The CPSO can discipline a member on two distinct statutory bases. Section 51 of the Health Professions Procedural Code addresses professional misconduct (including conduct that would reasonably be regarded by other members of the profession as disgraceful, dishonourable, or unprofessional, and failure to maintain the standard of practice). Section 52 addresses incompetence (where the member’s professional care displays a lack of knowledge, skill, or judgment to an extent that demonstrates that the member is unfit to continue to practise without restriction). The two bases can operate together, and a finding on both is more serious than a finding on either alone.
College of Physicians and Surgeons of Ontario v Trozzi, 2023 ONPSDT 22, is the leading recent example in the rewritten cluster. The Ontario Physicians and Surgeons Discipline Tribunal found a Northern Ontario emergency physician guilty of professional misconduct on three grounds (disgraceful, dishonourable, and unprofessional conduct; failure to maintain the standard of practice; and failure to respond appropriately to a CPSO written inquiry) and found him incompetent under s. 52(1). The dual finding makes the case the most doctrinally significant of the COVID-19 misinformation discipline decisions in the case-comment cluster.
The case is a companion to CPSO v Phillips, which addressed online misinformation and witness intimidation in the COVID context. Trozzi goes further: it engages the Charter‘s freedom of expression analysis explicitly, applies the Doré framework for Charter-implicating administrative decisions, and produces both a misconduct and an incompetence finding on a comprehensive record.
The respondent and the statements
Dr. Mark Trozzi is a Northern Ontario emergency physician who, between January 2021 and January 2023, used his publicly accessible website and various media interviews to make sustained statements about the COVID-19 pandemic and public health measures. The statements were the subject of the misconduct allegation. Representative examples included:
- That the pandemic was “a scam, the result of a premeditated global conspiracy perpetrated by special interests to pursue eugenics and genocide”
- That COVID-19 vaccines are “not vaccines” but rather “dangerous genetic injections with additional undisclosed mystery ingredients” that “qualify as ‘bio-weapons'”
- That COVID-19 vaccines are “particularly deadly to children”
The CPSO investigated and brought disciplinary proceedings. The hearing proceeded before the OPSDT in 2023.
The expert evidence framework
The CPSO called three expert witnesses to address the medical and public health questions: an academic family physician with subspecialty training in public health and emergency medicine, a long-experienced Ontario infectious diseases specialist, and a national authority on vaccinology and the public health impact of misinformation. The OPSDT accepted all three as qualified to give the opinion evidence proposed.
Dr. Trozzi sought to call two expert witnesses of his own. Both were the subject of qualification rulings under the White Burgess Langille Inman v Abbott and Haliburton Co, 2015 SCC 23, framework that governs expert evidence admissibility in Ontario. One proposed expert (whose evidence was to address the adequacy of the Pfizer clinical trial data) was ruled not properly qualified to give the opinion evidence proposed and was disqualified entirely. The second proposed expert was permitted to give evidence within the bounds of his written report on specified questions, but not beyond. The expert qualification framework had a direct effect on what evidence Dr. Trozzi could put before the tribunal in his defence.
The misconduct findings
The OPSDT found three components of professional misconduct.
Disgraceful, dishonourable, or unprofessional conduct. This is the broad category under the misconduct regulation that captures conduct the profession would not accept. The tribunal concluded at paragraphs 119 to 120:
In sum, the member promoted non-scientific and baseless conspiracy theories about COVID-19, cast doubt on the motives of public health officials around preventative measures and discouraged adherence with public health interventions. A finding that his conduct was disgraceful, dishonourable and unprofessional would protect the public interest in the context of the pandemic, where misinformation has been shown to cause actual harm to the public.
Based on these same circumstances, a finding that the member’s conduct failed to meet the standard of practice of the profession also advances the statutory objective of protecting the public from harmful misinformation during the pandemic.
Failure to maintain the standard of practice. The standard of practice in the COVID context includes not promoting non-scientific and baseless theories that undermine public health interventions. Dr. Trozzi’s communications fell below that standard.
Failure to respond appropriately to a written CPSO inquiry. This is a discrete component of misconduct under the misconduct regulation, distinct from the substantive misconduct concerning the statements themselves. A member is required to respond appropriately and within a reasonable time to a written inquiry from the CPSO. Dr. Trozzi did not.
The incompetence finding
Separately, the OPSDT found Dr. Trozzi incompetent within the meaning of s. 52(1) of the Health Professions Procedural Code. Incompetence is defined as the display, in the member’s professional care of a patient, of a lack of knowledge, skill, or judgment of a nature or to an extent that demonstrates that the member is unfit to continue to practise or that his or her practice should be restricted.
The incompetence framework is distinct from the misconduct framework. Misconduct addresses what the member did. Incompetence addresses what the member is capable of doing. A member can be guilty of misconduct without being incompetent (a one-time lapse in an otherwise capable practice), and can be incompetent without being guilty of misconduct (a sustained inability to meet professional standards that has not yet manifested in identifiable misconduct). The two findings together are particularly serious because the regulator has concluded both that the member did things they should not have done and that the member is not fit to continue practising without restriction.
In Trozzi, the incompetence finding was supported by the sustained nature of the misinformation, the absence of any insight into the problem with the conduct, and the implications for clinical practice. A physician who genuinely believes that COVID-19 vaccines are “bio-weapons” cannot be expected to provide appropriate clinical advice to patients about vaccination, and the implications extend beyond the public communications at issue in the misconduct portion of the case.
The Charter analysis
Dr. Trozzi argued that the discipline proceedings infringed his rights under section 2(b) of the Canadian Charter of Rights and Freedoms (freedom of expression). The OPSDT rejected the argument.
The framework for Charter analysis in administrative decision-making is set out in Doré v Barreau du Québec, 2012 SCC 12. Where an administrative decision engages a Charter right, the decision-maker must proportionately balance the Charter protection with the relevant statutory objectives. The question is not whether the decision restricts the Charter right (it usually does, to some extent, by its nature) but whether the restriction is proportionate given the legitimate objectives being pursued.
The OPSDT analysed the question in essentially these terms. The legitimate statutory objectives of CPSO discipline in the context of a public health emergency include:
- Protecting the public interest during a global pandemic where misinformation has been shown to cause actual harm
- Maintaining the integrity and reputation of the medical profession
- Promoting public trust in the profession
The tribunal concluded that a misconduct finding does not impair the member’s freedom of expression more than necessary to achieve these objectives. The discipline is directed at the dissemination of harmful misinformation, not at the holding of the underlying views or at the right to express disagreement with public health policy in other ways. The proportionality analysis was on the public-interest side of the balance.
This is a useful precedent for the application of the Doré framework in the COVID misinformation discipline context. It signals that the Charter does not provide a shield for sustained dissemination of misinformation that demonstrably causes public harm, even where the speaker holds the views sincerely.
The doctrinal lessons
The case stands for several propositions.
Misconduct and incompetence are independent statutory bases for discipline. The OPSDT can make either or both findings on the same record, and the implications for penalty differ. Trozzi is a high-profile example of a dual finding on a comprehensive record. The dual finding signals not only that the conduct was unacceptable but that the member’s practice cannot continue on its current terms.
Pandemic-era misinformation is professional misconduct. The OPSDT has repeatedly held that a physician’s promotion of misinformation about public health interventions during a public health emergency falls below the standard of practice and is unprofessional conduct. Trozzi is the most direct articulation of this principle in the cluster, with the most extreme statements at issue.
Failure to respond to CPSO inquiries is a discrete misconduct. A member’s obligation to respond appropriately to written inquiries from the CPSO is separate from the substantive misconduct being investigated. A member can be found guilty of failing to cooperate with an inquiry even where the inquiry does not result in a substantive misconduct finding on the underlying complaint, and the failure-to-respond ground is often used in cases involving members who decline to engage with the regulatory process at all.
The Charter is not a shield for harmful misinformation. Under the Doré framework, a discipline finding that engages a member’s freedom of expression must be proportionately balanced with the legitimate objectives of regulation. Where the discipline is targeted at sustained dissemination of misinformation that causes actual public harm, the proportionality analysis can be on the public-interest side of the balance even where the member’s expression is genuine.
Expert qualification controls what evidence the respondent can put before the tribunal. The White Burgess framework operates in regulatory discipline proceedings just as it does in civil litigation. A respondent who proposes experts who do not meet the qualification requirements may find their defence narrowed by qualification rulings. This is the same framework that operated in Beazley v Johnston in the malpractice context.
The COVID-19 misinformation pairing
Trozzi and CPSO v Phillips together form the COVID-19 misinformation pairing in the rewritten CPSO discipline cluster. The two cases share a substantive area (pandemic-era misinformation) and the underlying regulatory framework, but differ in important particulars.
- Phillips addressed online misinformation about COVID-19 plus witness intimidation. The finding was misconduct.
- Trozzi addressed sustained public misinformation about COVID-19 across a two-year period, plus failure to cooperate with the CPSO. The findings were misconduct and incompetence, plus the Charter analysis.
Together, the cases illustrate the range of the CPSO’s authority over physician communications during a public health emergency. Both cases reject the proposition that a physician’s freedom to communicate about controversial subjects is protected from regulatory consequence where the communications constitute misinformation that causes public harm.
The CPSO discipline cluster
The rewritten CPSO discipline cluster on this site now includes seven case comments:
- CPSO v Stein: boundary violations with a patient, plus an attempted cover-up
- CPSO v Luchkiw: failure to cooperate with a College investigation in the COVID exemption context
- CPSO v Kadri: disruptive conduct, incompetence, and ineffective remediation
- CPSO v Phillips: online COVID-19 misinformation and witness intimidation
- CPSO v Karim: misuse of OHIP while non-resident
- CPSO v Iannantuono: boundary violations against a hospital coworker, with prior discipline history
- CPSO v Trozzi (this case): COVID-19 misinformation with dual misconduct and incompetence findings
The seven cases together illustrate the CPSO’s reach across the full range of physician conduct: clinical care, conduct in patient relationships, conduct in workplace settings, public conduct, conduct in the regulatory process itself, conduct in personal financial dealings, and conduct toward healthcare colleagues. The COVID-19 misinformation cases (Luchkiw, Phillips, Trozzi) form a coherent sub-grouping on the pandemic-era discipline framework.
Why this case matters
For physicians. The CPSO’s discipline jurisdiction extends to physician communications about public health, particularly in the context of a declared public health emergency. The Charter does not protect sustained dissemination of misinformation that causes demonstrable public harm. The standard of practice in the COVID context includes refraining from promoting non-scientific theories that undermine public health interventions. A physician who genuinely disagrees with public health policy has a number of legitimate avenues to express that disagreement; the College’s position is that disseminating misinformation is not one of them.
For the public. The discipline framework operates as a check on physician communications that fall outside professional standards. Where a physician is found to have spread misinformation that causes public harm, the CPSO can impose meaningful sanctions, including revocation of licence. The framework is not perfect, and a single discipline decision does not undo the cumulative effect of sustained misinformation, but it is the mechanism Ontario has for addressing this category of physician conduct.
For lawyers screening regulatory matters. Trozzi is useful precedent on three points. The dual misconduct/incompetence finding framework is illustrated in a high-profile case. The Doré analysis of Charter-implicating administrative decisions is applied in the COVID misinformation context. And the White Burgess qualification framework is shown to operate in OPSDT proceedings, with practical implications for defence strategy.
For more on the CPSO complaint process generally, see Should I File a CPSO Complaint Against My Doctor? For the broader framework of complaints and reviews in Ontario healthcare, see A Patient’s Guide to Making Complaints About Health Care in Ontario.
Decision Date: October 6, 2023 (liability)
Tribunal: Ontario Physicians and Surgeons Discipline Tribunal (OPSDT)
Citation: College of Physicians and Surgeons of Ontario v Trozzi, 2023 ONPSDT 22 (CanLII)
