Issuing Guidance to the Profession

New Brunswick’s highest court has affirmed that it is an inherent part of a regulator’s role to issue guidance to practitioners about the regulator’s interpretation of the legislation.

The facts of the case can be summarized as follows. The Applicant was marketing a diet protocol through pharmacies. The program involved pharmacists performing an assessment of clients, recommending the protocol, and monitoring the client progress. The regulator issued an advisory statement saying that this approach (not naming the company) risked pharmacists straying beyond their scope of practice, in effect practising dietetics. The advisory statement also suggested that a pharmacist participating in such an activity risked using their professional status to market a commercial product. As a result, fewer pharmacists became involved in the protocol and the Applicant’s revenues were reduced. The Applicant sought judicial review to set aside the advisory statement.

In Laboratories C.O.P. Inc. v. New Brunswick College of Pharmacists, 2020 NBCA 74 (CanLII), the Court said:

The Statement was nothing more than a reminder or guideline confirming the existing scope of practice coupled with a warning not to stray into areas reserved for the expertise and training of other health care professionals. Professional bodies charged with administrative and regulatory duties over their members are entitled to issue such statements without express statutory authority and without attracting judicial review….

The Statement is neither a decision nor, by necessary implication, an invalidly enacted regulation.

The Court also found that the Applicant had no standing to seek judicial review of the regulator’s guidance. The commercial interest of the Applicant did not afford it access to a public law remedy.

This case confirms that policy statements by regulators are an appropriate regulatory action and that not everyone has standing to challenge them even if the statement affects their commercial interests.

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