The Right of a Practitioner to Defend Themselves

In an interesting pharmacy case, a practitioner was found to have engaged in professional misconduct by inducing vulnerable patients to transfer to his practice, including by offering gift cards and reduced dispensing fees. Some of the activity involved using confidential information to contact patients from other pharmacies where the practitioner provided relief services.

In Ghobrial v Ontario College of Pharmacists, 2019 ONSC 4776,, the Court upheld the findings of misconduct including the findings of credibility. The panel had adequately explained its credibility finding. It also found that there had been no reversal of the onus of proof when the panel commented negatively on the credibility of the practitioner tendering evidence as exculpatory that had no logical relevance to the issues.

On the issue of sanction, the panel imposed a twelve month suspension even though the practitioner submitted that a four month suspension was adequate and the regulator asked for a six month suspension. The Court held that this was acceptable and that, unlike a joint submission, there was no obligation to notify the parties that it was exceeding the maximum requested to hear additional submissions.

However, the Court found that it was an error of law for the panel to consider as an aggravating factor impact on vulnerable patients by requiring them to travel to the hearing and testify. “The Committee made an error of law in describing the Appellant’s exercise of his right to a hearing as an aggravating factor.” The Court reduced the suspension to ten months.

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