Khalil v. Ontario College of Pharmacists, 2019 ONSC 3738

CITATION: Khalil v. Ontario College of Pharmacists, 2019 ONSC 3738

DIVISIONAL COURT FILE NO.: 585/18

DATE: 20190618

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Thorburn and Newton JJ.

BETWEEN:

RAGAIE KHALIL Appellant

– and –

ONTARIO COLLEGE OF PHARMACISTS Respondent

Neil M. Abramson, for the Appellant

Aaron Dantowitz, for the Respondent

HEARD at Toronto: April 18, 2019

Swinton J.:

Overview

1The appellant, Ragaie Khalil, appeals from a penalty decision of the Discipline Committee of the Ontario College of Pharmacists (the “College”) dated August 10, 2018. The appellant argues that the Discipline Committee had no authority to impose two conditions on his certificate of registration that prohibited him from having any proprietary interest in a pharmacy or acting as a director of a corporation that owned a pharmacy for three years.

2For the reasons that follow, I would dismiss the appeal, because the Discipline Committee reasonably concluded that it had the authority to impose those conditions, and the conditions were reasonable in the circumstances.

Factual Background

3The appellant is a pharmacist and has been a registered member of the College since 1995. He practised pharmacy at Ayda Pharmacy (the “Pharmacy”) in Toronto, where he was also the designated manager and sole shareholder and director of the corporation that owned the Pharmacy. That Pharmacy was sold in 2014. However, at the time of the proceedings before the Discipline Committee, the appellant was still a director and a shareholder of five corporations, four of which owned pharmacies in Ontario.

4The Pharmacy was selected for an audit by the Ministry of Health and Long-Term Care (the “Ministry”) in June 2013. The audit found that the Pharmacy had made a number of unsubstantiated claims under the publicly funded Ontario Drug Benefit Program (“ODB”). As a consequence, the Executive Officer of the ODB terminated the Pharmacy’s ability to submit claims to the ODB. Ultimately, the appellant repaid $88,893.91 to the Ministry.

5The College commenced an investigation following a complaint by the Ministry. It concluded that the Pharmacy had made unsubstantiated claims to the ODB in excess of $80,000. The submission of false claims to the ODB involved the creation of false records of what had been dispensed to patients, including the addition of false information to patient profiles maintained by the Pharmacy and by the Ministry.

6At the hearing before the Discipline Committee, the appellant admitted the allegations of professional misconduct arising from the conduct described above. The Discipline Committee then concluded that the appellant had engaged in professional misconduct.

7The parties agreed on a partial joint submission on the order and costs, but two terms were disputed. The agreed sanctions included

• a reprimand before the Discipline Committee,

• conditions on the appellant’s certificate of registration:

• attendance at an ethics program;

• a prohibition on acting as a designated manager in any pharmacy for a period of three years;

• a prohibition on receiving remuneration from his work as a pharmacist or in relation to the operation of a pharmacy, other than remuneration based on hourly or weekly rates or salary; and

• a requirement that any employer confirm receipt of a copy of the order and confirm the appellant’s remuneration during a three year period;

• an eleven month suspension (with one month remitted once the remedial training was completed); and

• costs payable by the appellant in the amount of $10,000.

8The two items in dispute relate to three year prohibitions on the appellant having any proprietary interest in a pharmacy and from acting as a director of a corporation that owns a pharmacy.

The Decision of the Discipline Committee

9The Discipline Committee imposed all the terms set out in the partial joint submission on the order and costs. In addition, it determined that it had the authority to impose the two disputed conditions pursuant to s. 51(2)3 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”). Subsection 51(2) reads:

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:

1. Directing the Registrar to revoke the member’s certificate of registration.

2. Directing the Registrar to suspend the member’s certificate of registration for a specified period of time.

3. 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.

4. Requiring the member to appear before the panel to be reprimanded.

5. 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 the 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 paragraphs 5.1.

10The Committee concluded that the overall intent of the legislative scheme is to protect the public, and decided that imposing the disputed conditions was in the public interest.

The Issue before this Court

11The issue before this Court is a narrow one: did the Discipline Committee have the authority to impose the three year prohibitions on the appellant respecting pharmacy ownership and acting as a director of a corporation that owned a pharmacy?

The Standard of Review

12The appellant argued that the standard of review is correctness, because this appeal raises a true question of jurisdiction.

13I disagree. The Supreme Court of Canada has made it clear that true questions of jurisdiction are rare (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 at paras. 31 and 41). In the present case, the Discipline Committee had the authority, pursuant to s. 51(2) of the Code, to impose a penalty. Thus, no true question of jurisdiction is in issue here.

14In determining the scope of its remedial authority, the Discipline Committee was required to apply the Code and the Drug and Pharmacies Regulation Act, R.S.O. 1990, c. H.4 (the “DPRA”) and its regulations. These provisions are properly characterized as home statutes of the Discipline Committee, and there is a presumption that the standard of review of tribunal decisions interpreting and applying such statutes is reasonableness. The appellant has not rebutted that presumption by showing there is a clear legislative intent that the standard of correctness applies (Canada (Canadian Human Rights Commission), above, at para. 46). Accordingly, the standard of review in this appeal is reasonableness.

The Reasonableness of the Discipline Committee’s Decision

15As set out above, s. 51(2) of the Code sets out the types of orders that a Discipline Committee may make following a finding of professional misconduct. Nothing in that section expressly authorizes the Committee to prohibit a member from having a proprietary interest in a pharmacy or from being a director of a corporation that operates a pharmacy. However, s. 51(2)3, the power to direct the Registrar to impose specified terms, conditions and limitations on the member’s certificate of registration, is phrased broadly.

16The appellant argues that the Discipline Committee failed to apply the modern approach to statutory interpretation, as set out in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” In particular, the appellant submits that the disputed terms are contrary to the express provisions of the DPRA that govern the ownership and management of pharmacies in Ontario, and the Discipline Committee overemphasized the College’s public protection role at the expense of the express statutory powers conferred on it.

17In order to understand the appellant’s submission, it is necessary to consider the provisions of the DPRA. Section 139 requires a pharmacy to have a certificate of accreditation. Section 140 deals with revocation of certificates of accreditation and other disciplinary measures through proceedings before the Discipline Committee against a person having a certificate of accreditation, the designated manager of a pharmacy or a director of a corporation that has been issued a certificate of accreditation.

18Section 142 deals with the operation of pharmacies by corporations. Section 142(1) provides that a corporation shall not own or operate a pharmacy unless a majority of the directors of the corporation are pharmacists. Pursuant to s. 142(2), no corporation shall own or operate a pharmacy unless a majority of each class of shares of the corporation is owned by and registered in the name of pharmacists or in the name of health profession corporations, each of which holds a valid certificate of authorization.

19Section 143 specifically deals with the situation where the certificate of registration of an Ontario pharmacist has been revoked or his or her licence suspended for cause by the College. It states that such person shall not be employed or work in a pharmacy or act as a director or vote as a shareholder in a corporation operating a pharmacy.

20Section 144 deals with the ownership of pharmacies. Section 144(1) provides that no one other than a pharmacist or a corporation in compliance with s. 142 shall own or operate a pharmacy. Section 144(2) specifically deals with the situation where a pharmacist is suspended or his/her certificate of registration is revoked, stating,

For the purposes of the ownership of a pharmacy, or for the purposes of the composition of the board of directors or ownership of shares of a corporation as required by section 142, the right to operate the pharmacy shall not be affected by,

(a) any suspension of the certificate of registration of a pharmacist; or

(b) the revocation of the certificate of registration of a pharmacist until after a period of six months has elapsed.

21The appellant argues that the Legislature has determined the consequences for a pharmacist who owns shares in a corporation operating a pharmacy or acts as a director of such corporation when the pharmacist is disciplined by the College. In the case of a suspension of a certificate of registration, for the purpose of the ownership of a pharmacy or for the purposes of the composition of the board of directors of a pharmacy and the ownership of shares of a corporation as required by s. 142, the right to operate a pharmacy is not affected. Notably, when there is a revocation of the certificate of registration of a pharmacist, there is a six month grace period during which the ownership of the shares in a corporation operating a pharmacy and the composition of the board of directors is unaffected. Apparently, the Legislature wished to provide a window in which new commercial arrangements could be made for the ownership and operation of an affected pharmacy when there is a revocation of a pharmacist’s certificate of registration.

22The appellant argues that the Discipline Committee acted unreasonably by focusing on the public interest while failing to give effect to ss. 142 to 144 of the DPRA. He takes the position that “the DPRA provides a comprehensive scheme to deal with ownership and directorship issues that arise in a pharmacy where a pharmacist’s certificate of registration is suspended or revoked” (Factum, para. 43). In other words, these provisions of the DPRA limit the discretion conferred on the Discipline Committee by s. 51(2)3 of the Code.

23The task for this Court is to determine whether the Committee’s interpretation of its authority under s. 51(2)3 was reasonable. In my view, it was.

24The words of s. 51(2)3 are very broad, conferring a discretion to impose terms and conditions on the certificate of registration of a pharmacist who has committed professional misconduct. There is no express limitation on this authority that would prohibit terms governing ownership of shares or acting as a director of a corporation that operates a pharmacy.

25A broad reading of the provision is also consistent with the purposes of the Code. In its reasons for its decision, the Discipline Committee repeatedly mentioned the importance of the public interest and the responsibility of the College, as the regulator of the profession, to protect the public. It was proper for the Discipline Committee to describe its role in this way. The Supreme Court of Canada has recognized the “crucial role that professional orders play in protecting the public interest” (Pharmascience Inc. v. Binet, 2006 SCC 48, [2006] 2 S.C.R. 513 at para. 36). In Pharmascience, the Supreme Court stated (at para. 37):

In this context, it should be expected that individuals with not only the power, but also the duty, to inquire into a professional’s conduct will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged.

While the present case does not deal with the College’s power to investigate, one should similarly expect that the disciplinary body of a professional college should have the means to determine an appropriate penalty when there has been a finding of professional misconduct, so that the public interest is adequately protected.

26Section 51(2)3 must, of course, be read in context, both as part of the Code and in light of other relevant legislation such as the DPRA. The Discipline Committee was not persuaded by the appellant’s argument that ss. 142 to 144 of the DPRA restricted its ability to impose conditions on a member’s certificate of registration respecting ownership of shares in a pharmacy or acting as a director of a corporation (Decision, para. 66). It rejected the argument that those sections effectively “covered the field” with respect to the consequences for the ownership and direction of a corporation operating a pharmacy when there has been a suspension or revocation of a pharmacist’s certificate of registration.

27The Discipline Committee correctly pointed out that the key words in s. 144(2) are “the right to operate a pharmacy” (Decision, para. 62). It then concluded - reasonably in my view,

It is the Panel’s opinion that it is not the “right of a pharmacist” to operate a pharmacy; rather, the right of the pharmacy to operate exists under a certificate of accreditation issued by the College, and is separate from any Discipline Committee Order affecting a pharmacist’s certificate of registration.

28The Discipline Committee then said (at para. 66):

The panel believes that the intention of sections 142 to 144 is to define who can own a pharmacy (and thereby profit from the pharmacy), and to direct what happens to the pharmacy in the event that a pharmacist’s certificate of registration is revoked or suspended. The intention is not to limit the restrictions that a Panel can impose on a member’s certificate of registration – if it was, the legislation would have stated this.

29The Discipline Committee concluded (at para. 70):

The Panel is also of the view that the Discipline Committee’s ability to order the imposition of terms, conditions, and limitations on a member’s certificate of registration, which limit a member’s ability to be a proprietor/owner, is both logical and required to protect the public, particularly when fraudulent billings to the OBD Program (paid for by public tax dollars) have been proven.

30In my view, the Committee’s interpretation of s. 51(2) of the Code was a reasonable one that is justified by the language of s. 51(2), consistent with the DPRA, and consistent with the purpose of the Code – the protection of the public.

31There is no conflict between the provisions of the DPRA and an interpretation of s. 51(2)3 that permits the Discipline Committee to impose conditions on a member’s ownership of shares or the ability to act as a director. The words of ss. 142 to 144 of the DPRA deal with the operation of pharmacies. They do not expressly restrict the power of the Discipline Committee to fashion an appropriate penalty for professional misconduct of a pharmacist under the Code, including restrictions on the member’s ownership of shares or continuing to act as a director of a corporation operating a pharmacy.

32It was also reasonable for the Discipline Committee to conclude that the Legislature did not intend ss. 142 to 144 of the DPRA to be a complete code with respect to a member’s rights to ownership of shares and directorship of a corporation owning a pharmacy, thus limiting the role of the Discipline Committee in fashioning an appropriate sanction for a member’s professional misconduct.

33Moreover, there was nothing wrong or unreasonable when the Discipline Committee interpreted s. 51(2)3 as allowing it to impose a penalty that would adequately protect the public interest. Protection of the public interest is its role as part of the regulatory process, as the Supreme Court of Canada stated in Pharmascience, above. Accordingly, the Discipline Committee had the authority to impose the disputed conditions.

34The Discipline Committee then explained why it imposed the conditions in the present case. It observed that the appellant “represents a risk to the public and to the public’s trust in the profession.” The conditions it imposed on the appellant’s certificate - the restrictions on corporate ownership and directorships – were reasonable, given the gravity of the misconduct. The appellant had knowingly filed false claims by the Pharmacy with a publicly funded drug benefit program. At the time of the penalty decision, he was a director and shareholder of four corporations that owned and operated pharmacies in Ontario. The Committee was concerned about the real risk of further false billing by those pharmacies should the appellant continue to be involved in the ownership or direction of those entities. The Committee also noted that other cases had imposed similar restrictions, citing five previous cases before the Committee. Given the misconduct and the ongoing risk of further misconduct, the conditions imposed in this case were reasonable.

Conclusion

35Accordingly, the appeal is dismissed. The appellant shall pay costs to the College in the amount of $10,000, an amount agreed upon by the parties.

Swinton J.

I agree _______________________________

Thorburn J.

I agree _______________________________

Newton J

Released: June 18, 2019

CITATION: Khalil v. Ontario College of Pharmacists, 2019 ONSC 3738

DIVISIONAL COURT FILE NO.: 585/18

DATE: 20190618

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Thorburn and Newton JJ.

BETWEEN:

RAGAIE KHALIL Appellant

– and –

ONTARIO COLLEGE OF PHARMACISTS Respondent

REASONS FOR JUDGMENT

Swinton J.