Pharmacists Professional Misconduct: The scope of conditions a Discipline Committee can impose when there is a finding of professional misconduct

20. August 2019 0

The court considered the nature of the conditions the Discipline Committee of the Ontario College of Pharmacists can impose when there has been a finding of professional misconduct. The court found the Discipline Committee had the authority to limit the ability of a pharmacist to act as a director of a corporation or hold other proprietary interest in a pharmacy.

Administrative law – Decisions reviewed – College of Pharmacists – Judicial review – Appeals – Compliance with legislation – Public interest – Standard of review – Reasonableness – Pharmacists – Billing matters – Professional misconduct or conduct unbecoming

Khalil v. Ontario College of Pharmacists, [2019] O. J. No. 3161, 2019 ONSC 3738, Ontario Superior Court of Justice, June 18, 2019, K.E. Swinton, J.A. Thorburn and W.D. Newton JJ.

The appellant, Ragaie Khalil, appealed from a penalty decision of the Discipline Committee of the Ontario College of Pharmacists. The narrow issue before the court on appeal was whether the Discipline Committee had the authority to impose certain conditions on his certificate of registration related to his ability to hold proprietary interest and a corporate position within a pharmacy.

The appellant is a pharmacist. He practised at a pharmacy where he was also the designated manager and sole shareholder and director of the corporation that owned the pharmacy. In June 2013, the appellant’s pharmacy was selected for an audit by the Ministry of Health and Long-Term Care (the “Ministry”). The audit found the pharmacy had made a number of unsubstantiated claims under the Ontario Drug Benefit Program. The appellant ultimately repaid these false claims. The College subsequently commenced an investigation which found further unsubstantiated claims. The appellant eventually admitted the allegations of professional misconduct before the Discipline Committee. The parties also agreed on the discipline order and costs, except for two conditions: a three-year prohibition on the appellant having any proprietary interest in a pharmacy or acting as a director of a corporation that owns a pharmacy.

The sole issue on appeal was whether the Discipline Committee, pursuant to the provisions of the Health Professions Procedural Code (being Schedule 2 of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18) (the “Code”), had authority to impose these types of conditions as part of a disciplinary order arising from a finding of professional misconduct.

The court applied a standard of reasonableness. Although this was apparently disputed by the plaintiff – he argued correctness ought to apply – the court dealt with the issue in a summary fashion. As for the substantive issue, the court rejected the appellant’s argument and concluded that the Discipline Committee’s decision fell within the range of reasonableness. First, the court observed that section 51(2)3 of the Code, which sets out the discretion to impose terms and conditions on a certificate of registration of a pharmacist who has committed professional misconduct, were “very broad” and there is “no express limitation” that would limit their authority to apply terms relating to ownership of shares or acting as a director. The court also noted that this was consistent with the overall intent of the Code and the importance of a broader public interest given the public nature of the Ontario Drug Benefit Program. The court also rejected the appellant’s argument that the Drug and Pharmacies Regulation Act, R.S.O. 1990, c. H.4 (the “DPRA”) provides a complete code with respect to the consequences of ownership and direction of a corporation operating a pharmacy when there has been a license suspension. The court agreed with the Discipline Committee that these sections dealt with ownership and operation of a pharmacy, which is distinct from the pharmacist’s certificate of registration. Accordingly, the court rejected the appellant’s complete code argument.

In the end, the court agreed with the Discipline Committee’s interpretation of section 51(2) of the Code and found that it had the authority to impose the two conditions as part of its order. The court dismissed the appeal.

This case was digested by Adam R. Way, 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 Adam R. Way at [email protected].

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