CITATION: Rak v. Ontario College of Pharmacists, 2022 ONSC 3269
DIVISIONAL COURT FILE NO.: 653/19
DATE: 20220613
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, R. Gordon and Matheson JJ.
BETWEEN:
CHARLES RAK
Appellant/Respondent on Cross Appeal
– and –
ONTARIO COLLEGE OF PHARMACISTS
Respondent/Cross Appellant
Brad Greenshields, for the Appellant/Respondent on Cross Appeal
Jill Dougherty and Lara Kinkartz, for the Respondent/Cross Appellant
HEARD at Toronto (by videoconference): May 17, 2022
Swinton and Matheson JJ.:
Overview
[1] Charles Rak appeals from a decision of the Discipline Committee of the Ontario College of Pharmacists dated November 12, 2018, which found that he had committed professional misconduct on four occasions by breaching a condition of his certificate of registration. He also appeals the penalty decision of the Committee dated November 29, 2019 that ordered a 12 month suspension, imposed numerous conditions on his certificate, and required him to pay costs of $200,000. The College has brought a cross appeal of the penalty decision, seeking that it be overturned and that an order be made revoking the appellant’s certificate.
[2] For the reasons set out below, the appeal is allowed in part and the cross appeal is dismissed.
Background Facts
[3] The appellant has been a member of the College since 1999. In 2012 he pleaded guilty to criminal charges of computer luring, sexual interference and criminal harassment regarding minors, who were not pharmacy patients. As a result of the criminal proceedings, he was referred to the Discipline Committee of the College. A discipline hearing on June 18, 2014 proceeded on the basis of an agreed statement of facts and a joint submission on penalty. The Discipline Committee accepted the joint submission and imposed conditions on the appellant’s certificate, including the following “Condition 2(a)”:
… [T]he Member is prohibited from dispensing to, consulting with, advising, counselling, or performing any controlled act on any person under the age of 18 years, except where another pharmacist registered in Part A of the College’s register or a Pharmacy Technician registered with the College is present to supervise any communication or interaction between the Member and any person under 18 years of age. The supervisor or supervisors must be approved by the Registrar.
[4] Around this time, the appellant was working part time at Romana pharmacy and King’s Cross pharmacy. In early August 2014 two College investigators attended at Romana pharmacy under their authority to investigate another pharmacist, A.K., the manager of the pharmacy, pursuant to an appointment of investigators under s. 75(1)(a) of the Health Professions Procedural Code being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18 (the “Code”). The appellant was the only pharmacist on duty that day.
[5] The investigators reported that minors came into the pharmacy with their parents, and the appellant interacted with them and filled prescriptions. The investigators submitted a memorandum to the College documenting five incidents that they observed and obtained a formal appointment of investigators for the appellant under s. 75(1)(a) of the Code. The investigators then obtained video footage for two days at the Romana pharmacy. They also attended at the King’s Cross pharmacy and documented incidents at that location.
[6] As a result of the investigation, the College issued a Notice of Hearing dated December 12, 2015, alleging that the appellant committed acts of professional misconduct under s. 51(1)(c) of the Code in that he:
breached the June 18, 2014 Discipline Committee order by contravening Condition 2(a), contrary to s. 1(1) of O. Reg. 681/93, by dispensing to, consulting, advising, counselling, or performing a controlled act in relation to specified patients under the age of 18 years without another approved pharmacist or technician present to supervise the interactions; and,
engaged in conduct or performed acts relevant to the practice of pharmacy that, having regard to all the circumstances, would reasonably be regarded by members of the profession as disgraceful, dishonourable or unprofessional, for the same activities.
[7] The Notice of Hearing listed the specific instances of alleged breaches, including 24 prescriptions at King’s Cross pharmacy and 13 prescriptions at Romana pharmacy.
[8] After a hearing over several days between May and October 2017, the Discipline Committee issued its decision on misconduct on November 12, 2018. It found that the appellant had breached Condition 2(a) of the 2014 order with respect to four of the 37 prescriptions in June and September 2014. The Discipline Committee found that on each of the four occasions, the appellant had filled a prescription for a youth and provided counselling to an adult while a youth was present. The Discipline Committee also concluded that the breaches would be regarded by members of the profession as “disgraceful, dishonourable or unprofessional.”
[9] While the College sought a penalty of revocation of the appellant’s certificate of registration, the Discipline Committee instead imposed a twelve month suspension followed by restrictions on the appellant’s practice that would be in place for five years: a prohibition on practising pharmacy in a location accessible by the public and requirements to have a workplace supervisor registered with the College, to notify the College of any workplace changes, to not act as a manager or have a proprietary interest in a pharmacy, to participate in weekly group sessions at a clinic and to complete an ethics course.
[10] The Discipline Committee also ordered the appellant to pay $200,000 in costs of the investigation and proceedings before the Discipline Committee, an amount that was about two thirds of the costs claimed by the College.
The Appeal
[11] The appellant appeals pursuant to s. 70(1) of the Code, while the College cross appeals in respect of the penalty.
[12] The standard of review on this statutory appeal is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Errors of law are reviewed on a correctness standard. For errors of fact, there must be a palpable and overriding error. Errors of mixed fact and law also require a palpable and overriding error unless there is an extricable error of law or principle, which is reviewed on a correctness standard.
[13] With respect to the appeal and cross appeal on penalty, the appellant or cross appellant must show that the Discipline Committee made an error in principle or that the penalty was clearly unfit: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039 (Div. Ct.), at para. 16.
The Issues on Appeal
[14] The appellant raises a number of issues on the appeal. The issues are as follows, organized in the manner in which they were presented at the oral hearing:
(i) Did the Discipline Committee err in finding that Condition 2(a) was breached?
(ii) Did the Discipline Committee wrongly conclude that the College investigation was lawful?
(iii) Did the Discipline Committee err in its rulings on solicitor client privilege and settlement privilege?
(iv) Did the Discipline Committee err in rejecting the defence of due diligence?
(v) Did the Discipline Committee err in finding that members of the profession would find the conduct disgraceful, dishonourable or unprofessional?
(vi) Is the penalty unfit?
(vii) Is the $200,000 costs order unreasonable?
[15] On the cross appeal the College argues that the penalty was demonstrably unfit, as revocation of the appellant’s certificate is the only appropriate penalty.
Issue 1: Did the Discipline Committee err in finding that Condition 2(a) was breached?
[16] The appellant submits that the Discipline Committee err in finding that Condition 2(a) was breached in the four instances where that finding was made. This issue engages both the factual findings and the interpretation of Condition 2(a).
[17] The appellant submits that the order of the Discipline Committee is akin to a court order and therefore should be interpreted much like the interpretation of a statute: Fontaine v. Canada (Attorney General), 2020 ONCA 688, at para. 29. The College relies on Sweda Farms Ltd. v. Ontario Egg Producers, 2011 ONSC 3650, at para. 34, aff’d, 2012 ONCA 337, which similarly found that the principles that apply to contract and legislative interpretation also apply to court orders, with necessary modifications.
[18] The appellant submits that the Discipline Committee erred in using the National Association of Pharmacy Regulatory Authorities (“NAPRA”) definition of “dispensing” to interpret the order (including Condition 2(a)). The appellant takes this position because that definition was not shown to form part of the surrounding context to the order and because the NAPRA wording is different from the wording of the order.
[19] The appellant also submits that whether or not the Discipline Committee could consider this definition, it erred in failing to give priority to the words of the order. We agree. The Discipline Committee erred in principle in holding that the order covered dispensing “to or for” patients, as set out in the NAPRA definition, rather than only dispensing “to” patients as set out in Condition 2(a).
[20] The appellant further submits that the Discipline Committee erred by interpreting Condition 2(a) in a manner that is not rationally supported by the public protection purpose behind Condition 2(a) as regards minors.
[21] In our view, the Discipline Committee interpreted Condition 2(a) over broadly, going well beyond its rationally supported purpose, as discussed below.
[22] The College itself submitted, in discipline proceedings, that when looking at the public protection purpose of the order, the power imbalance between pharmacists and their patients is relevant because that relationship can be potentially exploited for the pharmacist’s own end or gain. Condition 2(a) prohibits “dispensing to, consulting with, advising, counselling, or performing any controlled act on any person under the age of 18” (emphasis added). Yet the Discipline Committee interpreted Condition 2(a) to prohibit providing a drug to an adult (e.g., a parent) who is not the patient, for a minor patient, even if the minor patient is not present, so long as any minor was present. In oral argument before this Court, the College confirmed that under its interpretation, the appellant would be prohibited from giving a prescription to an adult mother for her child then at school, while holding her newborn baby, since the baby was present. Similarly, the Discipline Committee found that Condition 2(a) prevented the appellant from working at the back of the pharmacy because that area was visible to people at the pharmacy counter, and verbal or non-verbal communications could occur even if he was not speaking to or dispensing to any of the people who could see him. This interpretation is not rationally connected to the public protection purpose of the order.
[23] We therefore conclude that the Discipline Committee erred in principle in its interpretation of Condition 2(a), which ought to have been limited to communications or interactions directly with a minor patient.
[24] The four occurrences that were found to be a breach of the Condition must now be considered in view of this error in interpretation and the appellant’s position that there were also palpable and overriding errors of fact in relation to those occurrences. The appellant submits that the Discipline Committee made reviewable errors on each of the four occurrences. We find errors on three of them.
[25] For the first occurrence, the Committee heard the testimony of AS, a minor who was present in the pharmacy with his mother. He testified that he was not close to the counter and one of his eyes was swollen and he could not see clearly. He thought the prescription was handed to his mom. He testified that he did not remember who the pharmacist was, but the pharmacist explained what to do and they took the medication home. In cross-examination AS said that he could not see clearly because of his eye so he did not know what happened; he said he did not know exactly what went down.
[26] The appellant testified that he only interacted with the mother.
[27] There was also a memorandum from the College investigation that included other information obtained in a telephone interview with AS in April 2015. The investigator testified about his investigation steps as set out in the memorandum. The College counsel did not use the memorandum to refresh AS’s memory and the mother was not called as a witness. Yet the Committee found, based on AS’s testimony “and supported by” the memorandum, that the appellant communicated with the minor. The Committee said that “potentially due to the passage of time” AS “cannot remember specific details of the events.” The Committee found that it was more likely than not that the events occurred in the manner recounted by the investigator (who was not there) and AS (who could not remember). In doing so, the Committee erred in considering the information in the memorandum, which was not in evidence and was inadmissible hearsay. The evidence of AS alone does not amount to clear and convincing evidence that the appellant communicated directly or interacted with AS.
[28] For the second occurrence, the College relied on the records of the prescription, which was for a cream to apply to a rash on the minor’s penis. The appellant testified that the minor, aged 12, was with both of his parents at the counter and the appellant counseled the mother. Neither parent, nor their son, was called as a witness. However, there was an issue about an inculpatory change on the prescription hard copy that was in evidence, and the Committee found that the appellant had changed the notation on his hard copy of the prescription from “told him to apply bid” to “told mom to tell son to apply bid,” and he therefore communicated with S.N. Bearing in mind all of the evidence before the Committee, we do not find a palpable and overriding error in concluding that there was a breach of Condition 2(a) in relation to this prescription given the change made to the document by the appellant.
[29] The third and fourth occurrences were put forward by the College using evidence that included surveillance video evidence. The video had no sound but included footage that the College submitted related to two prescriptions, one for a two-year old child and one for an eight-year old child.
[30] The video relied upon depicted more than two minors who were accompanied by adults. The Committee referred to four occasions on the video where there were children present with their parents who appeared to be the same age as a patient named on a prescription filled at that time on that day. However, none of the patients named on the prescriptions, nor their parents, were called as witnesses.
[31] Further, the Committee said that in only one instance did it appear that the appellant spoke to a child (to offer a lollipop). The Committee noted that in the other three instances the children were close enough to hear and appeared to be listening. Given the over-broad interpretation of Condition 2(a) referred to above, the Committee said that because all that was required was communication of information that could be heard by a child, the videos were “strong evidence” that the appellant was communicating with those children.
[32] The Committee gave only conclusory reasons, saying that the footage was “sufficient” insofar as it included depictions of communications and/or interactions between the appellant and persons under the age of 18 and that some of these interactions were not supervised.
[33] We recognize that this is a tribunal, not a court, but discipline proceedings are serious matters and these reasons for decision are very lengthy. Even so, this Court is left to guess what video applied to the two prescriptions, who the people may have been and who the patients were. The reasons do not allow for meaningful appellate review, nor does there appear to be evidence based upon which the standard of proof could have been met for these two occurrences.
[34] We therefore find that the Committee erred with respect to three of the four occurrences of alleged breach of Condition 2(a), and their findings of professional misconduct with respect to these three occurrences must be set aside.
Issue 2: Did the Discipline Committee wrongly conclude that the College investigation was lawful?
[35] The appellant submits that the College investigation was unlawful because the investigators entered his workplace in early August 2014. At that time, they did not have authorization to investigate him pursuant to s. 75 of the Code, and he was conscripted to directly participate in an investigation against him without his knowledge.
[36] The Committee rejected this argument. It found that the two College investigators were authorized to enter the Romana pharmacy that day and to make observations, given that they were operating under an appointment pursuant to s. 75 of the Code to investigate A.K. The Committee also found that none of the information obtained during the visit was provided involuntarily, and no one was compelled to give any information. The investigators did not seek access to documents and videos until after their formal appointment as investigators pursuant to s. 75.
[37] We see no error in the Committee’s conclusion that the investigation was lawful. In Rassouli-Rashti v. College of Physicians and Surgeons of Ontario, 2009 62055, this Court held that regulators have an implied authority to do an informal investigation where they do not need the powers accompanying a formal appointment to investigate. When the investigators observed the appellant in their visit in early August, they made observations, but they did not use any of the powers that accompany a s. 75 appointment.
[38] Moreover, the appellant mistakenly relies on Gore v. College of Physicians and Surgeons of Ontario, 2009 ONCA 546, which does not stand for the proposition that all observations of a member’s practice require a formal appointment. There, the issue was the inspector’s authority to observe surgery while acting under a formal appointment to investigate.
Issue 3: Did the Discipline Committee err in its rulings on solicitor client privilege and settlement privilege?
Solicitor and Client Privilege
[39] During the hearing, the College wished to refresh the memory of a former College employee, Courtney Campbell, with respect to a conversation she had had with the appellant about supervisors. To this end, the College wished to provide a redacted version of an email Ms. Campbell had sent to the College prosecutor and College staff regarding a July 2014 telephone call with the appellant. The redactions were made to protect solicitor client privilege. The appellant objected to the use of a redacted version and asked that the full document be disclosed. However, the Committee allowed the College to refresh Ms. Campbell’s memory using the redacted email.
[40] The appellant now argues that the Committee erred by failing to find that the entire email was privileged and in failing to order the disclosure of the entire communication on the basis of waiver of privilege.
[41] We see no error by the Committee in admitting the redacted email. The Committee examined the redacted and unredacted versions of the email and concluded that there was no unfairness, as there was no cherry picking in the way in which the email was redacted to remove the privileged material. The Committee correctly held that the redacted email could be disclosed, thus protecting from disclosure only those parts of the email where Ms. Campbell sought legal advice (Guelph (City) v. Super Blue Box Recycling Corp., 2004 34954 (ON SC) at paras. 118-120).
[42] The Committee made no error in finding that the College had not waived its solicitor and client privilege. This is not a case where the College put in issue its reliance on legal advice. The part of the email on which the College relied related to a conversation between Ms. Campbell and the appellant.
Settlement Privilege
[43] The second privilege ruling was in relation to the appellant’s examination-in-chief, where the College objected to a line of questioning regarding his discussions with his previous counsel on the joint submission leading to the 2014 Order. The Committee held that adequate disclosure was not provided by the appellant pursuant to r. 7.01(b) of the Discipline Committee’s Rules of Procedure. More importantly, it held that the appellant’s negotiations with the College prior to submitting the joint submission were subject to settlement privilege and were not relevant nor necessary in this proceeding.
[44] Again, the Committee made no legal error in finding that settlement privilege applied to discussions between the appellant’s counsel and the College about the joint submission.
[45] This was not a situation where the settlement privilege should be pierced because the interpretation or existence of a settlement agreement is in issue (Sable Offshore Energy Inc. v. Ameron International Corp., 2013 SCC 37 at para. 17). The task of the Committee was to interpret the order made by the previous Discipline Committee in 2014, not the settlement agreement. The parties’ negotiations with respect to the interpretation of the agreed statement of facts and the joint penalty were not relevant to that interpretive exercise.
Issue 4: Did the Discipline Committee err in rejecting the defence of due diligence?
[46] The Committee rejected the defence of due diligence, as it found that the appellant had not taken reasonable steps to comply with Condition 2(a). It also rejected his argument that he reasonably believed in a mistaken set of facts that, if true, would render his acts or omissions innocent.
[47] We need not determine this issue. The findings of misconduct have been set aside with respect to three of the four incidents on which the Committee found the appellant guilty. With respect to the remaining allegation regarding SN, neither defence would be available, given the Committee’s finding that the appellant had altered the prescription in order to suggest compliance with the Condition.
Issue 5: Did the Discipline Committee err in finding that members of the profession would find the conduct disgraceful, dishonourable or unprofessional?
[48] The Committee reasonably concluded that breach of the Condition constituted conduct that members of the profession would find disgraceful, dishonourable or unprofessional. The appellant has demonstrated no error with respect to this finding.
Issues 6, 7 and 8: The penalty, the costs order and the cross appeal
[49] It is not necessary for us to discuss the appellant’s arguments concerning the penalty and costs. Given that three of the four findings of misconduct have been overturned, the penalty and costs issues must be determined again by the Committee.
[50] However, we would caution the Committee that their reasons on costs gave us cause for concern because of the failure to analyze such factors as divided success.
[51] Finally, the cross appeal must fail. The College argued that the Committee had made a finding in the merits decision that the appellant was ungovernable, and therefore the only reasonable penalty was revocation of his certificate. As a result of this appeal, three of the findings of misconduct made by the Committee are set aside, and the finding of ungovernability is called into question. The issue of penalty and costs must be redetermined in light of this Court’s findings.
Conclusion
[52] The appeal is allowed in part, and the findings of professional misconduct respecting AS and the two youths in the videos are set aside. The penalty and costs order is also set aside, and the matter is referred to the Committee to determine an appropriate penalty and costs order with respect to the finding of misconduct respecting SN.
[53] With respect to costs of the appeal and cross appeal, if the parties are unable to agree, they shall make brief written submissions on Caselines. The appellant shall make his submissions within 7 days of the release of these reasons, and the respondent shall respond within five days of the appellant’s submissions.
Swinton J.
Matheson J.
I agree _______________________________
R. Gordon J.
Released: June 13, 2022
CITATION: Rak v. Ontario College of Pharmacists, 2022 ONSC 3269
DIVISIONAL COURT FILE NO.: 653/19
DATE: 20220613
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, R. Gordon, and Matheson JJ.
BETWEEN:
CHARLES RAK
Appellant/Respondent on Cross Appeal
– and –
ONTARIO COLLEGE OF PHARMACISTS
Respondent/Cross Appellant
REASONS FOR JUDGMENT
Swinton and Matheson JJ.
Released: June 13, 2022