In Jaffer v. Ontario (Health Professions Appeal and Review Board) the Ontario Divisional Court (ONSC) provided a number of lessons on the process of judicial review. The applicant for judicial review was a member of the Ontario College of Pharmacists against whom a complaint had been made by a customer/patient’s family doctor. He was also the designated manager of the pharmacy. One of his pharmacists dispensed 100mg of morphine when the elderly patient’s prescription was for only 10 mg. The medication was dispensed in a blister pack. The patient took the medication and suffered significant medical consequences, including a hospital stay and a potential brain injury.
The complaint was investigated by the Inquiries, Complaints and Reports Committee (ICRC) of the College. The ICRC decided that a caution was warranted. The member appealed to the Health Professions Review and Appeal Board (HPARB). He was not successful there either and sought judicial review of the decision.
The Essential Dispute
The outcome of the error was clearly horrible and one that should not be repeated. The member’s position was that the focus of the complaint should be on the pharmacist who made the error and not on him as the supervisor. The member felt that the policies and procedures then in place were more than adequate and that the result was due to human error, rather than systemic issues.
Lesson Number One: We Must Learn from our Mistakes
Although there may be blame to discuss concerning the dispensing pharmacist, this did not eliminate the manager as a contributing factor, maybe even a determinative factor. The opportunity presented by the error to improve processes at the pharmacy was missed, and the policies and procedures were not as robust as they needed to be to prevent such errors in the future. As a result, the ONSC concluded that the decisions of the respective Boards were reasonable.
The ICRC had found the Applicant’s response to the complaint to be of concern as showing little insight when he asserted that the processes in place at his pharmacy were adequate and not in need of change, thereby missing an opportunity for him to improve them.
The ICRC is required to uphold the standards of the profession and act in the interests of public safety. It identified shortcomings in the Applicant’s practice and in his response to the complaint. Its decision to require him to complete the Medication System Safety Review for a Community Pharmacist On-Site Assessment program and to issue him a verbal caution is supported by the record and was reasonable.
Lesson Number Two: Affidavits on Judicial Review are Rare
Applications for judicial review are based on the evidentiary record. The member filed an affidavit with his application. Its use was objected to by counsel for the respondents. In the end, it was not relied upon and would not have been admitted. Affidavits on judicial review are admissible only in very limited circumstances, such as where there is a complete absence of evidence on an essential point, where the evidence addresses a breach of natural justice that cannot be proven by the record, or to provide general background or context to the issues on the application based on Canadian National Railway Co. v. Teamsters Canada Rail Conference (2019) (ONSC).
In addition, the evidence must be otherwise admissible; for example, it must not consist of improper hearsay or opinion evidence.
Lesson Number Three: Can the HPARB and the ICRC Respond to Defend their Decisions?
There is no hard and fast rule about whether a tribunal should be granted standing and the scope of its participation. Courts are to exercise their discretion in deciding what role if any, the tribunal should play. The two competing principles that generally govern this determination are the importance of having a fully informed adjudication on the one hand and the importance of maintaining tribunal impartiality on the other hand.
The Supreme Court of Canada (SCC) in Ontario (Energy Board) v. Ontario Power Generation (2015) set out the factors a court is to consider in deciding the appropriate scope of a tribunal’s participation on an application for judicial review:
In accordance with the foregoing discussion of tribunal standing, where the statute does not clearly resolve the issue, the reviewing court must rely on its discretion to define the tribunal’s role on appeal. While not exhaustive, I would find the following factors, identified by the courts and academic commentators cited above, are relevant in informing the court’s exercise of this discretion:
(1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.
(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes.
(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns.
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