Ghobrial v. Ontario College of Pharmacists, 2019 ONSC 4776
CITATION: Ghobrial v. Ontario College of Pharmacists, 2019 ONSC 4776
DIVISIONAL COURT FILE NO.: 401/18
DATE: 20190814
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Sameh Ghobrial, Appellant
AND:
Ontario College of Pharmacists, Respondent
BEFORE: Kiteley, D.L. Corbett and C. MacLeod JJ.
COUNSEL: Rebecca M. Young, for the Appellant
Matthew R. Gourlay, for the Respondent
HEARD at Toronto: May 29, 2019
ENDORSEMENT
KITELEY J.
[1] The Appellant appeals the liability decision[^1] of the Discipline Committee (the “Committee”) of the Ontario College of Pharmacists (the “College”) dated December 11, 2017, and the penalty decision[^2] dated June 6, 2018. For the reasons that follow, the appeal from the liability decision is dismissed and the appeal from the penalty decision is allowed in part.
Background
[2] The appellant became a registered pharmacist with the College in 2012. He opened a pharmacy in Guelph in 2013 as manager/owner. He began a marketing campaign to attract new patients.
[3] The Appellant sometimes worked as a relief pharmacist in other pharmacies. On June 17, 2013, he worked one shift as a relief pharmacist at a Shoppers Drug Mart in Guelph. On August 30, 2013, he worked one shift as a relief pharmacist at a Zehrs Pharmacy in Guelph. Following these relief shifts, it was alleged that the Appellant was inappropriately soliciting patients of other pharmacies.
[4] After an investigation, the College issued two Notices of Hearing with twelve allegations that covered four kinds of conduct: improper solicitation, offering inducements, failing to maintain a standard of practice, and disgraceful, dishonourable, or unprofessional conduct.
[5] The contested five-day hearing was conducted from November 29 to December 2, 2016, and on December 13, 2016. The Appellant and the College submitted a partial agreed statement of facts and ten witnesses were called including the Appellant.
Liability Decision
[6] In the 53 page decision, at paragraphs 15 to 125, the Committee summarized the evidence of College witnesses. At paragraphs 126 to 194, the Committee summarized the evidence of the Appellant in examination-in-chief and in cross-examination. At paragraphs 195 to 212, the Committee summarized the submissions on the hearsay issue. At paragraphs 213 to 286, the Committee summarized the submissions of the College, of the Appellant, and the College’s reply submissions. At paragraphs 287 to 297 the Committee summarized its findings and at paragraphs 298 to 421, the Committee gave reasons for its decision that included credibility of witnesses, hearsay evidence of Patient Y, and findings with respect to each of the allegations with an explanation for those findings.
[7] This is a summary of the Committee’s findings of misconduct as well as the evidentiary source of those findings:
Improper Solicitation subsection 1(21.2)
offering a gift card to induce patient transfer – Witness 2 and Witness 8
offering a reduced dispensing fee to induce patient transfer – Witness 9
Offering Inducements subsection 1(29)
offering a gift card to induce patient transfer – Witness 2 and Witness 8
offering free items for transferring prescriptions – Witness 4
offering a discount to induce patient transfer – Witness 5
Failing to Maintain a Standard of Practice subsection 1(2)
misusing confidential patient information – Witness 2, Witness 4 and Witness 8
Disgraceful, dishonourable or unprofessional conduct subsection 1(30)
misusing confidential patient information (disgraceful, dishonourable, unprofessional) – Witness 2, Witness 4 and Witness 8
offering a gift card to induce patient transfer (unprofessional) – Witness 2 and Witness 8
offering free items for transferring prescriptions (unprofessional) – Witness 4
offering a reduced dispensing fee to induce patient transfer (unprofessional) – Witness 9
offering a discount to induce patient transfer (dishonourable) – Witness 5
attempting to transfer prescriptions without patient consent (dishonourable) – Patient Y.
[8] As indicated at paragraph 292 of the decision, having considered the evidence and the onus and standard of proof, the Committee was unable to make findings in relation to three of the allegations in the Notice of Hearing.
Penalty Decision
[9] The penalty hearing was held on June 6, 2018. The parties presented a “partial joint submission” for the following penalty terms:
(a) An oral reprimand;
(b) A two-year prohibition on the Appellant acting as a designated manager;
(c) A requirement that the Appellant complete the “ProBE” course on problem-based professional ethics;
(d) A requirement that the Appellant complete an individualized course on professional ethics;
(e) Costs to the College in the amount of $25,000.
[10] The parties agreed that suspension was appropriate. The only contested issue was the length of suspension. Both sides filed extensive written submissions in advance and made oral argument. The College took that position that a six-month suspension (with one month remitted on completion of the remedial program) would be appropriate. The Appellant’s position was a suspension of four months, with two months remitted.
[11] The Committee retired to deliberate and on resumption, it announced that it had accepted the “partial joint submission” and would impose a twelve month suspension of the Appellant’s certificate of registration, with two months remitted on completion of the remedial terms.
[12] In accordance with what counsel for the College described as the “customary practice”, the Appellant was provided the option of signing a Waiver of Appeal in order that the oral reprimand could be administered that same day. Otherwise, the Appellant would return for the reprimand at a later date, after the appeal period had lapsed or after any appeal had run its course. Following a recess during which the Appellant consulted with his counsel, the Appellant signed the Waiver and the reprimand was administered.
The Appeal
[13] On July 4, 2018, the Appellant delivered a Notice of Appeal and, in an affidavit filed in this Court, he deposed that he was “shocked and blindsided” by the penalty decision and did not appreciate that the Waiver would prevent him from appealing the decisions on liability and penalty.
[14] In the Notice of Appeal, the Appellant asked for an order setting aside the waiver of appeal, setting aside the findings of liability and granting a new hearing, and reducing the period of suspension.
[15] Pursuant to s. 25(1) of the Statutory Powers Procedure Act,[^3] the penalty imposed by the panel was stayed as a result of the delivery of the Notice of Appeal.
[16] The issues on appeal are as follows:
(1) Should the Waiver of Appeal be set aside as it was not an informed waiver?
(2) Did the Committee apply a higher standard of credibility to the Appellant’s evidence than it did to the College’s witnesses?
(3) Did the Committee place the onus of proof on the Appellant?
(4) Was the penalty imposed by the Committee unfit, excessive and outside the range of appropriate penalties?
Jurisdiction
[17] The Divisional Court has jurisdiction to hear the appeal pursuant to s. 70(1) of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991.[^4]
Standard of Review
[18] The standard of review of decisions as to liability is reasonableness. The decisions of administrative tribunals attract deference. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. [^5]
[19] The standard of review of the analysis of credibility is generally reasonableness. Findings of credibility may be set aside where a panel made a palpable and overriding error that affected its assessment of the facts.[^6]
[20] The standard of review of a penalty decision is generally reasonableness.[^7] However a penalty determination will be overturned where the decision-maker has made either an error in principle or administered an unfit penalty.[^8]
Analysis
[21] Following the submissions of the Appellant, the Court indicated that the appeal as to liability was dismissed with these reasons to follow.
[22] As indicated above, one of the issues was whether the Waiver of Appeal should be set aside. At paragraphs 30 and 31 of his factum, counsel for the College took issue with the Appellant’s claims as to the basis for seeking to set aside the waiver. However, as indicated in paragraph 32 of his factum, and at the outset of the hearing, counsel advised that the College did not concede that the Waiver was invalid but was content that the appeal be determined on its merits.
Liability Decision Issue #1: Did the Committee apply different standards in making its credibility findings?
[23] At paragraph 298, the Committee instructed itself on the approach to assessing credibility of witnesses. The Committee held that “Credibility has been described as both the willingness to tell the truth and the ability to tell the truth.” At paragraph 299, the Committee indicated that it had assessed credibility of the nine College witnesses and of the Appellant using the following seven criteria:
(a) demeanour of the witness
(b) memory, or ability to recall the events
(c) plausibility, or “does it make sense”
(d) internal consistency of the retelling of the events
(e) external consistency, with other witnesses’ testimony of the events
(f) motivation of the witness
(g) ability to perceive.
[24] The Committee held as follows:
The Panel found Witness 2, Witness 4, Witness 6, Witness 8 and Witness 9 to all be highly credible. All five of these witnesses were found to rank highly in almost every facet of the Panel’s assessment.
The Panel found Witness 1, Witness 3, Witness 5 and Witness 7 to all be credible. Although all four of these witnesses had some issues with their evidence, when assessed using the criteria set out above, the evidence of all four was found to be plausible and credible.
Applying the same criteria, the Panel found the Member to be the least credible of all the witnesses. Factors that weighed against his credibility included his poor memory, the plausibility (or lack thereof) of his evidence, issues with external consistency, and his motivation to tell the truth.
[25] The Committee went on to consider the evidence of the witnesses on each of the allegations.
[26] The Appellant takes the position that the Committee seemed prepared to excuse inconsistencies or issues with the College’s evidence but was critical of the Appellant for his failure to remember specific details. The Appellant argued that the Committee gave little reason as to why it rejected the Appellant’s evidence. The Appellant asserted that the Committee accepted the evidence of the College’s witnesses and decided that the Appellant was guilty before considering his evidence. In so doing, the Committee held the Appellant to a higher standard. The Appellant also took the position that the Committee did not properly assess the credibility of the investigator and the shortcomings alleged to be in her evidence.
[27] I disagree with each of those submissions. Throughout the analysis of the evidence in paragraphs 298 to 421, the Committee did explain its reasons for believing the witness and for disbelieving the Appellant. In arriving at its findings, the Committee referred to whether the evidence made sense (e.g. paragraphs 324, 330, 340 and 346). The Committee noted contradictions between the Appellant’s evidence and the evidence of other witnesses found to be credible (e.g. paragraphs 383 and 393). The Committee identified internal contradictions in the Appellant’s evidence (e.g. paragraphs 384 and 386). The Committee observed the Appellant’s evasiveness in cross-examination (e.g. paragraphs 388 and 389). The Committee held that the Appellant’s obstructive conduct during the investigator’s visit to his pharmacy undermined his credibility (paragraph 399). There is a basis in the evidence for those findings. I am not persuaded that the Committee held the Appellant to a standard higher than that it applied to the College’s witnesses.
[28] As for the other criticisms of the decision, the Appellant is asking that the Court subject the decision of the Committee to “painstaking scrutiny” and “dissect minutely” the findings of fact, which the Court must not do.[^9]
[29] It is implicit in the extensive analysis of the evidence that the Committee applied those of the seven criteria that related to credibility of the evidence of each witness. The decision makes it clear why the Committee arrived at its findings.[^10] The fact that the Committee found the Appellant to be less credible than the College’s witnesses does not establish that it applied uneven scrutiny. There is no basis for finding any palpable and overriding error that affected the Committee’s assessment of the facts. The decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
Liability Decision Issue #2: Did the Committee place the onus of proof on the Appellant?
[30] At paragraph 287, the Committee instructed itself that the College bears the onus of proving the allegations on a balance of probabilities, based on sufficiently clear, cogent and convincing evidence. At paragraph 288, the Committee distinguished between the criminal level of “beyond a reasonable doubt” and the balance of probabilities that is commonly described as “more likely, than not”. At paragraph 289, the Committee noted that it was required to evaluate and weigh the admissible evidence and to decide whether the acts committed were acts of professional misconduct. At paragraphs 290 to 292, the Committee identified those allegations which it found the College had proven and those for which the requisite proof was lacking.
[31] At paragraphs 71 to 80 of his factum, the Appellant identified paragraphs[^11] from the decision on which he relied for the proposition that the Committee misapprehended the onus of proof, or shifted it to the Appellant to prove his innocence.
[32] If looked at individually, one might infer that some of those passages lead to that conclusion. However, I disagree with that submission for these reasons. First, it is imperative that the decision be read as a whole. The Committee identified the proper onus and burden of proof and repeated that the onus was on the College to prove its case on a balance of probabilities. The Committee properly instructed itself. The Committee’s explanation for dismissal of unproven allegations demonstrates its accurate understanding of its task and consistent application of the onus and burden of proof.
[33] Second, the Committee was entitled to ask whether the Appellant had led or pointed to any evidence that supported his version on crucial points of factual contention. Where there was no such evidence, the Committee was entitled to draw a negative inference.
[34] Third, the issue most criticized by the Appellant was that of his phone records. During the investigation, the Appellant had produced long-distance phone records in an effort to demonstrate that he did not make the telephone calls in question. As College counsel pointed out in cross-examination, and as noted by the Committee, producing the long distance telephone records made no sense because the impugned communications were local calls that would not be reflected in the records he produced. In cross-examination, the College was entitled to question the Appellant about having provided useless evidence claiming that it was exculpatory. And the Committee was entitled to draw conclusions from that evidence. The question was not that the Appellant had to prove his innocence. The issue was evaluating the credibility of the Appellant and challenging his evidence. The Committee was entitled to find, based on the unsatisfactory explanations provided by the Appellant, that he was not genuinely interested in finding out who made the phone calls in question and that his protestations to the contrary undermined his credibility.[^12]
[35] Considering the decision in its entirety, I am not persuaded that the Committee reversed the onus of proof.
Penalty Decision
[36] As indicated above, the parties submitted a partial joint submission as to specific terms, which the Committee accepted.
[37] The partial joint submission included a term of suspension, which the Committee also accepted.
[38] As indicated at paragraph 7 of the penalty decision, counsel for the Appellant made submissions as follows:
(a) The Member is in the process of completing the ProBE Program on Ethics in Healthcare course.
(b) The Member has completed counseling with a clinical psychologist as detailed in the letter from the psychologist.
(c) The Member has accepted responsibility for his actions and has gained valuable insight into ethical lapses.
(d) The Member has given back to the community by completing more than 140 hours of volunteer services.
(e) The agreed upon prohibition of being a designated pharmacy manager for 2 years would create an extra financial obligation as it prohibits the Member from opening his own pharmacy again.
(f) The Member expresses great shame and feels guilty.
[39] The Committee accepted those submissions as reflected in the identification of mitigating factors found in paragraph 23 of the decision.
[40] The only issue was the length of the suspension.
[41] In his written submissions, the Appellant suggested a suspension of 30-60 days. In submissions at the hearing, he took the position that a suspension of four months less two months remission for completion of the ProBE course.
[42] The College submitted that a six month suspension with one month remitted was the appropriate penalty.
[43] The Committee imposed a penalty of twelve months’ suspension. The Appellant challenges that decision on these grounds: the Committee emphasized that the Appellant had targeted vulnerable people which was not supported by evidence at the hearing; the Committee over-emphasized deterrence; the Committee did not notify the Appellant that a penalty of three times his submission and two times the College’s submission was under consideration and therefore he did not have an opportunity to respond; the Committee included as an aggravating factor that the Appellant had required a trial at which patients had to testify and in some cases, travel to the contested hearing.
[44] Both parties submitted authorities that purported to support the position each took. Two of the key findings by the Committee were that the Appellant had misused confidential information for personal financial gain and he had targeted vulnerable patients. None of the authorities addressed such circumstances. Most of the authorities dealt with allegations of fraud in billing practices. And, as the Committee pointed out at paragraph 20, in all of the decisions provided, the penalty decision was rendered after an uncontested liability hearing and the order was mitigated by the member’s early resolution. In effect, the Committee was dealing with a novel situation.
[45] As counsel for the College pointed out in paragraph 68 of its factum, there was evidence on which the Committee could find that the Appellant’s improper solicitation efforts targeted vulnerable patients. On the Committee’s liability findings, the Appellant had tried to solicit by phone: a person with schizophrenia, an eleven year old boy, and a grandmother who passed away prior to the hearing. The Appellant had testified that his promotional efforts were focused on seniors. It was open to the Committee to find that the Appellant had disproportionately targeted vulnerable patients.
[46] Because of those two key findings, specific deterrence and general deterrence were factors to which the Committee made reference. But that does not mean that the Committee “over-emphasized” deterrence. The Committee also made reference to protection of the public, the importance of the public having confidence in the profession’s ability to regulate itself effectively and in a manner that protects the public, the interests of the profession as a whole, the particular circumstances of the individual member, specific deterrence and general deterrence.
[47] At paragraphs 404 to 421 of the liability decision, the Committee made findings that certain of the allegations demonstrated “unprofessional conduct” while one of the findings demonstrated “disgraceful, dishonourable and unprofessional” conduct. In a matter of first instance, imposing a penalty that demonstrated specific and general deterrence of such conduct was reasonable. But that does not mean that the Committee “over-emphasized” deterrence. The penalty decision in this case is an example of a Committee identifying and applying all of the relevant factors.
[48] It is the case that the Committee imposed a penalty that was three times greater than the Appellant had submitted and two times greater than the College had submitted. But that does not mean that the Appellant was denied natural justice. This was not a case of a Committee departing from a joint submission. There was no basis in the record for the Appellant to expect that the range available to the Committee for consideration was the two to six month range established by counsel. It is the responsibility of the Committee to impose a penalty after consideration of the submissions by the parties. It did so.
[49] Regrettably, in one important matter, the decision of the Committee reflects an error of law. At paragraph 22, under the heading of “aggravating factors”, the Committee indicated that a prolonged suspension was supported by “the impact of the Member’s actions on the vulnerable patient populations, including requiring those patients to testify and, in some cases, travel to the contested hearing.” The College concedes that a member’s exercise of the right to a hearing is not an aggravating factor on penalty.[^13] The College takes the position that that was a minor error in the context of the comprehensive analysis on penalty and no intervention is required.
[50] I do not agree. The Committee made an error of law in describing the Appellant’s exercise of his right to a hearing as an aggravating factor. The Court is required to intervene to address that error of law.
[51] In submissions, both counsel asked that the Court make the appropriate order to address that error of law. Neither counsel asked that the matter be returned to the Committee for re-consideration as to the duration of the suspension.
[52] Pursuant to s. 70(3) of the Health Professions Procedural Code, this Court has all the powers of the panel that dealt with the matter. Given the nature of the error of law, the consent of counsel, and the otherwise comprehensive analysis of the appropriate period of suspension, I agree that this is a case where the Court should exercise the authority it has to substitute.
[53] Based on the analysis of the Committee, I find that a reduction in the period of suspension by two months, less a further two months for completing the program, will serve to neutralize the effect of the error of law in wrongly attributing the exercise of the right to a hearing as an aggravating factor.
Costs
[54] Counsel made submissions as to costs dependent on outcome. The Appellant has not been successful on the appeal of the liability decision but has been successful on the appeal of the penalty decision. He should be required to pay modest costs.
ORDER TO GO AS FOLLOWS:
[55] The appeal from the liability decision dated December 11, 2017, is dismissed.
[56] The appeal from the penalty decision dated June 6, 2018, is allowed in this respect: the period of suspension is reduced from twelve months to ten months less two months remitted on completion of the ProBE course.
[57] The Appellant shall pay costs fixed in the amount of $2500.00.
Kiteley J.
I agree ______________________________
D.L. Corbett J.
I agree ______________________________
C. MacLeod J.
Date: August 14, 2019
[^1]: Ontario (College of Pharmacists) v. Ghobrial, 2017 ONCPDC 35. [^2]: Ontario (College of Pharmacists) v. Ghobrial, 2018 ONCPDC 28. [^3]: R.S.O. 1990, c. S.22. [^4]: S.O. 1991, c. 18. [^5]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 47 and 49. [^6]: Noriega v. College of Physicians and Surgeons of Ontario, 2016 ONSC 924 (Div. Ct.) at paras. 6, 59-60. [^7]: Kalin v. Ontario College of Teachers (2005), 2005 18286 (ON SCDC), 75 O.R. (3d) 523 (Div. Ct.) at para. 7. [^8]: Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 (Div. Ct.) at para. 127. [^9]: Gale v. College of Physicians and Surgeons of Ontario, 2015 ONSC 1981 (Div. Ct.) at para. 8. [^10]: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193 at para. 92. [^11]: Namely paragraphs 325, 340-341, 350, 353-354, 355, 389, 390. [^12]: Paragraphs 389-390. [^13]: College of Physicians and Surgeons of Ontario v. Porter (2003), 2003 43329 (ON SCDC), 174 O.A.C. 126 (Div. Ct.) at para. 20; College of Physiotherapists of Ontario v. Boon, 2018 ONSC 3463 (Div. Ct.) at para. 31.