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