Abdul v. Ontario College of Pharmacists, 2017 ONSC 2613

CITATION: Abdul v. Ontario College of Pharmacists, 2017 ONSC 2613

DIVISIONAL COURT FILE NO.: DC-16-527-JR

DATE: 20170606

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

KITELEY, NIGHTINGALE & MATHESON JJ.

BETWEEN:

SALAM ABDUL

Applicant

– and –

ONTARIO COLLEGE OF PHARMACISTS

Respondent

COUNSEL:

Neil M. Abramson and Robert Barbiero, for the Applicant

Aaron Dantowitz and Benjamin Kates, for the Respondent

HEARD at Toronto: April 3, 2017, followed by written submissions

REASONS FOR DECISION

MATHESON J.:

[1] This is an application for judicial review of a decision of a panel of the Discipline Committee of the Ontario College of Pharmacists (the “Panel”) dated July 26, 2016. The Panel dismissed the applicant’s motion to quash disciplinary charges brought against him. The public member of the Panel dissented, strongly disapproving of the conduct of the College.

[2] At the core of this application is the College’s failure to properly address a complaint made against the applicant. The disciplinary charges at issue arose from the complaint. For the reasons that follow, I conclude that the Panel’s decision dismissing the applicant’s motion to quash was unreasonable.

Events giving rise to motion to quash

[3] The applicant is a member of the College and is a part-owner and director of a pharmacy called the Health & Wellness Pharmacy in Windsor, Ontario.

[4] A complaint was made against the applicant by a territorial manager with Janssen Inc., a pharmaceutical company, regarding observations the complainant made on September 26, 2012.

[5] The complainant was concerned that the applicant’s pharmacy was dispensing Risperdal Consta injections to the Canadian Mental Health Association Injection Clinic (the “CMHA Clinic”), subsequently picking up unused vials of the medication, and re-dispensing the unused vials to other patients. Risperdal Consta, an anti-psychotic, was a Janssen drug. The complainant was responsible for marketing Risperdal Consta for Janssen.

[6] Before filing her complaint, the complainant spoke to a member of the College Council – Christine Donaldson – who was also the pharmacy manager at the Hôtel Dieu Grace Hospital in Windsor. Ms. Donaldson suggested that she make a complaint to the College.

[7] The complaint was filed with the College on October 30, 2012. It was prepared using the College’s complaint form.

[8] Subsection 25(1) of the Health Professions Procedural Code[^1] (the “Code”) required that a panel be selected by the chair of the Inquiries, Complaints and Reports Committee (the “ICRC”) to investigate the complaint. This did not occur.

[9] Under s. 25(6) of the Code, the Registrar of the College was required to give the applicant notice of the complaint within 14 days of its receipt. This did not occur.

[10] Under s. 25.2(1) of the Code, the applicant was entitled to make written submissions to the ICRC in response to the complaint, within 30 days of receiving the complaint. Having not received notice of the complaint, the applicant was obviously unable to do so.

[11] Under s. 25(5) of the Code, the Registrar was required to give the complainant notice of receipt of her complaint along with information about the College’s processes. This did not occur upon receipt of the complaint although there was some contact at a later stage, referred to below.

[12] The College has provided no explanation for its failure to comply with the mandatory statutory obligations that arose upon receipt of the complaint.

[13] Toward the end of 2012, Ms. Donaldson had a conversation with Maryan Gémus, the Manager of Investigations and Resolutions at the College. Ms. Donaldson told Ms. Gémus that she had developed concerns about the Health & Wellness Pharmacy and its manager, the applicant. She told Ms. Gémus of her prior discussion with the complainant. She told Ms. Gémus that she had encouraged the complainant to make a complaint to the College.

[14] At some point after this discussion, Ms. Gémus obtained the complaint. It is not clear when she did so, but on February 1, 2013, Ms. Gémus contacted both the complainant and Ms. Donaldson. These contacts became a point of controversy on the applicant’s motion to quash before the Panel.

[15] Ms. Gémus contacted Ms. Donaldson and prepared a memo to file. She requested any additional information Ms. Donaldson had about the alleged activities at the applicant’s pharmacy. Ms. Donaldson agreed to provide any additional information and later did so.

[16] Ms. Gémus also contacted the complainant and prepared another memo to file. The memo to file indicates that Ms. Gémus was calling the complainant to clarify what had happened at the CMHA Clinic and to obtain additional information in that regard. The memo to file includes the additional information obtained from the complainant as a result of the call.

[17] Ms. Gémus has attested in these proceedings that she also called the complainant to confirm how the complainant intended that the College proceed with respect to her concerns. She did so even though the complaint had been submitted on the College’s complaint form and was obviously a complaint.

[18] In her phone conversation with the complainant, Ms. Gémus explained the differences between a complaint investigation and an investigation initiated by the Registrar under s. 75(1)(a) of the Code. Ms. Gémus then sent the complainant an email summarizing the phone discussion. The email discusses the “two ways” the College could deal with information that it had received – either as a formal complaint or as a “Registrar’s Inquiry” pursuant to the appointment of investigators under s. 75(1)(a) of the Code. And as set out in that email, Ms. Gémus told the complainant that, “Either option remains open to you.”

[19] By raising these options, Ms. Gémus was inviting the complainant to consider withdrawing her formal complaint in favour of a Registrar’s investigation.

[20] The email to the complainant did not mention that the prescribed statutory steps for complaints processing had not been taken by the College.

[21] On February 5, 2013, the complainant responded to Ms. Gémus by email, indicating that she had decided to retract her complaint and instead have it proceed as a Registrar’s Inquiry.

[22] By memo dated March 1, 2013, Ms. Gémus sought approval for a s. 75(1)(a) investigation. She requested that the Registrar of the College review her memo and enclosures and determine whether the Registrar believed that the threshold for a s. 75(1)(a) investigation was met. More specifically, she asked whether the Registrar believed that there were reasonable and probable grounds that the applicant had committed an act of professional misconduct or was incompetent, as required to seek the appointment of an investigator under s. 75(1)(a) of the Code.

[23] The memo to the Registrar does not state that a formal complaint had been filed on October 30, 2012. The information from the complainant is under the headline “February 1, 2013.” The memo does not describe the discussion in which Ms. Gémus raised the choice between the “two ways” the complainant could proceed. The memo to the Registrar simply noted that on February 5, 2013, the complainant emailed to say she was withdrawing her complaint and wished to have the matter proceed as a Registrar’s Inquiry. Thus, rather than saying that a written complaint had been filed, the memo reads as if a verbal complaint was made and then withdrawn.

[24] Background documents were attached to the memo to the Registrar, specifically Ms. Gémus’ emails and memos to file arising from her inquiries of February 1, 2013, along with a form used to appoint an investigator. The complaint dated October 30, 2012 was not attached. The email about the “two ways” the complainant could proceed was not separately attached, but was part of the email chain below the complainant’s email indicating her choice to withdraw the complaint. Nor did that email mention the October 30, 2012 date of the original complaint.

[25] On March 6, 2013, the Registrar signed the appointment of investigator under s. 75(1)(a) of the Code that had been attached to the memo.

[26] Ms. Gémus sought the required approval for the investigation from the ICRC by memo dated March 6, 2013. That memo attached her memo to the Registrar of March 1, 2013, and also omitted the full complaint history. The appointment was approved by the ICRC on March 21, 2013.

[27] It appears that there was no urgency from the College’s standpoint. Almost a year went by before an investigator attended at the applicant’s pharmacy on February 5, 2014.

[28] The applicant provided information in the course of the investigation. However, the alleged events regarding the CMHA Clinic from September 2012 did not come to his attention until he received a copy of the Report of Investigation in June 2014. The Report provided a summary of the events complained of in the original complaint. The Report also stated (wrongly) that the complainant’s information was brought to the College’s attention on February 1, 2013.

[29] The applicant was given an opportunity to respond to the Report. He did so by email indicating that the lawyer who had represented him during the investigation had already provided answers to the investigator’s questions. The applicant gave a brief additional reply to one issue.

[30] By Notice of Hearing dated November 20, 2014, allegations of professional misconduct were referred to a discipline hearing. The allegations focused on the alleged re-dispensing of Risperdal Consta and related issues regarding record keeping and allegedly false claims to the Ontario Drug Benefit Program in respect of Risperdal Consta. In its submissions on the judicial review application, the College conceded that the allegations in the Notice of Hearing arose from the original complaint.

Motion to quash

[31] The applicant moved before the Discipline Committee to quash the referral to discipline. In short, the applicant submitted that the College had circumvented the requirements of the Code regarding complaints and improperly proceeded with the s. 75(1)(a) investigation after an informal and improper investigation by Ms. Gémus. Alternatively, the applicant submitted that the College’s conduct was an abuse of process.

[32] A three-person panel of the Discipline Committee heard the motion. The motion was dismissed, with a dissenting opinion by the public member, who is a lawyer.

[33] The majority of the Panel did not address the College’s failure to take the mandatory statutory steps under the Code with respect to the complaint, including the selection of a panel and notice to the applicant. The majority did find that the timing of the College’s handling of the complaint was “somewhat irregular” and that they were “puzzled” by the delay between the receipt of the complaint and Ms. Gémus’ phone call to the complainant.

[34] The majority also found that there was nothing improper about the steps taken by Ms. Gémus in contacting the complainant and Ms. Donaldson. In reaching that conclusion they relied, among other things, on Ms. Gémus’ experience as a Manager of Investigations and Resolutions and as a “seasoned professional” playing an important role at the College.

[35] The majority also relied on s. 25(5) of the Code, which requires that the Registrar give a complainant notice of receipt of a complaint and a general explanation of the College processes. The majority did not address the absence of any reference to the October 30, 2012 complaint in the memo to the Registrar inviting a s. 75 investigation or in the documents that followed it.

[36] The majority agreed that “on the surface” abuse of process may be a concern but that given the seriousness of the allegations and the potential for harm to the public, the “irregular” process used by the College was not sufficient to warrant quashing the allegations. The majority also found that the applicant had not been prejudiced. With respect to the potential for harm to the public, the majority said nothing about the almost one-year delay between the s. 75 appointment of an investigator and the commencement of the investigation.

[37] The majority concluded that “due process” had been followed, and the Discipline Committee had the jurisdiction to proceed, because of the following:

(a) the complaint “was handled properly by the College”;

(b) the request for the appointment of an investigator under s. 75(1)(a) of the Code was “appropriate”;

(c) the ICRC approved the appointment of a s. 75(1)(a) investigator; and

(d) the referral to discipline “then followed.”

[38] In a lengthy dissenting opinion, the public member went through a detailed consideration of the events giving rise to the referral to discipline and the submissions and evidence of the parties on the motion. Among other things, the public member made the following findings:

(a) that statutory procedures regarding complaints were not followed;

(b) that the College’s delay and failure to comply with the Code was not explained;

(c) that the invitation made to the complainant to pick between the complaint route and the s. 75 route was a “false choice”;

(d) that by suggesting that the complainant could withdraw her complaint, the College effectively “buried” the complaint along with its own process failures and improperly gave itself the opportunity for a “do-over” under the rubric of a s. 75(1)(a) investigation;

(e) that the omission of any reference to the complaint made October 30, 2012 in the memo to the Registrar dated March 1, 2013 was misleading, and that memo was also submitted to the ICRC;

(f) that there was a lack of fairness and abuse of process; and,

(g) that there was serious prejudice to the applicant, who was deprived of notice of the complaint and a chance to respond within the complaints process, rather than what the public member perceived as a less desirable s. 75(1)(a) investigation process.

[39] The public member did not find malice or bad faith, but found that the College’s failure to follow the statutory process was a serious problem. He found that it showed a disregard for statutory authority and the public trust that underpins the self-government framework. Overall, the public member found that the actions and inactions of the College deprived the College of jurisdiction and, even if not, that the proceedings were an abuse of process.

[40] The College submits that the dissenting opinion is problematic because it includes findings based on a theory that was not before the Panel, specifically the “do-over” theory referred to above. However, that theory fairly arises from the notice of motion that was before the Panel. The College also submits that the dissenting member was unfairly critical of the conduct of Ms. Gémus. However, the dissenting panel member expressly did not find malice or bad faith in respect of Ms. Gémus. It is, in any event, the majority decision that is the subject of this appeal.

Issues and analysis

[41] The College chose not to challenge this application as premature given the nature of the alleged errors, and I conclude that it is appropriate to proceed: Rudinskas v. College of Physicians and Surgeons of Ontario, 2011 ONSC 4819 (Div. Ct.), at para. 33; McIntosh v. College of Physicians and Surgeons of Ontario (1998), 116 O.A.C. 158 (Div. Ct.), at paras. 36-39; Volochay v. College of Massage Therapists of Ontario, 2012 ONCA 541, 111 O.R. (3d) 561, at para. 79.

[42] The parties agree that the applicable standard of review is reasonableness.

[43] The applicant submits that the Panel erred in a number of ways, resulting in an unreasonable decision. The following main issues arise:

(1) whether the College followed the proper procedure in its handling of the complaint, giving rise to jurisdiction to refer the complaint to a discipline hearing;

(2) whether the steps taken on February 1, 2013, which gave the complainant the option of withdrawing her complaint, were proper;

(3) whether the s. 75(1)(a) investigation could be instigated and proceed as it did; and,

(4) whether the College’s conduct was an abuse of process.

[44] These issues should be considered against the backdrop of the long-recognized approach that must be taken regarding compliance with professional discipline legislation. Strict compliance is required, as is strict construction of the legislation: Henderson v. College of Physicians and Surgeons of Ontario (2003), 65 O.R. (3d) 146 (C.A.), at paras. 26-27. The underlying policy is based on the ramifications for a person who is subject to the discipline process, which carries “potentially grave consequences, including the loss of one’s livelihood”: Henderson, at para. 27.

[45] As put by the Court of Appeal in Katzman v. Ontario College of Pharmacists (2002), 223 D.L.R. (4th) 371, at para. 29, “while the discipline process against a health professional must recognize the public interest involved, care must also be taken to accord that professional the full due process that the disciplinary legislation was intended to provide.”

[46] When considering the public interest in this case, it should be borne in mind that even after the full investigation that took place there was no indication that any patient had been harmed by the conduct at issue. The investigation report found that no “harm events” had occurred.

[47] I conclude that the Panel’s decision to dismiss the applicant’s motion was unreasonable for the reasons set out below.

Complaint handling by the College

[48] In this case, the Panel found that the complaint “was handled properly by the College.” Yet, counsel for the College necessarily conceded at the hearing of this judicial review application that the statutory requirements for handling a complaint were not fulfilled.

[49] The College’s main position is that whatever else was or was not done, the requirements for the s. 75(1)(a) investigation were met. That submission is considered below, but it does not adequately address the Panel’s foundational finding that the complaint was “handled properly.”

[50] Section 25 of the Code sets out a number of mandatory steps that a College must take upon receipt of a complaint, including the following:

25 (1) A panel shall be selected by the chair of the Inquiries, Complaints and Reports Committee from among the members of the Committee to investigate a complaint filed with the Registrar regarding the conduct or actions of a member …

(5) The Registrar shall give a complainant notice of receipt of his or her complaint and a general explanation of the processes of the College, including the jurisdiction and role of the Inquiries, Complaints and Reports Committee, together with a copy of the provisions of sections 28 to 29.…

(6) The Registrar shall give the member, within 14 days of receipt of the complaint or the report,

(a) notice of the complaint, together with a copy of the provisions of sections 28 to 29, or notice of the receipt of the report;

(b) a copy of the provisions of section 25.2; and

(c) a copy of all available prior decisions involving the member unless the decision was to take no further action under subsection 26 (5). [Emphasis added.]

[51] Thus, after receipt of a complaint, there must be notice to the complainant and to the member (here, the applicant) and a panel must be struck to investigate the complaint. None of these steps were taken by the College upon receipt of the complaint.

[52] In turn, the applicant did not have the full benefit of s. 25.2(1), which provides for the right to make written submissions, as follows:

25.2 (1) A member who is the subject of a complaint or a report may make written submissions to the Inquiries, Complaints and Reports Committee within 30 days of receiving notice under subsection 25 (6). [Emphasis added.]

[53] Section 26 of the Code provides the jurisdiction to refer an allegation arising from a complaint to the Discipline Committee. However, before that jurisdiction becomes available, certain steps must be taken. The panel must be appointed, the required notice to the applicant and opportunity to respond must be given and reasonable efforts must be made to obtain relevant documents:

26 (1) A panel, after investigating a complaint or considering a report, considering the submissions of the member and making reasonable efforts to consider all records and documents it considers relevant to the complaint or the report, may do any one or more of the following:

1. Refer a specified allegation of the member’s professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint or the report.… [Emphasis added.]

[54] Thus, focusing on the complaint dated October 30, 2012, there was no jurisdiction to refer that complaint to the Discipline Committee. No panel of the ICRC had been appointed to investigate the complaint under s. 25(1), let alone were the other required steps taken in order to proceed under s. 26(1)1.

[55] The Panel’s finding that the complaint had been “handled properly” was unreasonable. The complaint was not handled at all, at least not as a complaint under s. 25 of the Code.

[56] I leave open the possibility that events could transpire that justify referring a complaint to the Discipline Committee under s. 26(1)1 after some delay, provided that the requisite steps are taken. But in this case, those steps were not taken. And no explanation was proffered by the College for its delay.

[57] There is also the possibility that the Panel’s finding that the complaint had been properly handled, although stated without qualification in the Committee’s conclusions, was intended to relate only to the propriety of Ms. Gémus’ dealings with the complainant in February 2013. The issue of the February 2013 contact is addressed below. Even if that is the case, the Panel’s decision remains unreasonable. The Panel did not fully confront and address the College’s failure to fulfill its mandatory statutory obligations, including the necessary prerequisites for a referral of a complaint to the Discipline Committee under s. 26(1)1 of the Code.

Interaction with the complainant in February 2013

[58] In this case, through a discussion initiated by the College on February 1, 2013, the complainant ultimately indicated that she wished to retract her complaint in favour of a Registrar’s Inquiry. The Panel approved of this course of conduct by the College. This leads to the question of whether the College was entitled to give the complainant the option of withdrawing her complaint, as it did.

[59] In McIntosh, at para. 34, this court held that once a complaint has been made, the complainant no longer has control of the proceedings. In that case, the complainant had wanted to start and stop the complaint process a number of times after the written complaint had been made, resulting in a more than four-year delay before notice of the complaint was given to the physician: at para. 4. The court in McIntosh allowed that some accommodation could be given to complainants, but explained that the lengthy delay in that case resulted in a flagrant violation of the intention of the legislation by the College: at para. 34.

[60] McIntosh was decided under a prior version of the Code, but the significant Code provisions and principles remain the same. There is no statutory provision that permits a complainant to control the complaint process by choosing to withdraw his or her complaint.

[61] Further, the mandatory nature of the complaint requirements in s. 25 of the Code is contrary to the suggestion that a complainant can control the process in this way. Strictly construed, as it should be, the Code requires that an investigation into the complaint be conducted once a written complaint has been filed. A complainant’s wish to withdraw a complaint could certainly form part of the ICRC’s consideration of the complaint and, depending on the subject matter of the complaint, it could be a significant factor, but it would not predetermine the issue of what should be done about the allegations made in a complaint.

[62] There are two situations where the Code provides that there will be no investigation of a complaint. Subsection 25(4) provides that a panel shall not be selected to conduct an investigation if the complaint is not in writing or otherwise recorded. Subsections 26(4) and (5) provide that the panel will not take action if a complaint is frivolous, vexatious, made in bad faith, moot or otherwise an abuse of process. These exceptions do not apply here. And as a matter of ordinary statutory interpretation, these express exceptions suggest that there are no others.

[63] There is also an alternative dispute resolution process for complaints under s. 25.1 of the Code (ADR), under which the parties may settle a complaint. However, that process is not initiated by a complainant. The s. 25.1 process can only be initiated by the Registrar and was not invoked in this case. Further, a complaint cannot be referred to ADR without the consent of both the complainant and the member, and the applicant’s consent was neither sought nor obtained in this case.

[64] In keeping with these Code provisions, the Health Professions Appeal and Review Board has found that there is no formal mechanism for the withdrawal of a complaint that is before the ICRC, outside of the above ADR process: J.M.Y. v. K.S., M.D. (Ont. HPARB), at para. 20.

[65] Giving a complainant control over the process also risks undermining the College’s regulatory role. Although this did not occur here, a complainant and a member could reach a private settlement including a withdrawal of the complaint, and purport to remove the College’s ability to pursue a complaint that may require its attention in view of its broader implications for the public.

[66] I conclude that once a written complaint has been made, as it was here, the Code does not permit the mandatory complaint process to be completely avoided by the withdrawal of the complaint by the complainant. Even if a complainant withdraws a complaint, the College must still fulfill its statutory obligations regarding the complaint: J.M.Y., at paras. 33-36. The choice offered to the complainant on February 1, 2013 was not available under the Code.

[67] The applicant’s main complaint before the Panel was that Ms. Gémus was conducting an improper investigation when she contacted the complainant on February 1, 2013. In that regard, the majority of the Panel found that the College was “justified in following up with the complainant to clarify the intent of the complaint.” The majority also noted that the complaint did not refer to any particular patient being affected by the conduct and that the impact on the public was unclear. As a result, the Panel concluded that the College was justified in making an inquiry of the complainant.

[68] In determining whether the Code had been breached, the majority relied on s. 25(5) of the Code and on Ms. Gémus’ role and expertise.

[69] Beginning with s. 25(5), the Code requires that the Registrar give the complainant notice of receipt of her complaint and a general explanation of the processes of the College, including the jurisdiction and role of the ICRC, together with a copy of the provisions of sections 28 to 29.

[70] I have no difficulty with the prospect that the Registrar could delegate this task to another person within the College. However, that was not the reason given by Ms. Gémus for contacting the complainant. Two different reasons form part of the record.

[71] In Ms. Gémus’ memos to file, she said that her reason for calling the complainant was to obtain additional information about the complaint. In my view, the College could contact a complainant to obtain some additional information if there are obvious gaps that could easily be filled, such as the name of the affected patient(s), if any. Ms. Gémus sought some additional information in one phone call and one email and went no further. These very limited questions did not rise to the level of an investigation that ought to be conducted by a panel of the ICRC.

[72] In her affidavit, Ms. Gémus gave a second reason for contacting the complainant – specifically, to confirm how the complainant intended that the College respond to her concerns. This discussion with the complainant about the “two ways” she could proceed was problematic, as discussed above, inviting a choice that was not actually available.

[73] As for Ms. Gémus’ role and expertise, Ms. Gémus was not a decision-maker under the Code. To the extent that the majority of the Panel was deferring to Ms. Gémus about the Code requirements, it ought not to have done so.

[74] To the extent that the Panel’s conclusion that the complaint was handled properly referred to these events, and especially the course of action that invited the complainant to withdraw her complaint, it too was unreasonable.

Instigation of s. 75(1)(a) investigation

[75] The College then sought to invoke s. 75(1)(a) to appoint an investigator irrespective of its obligations regarding complaints.

[76] Section 75 provides that the Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent. There are four different routes that give the Registrar jurisdiction to do so.

[77] In circumstances of urgency, not invoked here, the Registrar may appoint an investigator under s. 75(2).

[78] The Registrar may also appoint an investigator at the request of the ICRC or with the approval of the ICRC, as follows:

75 (1) The Registrar may appoint one or more investigators to determine whether a member has committed an act of professional misconduct or is incompetent if,

(a) the Registrar believes on reasonable and probable grounds that the member has committed an act of professional misconduct or is incompetent and the Inquiries, Complaints and Reports Committee approves of the appointment;

(b) the Inquiries, Complaints and Reports Committee has received information about a member from the Quality Assurance Committee under paragraph 4 of subsection 80.2 (1) and has requested the Registrar to conduct an investigation; or

(c) the Inquiries, Complaints and Reports Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation. [Emphasis added.]

[79] Subsection 75(1)(c) specifically addresses the process where there is a written complaint. In the ordinary course, the ICRC should have received the October 30, 2012 complaint and it would have been entitled to request that an investigator be appointed. None of that happened here.

[80] Strict construction of s. 75(1) leads to the conclusion that compliance with the complaints provisions in the Code cannot be avoided by proceeding under s. 75(1)(a) alone. There are mandatory steps required under s. 25. Those steps lead to an investigation by the ICRC. The ICRC then has jurisdiction under s. 75(1)(c) to request that the Registrar appoint an investigator. The Registrar ought not to be permitted to short circuit the procedure in the Code by proceeding under s. 75(1)(a): Henderson, at para. 30.

[81] The College attempts to place weight on the inquiry from Ms. Donaldson. The College emphasizes that in addition to her knowledge about the complaint, Ms. Donaldson had her own concerns. After the request for additional information made by Ms. Gémus, Ms. Donaldson provided a chart setting out reports of prescription discrepancies involving the applicant’s pharmacy. That chart formed part of Ms. Gémus’ memo to the Registrar.

[82] It may be appropriate to proceed with an investigation under s. 75(1)(a) focused on other issues raised about the same member, in parallel to addressing a complaint. This does not relieve the College of its statutory obligations regarding the complaint: Volochay, at paras. 47 and 76.

[83] For instance, the Registrar and the ICRC could have been invited to decide whether the prescription discrepancies raised by Ms. Donaldson should be investigated under s. 75(1)(a) in parallel to proceeding with an ICRC investigation into the complaint. But that is not what happened here.

[84] On the contrary, the information provided to the decision-makers (the Registrar and the ICRC) omitted reference to the timing of the written complaint and how it was and was not addressed. The memo to the Registrar requesting a decision under s. 75(1)(a) did not refer to the October 30, 2012 complaint, did not attach that complaint, and set out the complainant’s information under a heading “February 1, 2013.” The same memo was provided to the ICRC when its approval was requested. The investigation report itself, submitted over a year later, begins: “On February 1, 2013, information was brought to the attention of the [College]...” – a statement that was clearly wrong.

[85] Further, it was the original complaint and investigation into those issues that formed the foundation of the Notice of Hearing.

[86] I return to the strong message emphasized in Henderson – strict compliance with the Code is required. The College did not have jurisdiction to refer the complaint to the Discipline Committee. The College had not taken the statutorily-required steps. This problem was not cured by the steps the College took under s. 75(1)(a) of the Code. The Panel’s decision, refusing to quash the referral to discipline, was unreasonable.

Abuse of process

[87] Given my conclusion, summarized below, I need not address the alternative claim based on abuse of process.

Conclusion

[88] I conclude that the Panel’s decision refusing to grant the applicant’s motion to quash was unreasonable. This application to quash the Panel’s decision should be granted.

[89] The applicant also seeks an order prohibiting the College from proceeding with a hearing before the Discipline Committee in respect of the allegations in the Notice of Hearing. This relief was granted in McIntosh, another case where a College failed to properly meet its obligations regarding a complaint: McIntosh, at para. 39.

[90] I conclude that the order for prohibition should be granted because the College did not have jurisdiction to refer the complaint to discipline and the Notice of Hearing is fundamentally based on the complaint. The College asks for an opportunity to start again. I conclude that the College ought not to be permitted to do so in all the circumstances, including the College’s unexplained failure to comply with the Code. The hearing should not be permitted to proceed where to do so would violate principles of fundamental justice that underlie the community’s sense of fair play and decency: Schilthuis v. College of Veterinarians of Ontario (2005), 193 O.A.C. 351 (Div. Ct.), at para. 9.

Order

[91] I would therefore grant the application, quash the decision of the Panel and prohibit the College from prosecuting the charges as set out in the Notice of Hearing. I note that the charges are for a specified period of time and this order of prohibition does not extend outside that time period.

[92] As the unsuccessful party, the College shall pay the applicant costs in respect of this application. In accordance with the agreement between the parties on the quantum of costs, those costs are fixed at $20,000, all inclusive.

Justice W. Matheson

I agree _______________________________

Justice F.P. Kiteley

I agree _______________________________

Justice R.J. Nightingale

Released: June 06, 2017

[^1]: The Health Professions Procedural Code is Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.