The Appellants (several physicians and physician groups in Ontario) were unsuccessful in appealing a decision of the Divisional Court. The Appellants had applied to the Divisional Court to challenge the constitutionality of policies enacted by the Respondent, College of Physicians and Surgeons of Ontario, which required physicians to provide an “effective referral” when they had a religious objection to providing a medical service (e.g. abortion, medical assistance in dying, etc.).

Administrative law – Charter of Rights and Freedoms – Freedom of Religion – Human rights complaints – Discrimination – Judicial review – Appeals – Physicians and surgeons – Statutory provisions – Public interest

Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, [2019] O.J. No. 2515, 2019 ONCA 393, Ontario Court of Appeal, May 15, 2019, G.R. Strathy C.J.O., S.E. Pepall and J.M. Fairburn JJ.A.

The College of Physicians and Surgeons of Ontario (the Respondent) enacted two new policies in 2015/2016.

Policy #2-15 requires physicians in Ontario to provide an “effective referral” to their patients in circumstances where they are unwilling to provide certain elements of care for reasons of conscience or religion. An “effective referral” is defined as a “referral made in good faith, to a non-objecting, available, and accessible physician, other health-care professional, or agency”.

Policy #4-16 similarly requires physicians in Ontario to provide an “effective referral” to their patients if the physician is unwilling to provide medical assistance in dying for reasons of conscience or religion.

In 2016, the College released a fact sheet answering questions and providing examples about how physicians can comply with the “effective referral” requirement. The fact sheet says an “effective referral” is made when a physician “takes positive action to ensure the patient is connected in a timely manner to another physician, health care provider, or agency who is non-objecting, accessible and available to the patient”. The fact sheet explains that the referral can be made by a staff member (non-physician) and it can be made to an agency.

The Appellants are individual physicians and organizations representing physicians in Ontario. The Appellants made two applications to the Divisional Court seeking a declaration that the two policies contravened their right to freedom of conscience and religion protected by section 2(a) of the Canadian Charter of Rights and Freedoms. The Appellants also alleged that the policies discriminated against them on the basis of their religion, thus infringing section 15(1) of the Charter. Multiple interveners participated in the applications.

The Divisional Court dismissed the applications, holding that the policies did infringe the Appellants’ right to freedom of religion but the infringement was justified pursuant to section 1 of the Charter. The Divisional Court did not consider freedom of conscience and dismissed the section 15(1) claim. The Appellants appealed the decision to the Court of Appeal, alleging errors in the section 1 and 15(1) analysis.

The College argued, on appeal, that the Divisional Court erred in finding there was a breach of the Appellants’ right to freedom of religion because the College alleged any interference was “trivial and insubstantial”. The Court of Appeal reviewed the evidence about the role of religion in the Appellants’ lives and how they felt that providing an “effective referral” would make them complicit in providing the medical services they objected to. The Court of Appeal concluded the interference was neither trivial nor insubstantial.

The Court of Appeal did not consider whether the policies infringed the Appellants’ freedom of conscience.

The Court of Appeal focused on the proportionality section of the section 1 analysis to determine whether the Divisional Court erred in finding the infringement of the Appellants’ religious freedom was justified. The Court of Appeal reviewed, for instance, the Divisional Court’s findings that there would be harm to vulnerable patients if the Appellants were not required to provide an “effective referral”. The Court of Appeal held it was not necessary for the College to prove actual harm.

The Appellants argued the College had not selected the least intrusive option for protecting vulnerable patients. For instance, the Appellants suggested that a “self-referral” or “generalized information” model could have been adopted by the College, as used in some other Canadian jurisdictions. The Court of Appeal held the College did not have to select the least intrusive option when it considered those options were inadequate to protect vulnerable patients.

The Appellants argued the Divisional Court had erred in balancing the deleterious and salutary effects of the policies. The Divisional Court had also held that physicians could change their area of practice if they wanted to avoid being placed in a situation where they had to provide an “effective referral” for services they would not perform. The Appellants argued that the Divisional Court erred in finding they could easily change their area of practice. The Appellants also argued the Divisional Court erred in finding that the policies would achieve the salutary effect (protecting patients) desired by the policies.

The Court of Appeal accepted that the balancing weighed in favour of protecting vulnerable patients even though this may require some sacrifice for some physicians in Ontario. The Court of Appeal emphasized one of the findings made by the Divisional Court; namely that physicians have no inherent right to practice medicine and they practice in a publicly funded healthcare system.

The Court of Appeal dismissed the appeal.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.