Following the Legislative Scheme

In legislation, the word “may” sometimes means “must”.

In Vey v Newfoundland and Labrador Pharmacy Board, 2022 NLCA 55 (CanLII) the registrant was disciplined for failing to cooperate with a quality assurance practice site assessment. The registrant appealed on the ground that the practice assessor was not properly appointed. The Court of Appeal agreed with the registrant and set aside the finding.

Under the legislation, the regulator was required to operate a quality assurance program. The statute also said that the regulator’s Board “may” appoint a quality assurance committee. That committee was authorized to appoint assessors to conduct assessments of registrants’ practices. The regulator decided to have the Board directly operate the program rather than doing so through the committee.

The Court concluded that the legislative scheme required the regulator to operate the quality assurance program through the quality assurance committee. In reviewing the entire scheme and its context, the Board’s authority to appoint the quality assurance committee was intended to be mandatory. Further, there was no authority for the Board, itself, to appoint assessors or to direct practice assessments. The provision authorizing access to confidential patient records, protected by separate privacy legislation, applied only to committee-appointed assessors. The provisions requiring cooperation were, on their face, applicable to the committee and its assessors. The registrant had no obligation to cooperate and any discipline based on non-cooperation “was grounded in conduct by the Board for which it lacked authority. In the result, there is no basis on which to find that [the registrant] engaged in conduct deserving of sanction.”

This decision may be an example where Courts, previously deferring to a regulator’s interpretation of their own enabling statute, now requires the regulator to correctly interpret even its home legislation in accordance with Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653.

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