COURT FILE NO.: 578/06
DATE: 20080912
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON AND KARAKATSANIS JJ.
B E T W E E N:
ROSHDY BOSHARA Appellant
- and -
ONTARIO COLLEGE OF PHARMACISTS Respondent
Edward L. Greenspan, Q.C., for the Appellant Nick Coleman and Megan E. Shortreed, for the Respondent
HEARD at Toronto: September 12, 2008
ORAL REASONS FOR JUDGMENT
CARNWATH J.: (Orally)
[1] The appeal will be dismissed.
[2] The appellant, Roshdy Boshara, appeals from the decision of the Discipline Committee of the respondent, the Ontario College of Pharmacists, which prohibited him from having any proprietary interest in a pharmacy, and from working at a pharmacy in which a family member has a proprietary interest for a period of three years.
[3] The decision of the Committee was based upon an Agreed Statement of Facts (Schedule A to the Committee’s decision) and the guilty plea by Mr. Boshara to nineteen counts of misconduct related to fraudulent billing practices in respect of one patient. By agreement, the decision also imposed five other penalty terms on Mr. Boshara. These aspects of the order are not challenged. Mr. Boshara seeks to have the sixth penalty term of the order regarding the three year ban set aside, or in the alternative, to have the sixth penalty term substituted with a spot audit requirement.
[4] The appropriate standard of review of the Committee’s decision is reasonableness. This conclusion was reached by the Supreme Court of Canada in Law Society of New Brunswick v. Ryan [2003] S.C.C. 20 at para. 42:
On the question of the appropriate sanction for professional misconduct, the Court of Appeal should not substitute its own view of the “correct” answer but may intervene only if the decision is shown to be unreasonable.
[5] We refuse the application to admit fresh evidence. It does not meet the test in R. v. Palmer, [1980] 1 S.C.R. 759. We have reviewed the affidavit and find it does not assist us in any event.
[6] We reject the submission the Committee considered the late acknowledgement of guilt an aggravating factor when imposing sanctions. Counsel for the College made this clear in the submissions at the hearing. Nowhere in the reasons for the decision can we draw an inference that the Committee punished the appellant for his late plea.
[7] We reject the submission that the minor amount involved makes the sanction imposed unduly harsh and disproportionate.
[8] We conclude the Committee was moved by the number of individual false claims, together with the efforts to conceal the wrongdoing by falsifying records, even while the investigation was ongoing.
[9] We reject the submission that the decision punishes the wife. The proscription against the appellant working for his wife is consistent with the Committee’s concerns.
[10] In view of the sustained level of misinformation in the form of falsified prescriptions, the Committee determined protection of the public was required. Access to a pharmacy as owner was not in the public interest.
[11] It was reasonable to ensure that the appellant did not benefit indirectly from his involvement in his wife’s business. The character of the wife is not an issue; the character of the appellant is in issue.
[12] Applying the standard in Ryan, we find the decision of the Committee to be reasonable. Nineteen separate acts of dishonesty were followed by ongoing attempts to conceal them up to the time of the hearing.
COSTS
[13] We are unanimously of the view that the costs imposed should be $15,000, inclusive of fees, disbursements and GST on a partial indemnity basis, payable in 30 days. We base our decision firstly on the admonition in Boucher to keep in mind what a losing litigant might be reasonably expected to pay. Secondly, the admonition that fixing costs is not just a mathematical exercise of taking the hours, multiplied by the hourly rate. That forms the basis of our decision.
CARNWATH J.
SWINTON J.
KARAKATSANIS J.
Date of Reasons for Judgment: September 12, 2008
Date of Release: September 16, 2008
COURT FILE NO.: 578/06
DATE: 20080912
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CARNWATH, SWINTON AND KARAKATSANIS JJ.
B E T W E E N:
ROSHDY BOSHARA Appellant
- and -
ONTARIO COLLEGE OF PHARMACISTS Respondent
ORAL REASONS FOR JUDGMENT CARNWATH J.
Date of Reasons for Judgment: September 12, 2008
Date of Release: September 16, 2008