Administrative law – Decisions reviewed – Minister of Health – Judicial review – Practice and procedure – Discovery – Professions – Pharmacists – PharmaCare Enrollment Agreement – Access to information – Production of records
Community Outreach Pharmacy Ltd. v. British Columbia (Minister of Health),  B.C.J. No. 1836, 2017 BCSC 1634, British Columbia Supreme Court, September 15, 2017, K.N. Affleck J.
The Pharmacy had applied for judicial review of a decision of the Minister refusing to enroll it in PharmaCare and of a decision to repay about $1.4 million dollars following an audit.The Pharmacy sought production of several documents that were considered by the Minister in making its decision, including sampled claims that were copied by the Minister and used in the audit, and a number of other classes of documents including all correspondence about the decision-making processes including by government lawyers beyond legal advice. The Pharmacy also sought production of documents showing the number of pharmacies enrolled by the Minister who had been found to have circumvented Ministry policies, the number of pharmacies temporarily enrolled by the Minister whose enrollments were subsequently considered under a cancellation of enrollment process, and documents showing error rates found in audits in pharmacies from 2012 to the present.
In the judicial review, the Pharmacy contended that it was not given an opportunity to make submissions in the preparation of the draft audit report, nor sufficient time to respond to the draft report findings. The Minister gave notice to the Pharmacy of its intention to deny the application for enrollment in PharmaCare on the basis of the interim findings of the draft audit. The Pharmacy’s requests for more time to respond to the issues raised were refused, as were many of its requests for information and documentation. The Pharmacy argued that it had no means to determine how the decision-making processes were structured or how responsibility was divided amongst the participants because of the lack of documents.
The Minister argued that the purpose of judicial review would be subverted by the breadth of the order that was being requested and that it is the role of a court on judicial review to consider only the record which was before the decision-maker. The court found that although the Pharmacy was only entitled to documents that form part of the “record of proceedings”, the Pharmacy must rely entirely upon the Minister to disclose those documents which the Minister views as part of the record. If the Minister takes a narrow view of the record, the petitioner is necessarily left in the dark.
The record of the proceeding was too minimal. It would be difficult for the court to determine if the two decisions (enrolment denial and audit findings), were lawfully made. The Minister argued that the Pharmacy should not be entitled to a discovery of documents that might be available only by bringing an action by notice of civil claim. The decision-maker or -makers were uncertain and that the process by which the decisions were made was opaque. The Pharmacy had no practical means to challenge the audit or the enrollment decisions without many of the documents described. Documents that were not considered by the decision-makers were not required to be disclosed and would not form part of the record of proceedings. However, documents considered by the decision-makers were ordered disclosed.
The documents generally showing the number of pharmacies enrolled by the Minister which had been found to circumvent the Minister’s policies, or the number of pharmacies temporarily enrolled by the Minister as part of the denial of enrollment process whose enrollments were reconsidered, and documents showing error rates found in audits of other pharmacies, were irrelevant and not ordered produced.
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