SUPERIOR COURT OF JUSTICE
B E T W E E N:
ONTARIO COLLEGE OF PHARMACISTS
Applicant
- and -
THI KIM TIEN NGUYEN
1726878 Ontario INC. (KIM PHARMACY)
Respondent
P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE P. J. CAVANAGH
on December 2, 2016 at TORONTO, Ontario
APPEARANCES:
L. Kinkartz
J. Dougherty
Counsel for Ontario College of Pharmacists
T. Nguyen
Agent for Kim Nguyen (Not Appearing)
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
REASONS FOR JUDGEMENT 1
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered:
December 2, 2016
Transcript Completed:
Ordering Party Notified:
December 5, 2016
December 5, 2016
FRIDAY, DECEMBER 2, 2016
R E A S O N S F O R J U D G E M E N T
The Ontario College of Pharmacists has commenced this application seeking the relief set out in the notice of application. In addition, the College has brought a motion heard today seeking interim and interlocutory injunctive relief and a compliance order against the respondent, Nguyen and 1726878 Ontario Inc., carrying on business as Kim Pharmacy. I will refer to the respondent, Nguyen, as Nguyen and the numbered company as Kim Pharmacy.
The motion was brought without notice and heard on that basis. However, as advised by counsel for the College, the representative of the respondent, Dr. Nguyen, who is the husband of the respondent, Nguyen, is here today and was provided with a courtesy copy of the notice of application and the two volumes of the College’s application record. I have heard in full the submissions of counsel for the College and reviewed carefully the affidavit evidence in support of the motion. I have also reviewed the factum filed by the College in support of the motion and accept the submissions made in that factum. I have also heard orally, Dr. Nguyen who opposes the order today. He takes the position that he only received the material yesterday and has not had time to carefully review it and prepare responding material and does not want to have an order made today because of the short notice that he has received of the materials used on this motion.
Because the motion is made without notice, under the rules it must be extended after ten days and I have agreed with counsel for the College that the motion to extend the order will be heard on December the 13th, 2016, at ten o’clock in the morning and I have advised Dr. Nguyen of that return date. To the extent that a further extension of a few hours is needed for the effect of the ex parte order, it will be effective until order of the court on the motion heard for the extension of the order on December the 13th.
The interim relief that has been sought by the College is set out in paragraphs 1 and 2 of its factum in general terms and more particularly in paragraph 1, A, B, C, D, E, and F of the notice of motion, herein. In substance, the motion is for an interim and interlocutory injunction to prevent a former College member, Nguyen, from continuing to hold herself out as a pharmacist and engage in the practice of pharmacy when she no longer holds a certificate of registration from the College and is not entitled to practice as a pharmacist. The College also seeks an interim injunction to prevent the corporation owned and controlled by Nguyen, and that is the numbered company that I have referred to as Kim Pharmacy, from continuing to operate a pharmacy in manner that contravenes the Drug and Pharmacies Regulation Act. In addition, the College seeks an interim order suspending Kim Pharmacy’s certificate of accreditation and permitting the College to enter the pharmacy, seize the drugs and the pharmacy and patient records on the premises and remove them to a secure location that is not accessible to the public until such time as the pharmacy is being operated legally in accordance with the Drug and Pharmacies Regulation Act, the Pharmacy Act and the Regulated Health Professions Act.
The facts that are relied on by the College in support of its application and particularly in support of this motion are set forth with particularity in its factum beginning at paragraph 7 and concluding on paragraph 60. The evidence that is cited in the factum is evidence from Katherine Neufeld in her affidavit sworn November 30, 2016 and evidence, also, from Andrew Hui in an affidavit sworn November 29, 2016 that are found in volume one of the motion record. The factum contains cites to this evidence to support the factual statements that are contained in the facts section of the factum.
The factum describes the College’s discipline proceedings that were brought against Nguyen arising from issues relating to the Ministry of Health and Long Term Care, Ontario Drug Benefit Program, which is a program that is administered by the said Ministry. The discipline proceedings arose from an audit of Kim Pharmacy that uncovered significant discrepancies that are described more fully in the College’s factum. This led to disciplinary proceedings at which Nguyen was represented by counsel for a time. She then switched counsel to Mr. Trudell who attended the hearing and, as disclosed in paragraph 32 of the factum, withdrew as counsel that day. The facts section of the factum describes the events of that day which resulted in an undertaking that was given by Nguyen that is included as an exhibit to the affidavit evidence by which she undertook to resign permanently as a member of the College and surrender irrevocably her certificate of registration effective September 5, 2016. The particulars of the undertaking are found at Exhibit Z to the affidavit of Katherine Neufeld. In exchange for this undertaking the College agreed to a stay of the disciplinary proceedings that had been brought against the respondent, Nguyen.
The period of time between the acceptance of the undertaking and settlement of the disciplinary proceedings on May 5 and 6 of 2016, and the effective date for the undertaking to come in to effect on September the 5th of 2016, was to allow the respondent Nguyen to take all of the steps that would be needed to comply with the undertaking which, in particular, would involve either selling the pharmacy or closing it. In other words, she had to take steps to ensure that she was not practicing as a pharmacist and that the pharmacy known as Kim Pharmacy was complying with the obligations under the laws to be owned and operated by a licenced pharmacist.
The factum contains the particulars of evidence which discloses that Nguyen continued to practice and operate Kim Pharmacy even after September 5, 2016. There was no order sought or obtained setting aside her undertaking or preventing its enforcement. The respondent, Nguyen, ceased to be a member on September 5, 2016 in accordance with her undertaking and on September 6, 2016 her registration status was automatically changed to “RESIGNED” on the College’s public register.
The evidence discloses that one of the College’s community practice advisors attended the pharmacy on September 6, to determine whether it was open. The practice advisor saw Ms. Nguyen change the sign in the pharmacy to indicate that it was open. The practice advisor explained to her that she was no longer a member of the College and that she could not process anything through Kim Pharmacy’s computer. The advisor also indicated that the cabinets and cage should all be locked and nobody should be in the dispensary. According to the evidence, Ms. Nguyen indicated that she understood this.
According to the summary of facts in the factum, the College again wrote to Ms. Nguyen on September 13, 2016 to inform her that she had resigned from the College and remind her that pursuant to the terms of her undertaking she had agreed to sell her interest in Kim Pharmacy or permanently close the pharmacy. The College indicated that it would be looking into whether there was a breach of the undertaking and that it would take any follow up steps required to enforce the undertaking.
The summary of facts discloses that when a College investigator, Mr. Hui, attended Kim Pharmacy on November 11th, the pharmacy was open. Ms. Nguyen was the only employee in the pharmacy and, identifying herself as a pharmacist, she sold Mr. Hui a bottle of Tylenol with codeine, Tylenol number one, which is a narcotic. The evidence is that because Ms. Nguyen ceased to be a member of the College on September 5, 2016, she is not entitled to perform the controlled acts set out in Section 27(2)(8) of the Regulated Health Professionals Act or in Section 149 of the DPRA as set forth in paragraph 54 of the College’s factum. By selling Mr. Hui a narcotic, the respondent Nguyen violated these prohibitions. The College’s materials identify the specific sections of the legislation of which the respondent Nguyen and Kim Pharmacy are in violation.
The submission that was made on behalf of the College is, based on this evidence, that the respondent, Nguyen’s, conduct demonstrates that she is undeterred by the College’s processes and that because she is continuing to practice as a pharmacist without being registered, that another order from the accreditation committee suspending her certificate of accreditation would not alter her behavior. For that reason, the College has concluded that applying to this court for a compliance order is the most effective mechanism for fulfilling its obligation to protect the public interest.
I have been provided with a summary of the applicable legal principles that operate in the circumstances in part three of the College’s factum. In summary, the College submits that an interim injunction/ compliance order should be granted to prevent the respondent, Nguyen, from practicing as a pharmacist while not registered as a member of the College and to prevent Kim Pharmacy from operating illegally without a designated manager, without a pharmacist present in the pharmacy, without the majority of directors being registered pharmacists and without a pharmacist owning a majority interest in the pharmacy corporation. According to the submissions of the college, the continued operation of Kim Pharmacy contrary to the requirements of the applicable legislation and the illegal practice of pharmacy by Ms. Nguyen put the public at risk.
The College has submitted that the test for injunctive relief under Section 87 of the Health Professions Procedural Code, and Section 162 of the Drug and Pharmacies Regulation Act contemplate the College applying to a judge of this court for injunctive relief or a compliance order when an individual is violating the statutory provisions and the regulations under those acts.
I have considered the usual criteria for an interlocutory injunction, that is, whether A, there is a serious issue to be tried. B, the applicant will suffer irreparable harm and C, the balance of convenience favours the applicant. In my view, the evidence before me is clear that there is a serious issue to be tried. This is a low threshold that is assessed on the limited review of the merits of the case. Here the respondent, Nguyen, entered into an undertaking on May 4, 2016 under which she tendered her registration from the College effective September 5, 2016. As part of that undertaking she agreed never to reapply for membership and to permanently dispose of her interest in Kim Pharmacy or permanently close the pharmacy by the date of her retirement. I take that to mean the date of her resignation. As of September 5, 2016, the respondent, Nguyen, had not taken any steps to close Kim Pharmacy or to dispose of her interest in that pharmacy. To this day, according to available records, she remains the sole director and sole shareholder of the numbered company that operates as Kim Pharmacy.
The violations of the statutory provisions and regulations that the College relies upon are set forth at paragraph 73 of its factum. The violations of the statute by Kim Pharmacy that the College has provided evidence of are listed at paragraph 75 of the College’s factum. With respect to the question or irreparable harm, counsel for the College has provided authority that where a statutory injunction is sought under the applicable statutes the College is not required to demonstrate that damages would be an inadequate remedy or to lead evidence that irreparable harm would in fact result if an injunction is not ordered. Because of the serious harm that can result from an unlicensed health care practice, irreparable harm is presumed.
Counsel for the College relied on the decision of Justice Spies in College of Opticians of Ontario and John Doe 1, decision cited at 2006 CanLII 42599. The relevant passages are reproduced at paragraph 77 of the College’s factum. I accept this submission and I accept that in cases involving contraventions of the law relating to the provision of public health care services, that there is no need to demonstrate that damages would be an inadequate remedy or to lead evidence of irreparable harm that would result if the injunction is not ordered. I accept that there is a strong public interest in ensuring that the College’s authority as a professional regulator is respected and that only individuals who are members of the College engage in the practice of pharmacy and that pharmacies operate in accordance with the law.
The College made submissions concerning the balance of convenience beginning at paragraph 83 of its factum. The College submitted that any hardship suffered by an illegal practitioner as a result of a statutory injunction will generally not outweigh the public interest in having the law obeyed. The College submits that this is particularly so in the case of legislation regulating health care professions where the purpose of the legislation is to protect the public interest. The College submits that it will be an extremely rare case where the balance of convenience favours not granting an injunction in these circumstances. The College relies on authority cited at paragraph 83 of its factum.
The College has submitted that the course of conduct of the respondent, Nguyen, indicates that she is knowingly violating the law by practicing illegally. The College submits that this respondent has been less than forthright in her dealings with the College in an attempt to continue to practice and relies upon the statements supported by the evidence set forth in paragraph 86 of its factum. The College has submitted that the only conclusion that can be drawn from the respondent, Nguyen’s, course of conduct is that she is deliberately violating the legislation and the terms of her undertaking. The College cites the conversation described in the affidavit of Mr. Hui, between Mr. Hui and Ms. Nguyen and submits that this evidence shows that she does not accept that she is no longer entitled to practice as a pharmacist or own and operate a pharmacy. She described her situation as “complicated.”
For these reasons, I am satisfied that an interim order is proper and necessary to protect the public interest and to prevent Ms. Nguyen from continuing to hold herself out as a pharmacist and engage in the practice of pharmacy when she is no longer registered as a pharmacist with the College and not entitled to practice as a pharmacist. I am also satisfied on the evidence and based on the submissions made by the College, that an interim order should be made suspending Kim Pharmacy’s certificate of accreditation.
In addition to this interim relief the College has asked for an interim order authorizing the College to enter Kim Pharmacy, seize pharmaceutical drugs there as well as the pharmacy and patient records on the premises and remove them to a secure location that is not accessible to the public until such time that the pharmacy is being operated legally and in accordance with the applicable statutes and regulations. In its factum at paragraph 89, the College has referenced Sections 162(1) and 162.1(2) of the Drug and Pharmacies Regulation Act which provide the court with authority to make any other order it sees fit in addition to issuing a compliance order. In reliance upon these provisions the College submits that the public interest requires ancillary orders to be made on an interim basis and on an interlocutory basis, pending argument of the main application. The interim orders that the College requests are described in paragraph 90 of its factum and include an interim order permitting College personnel to enter Kim Pharmacy, seize all drugs on the premises and remove them to a secure location that is not accessible to the public until such time as the respondent, Nguyen, and Kim Pharmacy satisfy the court that the pharmacy is being operated in accordance with applicable statutes and regulations and until such time as Ms. Nguyen permanently disposes of her majority interest in Kim Pharmacy. The College also seeks the interim order for seizure of pharmacy and patient records as described above.
The College cited the decision of the Supreme Court of Canada in Pharmascience Inc. and Binet 2006 SCC 48, [2006] 2 SCR 513. In that case the Supreme Court considered the role of the court in protecting the public interest where it wrote as follows:
This Court has on many occasions noted the crucial role that professional orders play in protecting the public interest. . . 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 (citation omitted). 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 paragraph 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 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.
I accept that these comments of the Supreme Court of Canada apply in this case.
In the circumstances, I have concluded that it is in the public interest to ensure that the respondent, Nguyen, is not allowed to continue to practice as a pharmacist and to dispense either prescription medication or any other medication that would be subject to statutory or regulatory controls and would require Ms. Nguyen to be a licenced pharmacist. The evidence of Mr. Hui shows that the public may be at risk because this shows that a narcotic was dispensed to him without the supervision of a licenced pharmacist.
For these reasons, I grant an interim order that is effective until the return of the motion to extend the interim order on December the 13th, 2016. In the circumstances, I dispense with the requirement for any undertaking in damages but this may be revisited at the request of the respondents at the return of the motion for an extension order. I also make an order validating service of the notice of application and the two volumes of the motion record for the interim and interlocutory relief. Dr. Nguyen has acknowledged today that he has received copies of these documents and that he will share them with the respondents. I have urged him to also retain counsel and share these documents, as well as the order that I will sign today, with a legal representative to represent the interests of the respondents.
Therefore, order to go in the form of the draft order submitted which I have signed with minor revisions marked thereon. As requested, costs of this motion will be determined by the judge who hears the motion for an extension of this order.