DATE: 2002-12-19

DOCKET: C36484

COURT OF APPEAL FOR ONTARIO

CARTHY, LABROSSE and GOUDGE JJ.A.

B E T W E E N:

ONTARIO COLLEGE OF PHARMACISTS

Michael C. Birley, for the respondent

Respondent

• and -

NEIL KATZMAN and MORE FOR LESS VARIETY INC., carrying on business as NEIL THE CHEMIST

Jack Louis Pinkofsky and Richard J. Posner, for the appellants

Appellants

Heard: October 4, 2002

On appeal from the order of the Divisional Court (Justices James B.S. Southey, John R.R. Jennings and Eileen E. Gillese) dated March 7, 2001 dismissing the appellant's appeal against the decision of a panel of the Discipline Committee of the Ontario College of Pharmacists dated April 30, 1998.

LABROSSE AND GOUDGE JJ.A:

[1] The appellants Neil Katzman and More For Less Variety Inc., carrying on business as Neil The Chemist ("the Pharmacy"), appeal, with leave, the dismissal of their appeal by the Divisional Court from their convictions on various charges of professional misconduct under statutes regulating pharmacists.

OVERVIEW

[2] Leave to appeal to this court was granted on only one issue: the jurisdiction of the Complaints Committee to refer allegations of professional misconduct to the Discipline Committee of the Ontario College of Pharmacists ("the College"). For the reasons that follow, we conclude that the Complaints Committee did not act within its jurisdiction in referring the matters it did to the Discipline Committee, and would allow the appeal.

THE FACTS

[3] In this appeal, the requirement of filing an appeal book was dispensed with on the basis that the relevant documents were to be included in the appellants' Compendium of Documents. Unfortunately the record is incomplete and numerous documents that are referred to in the factums are not included in the Compendium. The facts that follow are taken from the record and, in part, from statements in the appellants' factum, admitted as substantially correct by the respondent.

[4] In 1993 and 1994, two complaints relating to dispensing errors involving two persons (the Cole and the Yellen complaints) were lodged against the appellants with the College. The materials before us contain no information on the complaint by Ms. Cole. In the course of its investigation of these complaints, the Complaints Committee of the College requested that Kim Ruthig, an inspector for the College, inquire into these complaints.

[5] On July 7, 1995, Mr. Ruthig reported to Tina Langlois, Manager of the Patient Relations Programs at the Ontario College of Pharmacists, that he had attended at the appellant's pharmacy. During the course of his investigation, Mr. Ruthig ascertained that certain prescription records had not been maintained by the appellants.

[6] On July 11, 1995, Mr. Katzman attended before the Complaints Committee, on their invitation, to discuss the Yellen complaint. He had done so for the Cole complaint in May 1993.

[7] On August 17, 1995, Tina Langlois sent an internal memo to A.J. Dunsdon, the Registrar of the College, advising him that several issues had arisen during the investigation of the complaints which the Complaints Committee felt should be examined in greater detail, namely a) dispensing errors, b) a non-pharmacist posing as a pharmacist, that is, non supervision of the pharmacy, c) switching a non-benefit to a benefit without contacting the physician, and d) potential Ontario Drug Benefit (ODB) fraud. Ms. Langlois requested that the Registrar appoint Mr. Ruthig pursuant to s. 75 of the Regulated Health Professions Code (the Code) to conduct an investigation into the practice of the appellants as it relates to these issues. The appointment of Mr. Ruthig was made by the Registrar on the same day, but only in respect of b), c) and d).

[8] On November 13, 1995, the Complaints Committee reported to the Registrar on its investigation of the complaint by Mr. Yellen. In its report, the Committee stated that the issue of non supervision of the pharmacy had been referred for a Registrar's investigation and the issue of the destruction of prescription records had been referred to the Executive Committee. The Complaints Committee concluded that it could not make a determination with respect to the Yellen complaint. The report ended with these words: "This matter is concluded."

[9] Also on November 13, 1995, Mr. Ruthig sent a report, said to be pursuant to his appointment of August 17, 1995, to the Registrar. The report described erratic and uncooperative behaviour of the appellant, apparent dispensing errors involving individuals other than Ms. Cole or Mr. Yellen, and improper record keeping.

[10] On November 23, 1995, the Registrar wrote to the appellants, informing them that the Complaints Committee had disposed of the complaint regarding the prescription of Mr. Yellen, and enclosing a copy of the written decision and reasons of the Committee. The letter also informed the appellants that if they were not satisfied with the decision they could request a review of the decision.

[11] On February 29, 1996, the Complaints Committee reported again to the Registrar. The report confirmed that the Committee met in January 1996 to consider the complaints against the pharmacist and the pharmacy. It indicated that Mr. Ruthig was appointed to conduct an investigation into the practice of the pharmacist as it related to dispensing errors, non supervision of a pharmacy, improper substitution of benefits, and billing prescriptions to ODB.

[12] The report explained that upon completion of his investigation pursuant to s. 75 of the Code, Mr. Ruthig submitted his report which was reviewed and considered by the Committee. Based on this information, the Complaints Committee concluded:

... there is sufficient evidence to support a finding that dispensing errors did occur, suspected fraud, improper substitution benefits, and that Mr. Katzman's pharmacy went unsupervised. Therefore this matter is referred to the Discipline Committee of the College for a hearing to determine whether or not the actions of Mr. Neil Katzman, in the circumstances complained of and investigated, were such that they may be considered professional misconduct.

[13] On April 1, 1996, the Registrar wrote to Mr. Katzman enclosing a copy of the written decision and reasons of the Committee dated February 29, 1996.

[14] On July 4, 1997, the appellants were charged by way of a Notice of Hearing. Mr. Katzman was charged with failing to maintain prescription records of his pharmacy for two years prior to November 1995, and four charges of failing to meet the standard of his profession by dispensing medication that did not match the patient's prescription. Reflecting Mr. Ruthig's report, none of these charges of dispensing errors involved Ms. Cole or Mr. Yellen but rather, allege dispensing errors involving other named patients. Another charge of permitting the dispensing of prescription by a person not a member of the profession (that is, non supervision) was withdrawn at the commencement of the hearing before the Discipline Committee.

[15] The Pharmacy was charged with seven offences relating to the maintenance or housekeeping of the pharmacy. We were not told whether these charges resulted from a referral from the Complaints Committee. Indeed there is nothing in the record to indicate how these issues got before the Discipline Committee. We can only presume that this was done properly. Given the terms on which leave to appeal was granted, we will say nothing further about these charges.

[16] On April 30, 1998, the Discipline Committee found Mr. Katzman guilty on each charge. As to penalty, his licence was suspended for two months, to be remitted upon successful completion of a jurisprudence course and examination to be paid by Mr. Katzman, and a requirement that he attend a quality assurance practice review at his expense. The Pharmacy was found not guilty of two, but guilty of five, of the seven charges. A fine of $2,000.00 was imposed and an order was made requiring three inspections of the pharmacy at the expense of Mr. Katzman. A further suspension of two months was ordered upon default of payment.

[17] The appellants appealed the decision of the Discipline Committee to the Divisional Court on numerous grounds. The appeal was dismissed on February 20, 2001. On June 7, 2001, leave to appeal was granted by this court on the sole issue of the jurisdiction of the Complaints Committee to refer the matters to the Discipline Committee.

ANALYSIS

[18] While the record before us is, as we have said, unfortunately incomplete, we have reviewed the chronology as best we can, because some aspects of it are cause for concern. Though not before us as matters relevant to the precise issue in this appeal, the following comments may perhaps be of some assistance in the future.

[19] First, the pharmacist and the pharmacy often appear to be treated by the College and its officers as the same "person" in these proceedings. Sometimes they are treated separately, but often the distinction between them is blurred. That could easily result in an unfairness to one or the other.

[20] Second, the investigation ordered by the Registrar omits "dispensing errors" as a subject matter although that had been on the list requested by the Complaints Committee. At the least, this leaves an unnecessary cloud over the legitimacy of the resulting investigation of dispensing errors which, in fact, occurred.

[21] Third, the member, Mr. Katzman, was advised through the decision of the Complaints Committee of November 13, 1995 that the issue of non supervision of the pharmacy had been referred for a Registrar's investigation. Inexplicably, he was not advised at the same time of the other subject matters that had also been referred for the same investigation. It surely would have been preferable had that happened.

[22] Finally there is nothing before us to indicate how the issue of the destruction of prescription records got from the Executive Committee to the Discipline Committee. We can only presume that this was done properly.

[23] However the single issue before us is the jurisdiction of the Complaints Committee to refer matters to the Discipline Committee.

[24] The referral of February 29, 1996, quoted above, referenced dispensing errors, suspected fraud, improper substitution of benefits, and improper supervision of the pharmacy. The matters of suspected fraud and improper substitution of benefits did not result in charges before the Discipline Committee. The matter of improper supervision led to a charge, which was withdrawn. The only matter from this list which resulted in charges which were dealt with by the Discipline Committee was the first, namely dispensing errors. It led to four charges, all of which Mr. Katzman was found guilty of. These charges did not involve Ms. Cole or Mr. Yellen but, rather, other individuals.

[25] Hence the only question with jurisdictional bite is whether, in the circumstances present here, the Complaints Committee had jurisdiction to refer the matter of dispensing errors not involving Ms. Cole or Mr. Yellen to the Discipline Committee. If not, the findings against Mr. Katzman on these charges cannot stand because they were not properly placed before the Discipline Committee.

[26] The procedures which govern the discipline process for pharmacists and the other health professions in Ontario are set out in the Health Professions Procedural Code which is Schedule 2 of the Regulated Health Professions Act, 1991 S.O. 1991, c. 18. The sections of that Code relevant to this appeal are as follows:

COMPLAINTS

Panel for investigation of complaints

25.—(1) A complaint filed with the Registrar regarding the conduct or actions of a member shall be investigated by a panel selected by the chair of the Complaints Committee from among the members of the Committee.

Composition

(2) A panel shall be composed of at least three persons, at least one of whom shall be a person appointed to the Council by the Lieutenant Governor in Council.

Quorum

(3) Three members of a panel constitute a quorum.

Complaint must be recorded

(4) A panel shall not be selected unless the complaint is in writing or is recorded on a tape, film, disk or other medium.

Notice to member

(5) The Registrar shall give the member who is the subject of a complaint notice of the complaint and of the provisions of subsection 26(1). S.O. 1991, c. 18, Sched. 2, s. 25

Considered by panel

26.—(1) A member who is the subject of a complaint may make written submissions to the panel within thirty days after receiving notice under subsection 25(5).

Powers of panel

(2) A panel, after investigating a complaint regarding the conduct or actions of a member, considering the submissions of the member and considering or making reasonable efforts to consider all records and documents it considers relevant to the complaint, 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.

2. Refer the member to the Executive Committee for incapacity proceedings.

3. Require the member to appear before the panel or another panel of the Complaints Committee to be cautioned.

4. Take action it considers appropriate that is not inconsistent with the health profession Act, this Code, the regulations or by-laws. S.O. 1991, c. 18, Sched. 2, s. 26.

Complaint about sexual abuse

(3) In exercising its powers under paragraph 4 of subsection (2), the panel may not refer the matter to Quality Assurance Committee if the complaint is about sexual abuse as defined in clause 1(3)(a) or (b).

Complaint in bad faith, etc.

(4) If the panel considers a complaint to be frivolous, vexatious, made in bad faith or otherwise an abuse of process, it shall give the complainant and the member notice that it intends to take no action with respect to the complaint and that the complainant and the member have a right to make written submissions within 30 days after receiving the notice.

Same

(5) If the panel is satisfied, after considering the written submissions of the complainant and the member, that a complaint was frivolous, vexatious, made in bad faith or otherwise an abuse of process, the panel shall not take action with respect to the complaint.

Notice of decision

27. A panel shall give the complainant and the member who is the subject of the complaint,

(a) a copy of its decision;

(b) a copy of its reasons, if the panel decided to take no action with respect to a complaint or to do anything under paragraph 3 or 4 of subsection 26(2); and

(c) a notice advising the member and the complainant of any right to request a review they may have under subsection 29(2). S.O. 1991, c. 18, Sched. 2, s. 27.

Review by the Board

29.—(1) Subject to section 30, the Board shall review a decision of a panel of the Complaints Committee if the Board receives a request under subsection (2).

Request for review

(2) The complainant or the member who is the subject of the complaint may request the Board to review a decision of a panel to the Complaints Committee unless the decision was,

(a) to refer an allegation of professional misconduct or incompetence to the Discipline Committee; or

(b) to refer the member to the Executive Committee for incapacity proceedings.

Time limit

(3) A request for a review may be made only within thirty days after the receipt of the notice of the right to request a review given under clause 27(c).

Parties

(4) The complainant and the member who is the subject of the complaint are parties to a review. S.O. 1991, c 18, Sched. 2, s. 29.

DISCIPLINE

Executive Committee referral

36.—(1) The Executive Committee may refer a specified allegation of a member's professional misconduct or incompetence to the Discipline Committee. S.O. 1991, c. 18, Sched. 2, s. 36.

REGISTRAR'S POWERS OF INVESTIGATION

Investigators

75. 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 Executive Committee approves of the appointment;

(b) the Executive Committee has received a report from the Quality Assurance Committee with respect to the member and has requested the Registrar to conduct an investigation; or

(c) the Complaints Committee has received a written complaint about the member and has requested the Registrar to conduct an investigation. 1991, c. 18, Sched. 2, s. 75.

[27] Simply put, the position of the appellants is that the Complaints Committee's jurisdiction to refer an allegation to the Discipline Committee is conferred by s. 26(2) of the Code. In this case, it failed to comply with the requirements of paragraph 1 of the section in that none of the charges in respect of which the appellants were ultimately tried were "related to" the Cole or Yellen complaints. As a second matter, the appellants also submit that the Complaints Committee failed to exercise its jurisdiction in that it never properly specified the allegations against the appellants.

[28] On the other hand, the position of the respondent is that the jurisdiction of the Complaints Committee is much wider than that suggested by the appellant. Section 26(2), paragraph 1 was complied with and in any event, paragraph 4 allows the Committee to take action it considers appropriate that is not inconsistent with the relevant statutes, regulations and by-laws.

[29] In evaluating these arguments it is important to keep in mind that discipline proceedings brought against a professional may have serious consequences for that person's livelihood, reputation, and professional career. See Laskin J.A. in Howe v. Institute of Chartered Accountants (1994), 1994 3360 (ON CA), 19 O.R. (3d) 483 at 495. This is as true for pharmacy as it is for other self-regulated professions. Thus 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.

[30] The disciplinary legislation here is the Health Professions Procedural Code. It provides the procedure for the initiation and conduct of discipline proceedings against health professionals including pharmacists. As set out in the sections quoted earlier one route to a hearing before the Discipline Committee begins with the filing of a complaint against the pharmacist. This is then investigated by the Complaints Committee which pursuant to s. 26(1) paragraph 1 may then "refer a specified allegation of the member's professional misconduct or incompetence to the Discipline Committee if the allegation is related to the complaint." [Emphasis added.]

[31] The first and main question to be addressed is the scope of the underlined phrase. Does it permit the Complaints Committee to refer any allegation which has arisen during the investigation of the complaint, as the respondent argues? Or is it limited to an allegation concerning, in some way, the matter complained of, as the appellant contends?

[32] In our view, there are a number of aspects of the Code which make the latter interpretation the correct one.

[33] In the first place, the scope of the material which the Complaints Committee is to consider before deciding to refer an allegation to Discipline suggests that the narrower interpretation of "related to" was intended by the Legislature. Section 26(2) requires the Complaints Committee to consider (or make reasonable efforts to do so) all records and documents it considers to be relevant to the complaint. There is no requirement to consider those records and documents which, though irrelevant to the complaint, are relevant to other alleged misconduct uncovered during the investigation of the complaint. Had the legislation intended the broader interpretation of "related to" it would surely have required the Complaints Committee to consider all records and documents considered relevant to the proposed allegations of misconduct, not just those considered relevant to the complaint.

[34] Second, the member's due process rights in relation to the Complaints Committee suggests that the narrower interpretation was intended. Section 25(5) requires that the member receive both a copy of the complaint and a notice that he may make written submissions about it to the Complaints Committee. Section 26(2) requires the Complaints Committee to consider those submissions before deciding to refer an allegation to discipline. The value of this due process right is demonstrated in this case where it resulted in the Complaints Committee closing the file on the Yellen complaint. The broader interpretation however would subject the member to the formal discipline process not just over complaints for which he or she had been accorded this due process, but over allegations that he or she had had no prior right to comment on. There is no apparent logic to the different treatment this presents. This, together with the importance which the legislature clearly attaches to the member's right to comment on the complaint before it is sent to the Discipline Committee, again supports the narrower interpretation proposed by the appellant.

[35] Third, the rights accorded by the Code to the complainant are also consistent with the narrower interpretation. Section 27(a) requires that the complainant receive a copy of the decision of the Complaints Committee. Section 29(2) gives the complainant the right to have the Health Professions Appeal Review Board review a decision of the Complaints Committee not to refer an allegation to discipline. If the allegation concerns the matter complained of, the complainant's right to seek review makes sense. However, the boarder interpretation would give the complainant a right to seek review if the Complaints Committee considered, but declined to send to discipline, an allegation of other misconduct uncovered during the investigation of the complaint. This right would exist even though the complainant had no knowledge of, or connection with, the other misconduct. Once again, the logic of the Code suggests the narrower interpretation.

[36] Finally, as the appellant suggested, the narrower interpretation does permit the referral to discipline of other misconduct uncovered in the course of the investigation of the complaint, but, at the same time, allows the members some due process protection in doing so, thus recognizing both the public interest and the member's interest. Under s. 26(2) paragraph 4 the Complaints Committee can decide to refer such a matter to the Executive Committee for it to consider a referral to discipline pursuant to its power under s. 36(1). This provides access to discipline and thus protects the public interest. The member's due process right is protected because under s. 29(2) he or she can request that the Health Professions Appeal and Review Board review such a decision by the Complaints Committee and the member is entitled to be a party to that review.

[37] In summary, given the design of the Code, the jurisdiction given to the Complaints Committee by s. 26(2) paragraph 1 is to refer to discipline a specified allegation which concerns, in some way, the matter complained of. Section 26(2) paragraph 1 does not give the Complaints Committee jurisdiction to refer to discipline allegations of other misconduct uncovered during the investigation of the complaint.

[38] In this case, there is no need to test the outer limits of what can properly be referred under s. 26(2) paragraph 1. Here the alleged dispensing errors involving other individuals, but not Ms. Cole or Mr. Yellen, came to light during the investigation of the Yellen complaint. They do not concern the Cole and Yellen complaints at all. They were not themselves the subject of complaints to the Complaints Committee. Thus they could not be referred to discipline by the Complaints Committee pursuant to s. 26(2) paragraph 1.

[39] This conclusion makes it unnecessary for us to deal with the appellants' alternate argument concerning s. 26(2) paragraph 1, namely that in any event, the dispensing error allegations were not "specified" as required by that provision. Suffice it to say that in our view an allegation referred to discipline by the Complaints Committee under this paragraph must, at a minimum, be sufficiently specified that the resulting charges laid before the Discipline Committee can be seen to be properly founded on a referral from the Complaints Committee.

[40] The respondent's alternative argument is that in any event the Complaints Committee could refer these allegations of other misconduct to discipline under s. 26(2) paragraph 4.

[41] The simple answer to this argument is that the legislature has specifically dealt with the jurisdiction of the Complaints Committee to refer allegations to discipline in s. 26(2), paragraph 1. Having done so, the legislature cannot be taken to have dealt with the same subject again in paragraph 4 in language which does not expressly address that jurisdiction and which, if read as contended for by the respondent, would make paragraph 1 unnecessary. We therefore conclude that the Complaints Committee has no jurisdiction to refer a matter directly to discipline pursuant to s. 26(2) paragraph 4. While that paragraph undoubtedly gives the Complaints Committee a very broad jurisdiction, it cannot be taken to enlarge the power that the legislature has expressly defined in paragraph 1.

[42] In conclusion we find that the Complaints Committee did not have jurisdiction to refer to discipline allegations of dispensing errors having nothing to do with the Cole and Yellen complaints. Hence those allegations were not properly placed before the Discipline Committee and the findings of misconduct based on them must be set aside.

[43] We would therefore allow the appeal, set aside the order below, and substitute an order setting aside the findings of misconduct against Mr. Katzman based on the charges of dispensing errors. If the issue of penalty against him is not moot, we would remit the matter to the Discipline Committee given that the finding of misconduct based on the destruction of records remains untouched.

[44] In light of the incomplete record in this appeal, we would make no order as to costs, either here or below.

Released: December 19, 2002 "JJC"

"J.M. Labrosse J.A."

"S.T. Goudge J.A."

"I agree J.J. Carthy J.A."