The Court of Appeal allowed the appeal by the College of Pharmacists of British Columbia from a decision of a chambers judge on an application for judicial review. The Appeal Court found that the chambers judge erred in remitting a matter back to the College’s Discipline Committee for rehearing solely on the issue of penalty and not on the merits in circumstances where the judge found the respondent pharmacist’s admissions to be equivocal. Having found that the admissions of professional misconduct were equivocal and therefore could not be relied upon, the chambers judge ought to have considered whether a new hearing or admission of further evidence was necessary in the interest of justice. As a result, the appeal was allowed and the question of liability on the two counts of professional misconduct was remitted back to the Disciplinary Committee of the College of Pharmacists.

Administrative law – Decisions of administrative tribunals – College of Pharmacists – Pharmacists – Professional misconduct or condut unbecoming – Disciplinary proceedings – Penalties – Public interest – Judicial review – Hearings – Conduct of hearings – Evidence

Farbeh v. College of Pharmacists of British Columbia, [2013] B.C.J. No. 483, 2013 BCCA 59, British Columbia Court of Appeal, February 1, 2013, M.E. Saunders, P.A. Kirkpatrick and N.J. Garson JJ.A.

This was an appeal with leave by the College of Pharmacists of British Columbia (the “College”) from a judgment in chambers on judicial review of a decision of a panel of the College’s Disciplinary Committee. The respondent pharmacist was found guilty on various counts of professional misconduct and her registration as a pharmacist was cancelled. The chambers judge reversed the decision of the Disciplinary Committee on three counts and upheld the Committee’s decision on two counts. He remitted the question of penalty only to the Disciplinary Committee. On appeal, the College argued that the chambers judge erred in failing to remit the question of liability on two of the counts for a new hearing.

The respondent pharmacist was employed in a community pharmacy in the downtown eastside of Vancouver. Following an on-site inspection of the pharmacy, the College suspended both the pharmacy’s license and the respondent pharmacist’s registration as a pharmacist. The College subsequently charged the respondent pharmacist with various counts of professional misconduct, including practicing incompetently, breaching the College’s Bylaws, and having deficiencies in her practice. The hearing before the Disciplinary Committee took place over the course of approximately 10 days. At the outset of the hearing, the respondent pharmacist provided the Committee with a letter which was treated as an admission to Counts 1 and 2. She was also asked during the hearing to clarify which counts in the citation she admitted. Based on the admissions contained in her letter and the answers to the questions at hearing, the Disciplinary Committee found the respondent pharmacist guilty of 5 counts, including Counts 1 and 2 which were the subject of the appeal. The Disciplinary Committee later rendered its decision on penalty, cancelling the respondent pharmacist’s registration and assessing costs of $35,000.

On judicial review by the respondent pharmacist, the chambers judge concluded that her admissions in her letter to the Disciplinary Committee were equivocal when viewed in the context of the questions and answers given by her at the hearing. As a result, the admissions could not be relied upon and there was an insufficient basis for finding of guilt on these two counts. By way of remedy, the chambers judge remitted the question of penalty only (and not of liability) to the Disciplinary Committee.

On appeal by the College, it was argued that the chambers judge erred in failing to remit the question of liability to the Disciplinary Committee. The College said that this was demonstrative of the judge’s failure to exercise his discretion in a principled way and that it was in the public’s interest that the Disciplinary Committee be permitted to conduct a hearing into these allegations of professional misconduct. The appropriate remedy was to remit the matter to the College, either to the existing Panel or a newly appointed Panel, for a new hearing on the merits of Counts 1 and 2. Absent such an order, there would be no hearing into the allegations of serious incompetence made against the respondent pharmacist.

The Court of Appeal agreed and allowed the appeal. Because the disciplinary committee proceeded on the basis of an equivocal admission, there was no discussion of the evidence as to the respondent pharmacist’s liability on Counts 1 and 2. The chambers judge erred by failing to consider whether a new hearing or admission of further evidence was necessary in the interests of justice, pursuant to section 40(8) of the Health Professions Act, R.S.B.C. 1996, c. 183. Given the College’s mandate to protect the public’s interest, it was an error of the judge to foreclose determination of the merits on those two counts. As a result, the appeal was allowed and the question of liability on Counts 1 and 2 was remitted to the Disciplinary Committee of the College.

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