Ibrahim v. Pharmacists (Ontario College), 2011 ONSC 2505

CITATION: Ibrahim v. Pharmacists (Ontario College), 2011 ONSC 2505

DIVISIONAL COURT FILE NO.: DC 298/09

DATE: 20110421

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Ihab Ibrahim and Ashraf Hanna, Applicants

AND:

Ontario College of Pharmacists, Respondent

BEFORE: Aston J.

COUNSEL: Neil M. Abramson/Lindsay Kantor, for the Applicants

Nick Coleman/Michael Fenrick, for the Respondent

Kristin Smith, for the Third Party, Ministry of Health and Long-term Care

HEARD: April 5, 2011

ENDORSEMENT

[1] The applicants seek production of Third Party Records in advance of their pending judicial review application. They want the records produced to the Court for inspection using the procedure in R. v. O’Connor, 1995 51 (SCC), [1995] S.C.J. No. 98 (QL) and R. v. Mills, 1999 637 (SCC), [1999] S.C.J. No. 68 (QL). Alternatively, they seek the Court’s direction on how those records should be produced or summonsed.

[2] The applicants are facing discipline proceedings. In that matter, the Discipline Committee of the College dismissed their motion for disclosure of the Third Party Records and it vacated witness summonses targeting those records. The Discipline Committee’s decision of May 9, 2009 is the subject of the pending judicial review application, originally started as an appeal.

[3] The grounds for this motion are essentially “the ability to make full answer and defence” when a main issue at the Discipline Committee hearing will be credibility. The applicants assert that they will be deprived of the opportunity of a fair hearing before the Discipline Committee unless the Records, or at least some of them, are made available to them for that hearing.

[4] The applicants contend that unless these Records are available to the panel of this court which will hear the judicial review application next month, the court will be “unable to engage in the proper analysis concerning the production of the Third Party Records”.

[5] I disagree.

[6] In its decision, the Discipline Committee correctly stated the test for third party production established by the Supreme Court of Canada in O’Connor and Mills. The test is in two stages. At the first stage, the applicants had to demonstrate the likely relevance of the Third Party Records. Only at the second stage are those records produced for the Discipline Committee to inspect. The Discipline Committee dismissed the applicants’ motion at the first stage, ruling that the Third Party Records were not likely relevant. As such, the Third Party Records were never placed before the Discipline Committee and formed no part of the Tribunal’s record.

[7] Though the original challenge to the Discipline Committee decision took the form of an appeal, it was converted to a judicial review application by order of a panel of this court December 9, 2010. The Statutory Powers Procedure Act spells out the content of the Tribunal’s record in s. 20 of that Act. There are very limited circumstances when the Tribunal’s record may be supplemented on a judicial review application. See 142445 Ontario Ltd. (c.o.b. Utilities Kingston) v. I.B.E.W. Local 636 2009 24643 (ON SCDC), [2009] O.J. 2011 (Div.Ct.) and re Keeprite Workers’ Independent Union v. Keeprite Products Ltd. [1980] CarswellOnt. 762 (C.A.). In this instance, the applicants do not make a case that falls within the ambit of those decisions.

[8] The issue to be decided by the panel of this court on the pending judicial review application is simply whether the Tribunal committed an error of law at the first stage of the O’Connor and Mills analysis. An examination of the records puts the cart before the horse.

[9] If the panel of this court determines that the Tribunal erred in its decision of May 9, 2009, it would be up to the Tribunal, not the court, to examine the records and then determine, what if anything, ought to be produced. This court might offer the Tribunal some guidance in that exercise but it should not usurp the function of the Tribunal, particularly on an interlocutory decision, however important it might prove to be to the outcome.

[10] The motion is dismissed. The parties have agreed that the costs of the motion will be determined by the panel hearing the judicial review application next month. I am prepared to abide by their agreement in that regard.

Aston J.

Date: April 21, 2011