A caution issued by Newfoundland and Labrador Pharmacy Board against a pharmacist was set aside by court

The Applicant Pharmacist (Mr. Peddle) was successful in an application for judicial review. His licensing body (the Respondent, the Newfoundland and Labrador Pharmacy Board) had issued a caution against him after a complaint investigation. The Court set aside the caution.

Administrative Law – Bias – College of Pharmacists – Conduct unbecoming – Decisions of administrative tribunals – Disciplinary proceedings – Investigations – Judicial Review – Jurisdiction – Jurisdiction of committee – Professional governance and discipline – Professional misconduct – Reasonableness simpliciter – Standard of Review

Peddle v. Newfoundland and Labrador Pharmacy Board[2016] N.J. No. 170, 2016 NLTD(G) 85, Newfoundland and Labrador Supreme Court – Trial Division – General Division, May 20, 2016, A.E. Faour J.

The Applicant, Mr. Gregory Peddle, (“Mr. Peddle”), is a pharmacist. He was the subject of a complaint made to the Respondent licensing body, the Newfoundland and Labrador Pharmacy Board (the “Board”).

The complaint was made in March 2014 by a patient. The patient alleged Mr. Peddle acted inappropriately in refusing to dispense the full amount of her prescribed medication for financial reasons. The Registrar of the Board asked Mr. Peddle for his response to address several issues including apologies to the patient and the profession. Mr. Peddle wrote directly to the patient and also responded to the Board. He took issue with the tone of the Registrar’s initial correspondence suggesting that directives had already been issued against him. The Registrar responded to advise that the earlier correspondence had been sent in the context of trying to resolve the complaint between the Board, the patient, and Mr. Peddle.

The Complaints Authorization Committee of the Board (the “Committee”) subsequently proceeded with an investigation of three issues: (1) the reason for refusing to dispense the full amount of the prescription, (2) the allegation that Mr. Peddle was rude, and (3) Mr. Peddle’s suggestion the process was flawed. On the first issue, the investigator concluded the amount of the inventory was consistent with Mr. Peddle’s evidence. On the second issue, the investigator concluded that harsh words were exchanged by the parties. On the third issue, the investigator concluded the actions of the Registrar were inappropriate. The Committee reviewed the investigator’s report. The Committee found in favour of Mr. Peddle on the first issue, but criticized him for his manner of interaction (i.e., on the second issue). The Committee decided to issue a letter of caution to Mr. Peddle.

Mr. Peddle applied for judicial review of the Committee’s decision.

The Court considered the statutory function of the Committee as determining the applicable standard of review. The Committee has a gatekeeper role to decide whether complaints should be referred to a discipline committee. Also, the Committee can make a final decision in favour of a respondent by dismissing a complaint. The Committee can also make an adverse decision against a respondent even where the conduct does not warrant a referral to a discipline committee; this was done by the Committee for Mr. Peddle. The Court found the applicable standard was reasonableness but a final decision requires more to satisfy that standard.

The Court held the Committee’s decision on the first issue was reasonable. The Court held the Committee’s decision on the second issue was unreasonable because it failed to identify the applicable standard and properly base its decision on the available evidence. Although a “caution” was not as serious as a referral to the discipline committee, the Court noted the issuance of a caution was not a trivial matter for Mr. Peddle.

The Court also considered the actions of the Registrar. Mr. Peddle argued the Registrar exceeded her jurisdiction by effectively making a finding of guilt in her first letter to him. She then participated in the Committee’s subsequent deliberations. The Court held the Registrar was authorized by statute to attempt a resolution of the complaint, and her letter was written in pursuit of that role. While the letter could have been worded better, the Court held the Registrar did not exceed her jurisdiction and there was no reasonable apprehension of bias.

The Court set aside the Committee’s decision to issue a caution. The matter was not remitted to the Committee for further consideration.

The Court dismissed the part of the application alleging the Registrar exceeded jurisdiction and her presence at the Committee meeting constituted a reasonable apprehension of bias.

The Court granted costs to Mr. Peddle.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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