In this recent case, the Manitoba Court of Appeal confirmed that sentencing principles apply in summary discipline mechanisms.
The Manitoba Court of Appeal’s decision, Thorkelson v. The College of Pharmacists of Manitoba et al., 2023 MBCA 69, is a reminder to professional regulatory bodies that sentencing principles must be considered when using their statutory disciplinary power to cancel or revoke their members’ licences or registrations.
Background
The respondent pharmacist pled guilty in the United States to a criminal offence which is not recognized under the laws of Canada.
Pursuant to its statutory power to summarily cancel a pharmacist’s licence without a hearing where there has been a conviction of an offence relevant to suitability to practice pharmacy or operate a pharmacy, the College summarily cancelled the pharmacist’s licence. The College chose not to follow its usual statutory investigation and disciplinary processes, which would have entitled the pharmacist to procedural safeguards and to a hearing.
Court of King’s Bench decision (2022 MBQB 29)
The pharmacist appealed the College’s decision to cancel his licence to the Court of King’s Bench, and was successful on that appeal. The Court concluded that:
- The appeal was required to proceed as a new matter pursuant to the Pharmaceutical Act, and that no deference was owed to the College’s cancellation decision;
- Where an offence is found to have been committed which is relevant to a pharmacist’s suitability to practice pharmacy, the College must still consider disciplinary sentencing principles in considering sanction; and
- Considering the underlying facts and disciplinary sentencing principles, cancellation of the pharmacist’s licence was not a proportionate nor appropriate sanction. The pharmacist had been practicing pharmacy for 30 years with no prior discipline record, was elected to Council twice and had given much back to his community. The pharmacist had also accepted responsibility for the actions underlying the U.S. offence, and had been punished for them. As a result, it was ordered that the pharmacist’s licence be reinstated.
Court of Appeal decision (2023 MBCA 69)
The College appealed the Judge’s decision to reinstate the pharmacist’s licence. Following a hearing, a unanimous Manitoba Court of Appeal dismissed the College’s appeal. The Court of Appeal agreed with the Judge’s finding that professional regulators are required to consider sentencing principles even when exercising their authority to summarily cancel a pharmacist’s licence. The Court of Appeal concluded that the Judge appropriately considered and weighed the facts before her in reaching her decision.
Key takeaways
Most professional regulatory bodies have the statutory authority to summarily cancel a member’s licence or registration in limited, defined circumstances, separate and apart from their usual complaint investigation and hearing processes. Where a professional regulator chooses to exercise that statutory authority, they must weigh and balance sentencing principles in determining whether cancellation is appropriate. Where a professional regulatory body fails to consider and apply those principles, its decision will be vulnerable to appeal.
The MLT Aikins legal team which represented the pharmacist in this matter were Tyler Kochanski and Jennifer Sokal.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.