



COURT OF APPEAL FOR ONTARIO

CITATION: Abdul v. Ontario College of Pharmacists, 2018 ONCA
    699
DATE: 20180828

DOCKET: C64587

Rouleau, Pardu and Roberts JJ.A.

BETWEEN

Salam Abdul

Applicant (Respondent)

and

Ontario College of Pharmacists

Respondent (Appellant)

and

Federation of Health
    Regulatory Colleges of Ontario

Intervener

Brian Gover, Aaron Dantowitz and Benjamin Kates, for the
    appellant

Neil M. Abramson and Robert Barbiero, for the respondent

Richard Steinecke and Natasha Danson, for the intervener

Heard: May 8, 2018

On appeal from the order of the
    Divisional Court (Justices Frances P. Kiteley, Robert J. Nightingale and Wendy
    M. Matheson), dated June 6, 2017, with reasons reported at 2017 ONSC 2613,
    quashing the decision of the Discipline Committee of the Ontario College of
    Pharmacists, dated July 26, 2016, with reasons reported at 2016 ONCPDC 21.


By the Court:

[1]

The appellant,
Ontario College
    of Pharmacists (the College)
, appeals from the
    order of the Divisional Court allowing the respondent members application for
    judicial review of the decision of the Colleges Discipline Committee.

Factual Background

[2]

In the fall of 2012, the College
    received information that the respondents pharmacy was taking back unused
    medications that had already been dispensed and re-dispensing them to different
    patients. That information came orally from Christine Donaldson, the pharmacy
    manager at the Hôtel Dieu Grace Hospital in Windsor and a member of the College
    Council, and in writing from G.V., a territory manager with Janssen Inc.

[3]

The College took no steps under s. 25
    of the
Health Professions Procedural Code
[1]
(the Code) in relation to G.V.s October 30, 2012
    written complaint although s. 25(6) of the Code required notice of the
    complaint to the member within 14 days of its receipt, and s. 28 required that
    the complaint be dealt with within 150 days. In February 2013, Maryan Gémus,
    the Colleges Manager of Investigations and Resolutions, called G.V. to explain
    the process and advise her that she could continue her complaint, or withdraw
    it and have it proceed as a complaint initiated by the Registrar. Through an
    email dated February 5, 2013, the complainant elected to withdraw her complaint
    so that it could proceed through the Registrar-initiated process. Ms. Gémus
    also spoke to Ms. Donaldson and obtained her information about the allegations
    against the respondent.

[4]

On March 1, 2013, Ms. Gémus submitted a
    memorandum to the Registrar in which she summarized the information obtained
    and requested that the Registrar determine whether the threshold for a
    Registrar-initiated investigation under s. 75(1)(a) of the Code had been met. In
    accordance with the provisions of s. 75(1)(a), the Registrar considered the
    information received about the respondent and signed an appointment of investigators,
    which the Inquiries, Complaints and Reports Committee (ICRC) approved. The
    investigation was summarized in a report to which the respondent was given an
    opportunity to reply. The respondent provided a cursory response. The ICRC
    referred specified allegations of professional misconduct, including the
    re-dispensing allegations, as well as other related billing improprieties, to
    the Discipline Committee. The College issued a notice of hearing and served it
    on the respondent.

Decision of the Panel of the
    Discipline Committee

[5]

At the hearing, the respondent brought
    a motion to quash the charges on the ground that the College had lost
    jurisdiction to prosecute the allegations by failing to abide by the complaints
    process mandated by its own legislation and instead improperly proceeded with a
    Registrar-initiated s. 75(1)(a) investigation after an informal and improper
    investigation by Ms. Gémus.

[6]

The majority of the Panel of the Discipline
    Committee (the Discipline Committee) dismissed the respondents motion. While
    noting that the Colleges handling of the complaint was irregular and that
    abuse of process may be a concern, the Discipline Committee did not find that
    Ms. Gémus carried out an informal or improper investigation or that quashing
    the allegations against the member was warranted. It concluded that there was
    no issue with the manner in which the request for a Registrars Investigation
    was handled: the College properly handled the information provided by the
    complainant; the respondent suffered no prejudice; and the College satisfied
    the procedural conditions for a referral pursuant to a Registrar-initiated
    investigation. The Discipline Committee determined that the College had
    jurisdiction to proceed with the adjudication of the charges.

[7]

The dissenting Panel member wrote that by offering the
    complainant the option to withdraw her complaint, the College was really
    seeking to redo and bury its processing failures by replacing the written complaint
    with a Registrar-initiated investigation grounded in the same subject-matter. The
    dissenting member found this constituted an abuse of process and a lack of
    fairness but did not find malice or bad faith on the part of the College.

Decision of the Divisional
    Court

[8]

The respondents application for judicial
    review was based on the Discipline Committees alleged failure to recognize
    either that non-compliance with the Code resulted in loss of jurisdiction, or
    that he had been so prejudiced that the proceedings amounted to an abuse of
    process.

[9]

The Divisional Court granted the
    respondents application and quashed the Discipline Committees decision,
    ordering that the College was prohibited from ever prosecuting the charges. The
    court held that the Code does not permit the avoidance of the mandatory
    complaints process under s. 25 by the withdrawal of a complaint, and that there
    is no statutory provision in the Code that permits a complainant to control the
    process by choosing to withdraw his or her complaint. Even if a complainant purports
    to withdraw a complaint, the College must still fulfill its statutory
    obligations by dealing with the written complaint in accordance with the
    procedural steps required by s. 25 of the Code.

[10]

The Divisional Court held that, in some
    circumstances, it may be appropriate for a Registrar-initiated investigation under
    s. 75(1)(a) to be undertaken in parallel to addressing a complaint, even when
    information in relation to it has already come to the Colleges attention by
    way of a complaint. However, the court determined that it was not appropriate
    in this case. Moreover, the court treated the Colleges departure from strict compliance
    with s. 25 of the Code as resulting in a loss of jurisdiction to refer the
    allegations against the respondent to the Discipline Committee for adjudication.
    The court concluded that the Discipline Committees determination that the
    matter had been properly handled was therefore unreasonable and set it aside.

[11]

This court granted the appellant leave to appeal on November 8,
    2017.

Analysis

[12]

The appellant and intervener submit
    that the Divisional Court erred in finding that the decision of the Discipline
    Committee was unreasonable and, in holding that, the College and the Discipline
    Committee had no jurisdiction to proceed with the charges against the
    respondent under s. 75(1)(a) of the Code.

[13]

We agree. As we will explain, the
    Divisional Court erred in concluding that a written complaint can never be
    withdrawn, and that the Colleges failure to proceed with a written complaint under
    s. 25 of the Code automatically results in a loss of jurisdiction to
    investigate and refer allegations of professional misconduct for adjudication.

[14]

The respondent maintains that the
    College lost jurisdiction in his case by its unexplained and total failure to
    comply with the Code, its governing statute. He argues that the Colleges total
    disregard for the Code engages principles of fundamental justice that underlie
    the communitys sense of fair play and procedural fairness. He points to the
    Colleges failure to follow the steps required under s. 25 with respect to the
    complaint and the lack of explanation for why it did not comply with these
    mandatory statutory requirements. He argues that the Divisional Court adopted a
    reasonable approach to the Code and made no error in quashing the Discipline
    Committees decision.

[15]

We do not accept these submissions. There
    is nothing in the Code that forbids the withdrawal of a written complaint by a
    member of the public when the College agrees and the complaint is taken up by
    investigation under another provision with full procedural safeguards provided
    to the accused member. The Discipline Committee was not compelled to conclude
    that the Code prohibited a complainant from withdrawing a written complaint,
    nor that the written complaint had to proceed under s. 25. Neither was the
    Discipline Committee required to hold that the Code precludes recourse to a
    Registrar-initiated investigation under s. 75(1)(a) where the same subject-matter
    has come to the Colleges attention by way of a complaint. Such an approach
    makes no practical sense in this case where the Registrar-initiated
    investigation included the allegations from Ms. Donaldson, as well as from the
    written complaint of G.V.

[16]

The interpretive principle of strict
    compliance with and construction of professional discipline legislation to
    ensure procedural fairness to accused members is not exclusive or overriding. The
    Discipline Committee is required to interpret its enabling statute with a view
    to protecting the public interest in the proper regulation of the professions:
Sazant
    v. College of Physicians and Surgeons of Ontario
,
    2012 ONCA 727, 113 O.R. (3d) 420, leave to appeal to SCC refused, [2012]
    S.C.C.A. No. 549, at para. 101. A balancing of these interests is required.

[17]

Similarly, the Divisional Courts
    concern that allowing the withdrawal of a complaint will give a complainant
    unlimited control over the process and its reliance on
McIntosh v.
    College of Physicians and Surgeons of Ontario
(
1998), 169 D.L.R. (4th) 524 (Div. Ct.) for that proposition
    are misplaced. The present case bears no resemblance to the circumstances of
McIntosh
in which the complainant was permitted to manipulate the
    process to the detriment of the member. In that case, the complainant
    repeatedly requested that the College of Physicians and Surgeons alternatively
    proceed and hold a complaint instigated by her in abeyance. As a result, the
    accused member did not receive notice of the complaint for years and the matter
    was referred to the Discipline Committee only after considerable delay. The
    Divisional Court determined that the real unfairness through the denial of
    natural justice to the accused member justified an order of prohibition.
    Notwithstanding the egregious procedural unfairness in that case, it is
    important to note that the Divisional Court did not create an absolute bar to
    the withdrawal of a complaint. Although the conduct before it amounted to a
    flagrant violation of the intention of the legislation, the Court recognized
    the need for flexibility in the complaint process and that there may be some
    accommodation given to the complainant from time to time, for appropriate
    reasons:
McIntosh
,

at para.
    34. The present case is not a case where the complainant controlled the
    process.

[18]

The Divisional Court appears to have referenced
    this courts decision in
Katzman v. Ontario College of Pharmacists
(2002), 223 D.L.R. (4
th
) 371 (Ont. C.A.), as mandating
    a strict construction/compliance approach to professional discipline
    legislation. In our view, the passage in the Divisional Courts reasons cited
    from
Katzman
, at para. 29, supports a
    broader interpretative approach, namely, the balancing of the public interest
    and the fair hearing rights of the accused member: [
W]
hile the discipline
    process against a health professional must recognize the public interest
    involved, care must also be taken to accord that professional the full due
    process that the disciplinary legislation was intended to provide.

[19]

That said, the investigative and
    prosecutorial discretion of the College to permit the withdrawal of a written
    complaint is not absolute. There may be instances where the withdrawal of a
    written complaint and the manner of its handling by the College may amount to
    an abuse of process and bar prosecution of charges because of a failure to accord
    procedural fairness to an accused member.

[20]

The issue in the present case,
    therefore, is whether the Colleges irregular treatment of G.V.s complaint and
    allowing the withdrawal of the complaint constituted a breach of its duty of
    fairness to the respondent despite a properly commenced Registrar-initiated
    investigation, encompassing the complaint made by G.V.  If it did, then
    proceeding with the Registrar-initiated investigation would be an abuse of
    process and the College would have exceeded its jurisdiction, as found by the Divisional
    Court.  However, in our view, it did not.

[21]

The Colleges failure to process the
    written complaint under s. 25 of the Code does not automatically result in the loss
    of jurisdiction to investigate the concerns raised by G.V. and others. As this
    court explained in
Volochay v. College of Massage Therapists of
    Ontario
, 2012 ONCA 541, 111 O.R. (3d) 561, at
    paras. 48, 58 and 59, the notice and other provisions under s. 25 codify
    well-established rules of natural justice and statutorily impose a duty of
    procedural fairness on the College, even at the investigatory stage of its
    processes. However, as this court wrote in
Volochay
, at para. 58, a failure to follow them does not automatically
    cause a loss of jurisdiction to process a complaint:

[A] question of procedural fairness
    or natural justice is not a true question of jurisdiction in the narrow sense
    that phrase is used in
Dunsmuir
. Whether
    a tribunal breached its duty of fairness is not relevant to whether it had
    authority to begin its inquiry. A breach of the duty of fairness only arises
    after the inquiry has lawfully begun. Though a tribunal that breaches its duty
    of fairness may be said to have abused or exceeded its jurisdiction, this is
    not the same thing as having no jurisdiction to even start an inquiry.

[22]

While the Discipline Committee noted
    that the handling of G.V.s written complaint was irregular, it did not find
    that the irregular handling of the complaint, the withdrawal of the complaint,
    or the subsequent Registrar-initiated process amounted to an abuse of process so
    as to warrant quashing the allegations. As required, the Discipline Committee
    undertook a balancing of the public interest in the investigation and
    prosecution of charges against the respondent, with the requirement that he
    receive procedural fairness, at para. 47:

The Panel
    agrees that, on the surface, abuse of process by the College may be a concern
    given the requirement to process the information in a timely manner. However,
    given the seriousness of the allegations against the Member and the potential
    for harm to the public, the irregular process used by the College in this case
    is not sufficient to warrant quashing the allegations against the Member.

[23]

The Discipline Committee concluded that
    the respondents rights were not denied. This conclusion was reasonable and
    open to the Discipline Committee on the record. There is no evidence of
    prejudice to the respondent. While the respondent was not advised of the
    complaint until 16 months after it was filed, there is no evidence that his
    ability to defend himself was in any way impaired by appellants failure to
    give notice within 14 days of the filing of the complaint.  While there are
    procedural differences between a complaint and a Registrar-initiated investigation
    process, both ensure basic procedural fairness to accused members. Both involve
    the ICRC in screening a concern about a member and affording fairness to that
    member, including that the member receives notice of the matters in issue and
    has the right to make representations to the ICRC before it makes a determination
    as to whether to refer allegations to the Discipline Committee.

[24]

Here, the respondent was given the
    opportunity to respond to the allegations before the ICRC disposed of the
    matter, including its consideration of whether to refer the allegations to the
    Discipline Committee. The Discipline Committee noted that the respondent
    provided a response with very little detail or substantive arguments
    addressing the Investigators detailed findings. That the respondent chose to
    provide what the majority found was simply inadequate to address the
    seriousness of the Investigators findings does not mean that the process was
    unfair.

[25]

The present case is entirely
    distinguishable from
Henderson v. College of Physicians and Surgeons
    of Ontario
(2003), 65 O.R. (3d) 146 (C.A.).
    There, the College ignored the express procedure set out in ss. 38 and 40 of
    the Code for the amendment of a notice of hearing. The College attempted to
    present a newly amended notice of hearing following the commencement of a
    hearing in circumstances that the Code specifically forbade. Here, there is no
    such statutory prohibition.

[26]

Here, the Discipline Committee also concluded
    that the Registrar-initiated complaint was handled properly by the College, the
    Registrars request for the appointment of an investigator under s. 75(1)(a)
    was appropriate, the ICRC approved the appointment of the investigator, and the
    ICRCs request to the Discipline Committee to convene a discipline panel to
    review the allegations against the member then followed.

[27]

As long as there is no procedural
    unfairness to the accused member, the choice to accept the withdrawal of a
    complaint and to proceed with the Registrar-initiated process cannot be
    criticized. The Colleges failure to abide by its own procedural guidelines did
    not create any prejudice. The hallmark is prejudice. There was none here. There
    is no dispute that the College followed all required steps for a referral
    arising from a Registrar-initiated investigation and that it provided all the
    procedural protections afforded by those steps. In these circumstances, the
    decision by the Discipline Committee that due process was followed and that it
    had the jurisdiction to proceed was reasonable. There was no basis for
    appellate intervention by the Divisional Court.

Disposition

[28]

Accordingly, we allow the appeal, set
    aside the order of the Divisional Court and reinstate the July 26, 2016 order
    of the Colleges Discipline Committee.

[29]

The appellant is entitled to its
    partial indemnity costs of the appeal in the agreed upon amount of $20,000,
    including HST and disbursements. The intervener seeks no costs of the appeal.

[30]

The appellant is also entitled to its
    partial indemnity costs of the appeal before the Divisional Court in the amount
    of $25,000, including HST and disbursements.

Released: August 28, 2018 P.R.

Paul
    Rouleau J.A.

G. Pardu J.A.

L.B. Roberts J.A.





[1]

Regulated Health Professions Act, 1991
,
S.O. 1991, c. 18,
    Schedule 2.


