A-973-96
| CORAM: DESJARDINS J.A. |
| LINDEN J.A. |
| ROBERTSON J.A. |
BETWEEN:
SAHAR ELGUINDI
Appellant
- and -
CANADA (MINISTER OF HEALTH) AND
DIRECTOR OF BUREAU OF DRUG SURVEILLANCE
Respondents
Heard at Toronto, Ontario, on Tuesday, April 29, 1997.
Judgment rendered at Ottawa, Ontario, on Thursday, June 19, 1997.
REASONS FOR JUDGMENT BY DESJARDINS J.A.
CONCURRED IN BY LINDEN J.A.
ROBERTSON J.A.
A-973-96
| CORAM: DESJARDINS J.A. |
| LINDEN J.A. |
| ROBERTSON J.A. |
BETWEEN:
SAHAR ELGUINDI
Appellant
- and -
CANADA (MINISTER OF HEALTH) AND
DIRECTOR OF BUREAU OF DRUG SURVEILLANCE
Respondents
REASONS FOR JUDGMENT
DESJARDINS J.A.
This is an appeal from a judgment of the Trial Division denying the appellant's application for judicial review of a decision of Mr. L.B. Rowsell, in his capacity as director of the Bureau of Drug Surveillance (the "Bureau"), made on January 4, 1996, pursuant to section 30, paragraphs 47(b), 48(b) and 50(d) and (e) of the Narcotic Control Regulations1 (the "Regulations") adopted under the authority of the Narcotic Control Act.2 The director held that the appellant, a licensed pharmacist, had, in her capacity as pharmacy manager at a pharmacy operated by Meditrust Health Care Services Ltd., failed to account for missing narcotic drugs between March 23, 1994 and November 3, 1994. He informed the appellant that, after having consulted with the Ontario College of Pharmacists (the "College"), he was about to issue notices to pharmacists in Ontario and licensed dealers informing them that they may not supply any medication with a narcotic drug content pursuant to the appellant's orders.
The respondent, the Minister of Health and Welfare Canada, has delegated his authority to issue prohibition notices under the Narcotic Control Act and Narcotic Control Regulations to the Assistant Deputy Minister, the director general, Drugs Directorate and the director, Bureau of Dangerous Drugs, Drugs Directorate.3 The respondent director of the Bureau of Drug Surveillance, formerly known as the Bureau of Dangerous Drugs, is the head of the Bureau, which is the area in the Department of Health and Welfare Canada responsible for administering the legislation governing the use of narcotic and controlled drugs in Canada.
This case raises issues of procedural fairness. Since the facts are of great import, they will be set forth in detail. They appear, for the most part, in the reasons for judgment of the motions judge.
The facts
The appellant holds both a Bachelor of Science (Pharmacy 1988) and a Master of Science (Pharmacy 1990) degrees. After graduating from pharmacy school, she owned a small pharmacy, Seaway Pharmacy, until August 1993. During that period, the Drug Control Unit (DCU), which reports to the Bureau of Drug Surveillance, audited the narcotic inventory and discovered that a certain number of Oxycocet and Oxycodan tablets could not be accounted for. Eight pharmacists were working at the pharmacy. Apparently two of these pharmacists had been caught stealing pharmaceuticals by their former employers. The appellant took some immediate steps to rectify the situation, and did so to the interim satisfaction of the DCU. In August 1993, the appellant sold Seaway Pharmacy.
The appellant began employment as a pharmacist with Meditrust Pharmacy in February 1994. Meditrust is a mail-order only pharmacy and operates on a large scale. The appellant was the pharmacy manager of Meditrust from March 25, 1994 to November 1 or 3, 1994. Her employment with Meditrust ended March 9, 1995, as a result of corporate restructuring.
Just before the appellant's tenure as pharmacy manager, but while she was an employee at Meditrust, the managing pharmacist reported the loss of 700 Percocet tablets to an inspector of the DCU, Mr. Aron Wolfson. No further action was taken by the Bureau. On two occasions, while the appellant was the pharmacy manager, she met with the College to discuss questionable pharmacy practices at Meditrust.
The appellant's duties as pharmacy manager with Meditrust ended on November 1 or 3, 1994. From November 4 to 7, 1994, Meditrust counted the narcotic inventory. Some 1000 Oxycocet, 500 Oxycodan, 200 Percocet and 200 Percodan capsules were missing. On November 9, 1994, the vice-president for Meditrust's pharmacy operations in Ontario and the appellant sent a letter to the DCU advising them of the shortage. This letter assured the DCU that regular inventory counts would be taken, a log system for access would be established and a security camera would be installed.
The DCU audited Meditrust's narcotic inventory between March 7 and 9, 1995. Of the twelve audited drugs, the Narcotic/Controlled Drug Loss/Theft Report revealed the following shortages for eight accounts:
| 1968 Demerol 50 mg tablets |
| 111 ml of suspended Demerol |
| 712 capsules of Fiorinal c" |
| 4461 Oxycocet tablets (recalling that 700 were reported missing previously) |
| 2163 Oxycodan tablets |
| 1000 Percocet tablets (resolved at trial at 200) |
| 800 Percodan tablets |
| 200 MS Contin 200 mg tablets |
The investigation also discovered that the appellant did not enter three shipments of narcotics in the N/CD register as required by section 30 of the Narcotic Control Regulations. This was discovered by the inspector, Mr. Wolfson, who obtained copies of the invoices signed by the appellant from Medis, Meditrust's narcotic drug supplier.
On April 18, 1995, Mr. Jean-Marc Charron, Chief of the Drug and Environmental Health Inspection Division for Ontario, sent the appellant a letter advising her of the shortages the investigation discovered. It was made clear that the shortages noted above were adjusted for the period that the appellant had signing authority for narcotics from March 23, 1994 to November 3, 1994.
The relevant portion of the letter to the appellant reads thus:4
| ... |
| Our representatives, Mr. Aaron Wolfson and Mr. Aaron Leung, paid an inspectional visit to Meditrust Pharmacy Inc. at 140 Wendell Avenue, North York, on March 7, 8, and 9, 1995. A written report on that visit has been submitted. Because this report contains some very disturbing information, I am obliged to correspond with you. |
| It is reported that between March 23, 1994 and November 3, 1994 the following shortages occurred: |
| Oxycocet tablets 3,925 |
| Oxycodan tablets 2,063 |
| Percocet tablets 200 |
| Percodan tablets 200 |
| Fiorinal C " caps 654 |
| Demerol 1,256 |
| MS Contin 200 mg tablets 200 |
| As you may recognize, these dates are significant as they encompass the period during which you were the signing authority for narcotic and controlled drug material at Meditrust. While no starting inventory was available from March 23rd, witnessed inventory counts taken on November 4th and November 7th were provided to our inspectors. Interestingly, an audit conducted for the period from November 4, 1994 to March 7, 1995 found no discrepancies. |
| It is acknowledged that a letter was forwarded to this office on November 9, 1994, signed by yourself and Mr. Neil Donald, Vice-President of Pharmacy Operations in Ontario, identifying a portion of these losses and proposed improvements in the handling of narcotic/controlled drug material at Meditrust. However, our own investigation has clearly found more extensive losses. |
| The Regulations to the Narcotic Control Act and the Food and Drugs Act specify that a pharmacist must be able to account for all of the narcotic and controlled drugs under his or her control. When a pharmacist is unable to do so, the law provides the authority for the Minister to withdraw the pharmacist's privileges with respect to the purchase and handling of these substances. |
| It was also noted that not all narcotic and controlled drugs receipts had been entered in the designated N/CD Register, in violation of regulations 30 and G.03.001 of the NCA and FDA respectively. Three of these shipments, signed for by yourself according to copies provided to us by Medis, contained drugs identified in the above described losses. |
| Before contemplating further action, you are being asked to acknowledge receipt of this letter indicating that its contents have been read and understood. You should also provide an explanation or comment on these shortages. |
| Due to the magnitude of the problem, this office is providing a copy of this letter and all ensuing correspondence to the Registrar of the Ontario College of Pharmacists. |
| Your immediate attention to this matter is expected, and your written reply is anticipated no later than May 11, 1995. |
The appellant replied by letter on April 24, 1995. The letter did not deny the existence of any shortages but it indicated a lack of control over narcotic drugs at Meditrust. The letter noted incidents of theft of money and non-pharmaceutical property and an employee being fired for mailing herself a large quantity of Prozac. It was the appellant's opinion that it was impossible for the pharmacy manager to have the same level of control as one could have in a regular dispensary because the volume the pharmacy handled was too high. As well, the appellant mentioned incidents of theft of narcotic drugs after they were delivered via mail.
Mr. Charron replied to the appellant by letter of May 26, 1995. He stated that the appellant's comments did not "address themselves adequately in explaining the dramatic losses that occurred at Meditrust." The letter noted that, if anything, the audit results would be in the appellant's favour because it presumed a starting inventory of zero on March 23, 1994. Mr. Charron indicated that mailing narcotics was not prohibited by law and that any theft of the drugs after they left the pharmacy was irrelevant. Further, the allegations of theft were not linked to the missing narcotics, and "the erosion of these [preventatory] provisions over a period of time because of resource constraints is not an adequate excuse." The letter ended as follows:5
| As for your perception that in your work history you have "never had a problem", you might want to recall your experience as the owner of Seaway Pharmacy. An audit conducted by one of our Inspectors in January 1993 found significant unexplained losses of Oxycocet and Oxycodan. That experience should have fully sensitized you to the need for complete key control and restricting as far as possible the handling of N/CD material to pharmacists only. |
On June 7, 1995, Ms. Anne Sztuke-Fournier, then the acting head of the Prescription Assessment Section of the Bureau, prepared draft letters to the appellant and to the College, for the director's signature, and sent those documents to the director and to Legal Services. The draft letter to the appellant stated that the Bureau had determined that she had violated paragraphs 50(d) and (e) and section 30 of the Regulations. The letter advised the appellant that formal consultation with the College was going to be initiated and that she had the opportunity to make submissions to the Bureau within fifteen days of receipt of the letter. The draft letter to the College advised it of the problem and contained, as an attachment, the correspondence between the Bureau and the appellant. The letter to the appellant was approved on June 12, 1995, signed by director Rowsell and sent to the appellant on that same date. The letter to the College, with a copy of the letter to the appellant, was also sent that day.
On June 15, 1995, the appellant replied to the Bureau's letter. Her letter essentially reiterated the content of her April 24, 1995, letter. She contested the findings of the Bureau and provided excuses for not being able to properly control the narcotics she was responsible for in the Seaway as well as the Meditrust situation.
The appellant retained a solicitor, Mr. Peter Chang, who requested a time extension for representations to be made to the director on July 6, 1995. The next day he requested a copy of the March inspection report. The appellant was allowed an extension until July 31, 1995.
On July 31, 1995, Mr. Chang made submissions by letter to the director. With respect to the audit, Mr. Chang pointed to apparent discrepancies between the November 8, 1994, inventory and the investigators' numbers. He suggested that "Meditrust had withheld crucial data from the audit, thus creating an impression that large quantities of drugs were missing". He added that Meditrust's records could not be relied on because Meditrust's documentation was insufficient. Regarding Meditrust's system for storage of narcotic drugs, Mr. Chang noted that the appellant was susceptible to manipulation from Meditrust. He claimed that the appellant had tried to the best of her ability to convince the Meditrust management to comply with the Narcotic Control Act and the Food and Drugs Act, but her recommendations were continually ignored. Mr. Chang also submitted that Meditrust wanted to lay the blame on the appellant either because the company wanted to cover up its own inefficiency and lack of security in order to avoid paying the appellant the six-month salary that they had agreed to, or because Meditrust management felt a particular animosity towards the appellant.
On August 15, 1995, the College indicated by letter that it had no objection to the Bureau issuing notices to pharmacists and licensed narcotic dealers. On August 23, 1995, the director sent a letter to Mr. Chang advising him that the director had commenced formal consultation with the College and was considering invoking the authority of the Minister to give notice to pharmacists and licensed narcotic dealers in Ontario not to sell any narcotic drugs to the appellant. The letter allowed the appellant fourteen days to make representations to the director.
On September 19, 1995, the appellant filed the originating notice of motion for judicial review which included a request for an interlocutory injunction against the director to prohibit issuance of the notices to pharmacists or licensed narcotic dealers. The injunction and an order that the director retract any notices issued were adjourned sine die on September 20, 1995. On October 13, 1995, Legal Services wrote to counsel for the appellant:6
| ... |
| The Bureau does not hold her responsible for shortages after November 3, 1994. The period in question is from March 23, 1994 to November 3, 1994. While the initial period covered by the inspection was from December 8, 1993 to March 7, 1995, that period was narrowed down to the time when Ms. Elguindi was in charge. |
| ... |
| Furthermore, no decision has yet been made to issue notices; Ms. Elguindi has been given several opportunities, including every extension of time she requested, to present her case. She has decided instead to issue notice of court proceedings. Those proceedings, and the decision of the Bureau concerning notices, have been postponed to give Ms. Elguindi further opportunities to make her case. Health Canada is giving the matter immediate attention, and, in this letter, is providing her with answers to her questions even though the onus is on her to prove her case. All this will go to the issue of whether Ms. Elguindi received proper notice and a fair hearing. |
| Enclosed you will find a letter dated August 15, 1995 from the Ontario College of Pharmacists, and a report dated October 10, 1995 from Health Canada inspectors. Are there any other relevant documents you require to present your case? |
Further representations were made by the appellant's solicitor on November 1, 1995.
The director's decision to issue notices was issued on January 4, 1996. It reads thus:7
| I have for acknowledgement your correspondence of November 1, 1995 and your correspondence addressed to Mr. Arun Maini, Department of Justice, of October 16, 1995, which has been forwarded to the Bureau for review. Your letters of July 31, 1995 and September 10, 1995 are acknowledged. Please be informed that your letter of July 31, 1995 was considered and reviewed carefully prior to the issuing of our letter dated August 23, 1995. |
| I wish to make the following comments further to the issues addressed in your correspondence: |
| Audit report and Elguindi's period of responsibility: |
| The Bureau holds Elguindi responsible for losses that occurred between March 23, 1994 to November 3, 1994. The period of December 8, 1993 to March 23, 1994 was excluded and the inspectors conducted their audit by assuming a zero inventory, thereby giving Ms. Elguindi the benefit of the doubt and placing the results in the best possible light. The drug inventory is computed as a difference between the drugs purchased less those sold, less drugs still in inventory. |
| You will find enclosed a copy of the inspectors comments dated October 10, 1995, as well as copies of invoices (items missed in purchase records) obtained directly from the licenced dealer, Medis Health and Pharmaceutical Services Inc., reflecting the purchases conducted by Meditrust. A copy of Medis' monthly sales reports, outlining purchases made by Meditrust is also enclosed. You will note that these documents were used to conduct the audit and permitted a counter verification of the purchases made by Meditrust. Narcotic drug usage was verified against Meditrust's bi-monthly narcotic and controlled drug sales reports and a computer generated usage report. Random checks were conducted with the actual prescriptions. No evidence was found indicating that Meditrust's records were inaccurate. |
| The losses reported by Meditrust on November 9, 1994 do not indicate what period was covered and therefore would not necessarily correspond to the Audit conducted by our Inspectors. Of course these losses are included in the Inspectors report. |
| Pharmacist's responsibility: |
| The Narcotic Control Regulations, as they now stand, clearly indicate that the onus is on the pharmacist, not the pharmacy, for the responsibility of narcotic drugs. The specific sections of the Narcotic Control Regulations for which Ms. Elguindi is held responsible are: |
| Sections 50(d) and (e): |
| For the purposes of sections 46 to 49, the circumstances described in this section are as follows: |
| (d) a pharmacist is unable to demonstrate that all narcotics other than verbal prescription narcotics purchases or obtained by him have been furnished by him in accordance with these Regulations; |
| (e) a pharmacist is unable to demonstrate that all verbal prescription narcotics, other than a preparation mentioned in section 36, purchased or obtained by him have been furnished by him in accordance with these Regulations; |
| Section 30: |
| A pharmacist, upon receipt of a narcotic from a licensed dealer, shall forthwith enter in a book, register or other record maintained for such purposes, the following: |
| (a) the name and quantity of the narcotic received; |
| (b) the date the narcotic was received; and |
| (c) the name and address of the person from whom the narcotic was received. |
| You indicated that evidence of theft existed at Meditrust. However, there is no mention of the nature and quantities of drugs involved. Should narcotic drugs be involved, by virtue of section 42 of the Narcotic Control Regulations, the pharmacist must report any loss of narcotic drugs, to the Minister, within 10 days of its discovery. We have not received reports of these incidents. |
| You mentioned that Ms. Elguindi made efforts to change the procedures of the pharmacy operations regarding the dispensing of narcotic drugs. These suggestions were apparently ignored by Meditrust. |
| A graduated and licensed pharmacist, who has passed all jurisprudence exams, should be aware of all the legal and professional requirements of the profession. Should a professional be aware of any wrongdoing, nobody can force them to continue to practise in such a situation. If a pharmacist chooses to work in an unsuitable environment, he or she becomes responsible for his or her actions. The Ontario College of Pharmacists, which is the professional licencing body which accredits pharmacies in Ontario would most certainly have been interested to know that there was a violation in procedures at Meditrust. There is no indication that Ms. Elguindi has made any efforts to appraise them of the situation. |
| If Ms. Elguindi really felt threatened by the operation of Meditrust and that future pharmacists are exposed to being forced to practise pharmacy in an unacceptable manner, I strongly recommend that provincial pharmacy regulatory authorities be made aware of the situation and implement practise guidelines for this type of pharmacy operation. |
| It should also be noted that, as outlined in Mr. J.M. Charron letter of May 26, 1995 to Ms. Elguindi, in the Bureau's letters dated January 27, 1993 and February 2, 1992(1993), Ms. Elguindi was fully made aware of her responsibilities regarding narcotic drugs. Copies of these letters are enclosed. |
| It is determined that Sahar Elguindi has not provided any evidence to account for the shortages of narcotic drugs indicated in our previous correspondence of June 12, 1995 and April 18, 1995, further to the Inspectors reports of March 7, 8 and 9, 1995. Hence, it has been determined that Sahar Elguindi has violated paragraphs 50(d), 50(e) and section 30 of the Narcotic Control Regulations as outlined in previous correspondence. |
| As mentioned in our letter of August 23, 1995 the Registrar of the Ontario College of Pharmacists has indicated to us in a letter dated August 15, 1995 that they have no objection to our notifying pharmacists in Ontario and licenced narcotic drug dealers. A copy of this letter is enclosed. |
| DECISION: |
| I have reviewed all the evidence and come to the conclusion that Ms. Elguindi has violated paragraphs 59(d) and (e) and section 30 of the Narcotic Control Regulations. |
| I have also looked at various options to deal with this very serious situation including the possibility that Ms. Elguindi undertakes not to purchase narcotics for a certain period of time, to take additional training and to re-write the Ontario College of Pharmacists jurisprudence examination. Officials have approached the College in this regard since this would require its collaboration, it appears that this is not a feasible option. |
| In view of all the circumstances of this case, I am therefore informing you of my decision, on behalf of the Minister of National Health and Welfare, to give notice to pharmacists in Ontario and licenced dealers that they may not supply any medication with a narcotic drug content, pursuant to Ms. Sahar K. Elguindi's orders. These notices will be issued on January 30, 1996. |
| These notices can be revoked when the following circumstances occur: |
| (a) A pharmacist and the appropriate licensing authority of the province in which the pharmacist is registered and entitled to practice have made a written request to the Minister that the Minister revoke the notices given by the Minister; and |
| (b) One year has elapsed since the notices referred to above were given by the Minister. |
| In keeping with the longstanding policy of this Bureau to maintain a close liaison with all provincial licencing authorities, we are providing the Ontario College of Pharmacists with a copy of this correspondence. |
Included with the decision were several documents not previously disclosed to the appellant. They were copies of the Medis purchase records, the Medis monthly sales reports and letters from the DCU, dated January 27, 1993 and February 2, 1993, to the appellant regarding the Seaway incident.
On January 22, 1996, the appellant obtained an interlocutory injunction before the Associate Chief Justice prohibiting the respondents from issuing notices pending the outcome of judicial review before this Court. The hearing was set for June 3, 1996. On June 18, 1996, the appellant obtained by consent an order to conduct cross-examinations of Ms. Sztuke-Fournier and Mr. Wolfson, and to obtain any other documentation that had been considered by the director in coming to his decision. More documents were turned over to the appellant. They included, as found by the trial judge:8
| 1. A March 16, 1995 memorandum from inspectors Wolfson and Lueng [sic] concerning a meeting with a Crown attorney and two police officers with respect to the narcotics investigation at Meditrust. |
| 2. A March 15, 1995 memorandum from inspectors Wolfson and Lueng [sic] to Police Constable Rick Ricketts of the Metropolitan Toronto Police with respect to the applicant and Meditrust. |
| 3. A July 13, 1995 note of a telephone conversation between Mr. Wolfson and Ms. Fournier regarding the applicant and Cim's Drugmart. |
| 4. A July 14, 1995 Community Pharmacy inspection report prepared by inspector Wolfson with respect to Cim's Drugmart. |
| 5. An August 3, 1995 note from Ms. Fournier to the director advising that the applicant was arrested July 18 regarding the Meditrust investigation by police and charged for theft under $5000 and regarding a new incident at Cim's Drugmart not yet investigated. |
| 6. An August 23, 1995 letter from the director to the college. |
| 7. A September 22, 1995 memorandum from Ms. Fournier to Legal Services regarding the applicant and Cim's Drugmart. |
| 8. An October 4, 1995 file summary from Ms. Fournier to the director Mr. Charron and legal services. |
| 9. A November 21, 1995 e-mail message from Ms Fournier to the director, legal services and Mr. Charron. |
| 10. Ms. Fournier's notes to file of November 22, 1995 and December 14, 1995 with respect to meeting with the college. |
| 11. A November 23, 1995 e-mail message from Mr. Charron to Ms. Fournier. |
| 12. A November 23, 1995 memorandum from Mr. Charron to file and to the director. |
The decision under appeal
The motions judge addressed the question as to how much procedural fairness the administrative scheme attracted. He put great emphasis on the impact of the decision on the appellant. The appellant's ability to carry out the duties of a professional pharmacist would be impaired by the decision because she would not be able to order narcotics. Further, it would blemish her record which may impair her ability to secure employment in the future. There was, therefore, no doubt in his mind that the decision attracted a general duty of fairness. He then found that there was a "clear breach of procedural fairness" due to the director's non-disclosure of documents. The motions judge refused, however, to grant the usual remedy of quashing the decision and referring the matter back to the decision-maker for redetermination. He held instead that the principle of referring back had been tempered in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board9 and in Yassine v. Canada (M.E.I.).10 He explained that the outcome was "inevitable" notwithstanding the error committed. He said:11
| There is a basically simple linear arithmetic progression: what quantity of narcotic drugs has been received by the pharmacist? what quantity has been dispensed? how much remains? If not enough remains, the pharmacist is professionally responsible for the shortfall, whether it be insignificant or significant. The applicant was given numerous opportunities for submissions. The applicant had the Community Pharmacy Inspection Report and knew other documents existed. She had, after all, worked at Meditrust as the head pharmacist. Further, she did request disclosure of specific documents, in particular those concerning the Seaway incident. This said, the Court must keep in mind the purpose of the exception: is the final result inevitable? |
| The documents noted above which were disclosed in accordance with the June 18, 1996 order are of no help to Ms. Elguindi. Even if she could have made submissions, it would not have changed the outcome: the decision was about missing narcotic drugs during her tenure as head pharmacist at Meditrust. The only relevant documents about which she may have made meaningful submissions are the documents which underlie the Community Pharmacy Inspection Report, as that report triggered the entire process. |
| ... |
| ... It was through this documentation, though, that the applicant may have been able to challenge the results of the audit, if at all. The applicant unfortunately has not persuaded the Court that any of the listed documents could be utilized to impugn the clear count of missing narcotics. |
Finally the motions judge rejected, as being without merit, the appellant's contention that the director had predetermined the issue prior to giving notice to the appellant, when he wrote to her, on June 12, 1995, that the Bureau had determined that she had violated paragraphs 50(d) and (e) and section 30 of the Regulations.
The issues
The appellant claims that the motions judge erred in his conclusions that the decision of the director was inevitable notwithstanding the breach of procedural fairness and that no predetermination had been made by the director on June 12, 1995. The respondent, for his part, says that the trial judge incorrectly came to the conclusion that there had been a breach of natural justice, but supports his conclusion that no predetermination occurred.
The issues before this Court are, therefore, whether the trial judge erred in concluding that a breach of procedural fairness had occurred and, in the negative, whether he erred in refusing to refer the matter back for a new hearing and a redetermination. The claim about predetermination will also be dealt with.
Relevant legislation
The Narcotic Control Regulations are a regulatory scheme which sets the procedure a pharmacist is obliged to follow so as to account for the narcotic drugs he or she receives. Upon receipt, every entry is to be recorded by the pharmacist in a register with the name and quantity of narcotics received, the date of reception and the name and address of the supplier (section 30). Dispensing of a drug must be recorded forthwith according to a strict procedure found in sections 38 and 39. Narcotics are to be kept in a secure place (section 43). Theft must be reported to the Minister within ten days of its discovery (section 42). Failure to comply with these provisions gives rise to sanctions as provided in sections 47, 48 and 50 of the Regulations.
Those provisions, which control the present matter, namely, sections 30, 38, 39, 42, 43 and paragraphs 47(b), 48(b) and 50(d) and (e) of the Narcotic Control Regulations, read thus:
| 30. A pharmacist, upon receipt of a narcotic from a licensed dealer or from another pharmacist as provided in section 45, shall forthwith enter in a book, register or other record maintained for such purposes, the following: (a) the name and quantity of the narcotic received (b) the date the narcotic was received; and (c) the name and address of the person from whom the narcotic was received. |
30. Tout pharmacien, sur réception d'un stupéfiant provenant d'un distributeur autorisé ou d'un autre pharmacien selon les prévisions de l'article 45, doit consigner immédiatement dans un cahier, registre ou autre dossier réservé à cette fin, les données suivantes: a) le nom et la quantité du stupéfiant qu'il a reçu; b) la date à laquelle il l'a reçu; et c) le nom et l'adresse de la personne de qui il a reçu ledit stupéfiant. |
| 38. Where, pursuant to a written order or prescription, a pharmacist dispenses a narcotic, other than dextropropoxyphene or a verbal prescription narcotic, the pharmacist shall forthwith enter in a book, register or other record maintained for such purposes |
38. Aussitôt après avoir fourni, selon une commande écrite ou une ordonnance, un stupéfiant autre qu'un stupéfiant d'ordonnance verbale ou que du dextropropoxyphène, le pharmacien doit consigner, dans un cahier, un registre ou autre dossier réservé à cette fin, les détails suivants: |
| (a) the name and address of the person named in the order or prescription; (b) the name, quantity and form of the narcotic; (c) the name, initials and address of the practitioner who issued the order or prescription; (d) the name or initials of the pharmacist who supplied the narcotic; (e) the date the narcotic was supplied; and (f) the number assigned to the order or prescription. |
a) le nom et l'adresse de la personne nommée dans la commande ou l'ordonnance; b) le nom, la quantité et la forme du stupéfiant; c) le nom, les initiales et l'adresse du praticien qui a émis la commande ou l'ordonnance; d) le nom ou les initiales du pharmacien qui a fourni le stupéfiant; e) la date à laquelle le stupéfiant a été fourni; et f) le numéro assigné à la commande ou l'ordonnance. |
| 39. A pharmacist shall, before dispensing a verbal prescription narcotic pursuant to a verbal order or prescription, make a written record thereof, setting forth |
39. Le pharmacien doit, avant de fournir un stupéfiant d'ordonnance verbale en exécution d'une ordonnance ou d'une commande verbale, consigner dans un registre les détails suivants: |
| (a) the name and address of the person named therein; (b) in accordance with the manner in which it is specified in the prescription, the name and quantity of such oral prescription narcotic or the narcotic and the other medicinal ingredients therein; (c) the directions for use given therewith; (d) the name, initials and address of the practitioner who issued the order or prescription; (e) the name or initials of the pharmacist who dispensed such oral prescription narcotic; (f) the date such oral prescription narcotic was supplied; and (g) the number assigned to the order or prescription. |
a) le nom et l'adresse de la personne nommée dans l'ordonnance ou la commande; b) le nom et la quantité dudit stupéfiant d'ordonnance verbale, ou du stupéfiant et des autres ingrédients médicinaux y compris, conformément à la manière précisée dans l'ordonnance; c) le mode d'emploi indiqué dans ladite ordonnance ou commande; d) le nom, les initiales et l'adresse du praticien qui a émis l'ordonnance ou la commande; e) le nom ou les initiales du pharmacien qui fournit ledit stupéfiant d'ordonnance verbale; f) la date à laquelle le stupéfiant d'ordonnance verbale est fourni; et g) le numéro assigné à l'ordonnance ou la commande. |
| 42. A pharmacist shall report to the Minister any loss or theft of a narcotic within 10 days of his discovery thereof. |
42. Tout pharmacien doit signaler au Ministre toute perte ou tout vol d'un stupéfiant, 10 jours au plus après en avoir fait la découverte. |
| 43. A pharmacist shall take all reasonable steps that are necessary to protect narcotics on his premises or under his control against loss or theft. |
43. Le pharmacien doit prendre toutes les mesures raisonnables qui sont nécessaires pour protéger contr la perte ou le vol les stupéfiants qui se trouvent dans son établissement ou dont il a la garde. |
| 47. The Minister ... (b) may, in the circumstances described in subparagraph 50(b)(i) or paragraph 50(c) or (d), after consultation with the licensing authority of the province in which the pharmacist is registered and entitled to practise pharmacy, give notice to licensed dealers and pharmacists of the name and address of the pharmacist to whom the circumstance is applicable. |
47. Le Ministre ... b) peut, dans le cas décrit au sous-alinéa 50b)(i) ou aux alinéas 59c) ou d), après consultation avec les autorités chargées de délivrer les permis dans la province où le pharmacien est inscrit et autorisé à exercer la pharmacie, communiquer aux distributeurs autorisés et aux pharmaciens le nom et l'adresse du pharmacien auquel le cas est applicable. |
| 48. The Minister ... (b) may, in the circumstance described in subparagraph 50(b)(ii) or paragraph 59(c) or (e), after consultation with the licensing authority of the province in which the pharmacist is registered and entitled to practise pharmacy, give notice to licensed dealers and pharmacists of the name and address of the pharmacist to whom the circumstance is applicable. 50. For the purposes of sections 46 to 49, the circumstances described in this section are as follows: ... (d) a pharmacist is unable to demonstrate that all narcotics other than oral prescription narcotics purchased or obtained by him have been furnished by him in accordance with these Regulations; |
48. Le Ministre ... b) peut, dans le cas décrit au sous-alinéa 50b)(ii) ou aux alinéas 50c) ou e), après consultation avec les autorités chargées de délivrer les permis dans la province où le pharmacien est inscrit et autorisé à exercer la pharmacie, communiquer aux distributeurs autorisés et aux pharmaciens le nom et l'adresse du pharmacien auquel le cas est applicable. 50. Aux fins des articles 46 à 49, les cas décrits dans cet article sont les suivants: ... d) un pharmacien est dans l'impossibilité de prouver que tous les stupéfiants, autres que les stupéfiants d'ordonnance verbale, achetés ou obtenus par lui, ont été fournis par lui selon le présent règlement; |
| (e) a pharmacist is unable to demonstrate that all oral prescription narcotics, other than a preparation mentioned in section 36, purchased or obtained by him have been furnished by him in accordance with these Regulations... |
e) un pharmacien est dans l'impossibilité de prouver que tous les stupéfiants d'ordonnance verbale, autre qu'une préparation visée à l'article 36, achetés ou obtenus par lui ont été fournis par lui selon le présent règlement... |
Analysis
Natural justice and procedural fairness apply to all administrative bodies.12 Procedural fairness is generally understood to include the duty of the administrative decision-maker to disclose sufficient information such that individuals can know the case against them and be able to present their own case.13 The purpose of disclosure is to avoid surprise and ensure meaningful participation of the parties in the hearing, such that they may be said to have been treated fairly in all the circumstances.14
There were, in the case at bar, two sets of missing documents which the appellant claims should have been disclosed to her by the director. The first set of documents were those attached to the director's decision of January 4, 1996. They included copies of the Medis purchase records, the Medis monthly sales reports and letters from the DCU dated January 27, 1993 and February 2, 1993 to the appellant regarding the Seaway incident. The letters of January 27, 1993 and February 2, 1993 were known to the appellant since her receipt of them in 1993. We are, therefore, not concerned with them but only with the Medis papers.
The Medis papers related directly to the appellant's responsibility, as pharmacy manager, to record every entry upon receipt. She was alerted to the existence and full content of these documents by the notice letter of Mr. Charron dated April 18, 1995. Does the fact that the Medis papers were only sent to her at the time of the decision of January 4, 1996, constitute a breach of procedural fairness? I do not think so. The appellant never disputed that pills had been missing. The number of missing pills was not per se a vital element since the appellant herself admitted that theft had occurred while she held the position of manager pharmacist. The procedure she had followed or not followed as a pharmacy manager was, however, vital. From that first letter of April 18, 1995, she knew with specificity that the issue related to her responsibilities and the manner in which she had complied with them. The letter clearly indicated that the Medis documents revealed that, in violation of the Regulations, she had failed to enter three shipments in the designated N/CD register. She benefited from extended delays but never confronted the real issue. On October 13, 1995, Legal Services asked whether she needed other documents to present her case. She made no request. From April 18, 1995, until the final representation made by her counsel on November 1, 1995, no explanation was given by her as to whether she had complied, or even attempted to comply, with her duties. She was never required to prove who stole or pilfered the allegedly missing narcotics and how they were stolen or pilfered, but to address the procedure she was professionally compelled to follow. She clearly knew the case against her at the first moment of the hearing in writing.
The second set of documents was received under the consent order of June 18, 1996, and represents a compilation of twelve documents. Within this set, the first two documents (documents 1 and 2), dated March 16, 1995 and March 15, 1995, were written before the April 18, 1995, notice. They related to meetings with the Metropolitan Toronto Police regarding the missing narcotics at Meditrust at the time the appellant had signing authority, and the significance of the street value of narcotics. The evidence regarding the missing narcotics was brought to the attention of the appellant on April 18, 1995. There is, therefore, no breach of natural justice in this regard.
The documents dealing with the appellant's tenure at Cim's Drugmart (documents 3, 4, 5 and 7) concern activities totally unrelated to the period the appellant had signing authority with Meditrust. The irrelevant information conveyed was that narcotics were also missing at Cim's, where the appellant had been working after her departure from Meditrust. The impact the information had on the director's mind is, of course, unknown. He does not refer to it in his notice to the appellant of January 4, 1996. There is no evidence that he relied on it in any way. There was, in my view, no duty to disclose the documents because to see irrelevant material does not amount to a breach of natural justice. Document 5 also contained irrelevant information to the issue at bar. It informed the director of the appellant's arrest by the police, on July 18, 1995, following the Meditrust investigation and her being charged with theft under $5,000. It is difficult, here also, to assess what effect this piece of information had on the director's mind at the time he made his decision. It is clear he did not base his decision on it, since he never referred to the appellant's arrest in his letter to her of January 4, 1996. Nor is there any indication that it was relied on in any way. All of this information came to the director as a matter of course and not as part of the investigation process or the decision-making process. That information had no bearing on the issue involved, namely poor accounting. Her arrest, in any case, constitutes information which was in the public domain. Nothing can shield a decision-maker from this kind of information. It cannot be said that the director, as decision-maker, breached natural justice and procedural fairness by not disclosing to the appellant his awareness of this event, known to the appellant herself.
The August 23, 1995, letter (document 6) was written by the director to the appellant's counsel and dealt with the opening of consultations with the College. The appellant was, therefore, aware of its content.
The remaining set of internal documents (documents 8 to 12) contain no new evidence, but were simply submissions of draft letters and requests for comments. Nothing contained in these memoranda is in the nature of evidence or representations which the director heard or received from one side behind the back of the other. None of these papers contained ex parte evidence. They were in essence working papers from the office of the director himself. No breach of natural justice or procedural fairness occurred.
Finally, I do not think the motions judge erred in rejecting the appellant's argument about predetermination. While it is true that the director, in his letter of June 12, 1995, told the appellant that the Bureau had determined that she had violated paragraphs 50(d) and (e) and section 30 of the Regulations, the motions judge was correct, in my view, in holding that such statement simply indicated to the appellant that the matter would be proceeding to a further administrative stage.
For the above reasons, I would dismiss this appeal.
The respondents are not asking for costs.
"Alice Desjardins"
J.A.
"I agree
| A.M. Linden J.A." |
"I agree
| J.T. Robertson J.A." |
A-973-96
BETWEEN:
SAHAR ELGUINDI
Appellant
- and -
CANADA (MINISTER OF HEALTH) AND
DIRECTOR OF BUREAU OF DRUG SURVEILLANCE
Respondents
REASONS FOR JUDGMENT
__________________12 Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623.
13 Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.
14 Quebec (Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159 at 181-82.
FEDERAL COURT OF CANADA APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-973-96,
STYLE OF CAUSE: SAHAR ELGUINDI v CANADA (MINISTER OF HEALTH) AND DIRECTOR OF BUREAU OF DRUG SURVEILLANCE
APPEAL FROM A JUDGMENT OF THE TRIAL DIVISION DELIVERED ON DECEMBER 5, 1996. TRIAL DIVISION FILE NO.: T-1961-95
PLACE OF HEARING: TORONTO
DATE OF HEARING: APRIL 29, 1997
REASONS FOR JUDGMENT BY DESJARDINS J.A.
CONCURRED IN BY LINDEN J.A. ROBERTSON J.A.
DATED: JUNE 19, 1997
APPEARANCES:
Mr. Harvey S. Stone
Mr. Peter D. Ruby FOR APPELANT
Mr. Roger Lafrenière
FOR RESPONDENTS
SOLICITORS OF RECORD:
Borden & Elliot Toronto, Ontario
FOR APPELANT
Mr. George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario FOR RESPONDENTS