January 4, 2012

Inadequate and irrelevant reasons cannot support a reasonable disciplinary decision

Administrative Law
Professional Regulation

Although courts are deferential to the expertise of regulators on standards of fitness and appropriate conduct by professionals, their ability to uphold regulatory decisions on judicial review or appeal may be constrained by inadequate reasons. A disciplinary panel must clearly illustrate the facts that support findings against members.

In a December 14, 2011 decision of the BC Supreme Court in Farbeh v. College of Pharmacists of British Columbia, a member of the College of Pharmacists of BC found guilty of five disciplinary charges by a disciplinary panel had three of the five findings overturned. The member was first suspended by the College in December of 2008, as a result of a site visit to her place of employment. After she was reinstated with practice restrictions, a subsequent audit of her practice resulted in her being suspended again in April 2009. The College issued a citation against her alleging she had, for example, practiced incompetently, failed to manage her pharmacy in compliance with applicable legislation, made threatening remarks to College staff, failed to comply with the College’s standards of practice, and misrepresented herself to her bank as being a member of the College during a suspension to procure a business loan.

The disciplinary panel found the member guilty of two counts based on admissions as to the conduct alleged. These findings of guilt were readily overturned by the Court, however, as it found unclear what, if anything, Ms. Farbeh was admitting to on the record. Even had there had been admissions, no clear connection existed between what she had admitted to and the particulars of the allegations against her. Further still, although the Panel stated that “ample evidence” also supported charges on the two counts, the Panel’s reasons failed to support the assertion of such ample evidence: “[53] … It is impossible to conclude that there was an articulation of the reason that the Panel was able to come to the conclusion that there was ‘ample evidence’. There is no reference to what ‘ample evidence’ is being relied upon.”

The Court also overturned a guilty count against Mr. Farbeh for misrepresenting herself to her bank as a registered pharmacist while her license was suspended. The disciplinary panel ultimately found Ms. Farbeh’s daughter had spoken to the bank on her behalf. Although the panel concluded Ms. Farbeh had most likely assisted her daughter in making this representation to the bank, that fact did not support the allegation in the citation, and the College made no attempt to amend the citation. The Court also took issue with irrelevant observations by the panel with respect to the member’s apparent behaviour during the hearing, which observations the panel appeared to rely on in concluding the allegation was proven.

This case is a clear reminder to regulatory bodies that decisions must be supported by clear and coherent reasons, and be limited to the allegations set out in the citation.

Farbeh v. College of Pharmacists of British Columbia, 2011 BCSC 1676.