Manoukian v. Ontario College of Pharmacists, 2017 ONSC 589

CITATION: Manoukian v. Ontario College of Pharmacists, 2017 ONSC 589

DIVISIONAL COURT FILE NO.: 282/16 DATE: 20170124

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

AITKEN, NORDHEIMER and STEWART JJ.

BETWEEN:

VARTAN MANOUKIAN

Applicant

– and –

ONTARIO COLLEGE OF PHARMACISTS and the DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF PHARMACISTS

Respondents

Scott Bergman, for the Applicant, Vartan Manoukian

Nick Coleman and Jean-Claude Killey, for the Respondent, Ontario College of Pharmacists

HEARD at Toronto: January 24, 2017

NORDHEIMER J. (Orally)

1Vartan Manoukian seeks judicial review of the decision of a discipline panel of the Ontario College of Pharmacists, dated January 25, 2016, wherein a majority of the hearing panel dismissed the applicant’s application to be reinstated as a member of the College.

2The applicant obtained his Certificate from the College in 1981. In 1982, the applicant was charged with trafficking a narcotic after selling oxycodone to undercover officers without requesting or obtaining valid prescriptions. In January 1983, the applicant pleaded guilty to two counts of trafficking a narcotic, contrary to the Narcotic Control Act. He was sentenced to two years imprisonment.

3After his release from custody, the College sought to revoke his Certificate and a hearing was convened before a panel of the Discipline Committee. On September 20, 1983, the Discipline Committee ordered that the applicant’s Certificate be revoked, effective December 21, 1983.

4On December 1, 1983, while still on parole for the trafficking offences - and before the revocation took effect - the applicant was charged under the Food and Drugs Act for selling valium to an undercover officer without requesting or obtaining a prescription. He was subsequently convicted of that charge.

5In January, 1989, the applicant applied to the College for reinstatement of his Certificate. On June 20, 1989, after a contested hearing, the Discipline Committee granted the application and reinstated the applicant’s Certificate but on certain terms and conditions.

6In March 1992, the Applicant was charged with fraud over $1000 for having submitted false claims to the Ontario Drug Benefit Plan for unfilled prescriptions. On January 18, 1994, following a trial before a judge and jury, the applicant was convicted of fraud over $1000. On July 24, 1996, the Discipline Committee revoked the applicant’s Certificate for the second time.

7Since that time, the applicant has become licenced, and has worked, as a paralegal.

8In support of his application, the applicant filed a psychological assessment and a psychiatric assessment, both of which found that the applicant’s risk of reoffending was minimal. The applicant also filed letters of support from two judges of the Ontario Court of Justice, along with several from Justices of the Peace. The applicant has also undertaken various continuing education courses and completed a medical professional ethics course.

9It is acknowledged that the standard of review applicable to the College’s decision is one of reasonableness. Consequently, the onus on the applicant is to show, not just that another reasonable decision exists, but that the decision reached by the College is an unreasonable one: McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895.

10In terms of the errors relied upon by the applicant, I do not agree that the panel erred in the manner with which they dealt with the standard or framework to be applied. The panel said that they were “guided” by the principles summarized in Richard Steinecke’s text, “A Complete Guide to the Regulated Health Professions Act”. The panel was not obliged to apply those principles slavishly nor were they precluded from considering other matters. In particular, there was no error in the panel having regard to the impact that their decision might have on the public and on the profession. While the applicant fixes on the word “benefit” used by the panel in their reasons, I read that reference as nothing more than the panel recognizing that there is a necessary balancing that must be undertaken in making their decision. Indeed, the applicant accepts that a balancing is inherent in the nature of the decision being reached.

11I also do not accept the applicant’s criticism that the panel applied a higher standard of proof than required, that is, the standard of proof on a balance of probabilities. The panel was not required to expressly set out the burden of proof. There was no issue regarding the proper burden to be applied. The applicant’s submissions that isolate certain words or phrases in the reasons, to suggest that a higher burden of proof was applied, do an unfairness to the reasons. What the reasons reflect is the panel members’ review of the evidence and whether they were satisfied, based on the evidence, that the requisite burden of proof was satisfied. Their reference to a “very high bar” simply reflects their view of the nature of the evidence that will be required to meet that burden.

12It was also within the purview of the panel to reject the imposition of conditions on the reinstatement of the applicant as being sufficient in order to protect the public. They were also entitled to discount the education programs that the applicant had taken, based on what was required to successfully complete those programs. They were certainly entitled to find that the completion of programs was not sufficient to allay the concerns that arose from the applicant’s prior conduct.

13The applicant complains that the panel rejected the evidence of the expert reports. The panel was not required to accept the expert evidence just because it was placed before them. The expert evidence was not categorical regarding any risk that the applicant might pose – nor could it properly be so. The panel was entitled, in the circumstances presented, to decide that, if any risk remained, it was something for the panel to take into account.

14Finally, the applicant complains that the panel improperly rejected his evidence. As a basic proposition, it is not the role of this court to second guess credibility findings made by the panel. The panel rejected the applicant’s evidence as self-serving and not forthright. They had the benefit of seeing and hearing the applicant and they were uniquely positioned to make those determinations. The conduct of the applicant, over the years, in terms of his other offences, fairly gave the panel considerable pause in considering his evidence. The panel gave reasons for the concerns that they had regarding the applicant’s evidence. There is no basis for this court to interfere with those findings.

15In the end result, the applicant had twice before committed serious offences in his capacity as a pharmacist. He had his Certificate revoked previously and reinstated only to then again engage in improper conduct. The panel concluded that to reinstate the applicant, a second time, would not only pose a risk to the public, but it would also not reflect well on the profession. That was a reasonable conclusion for the panel to reach. It was certainly a decision that “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” - Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

16The application for judicial review is dismissed.

costs – Aitken J.

17I have endorsed the Applicant’s Application Record as follows: “Application for judicial review dismissed for oral reasons provided. Costs to the College fixed in the amount of $5,000 inclusive of disbursements and HST.”

___________________________ Nordheimer J.

I agree

Aitken J.

I agree

Stewart J.