Administrative law – Decisions of administrative tribunals – College of Pharmacists – Pharmacists – Professional governance and discipline – Rules and by-laws – Change of by-laws – Public interest – Incentive programs – Judicial review – Evidence – Compliance with legislation – Standard of review – Reasonableness simpliciter
Sobeys West Inc. v. College of Pharmacists of British Columbia,  B.C.J. No. 1957, 2014 BCSC 1414, British Columbia Supreme Court, July 25, 2014, C.E. Hinkson C.J.S.C.
The petitioners, Sobeys and Thrifty Foods, brought a petition to the BC Supreme Court seeking an order quashing certain bylaws referred to as the “incentive prohibition bylaws” which prohibit customer incentive programs in pharmacies. The petitioners had customer rewards points or Air Miles programs in place at their stores which were captured by the impugned bylaws. The petitioners argued that the bylaws are unreasonable because there is no evidence of actual harm that could justify a broad prohibition of incentives; they arguably went beyond what could be required to address the theoretical harms raised by the College of Pharmacists and the net effect of the bylaws was harmful to the public interest.
The parties agreed that the standard of review to be applied to the College’s decisions respecting the passage of the bylaws was reasonableness. The College’s position was that the granting of incentives to patients tends to instigate bad practice by interfering with the patient-pharmacist relationship because incentives have monetary value and impact the behaviour of patients and pharmacists, which is particularly true for vulnerable populations of patients such as low income earners, drug abusers and disabled persons. The College also argued that the use of “bonus days”, where on certain days a multiple of the usual reward would be given for purchases, could potentially cause an unmanageable increase in workload for on-duty pharmacists, which could increase the likelihood for them to make errors in filling prescriptions, and that they might encourage customers to defer filling a needed prescription until the next bonus day. The College also argued that incentive programs could cause customers to repeatedly transfer their prescriptions from one pharmacy to another, thus undermining their continuity of care, and could encourage customers to procure more drugs than required in order to obtain the incentive reward.
Chief Justice Hinkson decided that the College’s decision to pass the bylaws fell outside the range of possible acceptable outcomes, given the competing public interests and the College’s ability to pass bylaws that are narrower in scope to address their reasonable concerns. The bylaws were found to be overbroad and their net effect was found to be harmful to the public interest in obtaining pharmacy services and prescriptions at the lowest price. The Court ordered that the bylaws be struck down.
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