The Nova Scotia Court of Appeal upheld a tribunal decision that suspended a pharmacist for two years for false, illegal prescriptions. Although the suspension was at the higher end of the scale, the Appeal Court found the penalty fell within the range of permissible outcomes under the reasonableness standard of review.

Administrative law – Decisions of administrative tribunals – College of Pharmacists – Pharmacists – Disciplinary proceedings – Investigations – Penalties and suspensions – Judicial review – Compliance with legislation – Evidence – Jurisdiction of court – Standard of review – Reasonableness simpliciter – Costs

Fadelle v. Nova Scotia College of Pharmacists, [2013] N.S.J. No. 90, 2013 NSCA 26, Nova Scotia Court of Appeal, February 22, 2013, J.E. Fichaud, D.P.S. Farrar and P. Bryson, JJ.A.

Ms. Fadelle is a pharmacist. She owns and has operated a pharmacy in Cumberland County. The Nova Scotia College of Pharmacists (the “College”) charged Ms. Fadelle with professional misconduct under the Pharmacy Act. The essence of the charges was that Ms. Fadelle created false prescriptions and unlawfully dispensed or diverted controlled substances or narcotics, and had kept false or misleading records. Of the ten allegations, the Hearing Committee determined 6.5 of the allegations were proven and that these infractions constituted professional misconduct, conduct unbecoming and contraventions of provisions of the Pharmacy Act and other acts and regulations. Ms. Fadelle’s license to practice was suspended for two years, conditions were imposed on her re-entry, she was ordered to pay a $10,000 fine, she was ordered to pay costs of $100,000 and there was to be publication and disclosure of the Hearing Committee’s decisions.

Ms. Fadelle appealed to the Nova Scotia Court of the Appeal under s.58(1) of the Pharmacy Act which permitted an appeal “on any point of law”. Ms. Fadelle alleged that the Hearing Committee ignored relevant evidence, misapprehended the evidence, reached incorrect inferences and conclusions in coming to its conclusion. She also sought to add fresh evidence to the record that allegedly showed her employee was responsible for the infractions. The issue before the Appeal Court was whether the Hearing Committee committed an error of law under s. 58(1) and acted unreasonably under the administrative standard of review.

At the outset, the Appeal Court noted that s.58(1) of the Pharmacy Act permitted an appeal only “on any point of law.” Therefore, Ms. Fadelle’s factual grounds went beyond the Court’s appellate jurisdiction, except insofar as the appeal on issues of fact suggest that the Hearing Committee made an arbitrary finding based on evidence (which is an error of law). Similarly, the fresh evidence Ms. Fadelle sought to admit to which the College objected to, was not admitted as it related to issues of fact.

The Appeal Court found that “reasonableness” governs the articulation and application of the standards of professional conduct by a professional disciplinary tribunal. Reasonableness means the reviewing court respects the Legislature’s choice of a decision maker by analyzing that tribunal’s reasons to determine whether the result, factually and legally, occupied the range of possible outcomes.

The Court dismissed all Ms. Fadelle’s grounds of appeal, holding there was evidence supporting the Hearing Committee’s findings; they did not act in the absence of evidence. The Court found that the Hearing Committee’s findings occupied the range of possible outcomes under the reasonableness standard of review.

The Court also dismissed the sanctions appeal. The Court found that the penalties were within the range of permissible outcomes under the reasonableness standard of review.

The Hearing Committee acknowledged that Ms. Fadelle’s two-year suspension from practice is at the higher end of those reviewed in similar cases. However, the Hearing Committee characterized the conduct as “at the most serious end of the scale” that forms “part of a pattern of behaviour”. Ms. Fadelle committed new infractions while she was negotiating a settlement for earlier infractions. In the Committee’s view, this highlighted the need for a significant penalty. The Appeal Court found that the Hearing Committee drew sanctioning principles that were both consistent with its statutory mandate under the Pharmacy Act, and available in the menu of disciplinary precedent in the profession.

Regarding the $100,000 costs award, the Hearing Committee calculated the costs order as 65% of the full costs of the proceeding. This percentage represented the 6.5 charges the Hearing Committee found to be proven out of ten charges laid by the College. While the Hearing Committee noted it did not have any evidence regarding Ms. Fadelle’s ability to pay the award, on balance they did not conclude that the allocation of costs would restrict a registrant from disputing charges of misconduct. The Appeal Court found this reasonable.

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