It is now settled law that a court will not halt a regulator’s investigation of a registrant unless there are exceptional circumstances. Disrupting the investigation delays an important public protection process, increases the expense for everyone, wastes court resources, and prevents the court from having all relevant information for adjudicating the appropriateness of the investigation. A recent court decision re-affirmed that:
Exceptional circumstances justifying an exception to the ordinary rule have been described as “very rare” and as “ones that bring the rule of law into disrepute, which goes beyond breaching procedural fairness or even acting without jurisdiction”….
In El Kabbani v Ontario College of Pharmacists, 2026 ONSC 5820 (Div Ct), the Saskatchewan regulator for pharmacists made a formal complaint to the Ontario regulator about the conduct of four Ontario registrants operating “a high-risk compounding pharmacy in Regina”. Rather than processing the complaint, the Ontario regulator used a separate process to initiate a Registrar’s investigation into the concerns. A report of the investigation was provided to the registrants. Meanwhile, the Saskatchewan regulator initiated its own discipline hearing against two of the registrants. Those registrants filed portions of the Ontario investigation reports as part of their defence in the Saskatchewan discipline hearing. The Ontario regulator sent the registrants a lawyer’s letter, indicating that such use of its report was improper and intimated that it might open another investigation on that issue.
When the pharmacists sought a court order requiring the Ontario regulator to end its investigation, the Ontario Court dismissed their application as premature because there were no exceptional circumstances. It made the following points:
- The conversion of the formal complaint into a Registrar’s investigation was not inherently improper. While complaint investigations have different procedural protections (e.g., complaints require prompt notification of the parties and have a presumptive timeline of 150 days), that does not preclude the regulator from choosing the Registrar’s investigation option. Any argument that the choice of investigative route amounted, in the individual circumstances, to an abuse of process or deprivation of procedural fairness should first be taken up with the Discipline Committee, if the matter is referred there.
- The lawyer’s letter indicating the possibility of a further investigation because of the registrant’s use of the Ontario investigation report in Saskatchewan was “ill advised”. The provision it relied upon likely did not apply outside of Ontario. The regulator “expressly and appropriately withdrew the comment” before the Court. The registrants can raise the issue before the Discipline Committee, if allegations are referred there, but this did not constitute an exceptional circumstance.
- The registrants argued that the Ontario regulator assisted the Saskatchewan regulator in conducting an unfair investigation and prosecution. The Court said that this was an issue for the Saskatchewan regulator and courts to address. It did not constitute an exceptional circumstance in respect of the Ontario investigation.
This decision highlights that it will be quite difficult for a registrant to persuade a court that an investigation should be halted because of exceptional circumstances.
