Uncontested Submissions of Counsel

Ontario’s Divisional Court has again affirmed the deference shown towards disciplinary decisions on sanction (penalty). In Ontario (College of Pharmacists) v. Mourid, 2023 ONSC 1221 (CanLII), the registrant (a pharmacist) acknowledged submitting false and misleading billings to the Ontario Drug Benefit Plan in the amount of $68,000. The hearing panel ordered a one-year suspension and significant other measures. The regulator appealed because the panel did not include in its order restrictions imposed in most other similar cases, including a three-year prohibition against owning a pharmacy. The regulator appealed on three carefully crafted issues:

  1. The apparent minimization of the concerns in the panel’s reasons on sanction (e.g., characterizing it as sloppy record keeping rather than unethical conduct);
  2. Lack of proportionality to ten previous similar cases where such restrictions were ordered; and
  3. Statements made by the panel in their reasons without supporting evidence, including the financial impact of the restrictions.

The Court repeated that its role is to intervene only where there is an error in principle or where the order is unfit. On each of the issues the Court found that this test was not met. Reading the reasons as a whole, the panel had not lost sight of the breach of trust aspect of the registrant’s conduct. The prior decisions did not act as a “straitjacket” on the panel. The panel explained why it was departing from the past precedents in this case. The Court also held that it was reasonable for the panel to rely on the “uncontested submissions” of counsel as to the registrant’s personal circumstances including that the registrant “was effectively a single mother with three children and that the pharmacy was the only business she owned, and her only source of income”.

This decision highlights the importance of regulators carefully considering (and possibly objecting to) the submissions made by registrant’s counsel about the registrant’s personal and financial circumstances where the registrant does not testify on those issues.

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