When the College of Physicians and Surgeons of Ontario (the “CPSO”) opens an investigation into a registered physician, its investigators have statutory authority to demand the records that bear on the investigation, and the physician has a corresponding duty to cooperate and produce them. The framework is straightforward in principle. Two physicians who refused to produce records during the COVID-19 era found out how robustly it operates in practice.
College of Physicians and Surgeons of Ontario v Kilian, 2024 ONPSDT 23, was a joint preliminary motion decided by the Ontario Physicians and Surgeons Discipline Tribunal (the “OPSDT”). Dr Rochagné Kilian and Dr Sonja Sophia Kustka each moved to resist the CPSO’s demands for patient records, arguing among other things that the demands breached the protection against unreasonable search and seizure in section 8 of the Canadian Charter of Rights and Freedoms. The Tribunal dismissed the motions. The reasoning, distilled, is that a physician has no reasonable expectation of privacy in records that belong, as a matter of personal health information law, to the patient. The privacy interest runs to the patient as the data subject, not to the physician as the custodian, so section 8 does not shield the physician from producing the records to the regulator.
The decision matters for a few reasons. It states the custodian-subject distinction that underlies the Personal Health Information Protection Act, 2004 with unusual clarity. It applies the section 8 reasonable-expectation-of-privacy framework to a regulatory production demand and explains why the physician lacks standing to invoke it against a demand for the patient’s records. And it forms part of a now-substantial body of COVID-era discipline jurisprudence, including the Trozzi and Luchkiw matters, sitting at the front of a procedural arc that has since produced findings of professional misconduct and substantial penalties for both physicians.
This comment covers the regulatory framework behind the investigation, the PHIPA custodian-subject distinction that defeated the section 8 argument, the “ungovernable physician” reasoning that has emerged from the COVID-era cases, the factual background for each physician, the procedural history through October 2025, and the lessons that emerge from the case as a whole.
The regulatory framework
Physician discipline in Ontario is governed by the Regulated Health Professions Act, 1991 (the “RHPA”) and its accompanying Health Professions Procedural Code (the “HPPC”), set out as Schedule 2 to the RHPA. The framework operates as follows.
The College of Physicians and Surgeons of Ontario. The CPSO is the self-regulating body for physicians in Ontario. It is established under the Medicine Act, 1991 and operates under the RHPA. Its core public-protection functions include registration, complaints handling, investigations, and discipline, and it is governed by a Council of physicians and public members.
The Inquiries, Complaints and Reports Committee (the “ICRC”). This is the statutory committee that handles complaints and investigations at the front end. Under sections 25 to 26 of the HPPC, the ICRC can investigate, take no action, caution the member, refer the matter to the discipline tribunal, or take various intermediate steps. Under section 25.4, it can impose interim orders restricting practice during an investigation where it forms the opinion that the member’s conduct exposes or is likely to expose patients to harm.
The Ontario Physicians and Surgeons Discipline Tribunal (the “OPSDT”). Formerly the Discipline Committee, the OPSDT is the independent tribunal that adjudicates allegations of professional misconduct or incompetence referred by the ICRC. It has its own panels, hearing procedures, and reasons practice, and its decisions can be appealed to the Divisional Court.
The investigative power under section 76 of the HPPC. When the CPSO opens an investigation, the Registrar may appoint an investigator under section 75. Section 76 authorizes that investigator to enter the member’s place of practice, examine records, and demand production of records relevant to the investigation, with a corresponding duty on the member to cooperate. A failure to cooperate is itself professional misconduct under the HPPC and the Professional Misconduct Regulation made under the Medicine Act, 1991.
The section 87 application. Where a member refuses to comply with a demand, the CPSO can apply to the Superior Court of Justice under section 87 for an order compelling compliance. The scope of that application is narrow: the court considers whether the request falls within the investigator’s regulatory powers. Constitutional arguments and challenges to the legitimacy of the investigation generally belong before the discipline tribunal first, not before the court on a section 87 application. The Court of Appeal confirmed that scope in Kilian v College of Physicians and Surgeons of Ontario, 2024 ONCA 52.
The duty of cooperation as the anchor. The duty of cooperation runs through the whole framework. The CPSO’s authority to investigate is the mechanism that protects the public from unfit practitioners, and the duty of cooperation is what makes that mechanism work. A physician who refuses to cooperate impairs the regulatory function and exposes the public to risk, which is why the legislature built the duty into the statute with sanctions for non-compliance.
The PHIPA custodian-subject distinction
The centrepiece of the Kilian ruling is the custodian-subject distinction under the Personal Health Information Protection Act, 2004, SO 2004, c 3, Sched A. That distinction is foundational to PHIPA and to Canadian personal health information law more broadly.
Personal health information. PHIPA defines personal health information broadly, to include identifying information about an individual, in oral or recorded form, that relates to physical or mental health, family medical history, the provision of or payment for health care, or the donation of body parts, substances, or organs.
The custodian. A health information custodian is defined under section 3 of PHIPA. The category includes physicians, dentists, midwives, hospitals, long-term care homes, pharmacies, and laboratories, among others. The custodian is the entity that holds personal health information for the purpose of providing health care or related functions. A physician in clinical practice is the custodian of the personal health information of his or her patients.
The subject, meaning the patient. The individual whose personal health information is collected, used, or disclosed is the data subject. The subject holds substantive rights under PHIPA, including the right to access his or her own information, to request correction of inaccuracies, to withdraw consent in defined circumstances, and to complain to the Information and Privacy Commissioner.
The privacy interest belongs to the subject, not the custodian. This is the core of the analysis. The privacy interest that Canadian law protects in personal health information runs to the patient. The custodian holds the information in trust, subject to its own obligations and the patient’s rights, but has no privacy interest of its own in that information.
Section 8 of the Charter requires a reasonable expectation of privacy before its protection is engaged. Where the privacy interest belongs to the patient, the physician cannot assert an expectation of privacy of his or her own in the records. They are not the physician’s personal information. The physician holds them as custodian, and that interest is functional and professional rather than personal. Section 8 does not protect the custodian against a regulatory demand for the subject’s records.
The framework parallels other custodian relationships. A bank has no section 8 interest in a customer’s account records when a regulator subpoenas them. A lawyer has no section 8 interest in client documents, although the client has solicitor-client privilege, which operates as a separate protection. The custodian-subject distinction is not novel; Kilian applies it cleanly in the regulated health professions context.
The patient’s privacy is preserved through other mechanisms. A skeptical reader might ask what protects the patient once the investigator obtains the records, if the patient holds the privacy interest. Several mechanisms operate together:
- The investigative purpose is defined by statute. Sections 75 and 76 of the HPPC confine the investigator’s authority to the purposes of the investigation.
- The CPSO is itself bound by PHIPA. As a body that handles personal health information in the course of regulating the profession, it has its own custodial obligations.
- The records stay within the regulatory process. They are not disclosed publicly unless they form part of a discipline hearing record, and discipline hearings have their own publication and anonymization rules.
- The Information and Privacy Commissioner has oversight. A patient can complain to the Commissioner about the handling of his or her personal health information.
The patient’s privacy interest is therefore protected by a network of statutory and oversight mechanisms. A physician’s invocation of that interest as a shield against cooperation is, in this framework, an attempt to wield someone else’s right. The patient’s right is not the physician’s to assert against the regulator.
Charter section 8 in regulatory investigations
The section 8 framework was developed substantially by the Supreme Court of Canada in Hunter v Southam Inc, [1984] 2 SCR 145, and has been applied in many contexts since. It requires two things:
- Standing. The person invoking section 8 must have a reasonable expectation of privacy in the place or thing searched.
- Reasonableness. Even where section 8 is engaged, a search may be reasonable if it is authorized by law, the law itself is reasonable, and the manner of the search is reasonable.
Where the records sought are those of a regulated professional’s practice, the general line of authority holds that:
- Regulatory inspection of professional business records is typically not protected under section 8 to the same extent as a criminal search of personal information. Regulated professionals operate under a reduced expectation of privacy in their practice records, because regulation is both foreseeable and necessary.
- The subject’s privacy interest in personal health information is separately protected by PHIPA and other instruments, but is not engaged by a regulator’s request to the custodian within the scope of its mandate.
- A professional’s claim to a privacy interest in patient records as if they were the professional’s own information has been consistently rejected.
The Kilian ruling applies these principles to a CPSO investigation. The records are not the physician’s personal information, the physician has no reasonable expectation of privacy in them, and section 8 is not engaged. The motion fails at the standing threshold, without any need to reach the reasonableness analysis.
The decision also addressed the other constitutional arguments the physicians raised:
- Challenges to the appointment of investigators. The appointments were within the statutory framework, and the challenge failed.
- Application of CPSO policies. The policies were lawful and within scope, and the challenge failed.
- Freedom of expression under section 2(b). The misconduct framework can engage freedom of expression where the conduct alleged includes professional speech, but it is calibrated to balance protection of the public against expression, and the OPSDT was not the forum to decide the constitutional validity of the framework as a whole.
- Constitutionality of vaccine mandates. The mandates were not before the Tribunal and were outside its jurisdiction to consider on a production motion in a discipline proceeding.
The Tribunal addressed and rejected each argument. The cumulative effect was to confirm that the production demands were lawful, the refusal to comply was unjustified, and the proceedings could move to the merits.
The factual background
The motion proceeded against a substantial factual background for each physician. Although the motion itself was procedural, the conduct that triggered the investigations is part of the public record and bears on the significance of the case.
Dr Rochagné Kilian. Dr Kilian was a family physician and emergency medicine practitioner based in Owen Sound, registered with the CPSO since 2016. She resigned from her emergency position at Grey Bruce Health Services in August 2021. The following month, two members of the public sent the CPSO copies of COVID-19 vaccine exemptions she had signed. The exemption documents did not explain a medical basis for the exemption, claimed to rely on authorities including the Canadian Constitution and the Nuremberg Code, stated that the exemption rested on conditions that would be “ongoing for a minimum of ten year(s)”, and included an option for a mask exemption.
The CPSO also received information about her public comments on COVID-19 vaccines and mandates, including her appearances as a speaker at rallies opposing public health measures.
In October 2021, the ICRC made an interim order, without notice, prohibiting Dr Kilian from providing exemptions for vaccines, masks, or testing. It found that her conduct exposed or was likely to expose patients to harm and that urgent intervention was required, reasoning that patients would rely on the exemptions to enter higher-risk settings without the protection of vaccination. It further concluded that the exemptions appeared to be issued for ideological rather than medical reasons, that the recipients were not otherwise her patients, and that they were charged fees far exceeding a reasonable medical-note fee.
After that order, the CPSO learned that Dr Kilian had continued to issue exemptions through an organization known as White Knight Medical and a website called Enable Air. It characterized the Enable Air documents as “legal declarations of noncompliance” and noted the website’s representation that a physician’s rejection of an application was “next to impossible”. On October 27, 2021, her licence was suspended under a further ICRC interim order.
Dr Sonja Sophia Kustka. The CPSO received complaints about Dr Kustka in November and December 2021. The first came from a Girl Guide leader who had received mask exemptions written by Dr Kustka for two sisters, and who reported that neither sister had a medical condition and that they did not live near the physician’s office. The second related to Dr Kustka’s alleged use of ivermectin to treat her late mother, who had had COVID-19. The CPSO opened an investigation, and Dr Kustka, like Dr Kilian, refused to produce records on jurisdictional and constitutional grounds.
The joint motion. Both physicians were represented by the same counsel and brought their motions together. The motions were heard by the OPSDT on August 13, 2024, and the joint reasons were released on October 16, 2024 as College of Physicians and Surgeons of Ontario v Kilian, 2024 ONPSDT 23.
The “ungovernable physician” framework
A significant development in the COVID-era cases is what is sometimes called the “ungovernable physician” framework. On this reasoning, a physician who refuses to engage with the regulatory process, by refusing to produce records, attend interviews, or acknowledge the regulator’s jurisdiction, commits professional misconduct on that basis alone, independent of any finding about clinical conduct.
The reasoning is grounded in the structure of self-regulation. The regulated health professions operate under a framework in which the College has the authority and the obligation to police the profession in the public interest, and that framework depends on member cooperation. A physician who systematically refuses to cooperate makes it non-functional in respect of his or her practice, and that refusal is itself a serious fault, separate from whatever clinical conduct may also be in issue.
The reasoning has been applied in several matters. In the penalty decisions in Trozzi and Luchkiw, the COVID-era proceedings produced a revocation for Dr Mark Trozzi and a substantial penalty for Dr Crystal Luchkiw, with the Tribunal treating refusal to engage with the regulator as capable of supporting the most serious sanction even where the clinical findings alone might have warranted less. For Dr Kilian and Dr Kustka, the subsequent outcomes rested substantially on the failure-to-cooperate findings rather than on a detailed adjudication of the underlying clinical conduct, which simplified the proceedings considerably.
The reasoning parallels the least-restrictive-order principle in the interim order context. In Kilian v College of Physicians and Surgeons of Ontario, 2025 ONSC 2829, the Superior Court confirmed that an interim order under section 25.4 of the HPPC must be the least restrictive that adequately protects the public, but that suspension can be the least restrictive option available where the registrant refuses to cooperate. Where lesser orders depend on the registrant’s compliance and the registrant has refused, suspension is the operationally available least-restrictive choice.
Taken together, the cases send a clear message to the regulated professions. The duty of cooperation is foundational, and refusing to engage with the regulatory process tends to produce consequences more severe than the underlying conduct would otherwise have warranted. The structural integrity of self-regulation is not negotiable.
The procedural arc through October 2025
The October 2024 motion ruling was not the end of the story, and the later history is instructive in its own right.
The Court of Appeal, Kilian v CPSO, 2024 ONCA 52. The Court addressed the scope of the section 87 framework. Dr Kilian had argued that the CPSO first had to prove the legality of the underlying investigation before a court could compel production. The Court held that a section 87 application is narrow: the court considers whether the investigator’s request falls within the investigator’s regulatory powers, while constitutional arguments and challenges to the legitimacy of the investigation are for the discipline tribunal at first instance, with judicial review available once the administrative process is complete. The attempt to litigate the merits of the investigation at the section 87 stage was rejected.
The OPSDT motion ruling, 2024 ONPSDT 23 (October 16, 2024). The decision under discussion. Both motions to resist production were dismissed. The reasons addressed section 8, the PHIPA custodian-subject distinction, the investigator-appointment challenges, freedom of expression, and the constitutionality of vaccine mandates, and rejected each.
The merits hearing for Dr Kustka (March 5, 2025). The OPSDT found that Dr Kustka engaged in disgraceful, dishonourable, or unprofessional conduct, failed to respond appropriately or within a reasonable time to a written inquiry from the CPSO, and contravened a term, condition, or limitation on her certificate of registration.
The merits hearing for Dr Kilian (January 22 to 23, 2025; reasons May 2, 2025). The OPSDT found that Dr Kilian engaged in professional misconduct by failing to respond appropriately or within a reasonable time to a written inquiry, failed to cooperate with the investigation, and engaged in conduct that was disgraceful, dishonourable, or unprofessional.
The penalty decisions. The penalty decision for Dr Kustka was released on June 17, 2025. For Dr Kilian, the penalty hearing was held on August 15, 2025, and the decision was released on October 22, 2025, imposing a 12-month suspension commencing at 12:01 a.m. on October 23, 2025, mandatory completion of the PROBE Ethics and Boundaries program offered by the Centre for Personalized Education for Professionals at her own expense, and further terms, conditions, and limitations on her certificate of registration.
The interim order litigation, 2025 ONSC 2829. A parallel branch of the litigation concerned the appropriateness of the interim order that maintained the suspension of Dr Kilian’s licence during the discipline process. The Superior Court addressed the threshold evidence required to establish patient harm under section 25.4 of the HPPC and confirmed that the protective purpose of interim orders supports a continued suspension where less restrictive measures are not operationally viable.
The arc as a whole, from October 2021 to October 2025, spans four years. The original ICRC interim order in October 2021 effectively ended Dr Kilian’s clinical practice, and every subsequent step confirmed that consequence and added further regulatory dispositions. The 2024 ONPSDT 23 motion ruling was a critical milestone, but the final dispositions came in 2025.
Doctrinal lessons
Taken as a whole, the Kilian matter stands for several propositions.
Physicians hold patient records as custodians, not owners. The PHIPA framework establishes the custodian-subject distinction. The patient is the subject and holds the privacy interest. The physician is the custodian, with functional and professional access to the records but no personal ownership of them and no personal privacy interest in them.
Section 8 does not shield custodians from regulatory demands within the regulator’s scope. Where the privacy interest belongs to the subject, the custodian lacks standing under section 8 and cannot invoke the patient’s privacy interest as a shield against legitimate inquiry. That interest is protected instead through the other mechanisms built into the regulatory framework.
The duty of cooperation under section 76 of the HPPC is foundational. Failure to cooperate is itself professional misconduct, sanctionable separately from any clinical finding, because the regulatory framework cannot function without it.
Constitutional arguments about a regulatory framework belong before the discipline tribunal first. The Court of Appeal in Kilian v CPSO, 2024 ONCA 52, confirmed that the section 87 application is narrow and that broader constitutional challenges are properly raised before the tribunal, with judicial review to follow once the administrative process concludes.
The “ungovernable physician” reasoning is now well established. A pattern of refusal to engage with the regulator can support findings of professional misconduct and substantial penalties, including revocation in the most serious cases, on the cooperation failures alone.
Interim orders must be the least restrictive that adequately protects the public, yet suspension is available where the registrant refuses to cooperate. The principle preserves proportionality while recognizing that cooperation is a precondition for less restrictive alternatives.
Contested discipline matters tend to run for years. The Kilian arc ran from October 2021 to October 2025, and interim orders frequently operate throughout the entire period as the effective regulatory response.
Why this case matters
For physicians. The framework requires cooperation. Constitutional and jurisdictional arguments are available, but they must be brought through the proper forum, the discipline tribunal at first instance and judicial review afterward, and they do not provide a defence to refusing production during the investigation. The cost of refusal can substantially exceed the cost of compliance, even where the conduct under investigation might have drawn a lesser sanction on its own.
For patients. Personal health information is protected by PHIPA, not by a physician’s invocation of section 8. A patient’s rights of access, correction, and complaint are independent of any disciplinary process and operate through the Information and Privacy Commissioner. Records produced in a CPSO investigation remain governed by the statutory framework for regulatory use, which is not a licence for public disclosure of clinical information.
For regulatory practice. The case provides a clean Ontario authority on the custodian-subject distinction in the section 8 context, and it is likely to be cited where members raise privacy or constitutional objections to production demands. Together with the other COVID-era cases, it offers a reasonably comprehensive reference for the “ungovernable physician” reasoning.
For other regulated professions. The framework is not specific to physicians. The same architecture governs the other regulated health professions in Ontario under the RHPA, and the custodian-subject distinction, the duty of cooperation, the section 87 framework, and the ungovernable-professional reasoning all translate. The case has implications for nurses, dentists, pharmacists, midwives, and others.
For patients considering a complaint. If you are thinking about bringing a complaint to the CPSO about a physician, the framework above describes the steps the College will take. For practical guidance on the process, including which body to approach for which kind of issue, see A Patient’s Guide to Making Complaints About Health Care in Ontario and Should I File a CPSO Complaint Against My Doctor?
Related reading
- The COVID-era penalty decisions in Trozzi and Luchkiw, discussed above, where refusal to cooperate supported revocation and a substantial penalty.
- CPSO v Mercado: unauthorized access to patient records, on the PHIPA framework in a different setting.
- Martin v HPARB: physician access to hospital records, on PHIPA in a regulatory context.
Decision date: October 16, 2024 (OPSDT motion ruling). Subsequent merits findings: March 5, 2025 (Kustka); May 2, 2025 (Kilian). Penalty decisions: June 17, 2025 (Kustka); October 22, 2025 (Kilian, 12-month suspension).
Jurisdiction: Ontario Physicians and Surgeons Discipline Tribunal.
Principal citation: College of Physicians and Surgeons of Ontario v Kilian, 2024 ONPSDT 23 (CanLII)
Related citations: Kilian v College of Physicians and Surgeons of Ontario, 2024 ONCA 52 (the section 87 framework); Kilian v College of Physicians and Surgeons of Ontario, 2025 ONSC 2829 (the interim order patient-harm framework).
Outcome: The joint motion of Dr Kilian and Dr Kustka to resist production of patient records was dismissed. The OPSDT held that physicians have no section 8 privacy interest in their patients’ records, because the patients hold that interest as PHIPA subjects, not the physicians as custodians. The other constitutional arguments were rejected. Subsequent merits hearings produced professional misconduct findings against both physicians, and the penalty decisions imposed substantial consequences, including a 12-month suspension for Dr Kilian commencing October 23, 2025.
Key authorities: Hunter v Southam Inc, [1984] 2 SCR 145 (section 8 framework); Personal Health Information Protection Act, 2004, SO 2004, c 3, Sched A; Regulated Health Professions Act, 1991, SO 1991, c 18; Health Professions Procedural Code, ss 25.4, 75 to 76, 87; Kilian v College of Physicians and Surgeons of Ontario, 2024 ONCA 52; Canadian Charter of Rights and Freedoms, s 8.
