Citation: Jaffer v. Ontario (Health Professions Appeal and Review Board), 2019 ONSC 6770

COURT FILE NO.: 289/18

DATE: 20191125

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Swinton, Backhouse and Favreau JJ.

B E T W E E N :

AKEEL JAFFER

Applicant

– and –

ONTARIO (HEALTH PROFESSIONS APPEAL AND REVIEW BOARD), ONTARIO COLLEGE OF PHARMACISTS AND TERENCE MCQUISTON

Respondents

Counsel:

Craig Colraine and David Cassin for the Applicant

Richard Steinecke for the Ontario College of Pharmacists

David P. Jacobs for the Health Professions Appeal and Review Board

No one appearing for Terence McQuiston

HEARD at Toronto: September 19, 2019

FAVREAU J.:

Overview

[1] The applicant, Akeel Jaffer, brings an application for judicial review of a decision of the Health Professions Appeal and Review Board (the "HPARB"), which confirmed a decision of the Inquiries, Complaints and Reports Committee of the Ontario College of Pharmacists (the "ICRC") to caution Mr. Jaffer and require him to complete an educational program.

[2] Mr. Jaffer argues that the HPARB's decision was unreasonable and procedurally unfair, primarily on the basis that the ICRC and the HPARB improperly held him responsible for the mistake of another pharmacist.

[3] For the reasons that follow, the application is dismissed.

Statutory scheme

[4] The Ontario College of Pharmacists (the "College") is responsible for regulating pharmacists in Ontario.

[5] Pursuant to the Health Professions Procedural Code, Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the "Code"), the ICRC, which is a committee of the College, has the power to investigate complaints against pharmacists.

[6] When the ICRC receives a complaint, it must give notice of the complaint to the pharmacist against whom the complaint is made, and must give the pharmacist an opportunity to make submissions in writing in response to the complaint.

[7] Section 26(1) of the Code provides that the ICRC has the following powers once it has completed its investigation:

a. Refer a specified allegation of professional misconduct or incompetence to the Discipline Committee;

b. Refer the pharmacist to a panel of the ICRC for incapacity proceedings;

c. Require the pharmacist to appear before the ICRC to be cautioned; and

d. Take any action it considers appropriate that is not inconsistent with the Regulated Health Professions Act, the Code, the regulations or by-laws.

[8] Section 26(2) of the Code explicitly requires the ICRC to consider a pharmacist's discipline history when it investigates a complaint:

A panel of the Inquiries, Complaints and Reports Committee shall, when investigating a complaint or considering a report currently before it, consider all of its available prior decisions involving the member, including decisions made when that committee was known as the Complaints Committee, and all available prior decisions involving the member of the Discipline Committee, the Fitness to Practise Committee and the Executive Committee, unless the decision was to take no further action under subsection (5).

[9] Pursuant to section 29(1) of the Code, a pharmacist or a complainant can request the HPARB to review the ICRC's decisions, subject to some exceptions that are not relevant to this case.

[10] Section 33(1) of the Code, provides that, in its review, the HPARB is to consider the "adequacy of the investigation conducted" and/or "the reasonableness of the decision".

[11] Section 35(1) of the Code provides that, following its review of a decision by the ICRC, the HPARB has the following powers:

1. Confirm all or part of the decision.

2. Make recommendations the Board considers appropriate to the Inquiries, Complaints and Reports Committee.

3. Require the Inquiries, Complaints and Reports Committee to do anything the Committee or a panel may do under the health profession Act and this Code except to request the Registrar to conduct an investigation.

Background facts

Events leading to the complaint to the ICRC

[12] Mr. Jaffer is the designated manager at a Shoppers Drug Mart pharmacy in Toronto. In June 2016, a pharmacist employed at the pharmacy dispensed 100 mg of Kadian (morphine) in a blister pack, also referred to as a "compliance aid", to an elderly patient when the prescription called for 10 mg. The patient suffered significant medical consequences, including a hospital stay in the intensive care unit and potential brain injury.

[13] The patient's family physician, Terence McQuiston, made a complaint to the College. In his complaint, Dr. McQuiston expressed the view that there were problems with the pharmacy's processes. He reported that he shared this view with Mr. Jaffer, who "made no positive response to my concerns, but instead simply justified his work". Dr. McQuiston also claimed that he had had previous negative experiences with the pharmacy, stating that "[t]his is far from the first time I've encountered errors from this pharmacy, but they have hitherto been minor". Dr. McQuiston did not provide any specifics about other issues with the pharmacy.

Investigation by the ICRC

[14] After receiving the complaint, the ICRC undertook an investigation.

[15] As part of its investigation, on July 13, 2016, the ICRC sent a letter to Mr. Jaffer giving him notice of the complaint and an opportunity to provide a written response.

[16] The ICRC's letter included a full copy of the complaint filed by Dr. McQuiston. The letter also provided the following information to Mr. Jaffer:

… When preparing your response, please address all the concerns as outlined in the enclosed letter of complaint including the following issues:

The Complainant states that when he "contacted the manager regarding the dispensing error where Kadian 100mg was dispensed instead of Kadian 10mg to XX, the complainant expressed concerns regarding the pharmacy's quality control. The manager made no positive response to this concern, but instead simply justified his work."

You may include any supporting information or statements as part of your response. If you have implemented any changes in your practice as a result of this complaint, please provide information and/or documentation about these changes.

When considering an investigation currently before it, the ICRC is required under section 26(2) of the Code to consider your prior history with the College. I have enclosed the available prior decision(s) of the respective College Committee(s) as well as section 26(2) of the Code. If you choose to provide comments regarding your prior history to the ICRC to review, you may wish to do so separate from your response to the complaint.

(Emphasis added in the original letter. The identity of the patient referred to in the letter has been anonymized for the purpose of this decision.)

[17] Mr. Jaffer responded to the ICRC's letter on August 10, 2016. In his responding letter, Mr. Jaffer provided a detailed explanation of the steps he took after he was notified of the dispensing error. He explained that he reviewed the paper work at the pharmacy, he contacted the patient's family and he contacted Dr. McQuiston. He indicated that during the call, Dr. McQuiston advised him that he had concerns over prior incidents at the pharmacy, but that no details were provided. Mr. Jaffer made inquiries from his staff about potential prior incidents, but they were not aware of any other incidents.

[18] In his letter, Mr. Jaffer described the usual process the pharmacy follows when it receives a medication change:

Our usual process to address a change is as follows: once a change is made to a patient's drug regimen and compliance pack, we pick up the remaining blister pack, update the patient's file and their blister pack chart, adjust the pack as per the directions for the new prescription, have the pharmacist recheck the compliance pack and deliver it back to the retirement home in time for the patient's next dose.

[19] At the beginning of the letter and in the concluding paragraph of the letter, Mr. Jaffer emphasized that he was confident that the incident was not caused by any deficiency in the pharmacy's policies or processes but was rather caused by human error:

As Designated Manager, I am confident in the competencies of my pharmacists, and have necessary quality control measures in place to ensure accuracy of dispensing. Furthermore, the essential incident reporting and management protocols are in place.

While I regret the incident which has occurred, it is my conviction that this was not the result of a process or quality control error, rather, it was the result of an unfortunate human error.

Again I express my deepest concern for Ms. XX's wellbeing and offer my apologies for the error that has occurred. I acknowledge this error as the Designated Manager. I have conducted a thorough review of our policies and procedures, and determined that this incident did not result from any lapse in process within the pharmacy…

Decision of the ICRC

[20] The ICRC issued its decision on the complaint on November 25, 2016. Based on its review of the complaint, including Mr. Jaffer's response to the complaint, the ICRC decided that Mr. Jaffer was to receive an oral caution and that he was required to successfully complete an educational program titled the "Medication System Safety Review for a Community Pharmacist On-Site Assessment".

[21] In reaching the conclusion that the complaint warranted an oral caution and an education program, the ICRC had regard to a number of factors:

The Panel points out that the error occurred with an elderly patient, a red flag patient, and a narcotic medication, a red flag drug. Further, the Panel points out that the patient was being dispensed her medication in compliance aids. The Panel emphasizes that each of these situations alone requires greater care when dispensing, and that together, these factors mean that Pharmacy staff should have engaged in utmost care when dispensing.

The Panel observes that the compliance aid grid does not match the patient profile, and that scanning procedures must not have been used when filling the compliance aid. The Panel also observes that the pharmacist checking the compliance aids did not perform a therapeutic check, which would have caught the error, since Kadian 100mg was inappropriate for the patient. These issues indicate that the policies and procedures in place in the Pharmacy are not as robust as they should be.

The Panel observes that the Member has provided the Standard Operating Procedures for compliance aids by Shoppers Drug Mart. The Panel points out that as the Designated Manager, it is the Member's responsibility to ensure that procedures are in place, that Pharmacy staff members are trained on those procedures, and that staff members adhere to these procedures. The Panel emphasizes that the Member must not only establish policies and procedures, but monitor staff follow-through with regard to their application during all aspects of pharmacy practice.

The Panel also points out that the Member did not examine Pharmacy procedures to determine how policies and procedures affected how the error occurred. Dispensing errors present not only a challenge regarding determining how the error occurred, but also provide an opportunity to improve existing procedures or to develop more effective procedures. The Panel emphasizes that as Designated Manager, it is the Member's responsibility to ensure that he engages in continuous quality improvement, particularly in light of an error. The Panel, however, notes that the Member has indicated that the error was not due to the processes in place, and that the processes in place were adequate and not in need of change.

Although the Panel is of the opinion that the Member responded appropriately to the error when it was brought to his attention, the Panel is also of the opinion that the Member has missed an opportunity to improve Pharmacy processes after the error, which is part of his role as Designated Manager. The Panel points out that the Complainant has indicated that there was a pattern of errors, and the Panel notes that the Member has some history with the College with respect to communication in his role as Designated Manager.

The Panel points out that the error demonstrated that there were issues with the Pharmacy's policies and procedures with regard to adherence and to communication. The Panel emphasizes that good communication between pharmacy staff members, and between staff, patients, and prescribers, can solve a number of issues. Without this communication, issues are escalated. The Panel points out that in this case, had the Member more effectively engaged with the Complainant, for example, he may have been able to more successfully allay the Complainant's concerns about the operation of the Pharmacy. Further, the system in place at the Pharmacy for the filling of compliance aids does not facilitate pharmacist communication with prescribers or patients, which can increase the likelihood for error.

[22] Based on its findings, the ICRC decided that Mr. Jaffer was to receive the following oral caution after completing the educational program:

1. The Member is cautioned that as the Designated Manager, he is responsible for ensuring that the medication processing systems used by the Pharmacy are designed to minimize errors, protect the public, and enable staff to satisfy their professional and patient safety obligations. This includes implementation procedures to take all measures to ensure that the right medication is dispensed to the right patient in the right dose, in the right strength, with the correct instructions, as intended by the prescriber.

2. The Member is cautioned that as Designated Manager, he is responsible for ensuring that there are adequate procedures in place for accurate compliance aid preparation, through compliance aid checking, and correct compliance aid dispensing, and that these procedures are followed by Pharmacy staff.

3. The Member is cautioned that it is his responsibility as Designated Manager to ensure that a system is in place for the implementation and maintenance of a medication error follow-up and reporting protocol, and that there are processes in place to evaluate the quality of the pharmacy services provided and to make the necessary changes to improve practice.

4. The Member is further cautioned that as a practicing pharmacist, it is his responsibility to ensure that he utilizes appropriate written and verbal communication systems within his practice, in order to ensure the safe continuation of patient care.

5. Lastly, the Member is cautioned that it is incumbent upon him to have due regard for the best interests of the patient at all times during the dispensing process. Dispensing medication is a professional privilege that must be exercised with extreme care and mindful attention at all times.

Decision of the HPARB

[23] Mr. Jaffer requested a review of the ICRC's decision by the HPARB. Mr. Jaffer was represented by counsel before the HPARB, who submitted that the investigation and the substance of the decision were unreasonable.

[24] In a decision issued on April 9, 2018, the HPARB found that both the ICRC's investigation and decision were reasonable.

[25] With respect to the investigation, the HPARB identified the issues raised by Mr. Jaffer as follows:

a. That the ICRC's decision makes findings about his role as designated manager and about the pharmacy's policies and procedures without giving him sufficient notice;

b. That the ICRC should have focused on the pharmacist's error rather than on his role as designated manager;

c. That the ICRC failed to ask him to make submissions on his prior history of communication issues; and

d. That the ICRC failed to consider the College's positive Practice Assessment review conducted in 2016.

[26] In finding that the ICRC's investigation was reasonable, the HPARB found that the nature of the complaint necessarily focused the ICRC's attention on Mr. Jaffer's role as the designated manager and on the pharmacy's policies and procedures. The HPARB found that Mr. Jaffer was given an adequate opportunity to comment on this issue, and that he was also given an adequate opportunity to comment on communications issues arising from his discipline history. The HPARB did not address the issue of the positive Practice Assessment.

[27] With respect to the substance of the decision, the HPARB indicated that Mr. Jaffer relied on a previous decision of the Board, B.M.S. v. T.K., R. Ph., in support of his argument that the matter involved a human error rather than raising issues about the pharmacy's practices and procedures. In rejecting this argument, the HPARB noted that the Board had not had reference in that case to a policy standard issued by the College in 2011, titled "Professional Supervision of Pharmacy Personnel", and a policy issued in 2009 by the National Association of Pharmacy Regulatory Authorities titled "Model Standards of Practice for Canadian Pharmacists". The HPARB held that both policies "clearly spell out the responsibilities of the Applicant as a Designated Manager for the overall supervision, policies and procedures at his Pharmacy and as such were to be considered in light of the complaint".

[28] In upholding the ICRC's decision as reasonable, the HPARB concluded as follows:

The Committee found the Applicant's response to the complaint to be of concern as showing little insight when he asserted that the processes in place at his Pharmacy were adequate and not in need of change, thereby missing an opportunity for him to improve them.

The Committee is required to uphold the standards of the profession and act in the interests of public safety. It identified shortcomings in the Applicant's practice and in his response to the complaint. Its decision to require him to complete the Medication System Safety Review for a Community Pharmacist On-Site Assessment program and to issue him an Oral Caution is supported in the Record and is reasonable.

Issues raised on the application

[29] Mr. Jaffer raised numerous issues in his factum on the application. For the purpose of the hearing, his counsel focused on two issues of procedural fairness and two substantive issues.

[30] Mr. Jaffer argues that the HPARB's decision was procedurally unfair for the following reasons:

a. The Board should have found that the ICRC breached Mr. Jaffer's right to procedural fairness by not giving him an opportunity to make submissions on communications issues; and

b. The Board and the ICRC's reliance on Mr. Jaffer's prior discipline history was procedurally unfair.

[31] Mr. Jaffer argues that the HPARB's decision was unreasonable for the following reasons:

a. The Board and the ICRC misapprehended the information provided by Mr. Jaffer about the pharmacy's policies and procedures, and in particular the significance of the compliance grid; and

b. The Board and the ICRC failed to consider the College's Practice Assessment Report.

[32] Before addressing the issues raised by Mr. Jaffer, there are two preliminary issues that must be addressed. The first issue is the admissibility of Mr. Jaffer's affidavit and the second issue is the role of the HPARB and the ICRC in responding to the application in this Court.

Preliminary issue regarding the affidavit of Mr. Jaffer

[33] Mr. Jaffer swore an affidavit in support of his application for judicial review. The affidavit contains a history of the ICRC investigation and the proceedings before the HPARB, including a number of documents that were before both bodies. The affidavit also includes arguments by Mr. Jaffer about why he disagrees with the decisions of the ICRC and HPARB.

[34] In their facta, the College and the HPARB took the position that the affidavit is improper. Relying on the decision in Joe Singer Shoes Limited v. AB, 2018 ONSC 5860 (Div. Ct.), at paras. 14-16, they argued that Mr. Jaffer was required to seek leave of the Court prior to filing the affidavit and that the affidavit did not meet the very narrow circumstances in which affidavit evidence will be admitted on an application for judicial review.

[35] At the beginning of the hearing, the applicant's counsel advised that he only intended to rely on the exhibits and not on the narrative of the affidavit. The exhibits are all documents included in the Record of Proceedings filed by the HPARB. Under the circumstances, the respondents' counsel advised that they no longer challenged the admissibility of the affidavit.

[36] It is therefore unnecessary to rule on this issue. However, I note that, with the exception of the decision in Joe Singer Shoes Limited, the case law does not require a party seeking to adduce an affidavit on an application for judicial review to bring a motion in advance of the hearing of the application. Rather, in some circumstances, the party challenging the affidavit evidence may be required to bring a motion in advance of the hearing to ensure that the record is defined at the hearing: see, for example, Sierra Club Canada v. Ontario (Ministry of Natural Resources), 2011 ONSC 4086 (Div. Ct.), at para. 7, Singh v. Progressive Conservative Party of Ontario, 2017 ONSC 4168 (Sup. Ct.), at para. 57, and Lockridge v. Ontario (Director, Ministry of the Environment), 2012 ONSC 2316 (Div. Ct.), at para. 52. In my view, requiring parties seeking to adduce affidavit evidence to bring a motion in advance of the hearing of an application for judicial review in all cases would unnecessarily increase the expense of litigation for the parties and place an additional burden on the use of scarce judicial resources.

[37] This procedural issue does not detract from the general principle that an application for judicial review is generally to be decided based on the record that was before the original decision maker. Affidavit evidence is only admissible in very limited circumstances, such as where there is a complete absence of evidence on an essential point, where the evidence addresses a breach of natural justice that cannot be proven by the record, or to provide general background or context to the issues on the application: Canadian National Railway Co. v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.), at paras. 10-11. In addition, the evidence must be otherwise admissible; for example, it must not consist of improper hearsay or opinion evidence.

[38] In this case, I agree with the respondents that Mr. Jaffer's affidavit is unnecessary and improperly argumentative. However, as indicated above, the exhibits to his affidavit are properly before the Court as these were documents before the original decision makers.

Preliminary issue regarding the role of the College and the HPARB on the application

[39] Both the College and the HPARB appeared as responding parties on the application and filed facta that addressed the merits of the application. During the hearing, the Panel raised concerns about the HPARB's role on the application, and specifically whether it was appropriate for the Board to defend the merits of its own decision. Those concerns are briefly addressed in this section.

[40] In Ontario (Energy Board) v. Ontario Power Generation, 2015 SCC 44, the Supreme Court of Canada addressed the issue of the role of administrative tribunals on statutory appeals and applications for judicial review. The Court held that there is no hard and fast rule about whether a tribunal should be granted standing and the scope of its participation. Courts are to exercise their discretion in deciding what role, if any, the tribunal should play. The two competing principles that generally govern this determination are the importance of having a fully informed adjudication on the one hand and the importance of maintaining tribunal impartiality on the other hand. Based on these two competing principles, at para. 59, the Supreme Court summarized the factors a court is to consider in deciding the appropriate scope of a tribunal's participation on an application for judicial review:

In accordance with the foregoing discussion of tribunal standing, where the statute does not clearly resolve the issue, the reviewing court must rely on its discretion to define the tribunal's role on appeal. While not exhaustive, I would find the following factors, identified by the courts and academic commentators cited above, are relevant in informing the court's exercise of this discretion:

(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.

(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.

(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.

[41] In this case, weighing these factors, I find that the role played by the ICRC was appropriate but the HPARB overstepped its role by seeking to defend the merits of its own decision.

[42] Granting the ICRC permission to address the merits of its decision and the HPARB's decision is consistent with the College's investigative and regulatory role and ensures that the Court has the benefit of an opposing position. In the context of its investigation, the ICRC does not play an adjudicative role. Rather, the ICRC investigates complaints and decides what, if any, steps to take in response to a complaint. If the ICRC decides to refer a complaint to the disciplinary committee for a hearing, section 41 of the Code provides that the College is to be a party at the hearing, after which the College is a party if there is an appeal from the Discipline Committee to the Divisional Court. In the context of the HPARB's review of a decision by the ICRC where there has been no referral to the discipline committee, the Code does not explicitly make the College a party. However, section 33(2) of the Code provides that the HPARB may require the College to send a representative and may question the College's representative, thereby recognizing the College's investigatory and regulatory role in the process. Allowing the College to participate on the application for judicial review and respond to the merits is consistent with its regulatory and investigative role under the Code. In addition, in many cases, such as this one, the complainant may choose not to participate on an application for judicial review, and the College's participation is essential to ensuring that there is a fully informed adjudication. Even if the complainant does participate, the Court can benefit from the College's knowledge of the complaint and expertise over the relevant statutory scheme. Under the circumstances, it was appropriate for the College to respond to the merits of this application for judicial review.

[43] In contrast, the HPARB should generally not take a position on the merits of its own decisions. With the College's participation on the application for judicial review, there is no need for the HPARB to defend the merits of its decision. More importantly, as an adjudicative tribunal, the HPARB is expected to maintain a neutral role. If the application is granted, there is a risk that a matter would be remitted to the HPARB. Under the circumstances, the HPARB's role does not weigh in favour of allowing its full participation as a party before this Court. Its participation is not necessary and, most significantly, its participation risks undermining its role as a neutral adjudicative body.

[44] Accordingly, this Court has not considered the HPARB's submissions in its factum addressing the merits of its decision. In addition, the HPARB, and other administrative tribunals, should refrain from addressing the merits of their own decisions on future statutory appeals and applications for judicial review, except in circumstances where they can demonstrate that it is appropriate to do so in accordance with the principles in Ontario (Energy Board).

Standard of review

[45] The parties agree that the standard of review applicable to the substance of the HPARB's decision is reasonableness.

[46] Pursuant to Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 47, the decision of an administrative decision maker is reasonable if it is justified, transparent and intelligible, and if it "falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law".

[47] With respect to allegations of breach of procedural fairness, no standard of review applies. Rather, the Court is to determine whether the requisite procedural fairness was afforded to the applicant: Konesavarathan v. Guelph Mercury, 2018 ONSC 2405 (Div. Ct.), at para. 35.

Analysis

[48] In my view, none of the issues raised by the applicant lead to the conclusion that the HPARB's decision was procedurally unfair or unreasonable.

Whether the ICRC and the HPARB breached Mr. Jaffer's right to procedural fairness by failing to give him an opportunity to address communications issues

[49] Mr. Jaffer argues that the ICRC's decision was procedurally unfair because it made findings about communication issues without giving him an opportunity to address those issues. He further argues that the HPARB's decision was unreasonable because it failed to make such a finding.

[50] In my view, the ICRC's decision was not procedurally unfair and the HPARB's finding on this issue was reasonable.

[51] As reviewed above, the ICRC made the following finding with respect to issues of communication:

The Panel points out that the error demonstrated that there were issues with the Pharmacy's policies and procedures with regard to adherence and to communication. The Panel emphasizes that good communication between pharmacy staff members, and between staff, patients, and prescribers, can solve a number of issues. Without this communication, issues are escalated. The Panel points out that in this case, had the Member more effectively engaged with the Complainant, for example, he may have been able to more successfully allay the Complainant's concerns about the operation of the Pharmacy. Further, the system in place at the Pharmacy for the filling of compliance aids does not facilitate pharmacist communication with prescribers or patients, which can increase the likelihood for error.

[52] In the portion of its decision addressing the investigative process, the HPARB noted that Mr. Jaffer argued that he was not given an opportunity to address the communications issue. However, the HPARB concluded that there was no information the ICRC failed to obtain or that it could have obtained that would have affected the outcome of the decision.

[53] It was evident from the letter the ICRC sent to Mr. Jaffer and from Dr. McQuiston's complaint that communication was at issue in the complaint. The ICRC's letter quoted from Dr. McQuiston's complaint that Mr. Jaffer "made no positive response to [his] concern, but instead simply justified his work". In addition, given the nature of the complaint, it is implicit that Mr. Jaffer's own communication practices and his supervision of the pharmacy staff's communication practices were relevant to the complaint.

[54] Notably, in his response letter, Mr. Jaffer did address communication issues. He described his communications with Dr. McQuiston following the incident. He also described the communications he had with pharmacy staff following the incident and the processes the pharmacy had in place for communicating changes in prescription when they were received.

[55] In support of his argument that he was not given notice that communication was at issue, Mr. Jaffer relies on the HPARB's decision in N.J. v. A.D., in which the HPARB found that a decision of the ICRC was procedurally unfair because the pharmacist in that case had not been given notice that communication was at issue. That case also involved a dispensing error. The ICRC found that the pharmacist could have done better in communicating with the patient's family and health care providers after the error was discovered. The HPARB found that the complaint and letter from the ICRC focused on the dispensing error and did not give the pharmacist sufficient notice that her communications following the incident were at issue.

[56] N.J. is distinguishable from this case on its facts. As reviewed above, it was evident from Dr. McQuiston's complaint and the letter from the ICRC to Mr. Jaffer that communication was an issue. In addition, Mr. Jaffer addressed communication in his response.

[57] Under the circumstances, there is no basis for finding that there was a lack of procedural fairness in the ICRC's findings on the issue of communication, and the HPARB's decision on this issue was reasonable.

Whether the ICRC and the HPARB's reliance on the applicant's discipline history was procedurally unfair

[58] In its decision, the ICRC stated "the Panel notes that the Member has some history with the College with respect to communication in his role as Designated Manager". Mr. Jaffer argues that the ICRC's reliance on his disciplinary history was procedurally unfair because he was not given an opportunity to address that history before the ICRC made its decision.

[59] There is no merit to this argument. As reviewed above, section 26(2) of the Code explicitly requires the ICRC to consider a member's discipline history when addressing a complaint. In this case, the ICRC's letter about the complaint informed Mr. Jaffer in bold writing that the ICRC was required to take his discipline history into consideration and enclosed copies of prior discipline decisions. He therefore clearly had notice that his discipline history would be taken into consideration.

[60] During the argument of the application, Mr. Jaffer's lawyer argued that his client's discipline history relates to matters that are irrelevant to issues giving rise to this complaint. Specifically, he argues that the prior decisions dealt with communication issues and Mr. Jaffer could not have anticipated that the ICRC would focus on communication issues in this case. Therefore, his client could not have expected that the ICRC would consider his discipline history.

[61] As reviewed above, it should have been evident to Mr. Jaffer that communication was one of the issues the ICRC was considering. In any event, it was made clear to Mr. Jaffer that the ICRC would consider his discipline history. If Mr. Jaffer believed that his discipline history was irrelevant to the issues arising from this complaint, it was open to him to state this in his responding letter.

[62] There is no basis for finding that the ICRC's reliance on Mr. Jaffer's discipline history in its decision was procedurally unfair.

Whether the ICRC and the HPARB misapprehended the applicant's compliance process

[63] The applicant argues that the ICRC and the HPARB misapprehended the compliance process Mr. Jaffer has put in place at the pharmacy. In particular, he points to the ICRC's finding that "the compliance aid grid does not match the patient profile" to argue that the issue was not with the compliance process but with the individual who made the dispensing error. Mr. Jaffer points out that the compliance grid, which is a process he put in place, accurately reflected the 10 mg prescription. In contrast, the patient profile shows that the pharmacist who filled the prescription erroneously dispensed 100 mg capsules.

[64] Both the ICRC and the HPARB's decision on this issue were reasonable.

[65] The ICRC noted the discrepancies, and then concluded that "the policies and procedures in place in the Pharmacy are not as robust as they should be". The ICRC also found that Mr. Jaffer missed an opportunity to review the pharmacy's processes and procedures. The HPARB found that the ICRC's decision was reasonable, and that it had properly focused on Mr. Jaffer's responsibility over the policies and procedures at the pharmacy.

[66] There is no dispute that the dispensing error in this case was very serious. It was reasonable for the ICRC and the HPARB to conclude that the error was not only attributable to the pharmacist who dispensed the medication but that it also engaged issues about the pharmacy's compliance policies and procedures. As the designated manager, Mr. Jaffer was responsible for these matters. Given Mr. Jaffer's response to the complaint, it was reasonable for the ICRC and the HPARB to conclude that the pharmacy's policies and procedures may not be as robust as they should be and that Mr. Jaffer missed an opportunity to review them. The ICRC and the HPARB did not improperly hold Mr. Jaffer responsible for another pharmacist's error, but rather reasonably focused on Mr. Jaffer's areas of responsibility.

Whether the ICRC and the HPARB should have addressed the College's Practice Assessment

[67] Mr. Jaffer argues that the decisions of the ICRC and the HPARB were unreasonable because they failed to address Mr. Jaffer's submissions that he had obtained a positive Practice Assessment Report from the College around the time of the complaint.

[68] The ICRC sent the complaint to Mr. Jaffer on July 13, 2016. On July 18, 2016, the College issued a Pharmacy Assessment Report to Mr. Jaffer. The Report found that the pharmacy met all standards, with the exception of three standards which it partially met.

[69] In his letter responding to the complaint dated August 10, 2016, Mr. Jaffer made reference to the Practice Assessment Report as follows:

In response to Dr. McQuiston's comments that: "he needs your help to get his act together so as to ensure the safety of other patients from dispensing errors by the pharmacy", a prescheduled Practice Assessment from March 2016 by Heather Arnott, Practice Advisor was conducted in my pharmacy on July 18th/2016. The results of that assessment indicated a pass and no action plan was issued.

[70] The ICRC made reference to the Report in its decision when describing Mr. Jaffer's response to the complaint, but did not explicitly address its significance in its analysis or conclusion. Similarly, the HPARB made reference to Mr. Jaffer's reliance on the Report when describing the grounds on which Mr. Jaffer sought the review, but did not address this issue in its finding that the ICRC's decision was reasonable.

[71] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paragraph 16, the Supreme Court held that:

Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.

[72] Here, the ICRC and the HPARB were aware of the Practice Assessment Report, having both made reference to the Report in their reasons. However, they had no obligation to address all arguments raised by Mr. Jaffer.

[73] The decisions of the ICRC and HPARB addressed a complaint about a specific serious incident at the pharmacy and how Mr. Jaffer in his role as designated manager responded to that incident. They found that, given the seriousness of the incident and Mr. Jaffer's apparent unwillingness to use the incident to review the robustness and effectiveness of the pharmacy's practices and procedures, a caution and remedial program were appropriate.

[74] In the circumstances, it was open to the ICRC and the HPARB to give no weight to the Practice Assessment Report, which related to a general review of the pharmacy's policies and practices. The respondents' decisions are justified, transparent and intelligible, and they fall within a range of reasonable outcomes.

Conclusion

[75] For the reasons above, the application for judicial review is dismissed. As agreed between the parties, there shall be no costs.

Favreau J.

I agree _______________________________

Swinton J.

I agree _______________________________

Backhouse J.

RELEASED: November 25, 2019