The College of Physicians and Surgeons of Ontario (CPSO) is the regulatory body for the medical profession in Ontario. Its mandate, set out in the Regulated Health Professions Act, 1991, is the protection of the public. To carry out that mandate, the CPSO must be able to investigate the conduct and practice of physicians. Where a physician refuses to cooperate with that investigation, the refusal itself becomes professional misconduct, regardless of the merits of the underlying complaint.
College of Physicians and Surgeons of Ontario v Luchkiw, 2023 ONPSDT 14, is a clear illustration of this principle. The Ontario Physicians and Surgeons Discipline Tribunal found Dr. Crystal Luchkiw, a family physician practising in the Barrie area, guilty of professional misconduct for refusing to cooperate with multiple CPSO investigations into her practice during the COVID-19 pandemic. The decision did not adjudicate the merits of those underlying complaints. It dealt only with the question of whether the refusal to cooperate was itself misconduct. The Tribunal held that it was.
A subsequent penalty decision, 2024 ONPSDT 4, imposed a six-month suspension and $28,370 in costs.
The CPSO’s investigative powers
The CPSO’s investigative powers flow from the Health Professions Procedural Code, a schedule to the Regulated Health Professions Act, 1991. The Registrar can appoint investigators to inquire into a physician’s practice in defined circumstances, and the investigators have authority to enter the practice premises, examine records, and require production of relevant documents. The Code makes it an offence to obstruct an investigator.
In addition to the formal investigative powers, the CPSO has authority through its committees, including the Inquiries, Complaints and Reports Committee (ICRC), to take various interim measures pending the completion of investigations. The ICRC can place terms, conditions, or limitations on a physician’s certificate of registration, and in serious cases can impose interim suspensions where there are reasonable grounds to believe the physician’s conduct exposes patients to risk.
The framework rests on a baseline assumption: physicians, having accepted the privilege of practising medicine in a regulated profession, will cooperate with the regulatory body. Where they do not, the framework cannot operate.
The facts
The CPSO’s interest in Dr. Luchkiw’s practice arose from multiple sources in the autumn of 2021.
In September 2021, the Simcoe Muskoka District Health Unit wrote to the CPSO requesting an investigation into Dr. Luchkiw’s infection prevention and control (IPAC) practices. On the same day, a member of the public emailed the CPSO with concerns about an online video interview in which Dr. Luchkiw discussed COVID-19 in terms that the complainant considered to constitute medical misinformation, including statements that the pandemic was being exaggerated and that the vaccines were inadequately researched.
On November 29, 2021, a CPSO investigator and nurse inspector attended Dr. Luchkiw’s office to notify her of the investigation and to conduct a review of her practice. They were refused access.
A second basis for CPSO involvement emerged shortly afterwards. The Royal Victoria Regional Health Centre wrote to the CPSO advising that Dr. Luchkiw had recently resigned her hospital privileges while it had been investigating her in connection with: (i) an interview in which she had given inaccurate information about the pandemic, and (ii) a COVID-19 vaccine exemption that the hospital had reason to believe she had issued to an immunocompromised patient. The CPSO wrote to Dr. Luchkiw requesting access to relevant patient records. She refused to produce them.
On February 22, 2022, the ICRC issued an interim order under section 25.4 of the Code prohibiting Dr. Luchkiw from issuing further COVID-19 vaccine exemptions. Dr. Luchkiw applied to the Divisional Court for judicial review of the order. The Divisional Court dismissed the application in Luchkiw v College of Physicians and Surgeons of Ontario, 2022 ONSC 5738, finding the order reasonable on the evidence before the Committee. The Court observed that the failure to cooperate, taken with the evidence of practice deficiencies, supported a conclusion that Dr. Luchkiw was “ungovernable” for regulatory purposes.
The OPSDT decision
The misconduct hearing before the OPSDT proceeded in May 2023. Dr. Luchkiw’s defence to the charges was framed in legal terms. She argued that the CPSO lacked statutory authority to regulate medical exemptions from COVID-19 vaccines, that the investigation orders themselves were defective, and that the Charter protected her freedom of expression and the freedom of her patients to make informed medical decisions.
The Tribunal’s response, on July 6, 2023, was that those arguments did not bear on the question before it. The question was whether refusing to cooperate with the CPSO’s investigation was itself professional misconduct. The Tribunal held that it was, regardless of any defences the physician might have on the merits of the underlying complaints.
The key passage of the reasons, at paragraph 19:
Regulated health professionals have no common law, proprietary or constitutional right to practise medicine. A certificate of registration from a regulated health profession is a privilege, conferred by statute, where the member establishes that they possess the necessary qualifications, and undertakes to abide by the governing regime. The Tribunal has described the duty to cooperate as “an essential tool for the College to fulfill its primary objective of protecting the public interest.”
The Tribunal cited College of Physicians and Surgeons of Ontario v Chandra, 2018 ONCPSD 28, as authority for the duty-to-cooperate framework.
Three findings of professional misconduct were entered: contravening a term, condition, or limitation on the certificate of registration; failing to respond appropriately or within a reasonable time to a written inquiry from the CPSO; and engaging in conduct that members of the profession would reasonably regard as disgraceful, dishonourable, or unprofessional.
The penalty decision
The OPSDT issued its penalty decision on November 28, 2023, with reasons released as 2024 ONPSDT 4. The penalty included:
- A six-month suspension of Dr. Luchkiw’s certificate of registration commencing January 27, 2024
- Continuing suspension beyond the initial six months until Dr. Luchkiw provided the required information and documents to the College’s satisfaction
- A contingent order for revocation of the certificate of registration if six months passed beyond the initial suspension period without compliance
- Terms, conditions, and limitations on the certificate of registration
- Costs to the CPSO of $28,370 by February 26, 2024
- A reprimand, delivered on March 25, 2024
The contingent revocation provision is notable. It makes clear that the duty to cooperate does not end with the misconduct finding. A physician who continues to refuse to cooperate after a misconduct finding faces the loss of registration entirely. The penalty was structured to give Dr. Luchkiw the opportunity to come into compliance after the suspension and avoid revocation, while making clear that continued non-cooperation would result in revocation.
The doctrinal context
Luchkiw is part of a body of CPSO discipline jurisprudence developed during and after the COVID-19 pandemic. Several Ontario physicians faced discipline for various forms of conduct related to the pandemic, including the issuance of vaccine exemptions, public communications about COVID-19, and infection prevention practices. The CPSO’s investigations and the OPSDT’s decisions have addressed these on the merits in some cases, and in others (including Luchkiw and the parallel case of Trozzi) have decided the matter primarily on duty-to-cooperate grounds where the physician refused to engage with the regulatory process.
The duty-to-cooperate framework is doctrinally important well beyond the pandemic context. It establishes that:
- Practising medicine in Ontario is a privilege conferred by statute, not a right, and the privilege carries with it the obligation to engage with the regulator
- Defences to the merits of an underlying complaint can be raised within the regulatory process, including through judicial review of specific orders. They do not justify refusing to engage with the process
- Refusing to cooperate is itself professional misconduct that can support discipline up to and including revocation of the certificate of registration
For physicians who disagree with a CPSO investigation, the available course is to engage with the process and raise the disagreement through that engagement. Refusing to engage, on whatever theory, is a separate and independent professional misconduct.
The companion case
The Luchkiw case proceeded in parallel with College of Physicians and Surgeons of Ontario v Trozzi, 2024 ONPSDT 2, in which a different physician faced discipline for COVID-related conduct on a different factual record. The Trozzi penalty was significantly more severe: permanent revocation of the certificate of registration and $94,960 in costs. The Tribunal found Dr. Trozzi “ungovernable” based on the totality of his conduct, including statements made during the proceedings indicating his intention to continue the conduct that had led to the discipline. For an overview of both penalty decisions, see CPSO v Trozzi, Luchkiw: Two Penalty Decisions from COVID-19.
Why this case matters
For patients. Luchkiw is an example of how the regulatory framework operates when a physician resists investigation. The case is a useful illustration of the CPSO’s authority and willingness to pursue physicians who refuse to engage with the regulatory process, separate from the merits of any underlying clinical concern. Patients with concerns about a physician’s practice can raise those concerns directly with the CPSO; the regulatory framework is designed to follow up regardless of how willingly the physician engages.
For physicians. The duty to cooperate with the CPSO is a foundational element of regulated practice in Ontario. Whatever views a physician may hold about the merits of a particular investigation, the response is to engage with the process and raise those views within it. Refusing to cooperate is not a viable strategy. It is itself misconduct, and the regulatory framework is structured so that continued non-cooperation can lead to the loss of registration entirely.
For lawyers advising regulated health professionals. Luchkiw and Chandra establish a clear framework: defences on the merits of an underlying complaint, however well-founded, do not justify refusing to cooperate with the College’s investigative process. Counsel advising a physician under investigation should be careful to distinguish between (i) raising legal arguments within the regulatory process and through judicial review of specific orders, and (ii) refusing to engage with the process entirely. The first is a legitimate strategy. The second is independent professional misconduct that compounds the regulatory exposure.
For more on how the CPSO complaints process works from a patient perspective, see Should I File a CPSO Complaint Against My Doctor? For another recent CPSO case engaging the duty-to-cooperate framework alongside boundary-related misconduct, see CPSO v Stein: A Boundary Violation and an Attempted Cover-Up. For the broader landscape of complaints and reviews available to Ontario patients, see A Patient’s Guide to Making Complaints About Health Care in Ontario.
