Beware of Expedited Processes

Regulators, understandably, wish to avoid the legal complexity and expense of discipline hearings whenever possible. For example, many regulators can administratively suspend or revoke the registration of registrants who fail to pay their fees, do not renew their registration, or fall short in completing their continuing development obligations. Such administrative actions typically involve just a written notice to the registrant with no right to an oral hearing. However, when such “expedited” or “administrative” proceedings involve the exercise of judgment resulting in discipline-type determinations and outcomes, courts will often scrutinize them carefully.

Take for example, Thorkelson v The College of Pharmacists of Manitoba et al, 2023 MBCA 69. In that matter a pharmacist’s internet businesses were involved in the international distribution of drugs. One such drug, through no fault of the pharmacist, was missing an active ingredient. The pharmacist wrote an internal email to staff that was somewhat misleading as to the group of businesses’ connection to the drug. The pharmacist was convicted in the United States for an unusual crime called “misprision of a felony”. The US Court imposed 60 months probation and a $250,000 fine, which effectively ended the pharmacist’s internet businesses.

The regulator employed an expedited process, separate from its discipline procedures, for scrutinizing the conviction on the basis that it was relevant to the person’s suitability to practise pharmacy. The process did not involve an oral hearing. The pharmacist was only able to provide written and oral submissions through a lawyer. The regulator found that the criterion had been met and chose to revoke the pharmacist’s licence.

The pharmacist brought an application to court challenging the decision. The Court determined that: given the expedited nature of the process followed by the regulator, the language of the legislation, and the impact on the pharmacist, a new hearing with fresh evidence was to be offered. This procedure was different from appeals from discipline hearing matters which decisions were to be based on the record before the discipline panel and accorded more deference.

The Court found that the conviction was relevant to the pharmacist’s suitability to practise the profession.

However, the sanction of revocation (called cancellation) should be treated similarly to a penalty in a discipline matter. The Court applied discipline penalty principles, including the lesser degree of seriousness of the offence (noting that the pharmacist’s businesses were not involved in the drug’s deficiencies), the consequences already suffered by the pharmacist, the pharmacist’s clean discipline history, and the contributions of the pharmacist to the profession (he had served on the regulator’s Council). The Court conclude that revocation was not comparable to other disciplinary sanctions for similar conduct and was inappropriate. The Court set aside the revocation, concluding that the pharmacist had already been punished adequately.

On appeal to the Court of Appeal, this decision was upheld.

Of course, the extent of a court’s intervention will depend on the circumstances and the language of the enabling provision. For example, in Ontario the statute enabling the regulation of teachers has a provision (section 30.2(8)) explicitly authorizing its discipline committee to impose mandatory minimum sanctions for conviction of certain sexual offences without giving the registrant an opportunity to participate in a hearing or even to make submissions.

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