Entitlement to Special Costs

In Malik v. the Law Society of British Columbia 2013 BCCA 337, a member of the Law Society who had been disciplined unsucessfully, asked for special costs against the Law Society.  The member had been involved in a Rowbotham application seeking state funding for his father's defence against criminal charges.  The judge hearing the application expressed some concerns about the member's conduct in his reasons.  These came to the Law Society's attention.  It investigated the member and a Citation was issued.  Ultimately, all of the allegations against the member were dismisssed.  They were serious in nature alleging such things as filing a false or misleading affidavit and participating in a scheme to provide false information to the Court.

The member argued that he was entitled to special costs, because the Law Society's conduct of his case had been reprehensible, and that the Law Society review panel ought to have considered the special costs regime in the Rules of Court and applied it.  These arguments were rejected on two bases.  The first was that as a matter of fact, there was no reprehensible behaviour on the part of the Law Society.  As to the argument that  the Court's regime for special costs was applicable, the Court held that since the Law Society was authorized in its legislation to regulate assessment of costs, and had done so, the Court's regime did not apply, although the Court's jurisprudence might be a helpful consideration (see Shpak v. Institute of Chartered Accountants of B.C. 2003 BCCA 149.)

 http://canlii.ca/t/fzqb1

JOINT SUBMISSIONS AND DISCIPLINE PROCEEDINGS

In Nanson v. Saskatchewan College of Psychologists, 2013 SKQB 191, the Saskatchwan Court of Queen's Bench considered a situation where  the College and Registrant had reached an agreement on the facts and penalty for certain professional infractions.  Counsel for both parties made a joint submission to the Discipline Committee regarding these matters.   The hearing took 5 minutes.  Some time later, the Discipline Committee issued a 13 page decision in which it rejected the recommendations made by both parties, substituting its own conclusions on characterization of the offences and penalty.  There were several issues on appeal, but the most important one for today's post, is that the Discipline Committee did not advise counsel that it was considering rejection of the joint submission.  It did not give counsel an opportunity to respond to its concerns.  The Court ruled that this was a breach of procedural fairness and allowed the appeal in part. 

In reaching this conclusion, the Court made several important observations about the role of joint submissions.  It said, among other things, at paragraph 48:

Generally, the negotiations that are needed to arrive at a joint submission can only work effectively if both the offender and the prosecutor are able to proceed with a considerable amount of confidence that the agreement will be implemented. There is, of course, no guarantee that this will be done by the sentencing judge. However, the cases clearly state that such a judge should only depart from a joint submission after applying carefully considered principles. This law respecting the rejection of a joint submission is well known, and ought to have been known to the Discipline Committee here given the reference to Rault. The trial judge should not reject a joint submission unless it is unfit or unreasonable. A joint submission should only be departed from where the proposed sentence is contrary to the public interest, and, if accepted, would bring the administration of justice into disrepute. The obligation of a trial judge to give serious consideration to a joint sentencing submission stems from an attempt to maintain a proper balance between respect for the arrangement reached, and the sentencing court’s role in the administration of justice.

It may be helpful for counsel to cite this decision to a discipline committee in situations where a joint submission is being made.

http://canlii.ca/t/fxlc0

SCC Addresses Guidelines in Administrative Context

The SCC has issued a useful decision in Agraira v. Canada (Public Safety and Emergency) 2013 SCC 36, a case involving review of a Ministerial decision denying a Libyan citizen relief from an order that he was not admissible to Canada because of sustained contact with known terrorist and/or terrorist connected organizations.  Although it is not directly relevant to professional regulation, the decision contains an excellent summary of current jurisprudence about the reasonableness standard on an application for judicial review (Paragraph 48 ff).  Beginning at paragraph 76, it also contains a useful analysis of the principles of statutory interpretation, examining the purpose of the legislative provision in question and the context in which it operates.  The main reason I have noted the decision is because it may be the first in which the SCC discusses the use that may be made by an administrative agency of guidelines - in other words, directions that are in the form of policy rather than legislation.  In this case the Minister made his decision regarding the applicant, in part relying on a manual prepared by Citizenship and Immigration Canada entitled Inland Processing Manual:"Refusal of National Security Cases/Proecessing of National Interest Requests".  At paragraph 60 the SCC said that the  manual's guidelines contained a set of factors that were relevant and reasonable to be used in evaluating applications of the kind before the Minister.  It noted that these guidelines did not have to be applied formulaically, but guided the exercise of his discretion and assisted in framing a fair administrative process for such applications.  As a result, the Guidelines can be of assistance to the Court in understanding the Minister's implied interpretation of...."  In my mind this is an important recognition which can be relied upon in the regulatory context of professions.  Inquiry Committees, Discipline Panels, Registrars and others working within the system can safely rely upon policy directives, knowing that they have weight before a Court.

http://canlii.ca/t/fz8c4

Pharmacy Clearing House Subject to Provincial Jurisdiction

In Ontario College of Pharmacists v. 1724665 Ontario Inc (Global Pharmacy Canada),   2013 ONCA 381, the Ontario Court of Appeal upheld an injunction granted by the Ontario Supreme Court ruling that an internet pharmacy business  (Global) based in Mississauga, Ontario, selling drugs to Americans, supplied by pharmacists in India, is subject to the jurisdiction of the Ontario College of Pharmacists.  Global operated a call center from which its employees received internet orders for prescription medication from Americans.  Canadians were blocked from accessing the site.  The orders were processed, payment received or refunded if necessary, and problems were solved at Global.  The drugs were sent directly to the American customers from pharmacists in India and did not enter Canada.  The drug packages were sent into the US labelled as "health products for personal use".  Global argued that it was not subject to provincial regulation because it was not selling prescription drugs to customers in Ontario and the contracts were not substantially connected to Ontario. The OCA upheld the trial judge's analysis that the purposive approach  to statutory interpretation meant that there was a substantial connection to Ontario notwithstanding that the public affected was outside the jurisdiction.

http://canlii.ca/t/fz49z

Off Duty Conduct & Standard of Review

In Fountain v. BC College of Teachers 2013 BCSC 773, the BCSC recently considered the standard of review in an interesting case involving off duty conduct of a teacher.  He was experienced in the use of firearms and had qualified for a Firearm's Acquisition Certificate.  He had some difficulties with his sons who were young men at the time of the events.  The family lived  on a farm and there was an incident as a result of which the teacher fired a rifle above the heads of his sons to warn them away from the farm house.  He was convicted of careless use of a firearm, but the conviction was overturned on appeal, and he was acquitted. 

The College of Teachers inquired into this conduct and found that his conduct amounted to professional misconduct.  The discipline panel was aware that the criminal conviction had been overturned and the reasons why.  He appealed the findings from the College and they were overturned.

The decision contains an excellent summary of the role of a reviewing court especially where  off duty conduct is concerned.  In its decision, the panel did not explain why the conduct in this particular case was relevant to  the teacher's ability to function as an educator or whether it would harm the education system. 

In addition, the panel had not taken into account the reasons why the criminal conviction had been overturned.  The court concluded that the reasons did not demonstrate a line of analysis and pass the test for reasonableness as to how they arrived at their decision when the facts found by the panel are reviewed, together with the conclusion.  (paragraph 46)

http://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc773/2013bcsc773.html

Patient Physician Confidentiality

The BCCA has refused an order on behalf of the plaintiff in a class action for the names and contact information of patients  from a large number of physicians who may have injected their patients  with  Dermalive.  The physicians were not parties to the class action.  The objective of the application was to facilitate giving notice of the class action to people who may be members of the class. 

The Court  reviewed 2 decisions of the SCC on the special place of confidentiality in the physician patient relationship in Canada:  Halls v. Mitchell [1928] S.C.R. 125 and McInerney v. MacDonald [1992] 2 S.C.R. 138, and concluded that although the value of redress through the justice system is significant....one cannot say that recovery of money trumps the rights of the patient to keep private both the nature of medical services received and contact information held by the physician. (para 18)

Logan v. Dermatech et al  2013 BCCA 49