Abdul v. Ontario College of Pharmacists; Federation of Health Regulatory Colleges of Ontario, Intervenors
[Indexed as: Abdul v. Ontario College of Pharmacists]
Ontario Reports
Court of Appeal for Ontario
Rouleau, Pardu and L.B. Roberts JJ.A.
August 28, 2018
142 O.R. (3d) 682 | 2018 ONCA 699
Case Summary
Professions — Pharmacists — Discipline — College receiving complaints of professional misconduct on part of respondent pharmacist — College not following requirements under s. 25 of Health Professions Procedural Code to give notice of complaint to respondent within 14 days and to deal with complaint within 150 days — College not acting improperly in accepting withdrawal of complaints and proceeding with registrar-initiated investigation under s. 75 of Code as there was no prejudice or procedural unfairness to respondent — Divisional Court erring in finding that college's departure from strict compliance with s. 25 resulted in loss of jurisdiction to refer allegations to Discipline Committee — Health Professions Procedural Code, ss. 25, 75.
After receiving information from two individuals in the fall of 2012 that the respondent's pharmacy was taking back unused medications and re-dispensing them to different patients, the appellant college did not follow the requirements under s. 25 of the Health Professions Procedural Code (the "Code") to notify the respondent within 14 days of receipt of the complaints and to deal with the complaints within 150 days. In February 2013, the college's manager of investigations and resolutions asked the complainants if they would be willing to withdraw their complaints and have the matter proceed as a complaint initiated by the registrar under s. 75 of the Code. They agreed. After an investigation, allegations of professional misconduct were referred to the Discipline Committee. The respondent brought a motion to quash the charges on the ground that the college lost jurisdiction to prosecute the allegations by failing to abide by s. 25 of the Code and improperly proceeding with a registrar-initiated investigation. The panel dismissed the motion. The Divisional Court allowed the respondent's application for judicial review of that decision, quashed the Discipline Committee's decision and ordered that the college was prohibited from ever prosecuting the charges. The college appealed.
Held, the appeal should be allowed.
The Divisional Court erred in concluding that a written complaint can never be withdrawn and that the college's failure to proceed with a written complaint under s. 25 of the Code automatically results in a loss of jurisdiction to investigate and refer allegations of professional misconduct for adjudication. There is nothing in the Code that prohibits the withdrawal of a written complaint by a member of the public when the college agrees and the complaint is taken up by investigation under another provision with full procedural safeguards provided to the accused member. The interpretive principle of strict compliance with and construction of professional discipline legislation to ensure procedural fairness to accused members is not overriding. Rather, a broader interpretive approach is required, which balances the public interest and the fair hearing rights of the accused member. There may be cases where the withdrawal of a written complaint and the manner of its handling by the college may amount to an abuse of process and bar prosecution of charges because of a failure to accord procedural fairness to an accused member, but the Discipline Committee reasonably found that there was no procedural unfairness to the respondent and that he suffered no prejudice.
Authorities Cited
[Henderson v. College of Physicians and Surgeons of Ontario (2003), 65 O.R. (3d) 146, [2003] O.J. No. 2213, 228 D.L.R. (4th) 598, 172 O.A.C. 337, 123 A.C.W.S. (3d) 588 (C.A.); McIntosh v. College of Physicians and Surgeons of Ontario, [1998] O.J. No. 5222, 169 D.L.R. (4th) 524, 116 O.A.C. 158, 14 Admin. L.R. (3d) 117, 84 A.C.W.S. (3d) 585 (Div. Ct.), distd
[Katzman v. Ontario College of Pharmacists, [2002] O.J. No. 4913, 223 D.L.R. (4th) 371, 49 Admin. L.R. (3d) 134, 119 A.C.W.S. (3d) 488 (C.A.), consd
Other Cases Referred To
[Sazant v. College of Physicians and Surgeons of Ontario (2012), 113 O.R. (3d) 420, [2012] O.J. No. 5076, 2012 ONCA 727, 269 C.R.R. (2d) 177, 297 O.A.C. 338, 42 Admin. L.R. (5th) 262 [Leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 549]; Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, 295 O.A.C. 164, 40 Admin. L.R. (5th) 307, 355 D.L.R. (4th) 518, 220 A.C.W.S. (3d) 240
Statutes Referred To
[Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sch. 2, Health Professions Procedural Code, ss. 25, (6), 28 [as am.], 38 [as am.], 40, 75(1)(a)
Procedural History
APPEAL from the order of the Divisional Court (Kiteley, Nightingale and W.M. Matheson JJ.), [2017] O.J. No. 2868, 2017 ONSC 2613 (Div. Ct.), quashing the decision of the Discipline Committee of the Ontario College of Pharmacists, 2016 ONCPDC 21.
Counsel:
Brian Gover, Aaron Dantowitz and Benjamin Kates, for appellant.
Neil M. Abramson and Robert Barbiero, for respondent.
Richard Steinecke and Natasha Danson, for intervenor.
Decision
[1] BY THE COURT: The appellant, Ontario College of Pharmacists (the "College"), appeals from the order of the Divisional Court allowing the respondent member's application for judicial review of the decision of the College's Discipline Committee.
Factual Background
[2] In the fall of 2012, the College received information that the respondent's pharmacy was taking back unused medications that had already been dispensed and re-dispensing them to different patients. That information came orally from Christine Donaldson, the pharmacy manager at the Hôtel Dieu Grace Hospital in Windsor and a member of the College Council, and in writing from G.V., a territory manager with Janssen Inc.
[3] The College took no steps under s. 25 of the Health Professions Procedural Code (the "Code") in relation to G.V.'s October 30, 2012 written complaint although s. 25(6) of the Code required notice of the complaint to the member within 14 days of its receipt, and s. 28 required that the complaint be dealt with within 150 days. In February 2013, Maryan Gémus, the College's manager of investigations and resolutions, called G.V. to explain the process and advise her that she could continue her complaint, or withdraw it and have it proceed as a complaint initiated by the registrar. Through an e-mail dated February 5, 2013, the complainant elected to withdraw her complaint so that it could proceed through the registrar-initiated process. Ms. Gémus also spoke to Ms. Donaldson and obtained her information about the allegations against the respondent.
[4] On March 1, 2013, Ms. Gémus submitted a memorandum to the registrar in which she summarized the information obtained and requested that the registrar determine whether the threshold for a registrar-initiated investigation under s. 75(1)(a) of the Code had been met. In accordance with the provisions of s. 75(1)(a), the registrar considered the information received about the respondent and signed an appointment of investigators, which the Inquiries, Complaints and Reports Committee ("ICRC") approved. The investigation was summarized in a report to which the respondent was given an opportunity to reply. The respondent provided a cursory response. The ICRC referred specified allegations of professional misconduct, including the re-dispensing allegations, as well as other related billing improprieties, to the Discipline Committee. The College issued a notice of hearing and served it on the respondent.
Decision of the Panel of the Discipline Committee
[5] At the hearing, the respondent brought a motion to quash the charges on the ground that the College had lost jurisdiction to prosecute the allegations by failing to abide by the complaints process mandated by its own legislation and instead improperly proceeded with a registrar-initiated s. 75(1)(a) investigation after an informal and improper investigation by Ms. Gémus.
[6] The majority of the panel of the Discipline Committee (the "Discipline Committee") dismissed the respondent's motion. While noting that the College's handling of the complaint was irregular, and that abuse of process may be a concern, the Discipline Committee did not find that Ms. Gémus carried out an informal or improper investigation or that quashing the allegations against the member was warranted. It concluded that there was no issue with the manner in which the request for a registrar's investigation was handled: the College properly handled the information provided by the complainant; the respondent suffered no prejudice; and the College satisfied the procedural conditions for a referral pursuant to a registrar-initiated investigation. The Discipline Committee determined that the College had jurisdiction to proceed with the adjudication of the charges.
[7] The dissenting panel member wrote that by offering the complainant the option to withdraw her complaint, the College was really seeking to redo and bury its processing failures by replacing the written complaint with a registrar-initiated investigation grounded in the same subject matter. The dissenting member found this constituted an abuse of process and a lack of fairness but did not find malice or bad faith on the part of the College.
Decision of the Divisional Court
[8] The respondent's application for judicial review was based on the Discipline Committee's alleged failure to recognize either that non-compliance with the Code resulted in loss of jurisdiction, or that he had been so prejudiced that the proceedings amounted to an abuse of process.
[9] The Divisional Court granted the respondent's application and quashed the Discipline Committee's decision, ordering that the College was prohibited from ever prosecuting the charges. The court held that the Code does not permit the avoidance of the mandatory complaints process under s. 25 by the withdrawal of a complaint, and that there is no statutory provision in the Code that permits a complainant to control the process by choosing to withdraw his or her complaint. Even if a complainant purports to withdraw a complaint, the College must still fulfill its statutory obligations by dealing with the written complaint in accordance with the procedural steps required by s. 25 of the Code.
[10] The Divisional Court held that, in some circumstances, it may be appropriate for a registrar-initiated investigation under s. 75(1)(a) to be undertaken in parallel to addressing a complaint, even when information in relation to it has already come to the College's attention by way of a complaint. However, the court determined that it was not appropriate in this case. Moreover, the court treated the College's departure from strict compliance with s. 25 of the Code as resulting in a loss of jurisdiction to refer the allegations against the respondent to the Discipline Committee for adjudication. The court concluded that the Discipline Committee's determination that the matter had been properly handled was therefore unreasonable and set it aside.
[11] This court granted the appellant leave to appeal on November 8, 2017.
Analysis
[12] The appellant and intervenor submit that the Divisional Court erred in finding that the decision of the Discipline Committee was unreasonable and, in holding that, the College and the Discipline Committee had no jurisdiction to proceed with the charges against the respondent under s. 75(1)(a) of the Code.
[13] We agree. As we will explain, the Divisional Court erred in concluding that a written complaint can never be withdrawn, and that the College's failure to proceed with a written complaint under s. 25 of the Code automatically results in a loss of jurisdiction to investigate and refer allegations of professional misconduct for adjudication.
[14] The respondent maintains that the College lost jurisdiction in his case by its unexplained and total failure to comply with the Code, its governing statute. He argues that the College's total disregard for the Code engages principles of fundamental justice that underlie the community's sense of fair play and procedural fairness. He points to the College's failure to follow the steps required under s. 25 with respect to the complaint and the lack of explanation for why it did not comply with these mandatory statutory requirements. He argues that the Divisional Court adopted a reasonable approach to the Code and made no error in quashing the Discipline Committee's decision.
[15] We do not accept these submissions. There is nothing in the Code that forbids the withdrawal of a written complaint by a member of the public when the College agrees, and the complaint is taken up by investigation under another provision with full procedural safeguards provided to the accused member. The Discipline Committee was not compelled to conclude that the Code prohibited a complainant from withdrawing a written complaint, nor that the written complaint had to proceed under s. 25. Neither was the Discipline Committee required to hold that the Code precludes recourse to a registrar-initiated investigation under s. 75(1)(a) where the same subject matter has come to the College's attention by way of a complaint. Such an approach makes no practical sense in this case where the registrar-initiated investigation included the allegations from Ms. Donaldson, as well as from the written complaint of G.V.
[16] The interpretive principle of strict compliance with and construction of professional discipline legislation to ensure procedural fairness to accused members is not exclusive or overriding. The Discipline Committee is required to interpret its enabling statute with a view to protecting the public interest in the proper regulation of the professions: Sazant v. College of Physicians and Surgeons of Ontario (2012), 113 O.R. (3d) 420, [2012] O.J. No. 5076, 2012 ONCA 727, at para. 101, leave to appeal to S.C.C. refused [2012] S.C.C.A. No. 549. A balancing of these interests is required.
[17] Similarly, the Divisional Court's concern that allowing the withdrawal of a complaint will give a complainant unlimited control over the process and its reliance on McIntosh v. College of Physicians and Surgeons of Ontario, [1998] O.J. No. 5222, 169 D.L.R. (4th) 524 (Div. Ct.) for that proposition are misplaced. The present case bears no resemblance to the circumstances of McIntosh in which the complainant was permitted to manipulate the process to the detriment of the member. In that case, the complainant repeatedly requested that the College of Physicians and Surgeons alternatively proceed and hold a complaint instigated by her in abeyance. As a result, the accused member did not receive notice of the complaint for years and the matter was referred to the Discipline Committee only after considerable delay. The Divisional Court determined that the real unfairness through the denial of natural justice to the accused member justified an order of prohibition. Notwithstanding the egregious procedural unfairness in that case, it is important to note that the Divisional Court did not create an absolute bar to the withdrawal of a complaint. Although the conduct before it amounted to "a flagrant violation of the intention of the legislation", the court recognized the need for flexibility in the complaint process and that "there may be some accommodation given to the complainant from time to time, for appropriate reasons": McIntosh, at para. 34. The present case is not a case where the complainant controlled the process.
[18] The Divisional Court appears to have referenced this court's decision in Katzman v. Ontario College of Pharmacists, [2002] O.J. No. 4913, 223 D.L.R. (4th) 371 (C.A.) as mandating a strict construction/compliance approach to professional discipline legislation. In our view, the passage in the Divisional Court's reasons cited from Katzman, at para. 29, supports a broader interpretative approach, namely, the balancing of the public interest and the fair hearing rights of the accused member: "[W]hile 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."
[19] That said, the investigative and prosecutorial discretion of the College to permit the withdrawal of a written complaint is not absolute. There may be instances where the withdrawal of a written complaint and the manner of its handling by the College may amount to an abuse of process and bar prosecution of charges because of a failure to accord procedural fairness to an accused member.
[20] The issue in the present case, therefore, is whether the College's irregular treatment of G.V.'s complaint and allowing the withdrawal of the complaint constituted a breach of its duty of fairness to the respondent despite a properly commenced registrar-initiated investigation, encompassing the complaint made by G.V. If it did, then proceeding with the registrar-initiated investigation would be an abuse of process and the College would have exceeded its jurisdiction, as found by the Divisional Court. However, in our view, it did not.
[21] The College's failure to process the written complaint under s. 25 of the Code does not automatically result in the loss of jurisdiction to investigate the concerns raised by G.V. and others. As this court explained in Volochay v. College of Massage Therapists of Ontario (2012), 111 O.R. (3d) 561, [2012] O.J. No. 3871, 2012 ONCA 541, at paras. 48, 58 and 59, the notice and other provisions under s. 25 codify well-established rules of natural justice and statutorily impose a duty of procedural fairness on the College, even at the investigatory stage of its processes. However, as this court wrote in Volochay, at para. 58, a failure to follow them does not automatically cause a loss of jurisdiction to process a complaint:
[A] question of procedural fairness or natural justice is not a true question of jurisdiction in the narrow sense that phrase is used in Dunsmuir. Whether a tribunal breached its duty of fairness is not relevant to whether it had authority to begin its inquiry. A breach of the duty of fairness only arises after the inquiry has lawfully begun. Though a tribunal that breaches its duty of fairness may be said to have abused or exceeded its jurisdiction, this is not the same thing as having no jurisdiction to even start an inquiry.
[Citations omitted]
[22] While the Discipline Committee noted that the handling of G.V.'s written complaint was irregular, it did not find that the irregular handling of the complaint, the withdrawal of the complaint, or the subsequent registrar-initiated process amounted to an abuse of process so as to warrant quashing the allegations. As required, the Discipline Committee undertook a balancing of the public interest in the investigation and prosecution of charges against the respondent, with the requirement that he receive procedural fairness, at para. 47:
The Panel agrees that, on the surface, "abuse of process" by the College may be a concern given the requirement to process the information in a timely manner. However, given the seriousness of the allegations against the Member and the potential for harm to the public, the irregular process used by the College in this case is not sufficient to warrant quashing the allegations against the Member.
[23] The Discipline Committee concluded that the respondent's rights were not denied. This conclusion was reasonable and open to the Discipline Committee on the record. There is no evidence of prejudice to the respondent. While the respondent was not advised of the complaint until 16 months after it was filed, there is no evidence that his ability to defend himself was in any way impaired by appellant's failure to give notice within 14 days of the filing of the complaint. While there are procedural differences between a complaint and a registrar-initiated investigation process, both ensure basic procedural fairness to accused members. Both involve the ICRC in screening a concern about a member and affording fairness to that member, including that the member receives notice of the matters in issue and has the right to make representations to the ICRC before it makes a determination as to whether to refer allegations to the Discipline Committee.
[24] Here, the respondent was given the opportunity to respond to the allegations before the ICRC disposed of the matter, including its consideration of whether to refer the allegations to the Discipline Committee. The Discipline Committee noted that the respondent provided a response "with very little detail or substantive arguments addressing the Investigator's detailed findings". That the respondent chose to provide what the majority found was "simply inadequate to address the seriousness of the Investigator's findings" does not mean that the process was unfair.
[25] The present case is entirely distinguishable from Henderson v. College of Physicians and Surgeons of Ontario (2003), 65 O.R. (3d) 146, [2003] O.J. No. 2213 (C.A.). There, the College ignored the express procedure set out in ss. 38 and 40 of the Code for the amendment of a notice of hearing. The College attempted to present a newly amended notice of hearing following the commencement of a hearing in circumstances that the Code specifically forbade. Here, there is no such statutory prohibition.
[26] Here, the Discipline Committee also concluded that the registrar-initiated complaint was handled properly by the College, the registrar's request for the appointment of an investigator under s. 75(1)(a) was appropriate, the ICRC approved the appointment of the investigator, and the ICRC's request to the Discipline Committee to convene a discipline panel to review the allegations against the member then followed.
[27] As long as there is no procedural unfairness to the accused member, the choice to accept the withdrawal of a complaint and to proceed with the registrar-initiated process cannot be criticized. The College's failure to abide by its own procedural guidelines did not create any prejudice. The hallmark is prejudice. There was none here. There is no dispute that the College followed all required steps for a referral arising from a registrar-initiated investigation and that it provided all the procedural protections afforded by those steps. In these circumstances, the decision by the Discipline Committee that due process was followed and that it had the jurisdiction to proceed was reasonable. There was no basis for appellate intervention by the Divisional Court.
Disposition
[28] Accordingly, we allow the appeal, set aside the order of the Divisional Court and reinstate the July 26, 2016 order of the College's Discipline Committee.
[29] The appellant is entitled to its partial indemnity costs of the appeal in the agreed upon amount of $20,000, including HST and disbursements. The intervenor seeks no costs of the appeal.
[30] The appellant is also entitled to its partial indemnity costs of the appeal before the Divisional Court in the amount of $25,000, including HST and disbursements.
Appeal allowed.
Notes
1 Regulated Health Professions Act, 1991, S.O. 1991, c. 18, Sch. 2.
End of Document
