A pharmacist (“Farbeh”) appealed the findings of the disciplinary panel (“Panel”) of the College of Pharmacists of British Columbia (“College”) and was successful in having the decisions in three out of five counts reversed

25. January 2012 0

Administrative law – Decisions of administrative tribunals – College of Pharmacists – Pharmacists – Disciplinary proceedings – Competence – Billing matters – Professional misconduct / conduct unbecoming – Penalties and suspensions – Judicial review – Right to legal counsel – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter

Farbeh v. College of Pharmacists of British Columbia, [2011] B.C.J. No. 2409, 2011 BCSC 1676, British Columbia Supreme Court, December 14, 2011, G.D. Burnyeat J. (In Chambers)

Farbeh was a registered pharmacist with the College and, as a result of a site inspection conducted by the College on October 16, 2008, an Investigation Committee of the College suspended both the pharmacy license of Farbeh’s employer and Farbeh’s registration as a pharmacist. On February 10, 2009, a Consent Order of the Supreme Court reinstated the registration of Farbeh as a pharmacist with certain practice restrictions applying. A further audit of the practice was conducted on March 29, 2009 and, as a result of the practice audit report, the registration of Farbeh was suspended effective April 3, 2009. On September 25, 2009, the College delivered to Farbeh an amended citation pursuant to s. 37 of the Health Professions Act, R.S.B.C. 1996, c. 183 (the “Act”). Hearings were held between October 13, 2009 and December 16, 2009 to deal with seven counts including counts alleging that Farbeh practiced incompetently, engaged in professional misconduct by submitting responses when she knew or ought to have known that the information provided therein was misleading and failing to comply with the standards of practice as set out in the bylaws. The hearing panel delivered its decision on February 25, 2010 and Farbeh was found guilty on five of the seven counts. The penalty imposed included the cancellation of Farbeh’s registration as a pharmacist and the assessment of $35,000 in costs against her to be paid before she could seek a reinstatement of her registration. Farbeh appealed both the findings of guilt and the penalty decision.

The Court noted that the standard of review applies both to judicial review applications and to statutory rights of appeal from decisions of administrative tribunals, citing Salway v. Association of Professional Engineers and Geoscientists of British Columbia (2010), 3 B.C.L.R. (5th) 213 (C.A.). The Supreme Court of Canada simplified the standard of review to be applied to judicial review of administrative decisions to either correctness or reasonableness: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190. The Court was satisfied that the standard of reasonableness applied to the decisions of the Panel. The purpose of the College is to regulate the standards of practice of pharmacists in British Columbia. The disciplinary process of the College plays a central role in enforcing professional standards and in the protection of the public. In the circumstances, the Court was satisfied that it was appropriate to accord a degree of deference to the decisions of the Panel.

The Court rejected an argument raised by Farbeh that the Panel had failed to adequately advise her regarding her right to counsel. The Court noted that Farbeh was fully aware of the potential consequences that could arise from an adverse decision of the Panel. She had previously been represented and was advised of her right to counsel in the amended citation. Farbeh clarified for the Panel that she did not want an adjournment. The Court found that this was not a case where the Panel ignored clear signals from Farbeh that she wanted an adjournment to get counsel. In the circumstances, it was not procedurally unfair to proceed with the hearing. Farbeh made an informed decision to appear without legal representation.

The Court reviewed the reasonableness of the decisions reached with respect to counts 1 and 2 which related to allegations that Farbeh practiced incompetently as a pharmacist at AYC Pharmacy and failed to manage the pharmacy in accordance with the relevant bylaws. The Panel had found Farbeh guilty of these charges based upon admissions. The Court noted that any admission must be stated in clear terms and unambiguous citing British Columbia Ferry Corp. v. T&N, plc, (1993), 31 C.P.C. (3d) 379 (B.C.S.C.). The Court was satisfied that standards set out in the British Columbia Ferry Corp. case relating to the required clarity of admissions for pleadings also applied to admissions in an administrative tribunal setting. In reviewing the statements which the Panel had relied upon as admissions, the Court found that the statements were not clear enough to be considered admissions. The Court further rejected arguments that the Panel had heard “ample evidence to support the charges” noting that there was no guidance in the reasons which would allow an adequate review of the “ample evidence” which was said to apply to the charges. In the circumstances, the Court could not conclude that the interpretation of the Panel was justified, transparent and intelligible with respect to its decisions on counts 1 and 2.

In reviewing counts 3 and 5, relating to the existence of practice deficiencies and a failure to comply with the standards of practice, the Court found that there was ample evidence before the Panel to support the conclusion that there was a pattern of acknowledging deficiencies and indicating that they would be corrected but making no corrections to the deficiencies. There was also ample evidence to support that there was a failure to comply with the standards of practice as set out in the bylaws of the College. Counts 3 and 5 were therefore upheld.

In reviewing count 1 of a second citation relating to making a representation of her status as a pharmacist despite being suspended to the Bank of Montreal, the Court noted that this representation appeared to have been made by Farbeh’s daughter who may have been impersonating her mother. In the circumstances, the Court was satisfied that it was not open to the Panel to make a finding that Farbeh herself had made the representation and this count was reversed.

In view of the mixed findings, the question of penalty was referred back to the College. Farbeh was entitled to three-fifths of her costs throughout the proceedings.

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