April 9, 2017

Registration and reinstatement: is good character for one, good character for all?

Professional Regulation
Registration and Fitness

In February 2017, we wrote about the decision of an Ontario court to uphold a decision refusing reinstatement to a former pharmacist (here). We recently noticed, however, an interesting aspect of the tribunal decision (not the court decision) relating to the applicant having proven good character to a different regulator. So here it is again, with a slightly different emphasis.

In Manoukian, an Ontario court upheld a decision of a discipline committee dismissing a reinstatement application of a former member whose membership with an Ontario college had been twice previously revoked, first in 1983 after the applicant pleaded guilty to trafficking a narcotic (oxycodone), and after his reinstatement in 1989, again in 1996, after he was convicted for fraud over $1,000 involving false claims to the Ontario Drug Benefit Plan. The court found that the committee acted reasonably in deciding he had not proven he was currently suitable for re-entry, despite (a) his testimony, (b) expert evidence concerning a minimal risk of re-offending, and (c) his good character for purposes of his practising as a paralegal: Manoukian v. Ontario College of Pharmacists, 2017 ONSC 589, dismissing a review of 2016 ONCPDC 4.

The discipline committee’s reasoning revealed that the panel

  • rejected the applicant’s testimony as “self-serving and generally not forthright,” and considered him a “an unreliable and unbelievable witness”; [DC at 31]
  • declined to find that the applicant represented a minimal risk, despite evidence of a psychologist and a psychiatrist that the applicant represented a “minimal risk” to reoffend, as one expert was not qualified as an expert “in the specific rehabilitation of Pharmacists” [41], and it could not rely on the evidence of a second expert as the applicant had admitted “he lied to psychological assessors in the past”; [42] and
  • his governability in another profession – namely, as a paralegal – was not sufficient evidence of his governability as a pharmacist.

On the limited relevance of the applicant’s governability as a paralegal, the discipline committee panel reasoned that the concerns of the professions are different:

“The legal profession is highly respected, but does not necessarily carry the same burden for the safety, physical wellbeing, and protection of the public as does the profession of pharmacy. It also does not expose the Applicant to any of the risks for which he was previously sanctioned.  Although the Applicant has shown, through all the documentation provided, that he is governable within the legal profession, the Panel’s concerns are that this demonstrated governability of the Applicant is not adequate proof of his governability within the pharmacy profession. Evidence of governability in one profession is not demonstrable proof of the transferability of that governability to another.” [DC at 34] (emphasis added)

The court found the decision of the panel reasonable in all respects. In particular, the panel’s references to a “very high bar” did not show that it applied a standard of proof greater than a balance of probabilities; rather, its reference merely reflected the nature of the evidence required to meet that burden (e.g., given the applicant’s two prior revocations). In assessing the applicant’s testimony, the court recognized that the panel saw and heard the applicant and was “uniquely positioned” to make its determinations. In rejected the expert evidence, the panel was entitled to take into any account any risk that remained.

The court did not address the determination below that the applicant’s good character for purposes of practising law (as a paralegal) was insufficient to show his good character for purposes of pharmacy. Such a finding by the panel illustrates, however, that “good character” requirements may differ between professions (as we remarked here).

Manoukian v. Ontario College of Pharmacists, 2017 ONSC 589

Lisa C. Fong and Michael  Ng