Citation and Court Information

Citation: Ontario (College of Pharmacists) v. Mourid, 2023 ONSC 1221 Divisional Court File No.: DC-21-772 Date: 2023-02-22

Ontario Superior Court of Justice Divisional Court Backhouse, Newton, O’Brien JJ.

Between: Ontario College of Pharmacists (Appellant) – and – Amany Mourid (Respondent)

Counsel: J. Dougherty and K. Ivory, for the Appellant T. Hashmani and N. Kandel, for the Respondent

Heard: at Toronto via video conference on January 31, 2023

Reasons for Decision

Newton J.

Overview

[1] The Ontario College of Pharmacists (the “College”) appeals from the penalty order imposed on the respondent pharmacist by a Panel of its Discipline Committee (the “Panel”).

[2] The College argues that, in declining to impose restrictions on the respondent’s practice that are “standard” in cases involving similar conduct, the Panel misapprehended the evidence, failed to apply the principle of proportionality, and disregarded other discipline decisions emphasizing the need for those restrictions. The College asks this court to quash the Panel’s decision and either impose the requested restrictions or remit this matter to the Discipline Committee.

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

The Penalty Decision

[4] The respondent admitted allegations of misconduct and the Penalty Hearing proceeded on the basis of an agreed statement of facts.

[5] The respondent is the sole director and shareholder of a corporation that owned and operated a pharmacy. She was also the Designated Manager responsible for the pharmacy’s operations.[^1]

[6] It was admitted that the respondent committed professional misconduct by engaging in false and misleading billings to the Ontario Drug Benefit Plan in the amount of $68,000.

[7] In concluding that the agreed statement of facts substantiated a finding of professional misconduct the Panel stated[^2]:

[17] With respect to the allegations in paragraph 9 of the Notice of Hearing, the Panel notes that the Member engaged in serious professional misconduct involving, among other things, failing to maintain standards of practice, failing to keep required records, the falsification of records, and submitting charges for services or products that she knew or should have known were false and in breach of legislation and regulations.

[18] The Panel agrees with the parties’ submissions that the Member’s conduct, having regard to all the circumstances, would reasonably be regarded by members of the profession as all of disgraceful, dishonourable and unprofessional. The Member’s conduct has the effect of shaming both her and the profession, amounting to conduct that is the most serious of the three definitions, conduct that is characterized as “disgraceful.”

[19] The nine allegations against the Member and the Amended Agreed Statement of Facts signed by the Member provide extensive detail as to the extent of the inappropriate billings to the Ontario Drug Benefit program. Included in the details were appendices specifically identifying prescriptions, MedsChecks, and Limited Use products that were inappropriately billed. Also in question was the lack of appropriate documentation supporting additional billings to the Ontario Drug Benefit program. Such detail clearly implicated the Member as engaging in the conduct as alleged, conduct to which she admitted in the Amended Agreed Statement of Facts.

[20] It must be noted that the inappropriate billings happened over a prolonged period of two to four years at a pharmacy the Member owned and where she served as the Designated Manager. There was no doubt that the Member knew what she was doing and at the time would have benefited from the monies received from these inappropriate billings.

[21] The Member’s conduct demonstrates a serious disregard for her moral and professional obligations and casts doubt on her moral fitness to discharge her professional obligations.

[8] The penalty phase of the hearing was contested. The College sought penalties which included a reprimand, a 12-month suspension, completion of an ethics course, a three-year prohibition on acting as a Designated Manager, and $85,000 in costs. In addition, the College sought the following additional terms and conditions, or limitations (“TCL”):

• A 3-year prohibition on holding an ownership interest in any pharmacy;
• A 3-year prohibition on receiving remuneration for her work as a pharmacist, apart from hourly/weekly rates or a salary (and, in particular, a prohibition against receiving remuneration on the basis of an incentive or bonus for prescription sales); and
• A 3-year requirement that the Respondent ensure that her employer has confirmed to the College in writing that they have received and reviewed a copy of the Discipline Committee’s decision, and confirming to the College the nature of the Respondent’s remuneration.

[9] The respondent opposed the TCLs. She submitted that the appropriate order included a reprimand, an 8-month suspension, the completion of the ethics course, an 18-month prohibition on acting as a Designated Manager, monthly practice inspections by the College, that she be required to provide the Discipline Committee’s decision to any future employer, and costs of $15,000.

[10] The Panel did not impose the TCLs but imposed an order that involved a reprimand, a 12-month suspension[^3], a three-year prohibition on acting as a Designated Manager, the completion of the ethics course, the completion of an additional individualized ethics course with a consultant, the completion of the College’s Jurisprudence exam, the completion of a mentorship regarding the role and responsibilities of a Designated Manager, and $39,516.89 in costs.

The Issue on Appeal

[11] As defined by the College, the only issue to be determined on this appeal is whether the Panel’s penalty decision reflected an error in principle or resulted in a demonstrably unfit penalty.

Jurisdiction and Standard of Review

[12] This court has jurisdiction to hear this appeal pursuant to s. 70 of the Health Professions Procedural Code[^4]. The appeal may be on questions of law or fact or both.

[13] Appellate standards of review apply: Correctness on questions of law, and palpable and overriding error on questions of mixed fact and law, unless there is an extricable question of law[^5].

[14] The parties agree that on an appeal from a penalty decision, the court will only interfere if the Panel made an error in principle or if the penalty is clearly unfit[^6].

[15] As the Court of Appeal noted in College of Physicians and Surgeons of Ontario v. Peirovy[^7]:

• A penalty decision of such a tribunal is at the heart of its discretion and is due great deference;[^8]
• To be overturned by a reviewing court, the Discipline Committee must have made an error in principle or the penalty must be "clearly unfit"[^9]; and
• To be clearly unfit, the penalty must fall outside of the range of reasonableness. A reasonable penalty will be "guided by proportionality and an assessment of the range of appropriate penalties dependent upon the facts of each case, [and] guided by penalties imposed in other cases".[^10]

[16] The rationale for such deference to penalty decisions, as noted by the Supreme Court of Canada in Law Society of New Brunswick v. Ryan[^11], is grounded in the greater expertise of Discipline Committees in the choice of sanction for breaches[^12], the presence of lay members of the Discipline Committee who provide an important perspective for the tribunal[^13], and the Discipline Committee’s relative expertise generated by repeated application of the objectives of professional regulation in misconduct cases[^14].

The Positions of the Parties

[17] The College argues that the Panel made errors in principle and imposed a penalty that was clearly unfit because the Panel:

a. misapprehended the evidence and consequently mischaracterized the conduct of the respondent; b. failed to properly apply the principle of proportionality; and c. made findings of facts in the absence of evidence.

a. Misapprehending the Evidence/Mischaracterizing the Conduct

[18] The College focuses on this paragraph of the Penalty decision:

[46] Fundamental to this case is the lack of documentation and /or the “sloppy” documentation practices of the Member, as well as the lack of understanding of the professional and business ethics inherent in the practice of pharmacy, particularly as they relate to the Member being part of a health care profession.[^15]

[19] The College states that these conclusions – “sloppy” documentation practices and lack of understanding of professional and business ethics – contradict the liability findings regarding the same conduct:

• falsification of records and submitting charges for services or products that she knew or should have known were false[^16]
• no doubt that the Member knew what she was doing and would have benefited from the monies received[^17].

[20] Such internal inconsistency is unreasonable, the College argues, and, therefore, an error in principle which resulted in a clearly unfit penalty.

[21] The respondent submits that the College is taking a “hypercritical” view of the reasons and reminds us that reasonableness review is not a “line-by-line treasure hunt for error”[^18]. Rather, the respondent argues that what is required is whether the reasons, taken as a whole, are tenable as support for the decision[^19].

[22] The respondent notes that the use of the descriptor “sloppy” is consistent with the respondent not being able to produce documentation and that the reference is to “lack of documentation” and just not “sloppy” documentation.

[23] The respondent also argues that the reference to “lack of understanding” must be read in context and with the penalty decision as a whole. The paragraphs of the decision following paragraph 46 emphasize the importance of trust and honesty in the profession and the need for enhanced ethics training and mentoring for the respondent.

b. Proportionality

[24] The College argues that, by disregarding prior decisions which imposed the TCLs in similar cases, the Panel erred in principle and rendered the penalty demonstrably unfit. The College relies upon the Peirovy and Park decisions among others.

[25] In its submissions to the Panel on penalty the College relied upon ten prior decisions of the College’s Discipline Committee[^20] which imposed the TCL ownership restrictions in cases of Ontario Drug Benefit fraud. The College argued before the Panel that these ten decisions were similar to the current case and that the Panel failed to provide any valid explanation for departing from the suggested TCL penalty.

[26] The respondent argues that the penalty imposed by the Panel was not clearly unfit. She argues that a “range is not a straitjacket to the exercise of discretion[^21]” and that a penalty imposed outside the regular range of sentences is not necessarily unfit[^22]. Further, the respondent argues that the penalty imposed does not represent a substantial and marked departure from penalties imposed in similar cases, noting that Panels have not imposed the TCLs in several cases involving the submission of false claims to the Ontario Drug Benefit Plan.[^23]

[27] The respondent argues that the Panel did acknowledge that ownership restrictions, the TCLs, have been imposed in similar cases before and that the Panel appropriately determined that a fit and proportionate penalty in this case did not require the imposition of the TCLs. The respondent submits that the Panel carefully crafted a penalty that would protect the public while balancing the other relevant penalty principles of deterrence and rehabilitation.

c. Findings of Fact in Absence of Evidence

[28] The College attacks these two statements by the Panel in its penalty reasons as findings of fact made in the absence of evidence:

i. [51] The Panel notes that it is somewhat unusual for the Ontario Drug Benefit program to not revoke privileges for this type of case. It demonstrates that the Ontario Drug Benefit program is “content” in continuing to deal with this pharmacy, which is different from other cases with similar circumstances.[^24]

ii. [54] [T]he financial impact on the Member in having to sell her pharmacy, as well as the impact on her livelihood as a pharmacist going forward, are both too severe relative to the overall circumstances here.[^25]

[29] The College submits that there is no evidence to support the statement that it was “somewhat unusual” for the Ontario Drug Benefit Plan to not revoke billing privileges. The College also submits that there was no evidence to support that the Program was “content” to deal with the pharmacy and notes that it was the Plan who complained to the College and that the Plan recouped the overpayments by withholding future reimbursements until the overpayment had been collected. The College equates “content” to “unconcerned”.

[30] The College also argues that there was no evidence to support the finding that the financial impact of imposing the TCLs would be “too severe” and relies upon Venneri v. College of Chiropractors of Ontario[^26] and Clokie v. Royal College of Dental Surgeons[^27] for the proposition that the respondent had to lead evidence to support financial hardship.

[31] The respondent submits that the “somewhat unusual” statement is grounded in the ten cases relied upon by the College in argument. In the majority of those cases, seven out of ten, the billing privileges of the pharmacy were revoked. The fact that the respondent’s billing privileges were not revoked and that the Plan continued to deal with the Pharmacy was in evidence before the panel. The respondent argues that, read in context, “content” does not equate to “unconcerned”.

[32] As to financial impact, the respondent submits that it was open to the Panel to find that a restriction on the respondent’s ability to have an ownership interest in any kind of pharmacy would have a direct financial impact upon her. The respondent was the single shareholder of a corporation that had owned and operated the pharmacy for 17 years. It was reasonable to conclude that revoking her ability to own a pharmacy would have a financial impact upon her. She distinguishes Venneri and Clokie as relating to the quantum of costs and not penalty.

[33] The respondent finally argues that the personal circumstances of the respondent were relevant for the Panel to consider when assessing penalty and that the Panel was entitled to rely on counsel’s submissions as to the respondent’s circumstances. The submissions that the respondent was effectively a single mother with three children and that the pharmacy was the only business she owned, and her only source of income was not contested. The respondent submits that the Panel is entitled to rely upon submissions as to non-contentious facts and to that end relies upon R. v. Asp[^28].

Analysis

[34] The starting point for any analysis of the panel’s decision on penalty is that the decision is “due great deference”[^29]. The legislature gave the Discipline Committee the task of determining penalty and respect for legislative intent is the “polar star of judicial review”[^30].

[35] The Panel members included three registered pharmacists as elected directors and two public directors, combining the greater and relative expertise of the professionals with the important perspective of the public as noted in Ryan[^31]. As the Court of Appeal stated in Peirovy, the issue of the appropriate penalty within a profession is one that is “uniquely within the experience, expertise and discretion of the relevant disciplinary tribunal and is therefore subject to a high degree of deference.”[^32]

a. Misapprehending the Evidence/Mischaracterizing the Conduct

[36] I agree with the respondent that the Panel did not misapprehend the evidence or mischaracterize the conduct of the respondent in its penalty decision.

[37] The penalty reasons, taken as a whole, demonstrate that the Panel was aware of the evidence and correctly characterized the conduct. There is no inconsistency between the findings in the liability decision and findings in the penalty decision. Both reasons demonstrate that the Panel was aware of the respondent’s dishonesty and that the respondent profited from that dishonesty. For example, in its penalty reasons, the Panel specifically emphasized that “a basic expectation of trust and honesty” is necessary in the business of pharmacy. At the core of this, it stated, was ethics. The Panel explained that the respondent lacked an understanding of ethics. It therefore emphasized the components of the penalty focused on providing the respondent with education and remediation concerning basic ethical responsibilities of a pharmacist. To infer that the Panel’s reasons were premised on the conclusion that the respondent’s actions were not deliberate, but rather were driven by sloppiness and a lack of care and knowledge, ignores the reasons as a whole.

b. Proportionality

[38] The panel acknowledged the position of the parties and disagreed with the College’s submission that ownership restrictions, the TCLs, were required in this case. The Panel noted that the penalties imposed achieved the following goals:

a. The period of suspension, and the terms, conditions and limitations to be imposed on the Member’s practice ensures that the interests of the public are protected, and demonstrates the profession’s ability to regulate itself.

b. The aspect of deterrence is met, both generally to the profession at large and more specifically to the Member, by the restrictions placed on the Member’s practice. This sends a clear message, both to the Member and to other members, that the College will not tolerate such actions and that the College expects high standards of practice as well as integrity and honesty in the conduct of its members.

c. The Order is appropriate, fair and reasonable given the findings as set out in the Amended Agreed Statement of Facts. The rehabilitation being offered to the Member will provide her with an opportunity to reflect on her past conduct, and will assist her to return to the practice of pharmacy with a greater understanding of a pharmacist’s duties and responsibilities, whether it be as a staff pharmacist or as a Designated Manager.[^33]

[39] As to the need for the TCLs, the Panel stated:

[54] The removal of the Member’s ability to own a pharmacy would appear to be extreme in this case. The Panel recognizes that the removal of ownership rights have been part of the penalties imposed on other members. However, given the restrictions on the Member’s practice and her required rehabilitation, all as set out in the Order, the Panel’s view is that the emphasis on rehabilitation of the Member is more important than restricting pharmacy ownership. In addition, the financial impact on the Member in having to sell her pharmacy, as well as the impact on her livelihood as a pharmacist going forward, are both too severe relative to the overall circumstances here. [Underline added.]

[40] Whether a decision is consistent with past decisions of the tribunal is a factor in determining whether a decision is reasonable. Where a decision departs from internal authority, the decision maker bears the burden of explain that departure in its reasons. As stated in Vavilov,

[A] decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.[^34]

[41] In this case, the Panel clearly and rationally stated its reasons for not following the decisions that imposed TCLs. The Panel included members who were decision makers in previous penalty decisions such as Khalil.[^35] The Panel concluded that the goals of professional discipline could be achieved without the imposition of the TCLs. As in Peirovy, the Panel crafted a careful penalty that reflected the principle of the protection of the public, while balancing the other principles it was required to consider, including proportionality and rehabilitation[^36]. The Panel’s reasons disclose no error in principle. This decision is not clearly unfit and is, therefore, due great deference.

c. Findings of Fact in Absence of Evidence

[42] That it was “somewhat unusual” for the Ontario Drug Benefit Plan to not revoke the respondent’s privileges is an observation that the Panel was entitled to make based on the decisions put before it by the College. A fair reading of the decision does not lead to the conclusion that the Plan was “unconcerned” as the College suggests.

[43] As to financial impact, the panel had an obligation to consider the circumstances of the respondent in assessing penalty. In the face of uncontested submissions, it was reasonable for the panel to conclude that the financial impact of imposing the TCLs would be too severe in the circumstances.

[44] Both conclusions were open to the Panel on the record before it. There is no error in principle nor do these findings render the penalty clearly unfit.

Conclusion

[45] The appeal is dismissed.

Costs

[46] The respondent is entitled to the costs of this appeal in the amount of $7,000 as agreed.

Newton J.

I agree

Backhouse J.

I agree

O’Brien J.

Released: February 22, 2023

CITATION: Ontario (College of Pharmacists) v. Mourid, 2023 ONSC 1221 DIVISIONAL COURT FILE NO.: DC-21-772 DATE: 20230222

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Backhouse, Newton, O’Brien JJ.

BETWEEN: Ontario College of Pharmacists Appellant – and – Amany Mourid Respondent

REASONS FOR DECISION

Newton J.

Released: February 22, 2023

[^1]: Under the Drug and Pharmacies Regulation Act, RSO 1990. C H.4 every pharmacy must have a Designated Manager.

[^2]: Ontario (College of Pharmacists) v. Mourid, 2021 ONCPDC 32.

[^3]: The 12-month suspension could have two months remitted upon the completion of certain terms, conditions, and limitations.

[^4]: Health Professions Procedural Code, Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18.

[^5]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 17. (“Vavilov”) Housen v. Nikolaisen, 2002 SCC 33, at paras. 8-18; 26-37. Park v. Royal College of Dental Surgeons of Ontario, 2021 ONSC 8088, at para. s. 25-26. (“Park”)

[^6]: Park, at para. 27. Dr. Jonathan Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039, at para. 18.

[^7]: 2018 ONCA 420. (“Peirovy”)

[^8]: Peirovy at para. 55.

[^9]: Peirovy at para. 56.

[^10]: Peirovy at para. 57; citing Reid v. College of Chiropractors of Ontario, 2016 ONSC 1041 at para. 100.

[^11]: 2003 SCC 20. (“Ryan”)

[^12]: Ryan at para. 31.

[^13]: Ryan at para. 32.

[^14]: Ryan at para. 33.

[^15]: Ontario (College of Pharmacists) v. Mourid, 2021 ONCPDC 32. (“Mourid”)

[^16]: Mourid at para. 17.

[^17]: Mourid at para. 20.

[^18]: Vavilov at para. 102.

[^19]: Ryan at paras. 55 -56. Vavilov at para. 102.

[^20]: One of the decisions, Ontario College of Pharmacists v. Khalil, 2018 ONCPDC 34, was affirmed by this court, 2019 ONSC 3738. (“Khalil”).

[^21]: R. v. Lacasse, 2015 SCC 64 at para. 57 (“Lacasse”).

[^22]: Lacasse at para. 58.

[^23]: See Ontario College of Pharmacists v. Patel, 2018 ONCPDC 17, Ontario College of Pharmacists v. Yacoub, 2016 ONCPDC 24, and Ontario College of Pharmacists v. Hoa, 2014 ONCPDC 5.

[^24]: Ontario (College of Pharmacists) v. Mourid, 2021 ONCPDC 32 at para. 51.

[^25]: Ontario (College of Pharmacists) v. Mourid, 2021 ONCPDC 32 at para. 54.

[^26]: 2010 ONSC 473 (Div. Ct.) (“Venneri”)

[^27]: 2017 ONSC 2773 (Div. Ct.) (“Clokie”)

[^28]: 2011 BCCA 433 at para. 34.

[^29]: Peirovy at para. 55.

[^30]: Vavilov at para. 33.

[^31]: Ryan : See notes 12-14.

[^32]: Peirovy at para. 74, citing Stetler v. Agriculture, Food and Rural Affairs Appeal Tribunal, (2005), 2005 24217 (ON CA), 76 O.R. (3d) 321 (C.A.)

[^33]: Ontario (College of Pharmacists) v. Mourid, 2021 ONCPDC 32 at para. 44.

[^34]: Vavilov at para. 131.

[^35]: Ontario College of Pharmacists v. Khalil, 2018 ONCPDC 34. See also Ontario College of Pharmacists v. Patel, 2018 ONCPDC 17, Ontario College of Pharmacists v. Yacoub, 2016 ONCPDC 24, and Ontario College of Pharmacists v. Hoa, 2014 ONCPDC 5.

[^36]: Peirovy at para. 92.