Ought to Have Known

A common legal phrase is that an individual “knew or ought to have known” of certain events. In discipline matters, intentional misconduct generally attracts a much more serious sanction than a failure to have noticed some circumstances. However, failure to notice can still result in serious sanction.

In Bijanzadeh v. Ontario College of Pharmacists, 2022 ONSC 3578 (CanLII), https://canlii.ca/t/jr45t a pharmacist was found to have been duped to issue over five thousand prescriptions for hundreds of thousands of units of dangerous drugs (oxycodone tablets, oxycocet tablets, and fentanyl patches) over a period of more than three years. The drugs were issued to a small number of fake patients through forged prescriptions. More details can be found at: Ontario (College of Pharmacists) v. Bijanzadeh, 2021 ONCPDC 24 (CanLII), https://canlii.ca/t/jgrhw.

Despite the fact that the registrant satisfied both the police and the regulator that they had no knowledge of the trafficking scheme, the discipline panel concluded, and the Court supported, that the success of the scheme “was the result of her failure to take basic professional steps to discharge her obligations as a licensed pharmacist.”

The Court upheld the imposition of a 14-month suspension and significant remedial terms. The sanction was well within the range of reasonable and was not clearly unfit. In terms of the impact on the registrant, the Court said:

I see no merit to the argument that the College failed to take account of the appellant’s personal circumstances. The nature of her business was apparent to the College in the context of the liability decision: the appellant owned and operated a pharmacy. She will not be able to continue with that business given her 14-month suspension and subsequent five years of conditions on her license. It is obvious that the overall penalty will have a profound effect on her career, and she will be unable to continue with her current business. On the other hand, the penalty will permit the appellant eventually to return to work in her chosen field, and to resurrect her career, if she applies herself diligently.

Significant sanctions do not require knowing participation in the misconduct.

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