CITATION: Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115
DIVISIONAL COURT FILE NO.: 648/19 DATE: 20201008
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Backhouse and Labrosse JJ.
BETWEEN:
MONA BANNIS Applicant
– and –
THE ONTARIO COLLEGE OF PHARMACISTS Respondent
Counsel: Josh Koziebrocki and Lidiya Yermakova, for the Applicant Nick Coleman and Lauren Pearce, for the Respondent
HEARD by videoconference: October 6, 2020
By the Court
Overview
[1] This is an Application for Judicial Review of the November 4, 2019 decision of the Ontario College of Pharmacists Discipline Committee Panel (“the Panel”) dismissing the Applicant’s abuse of process motion.
[2] The Applicant is currently subject to a discipline proceeding relating to allegations that she distributed prescription medications to American clients through her online pharmacy without valid prescriptions. At the outset of the discipline hearing, the Applicant brought a motion for a stay of the disciplinary proceedings as well as an order prohibiting the College from re-investigating or re-prosecuting substantially similar allegations on the basis that the College’s investigation techniques were prejudicial and an abuse of process. The Panel dismissed the Applicant’s motion.
[3] Before this Court, the Applicant seeks an order setting aside the decision of the Panel and orders granting the relief sought before the Panel.
[4] The decision of the Panel is an interlocutory order, which cannot be appealed under s. 70 of the Health Professions Procedural Code, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (“the Code”). As previously determined in this Court, appeals only lie from final decisions of the College's Discipline Committee: see Ibrahim v. College of Pharmacists (Ontario), [2010] O.J. No. 4200 (Div. Ct.), aff'd at [2011] O.J. No. 109 (Div. Ct.).
[5] The Applicant has therefore proceeded by way of judicial review of the Panel’s decision on the abuse of process motion.
[6] At the commencement of the hearing of this Application, this Court sought to hear submissions from the parties on the issue of prematurity. Following those submission, this Court advised the parties that the Application for Judicial Review would be dismissed on the basis of prematurity with reasons to follow. These are those reasons.
Position of the Parties
[7] The Applicant contends that the Application is properly brought on the basis that the College lost jurisdiction over the matter when it proceeded by way of a Registrar’s investigation under s. 75(1)(a) of the Code rather than by advising the Applicant of a complaint when received and giving the Applicant an opportunity to respond. Given this challenge to the College’s jurisdiction, the Applicant states that it is proper to have this matter proceed by judicial review. The Applicant relies on the decision of the Ontario Divisional Court in Abdul v. Ontario College of Pharmacists, 2017 ONSC 2613 at para. 41 (reversed on other grounds 2018 ONCA 699). When considering Abdul, the Applicant states that the similarities rest with the fact that the abuse of process motion is a dispositive motion brought at an early stage and if the Applicant is successful on judicial review, it will avoid the need for the balance of the proceeding. The Applicant argues that there are therefore exceptional circumstances based on the loss of jurisdiction of the College when it investigated the Applicant in the way that it did. Additionally, the Applicant advanced that the parties were all present and ready to argue the Application and thus it was appropriate to proceed.
[8] The College argues in favor of a dismissal on the ground of prematurity. The College states that the present Application is easily distinguished from Abdul on a factual basis given that in Abdul, there was a clear complaint, written on a complaint form and the College had proceeded with an investigation under s.75(1)(a) of the Code after the complaint was withdrawn. In Abdul, the College did not raise prematurity. Here the College argues that the present Application should not proceed because there are no such exceptional circumstances alleged and the Applicant may present all her arguments about abuse of process before the Disciplinary Committee and then on an appeal as of right. The mere fact of raising a possible loss of jurisdiction does not warrant bifurcating the disciplinary proceedings.
Analysis
[9] It is well established that judicial review is a discretionary remedy. Normally, courts are reluctant to review interlocutory or interim steps in an administrative proceeding, preferring to wait until the proceeding has run its course in order to avoid fragmentation of the administrative process and delay, as well as to respect the legislative decision to confer decision-making authority on the administrative tribunal. Therefore, judicial review will be refused where the application is premature, unless there are exceptional circumstances: see Volochay v College of Massage Therapists of Ontario, 2012 ONCA 541 [“Volochay”] at para. 70.
[10] As stated in Volochay, this principle applies even though s.2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provides that an application for judicial review may be brought “despite any right of appeal” to either an administrative tribunal or to the court. The ability to bring an application for judicial review does not compel the court to undertake judicial review. Exceptional circumstances are still required to justify early intervention.
[11] It should also be noted that in Abdul, the issue of prematurity was not argued before the Court as all parties were content that the matter should proceed. That decision does not stand for supporting the bifurcation of proceedings when issues of jurisdiction or abuse of process are raised. Contrary to the position advanced by the Applicant, it is not relevant that this application for judicial review has been brought at an early stage prior to the commencement of the hearing.
[12] Importantly, the Applicant has raised no allegation of a denial of procedural fairness or bias within the disciplinary proceedings that would fundamentally affect the fairness of that proceeding. We agree with the College that the Applicant will have the opportunity to advance all her claims in respect of abuse of process before the Disciplinary Committee and if necessary, she may then advance those on appeal.
[13] Premature applications for judicial review should be discouraged where there is an alternative remedy by way of appeal. It is preferable to allow the administrative proceedings to run their full course before the tribunal and then consider all legal issues arising from the proceedings at their conclusion absent some exceptional or extraordinary circumstances: see McIntosh v. College of Physicians and Surgeons of Ontario, 1998 19444 (Div. Ct.) at paras. 36-38. As cited with approval in McIntosh, if there is a prospect of real unfairness through denial of natural justice or otherwise, a superior court may always exercise its inherent supervisory jurisdiction to put an end to the injustice before all the alternative remedies are exhausted.
[14] There is no evidence before this Court to support an allegation of prejudice such as to result in an unfair hearing. There is no exceptional circumstance.
[15] Therefore, this Application for Judicial Review is dismissed on the grounds of prematurity.
[16] As agreed by the parties, the College is entitled to its costs of this Application which are fixed at $15,000.00, payable within 90 days.
___________________________ Swinton J.
Backhouse J.
Labrosse J.
Released: October 8, 2020
CITATION: Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115
DIVISIONAL COURT FILE NO.: 648/19 DATE: 20201008
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Backhouse and Labrosse JJ.
BETWEEN:
MONA BANNIS Applicant
– and –
THE ONTARIO COLLEGE OF PHARMACISTS Respondent
REASONS FOR JUDGMENT
By the Court
Released: October 8, 2020