Court File and Parties

CITATION: Berko v. Ontario College of Pharmacists, 2021 ONSC 6120

DIVISIONAL COURT FILE NO.: 520/21

DATE: 20210921

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DUMFOUR DAVID BERKO, Applicant

AND: ONTARIO COLLEGE OF PHARMACISTS, Respondent

BEFORE: Aston, Swinton, and McCarthy JJ.

COUNSEL: Rebecca Young and Kelsey Ivory, Counsel for the Applicant

Matthew Gourlay, Counsel for the Respondent

HEARD at Toronto: By videoconference on September 17, 2021

Endorsement

BY THE COURT:

[1] The Applicant seeks judicial review of the decision of the Discipline Committee of the Ontario College of Pharmacists (“the Committee”) dated June 3, 2021 (“the decision”). In that decision, the Committee denied the Applicant’s request for a temporary stay of the discipline hearing scheduled to proceed before it on September 14-16, 2021 (“the discipline hearing”). The Applicant contended that the hearing should be stayed pending the conclusion or resolution of criminal proceedings dealing with similar allegations.

[2] After hearing argument about the prematurity of this application for judicial review, the Court dismissed the application on the ground of prematurity for reasons to follow. These are those reasons.

[3] The Applicant argued before the Discipline Committee that he would face irreparable harm if the discipline hearing preceded the criminal trial; should he choose to testify at the hearing, that testimony could be used against him in the subsequent criminal trial. Moreover, the Applicant’s participation in the discipline hearing would serve to reveal his defence strategy to the criminal prosecutor, or the Discipline Committee might draw an adverse inference if he did not testify.

[4] The Committee applied the three-pronged test for whether the stay should be granted as set out in the Supreme Court decision in RJR-Macdonald v. Canada (Attorney General), [1994] 1 S.C.R. 311. While it was conceded that there was a serious issue to be tried, the Committee was not persuaded that the Applicant would suffer any irreparable harm if the stay was denied. The Committee also concluded that the balance of convenience did not favour granting the stay.

[5] At the time of the Committee’s decision, it was expected that the criminal trial was to take place in the fall of 2021. Following the decision, the discipline hearing was adjourned to April 2022 to permit the adjudication of this present application. The criminal trial has yet to take place and it appears that no date has been set for it.

[6] The decision whether to grant an adjournment and stay was an interlocutory decision of the Committee. Courts are reluctant to review such decisions of administrative tribunals on the ground of prematurity.

[7] The principle of prematurity has been enunciated by this court in Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115 (“Bannis”) at para. 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.

[8] Relying on an earlier decision of this court in McIntosh v. College of Physicians and Surgeons of Ontario at paras. 36-38, the court in Bannis went on to emphasize that premature applications for judicial review are generally discouraged since 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.

[9] There is no doubt that the decision in question is an interlocutory one. The administrative proceedings have not run their full course. Absent exceptional circumstances, the principle of prematurity should forestall any judicial review on the merits of the Committee’s decision.

[10] We fail to see any exceptional circumstances here. The Applicant may well face some tactical choices about whether to testify in the discipline hearing but that does not rise to the level of procedural unfairness that would constitute an exceptional circumstance. If there is prejudice to the fairness of the disciplinary proceedings, that can be raised at the end of the hearing on an appeal.

[11] As well, it is not unusual that discipline proceedings and criminal proceedings overlap. The Applicant’s submission that testifying at the discipline hearing might prove prejudicial, or that the discipline hearing would betray his defence strategy in the criminal case, is a generic submission that could be made in every case. To show exceptional or extraordinary circumstances requires more.

[12] There is no evidence that the Applicant will expose himself to any irreparable harm should the discipline hearing precede the criminal trial. The disciplinary allegations overlap with but are not the same as the criminal charges. We can only presume that the criminal court will ensure the Applicant’s right to a fair trial by adhering to the rules of evidence and affording the Applicant protections guaranteed by the Charter.

[13] For the foregoing reasons, the Application is dismissed as premature. The parties have agreed that the successful party would be entitled to costs of $8,000 inclusive of HST. The Applicant shall therefore pay costs of $8,000 to the Respondent forthwith.

_______________________ Aston J.

_______________________ Swinton J.

_______________________ McCarthy J.

Released: September 21, 2021