Thread by @JRwatch_ON

We’ve just been let into the courtroom at Osgoode Hall for the hearing of Dr. Kulvinder Kaur Gill’s judicial review applications in Ontario Superior Court. Follow this account for live tweets.

Dr. Gill is seeking to quash several “cautions” ordered against her by CPSO in relation to tweets she posted in August 2020, where Dr. Gill expressed concerns about the harms caused by lockdowns.

While we wait for the panel to come in at 10 am, have a read of the Libertas Law news release about the case here: libertaslaw.ca/news-releases/…

We continue to wait for the panel to come in; at the moment, technical difficulties with court wifi are being resolved by courtroom staffers. All counsel, including both for the Applicant and the Respondents, are encountering these wifi issues

While the panel has not yet come in, we have been informed by court staff that the panel today for this divisional court hearing consists of Sachs, Myers, and Shore JJ.

The panel has now come in and is addressing the preliminary issue of the technical difficulties with the court wifi.

The panel plans to start the hearing due to concerns with timing. They are notifying the court technology department, and anticipate that they will fix the court wifi issue soon.

We are now beginning, and counsel for the applicant Dr. Gill (Lisa Bildy) is starting to give her opening submissions.

Bildy: This seems like a complicated matter, but in reality it's very simple. As we go through, I want to address the following broad concerns about the ICRC decisions.

The committee's decisions were neither reasonable nor justified, and they failed to engage with the central issues for which Dr. Gill was being cautioned

The ICRC did not proportionally balance the appropriate statutory objectives with the Charter rights of Dr. Gill

The ICRC breached Dr. Gill's right to procedural fairness, given the compounding of the cautions and their widespread distribution

Bildy reviews Dr. Gill's background, that she is a specialist physician practicing at two clinical immunology clinics in Brampton and Milton.

Her undergrad was in microbiology, and she completed significant post-grad training in pediatrics, and allergy and clinical immunology.

This includes scientific research in microbiology, virology, and vaccinology.

Dr. Gill is here today because she expressed opinions on social media with which some members of the public did not agree, and filed complaints about those opinions to CPSO.

While she was initially alarmed by Covid-19 like most other people, Dr. Gill began examining the data more closely, and a few months into the pandemic, started sharing her evidence-based views on X (previously known as Twitter).

CPSO's guidance to doctors warned them that if they did not conform their opinions to the published public health and government views, they would be at risk of discipline.

Panel asks: but what if what the doctor says is verifiably false?

Bildy: If the statements are verifiably false, that's another story. But in this case, Dr. Gill's statements weren't verifiably false. Her statements were based on evidence, and she cited literature. The previous Decision doesn't actually review any of her evidence.

Panel: Are you challenging the previous panel's finding of fact?

Bildy: Yes, that's part of it; we're coming at this from many different angles. Once it was established that Dr. Gill's comments did have a foundation of fact, there should have been no caution.

Science requires conflict, that’s how it advances and how we learn. To say that everyone has to walk in lockstep, that’s not science, and it’s not in the public interest.

Dr. Gill had a foundation for her comments. On the lockdown question, the government itself was the one to provide foundation. Dr. Gill’s comments were in keeping with what had always been understood by the government was an appropriate pandemic response.

Debate is important in a democratic society. When we’re doing something novel with downstream harms, questioning is important to the public interest.

Panel: It’s a very stark statement of fact, that there’s no scientific basis to support a lockdown. Where is the rationale for that?

Bildy: The ICRC decision stated that Dr. Gill’s assertion was inaccurate because lockdowns “worked” in China and South Korea, when we know that the lockdowns didn’t affect mortality.

Lockdowns didn’t reduce pressure on the health care system. You can stop transmission of a virus by keeping people in their homes, but when you let them out, that delayed transmission is just going to continue.

The point of the lockdowns that was sold to us is that we need to save the healthcare system, so if you’re not saving the healthcare system, what are you doing? And there are many downstream health effects from the lockdowns as well, which is what Dr. Gill was concerned about.

Dr. Gill is a proponent and signatory of the Great Barrington Declaration, which said we should prioritize keeping vulnerable people safe instead of applying one-size-fits-all lockdowns.

We now move from discussing the Dr. Gill's tweet about the lockdowns, to discussing her tweet about vaccines.

Bildy states that Dr. Gill's vaccine tweet was taken entirely out of context; Dr. Gill was stating that vaccines were not required to end damaging lockdowns.

Panel: but the vaccines reduced severity of symptoms, so weren't they required to end lockdowns?

Bildy: At the time of the tweet, it was 5 months before any vaccine was even out there. There were no vaccines at all available for this, and ICRC substituted their own views and evidence, placed the tweet in an entirely different context, and made their decision on that basis

We’re talking about a novel vaccine, with novel effects. At the time there was no tested vaccine. ICRC didn’t have any more information at the time, they were guessing as well. It’s not appropriate to chill public discourse on a matter that hasn’t yet been decided.

If you don’t have the dissenters, everybody goes off the cliff together.

I think it’s a bit paternalistic to the public. They don’t need to be led like sheep, and the government shouldn’t have a stranglehold on what they’re allowed to hear. People can think of themselves.

The ICRC decision doesn’t follow the rational chain of analysis that’s required, and as such is unreasonable

We now move to the Kulldorff retweet. This tweet stated that contact tracing, isolation, and social distancing was ineffective.

Dr. Kulldorff is a former Harvard infectious disease epidemiologist and public health scientist.

Bildy: The ICRC considered whether 1) whether Dr. Gills's statements were verifiably false at the point they were disseminated, and 2) whether the statements were consistent with CPSO guidance (which essentially was to agree with the government's viewpoints)

Panel: Are you then saying that it’s not that it was verifiably false, but that it was irresponsible because it didn’t align with government messaging?

Bildy: Yes. And also, a part of the Dore analysis is missing. The ICRC just appears to assume that the government measures will be successful, without providing any of their own evidence.

It’s a bit presumptuous to assume that the government will always be right, and that no doctor could ever retweet an expert opinion that disagreed with a government stance.

Reasonableness is the standard of review, and justification is the focus. Justification tells us that they have to show the work, and deference follows justification. It does not precede it.

The ICRC came to the conclusion that those measures do work, but they provide no evidence for this. Dr. Gill’s evidence was contained in the Dr. Kulldorff retweet. The ICRC is substituting their own opinion

Panel: But aren’t they just saying that you shouldn’t oppose government messaging when its subject to debate?

Bildy: How are you supposed to have that debate if you can’t make a comment? It’s a chilling effect, that doctors can’t say anything that opposes public policy or they’ll find themselves in front of a regulator.

Panel: So you’re saying that the ICRC decision is flawed because: A) they haven’t done the Dore analysis, B) because they say Dr. Gill has no evidence when the record shows she does, and C) they have no evidence, they’re making statements without evidence.

Bildy: Yes, exactly.

Panel requests a short break, and asks Bildy if she can shorten her following submissions due to the late start.

Currently on a short break.

Court is back in session. Bildy continues her submissions.

Bildy notes the repeated use of the word "inflammatory" in CPSO's materials in relation to Dr. Gill's statement. Bildy emphasizes that this case is not, and has never been, about tone- it is about content.

Bildy states that this case is not alike to the recent Jordan Peterson decision, and that attempts to analogize it using the word "inflammatory" by CPSO is misleading

We are now getting into the Dore analysis on Charter balancing, which is intertwined with Vailov requiring an overall "culture of justification" from administrative decision makers.

The next bit will focus on these two cases; to learn more about Dore and Vailov, please visit the following:



en.wikipedia.org/wiki/Dor%C3%A9…
en.wikipedia.org/wiki/Canada_(M…

Bildy: The Supreme Court of Canada has made it clear that regulated professionals have robust protections under the Charter when they express their opinions in the public square, as Dr. Gill has done.

They not only have a right to speak their minds freely, they arguably have a duty to do so.

Constraints, if any, are applied secondarily, and must impair the right as little as reasonably
possible.

The onus is on the administrative decision maker to ensure that any limit on that protection is minimally impairing.

A mere nod to free speech under the analysis is not sufficient.

There was no mention of Dr. Gill’s Charter right to free speech at all in ICRC’s decision, or in the review of it. There’s no engagement with it at all, almost like it’s not even relevant to the committee.

The decision itself is incoherent and provides no guidance at all. The committee was required to show their work, and they failed to do so.

Panel: What would you expect the board to say other than this is acceptable speech and this isn’t?

Bildy: I would expect them to turn their minds to the deleterious effects of these decisions on her, and to consider what the effects are on the rest of the profession as well

Panel: They don’t want anyone saying anything that’s not true

Bildy: But should the CPSO be putting its thumb on the scale, and saying that you can say these things that we agree with, but can’t say these things that we don’t agree with?

It’s a question about truth. The point of free speech is to discuss competing opinions. No one has a monopoly, it’s a constant push and pull. Free speech protects things that aren’t true.

When talking about professionals, it’s important that they be able to express opinions that don’t agree with government viewpoints

Panel: The ICRC never says you can’t say anything that doesn’t align with the government. How can you explain so many other doctors disagreeing with government viewpoints on vaccines and lockdowns?

Bildy: Quite a lot of those doctors have had proceedings too. The CPSO guidance does prevent doctors from saying anything that disagrees with public health guidance, given the chilling effect on any doctors sharing a differing viewpoint.

The committee should have turned its mind to the chilling effect as well. Lauzon tells us that also, that you need to wrestle with Charter rights

As a proponent of free speech, it’s frustrating to see how there’s always a push to expand the limits of what people can’t say, instead of broadening the protection.

Doctors need to be free to criticize the government, especially when they’re being affected by government decisions.

Panel: so you’re saying that the ICRC didn’t properly do the analysis?

Bildy: Yes, that’s part of the Charter protection.

Panel: They talk about free speech but don’t actually engage in the analysis, is that right?

Bildy: Yes. If you’re really going to exercise your justificatory muscles as Lauzon requires, you have to do the analysis properly. The charter protections extend broadly to the public interest of being able to hear those concerns.

As the analysis wasn’t done, the decision wasn’t justified, and it’s unreasonable.

The point of having a regulator used to be setting standards of competence for the profession. We’ve moved now into regulating what professionals say in the public square.

The more that regulators move into this function, the more they need to show the existence of an applicable statutory objective that they can balance against.

Regulators can’t be given blanket authority to curtail all professional speech on matters they don’t like. The case law says you need more.

We also need to talk about the stakes in this matter. Cautions have the same effects as reprimands. They sit on your public record, people can see them, and the CPSO sends them out to various organizations. This makes sense when it’s a sexual offender, but these are tweets.

Reputational harm to a doctor does exist. These cautions are visible to the public, and disseminated to every regulator across the country.

Panel: just because someone is charged and the caution is there doesn’t mean that they suffer any consequences. It says the complaints were dismissed. Are we thinking that people can read words and understand the difference? Or are we making laws for the twitter sphere?

Bildy: How many people appreciate the distinction between a caution and a reprimand? You have to click on the caution listing on the CPSO website to see the outcome of it.

When clients look her up to see if they want her to be their doctor, and they see a bunch of cautions listed under her name, it has a detrimental effect.

If someone wants to move to another jurisdiction, will someone in Maine or in Florida understand the distinction between a caution and a reprimand?

Panel: So essentially what you’re saying is that the caution listing on her account, visible to the public, has a negative effect on her public reputation, even if you click the link and read the details and see that the caution against her was dropped.

Bildy: Yes. Dr. Gill has 3 active cautions on her profile, and 5 “no further action” ones that in their text reference the 3 active cautions. Should she ever have an investigatory proceeding in the future, those will be reviewed and may negatively influence the proceedings.

Bildy closes by requesting that all 7 of the Decisions of the HPARB, which either upheld the Caution Decisions of the ICRC, or which refused to order the removal of the caution references in the Dismissed Complaints, be quashed, and that reference to the cautions be expunged.

Counsel for the Health Professions Appeal and Review Board (HPARB) is now up.

Counsel says that the standards for what professionals can say should be different compared to what the public can say.

Says that the role of the board is to make sure that the actions of the members of the college reflect the public interest.

This wasn’t a professional publication or peer reviewed article, it’s a tweet and goes out to the universe.

Counsel: My friend Ms. Bildy wants to take you into a deep dive into papers that discuss the efficacy of lockdowns. I don’t think that’s the court’s place to resolve scientific debate, that’s not relevant.

What she’s relevant is that Dr. Gill is bound by CPSO, which gave guidance.

Counsel reads from the Hillier case. Says that government should not await scientific certainty before action is taken. That the precautionary principle takes precedence

The point is not science, but safety. Science changes constantly. We need to apply the precautionary principle.

Panel: So your argument is that there is an argument for public health moving quickly when faced with a pandemic?

Panel: Bildy’s argument is focusing on a different area. She stated that there was no analysis. There was an impairment of her free speech rights, and that it was incumbent on the college to do what Dore says you have to do with the analysis, and they didn’t.

They didn't do it at either level and, without doing that, the decisions cannot stand. So what is your position? Was that done at all? Or in any meaningful way?

Counsel: I would doubt in the extreme that it would be necessary for the college to stress the importance of the precautionary principle every time they made a decision

Panel: Was an analysis done in this specific case? Are you saying they don’t have to? Or are you saying it was done?

Panel: The message is clear from the SCC, administrative tribunals have to be very cautious about people’s charter rights, and these are important rights.

Therefore if they’re going to be infringed there must be a justification for the infringement that looks at the statutory objective and looks and weights that against the impairment of the right and the effect of it

Counsel: I would say yes, an analysis was done. The analysis seems almost too obvious. The committee said in their decision that they had no interest in curtailing free speech. This shows that they were alive to the issue. They provided policy guidance

Panel: And what was the policy guidance? It was think about it if you’re going against public health?

Counsel: I don’t think what she said was up to public debate. She said we didn’t need vaccines. I don’t think that’s up to debate

Counsel is now talking about Dr. Gill’s defamation suit brought against those speaking derogatorily about her online.

Counsel says that the court in that matter dismissed Dr. Gill’s defamation case, on the basis that they felt the speech of those against Dr. Gill needed to be protected

Panel: How far do you think we need to go before we can be satisfied as to the Dore test?

Counsel: The review boards are merely screening committees. In Lauzon, someone was kicked off a team. This is very different compared to this case. This was a screening matter only, where Dr. Gill was just told to be a bit more cautious.

What if Dr. Gill honestly thought that HIV didn’t exist and that people should have all the unprotected sex you want? Would you still have to do the entire Dore analysis?

Panel: I think this is you getting back to your original point. So you’re saying that the Dore dive doesn’t have to be as deep as was done in other cases, where the consequences were steeper.

Breaking for lunch now; back at 2:15.

Court is now back in session, returned from the lunch break.

Counsel for HPARB has resumed submissions. He states that during the break, he agreed with counsel for CPSO that counsel for CPSO will handle submissions on Dore later on.

Counsel brings up the Peterson decision in order to strengthen his argument regarding the proper place of a regulator.

In Peterson, it was about off duty conduct, and that while he had freedom of speech, he was obligated to maintain professional standards and ensure that his public statements accord with those professional standards

This was especially true when identifying himself as a member of that profession.

Counsel emphasizes the role of the ICRC and the HPARB decision-makers as a screening committee.

Counsel says in only very narrow situations should decisions be sent back to the ICRC.

This is a judicial review of the board’s (HPARB's) decision. The court is tasked with figuring out whether the board’s decision was reasonable in finding that the college’s decision (CPSO) was reasonable.

Counsel says that the board’s decision could be found reasonable, even if the underlying college’s decision was found to be unreasonable.

This concludes submissions by counsel for HPARB.

Counsel for the CPSO (the College) is now up.

Counsel says that Bildy is asking the panel to reweigh the college’s decision, which would be improper.

Dore is highly contextual inquiry and it subject to deference.

In Peterson, the divisional court stated that on a judicial review of this nature, the court doesn’t need to agree with the outcome, and neither does the decision maker have to choose an outcome that would limit charter protection the least.

The question is whether the decision fell in the range of reasonable outcomes.

Panel: So you’re saying that Dore doesn’t require the outcome to minimally impair the right?

Counsel: That’s right. It just has to be a reasonable outcome. This was decided in the recent Peterson case.

In Loyola, it states that Dore is highly contextual, and there may be more than one outcome that impairs the right the least; this is why the court shouldn’t be ascertaining which outcome minimally impairs the right, because there might be more than one.

Panel: Doesn’t Loyola say that the right be impaired as little as possible in light of the state's objectives?

Counsel: Right. Well, in the Peterson decision, it’s citing Trinity Western, another case of the SCC that provides for that specific holding. Perhaps it’s another way of stating it. I think the court was clear in Trinity Western that the court can rule in this way.

The Peterson decision made it clear that in the health regulatory context, for remedial educational decisions, there is minimal if any impairment of free speech arising of an educational disposition of the ICRC.

Panel: Are you going to be dealing with Lauzon?

Counsel: Lauzon is a discipline case, so I wasn’t planning to deal with it as a different analysis would apply.

Panel: What cases are you relying on to support that principle that the right doesn’t have to be minimally impaired?

Counsel: Peterson, Trinity Western, and Dore.

In determining whether a right has been infringed, its important to note that the ICRC is a screening committee, and they do not make findings of professional misconduct.

Cautions are not disguised findings of professional misconduct without the protections of a proper proceeding. The public nature of cautions has not transformed them into a form of professional discipline.

Panel: But they’re not without some effect.

Counsel: That’s true. They do serve the effect of ensuring that the physician best serves the public.

What the court held in Peterson is that when a professional joins a professional organization, they are bound by the rules of that authority which may limit their freedom of expression.

Counsel again references Peterson: High standards are imposed on professionals that take on responsibilities to the public. Members of regulated professions can still harm public trust and confidence in their professions by private action and conduct.

Counsel is now reading CPSO's social media guidelines.

Counsel emphasizes the danger of providing information that does not accord with government messaging.

Panel: Does that mean no doctor can ever disagree with government messaging?

Counsel: That’s not how ICRC interpreted it. They recognized the importance of public debate around public health concerns, and dismissed many of the tweets that were complained about, stating that they were fair comment.

However, there could be harm if a physician’s messaging doesn’t agree with public health. A caution could be warranted.

There is a heightened duty during public health emergencies for doctors. This includes supporting emergency response measures, and acting in accordance with values and duties of medical professionalism.

Members of the public are more likely to view a doctor’s twitter feed as providing reliable information, and to accord significant weight to the opinions of doctors given their profession.

This supports the ICRC’s conclusion that these kinds of messages could impact public health and public confidence in the profession.

Counsel again cites Peterson, stating that unprofessional communications can damage public confidence in the profession.

Panel: What’s the point that you’re making? This is not in the decisions that we’re actually reviewing from the board.

Counsel: I’m saying that after reading the concerning tweets, a certain amount of the public will choose not to follow the recommendations of public health.

Panel: Who says that?

Counsel: The ICRC, in the decision under review.

Brief pause while counsel attempts to find a decision that she talked about for the court; counsel states it may be cited wrong.

Counsel moves to her next arguments.

Counsel: Given the importance of the speech, and the importance of public health, and the stakes of the decision, the reasons are appropriate and follow the Dore framework. With that in mind, the ICRC appropriately addressed a constitutional issue raised by Dr. Gill.

Counsel: In the decision under review, the committee summarizes Dr. Gill’s arguments that she provided to the committee. They then go on to explain that they has no interest in shutting down free speech or preventing doctors from expressing criticism of public health policy.

So clearly, they are not taking a no dissent approach, and they are accepting that it is valuable that public debate happen with regard to public health messaging.

They didn’t condemn her speech, but stated that they were concerned about statements about public health measures made without evidence.

Counsel is back to citing Peterson: The reasons need to reflect the stakes of the decision. There’s a lower onus to explain the ICRC’s decision compared to those of a disciplinary committee.

Panel: What about the quote tweet about contact tracing of Dr. Kulldorff? It contained evidence for it in that same tweet.

Counsel: Our position is that another person’s tweet made without context or evidence cannot become evidence by reusing it.

Panel: But she was saying that this report just came out of Harvard- which until recently was a well respected institution- that said that contract tracing didn’t work for this particular pandemic. Wasn’t that evidence?

Counsel: Our position is that a tweet doesn’t constitute evidence of the kind that ICRC would require.

Panel: So you’re saying that their objection to that tweet was not that she said that contact tracing was ineffective, but that she said it was counter productive?

Counsel: Yes, because counter productive means the opposite of the intended effect, and there was no evidence of that.

Counsel: In my submission its not the role of the court to rule on the medical evidence before the body regarding expert submissions.

Counsel: With regard to chilling of speech, I would contend that this is a minimal impairment, and discussion with one’s peers in the aim of improving future practice, shows no evidence of a chilling effect on speech

Counsel: The SCC has held that an allegation of a chilling effect must be supported by evidence, unless it is self evident. The fact that it’s self evident is not found in this case, given that the ICRC stated that they have no interest in preventing speech.

Panel: You’re showing us lots of case law, but are you able to show us anything in the 7 or 8 decisions in this matter where the board actually grapples with the fact that they are holding people to guidance that says don't disagree with public health?

Panel: Where does it say in the decisions that bringing you in for a caution is a minimal, proportionate response to you saying things against public health?

Panel: Dore says that administrative decision makers can’t impact charter rights willy nilly. They have to think about it and show those thoughts. Are you saying that Dore doesn’t apply?

Counsel: The ICRC specifically said they aren’t in the business of shutting down free speech

Panel: But then they did though.

Counsel: Only in 3 of the 7 complaints. The public needed to be encouraged to follow public health guidance.

Panel: Congratulations, you’ve convinced me. But the goal is that the ICRC decision contain that rationale in itself.

Counsel: I refer you to Peterson where the court says that the ICRC only needs to explain their methods and goals.

Panel: So Lauzon is a footnote that says this doesn’t apply to intake processes?

Panel: Lauzon did that, and it never said that this only applies to the height of administrative severity

Counsel: I submit that there is a difference.

Panel: So the answer is they don’t.

Counsel: In my view they have done it to the extent required for this decision.

Panel: So you’re saying that they don’t need to express the proportionality analysis if it’s already clear from the case law that the impairment is minimal?

Counsel: If you read the decisions in their totality and their factual and statutory context, I think they have satisfied the proportionality analysis in light of the stakes of the decisions.

Counsel concludes her submissions.

Bildy rises for additional submissions.

Bildy: We’ve been looking at the decision of s.75, the one dealing with the tweets and the retweets, but its helpful to look at one of the decisions where they didn’t order a caution and compare them.

The question is whether the statements were verifiably false. The tweet about HCQ had no evidence in it. The ICRC was content in that question to review additional evidence.

Bildy: My friend (counsel for CPSO) keeps saying there was no evidence, but there was submitted evidence. So it seems that the question was actually whether it complied with public health guidance.

Panel: Was there any evidence that contact tracing was counter-productive, however? Ineffective is one thing, but counter-productive?

Bildy: Dr. Gill provided evidence in submissions, but the point I'm trying to make is that the ICRC’s decisions are inconsistent.

In some cases, ICRC says that a tweet is inappropriate because there is no evidence in the tweet itself, but with other tweets, they are content to review outside evidence.

There has to be an internally coherent and rational analysis, and these two ICRC analyses are inconsistent. There was no rational chain of analysis being applied here.

Bildy concludes her additional submissions.

Panel says: “it comes as no surprise to you all that we will be reserving our decision" and thanks all parties for their submissions.

Hearing is now concluded; thanks to all for following along.

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