkiw. Mr. Alexander expects the CPSO might argue for a continued suspension or revocation of her license.

In Dr. Phillips’ case, Mr. Alexander bargained for a revocation rather than a cancellation of his license. This means Dr. Phillips may in future apply to have his license reinstated, particularly if the Dr. Luchkiw and Dr. Trozzi cases result in favourable rulings.

In the meantime, Mr. Alexander said Dr. Phillips is doing fine, noting he has had multiple job offers in the health-care industry.

“I’m quite confident that he’s going to survive and prosper,” he said.

Dr. Trozzi

Dr. Trozzi made many public statements against the public health orders on Twitter and elsewhere. One of the most contentious statements was his comparison of doctors who encouraged COVID vaccination with Nazi doctors who performed unethical experiments on human test subjects.

“No doubt you will find postings, articles, and videos from Dr. Trozzi that you will find offensive, angering, discomfiting, and inflammatory,” Mr. Alexander said at a hearing on Dr. Trozzi’s case on June 13. “However, that is not a reason to censor Dr. Trozzi.”

Mr. Alexander said all opinions—including “offensive” opinions or minority ones—are protected by the charter.

“The Charter does not prohibit offensive expression for one fundamental reason: It isn’t possible to separate speech that is intended only to offend from speech that offends because it strikes at the truth,” Mr. Alexander said.

The CPSO also questioned vaccine exemptions issued by Dr. Trozzi. Ms. Widner called on an expert witness, Dr. Aaron Orkin, to testify that the exemptions were inappropriate.

In Mr. Alexander’s final arguments on July 17, he said the CPSO’s rules on COVID measures violated the principle of informed consent. A physician must be allowed to give an honest, thorough assessment of a patient and discuss the best treatment options according to his or her medical opinion, he said.

“By attempting to regulate a physician’s expression, the college has interfered with a physician’s fiduciary duty and has placed the physician in an untenable position where he or she may be prevented from providing advice consistent with the dictum of ‘do no harm.’”

Ms. Widner has argued that the CPSO is within its legal right to limit doctors’ freedoms to fulfill its duty of protecting the public and regulating the profession. She said health care professionals have no legal “right” to practice medicine, that it is a privilege.