Regulator’s procedure may vary if member not prejudiced by change
Because there was no procedural unfairness, the Ontario College of Pharmacists (the “College”) was not required to abide by its own procedural guidelines in the circumstances.
Administrative law – Decisions reviewed – College of Pharmacists – Abuse of process – Judicial review – Procedural requirements and fairness – Appeals – Pharmacists – Disciplinary proceedings – Professional misconduct or conduct unbecoming
Abdul v. Ontario College of Pharmacists,  O.J. No. 4421, 2018 ONCA 699, Ontario Court of Appeal, August 28, 2018, P.S. Rouleau, G.I. Pardu and L.B. Roberts JJ.A.
The College received information in 2012 that the pharmacy was taking back unused medications that had already been dispensed and re-dispensing them to different patients. The College did not take steps under s. 25 of the Health Professions Procedural Code (the “Code”) in relation to the written complaint, although the Code requires that notice of a complaint be given to the member within 14 days of receipt, and s. 28 requires the complaint to be dealt with within 150 days. The complainant withdrew her complaint by way of email several months later so that the matter could proceed through the Registrar-initiated process. Following an investigation and a response from Mr. Abdul, the matter was referred to the Discipline Committee. The College issued a notice of hearing and served it on Mr. Abdul.
At the hearing, Mr. Abdul sought to quash the charges on the grounds that the College had lost jurisdiction to prosecute the allegations by failing to abide by the complaints process mandated by its own legislation and instead improperly proceeded with a Registrar-initiated investigation. The majority of the Panel of the Discipline Committee dismissed Mr. Abdul’s motion, concluding the investigation was not informal or improper. The Panel further held that no prejudice was suffered by Mr. Abdul as a result of the manner in which the College handled the investigation.
On Mr. Abdul’s application, the Divisional Court quashed the Discipline Committee’s decision, holding that the Code does not permit the avoidance of the mandatory complaints process under s. 25 by the withdrawal of a complaint, and that there is no statutory provision in the Code that permits a complainant to control the process by choosing to withdraw his or her complaint. The College’s departure from strict compliance with s. 25 of the Code was treated as resulting in a loss of jurisdiction to refer the allegations against Mr. Abdul to the Discipline Committee for adjudication. The College appealed this decision.
The Ontario Court of Appeal held that the Divisional Court erred in concluding that a written complaint can never be withdrawn, and that the College’s failure to proceed with a written complaint under s. 25 of the Code automatically resulted in a loss of jurisdiction to investigate and refer allegations of professional misconduct for adjudication.
The Court held that there was nothing in the Code that forbid the withdrawal of a written complaint by a member of the public when the College agrees and the complaint is taken up by investigation under another provision with full procedural safeguards provided to the accused member. Further, the Discipline Committee was required to interpret its enabling statute with a view to protecting the public interest in the proper regulation of the profession.
Nonetheless, the Court held that the discretion of the College to permit the withdrawal of a written complaint is not absolute, and there may be instances where the withdrawal of a written complaint and the manner of its handling by the College may amount to an abuse of process. The question was whether in this case the College’s irregular treatment of the complaint constituted a breach of its duty of fairness. The Court held that it did not. Mr. Abdul was given an opportunity to respond to the allegations. As long as there is no procedural unfairness to the accused member, the choice to accept the withdrawal of a complaint and to proceed with the Registrar-initiated process could not be criticized. The College’s failure to abide by its own procedural guidelines did not create any prejudice. The appeal was therefore set aside, and the Discipline Committee’s decision was reinstated.
This case was digested by JoAnne G. Barnum, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact JoAnne G. Barnum at firstname.lastname@example.org.
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