Rare Exceptional Circumstances?

The Courts will not hear an application for judicial review of an interim ruling in a discipline matter unless there are exceptional circumstances. So what are exceptional circumstances?

The decision in Bannis v. The Ontario College of Pharmacists, 2020 ONSC 6115 (CanLII), http://canlii.ca/t/j9zq2 reinforces the proposition that exceptional circumstances are indeed rare. In that case the practitioner argued that the regulator lost jurisdiction to deal with concerns that she distributed drugs “to American clients through her online pharmacy without valid prescriptions” because it had not followed the complaints process, but rather had conducted a Registrar’s investigation.

The Court held that this was not an exceptional case even though a jurisdictional and abuse of process issues were raised that, if accepted, would end the proceeding. In addition, the fact that counsel were ready to proceed before the gathered Court was not exceptional. Also, there was an alternate remedy, namely proceeding with the discipline hearing and raising the issue at discipline and, if necessary, on appeal. In addition, the case was not one where an “allegation of a denial of procedural fairness or bias within the disciplinary proceedings that would fundamentally affect the fairness of that proceeding” was at stake, which might be an example of an exceptional circumstance.

The Court exercised its discretion to decline to hear the application and awarded costs of $15,000 to the regulator.

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