Application Dismissed, Concerns Remain: Court Upholds Health Regulator’s Quiet Remedy for Psychiatrist

This judicial review application challenged a decision of the Health Professions Appeal and Review Board to uphold a decision of the College of Physicians and Surgeons to resolve the applicant’s complaint against her psychiatrist through a confidential remedial agreement. The court found the investigation adequate, procedural fairness satisfied, and the remedial disposition reasonable, though it cautioned that reliance on undisclosed remedial agreements could undermine transparency in the regulatory system.

Administrative law – Decisions reviewed – Health Professions Appeal and Review Board – Judicial review – Procedural requirement and fairness – Standard of review – Reasonableness; Physicians and surgeons – Training requirements.

Welkoff v. Ontario (Health Professions Appeal Review Board), [2025] O.J. No. 3531, Ontario Superior Court of Justice, August 8, 2025, N.L. Backhouse, R.A. Lococo and K. Jensen JJ.

The Supreme Court of Ontario’s decision in Welkoff v. Ontario (Health Professions Appeal and Review Board), 2025 ONSC 4515, involved a judicial review concerning a decision of the Health Professions Appeal and Review Board (“HPARB”). The court considered the limits of judicial review in professional discipline matters, the scope of procedural fairness owed to complainants, and the reasonableness of remedial dispositions imposed by regulatory bodies, ultimately dismissing the application for review and finding that the HPARB acted reasonably in upholding the decision of the Inquiries, Complaints and Reports Committee (“ICRC”) of the College of Physicians and Surgeons of Ontario (the “College”).

By way of background, in March 2022, Elaine Welkoff attended the emergency department of North York General Hospital, reporting suicidal thoughts and requesting medical assistance in dying. She was admitted voluntarily to the psychiatric unit under the care of psychiatrist Dr. Leigh Solomon. Dr. Solomon diagnosed her with persistent depressive disorder with dependent and borderline personality features. During the admission, Dr. Solomon prescribed Prozac, which Welkoff refused. Discharge planning began within a week, and despite Welkoff’s objections, Dr. Solomon discharged her on March 28, 2022.

On August 25, 2022, Welkoff filed a formal complaint with the College. She alleged that Dr. Solomon had failed to properly assess or treat her, had dismissed her suicidal ideation, inappropriately profiled her, provided false information in medical records, refused to arrange adequate supports, and had her forcibly discharged during a vulnerable state.

The ICRC reviewed the matter and issued its decision on May 9, 2023. While not upholding all of Welkoff’s allegations, it identified the following serious concerns with Dr. Solomon’s care:

1. Dr. Solomon’s diagnosis of persistent depressive disorder and borderline traits was unsupported by the medical record. The consultation notes lacked exploration of suicidal risk factors and were unusually sparse for a psychiatrist’s first meeting with a patient in crisis.
   
2. The discharge appeared premature, as Welkoff continued to express suicidal ideation to staff up to the day before discharge. Team notes indicated she was not ready to leave.
   
3. Dr. Solomon’s discharge note was described as “curt,” with only minimal follow-up instructions to see a family doctor and seek mental health supports. This was concerning given Welkoff’s vulnerabilities and the shortage of outpatient programs at the time.
   
4. The ICRC concluded Dr. Solomon bore responsibility for much of the strained relationship between herself and her patient. Notes suggested she dismissed Welkoff as “not wanting help,” while other staff documented her requests for assistance.
   
5. Despite diagnosing persistent depression, Dr. Solomon did not consider alternative antidepressants after Prozac was refused.
   
6. Dr. Solomon had previously received a caution from the College for inadequate discharge planning, raising additional concerns.

The ICRC concluded that Dr. Solomon required remedial education in three areas: (i) risk factors and management of personality disorders, (ii) persistent depressive disorders, and (iii) discharge planning. Dr. Solomon acknowledged these concerns and agreed to a remedial self-study program culminating in a 2,000-word reflective report. The ICRC accepted this Remedial Agreement.

Welkoff then appealed the ICRC’s decision to the HPARB, arguing that the investigation was inadequate, that she was denied procedural fairness, and that the remedial outcome was unreasonable.

The HPARB dismissed the appeal on August 8, 2023. It held that the ICRC’s investigation was adequate, in that the ICRC had obtained the essential information necessary to address the complaint. The HPARB emphasized that the ICRC investigation need not be exhaustive to be adequate, and that it is not required to conduct interviews or resolve credibility disputes.

The HPARB also held that procedural fairness was respected, as Welkoff was given opportunities to respond to Dr. Solomon’s submissions and to supplement her complaint. The HPARB found no evidence of hidden documents or bias.

The HPARB concluded that the remedial outcome in the College complaint was reasonable: The Remedial Agreement addressed the concerns raised, guiding Dr. Solomon to improve her understanding and practice. The HPARB reiterated that its role is to assess whether the ICRC’s outcome falls within a range of reasonable outcomes, not to substitute its own view.

Following the HPARB decision, Welkoff sought judicial review in the Ontario Supreme Court. She argued that:

1. The ICRC’s investigation was inadequate because it failed to address her central allegations, particularly that Dr. Solomon lied in her records and submissions.
   
2. She was denied procedural fairness in multiple ways, including delayed disclosure, withheld evidence, and lack of opportunity to challenge Dr. Solomon’s account.
   
3. The acceptance of a Remedial Agreement, which is not publicly disclosed under the Regulated Health Professions Act and Protecting Patients Act, undermined transparency and was an unreasonable disposition given the seriousness of the findings.

The court applied the reasonableness standard of review under Vavilov. It considered three issues:

1. Adequacy of the ICRC investigation.

The court held that the HPARB reasonably concluded the investigation was adequate. Section 26(1) of the Health Professions Procedural Code requires only “reasonable efforts” to obtain relevant information, not exhaustive inquiries. The ICRC reviewed hospital records, Dr. Solomon’s responses, and Welkoff’s submissions. The Board’s reasons were clear and justified, and therefore the investigation was adequate.

2. Procedural fairness

The court rejected Welkoff’s numerous fairness allegations. Many of Welkoff’s allegations with respect to procedural fairness related to fairness at the ICRC level, not the HPARB, and in any event, had not been raised by Welkoff to the HPARB. The record showed she had been given the respondent doctor’s submissions and an opportunity to reply. Concerns about delayed disclosure of decisions were factually incorrect. Overall, the court found she was afforded the level of fairness required.

3. Reasonableness of the remedial disposition

The court held that in this case the disposition was reasonable. The remedial disposition agreement directly addressed the deficiencies in Dr. Solomon’s care, and would require her to undergo additional training. Though the court acknowledged that using remedial agreements to sidestep transparency obligations could undermine the public interest, it concluded this case did not warrant intervention, especially since Dr. Solomon had already completed the program in 2023. The court flagged the issue as a potential systemic concern for the future.

In conclusion, the Supreme Court dismissed the application for judicial review. No costs were awarded, consistent with the parties’ agreement.

The decision reinforces the high deference courts give to regulatory bodies in professional discipline matters. Complainants are entitled to fairness but not to exhaustive investigations or outcomes of their choosing. The judgment also highlights a tension in Ontario’s regulatory framework: remedial agreements, even where serious concerns are identified, remain confidential, raising questions about transparency and public protection. While the court declined to intervene in this case, it signaled unease with outcomes that may avoid public scrutiny and left open the possibility that systemic use of such agreements could be challenged in the future.

This case was digested by Emma Jerrott.  If you would like to discuss this case further, please feel free to contact her directly at [email protected].