The Respondent, a pharmacist, had his license cancelled by the Appellant College of Pharmacists. The pharmacist successfully appealed this decision to a judge of the Manitoba Court of Queen’s Bench. The College was unsuccessful in appealing the judge’s decision to the Manitoba Court of Appeal

27. September 2023 0

Administrative law – Decisions reviewed – Council for Pharmacists – Investigations – Judicial review – Appeals – Procedural requirements and fairness – Standard of review – Correctness – Hearings – Pharmacists – Professional misconduct

Thorkelson v. College of Pharmacists of Manitoba, [2023] M.J. No. 222, 2023 MBCA 69, Manitoba Court of Appeal, August 9, 2023, D.M. Cameron, J.A. Pfuetzner and S.I. Perlmutter A.C.J. (ad hoc)

The respondent, Kristjan Eric Thorkelson, is a pharmacist (the “Pharmacist”).  The Pharmacist was the beneficial owner of a group of related companies, Group of Companies (“ Group”).  The group included LP (“Canada Drugs”) and River East Supplies Ltd. (“River East”).  River East carried on business in the United Kingdom.

In 2011, River East purchased Avastin, a drug to treat cancer.  River East sold the Avastin to a US-based medical clinic.  River East and the Pharmacist soon learned that the Avastin lacked the active ingredient.  The UK regulator determined there was no wrongdoing by River East or the Pharmacist.  Health Canada also did not take any action.  The Appellant, College of Pharmacists of Manitoba, investigated the matter in 2012 and did not pursue any professional misconduct charges against the Pharmacist.

In 2015, the United States Department of Justice issued indictments against the Applicant, River East, Canada Drugs, and another entity, and several Group employees.  In 2018, the Pharmacist entered a plea bargain in Montana, in which he plead guilty to an offence in Montana known as “misprision of a felony” (failing to report that someone has committed a felony).  A necessary element of the offence is to actively conceal the felony from another person.

The Pharmacist admitted that, in 2012, he sent an email on behalf of Group that said Canada Drugs has no connection to selling Avastin.  This email was technically accurate, but if he was writing on behalf of Group, it was not accurate because River East was part of the Group and it had been involved in selling Avastin.  As part of the plea bargain, the Pharmacist admitted this was an act of attempted concealment.  The Pharmacist was put on probation for 60 months and issued a $250,000 fine.

In 2019, the College investigated the conviction.  The Pharmacist attended a meeting with the Council of the College.  The Pharmacist was advised this was not a hearing.  His counsel attended and provided written and verbal representations.  The Council directed the registrar of the College to cancel all of the Pharmacist’s licenses.

The Pharmacist appealed the Council’s decision to the court.  The application judge determined the appeal was a new hearing with no deference owed to the Council.  The application judge agreed with the Council that the felony conviction was an offence relevant to the Pharmacist’s suitability to practice pharmacy.  However, the application judge held that cancellation of the Pharmacist’s license was not a suitable penalty.  The application judge ordered costs to the Applicant.

The College appealed the judge’s decision to the Manitoba Court of Appeal.

The College argued that the application judge incorrectly reviewed the case as a fresh hearing.  The Court of Appeal accepted the Pharmacist’s argument that the application judge correctly interpreted the statutory schedule when concluding the appeal was heard as a new matter.  Therefore, on this appeal to the Court of Appeal, the standard of review was correctness for questions of law.  For questions of mixed fact and law, the standard of review was palpable and overriding error.

The College argued the application judge erred in considering disciplinary decisions when considering the appropriateness of cancelling the Pharmacist’s license.  The Court of Appeal held that the application judge made no reversible error in applying the relevant sentencing considerations for professional misconduct.

The College argued the application judge erred in considering the Montana court’s sentencing.  The Court of Appeal rejected this argument because it is relevant to sentencing to consider whether the Pharmacist already suffered other serious financial or other penalties.

The College argued the application judge erred when concluding that comments from the prosecutor and judge in the Montana proceeding transcript were not proper evidence.  The Court of Appeal agreed that the transcript comments were not evidence; they were comments made after the plea was entered.  Therefore, the Court of Appeal held the application judge did not commit a reviewable error for not considering those comments.

The College argued the application judge erred in awarding $8,000 in costs to the Pharmacist when he only sought $2,505 based on the tariff items.  The Court of Appeal held this raised an issue of procedural fairness because the application judge did not alert the parties to this possible increase and request submissions.  The Court of Appeal allowed this ground of appeal, but did not change the amount of costs awarded by the application judge.

The Court of Appeal dismissed the appeal, with costs awarded to the Pharmacist.

This case was digested by Scott J. Marcinkow, 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 Scott Marcinkow at [email protected].

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