Ibrahim and Hanna v. Ontario College of Pharmacists, 2011 ONSC 3360

CITATION: Ibrahim and Hanna v. Ontario College of Pharmacists, 2011 ONSC 3360

COURT FILE NO.: 298/09

DATE: 20110531

SUPERIOR COURT OF JUSTICE - ONTARIO

(DIVISIONAL COURT)

RE: Ihab Ibrahim and Ashraf Hanna v. Ontario College of Pharmacists

BEFORE: Justices J. Wilson, Swinton, and R. Smith

COUNSEL: Neil Abramson and Lindsay Kantor, for the Applicants Nicholas Coleman and Michael Fenrick, for the College Alexi Wood, for Doctors Lee and Ng Kristin Smith, for the Ministry of Health and Long-Term Care

HEARD AT TORONTO: May 31, 2011

ENDORSEMENT

[1] The applicants seek judicial review of an interlocutory decision of the Discipline Committee of the Ontario College of Pharmacists dated May 20, 2009, in which it refused a motion for disclosure of third party records and quashed summonses to Doctors Lee and Ng and a representative of the Ministry of Health and Long-Term Care.

[2] The applicants sought extensive disclosure, including access to the original patient charts for TK from Dr. Lee and from the family physician Dr. Ng for the entire period of treatment spanning several years; OHIP billing information and patient encounter forms for all patients that Dr. Lee saw on specified days, amounting to 140 patients, as well as Dr. Lee’s appointment book for those days. They sought Dr. Lee’s original chart so that they could obtain a forensic analysis of it.

[3] This proceeding began when Dr. Lee made a complaint to the College that the applicants had improperly dispensed Modecate (fluphenzine) to TK in January 2005, rather than the drug he prescribed injectible fluanxol. The applicants take the position that they had received a telephone prescription from Dr. Lee for Modecate, which he denies.

[4] The respondent College takes the position that this application is premature, and the Court should not exercise its discretion to hear this application for judicial review.

[5] Judicial review is a discretionary remedy. This Court has long taken the position that it will not entertain an application for judicial review of an interlocutory decision of an administrative tribunal absent a showing of exceptional or extraordinary circumstances (Ontario College of Art v. Ontario (Human Rights Commission), 1993 3430 (ON SCDC), [1993] O.J. No. 61 (Div. Ct. ) at para. 4). As the Court of Appeal stated in Howe v. Institute of Chartered Accountants, 1994 3360 (ON CA), [1994] O.J. No. 1803 at para. 13, “the court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it.”

[6] The applicants do not allege that the Discipline Committee lacked jurisdiction to decide the motion for production. Rather, they argue that the Discipline Committee exceeded its jurisdiction by its decision that the records were not likely relevant. They also argue that they will be denied a fair hearing if they do not have access to the third party records so that counsel can prepare for cross-examination.

[7] In our view, this application is not one of those extraordinary or exceptional cases where this Court should exercise its discretion to intervene at this point in the proceedings. In our view, and for the following reasons, the decision of the Discipline Committee does not result in a denial of natural justice that taints the fairness of the future proceedings.

[8] First, on an examination of the record before this Court, it is apparent that extensive disclosure has been made, including the following:

• the prescription records from Dr. Lee for all injectible anti-psychotic drugs prescribed to TK during the entire period she was a patient;

• a list from Dr. Ng of all injections of anti-psychotic drugs to TK while she was a patient;

• a copy of T.K.’s chart from Dr. Lee for January 1, 2005 to May, 2005 (including a carbon copy of the prescription for injectible fluanxol);

• a copy of Dr. Ng’s chart for T.K. from January to April 2005

• a redacted copy of Dr. Lee’s appointment book for January 5, 2005, all OHIP billings for that day, and the patient encounter form for YSL.

• copies of Dr. Lee’s notes of his phone calls to the applicants made in April 2005, as well as transcriptions of some messages.

[9] Second, with respect to the access to the original chart for purposes of a forensic analysis, the Discipline Committee found that the applicants had established no evidentiary basis to justify such an analysis. Moreover, the applicants have never taken an opportunity to inspect the original of the parts of the chart previously disclosed, which the College has indicated is available for inspection.

[10] Third, this proceeding is ongoing, with the first hearing dates on the merits scheduled for November, 2011. Should there be a change in circumstances or new evidence that comes to light that would affect the likely relevance of some or all of the documents, the applicants can seek disclosure from the Discipline Committee. That Committee is in the best position to determine the appropriate process for scheduling and determining if there is a need for a further adjournment if further disclosure is ordered.

[11] Fourth, counsel for the applicants argued that he needed the OHIP and patient encounter records in order to conduct a cross-examination of Dr. Lee for purposes of attacking his credibility.

[12] It appears the applicants seek these records for the purposes of a collateral attack on Dr. Lee’s credibility based on his billing practices with OHIP. We share the view of the Discipline Committee that the OHIP billings and the patient contact forms do not meet the likely relevance test for production.

[13] An earlier panel of the Divisional Court converted the applicants’ appeal to an application for judicial review on January 11, 2011. At that time, the panel left it to the present panel to determine whether the application is premature, based on a proper record (see 2010 ONSC 99 at para. 10). Based on our review of the record, requiring the applicants to proceed to a hearing without this further production is not unfair and does not warrant the intervention by this Court at this time. Therefore, the application for judicial review is quashed for prematurity.

J. Wilson J.

Swinton J.

R. Smith J.

DATE: May 31, 2011