CPSO discipline proceeds in two distinct stages. The first stage produces a misconduct decision determining whether the registrant engaged in professional misconduct. The second stage, conducted as a separate hearing, produces a penalty decision applying the calibration framework for sanctions. The two stages address different questions and produce different decisions, often months apart and sometimes with significantly different bodies of evidence.
In January 2024, the Ontario Physicians and Surgeons Discipline Tribunal released the penalty decisions in two COVID-19 misinformation cases where misconduct had been found in 2023: CPSO v Trozzi, 2024 ONPSDT 2, and CPSO v Luchkiw, 2024 ONPSDT 4. The two decisions produced markedly different sanctions — a six-month suspension and substantial costs in Luchkiw; permanent licence revocation, larger costs, and an “ungovernable” finding in Trozzi.
Read together, the two decisions illustrate the calibration framework for CPSO penalty decisions, the “ungovernable” doctrine that anchors revocation, and the role of cost orders as substantive sanctions in physician discipline.
The two-stage discipline process
The CPSO discipline framework under the Health Professions Procedural Code (Schedule 2 to the Regulated Health Professions Act, 1991) provides for a bifurcated process.
Stage one — misconduct. The tribunal determines whether the alleged conduct constitutes professional misconduct under the Code’s enumerated grounds or the catch-all “disgraceful, dishonourable or unprofessional” standard. The misconduct decision establishes the factual and legal predicate for any subsequent sanction.
Stage two — penalty. Where misconduct has been found, the tribunal holds a separate hearing on the appropriate sanction. The penalty stage considers the seriousness of the misconduct, the registrant’s response, the protective objectives of the regulatory regime, and the precedential calibration with similar cases. The available sanctions range from reprimand through suspension to revocation, with the tribunal also empowered to impose practice conditions, costs, and other terms.
The separation of the stages is doctrinally important. The misconduct finding is the foundation; everything in the penalty stage builds on it. A misconduct decision is not subject to revision at the penalty stage. But the penalty stage permits the introduction of evidence relevant to sanction (the registrant’s response to the misconduct finding, any post-decision conduct, expert evidence on rehabilitation prospects, comparable cases) that was not relevant at the misconduct stage.
In Trozzi and Luchkiw, the misconduct decisions had been released in October 2023 and July 2023 respectively. The January 2024 penalty decisions applied the sanction framework to those earlier misconduct findings.
CPSO v Luchkiw: the penalty decision
The misconduct finding in Luchkiw was that Dr. Crystal Luchkiw, a family physician practising in the Barrie area, had engaged in professional misconduct by refusing to cooperate with the CPSO’s investigation into her practice of issuing COVID-19 vaccine exemption letters. The misconduct was not the substantive issuance of the exemptions but the refusal to cooperate with the regulatory process — a different and procedurally distinct ground of professional misconduct.
At the penalty stage, the OPSDT imposed:
- A six-month suspension of Dr. Luchkiw’s licence
- A costs order of $28,370
- Additional penalty terms
The six-month suspension placed the case in the mid-range of COVID-19 discipline penalties. It was longer than the two-month suspension imposed in CPSO v Turek (where the matter proceeded by joint submission), but well short of the revocation imposed in Trozzi. The contested nature of the Luchkiw proceedings (no joint submission) and the seriousness of the underlying misconduct (refusal to cooperate with regulatory investigation) explained the calibration.
The $28,370 costs order is substantial as a practical sanction. Costs in CPSO proceedings reflect the volume of work involved in conducting the discipline. Contested proceedings generate substantially more costs than those resolved by joint submission, and the costs award shifts a portion of those costs to the registrant.
CPSO v Trozzi: the penalty decision
The misconduct finding in Trozzi was that Dr. Mark Trozzi, a physician from northern Ontario, had engaged in professional misconduct by making misleading, incorrect, or inflammatory statements about vaccinations, treatments, and public health measures for COVID-19 on his website, in social media postings, and in interviews. The misconduct was substantive — the content of the public statements — and the volume of material was considerable.
At the penalty stage, the OPSDT imposed:
- Permanent revocation of Dr. Trozzi’s licence
- A costs order of $94,960
- A finding that Dr. Trozzi was “ungovernable”
This is the most severe sanction in the rewritten CPSO discipline cluster. The revocation removes the registrant from the profession permanently. The “ungovernable” finding is the doctrinal foundation for the revocation.
The “ungovernable” doctrine
The “ungovernable” finding in CPSO discipline is the predicate to permanent revocation in cases where lesser sanctions cannot adequately protect the public. The principle: where the evidence demonstrates that the registrant is unlikely to be remediable, that they intend to continue the misconduct, and that no combination of suspension and practice conditions will prevent ongoing harm, the only adequate sanction is removal from the profession.
The doctrine is doctrinally narrow. It is not enough that the misconduct was serious. The tribunal must additionally find that the registrant has demonstrated, through their conduct or their statements (including during and after the proceedings), that the misconduct will continue if the registrant retains the ability to practise. The finding is reserved for the most serious cases.
In Trozzi, the OPSDT was satisfied that the registrant intended to continue the public statements that constituted the misconduct, and that remediation was unlikely. The conduct during and after the misconduct decision provided the evidentiary foundation. The tribunal’s conclusion: the only adequate sanction was permanent revocation.
The doctrinal point is important beyond the immediate facts. The “ungovernable” finding marks the high-water mark of CPSO discipline. Cases that fall short of the finding will generally produce suspensions rather than revocations, regardless of how serious the misconduct itself. The finding is the predicate, and the tribunal must be satisfied of it before imposing the most serious sanction.
Cost orders in CPSO discipline
Both penalty decisions imposed substantial costs orders. Dr. Luchkiw was ordered to pay $28,370; Dr. Trozzi was ordered to pay $94,960. These orders reflect the volume of work involved in conducting contested CPSO proceedings.
The cost orders are not purely punitive. They reflect a partial reimbursement of the costs incurred by the CPSO in conducting the discipline. The tribunal exercises discretion in determining what portion of the actual costs should be shifted to the registrant, considering factors including the seriousness of the misconduct, the conduct of the proceedings (frivolous defences, unreasonable motions, delay tactics), and the registrant’s ability to pay.
For contested COVID-19 discipline cases, where the registrants have generally taken aggressive positions throughout the proceedings, costs orders have been substantial. The Trozzi costs of nearly $95,000 reflect a long, contested proceeding with considerable volume of evidence and submissions.
The cost orders function as a meaningful practical sanction independent of the licensing consequences. A six-month suspension with a $28,000 costs order is materially different from a six-month suspension with no costs order. The financial dimension of CPSO discipline is part of the deterrent and remedial framework.
Charter analysis at the penalty stage
The Doré v Barreau du Québec, 2012 SCC 12, framework operates at the penalty stage as well as the misconduct stage. The tribunal must balance the impact of the proposed sanction on the registrant’s Charter rights (expression, livelihood) against the statutory protection objectives.
For COVID-19 misinformation cases, the analysis has consistently held that disciplinary measures calibrated to the seriousness of the conduct strike a proportionate balance. Revocation is reserved for the most serious cases where lesser sanctions cannot protect the public; suspensions are calibrated to the misconduct severity; and reprimands and conditions operate at the lower end.
The implicit Charter analysis in Trozzi runs as follows: the registrant’s Charter right to expression is engaged, but the right does not extend to using professional credentials to promote misinformation that the tribunal has already found to constitute professional misconduct. Where the registrant has demonstrated through their conduct during and after the proceedings that they intend to continue the misconduct, the balance favours revocation as the only adequate protection of the public.
The penalty calibration across the COVID-19 sub-grouping
The four COVID-19 misinformation cases in the cluster now provide a comprehensive calibration framework:
Trozzi (highest): permanent revocation + $94,960 costs + “ungovernable” finding. The most severe sanction. Substantive misconduct in volume and severity; contested proceedings; conduct during and after the proceedings demonstrating unwillingness to change.
Luchkiw (mid-range): six-month suspension + $28,370 costs. Procedural misconduct (refusal to cooperate with investigation) treated more seriously than statement-based misconduct because of the threat to the regulatory process itself. Contested proceedings.
Phillips (mid-range): previously discussed. Statement-based misconduct in COVID-19 communications.
Turek (lower end): two-month suspension + reprimand. Statement-based misconduct addressed through joint submission. Calibrated to the lower end of the spectrum.
The calibration is principled, not arbitrary. The most severe sanction (revocation) requires both serious misconduct and the “ungovernable” predicate. Mid-range suspensions apply to serious misconduct without the ungovernable finding. Lower-end suspensions apply to statement-based misconduct addressed through joint submission. The framework is now reasonably stable for future COVID-19 cases and provides a useful reference set for the bar.
The doctrinal lessons
The case stands for several propositions.
Discipline is bifurcated. Misconduct and penalty are distinct stages with distinct hearings and distinct evidentiary records. Counsel and registrants must approach each stage on its own terms. Conduct between the stages — particularly statements indicating an intention to continue the misconduct — can materially affect the penalty outcome.
“Ungovernable” is the predicate to revocation. Permanent revocation requires not just serious misconduct but a tribunal finding that remediation is unlikely and ongoing misconduct is likely. The finding is reserved for the most serious cases.
Costs are substantial. CPSO discipline costs orders can run into the tens of thousands of dollars for contested proceedings. The financial dimension is a meaningful practical sanction independent of licensing consequences.
Conduct during and after the proceedings matters. The Trozzi “ungovernable” finding was supported in part by the registrant’s conduct during and after the misconduct decision. A registrant who continues the misconduct publicly while the discipline is proceeding gives the tribunal evidence that supports the most severe sanction.
Calibration is principled and traceable. The four COVID-19 misinformation cases now produce a stable calibration framework. Future cases will be assessed against the calibration this body of decisions has established.
Cluster fit
This penalty decision post sits at the intersection of two sub-clusters:
CPSO discipline cluster (9 distinct cases plus this combined penalty post):
- COVID-19 misinformation (4): Luchkiw, Phillips, Trozzi, Turek
- Sexual abuse and boundary violations (3): Stein, Iannantuono, Peirovy
- Financial misconduct (2): Kadri, Karim
COVID-19 misinformation sub-grouping (4 cases — comprehensive penalty calibration):
The four cases together now cover the full discipline spectrum from joint-submission lowest-end (Turek) to ungovernable revocation (Trozzi). Lawyers and physicians needing a calibration reference for COVID-19 discipline have a complete reference set in this sub-grouping.
Why this case matters
For physicians facing CPSO discipline. The two-stage process requires distinct strategy for each stage. Conduct between the misconduct decision and the penalty decision can materially affect the penalty outcome. The “ungovernable” finding, in particular, can be triggered by public conduct after a misconduct decision that demonstrates an intention to continue the misconduct.
For counsel representing registrants. The penalty hearing is not a re-litigation of the misconduct decision. The strategy at the penalty stage involves evidence of rehabilitation, contrition, willingness to accept practice conditions, and absence of post-misconduct conduct supporting an “ungovernable” finding. Joint submissions on penalty, where viable, generally produce more favourable outcomes than contested penalty hearings.
For the public health community. The COVID-19 discipline framework now provides reasonably stable calibration. Future cases involving physician public statements about vaccines, public health measures, or treatments contradicting public health recommendations will be assessed against the established sanction spectrum. The framework reinforces the principle that professional credentials carry professional responsibility for the content of public statements.
For prospective clients with complaints about physician conduct during the pandemic. The two-stage process means that a CPSO complaint that proceeds to discipline produces both a misconduct decision and a penalty decision, typically months apart. The misconduct decision is the substantive finding; the penalty decision is the calibrated sanction. Both are public.
For more on the CPSO complaint process, see Should I File a CPSO Complaint? and A Patient’s Guide to Making Complaints About Health Care in Ontario.
Decision Dates: January 25 and January 29, 2024
Jurisdiction: Ontario Physicians and Surgeons Discipline Tribunal
Citations:
- College of Physicians and Surgeons of Ontario v Trozzi, 2024 ONPSDT 2 (CanLII)
- College of Physicians and Surgeons of Ontario v Luchkiw, 2024 ONPSDT 4 (CanLII)
Sanctions:
- Trozzi: permanent licence revocation + $94,960 costs + “ungovernable” finding
- Luchkiw: six-month suspension + $28,370 costs
