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Court says doctors must make referrals, despite religious objections

May 15, 2019

The Law Times talks to Kelly Doctor about an important Court of Appeal decision

The Ontario Court of Appeal released a decision today in which it made clear that physicians have an obligation to make an effective referral to another health care provider if they do not wish to provide a service based on personal religious beliefs.

The decision, which upheld an earlier decision by the Divisional Court, arose when several physicians and physicians’ groups challenged the constitutionality of College of Physicians and Surgeons’ policies requiring doctors to make an “effective referral” when they refuse, on religious grounds, to perform procedures like abortion, tubal ligation, gender reassignment surgery, and medical assistance in dying. The applicants claimed that having to comply with the policies violated their freedom of religion under s. 2(a) of the Canadian Charter of Rights and Freedoms.

An “effective referral” is defined under the policies as a “referral made in good faith, to a non-objecting, available and accessible physician, other health-care professional, or agency.”  The Divisional Court held that, while the requirement to comply with the policies violated s. 2(a), it was a reasonable limit on their rights within the meaning of s. 1 of the Charter. The Court of Appeal agreed with the Divisional Court.

The Law Times spoke to Kelly Doctor, who acted for the intervener, Dying With Dignity Canada:

Kelly Doctor, a partner at Goldblatt Partners LLP in Toronto, acted as counsel for Dying with Dignity Canada, an intervener in the matter. In total, there were five organizations in the matter who intervened on behalf of the appellants, and four who intervened in support of the college.

Doctor says the ruling illustrates that when patients do not receive a proper referral, they can suffer effects like shame or stigma, or slower access to health care.

They may be unable to access the care they need, she says.

The ruling also shows that patients “should not have to bear the burden of managing the consequences that flow from a doctor’s religious objection,” she says.

“The court rejected the notion that handing a patient a brochure, phone number or website address and sending them out to navigate the health care system on their own would be a sufficient substitute to an effective referral,” she says.

Read the entire Law TImes article here.

Kelly also spoke to CBC’s Toronto at 6 about the ruling. Watch the video here, starting at 7.05.

Read a summary and the Court of Appeal decision here.



Kelly Doctor, Mary-Elizabeth Dill

Practice Areas

Appeals & Judicial Review, Constitutional Law