SUPREME COURT OF CANADA

Citation: Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, 2006 SCC 48

Date: 20061026

Docket: 30995

Between:

Jocelyn Binet

Appellant

and

Pharmascience Inc. and Morris S. Goodman

Respondents

And between:

Attorney General of Quebec

Appellant

and

Pharmascience Inc. and Morris S. Goodman

Respondents

Official English Translation: Reasons of LeBel J.

Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

Reasons for Judgment:

(paras. 1 to 70)

Dissenting Reasons:

(paras. 71 to 86)

LeBel J. (McLachlin C.J. and Bastarache, Binnie, Deschamps, Charron and Rothstein JJ. concurring)

Abella J. (Fish J. concurring)

Pharmascience Inc. v. Binet, [2006] 2 S.C.R. 513, 2006 SCC 48

Jocelyn Binet Appellant

v.

Pharmascience Inc. and Morris S. Goodman Respondents

‑ and ‑

Attorney General of Quebec Appellant

v.

Pharmascience Inc. and Morris S. Goodman Respondents

Indexed as: Pharmascience Inc. v. Binet

Neutral citation: 2006 SCC 48.

File No.: 30995.

2006: May 9; 2006: October 26.

Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for quebec

Law of professions — Ethics — Syndic’s powers of investigation — Injunction — Syndic of Ordre des pharmaciens requiring manufacturer of generic drugs to provide him with any documents indicating that rebates, discounts or other benefits had been granted to pharmacists — Whether power of inquiry provided for in s. 122 of Professional Code authorizes syndic of professional order to request information from persons who are not members of that order — Whether, where third party refuses to provide requested information, syndic may seek injunction pursuant to Code of Civil Procedure — Professional Code, R.S.Q., c. C‑26, ss. 2, 122, 191 — Code of Civil Procedure, R.S.Q., c. C‑25, art. 751.

In 2003, the Quebec media reported that a large number of pharmacists had received rebates, discounts and other financial benefits from generic drug manufacturers in exchange for orders for drugs, a practice that is prohibited by the Code of ethics of pharmacists. Based on information from proceedings instituted by the Régie de l’assurance maladie du Québec against the manufacturers in question, the syndic of the Ordre des pharmaciens began an inquiry. To aid in this inquiry, the syndic asked a generic drug manufacturer to provide him with any documents indicating that rebates, discounts or other benefits had been granted to pharmacists. Despite repeated requests from the syndic, the manufacturer refused to forward the documents and filed a motion for a declaratory judgment to have the requests for documents declared null and illegal. In a cross demand, the syndic sought a permanent injunction to compel the manufacturer to deliver the documents to him. The Superior Court issued the injunction provided for in art. 751 of the Code of Civil Procedure. The Court of Appeal reversed that decision and ordered the syndic to return the documents he had received.

Held (Fish and Abella JJ. dissenting): The appeal should be allowed and the injunction restored.

Per McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Charron and Rothstein JJ.: A grammatical analysis of the statutory provision together with a review of the relevant contextual aspects, such as the purpose of the statute and of the provision in issue, confirms that the legislature intended to subject third parties to the syndic’s power of inquiry under s. 122 of the Professional Code. The ordinary meaning of the pronoun “on” used in the French version of that section favours the argument that the obligation to co‑operate applies to everyone. Furthermore, s. 2, which states the general principle that the Code applies to all professions, does not limit the effect of statutes governing professionals to members of the orders concerned. Such a limit would fail to take sufficient account of the public protection objective of the Professional Code, which cannot be attained unless certain provisions of the Code apply to or affect third parties. The privilege of professional self‑regulation places the individuals responsible for enforcing professional discipline under an onerous obligation. Since the delegation of powers by the state comes with the responsibility for providing adequate protection for the public, it should be expected in this context that individuals with not only the power, but also the duty, to inquire into a professional’s conduct will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged. The offence of which the pharmacists in the case at bar are accused is committed when a benefit is received from a third party. Logically, an inquiry into the commission of the offence in question must therefore extend to third parties. The fact that a professional order’s committee on discipline has powers of investigation does not in any way indicate that the means available to a syndic in conducting his or her own prior inquiry must be interpreted narrowly. These two authorities play different, but complementary, roles. It is in everyone’s interest to ensure that a syndic who files a disciplinary complaint has detailed knowledge of the accusations against the professional and that the evidence at the syndic’s disposal is complete. [29‑39] [42]

The words used in s. 122 circumscribe the syndic’s power. The section expressly provides that the information upon which the syndic relies to require the disclosure of information or documents must raise a suspicion that an offence has been committed. However, at this stage, the syndic need not be in a position to identify exactly which professionals are under suspicion. The individualized process provided for in the Professional Code is the lodging of a complaint with the committee on discipline. The syndic’s inquiry precedes this process and is aimed at determining whether a complaint should be lodged. In the instant case, the syndic had reliable information from a government authority and from legal proceedings. He was relying on facts that established a reasonable basis for his inquiry. The scope of the inquiry does not make it a random one. The syndic’s inquiry concerns allegations of clear breaches of the Code of ethics of pharmacists. The syndic has not only the jurisdiction but also the duty to intervene to protect the public. The mere fact that the purpose of the inquiry is to identify the offenders as opposed to determining the specific circumstances of the offence, which would be a more typical situation, is not determinative. [43] [45] [47]

The Superior Court exercised its discretion properly in granting the injunction provided for in art. 751 of the Code of Civil Procedure. In Quebec procedural law, the existence of a specific remedy under a special statute does not close the door on the general law injunction, especially where the public interest requires one. It is the Superior Court judge who must consider the impact of the specific remedy provided for in another statute. The existence of that remedy is one element of the set of circumstances the judge will have to weigh in deciding whether the requested order is warranted. Thus, the existence of a specific sanction under a special statute does not preclude a general law injunction where the circumstances require one. In the circumstances that gave rise to the dispute in the case at bar, the injunction provided for in s. 191 of the Professional Code to prevent the repeated commission of penal offences would not have been an appropriate and effective remedy. The case before the syndic was not, strictly speaking, one of repeated violations, and no penal prosecution had been instituted. Moreover, such proceedings could not have been commenced without prior authorization from the Attorney General, as a syndic cannot act alone. A timely and effective remedy to the failure to co‑operate with the syndic’s inquiry was needed to allow the syndic and the Ordre des pharmaciens to fulfil their obligation of diligence in disciplinary matters. Moreover, in an analysis of serious harm resulting from an offence under the Professional Code, the fact that this statute is a law of public order must be taken into account. When the public interest is at stake, a proliferation of court challenges may make a general law injunction necessary. In light of the evidence of the syndic’s difficulties in obtaining essential documents for his inquiry and given the manufacturer’s refusals and court challenges, the trial judge properly found, in exercising his discretion, that those refusals and that conduct were intended to paralyse the inquiry. The Court of Appeal was not justified in questioning that finding. [57] [60] [63‑67]

Per Fish and Abella JJ. (dissenting): In circumstances where s. 122 of the Professional Code applies, the syndic can obtain information and documents from third parties. This section, however, does not confer a general investigatory power, which is reserved to the Inspection Committee of the Bureau. A syndic is confined by s. 122 to requesting information only in relation to allegations that a particular professional or group of professionals have breached the Code. The scope of investigations is clearly limited by the individualized nature of disciplinary hearings. This individual disciplinary investigation is in contrast to the wider powers of the Bureau’s Inspection Committee which has responsibility for overseeing the entire profession and for investigating matters affecting it. In this case, the syndic launched an investigation to try to identify members who had committed an infraction. Binet had no information regarding any specific, identifiable pharmacists. What he had was general information, obtained from as yet unconcluded legal proceedings against generic pharmaceutical companies, that unnamed pharmacists had been receiving kickbacks. The syndic did not have the information necessary to trigger his power of investigation under s. 122. [72-73] [76] [78] [80-81]

An injunction cannot be issued in these circumstances in the absence of the consent of the Attorney General. The enforcement mechanism envisioned in the Professional Code is found in the interplay of ss. 114, 122, 188 and 191. Although art. 751 of the Code of Civil Procedure provides the Superior Court with broad powers to order injunctions, these powers yield to the particular procedures in the Professional Code, which exhaustively defines the remedies available when it is violated. Even assuming that the request for an injunction was not premature, it is clear from s. 191 that Binet was not permitted to ask the court for an injunction as the Attorney General neither authorized nor requested it. [82] [84‑85]

Cases Cited

By LeBel J.

Distinguished: Beaulne v. Kavanagh‑Lemire, 1989 CanLII 1064 (QC CA), [1989] R.J.Q. 2343; James Richardson & Sons Ltd. v. Minister of National Revenue, 1984 CanLII 1 (SCC), [1984] 1 S.C.R. 614; City of Montreal v. Morgan (1920), 1920 CanLII 90 (SCC), 60 S.C.R. 393; approved: Coutu v. Ordre des pharmaciens du Québec, 1982 CanLII 2832 (QC CA), [1984] R.D.J. 298; Ordre des optométristes du Québec v. Vision Directe Inc., [1985] C.S. 116; referred to: Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36; Khalil v. Corporation professionnelle des opticiens d’ordonnances, [1991] D.D.C.P. 316; Delisle v. Corporation professionnelle des arpenteurs‑géomètres, [1991] D.D.C.P. 190; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Bristol‑Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, 2005 SCC 26; Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, 2005 SCC 74; Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6; Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724; Glykis v. Hydro‑Québec, [2004] 3 S.C.R. 285, 2004 SCC 60; Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425, 2005 SCC 70; Montréal (City) v. 2952‑1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62; Ordre des comptables généraux licenciés du Québec v. Québec (Procureur général), 2004 CanLII 20542 (QC CA), [2004] R.J.Q. 1164; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232; Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45; Parizeau v. Barreau du Québec, 1997 CanLII 9307 (QC CS), [1997] R.J.Q. 1701; Atkinson v. Newcastle Waterworks Co., [1874‑80] All E.R. Rep. 757; Couch v. Steel (1854), 3 El. & Bl. 402, 118 E.R. 1193; Pasmore v. Oswaldtwistle Urban District Council, [1898] A.C. 387; Deveault v. Centre Vu Lebel & Des Roches Inc., Sup. Ct. Montreal, No. 500‑05‑003478‑854, May 24, 1985; Ordre des optométristes du Québec v. United States Shoe Corp., SOQUIJ AZ‑89021102; Barreau du Québec v. Descôteaux, SOQUIJ AZ‑95021889; Ordre des pharmaciens du Québec v. Meditrust Pharmacy Services Inc., 1994 CanLII 6188 (QC CA), [1994] R.J.Q. 2833.

By Abella J. (dissenting)

James Richardson & Sons Ltd. v. Minister of National Revenue, 1984 CanLII 1 (SCC), [1984] 1 S.C.R. 614; Beaulne v. Kavanagh‑Lemire, 1989 CanLII 1064 (QC CA), [1989] R.J.Q. 2343.

Statutes and Regulations Cited

Act respecting prescription drug insurance, R.S.Q., c. A‑29.01, s. 60.

Act respecting the Barreau du Québec, R.S.Q., c. B‑1.

Canadian Charter of Rights and Freedoms, s. 8.

Code of Civil Procedure, R.S.Q., c. C‑25, art. 751.

Code of ethics of pharmacists, R.R.Q. 1981, c. P‑10, r. 5, s. 3.05.06.

Income Tax Act, S.C. 1970‑71‑72, c. 63, s. 231.

Interpretation Act, R.S.Q., c. I‑16, s. 41.

Optometry Act, R.S.Q., c. O‑7.

Pharmacy Act, R.S.Q., c. P‑10, s. 3.

Professional Code, R.S.Q., c. C‑26, ss. 2, 23, 26, 27, 112 to 114, 116, 122, 123, 144, 146, 147, 156, 188, 188.1 to 189, 191.

Regulation respecting the conditions on which manufacturers and wholesalers of medications shall be recognized, (1992) 124 G.O. II, 3264, Sch. 1, ss. 1(4), 2(5).

Authors Cited

Côté, Pierre‑André. The Interpretation of Legislation in Canada, 3rd ed. Montréal: Thémis, 2000.

Gendreau, Paul‑Arthur, et autres. L’injonction. Cowansville, Qué.: Yvon Blais, 1998.

Petit Larousse illustré. Paris: Larousse, 2004, “on”.

Poirier, Sylvie. La discipline professionnelle au Québec: principes législatifs, jurisprudentiels, et aspects pratiques. Cowansville, Qué.: Yvon Blais, 1998.

Québec. Assemblée nationale. Journal des débats, 4e sess., 29e lég., 6 juillet 1973, p. 2270.

Quebec. Commission of Inquiry on Health and Social Welfare. Report of the Commission of Inquiry on Health and Social Welfare, vol. VII, t. 1, The Professions and Society. Quebec: Government of Quebec, 1970.

Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.

APPEAL from a judgment of the Quebec Court of Appeal (Brossard, Nuss and Morissette JJ.A.), [2005] R.J.Q. 1352, [2005] Q.J. No. 4696 (QL), 2005 QCCA 427, reversing a decision of Déziel J., 2004 CanLII 40461 (QC CS), [2005] R.J.Q. 90, [2004] Q.J. No. 11246 (QL). Appeal allowed, Fish and Abella JJ. dissenting.

Philippe Frère, Odette Jobin‑Laberge and Josiane L’Heureux, for the appellant Jocelyn Binet.

Benoît Belleau and Pierre Arguin, for the appellant the Attorney General of Quebec.

Guy Du Pont, Marc‑André Boutin, Mathieu Bouchard and Jean‑Philippe Groleau, for the respondents Pharmascience Inc. and Morris S. Goodman.

English version of the judgment of McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Charron and Rothstein JJ. delivered by

LeBel J. —

I. Introduction

1 This appeal concerns the validity of an order of injunction issued by the Quebec Superior Court. The order directed the respondent Pharmascience Inc. (“Pharmascience”), a generic drug manufacturer, to provide the appellant Binet, syndic of the Ordre des pharmaciens du Québec (“Order”), with information regarding allegations of unlawful rebates and benefits provided to pharmacy owners. In my respectful view, the appeal must be allowed. The Superior Court was correct to grant the injunction, and the appellant is entitled to the information requested pursuant to s. 122 of the Professional Code, R.S.Q., c. C‑26 (“Prof. C.” or “Code”).

II. Origin of the Case

2 The case at bar arose in 2003, when a scandal involving a large number of Quebec pharmacy owners received extensive coverage in the Quebec media. It was alleged that the owners had unlawfully received rebates, discounts and other financial benefits from generic drug manufacturers in exchange for orders for drugs. The case concerns an inquiry process that could lead to disciplinary complaints against pharmacists for having accepted such discounts. In parallel, the Régie de l’assurance maladie du Québec (“RAMQ”) has instituted civil proceedings against certain manufacturers.

3 In order to better understand the stratagem that was used, according to the RAMQ, it is important to briefly review the drug insurance plan in effect in Quebec. Under the plan, registered individuals pay only part of the cost of certain prescription medications. The remainder of the sale price is covered by the RAMQ, which pays the pharmacists directly. The medications the cost of which is covered in part by the RAMQ are found on a list drawn up by the Minister (s. 60 of the Act respecting prescription drug insurance, R.S.Q., c. A‑29.01). Each medication on the list must be provided at a “guaranteed” selling price established by the manufacturer in accordance with certain conditions.

4 According to the allegations made in the proceedings instituted by the RAMQ, the manufacturers recovered the cost of kickbacks given to pharmacy owners by inflating the guaranteed selling price of their generic drugs. The same medication could thus cost 40 percent more on average in Quebec than elsewhere in Canada. However, according to the undertaking manufacturers are required to give the RAMQ, the guaranteed selling price “must not be higher than any selling price granted by the manufacturer for the same drug under other provincial drug insurance programs” (Regulation respecting the conditions on which manufacturers and wholesalers of medications shall be recognized, (1992) 124 G.O. II, 3264, Sch. I, s. 1(4)). In its undertaking, the manufacturer also agrees to comply with the requirement that “no property given without consideration and no reduction given in the form of a rebate, discount or premium may be granted to a buyer” (Sch. I, s. 2(5)). The kickbacks allegedly represented between 28 and 50 percent of the cost of certain generic drugs purchased by the pharmacy owners. In other words, for every $100 purchase of generic drugs, a pharmacy owner could receive between $28 and $50 in discounts and benefits in various forms.

5 The RAMQ therefore brought actions in damages against certain manufacturers to recover the kickbacks that had allegedly been given to the pharmacists. It alleged that it had paid for these kickbacks indirectly by reimbursing pharmacy owners for generic drugs sold at inflated prices.

6 The Code of ethics of pharmacists, R.R.Q. 1981, c. P‑10, r. 5 (“Code of ethics”), prohibits accepting “any benefit, allowance or commission” (s. 3.05.06). Upon reviewing the RAMQ’s legal proceedings against certain manufacturers, the syndic of the Ordre des pharmaciens, Jocelyn Binet, noted that the Quebec pharmacy owners in question, who represented approximately one quarter of the Order’s six thousand (6,000) registered pharmacists, may have received approximately $200,000,000 in rebates or other benefits between 2000 and 2003. The allegations in the RAMQ’s lawsuit referred not only to payments for training given to pharmacists’ employees and the delivery of pharmacy equipment, such as weekly pill organizers, but also to the provision of prepaid purchase cards, offers of free travel, payment of the cost of construction materials and renovation work, the leasing and purchase of vehicles, and the purchase and installation of swimming pools. The manufacturers were even alleged to have paid for houses either in part or in whole, and to have provided cash, gasoline vouchers, and interest‑free loans. According to the allegations in the RAMQ’s proceedings, Pharmascience’s share of these illegal payments was in excess of $39,000,000.

7 On June 11, 2003, to aid in his investigation, Syndic Binet asked Pharmascience to provide him with any documents indicating that rebates, discounts or other benefits had been granted to pharmacists. His request was based on his powers under s. 122 Prof. C.:

122. The syndic and assistant syndics may, following an [sic] information to the effect that a professional is guilty of an offence contemplated in section 116 [offences against the Professional Code, the regulations made under it or the Act constituting the Order], inquire into the matter and require that they be provided with any information or document relating to such inquiry. . . .

8 Despite repeated requests from the syndic, Pharmascience refused to forward the documents. A few weeks later, the syndic contacted the respondent Goodman, a director of Pharmascience and a pharmacist entered on the roll of the Order, to obtain the information. Mr. Goodman, too, refused to disclose any documents whatsoever. A complaint against him was lodged with the Order’s committee on discipline. In October 2003, Pharmascience and Mr. Goodman took the initiative of bringing a motion for a declaratory judgment to have the disclosure requests declared null and illegal. In a cross demand, the syndic sought a permanent injunction compelling Pharmascience to deliver the documents to him.

III. Judicial History

A. Superior Court, 2004 CanLII 40461 (QC CS), [2005] R.J.Q. 90

9 Déziel J. found that pharmacist Goodman was subject to the syndic’s power of inquiry, even though he had not been a practising pharmacist for several years. On the issue of whether Mr. Goodman had violated his Code of ethics, the judge deferred to the committee on discipline, which would have to rule on the complaint lodged against him.

10 In Déziel J.’s view, the use of the pronoun “on” in the French version of s. 122 suggests that the legislature did not intend that only professionals should be obliged to provide the syndic with information. The objective of monitoring professions adequately is another factor in favour of a large and liberal interpretation. For Déziel J., the syndic’s request was valid and in compliance with the power granted by the legislature under s. 122. The syndic had sufficiently specific information to make the request. Since he saw no ambiguity in s. 122 Prof. C., Déziel J. did not think it necessary to refer to the values protected by the Canadian Charter of Rights and Freedoms to assess the validity of the syndic’s information request. In any event, he considered that, because of the highly regulated nature of the sale of drugs, Pharmascience’s expectation of privacy with regard to the documents requested by the syndic was significantly lower. Given the importance of the syndic’s role in protecting the public, the alleged acts, which — if the allegations were true — were very costly to Quebec’s public purse, the potential delay inherent in the disciplinary proceedings against Mr. Goodman, and the evidence demonstrating the existence of the requested documents and information, the judge concluded that the application for a permanent injunction met the criteria of art. 751 of the Code of Civil Procedure, R.S.Q., c. C‑25 (“C.C.P.”).

B. Quebec Court of Appeal (Brossard, Nuss and Morissette JJ.A.), [2005] R.J.Q. 1352, 2005 QCCA 427

11 The Quebec Court of Appeal allowed the appeal and ordered the syndic to return the documents he had received. It granted the application for a declaratory judgment and ruled that s. 122 Prof. C. could not be set up against Pharmascience or against Mr. Goodman in his capacity as an officer of that corporation. Accordingly, the court quashed the injunction order against Pharmascience.

12 Brossard J.A., writing for a unanimous Court of Appeal, stated that the use of the word “on” in the French version of s. 122 makes the provision ambiguous and that the provision must therefore be interpreted in accordance with s. 8 of the Charter. The court considered the syndic’s power to be specific and limited: his investigation had to target a professional and had to be based on information that an offence had been committed. In the court’s view, this interpretation was supported by Baudouin J.A.’s conclusion in Beaulne v. Kavanagh‑Lemire, 1989 CanLII 1064 (QC CA), [1989] R.J.Q. 2343 (C.A.), that s. 122 Prof. C. did not authorize sending a questionnaire to a group of professionals for the purpose of discovering which of them had committed a specific act. According to the court, the rationale for applying the reasoning in Beaulne is even stronger when third parties are involved. Section 122 must be read in conjunction with s. 2 Prof. C., which limits the scope of the syndic’s powers to “professional orders and to their members”.

13 Although he confirmed that the Superior Court had jurisdiction to issue the injunction, Brossard J.A. nevertheless found that the grounds on which the order was granted had not been established. For instance, according to the Court of Appeal, the fact that the syndic had not obtained the requested information had in no way affected the RAMQ’s lawsuit and had accordingly had no impact on the public purse. Nor, since the injunction did not apply to Mr. Goodman, was there any relevance in the fact that the disciplinary proceedings brought against him might be lengthy. The syndic thus had not shown that he would suffer real and permanent harm if the injunction were refused. According to the court, he could have waited for the information to be provided in the course of the legal proceedings or the disciplinary process already in progress.

C. Appeal to This Court

14 This Court granted leave to appeal in the case at bar for the purpose of determining whether s. 122 Prof. C. imposes on third parties an obligation to disclose information required by a syndic for an inquiry and, if so, whether the syndic can obtain an injunction under the general law to compel the disclosure of documents. The issue of the respondent Goodman’s ethical responsibility in his capacity as a pharmacist is not before this Court and will ultimately, as the courts below have mentioned, be decided by the committee on discipline that hears the complaint against him. Nor is the constitutionality of s. 122 Prof. C. in issue.

IV. Analysis

A. Issues

15 The main issue raised by this appeal is thus whether s. 122 Prof. C. authorizes a syndic to request information from third parties and, if so, whether the circumstances of the case at bar meet the conditions for making such a request. It will then have to be determined whether, should a third party refuse, a syndic may seek an injunction pursuant to the [Quebec ]Code of Civil Procedure to compel the third party to provide the requested information.

B. Positions of the Parties

1. Syndic and Attorney General

16 The appellants argue that the grammatical and ordinary sense of the French version of s. 122 Prof. C., which states that “[l]e syndic et les syndics adjoints peuvent . . . exiger qu’on leur fournisse tout renseignement et tout document” (the English version reads “[t]he syndic and assistant syndics may . . . require that they be provided with any information or document”), clearly demonstrates the legislature’s intention to have this provision apply to everyone, not just a defined group of individuals. Section 122 must also be interpreted in the context of the mechanisms established in the Professional Code to protect the public by monitoring the practice of the profession. In the appellants’ view, Beaulne does not support a narrow interpretation of s. 122 Prof. C. In that case, the syndic of the Ordre des optométristes had no prior information that an offence had been committed. In the case at bar, on the other hand, Syndic Binet had extensive reliable information suggesting that pharmacists who owned pharmacies and were customers of Pharmascience had violated their Code of ethics. The appellants add that the Court of Appeal erred in invoking the values protected by s. 8 of the Charter. They see no ambiguity in the text that would justify resorting to the Charter and its values. The ordinary principles of interpretation are quite sufficient to decide the case. The appellants thus argue that the Superior Court was justified in granting the injunction requested by the syndic and add that the Court of Appeal should have deferred to the trial judge’s findings of fact.

2. Pharmascience

17 Pharmascience replies that s. 122 Prof. C. grants syndics a circumscribed and well‑defined investigative role and that syndics must have personalized information before they may take action. In the case at bar, the syndic was not in a position to identify the pharmacists about whom he wanted to obtain information. He could not use s. 122 to identify members who may have violated the Code of ethics. That approach would amount to a fishing expedition, which is prohibited by s. 122 and the case law of this Court: James Richardson & Sons Ltd. v. Minister of National Revenue, 1984 CanLII 1 (SCC), [1984] 1 S.C.R. 614.

18 Pharmascience argues that the interpretation proposed by the appellants is overly literal in that it focuses unduly on the meaning of the French word “on”. A contextual interpretation of the Professional Code leads to the conclusion that s. 122 applies only to members of professional orders. Moreover, s. 2 Prof. C. makes it clear that only professional orders and their members are subject to the Code. The scheme of the legislation also confirms the specific and limited nature of the power of inquiry of syndics. For example, should a professional refuse to respond to a syndic’s order, a complaint may be lodged with the committee on discipline for hindering the syndic’s inquiry. However, the Professional Code does not provide for any similar penalty for third parties who refuse to comply.

19 Even if it were assumed that third parties are obliged to disclose information under s. 122, Pharmascience submits that the only sanction contemplated by the Professional Code is the institution of penal proceedings for contravening the Code (s. 188). In this context, the Attorney General must act as prosecutor or, at the very least, authorize a prosecution (s. 191). Pharmascience contends that, when the legislature passes legislation to establish a framework for a public authority’s powers, the public authority cannot ignore that legislative framework and rely instead on the general law.

C. Legislative Framework

1. Professional Code as a General Framework for the Organization and Activities of Professional Orders in Quebec

20 In 1973, the Quebec legislature carried out a sweeping reform of the law of professions as it stood at that time in the province. The Professional Code was the cornerstone of the reform. It established a set of common rules applicable to professional orders that had up to then been governed only by their constituting legislation. The reform resulted from the work of a commission of inquiry, which found it astonishing

that laws relating to professional bodies do not constitute a system but a disparate nomenclature of legislative documents which do not correspond to one another, relate to one another nor complement one another.

(Report of the Commission of Inquiry on Health and Social Welfare, vol. VII, t. 1, The Professions and Society (1970), at para. 70)

As is clear from s. 2, the Code thus became the law of general application with regard to professions in Quebec. This general scheme is complemented or varied by special legislation governing each individual profession:

2. Subject to the inconsistent provisions of a special Act, of the letters patent issued under section 27 or of an integration or amalgamation order made under section 27.2, this Code applies to all professional orders and to their members.

21 The Code creates two main classes of professions. On the one hand, it recognizes exclusive professions, in which the members of the relevant professional orders have the exclusive privilege to carry out certain acts: for example, only physicians may perform surgery. On the other hand, the Code also provides for professions with reserved titles, in which, although the use of certain titles, abbreviations or initials is restricted to members of the relevant orders, members are not given a monopoly over the practice of the profession (s. 27 Prof. C.). For example, people may offer translation services without being members of the Ordre des traducteurs, terminologues et interprètes agréés du Québec, but may not represent themselves to be professionals entered on the roll of that order or give third parties the impression that they are.

22 There are currently 45 professional orders in Quebec: 25 in exclusive professions and 20 in professions with reserved titles. Each exclusive profession is established by a statute (s. 26 Prof. C.): the Pharmacy Act, R.S.Q., c. P‑10, is one such statute, and the Act respecting the Barreau du Québec, R.S.Q., c. B‑1, and the Optometry Act, R.S.Q., c. O‑7, are two other examples. Each of these statutes sets out the nature of the practice of the profession but also refers to the interrelationship between the scheme it establishes and the Professional Code. The Pharmacy Act is no exception:

3. Subject to this act, the Order and its members shall be governed by the Professional Code.

23 At the time of the 1973 reform, every exclusive professional order then in existence thus had its constituting legislation amended or, in certain cases, adapted to take into account the general law represented by the Professional Code. The implementation of the Code as a framework law governing the organization and practice of all professions in Quebec was the product of a long process of consultations and discussions with stakeholders. As Claude Castonguay, the minister responsible for this legislative reform, noted at that time, the new legislation [translation] “will provide . . . the public with better protection by creating new [disciplinary] mechanisms” for professions (Assemblée nationale du Québec, Journal des débats, 4th Sess., 29th Leg., July 6, 1973, at p. 2270).

2. Organization of Discipline Under the Professional Code: Its Mechanisms and Stages, and the Distinction Between It and Professional Inspection

24 The Professional Code establishes a number of mechanisms to protect the public through the supervision of professional practice. As I recently noted for this Court in Finney v. Barreau du Québec, [2004] 2 S.C.R. 17, 2004 SCC 36, to fully understand the nature of this system for supervising and monitoring professional practice, it is important to recall the distinction between professional inspection, which is preventive in nature, and the disciplinary system, which plays a curative and punitive role (para. 18).

25 Each order must establish a professional inspection committee, which must in particular inspect the records, books and registers kept by professionals, and the equipment they use in practising the profession in question (s. 112). The committee or one of its members may also inquire into the competence of a professional. The Professional Code includes a prohibition against hindering a committee’s inquiry:

114. It is forbidden to hinder in any way a member of the committee, the person responsible for professional inspection appointed pursuant to section 90, an inspector, an investigator or an expert, in the performance of the duties conferred upon him by this Code, to mislead him by concealment or false declarations, [to] refuse to furnish him with any information or document relating to an inspection or inquiry carried out by him under this Code or to refuse to let him take copy of such a document.

26 On completing its inquiry, a committee may recommend to the Bureau of the order that it suspend a member’s right to practise until he or she has completed a refresher course (s. 113). Where the committee has reasonable grounds to believe that a professional has committed an offence under s. 116 Prof. C., that is, an offence against the Code, the order’s constituting legislation or the regulations made under one of those statutes, it must inform the syndic (s. 112, para. 5).

27 The syndic plays a crucial role in the disciplinary system under the Professional Code. The syndic inquires into the conduct of a professional before a formal complaint is lodged with the committee on discipline. The syndic launches an inquiry on the basis of information that a professional is guilty of an offence contemplated in s. 116. This information may come from any of a variety of sources. As mentioned above, it may be provided to the syndic by the professional inspection committee. Another professional, a member of the public, or the Bureau of the order may also ask the syndic to hold an inquiry. Finally, syndics may act on their own initiative if, for example, they themselves observe situations that could give rise to disciplinary complaints; for instance, a syndic might see an advertisement made by a professional in violation of the rules relating to advertising (Khalil v. Corporation professionnelle des opticiens d’ordonnances, [1991] D.D.C.P. 316 (Prof. Trib.); Delisle v. Corporation professionnelle des arpenteurs‑géomètres, [1991] D.D.C.P. 190 (Prof. Trib.), noted in S. Poirier, La discipline professionnelle au Québec: principes législatifs, jurisprudentiels, et aspects pratiques (1998), at p. 81). As in the case of an inquiry by a professional inspection committee, the legislature has imposed an obligation to co‑operate with a syndic’s inquiry in s. 122 Prof. C., the interpretation of which is central to the instant case:

122. The syndic and assistant syndics may, following an [sic] information to the effect that a professional is guilty of an offence contemplated in section 116, inquire into the matter and require that they be provided with any information or document relating to such inquiry. . . .

Section 114 shall apply to every inquiry held under this section.

At the end of his or her inquiry, the syndic decides whether a complaint should be lodged with the committee on discipline (s. 123).

28 Section 116 Prof. C. gives each order’s committee on discipline jurisdiction to sanction offences committed by professionals. These committees are quasi‑judicial adjudicative bodies responsible for ruling on the merits of complaints in adversarial proceedings (s. 144). Like most bodies of this nature, they have the power to summon witnesses and to compel them to appear and answer (ss. 146 and 147). Section 156 of the Code sets out the penalties that may be imposed against a professional.

D. Interpretation of Section 122

29 In my view, a grammatical analysis of the statutory provision together with a review of the relevant contextual aspects, such as the purpose of the statute and of the provision in issue, confirms that the legislature intended to subject third parties to the syndic’s power of inquiry under s. 122 Prof. C. This contextual analysis resolves any ambiguity flowing from s. 122 without it being necessary to refer to Charter principles or values. This Court has consistently held that the courts may turn to Charter values to interpret the meaning of a statutory provision only if an ambiguity persists following a contextual analysis (Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Bristol‑Myers Squibb Co. v. Canada (Attorney General), [2005] 1 S.C.R. 533, 2005 SCC 26; Charlebois v. Saint John (City), [2005] 3 S.C.R. 563, 2005 SCC 74). In the case at bar, the Court of Appeal did not adhere to this interpretive approach when it referred to Charter values without trying to determine the meaning of the text in question by situating it in its context.

1. Effect of a Textual Interpretation

30 Although the weight to be given to the ordinary meaning of words varies enormously depending on their context, in the instant case, a textual interpretation supports a comprehensive analysis based on the purpose of the Act. Most often, “ordinary meaning” refers “to the reader’s first impression meaning, the understanding that spontaneously emerges when words are read in their immediate context” (R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 21; Marche v. Halifax Insurance Co., [2005] 1 S.C.R. 47, 2005 SCC 6, at para. 59). In Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., 1993 CanLII 31 (SCC), [1993] 3 S.C.R. 724, at p. 735, Gonthier J. spoke of the “natural meaning which appears when the provision is simply read through”.

31 The ordinary and grammatical sense of the French version of s. 122, which provides that “[l]e syndic et les syndics adjoints peuvent . . . exiger qu’on leur fournisse tout renseignement et tout document” favours the argument that the obligation to co‑operate applies to everyone, not just to a defined and limited group of individuals, such as professionals belonging to a given order. Moreover, this is the meaning usually given to the French indefinite pronoun “on”, which is defined as follows:

[translation] on Indef. pron. (lat. homo, man). [Always subject.] 1. Designates an indeterminate person, group of persons; someone, people.

(Petit Larousse illustré (2004) at p. 715; trial judgment, at paras. 82‑83)

If there were any concern that the significance given to this common meaning might give disproportionate weight to the French version, contrary to the principles of interpretation of bilingual statutes, it should be noted that the ordinary sense of the English version of s. 122, which provides that “[t]he syndic and assistant syndics may . . . require that they be provided with any information or document”, is equally supportive of the appellants’ position. In my view, the primary meaning of s. 122 leans more toward an interpretation according to which the obligation applies to third parties. As this Court recently noted, when the legislature intends to limit the scope of a statutory provision, it usually says so clearly: Glykis v. Hydro‑Québec, [2004] 3 S.C.R. 285, 2004 SCC 60, at para. 13; Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425, 2005 SCC 70, at para. 3. The legislature could have drafted s. 122 so as to restrict the obligation to provide information to the professional under investigation. It did not do so.

32 Nevertheless, it has to be admitted that textual interpretation has its limits. Before this Court, the parties submitted numerous definitions of the French word “on” taken from dictionaries, grammar books and other encyclopedic sources, and countless examples drawn from statutes in which the legislature used similar or different wordings to indicate the inclusion of all persons or of a specific group of individuals. That is why this Court now considers it important, even when a provision seems clear and conclusive, to nevertheless review the overall context of the provision: Montréal (City) v. 2952‑1366 Québec Inc., [2005] 3 S.C.R. 141, 2005 SCC 62, at para. 10.

2. Contextual Interpretation: Structure of the Act and Judicial Policy

33 As I noted above, the Professional Code is the statutory solution chosen by the Quebec legislature to protect the public by means of an appropriate framework for all professionals. Section 2 states this general principle by asserting that the “Code applies to all professional orders and to their members”. Still, this provision cannot be transformed into a rule limiting the effect of statutes governing professionals to members of orders subject to the Professional Code. That is one of the errors the Court of Appeal committed in agreeing with one of Pharmascience’s arguments and consequently concluding that s. 2 establishes the scope of application of the Professional Code and limits it to members of professional orders (para. 49). In the Court of Appeal’s view, the presence of this section confirms that s. 122 does not apply to third parties.

34 That conclusion fails to take sufficient account of the public protection objective of the Professional Code, which cannot be attained unless certain provisions of the Professional Code apply to or affect third parties. For example, ss. 188.1 to 189 prohibit the unlawful practice of a profession by non‑member third parties. And s. 188 provides for the imposition of a fine on every person who commits an offence. As its wording indicates, s. 2 is intended to establish the general nature of the Code, its status as a framework law for the practice of professions in Quebec, and the precedence of a professional order’s special statute in the event of inconsistency. This is confirmed by the context in which the Code was enacted, which I discussed above. Section 2 does not provide that the Code applies only to members of professional orders; rather, it confirms that the Code applies to all members of every professional order and establishes common rules governing operations and action in this area. This interpretation was accepted by the Quebec Court of Appeal in a recent decision: Ordre des comptables généraux licenciés du Québec v. Québec (Procureur général), 2004 CanLII 20542 (QC CA), [2004] R.J.Q. 1164, at paras. 18‑19.

35 According to the principles of interpretation, in the event of ambiguity, the interpretation most favourable to the purpose of the statute must prevail. Professor P.‑A. Côté sums up this rule as follows:

Undoubtedly the aim of an enactment is relevant in selecting the most suitable of a number of possible meanings, where the written expression is ambiguous.

(The Interpretation of Legislation in Canada (3rd ed., 2000), at p. 392; see also Sullivan, at pp. 219‑21.)

This principle is consistent with the Interpretation Act, R.S.Q., c. I‑16, s. 41 of which states that a “provision of an Act is deemed to be enacted for the recognition of rights, the imposition of obligations or the furtherance of the exercise of rights, or for the remedying of some injustice or the securing of some benefit”. That section’s second paragraph adds that a “statute shall receive such fair, large and liberal construction as will ensure the attainment of its object and the carrying out of its provisions, according to their true intent, meaning and spirit”. Section 122 must therefore be interpreted from the perspective of the protection of the public, which is recognized in s. 23 as the main objective of the Professional Code: “The principal function of each order shall be to ensure the protection of the public.”

(a) Importance of the Function of Professional Orders, Their Role in Protecting the Public Interest, and a Review of the Case Law

36 This Court has on many occasions noted the crucial role that professional orders play in protecting the public interest. As McLachlin J. stated in Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] 2 S.C.R. 232, “[i]t is difficult to overstate the importance in our society of the proper regulation of our learned professions” (p. 249). The importance of monitoring competence and supervising the conduct of professionals stems from the extent to which the public places trust in them. Also, it should not be forgotten that in the client‑professional relationship, the client is often in a vulnerable position. The Court has already had occasion to address this point in respect of litigants who entrust their rights to lawyers (Fortin v. Chrétien, [2001] 2 S.C.R. 500, 2001 SCC 45, at para. 17). The general public’s lack of knowledge of the pharmaceutical field and high level of dependence on the advice of competent professionals means that pharmacists are another profession in which the public places great trust. I have no hesitation in applying the comments I wrote for this Court in Finney, at para. 16, generally to the health field to emphasize the importance of the obligations imposed by the state on the professional orders that are responsible for overseeing the competence and honesty of their members:

The primary objective of those orders is not to provide services to their members or represent their collective interests. They are created to protect the public, as s. 23 of the Professional Code makes clear. . . .

The privilege of professional self‑regulation therefore places the individuals responsible for enforcing professional discipline under an onerous obligation. The delegation of powers by the state comes with the responsibility for providing adequate protection for the public. Finney confirms the importance of properly discharging this obligation and the seriousness of the consequences of failing to do so.

(b) Need for a Flexible Interpretation of Their Supervisory Powers to Enable Them to Discharge Their Duties

37 In this context, it should be expected that individuals with not only the power, but also the duty, to inquire into a professional’s conduct will have sufficiently effective means at their disposal to gather all information relevant to determining whether a complaint should be lodged. As we have seen, the Professional Code confers the responsibility for conducting an inquiry and deciding whether to lodge a complaint with the committee on discipline on an independent official, the syndic. In Parizeau v. Barreau du Québec, 1997 CanLII 9307 (QC CS), [1997] R.J.Q. 1701 (Sup. Ct.), at p. 1708, Dalphond J., as he then was, gave a clear description of the essential role delegated by the legislature to the syndic:

[translation] The keystone of the monitoring of the profession is the syndic, who plays a dual role: that of an investigator with significant powers (s. 122 of the Code) and that of an informant or complainant before the committee on discipline (s. 128 of the Code).

38 The importance of this “dual role” must necessarily guide the interpretation of s. 122. The lodging of a complaint with the committee on discipline is a possible outcome of the syndic’s inquiry. For the professional concerned, the mere fact that a complaint has been lodged can sometimes have a serious impact on his or her reputation and ability to practise. In order to conduct an effective investigation while bearing in mind and upholding the rights of everyone with an interest in the outcome, the syndic must be able to require relevant documents and information from anyone, not just from professionals as the Court of Appeal concluded. Obtaining information in the possession of third parties appears often to be essential to the effective conduct of a syndic’s inquiry. Although only the professional accused of a violation of the Code of ethics might eventually be summoned before the committee on discipline, situations likely to give rise to disciplinary complaints will often involve third parties in one way or another.

39 The offence for which certain pharmacists are being investigated in the case at bar, that is, “receiv[ing] . . . [a] benefit, allowance or commission” (s. 3.05.06 of the Code of ethics), is no exception. The benefit is received from another person. Logically, an inquiry into the commission of an offence would therefore have to extend to third parties. Other examples can be used to illustrate this. For instance, a syndic might need to obtain information from a nurse or orderly who witnessed certain events in order to determine whether a sexual harassment complaint should be lodged against a doctor. Also, a syndic’s investigation might require access to information held by a bank or an accountant on a lawyer’s improper use of a trust account.

(c) Problems With Pharmascience’s Interpretation

40 Pharmascience submits that a broad interpretation of s. 122 and of the syndic’s powers of investigation would make certain functions of the committee on discipline pointless. Its reasoning can be summed up as follows. Under ss. 146 and 147 Prof. C., a committee on discipline can summon witnesses and compel them to appear and testify. It can also require the production of documents. According to Pharmascience, if the syndic is recognized as having the power to require documents from third persons in the course of an inquiry, [translation] “the investigative role of the committee on discipline would duplicate the functions of a syndic”.

41 In my view, this argument disregards the position of members of a professional order in the context of the application of s. 122 and in the course of a disciplinary proceeding, from the opening of the file by the syndic to the decision by the committee on discipline. These are a series of actions that the syndic and the committee on discipline may perform in discharging their duties relating to professionals. First, the syndic exercises powers of investigation in order to determine whether there is a basis for a complaint. If a complaint is lodged, the committee on discipline then holds hearings to consider the merits of the complaint. At each stage, an inquiry takes place, but within a different legal framework and for a different purpose.

42 From the standpoint of the fairness of the entire disciplinary proceeding and the protection of the rights and reputations of all concerned, it is difficult to see any advantage in Pharmascience’s position that it should be possible to obtain documents or information from third parties only after a disciplinary complaint has been lodged with the committee on discipline. It seems far preferable, especially for the professional in question, to allow the syndic conducting the inquiry to have access to all the necessary information before an adversarial proceeding is set in motion before an administrative tribunal. In this regard, the fact that the committee on discipline has powers of investigation does not in any way indicate that the means available to a syndic in conducting his or her own inquiry must be interpreted narrowly. These two authorities play different, but complementary, roles: the quality of the evidence presented to the committee on discipline is largely dependent on the effectiveness of the syndic’s inquiry. In this sense, the interpretation advocated by Pharmascience would encourage the lodging of hasty and even groundless complaints with the committee on discipline. It is in everyone’s interest to ensure that a syndic who files a disciplinary complaint has detailed knowledge of the accusations against the professional and that the evidence at the syndic’s disposal is complete. What is more, the requirements of procedural fairness set out in the statute include the obligation to disclose this evidence to the professional.

3. Conditions for Exercising the Power Under Section 122

43 The words used in s. 122 Prof. C. circumscribe the syndic’s power: the syndic may require the disclosure of information or documents only “following an [sic] information to the effect that a professional is guilty of an offence”. These words require sufficient cause for making the request and do not permit “fishing expeditions”.

44 The Code does not specify the nature or the source of the information that may justify holding an inquiry. As a general rule, a member of the public will contact a professional order to complain about a professional. In making the receipt of “information” a precondition, however, the legislature contemplated the possibility of the likely commission of an offence being brought to a syndic’s attention by other means. It would have been surprising if this were not the case, given the fact that the syndic may act on his or her own initiative. Thus, there is nothing to prevent a syndic from personally taking cognizance, by reading newspapers or court pleadings, for example, of information that might give rise to an inquiry.

45 The information upon which a syndic relies must raise a suspicion that an offence has been committed. However, at this stage, the syndic need not be in a position to identify exactly which professionals are under suspicion. The individualized process provided for in the Professional Code is the lodging of a disciplinary complaint with the committee on discipline. The syndic’s inquiry precedes this process and is aimed at determining whether a complaint should be lodged. Pharmascience contends that the syndic’s inquiry in the case at bar is, because of its scope, similar to a commission of inquiry. Pharmascience submits that the professional inspection committee is responsible for monitoring the practice of the profession, while each order’s Bureau is responsible for general oversight of compliance with legal, regulatory, and ethical standards. Pharmascience relies on Beaulne, a decision of the Quebec Court of Appeal, in support of the argument that the actions of Syndic Binet are incompatible with the role conferred on him by the Code. The Court of Appeal erred in finding that Beaulne applies to the instant case.

46 The legal situations and facts in the two cases can be clearly distinguished. In Beaulne, the syndic of the Ordre des optométristes, relying on s. 122, had indiscriminately sent a questionnaire to all members of that order to find out whether they were associated with dispensing opticians. The optometrists had to respond to the questionnaire or face penalties. The Court of Appeal found that the syndic had exceeded his powers in sending out this questionnaire, noting that it was not an offence for an optometrist to be associated with an optician:

[translation] These proceedings relate to a dispute within the optometry profession regarding two competing conceptions of the practice of the profession. There are those who feel that optometrists should remain independent, while others think, on the contrary, that it could be in an optometrist’s interest to practise his or her profession jointly or in close collaboration with a dispensing optician. [p. 2344]

It was in this context that the Court of Appeal in Beaulne noted that the syndic’s power of inquiry was not unlimited and that his actions in that case fell instead within the jurisdiction of the professional inspection committee responsible for monitoring the practice of the profession. On this point, the Court of Appeal wrote the following:

[translation] Section 122 of the Professional Code, supra, allows syndics to conduct inquiries only in specific circumstances and under certain conditions. The power the statute confers on them is not general and discretionary but, on the contrary, specific and limited. There must be information that a professional has committed an offence. In the case at bar, the syndic, through this questionnaire, is thus investigating all optometrists, without any prior information. Furthermore, nothing in the statute or the regulations prohibits optometrists from practising optometry in the same establishment or jointly with a dispensing optician. I am therefore of the view that the syndic did not have the power to conduct an inquiry as general as this while, in addition, ordering recipients to respond on pain of disciplinary penalties. I cannot (since this is a disciplinary matter in which the fundamental rights of a possible offender must therefore be upheld) accept the argument that the legislature, despite the specific guidance regarding the syndic’s mandate set out in section 122, also intended to give syndics unlimited powers to conduct inquiries on their own initiative, without any information, simply because their role generally consists in monitoring the practice of the profession and defending the public interest. [Emphasis added; p. 2346.]

47 In Beaulne, the syndic thus had no information on which to base a rational suspicion that an offence had been committed. The decision tells us nothing that is not already clear from s. 122, but merely confirms that prior information is necessary in order to initiate an inquiry. As for Syndic Binet, he had reliable information from a government authority and from legal proceedings. But there are two particular features of the case at bar that may have led the Court of Appeal to find that it could not be distinguished from Beaulne: (1) the syndic’s inquiry concerns an exceptionally large number of professionals; and (2) the syndic does not know their names. However, these characteristics are not determinative. Although Syndic Binet is not yet able to name names, he does have information leading him to suspect that some pharmacists have committed offences; he even knows approximately how many are involved. He is relying on facts that establish a reasonable basis for his inquiry. The scope of the inquiry does not make it a random one. Far from relating to an ethical debate within the profession that would fall more within the jurisdiction of a professional inspection committee (as was the case in Beaulne), the syndic’s inquiry concerns allegations of clear breaches of the Code of ethics. The syndic has not only the jurisdiction but also the duty to intervene to protect the public. The mere fact that the purpose of the inquiry is to identify the offenders as opposed to determining the specific circumstances of the offence, which would be a more typical situation, is not determinative. In fact, the very reason why the syndic has required that Pharmascience disclose certain documents is to be able to commence disciplinary proceedings.

48 For similar reasons, the principle stated by this Court in Richardson does not apply to the circumstances of the case at bar. In that case, the Court concluded, in interpreting a ministerial power under the Income Tax Act, S.C. 1970‑71‑72, c. 63, to require “any . . . additional information” from any person, that the power could be used only in a serious inquiry into the tax liability of one or more specific persons. The power could not be used to conduct a “fishing expedition” (p. 625) with regard to a broker’s customers who were not the subject of a genuine inquiry:

If the tax liability of its customers or one or more of them were the subject of a genuine inquiry, then the Minister would clearly be entitled under s. 231(3) to single out the appellant even although innocent taxpayers’ trading activities were disclosed in the process. But it cannot, in my opinion, be singled out otherwise. It cannot be compelled . . . to provide [a] random sample . . . . [pp. 625‑26]

In the instant case, unlike in the process criticized in Richardson, Syndic Binet is not seeking information randomly. He is conducting a genuine and serious inquiry concerning pharmacists whom he has reasonable grounds to suspect of receiving discounts and other benefits. The inquiry concerns a group of specific persons, and Pharmascience was not selected at random.

4. Justification for Resorting to Section 122

49 Like Déziel J., I believe that the inquiry in the case at bar is not a fishing expedition and that Syndic Binet had a reasonable factual basis for opening it. In addition to the information drawn from figures advanced by the media and the Order, according to which 85 percent of Quebec pharmacy owners had received benefits or discounts, the syndic received personal correspondence from the director general of the RAMQ that provided him with reasonable grounds to believe that some pharmacists had breached their ethical obligations (affidavit of the syndic dated November 14, 2003, A.R., at pp. 253 et seq.).

50 In June 2003, the syndic therefore acted under s. 122, contacting Pharmascience, one of the generic drug manufacturers being sued by the RAMQ, to obtain accurate information about the goods or benefits each of its pharmacist customers had allegedly received or profited from. Pharmascience refused to disclose the information he was seeking. A few weeks later, the syndic sent pharmacist Morris Goodman, a director of Pharmascience, a request for the same information. He was acting on information that Mr. Goodman had been personally involved in setting up the rebate scheme. Mr. Goodman also refused to disclose any information. The syndic also contacted a sampling of 175 pharmacy owners, who tried to block his inquiry by applying for an injunction, which the Superior Court subsequently dismissed. He therefore had to investigate, but it was impossible for him to complete his inquiry without first obtaining information about the identities of the pharmacists concerned. After a motion for a declaratory judgment was filed to contest the scope of his powers, he himself applied for an injunction to compel the respondents to co‑operate with his inquiry.

E. Recourse to an Injunction

51 Although recognizing that the Superior Court had jurisdiction to issue an injunction in the case at bar, the Court of Appeal found that it had been inappropriate to do so (para. 62). This conclusion was unwarranted in the circumstances. In reviewing the Court of Appeal’s judgment, it is important to consider the penalties, rights, obligations and powers established by the Professional Code.

1. Penal Injunctions Under the Professional Code

52 The procedure for penalizing a third party for refusing to disclose documents to a syndic brings into play several provisions of the Professional Code, including ss. 114, 122, 188 and 191. Section 114 establishes a general prohibition against refusing to disclose a document needed for a disciplinary inquiry. The last paragraph of s. 122 makes it clear that this prohibition applies to requests by a syndic. Section 188 provides that anyone who contravenes a provision of the Professional Code is guilty of an offence. The combined effect of ss. 122 and 188 is therefore that a third party who refuses to disclose documents requested by a syndic is guilty of an offence punishable by a fine of not less than $600 and no more than $6,000. Section 191 adds that, if any penal offence provided for in the Professional Code is repeated, the Attorney General or, with the Attorney General’s authorization, a professional order may, after penal proceedings have been instituted, obtain an interlocutory injunction, and then a final injunction, to ensure that the person committing the offence ceases to do so.

2. Availability of the General Remedy of an Injunction in Support of the Exercise of the Order’s Powers

53 Pharmascience submits, citing City of Montreal v. Morgan (1920), 1920 CanLII 90 (SCC), 60 S.C.R. 393, that since the legislation does not expressly authorize a syndic to apply to the Superior Court for an injunction and since it even provides for other forms of sanctions, syndics are not entitled to do so. The Court of Appeal also considered that Morgan made the issuance of an injunction under the Code of Civil Procedure inappropriate. However, Morgan does not have the restrictive effect attributed to it by Pharmascience and the Court of Appeal. In fact, I feel that it actually supports the opposite position, namely that the syndic was entitled to apply for a general law injunction.

54 Morgan created an exception to the general principle that the general law is inapplicable where a specific statute provides for an obligation and related penalties. In that case, a person who had constructed a building in violation of municipal by‑laws claimed that, absent other procedures provided for by statute, a fine was the only sanction available to the City of Montréal. It is important to consider the remarks of Anglin J., which are central to this part of the debate in the case at bar:

To what consequences has the defendant’s contravention of by‑law No. 570 subjected him? He argues that he is merely liable to the penalty which the by‑law provides and that the plaintiffs have no other means of enforcing it. But a person prepared to do so cannot thus purchase the right to disobey the law. The public interest forbids that the enforcement of the penalty should be the sole remedy for the breach of such a by‑law and requires that the regulation itself should be made effective. The general rule of construction that where a law creates a new obligation and enforces its performance in a specific manner, that performance cannot be enforced in any other manner (Doe d. Murray v. Bridges [1 B. & Ad. 847, at p. 849]) is of course well established. But that rule is more uniformly applicable to statutes creating private rights than to those imposing public obligations. Atkinson v. Newcastle Waterworks Co. [2 Ex. D. 441, at p. 448]. Moreover whether the general rule is to prevail or an exception to it should be admitted must depend on the scope and language of the act which creates the obligation. Pasmore v. Oswaldtwistle Urban District Council [[1898] A.C. 387, at pp. 397‑98] per Lord Macnaghten. The provisions and object of the Act must be looked at. Vallance v. Falle [13 Q.B.D. 109, at p. 110]; Brain v. Thomas [50 L.J.Q.B. 662, at p. 663].

Here the object and scope of by‑law No. 570 make it clear, in my opinion, that the recovery of the penalties prescribed was not meant to be the sole remedy available for its enforcement. A breach of the obligation which it imposes falls within the purview of Art. 1066 [of the Civil Code], as my brother Mignault points out. [Emphasis added; pp. 406‑7.]

55 Morgan thus places a limit on the general principle that the penalties provided for in a special statute are exhaustive: one cannot be given the opportunity to buy the right to break the law repeatedly with no further consequences. To avoid applying this exception, the Court of Appeal held that Pharmascience had not repeatedly broken the law and was merely contesting the applicability of s. 122 Prof. C. to third parties. Moreover, there was nothing to indicate that Pharmascience would have refused to provide the documents following an adverse final decision on a penal complaint. Finally, according to the Court of Appeal, the Professional Code, unlike the statute in question in Morgan, does not provide that the payment of a fine is the only sanction for third parties who refuse to disclose documents: s. 191 contemplates an injunction to stop the commission of repeat offences.

56 In my view, the principle in Morgan cannot be limited to situations in which a monetary penalty is the only sanction contemplated by a statute. Some authors attribute a broader scope to Morgan:

[translation] This decision and this comment by Anglin J. were on many occasions cited and interpreted to mean that public authorities may apply to the Superior Court for an order to do or not to do something when the public interest requires this, whether to safeguard public order or public safety or to put an end to repeated violations of the law. [Emphasis added.]

(P.‑A. Gendreau et al., L’injonction (1998), at pp. 182‑83)

57 In Quebec procedural law, the existence of a specific remedy does not close the door on the ordinary general law injunction provided for in art. 751 C.C.P., especially where the public interest requires that one be issued. It is the Superior Court judge who will have to consider the impact of the specific remedy provided for in another statute. The existence of that remedy is one element of the set of circumstances the judge will have to weigh in deciding whether the requested order is warranted. This conclusion is shared by the authors cited above:

[translation] The “exhaustion doctrine” is not in itself an additional test. It is part of the Court’s exercise of its discretion in applying the usual tests for injunctions . . . . [p. 183]

In the case at bar, therefore, Déziel J. could properly conclude that, given the situation in which the syndic found himself, the existence of a specific remedy under the Professional Code did not in any way preclude the issuance of a permanent injunction. No applicable legal rule prevented him from issuing the order.

58 The words used by Anglin J. in Morgan to qualify the strict application of the principle of the exclusivity of specific sanctions support this result. Anglin J. mentions first of all that this principle applies more to statutes that create private rights than to those that impose public obligations. He cites Atkinson v. Newcastle Waterworks Co., [1874‑80] All E.R. Rep. 757, in which the English Court of Appeal distinguished Couch v. Steel (1854), 3 E1. & B1. 402, 118 E.R. 1193 (Q.B.), a case dealing with the duty of a shipowner to provide sailors with sufficient medical supplies (“it differs from the case where a general public duty is imposed”: Atkinson, at p. 761). Anglin J. adds that the creation of an exception depends on the scope and language of the statute creating the obligation (citing Pasmore v. Oswaldtwistle Urban District Council, [1898] A.C. 387 (H.L.), in which Lord Macnaghten stated that “[w]hether the general rule is to prevail, or an exception to the general rule is to be admitted [in any particular case], must depend on the scope and language of the Act . . . and on considerations of policy and convenience” (pp. 397‑98 (emphasis added)). Finally, Anglin J. states that the provisions and purpose of the statute must be taken into consideration.

59 The role of the syndic of a professional order is clearly a public duty. The syndic’s principal function is to inquire into the conduct of professionals in order to protect those who receive their services. The scope of the Professional Code and the language used in it reflect this objective of protection, which is provided for in s. 23. As we have seen, judicial policy considerations also favour recognizing the syndic’s right to obtain all the information needed to carry out an effective inquiry and reach a final decision to lodge or not to lodge disciplinary complaints.

60 Moreover, the Quebec courts have recognized that the existence of a specific sanction under a special statute does not preclude a general law injunction where the circumstances require one. For example, in Coutu v. Ordre des pharmaciens du Québec, 1982 CanLII 2832 (QC CA), [1984] R.D.J. 298, the Court of Appeal issued an order for an injunction to end a [translation] “flagrant, persistent, systematic and deliberate” breach of the Order’s regulations on advertising, which continued even after complaints had been lodged. Although that decision falls within the exception developed in Morgan concerning the ability to buy the right to break the law, Jacques J.A. made some more general comments on the circumstances in which the Superior Court would be justified in granting an injunction despite the existence of a specific penal remedy:

[translation] All the facts submitted to the Court must therefore point to an exceptional situation in which the public interest is impaired, such as where repeated convictions have had no effect on the offender, where violations of a zoning by‑law are affecting the rights of the residents of a zone, or where public safety is put at risk, even before the other remedies provided for by the legislature have been exhausted.

If there is one constant that emerges from these decisions, it is the need for an impairment of public rights or of public order. The severity of the penalties for contempt of court, which is the consequence of disobeying an injunction, is such that the conduct sought to be prohibited must be disproportionate to the penalties specifically provided for by the legislature, thereby making it necessary to consider the harm caused in relation to the nature of the right invoked and its certainty. [Emphasis added; p. 313.]

61 Faced with similar facts in Ordre des optométristes du Québec v. Vision Directe Inc., [1985] C.S. 116, Gonthier J. of the Quebec Superior Court, as he then was, agreed to issue an injunction because the disciplinary proceedings had been rendered ineffective, as they were paralysed by multiple evocation proceedings and actions in nullity brought by the professionals involved. Gonthier J. wrote the following:

[translation] The Ordre des optométristes du Québec acts as a public body to enforce a law of public order for the protection of the consumer public relating, in the instant case, to corrective lenses, that is, to tools that are necessities of life for a very large portion of the public. The order’s function in this particular field is thus equivalent to that of the Attorney General, in terms of defending public order. It is recognized that the Court has discretion to grant an injunction to enforce penal or disciplinary provisions at the Attorney General’s request if the statutory remedy is ineffective, or if there have been repeated violations of the law. The instant case is not one in which the defendants have been convicted multiple times and been placed in a situation in which they could buy their peace by paying multiple fines, as one frequently finds in the case law.

Rather, the applicants rely on the ineffectiveness of the statutory remedy attributable to multiple evocation proceedings that are unduly delaying the outcome of disciplinary proceedings and the fact that, in the interim, the defendants have published a second circular that, because of its wide distribution, undermines the order’s ability to enforce its regulations. This type of advertising is contrary to the letter and the spirit of the order’s ethical regulations, which allow informational advertising only and prohibit advertising that encourages consumption, thereby upholding the quality of professional services while minimizing the commercial aspects. The case at bar is of the same nature as those that have resulted in injunctions against the advertisement of professional services by pharmacists and lawyers. [Emphasis added; p. 119.]

62 In applying the analytical framework established by Gonthier J., the courts have specifically held in certain decisions that the ineffectiveness of the remedy provided for in s. 191 Prof. C. could in certain circumstances make recourse to a general law injunction necessary: Deveault v. Centre Vu Lebel & Des Roches Inc., Sup. Ct. Montreal, No. 500‑05‑003478‑854, May 24, 1985 (per Dugas J.); Ordre des optométristes du Québec v. United States Shoe Corp., SOQUIJ AZ‑89021102 (Sup. Ct.) (per Flynn J.). In Barreau du Québec v. Descôteaux, SOQUIJ AZ‑95021889 (Sup. Ct.), Forget J., as he then was, also adopted the reasoning of Gonthier J. and refused to dismiss an application for an injunction on the ground that it duplicated the penal proceeding provided for in s. 191 Prof. C. Forget J. nevertheless concluded that, where the conditions of that provision are met, it must be used. I agree with this reservation.

3. Review, by the Judge Hearing the Application for Injunction, of the Difficulties Inherent in Disclosing the Information and of the Protection of the Parties’ Interests

63 The importance of and weight given to the remedies and penalties provided for in a special statute will depend on the particular context of a given case. Ultimately, the judge will have to determine whether the public interest requires that an injunction be issued to put an end to the violation of a law even though another remedy is available. In the circumstances that gave rise to the dispute in the case at bar, the injunction provided for in s. 191 Prof. C. to prevent the repeated commission of penal offences would not have been an appropriate and effective remedy. The case before the syndic was not, strictly speaking, one of repeated violations, and no penal prosecution had been instituted. Moreover, such proceedings could not have been commenced without prior authorization from the Attorney General, as a syndic cannot act alone. A judge might therefore conclude that it is difficult to reconcile the importance of the Professional Code and the syndic’s inquiry for the protection of the public with the requirements and time limits inherent in this particular remedy. A timely and effective remedy to the failure to co‑operate with the syndic’s inquiry was needed to allow the syndic and the Ordre des pharmaciens to fulfil their obligation of diligence in disciplinary matters. I would add that the judge hearing the application for injunction can solve any problems that might result from the disclosure of the information requested from third parties by defining the third parties’ obligations and the terms and conditions of their performance so as to dispel any fears that the injunction would lead to the fishing expedition apprehended by the respondents.

4. Merits of the Application for Injunction in the Circumstances

64 I believe that Déziel J. exercised his discretion properly in granting the injunction requested by Syndic Binet. An accurate interpretation of s. 122 Prof. C. would give the syndic the right to require Pharmascience to disclose documents concerning the payment of rebates and other benefits. The syndic, who is responsible for protecting the public, obviously had the interest required to make the application. The fact that it was impossible for him to apply on his own for the specific remedy provided for in s. 191 Prof. C. made a general law injunction all the more appropriate and necessary.

65 In my opinion, when analysing the issue of serious harm, the syndic’s request for disclosure must not be considered in isolation. This case concerns not only the interest of the syndic or the professional order in having the documents disclosed, but also the interest of Quebec drug consumers in doing business with pharmacists who are not in a conflict of interest. In a field as specialized as this one, where public health imperatives are at stake, the seriousness of the risk that pharmacists might put their own interests ahead of those of patients in choosing certain medications must not be underestimated. It should also be noted, as Déziel J. did, that if the syndic’s information proved to be true, the kickback scheme in the case at bar was exploiting public funds allocated to health care for all Quebecers. Moreover, some of the evidence indicated that kickbacks continued to be paid despite the institution of the RAMQ’s proceedings (A.R., at pp. 203‑4).

66 In an analysis of serious harm resulting from an offence under the Professional Code, the fact that this statute is a law of public order must be taken into account. The comments of Brossard J.A. in Ordre des pharmaciens du Québec v. Meditrust Pharmacy Services Inc., 1994 CanLII 6188 (QC CA), [1994] R.J.Q. 2833, a case in which the Court of Appeal granted an injunction against a company that sold drugs by mail order, are enlightening:

[translation] What is striking at first glance upon reading the judgment a quo is that the trial judge does not at any moment appear, in assessing harm and the balance of convenience, to have taken into consideration the fact that the appellant’s mandate under the Professional Code and the Pharmacy Act, that is, to monitor and supervise the practice of pharmacy in Quebec, is merely one of public order and public interest that was delegated to it by the state.

In this context, the harm to be taken into consideration is that which is likely to be caused to public order, not that caused to the Ordre des pharmaciens, and in the absence of a clear and indisputable right, what must be considered or weighed are, on the one hand, the inconveniences for a commercial corporation that alleges no specific inconvenience in the event the injunction is granted and, on the other hand, those that affect the public interest and public order. [Emphasis added; p. 2836.]

Brossard J.A. went on to note that, in certain cases, the serious harm required for an injunction to be issued can be inferred from the simple fact that the Professional Code has been violated:

[translation] As an extension of the state, from which it inherited through a delegation of power the mandate to enforce the provisions of both the Professional Code and the Pharmacy Act in respect of all aspects of the practice of that profession, the appellant has not only the power but also the duty to enforce those provisions. The present injunction is consistent with that mandate of public order and of public interest. Insofar as the appellant has established prima facie a serious colour of right on the merits, the ongoing violation of the public order provisions of the Professional Code and the Pharmacy Act during the proceedings, and until the rendering of a final decision on the merits, constitutes in itself sufficient harm to warrant granting an injunction for the sole purpose of temporarily forcing the respondent to obey the law while the proceedings are in progress. [Emphasis added; p. 2839.]

67 As I mentioned above, the case at bar does not involve the types of repeated violations or acts of bad faith that are characteristic of some of the cases of general law injunctions I have discussed. But the case law on this subject confirms that the demonstration of such circumstances is not essential. When the public interest is at stake, a proliferation of court challenges may make an injunction under the Code of Civil Procedure necessary. In light of the evidence of Syndic Binet’s difficulties in obtaining essential documents for his inquiry, Déziel J. took Pharmascience’s court challenges into account; those challenges extended over a seven‑month period and were appealed all the way to this Court, which dismissed an application for a stay (S.C.C., No. 30188, March 17, 2004). In exercising his discretion, Déziel J. properly found that Pharmascience’s refusals and its conduct were intended to paralyse Syndic Binet’s inquiry. The Court of Appeal was not justified in questioning that finding.

68 In my view, the Court of Appeal also erred in holding that the trial judge should have considered other methods by which, in its opinion, Syndic Binet could have tried to obtain the names of pharmacists he needed for his disciplinary inquiry. The Court of Appeal thus considered that the syndic could have waited for the information to be disclosed in the course of the civil proceedings brought against the manufacturers by the RAMQ, or when the complaints were heard by the committee on discipline, which has the power to require the production of documents by way of subpoena duces tecum.

69 Neither of these options would have allowed Syndic Binet to conduct a diligent, effective and complete inquiry. The first is not only slow, but quite random: I agree with the syndic that there is no guarantee the documents will ever be made available. For example, in the event of an out‑of‑court settlement, the documents may never be filed. As for the second option, I have already mentioned the complementary relationship between the evidence collected by a syndic and the filing of a disciplinary complaint. A syndic is required to investigate alleged misconduct and, where appropriate, to lodge a complaint with the committee on discipline. Syndic Binet states in his affidavit dated November 14, 2003 that it was impossible for him [translation] “to know precisely which 1,340 pharmacy owners out of a total of 1,575 received benefits or discounts” (A.R., at p. 255). If the syndic’s inquiry is recognized to be legitimate, and if it is open to him to approach third parties, it would be unreasonable to require him to prove that there is no other way to obtain certain information or that any other means would in practice be impossible. Such an approach would prevent the syndic and the Ordre des pharmaciens from carrying out their duty to protect the public.

V. Conclusion

70 I would therefore allow the appeal with costs throughout and restore the injunction order made by the Quebec Superior Court.

The reasons of Fish and Abella JJ. were delivered by

71 Abella J. (dissenting) — The public is entitled to know that the professionals on whom it relies behave competently and with integrity. It is to protect the public’s interest in that professionalism that the conduct of those professionals is subject to scrutiny through mechanisms such as those delineated in the Professional Code, R.S.Q., c. C-26 (“Code”). In this respect, I am in agreement with my colleague Justice LeBel. Where we differ, however, is on how and by whom that supervisory responsibility is to be discharged in the context of this specific statutory scheme.

72 There is no doubt that the overriding purpose of the Code is the protection of the public, but this purpose manifests itself through specific legislative language about the syndic’s powers. A syndic is confined by s. 122 to requesting information only in relation to allegations that a particular professional has breached the Code. I do not see in that language any power on the part of the syndic to go on a “fishing expedition”. In this case, the syndic lacked this information. Nor do I agree that an injunction can be issued in these circumstances in the absence of the consent of the Attorney General.

73 Section 122 of the Code states:

122. The syndic and assistant syndics may, following an [sic] information to the effect that a professional is guilty of an offence contemplated in section 116, inquire into the matter and require that they be provided with any information or document relating to such inquiry. . . .

Section 114 shall apply to every inquiry held under this section.

It permits the syndic to launch an investigation “following an information to the effect that a professional is guilty of an offence”. It does not confer a general investigatory power. This power is reserved to the Inspection Committee of the Bureau.

74 With great respect to the contrary view, in my view this case is governed by this Court’s decision in James Richardson & Sons Ltd. v. Minister of National Revenue, 1984 CanLII 1 (SCC), [1984] 1 S.C.R. 614. In that case, this Court dealt with the Minister’s powers under s. 231 of the Income Tax Act, S.C. 1970-71-72, c. 63, which gave the Minister the power to require from any person, for any purposes related to the administration or enforcement of the Act, any information or production of any documents. Relying on this provision, the Minister decided to investigate compliance with the Income Tax Act by traders in the commodities futures market and, as a result, requested information from a particular broker in the field about its clients. The broker provided some information but refused to provide the information necessary to identify the clients. The Minister, as a result, made a formal demand under s. 231. This Court held that the Minister had no power to make such a request, stating:

It seems to me that what the Minister is trying to do here, namely check generally on compliance with the statute by traders in the commodities futures market, cannot be done by conducting a “fishing expedition” into the affairs of one broker’s customers under s. 231(3) of the Act. . . .

. . . If the tax liability of its customers or one or more of them were the subject of a genuine inquiry, then the Minister would clearly be entitled under s. 231(3) to single out the appellant even although innocent taxpayers’ trading activities were disclosed in the process. But it cannot, in my opinion, be singled out otherwise. It cannot be compelled under s. 231(3) to provide the random sample for a check on general compliance by the entire class. . . . [pp. 625-26]

75 Similarly, in Beaulne v. Kavanagh‑Lemire, 1989 CanLII 1064 (QC CA), [1989] R.J.Q. 2343, the Quebec Court of Appeal held that a syndic has a specific limited power of investigation, but not the power to investigate the practices of the profession at large. Although the conduct investigated in Beaulne was not an offence, the Court of Appeal made clear that that was not the only reason it found the syndic to have exceeded his jurisdiction:

[translation] Section 122 of the Professional Code, supra, allows syndics to conduct inquiries only in specific circumstances and under certain conditions. The power the statute confers on them is not general and discretionary but, on the contrary, specific and limited. There must be information that a professional has committed an offence. [Emphasis in original; p. 2346.]

The syndic, in other words, must have information that a specific, identified professional may have committed a specific offence.

76 For a syndic to engage in a valid investigation under s. 122, he or she must have information or a complaint regarding the possibility that a particular professional, or group of professionals, has committed an offence. The scope of investigations, it seems to me, is clearly limited by the individualized nature of disciplinary hearings. This individual disciplinary investigation, which is based on the receipt of a complaint about individuals or groups of individuals, is in contrast to the wider powers of the Bureau’s Inspection Committee which has responsibility for overseeing the entire profession and for investigating matters affecting it.

77 Where the legislature has intended to give broad investigatory powers, it has expressly done so. Section 112 of the Code defines the broad powers of an inspection committee:

112. The committee shall supervise the practice of the profession by the members of the order and it shall in particular inspect their records, books, registers, medications, poisons, products, substances, apparatus and equipment relating to such practice, and inspect the property entrusted to them by their clients. . . .

At the request of the Bureau, the committee or one of its members shall inquire into the professional competence of any member of the order indicated by the Bureau; the committee or one of its members may also act of his own initiative in this regard. . . .

In addition, the Bureau has regulation‑making powers, which allow it to implement global solutions, such as its recent revision of the Code of ethics of pharmacists, R.R.Q. 1981, c. P-10, r. 5, with regard to rebates and kickbacks.

78 In this case, the syndic, Jocelyn Binet, launched an investigation to try to identify members who had committed an infraction. Binet had no information regarding any specific, identifiable pharmacists. What he had was general information, obtained from as yet unconcluded legal proceedings against generic pharmaceutical companies, that unnamed pharmacists had been receiving kickbacks.

79 This kind of general compliance investigation is wholly analogous to what this Court found to be unauthorized in Richardson. As in Richardson, where the Minister had some general information relating to the non‑compliance of some traders in the commodities futures market, Binet had only a generic concern. And, as in Richardson, Binet’s investigation was in the nature of a “fishing expedition”, rather than a response to a specific complaint. If such expeditions are not permitted pursuant to the much broader and more general power of a Minister under s. 231 of the Income Tax Act, it is difficult to see how they could be permitted under s. 122 of the Code.

80 I would therefore find that the syndic did not have the information necessary to trigger his power of investigation under s. 122.

81 I agree with LeBel J., however, that, in circumstances where s. 122 applies, the syndic can obtain information and documents from third parties. The language used in the provision is sufficiently broad to encompass third parties, and I see nothing in the rest of the Code indicating that the provision should be interpreted more narrowly. But having concluded that the provision was not activated in the circumstances of this case, Binet had no derivative authority to invoke such authority.

82 Nor do I agree, with respect, that an injunction can be issued in these circumstances in the absence of the consent of the Attorney General. The enforcement mechanism envisioned in the Code is found in the interplay of ss. 114, 122, 188 and 191. Section 114, which is explicitly said to apply to the procedure under s. 122, prohibits a professional from refusing to furnish the documents requested pursuant to the Code. Section 188 makes contravention of any provision of the Code an offence. The combined effect of these two sections is that any third person who refuses to supply the syndic with documents pursuant to an investigation under s. 122 is committing an offence. This opens the door to the Attorney General to institute penal proceedings pursuant to s. 191, which states:

191. If a person repeats the offences contemplated in any of sections 188, 188.1, 188.1.1, 188.1.2, 188.2 and 188.3, the Attorney General or, following his authorization and upon a resolution of the Bureau or the administrative committee of the interested order, the interested order, after penal proceedings have been instituted, may require of the Superior Court an interlocutory writ of injunction enjoining that person or his officers, agents or employees to cease the commission of the offences charged until final judgment is pronounced in penal proceedings.

After pronouncing such judgment, the Superior Court shall itself render final judgment on the application for an injunction.

83 Binet submits that s. 751 of the Code of Civil Procedure, R.S.Q., c. C-25, empowers the Superior Court to order an injunction in this case. Section 751 states:

751. An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his senior officers, agents or employees, not to do or to cease doing, or, in cases which admit of it, to perform a particular act or operation, under pain of all legal penalties.

84 Although this provision provides the Superior Court with broad powers to order injunctions, the question is whether these powers yield to the particular procedures in the Professional Code. In my view, they do. I see the Code as exhaustively defining the remedies available when it is violated. Section 191 sets out the required procedures with respect to injunctions. The legislature has therefore expressed the view that injunctions can only be requested under the Code in particular circumstances, namely, when the Attorney General requests or authorizes them and when there has been the repeated commission of an offence. It is difficult to reconcile the stringency of the requirements in s. 191 with a syndic’s ability to circumvent them under s. 122 by ignoring the Code’s procedural constraints on obtaining an injunction.

85 There is disagreement between the Superior Court and the Court of Appeal about whether Pharmascience had already violated a provision of the Code when it refused to provide the requested documents, such that this latter condition in s. 191 was fulfilled. The Court of Appeal concluded that even if s. 122 applied to Pharmascience, the injunction granted was premature as there was no evidence that Pharmascience would not have complied with a request under s. 122 once the court had declared it to be subject to the section. Even assuming that the request for an injunction was not premature, it is clear from s. 191 that Binet was not permitted to ask the court for an injunction as the Attorney General neither authorized nor requested it.

86 I would therefore dismiss the appeal.

Appeal allowed with costs, Fish and Abella JJ. dissenting.

Solicitors for the appellant Jocelyn Binet: Lavery, de Billy, Montréal.

Solicitors for the appellant the Attorney General of Quebec: Bernard, Roy & Associés, Montréal.

Solicitors for the respondents Pharmascience Inc. and Morris S. Goodman: Davies Ward Phillips & Vineberg, Montréal.