Court File and Parties
CITATION: Attorney General of Ontario v. Hanif, 2014 ONSC 2687
DIVISIONAL COURT FILE NO.: 363/13
DATE: 20140505
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Attorney General of Ontario, Appellant
AND:
Mohamed Imran Hanif and Ontario College of Pharmacists, Respondents
BEFORE: R.D. Gordon, R.S.J., Lederman J. and Kiteley J.
COUNSEL: Josh Hunter, for the Attorney General of Ontario
Neil Abramson and Lindsay Kantor, for Mohammed Imran Hanif
Brian Gover and Aaron Dantowitz, for the College of Pharmacists
Josh Hunter, for the Respondents/Moving Party, Her Majesty the Queen in Right of Ontario and the Attorney General
HEARD: March 13, 2014
Endorsement
BY THE COURT
Nature of Appeal
[1] This is an appeal by the Attorney General of Ontario (the “Attorney General”) from the decision of the Discipline Committee (the “Discipline Committee”) of the Ontario College of Pharmacists (the “College”), dated July 10, 2013, dismissing the Attorney General’s motion to reconsider and set aside its order of June 21, 2012 wherein it held that the mandatory revocation order that it imposed on Mohammed Hanif to practise pharmacy could be suspended under section 51(4) of the Health Professions Procedural Code, 1991, S.O. 1991, c. 18 ( the “Code”).
[2] The background facts are set out more fully in the accompanying endorsement of this Court dismissing a motion by the Attorney General to set aside the Order of Himel J. dated November 13, 2013.[^1]
[3] The Attorney General requests an order striking out paragraph 3 of the order of the Discipline Committee suspending the revocation and requiring the College to immediately revoke Mr. Hanif’s Certificate of Registration. The College opposes the appeal but concurs that, if the Attorney General is successful, the proper remedy is to strike out only the suspension from the order. Mr. Hanif opposes the appeal but argues that if the Attorney General is successful the entire order should be set aside.
Issue on Appeal
[4] The key issue on this appeal is whether the Discipline Committee lacked jurisdiction to suspend the mandatory revocation. This court has jurisdiction to hear the appeal under section 70 of the Code.
The Discipline Committee’s Decision
[5] The Discipline Committee held that it had jurisdiction to suspend the mandatory revocation based on its interpretation of section 51 of the Code. The relevant parts of section 51 are as follows:
- (1) A panel shall find that a member has committed an act of professional misconduct if,
(b.1) the member has sexually abused a patient
(2) If a panel finds a member has committed an act of professional misconduct, it may make an order doing any one or more of the following:
Directing the Registrar to revoke the member’s certificate of registration.
Directing the Registrar to suspend the member’s certificate of registration for a specified period of time.
Directing the Registrar to impose specified terms, conditions and limitations on the member’s certificate of registration for a specified or indefinite period of time.
Requiring the member to appear before the panel to be reprimanded.
Requiring the member to pay a fine of not more than $35,000 to the Minister of Finance.
5.1 If the act of professional misconduct was the sexual abuse of a patient, requiring the member to reimburse the College for funding provided for that patient under the program required under section 85.7.
5.2 If the panel makes an order under paragraph 5.1, requiring the member to post security acceptable to the College to guarantee the payment of any amounts the member may be required to reimburse under the order under paragraph 5.1.
(4) A panel may suspend the effect of all or part of an order made under subsection (2) for a specified period and on specified conditions.
(5) If a panel finds a member has committed an act of professional misconduct by sexually abusing a patient, the panel shall do the following in addition to anything else the panel may do under subsection (2):
Reprimand the member.
Revoke the member’s certificate of registration if the sexual abuse consisted of, or included, any of the following:
ii. genital to genital, genital to anal, oral to genital, or oral to anal contact.
[6] The Discipline Committee held, at para. 60 of its decision dated July 10, 2013, that subsection 51(5) is a “directive or constraint on the discretion given under section 51(2) in instances of finding of sexual abuse, and is not a separate order-making power.” It, thus, found that a mandatory revocation order, like any other penalty imposed under subsection 51(2), could be suspended by it under section 51(4).
Standard of Review
[7] Counsel for the Attorney General submits that the appropriate standard of review is correctness because the issue before us is a “true question of jurisdiction”. Counsel for Mr. Hanif agrees. Counsel for the College argues that the appropriate standard of review is reasonableness.
[8] In Dunsmuir v. New Brunswick[^2] the Supreme Court reserved the standard of correctness for administrative determinations of true questions of jurisdiction and said that jurisdiction is “intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.”
[9] In cases subsequent to Dunsmuir, the Supreme Court has gone some way towards effectively abandoning “true questions of jurisdiction” in determining whether a legal question attracts the correctness standard on review. For instance, in Canada (Canadian Human Rights Commission) v. Canada (Attorney General),[^3] the court said the following at para 24: “In substance, if the issue relates to the interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference.” Also in 2011, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association,[^4] the Court questioned whether the category of “true questions of jurisdiction” truly exists or is necessary, and stated as follows:
34 The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir, this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review. However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of “its own statute or statutes closely connected to its function, with which it will have particular familiarity” should be presumed to be a question of statutory interpretation subject to deference on judicial review…
39 . . . True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s interpretation of its home statute on the deferential standard of reasonableness.
[10] In McLean v. British Columbia (Securities Commission),[^5] the Court reiterated at para. 31 that “the modern approach to judicial review recognizes that courts ‘may not be as well qualified as a given agency to provide interpretations of that agency’s constitutive statute that make sense given the broad policy context within which that agency must work’ ”.
[11] In the appeal before us, the issue relates to the interpretation and application of the Discipline Committee’s home statute. The issue is within the expertise of the Committee and does not raise issues of general legal importance. We agree with counsel for the College that the standard of reasonableness applies.
The Position of the Attorney General
[12] Counsel for the Attorney General submits that the Discipline Committee’s interpretation and conclusion are in conflict with the structure of section 51, the legislative history of the Code, and the Code’s overall context. Counsel argues that section 51(5) imposes additional mandatory penalties on regulated health professionals who sexually abuse their patients. This subsection was enacted to remove the College’s discretion over what penalty is appropriate for such conduct. Such an interpretation is also consistent with section 71.1 of the Code which prevents an automatic stay pending appeal of a mandatory revocation imposed by a Discipline Committee for sexual abuse. Counsel for the Attorney General submits, therefore, that to allow a Discipline Committee to suspend a mandatory revocation is inconsistent with both the purposes and the wording of the Code.
Analysis
[13] In its reasons dated June 29, 2012, the Discipline Committee held that section 51(5) does not confer additional powers, but rather is a directive or constraint on the discretion given under section 51(2). We are of the view that the Discipline Committee’s interpretation was reasonable having regard to the following:
a) The plain wording of section 51(5) states, in part, that “the panel shall do the following in addition to anything else the panel may do under subsection (2)…” Specifically, section 51(5) tells the Discipline Committee that, in making an order under section 51(2), it must include a reprimand and revocation, along with any order it may see fit. The order is still a “section 51(2) order.” The suspension provision in s. 51(4) allows a Discipline Committee to suspend the effect of all or part of an order made under s. 51(2).
b) Section 51(5) does not state that the revocation must be immediate which creates the possibility that the revocation may be suspended under the Code.
c) The Courts have, notwithstanding section 51(5), when appropriate, imposed a stay of such revocation orders pending completion of appeals. The Courts have not held that because of the mandatory nature of the revocation, a stay should not be granted.
d) The College and Mr. Hanif’s Joint Submission for a suspension of the revocation is the type of matter that should be determined by the Discipline Committee, not by the Courts. It is well settled that a tribunal like the Discipline Committee should do what it reasonably can before a matter is taken to a court of law.
e) The proper interpretation to be placed on section 71.1 of the Code is that while it creates a presumption that that there is no automatic stay of the Discipline Committee’s decision pending an appeal, it does not prevent a Discipline Committee from ordering a suspension of a revocation in circumstances such as this case.
Conclusion
[14] It follows that the appeal is dismissed.
[15] If counsel are unable to agree as to costs, they shall provide written submissions by May 30, 2014.
R.D. Gordon, R.S.J.
Lederman J.
Kiteley J.
Date: May 5, 2014
[^1]: 2014 ONSC 2598 [^2]: 2008 SCC 9, [2008] 1 S.C.R. 190 [^3]: 2011 SCC 53 [^4]: 2011 SCC 61 [^5]: 2013 SCC 67