Make those Restrictions Clear

Regulators often negotiate, or even impose, restrictions on registrants in various contexts including registration with conditions, resolution of complaints and discipline orders. In Rak v. Ontario College of Pharmacists, 2022 ONSC 3269 (CanLII), the registrant consented to a discipline restriction requiring supervision by another registrant when “dispensing to” or advising or counselling a minor. This order followed criminal convictions for “computer luring, sexual interference and criminal harassment regarding minors, who were not pharmacy patients”. When investigating another registrant, College investigators observed the registrant interacting with minors and their parents without supervision. After an investigation, including reviewing video evidence, the registrant was referred to discipline.

The discipline panel found the registrant had breached the previous discipline restrictions in respect of four minors. However, on appeal the Court set aside three of those findings because the evidence was consistent with the registrant merely interacting with the parents in the presence of the minors. In only one case (where the registrant altered a record of counselling a minor to indicate counselling of a parent) was the finding upheld. The Court indicated that the discipline panel erred in applying a broad definition of “dispensing”. The language of the restriction referred to dispensing to the minor and not in respect of the minor or in the presence of a minor. The Court also interpreted the restriction in accordance with its purpose of protecting the public from direct and unsupervised contact with minors.

The court rejected the registrant’s argument that the investigation was illegal from the outset because representatives of the regulator made observations without an appointment in respect of the conduct of the registrant. The Court affirmed an earlier case indicating that “regulators have an implied authority to do an informal investigation where they do not need the powers accompanying a formal appointment to investigate.”

Regulators should be as clear as possible in the wording of any restrictions that they negotiate or impose on registrants.

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