Publication of Remediation Directions Does not Alter their Remedial Nature

For many regulators the issuing of various forms of advice or cautions or the imposition of educational measures has become an important part of the complaints process. Many enabling statutes now authorize regulators to impose remedial measures on a mandatory basis without first going through a discipline hearing. Courts have upheld this authority, indicating that these are protective measures which do not constitute a penalty. In 2017 legislative amendments have required that such directions be posted on the public register as part of the transparent nature of professional regulation. Does the posting of remedial directions alter their fundamental nature?

In Geris v. Ontario College of Pharmacists, 2020 ONSC 7437 (CanLII), http://canlii.ca/t/jc4gk the Court said no:

It is true, as the applicant argues, that cautions and remedial orders regarding attendance at education programs are now placed on the public register. This was not the case when a number of the leading cases dealing with such orders were decided. However, the fact that the Legislature felt it would be in the public interest to make health disciplines bodies publish remedial orders of the kind issued by the ICRC in this case does not fundamentally alter the preventive, educational and remedial nature of such orders. I cannot agree that an entirely different approach must be taken now that remedial orders appear on the public register.

The Court also found that procedural fairness had been provided in respect of the degree of the investigation conducted, the time it took for the matter to be investigated and in terms of the practitioner’s awareness of the issues. The Court also found that the decision adequately recognized the practitioner’s supervisory role at the pharmacy and his lack of personal involvement in the individual dispensing error that occurred.

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