CITATION: Aljawhiri v. Pharmacy Examining Board of Canada, 2017 ONSC 2609
DIVISIONAL COURT FILE NO.: 405/14
DATE: 20170426
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, TAYLOR and MATHESON JJ.
BETWEEN:
STEVE ALJAWHIRI
Applicant
– and –
PHARMACY EXAMINING BOARD OF CANADA
Respondent
Brendan Clancy, Alexi N. Wood and David Matas for the Applicant
Timothy Pinos and Jed Blackburn, for the Respondent
HEARD at Toronto: April 26, 2017
TAYLOR J. (Orally)
[1] The Applicant seeks judicial review of what he says is a decision of the Pharmacy Examining Board of Canada in response to his request to allow him to attempt the examination for qualification as a pharmacist for the 5th time.
[2] There are three issues:
(1) Whether the letter from the Board in response to the request to permit the applicant to write the examination a 5th time was a reviewable decision;
(2) Whether the Act of Parliament creating Pharmacy Examining Board of Canada is ultra vires;
(3) If the Act is not ultra vires, whether the limit on the number of attempts to write the examination is ultra vires.
[3] We are not convinced that the letter from the Pharmacy Examining Board of Canada dated August 29, 2012 is a decision which is reviewable. The letter in question was in response to a request by the Applicant’s lawyer to permit the Applicant to write the examination for a 5th time. In our view, the response did nothing more than set out that there is a rule which permits a person to write the examination 3 times plus a further time after completing remedial steps. The Registrar – Treasurer of the Pharmacy Examining Board of Canada, who was the author of the response, was not empowered to permit a 5th attempt to pass the exam: Dumbrava v. Minister of Citizenship and Immigration, 1995 CarswellNat 1229.
[4] Having found there to be no reviewable decision, it is not necessary to deal with the argument about reasonableness.
[5] We do not agree that the Act creating the Pharmacy Examining Board of Canada was ultra vires Parliament because it does not purport to regulate the profession. The Act merely authorizes the Board to create and administer an examination for qualification of pharmacists across Canada which provincial licensing bodies may use if they wish to but are not obliged to.
[6] We find that limiting the number of times a person can write the examination is nothing more than establishing the terms and conditions of the examination as s. 11(c) of the Act permits. It does not result in any regulation of the profession by restricting entry into the profession. It is the provincial licensing bodies that make those decisions. Accordingly the creation of the attempt limit is not ultra vires the statute.
[7] For these reasons the application is dismissed.
costs – Kiteley j.
[8] I have endorsed the back of the Application Record as follows: “This application is dismissed for oral reasons given. Applicant shall pay costs fixed at $30,000 all in.”
___________________________ TAYLOR J.
I agree
KITELEY J.
I agree
MATHESON J.
Date of Reasons for Judgment: April 26, 2017
Date of Release: April 27, 2017
CITATION: Aljawhiri v. Pharmacy Examining Board of Canada, 2017 ONSC 2609
DIVISIONAL COURT FILE NO.: 405/14
DATE: 20170426
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
KITELEY, TAYLOR and MATHESON JJ.
BETWEEN:
STEVE ALJAWHIRI
Applicant
– and –
PHARMACY EXAMINING BOARD OF CANADA
Respondent
ORAL REASONS FOR JUDGMENT
TAYLOR J.
Date of Reasons for Judgment: April 26, 2017
Date of Release: April 27, 2017