January 20, 2011

Immediate judicial review permissible for a discipline panel’s refusal to order production of documents

Administrative Law
Professional Regulation

A judicial review of a discipline committee’s refusal to order production of third party records – records that registrants sought in order to cross-examine key witnesses during a discipline hearing – was found to be warranted, despite the general rule that tribunals should be allowed to complete their work without being derailed by judicial review, in Ibrahim v. Ontario College of Pharmacists, 2011 ONSC 99, [2011] O.J. No. 109 (Div.Ct.).

In that case, registrants asserted entitlement, as a matter of procedural fairness, to “production of third party records sufficient for counsel to effectively cross-examine the two key witnesses to be presented by the College at the hearing, the treating psychiatrist and the family doctor” [5]. The psychiatrist’s credibility would be a key issue. The discipline committee ruled that the pharmacists had no right to subpoena documents in the hands of third parties. The registrants brought an appeal, which was technically improper, and a judge properly quashed the appeal, but she also refused to convert the appeal into a judicial review. The Divisional Court reversed that finding and ordered a judicial review, reasoning that the judge did not consider “[9] … the likelihood that requiring the pharmacists to proceed to a hearing without the documents would be so fundamentally unfair as to vitiate the hearing upon subsequent judicial review.” The Divisional Court noted that, “[5] … this may be one of those rare cases warranting consideration by a full panel, notwithstanding the fact that the case is at a preliminary stage.”

Ibrahim v. Ontario College of Pharmacists, 2011 ONSC 99, [2011] O.J. No. 109 (Div.Ct.) (January 11, 2011)