Court File and Parties
DIVISIONAL COURT FILE NO.: 298/09
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MESSRS. IHAB IBRAHIM AND ASHRAF HANNA (Moving Parties/Appellants)
AND:
ONTARIO COLLEGE OF PHARMACISTS (the "College") (Responding Party/Respondent)
BEFORE: JENNINGS, MOLLOY and DALEY JJ.
COUNSEL: Neil M. Abramson, for the Appellants Nick Coleman, for the Respondent Ontario College of Pharmacists Seanna Callaghan, for the Respondent the Independent Legal Counsel for the Discipline Committee of the Ontario College of Pharmacists Lise G. Favreau and Kristen Smith, for the Ministry of Health Lisa Constantine, for Dr. Francis Lee and Dr. Nelly Wing Kwong Ng
HEARD: DECEMBER 9, 2010 at Toronto
Endorsement
Endorsement
1The appellants bring a motion to the full panel of this Court, pursuant to the provisions of s.21(5) of the Courts of Justice Act R.S.O. 1990 c.C43, asking that the order of Sachs J. dated September 24, 2010, be set aside or varied.
2The order of Sachs J.:
(a) quashed the appellants' appeal to the Divisional Court pursuant to s.70 of the Health Professions Procedural Code, from an order of the Discipline Committee of the respondent College refusing production of third party records;
(b) refused to convert the appeal into an application for judicial review.
Standard of Review
3Our role in an application under s.21(5) is to review the decision in accordance with the standard of review articulated by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, that is correctness on matters of law and culpable and overriding error on findings of fact (see 3394603 Canada Inc. v. Ontario, [2008] O.J. No. 5173).
Analysis
4Sachs J. found that the order of the Committee was interlocutory. We agree. Applying Roosma v. Ford Motor, 1988 5633 (ON SCDC), [1988] O. J. No. 3114, a decision of a panel of this court, she held that no appeal lies to this court from an interlocutory order under s.70 of the Code. The order was clearly interlocutory and we find that she was correct in her decision. The motion to set aside or vary her order in that regard is dismissed.
5We also agree with Sachs J.'s observation about the well established principle that in the absence of special circumstances, which unless corrected immediately might irrevocably taint the whole process, administrative tribunals should be allowed to complete their work without being derailed by applications for Judicial Review. (see Howe v. Institute of Chartered Accountants, 1994 3360 (ON CA), [1994] O.J. No. 1803 (C.A.)). That said, we are of the opinion that this may be one of those rare cases warranting consideration by a full panel, notwithstanding the fact that the case is at a preliminary stage. The appellants have raised an arguable point that they are entitled, as a matter of procedural fairness, to production of third party records sufficient for counsel to effectively cross-examine the two key witnesses to be presented by the College at the hearing, the treating psychiatrist and the family doctor.
6This case hinges to a great extent on the credibility of the psychiatrist. His anticipated evidence will be that he issued a written prescription for an injectible drug that he had prescribed previously for his patient and that the drug was routinely injected by the family doctor. The pharmacists are expected to say that the psychiatrist telephoned in a prescription for a different drug. The pharmacists raise an issue as to what the psychiatrist was doing at the time he was alleged to have had conversations with them on the telephone and for that purpose they wish to access his records to show his schedule on the days of the telephone conversations (without revealing patient names) and also his billings to OHIP for what he billed on those days (again without revealing patient names) in order to test his credibility.
7They also seek the records of the family doctor of the times when he injected the drugs prescribed by the psychiatrist.
8The Discipline Committee has ruled that the pharmacists have no right to subpoena the documents which are in the hands of third parties, but that they can be made available at the hearing. They will not be available at the hearing unless they are subpoeaned in advance and the Committee has ruled that there is no right to subpoena them. Further, counsel requires the documents in advance of the hearing in order to effectively prepare for cross-examination.
9In our opinion, Sachs J. did not consider the disruption to the hearing that would be caused by an adjournment after it had commenced so that the documents could be produced and counsel could properly prepare. Nor did she consider the likelihood that requiring the pharmacists to proceed to a hearing without the documents would be so fundamentally unfair as to vitiate the hearing upon subsequent judicial review.
10On balance, we believe the question of entertaining judicial review at this stage should be better left to the full panel which will have before it a proper record. We therefore set aside Sachs J.'s refusal to convert the motion into an application for judicial review and direct that the notice of appeal shall be treated as a notice of application for judicial review. The appellants shall prepare an application record and a factum and serve and file the same by January 24. The respondent shall have 20 days to serve and file its factum. The hearing of the application is to be expedited.
11We observe that as the appeal has been dismissed, there is no stay of proceedings and the College may complete its investigation and schedule a hearing.
Costs
12Success on this application for review being divided, there will be no order as to costs.
JENNINGS J.
MOLLOY J.
DALEY J.
RELEASED: January 11, 2011