Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232

Court of Queen ’ s Bench of Alberta Citation: Sobeys West Inc v Alberta College of Pharmacists, 2016 ABQB 232 Date: 20160422 Docket: 1403 06927 Registry: Edmonton Between: Sobeys West Inc and Sobeys Capital Inc Plaintiffs - and - Alberta College of Pharmacists Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice V.O. Ouellette _______________________________________________________ I. Introduction [ 1 ] This is an application by the Applicants [Sobeys] for a judicial review of the administrative action of the Respondent, the

Alberta College of Pharmacists [College], which enacted a delegated legislation, dated April 10, 2014, prohibiting pharmacists and pharmacies from offering inducements [Inducement Prohibitions] to customers for the purchase of pharmaceutical drugs and other products and services. II. Issues [ 2 ] The issues are as follows:

i) whether the prohibition of inducements offered through loyalty program by pharmacies and pharmacists is ultra vires the College under the Health Professions Act , RSA 2000 c. H-7 [ HPA ]; and ii) whether, in light of the records, the mandate of the College, to regulate pharmacies and pharmacists under the HPA , and ensure public interest in relation to prescription drugs and other designated pharmacy services, extends to the maintenance of competition, through the prohibition of loyalty programs. III.

Background of Facts [ 3 ] The facts were generally outlined in this Court’s previous decision on the standard of review in Sobeys West Inc v Alberta College of Pharmacists , 2016 ABQB 138 at paras 2-7 [ Sobeys West 2 ].

They were also outlined by Gill J. in Sobeys West Inc v Alberta College of Pharmacists , 2014 ABQB 333 at paras 10-15 [ Sobeys West 1 ]. [ 4 ] To summarize, the prohibition of inducements has been the subject of deliberation in the practice of pharmacy since at least 2004. [ 5 ] In 2009, the College enacted a provision to its Code of Ethics that pharmacists “do not provide rewards or incentives that have the potential to cause harm to a patient.” [ 6 ] In 2012, the College undertook a detailed review in relation to inducements including consultation with members, stakeholder interviews, focus groups and members of the public.

The end result of the review was the creation of a consultation paper entitled “ Inducements for Drugs and Professional Service: A Basis for a Prohibition ”, which was released on April 18, 2013. This paper identified the types of inducements that could be provided to patients, the impacts of those inducements on patients and the proposed prohibitions. [ 7 ] As stated in Sobeys West 2 (at para 5), the College adopted the Inducement Prohibitions, which are the subject of this judicial review, on April 10, 2014. IV.

Standard of Review [ 8 ] This Court previously determined that the appropriate standard of review on this judicial review for vires is correctness (see, Sobeys West 2 ). V. Analysis A. Katz [ 9 ] As previously stated by this Court in Sobeys West 2 , the Supreme Court’s decision in Katz Group Canada Inc v Ontario (Health and Long-Term Care) , 2013 SCC 64 [ Katz ], provides an outline of the analytical framework for conducting a review for vires . The analytical framework and analysis under Katz is recast as follows:

i) Are the Inducement Prohibitions inconsistent with the objective of the HPA or the scope of the statutory mandate? ( Katz at para 24 ); ii) Has the Applicant demonstrated the invalidity of the Inducement Prohibitions, based on an interpretative approach that aims at reconciling the Inducement Prohibitions with the HPA so that, where possible , the Inducement Prohibitions are construed in a manner which renders it intra vires ? ( Katz at para 25 ); iii) Using a “broad and purposive approach” to interpret the challenged Inducement Prohibitions and the HPA , are the amendments to the College’s Code of Ethics intra vires ? ( Katz at para 26 ); iv) Without “assessing the policy merits of the Inducement Prohibitions to determine whether they are ‘necessary, wise, or effective in practice,’” are the amendments to the College’s Code of Ethics intra vires ? ( Katz at para 27 );

v) Given that assessing vires is not an inquiry into the underlying “political, economic, social or partisan considerations” of the Inducement Prohibitions or the likelihood of their success at achieving the statutory objectives, are the amendments to the College’s Code of Ethics “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose of the HPA ? ( Katz at para 28 ) [ 10 ] The facts in Katz are somewhat unique in that the Ontario provincial government identified what it believed to be a significant

problem regarding excessive drug costs, in part related to the issue of private labelling on drug products. As a result, the legislatureadopted two statutes (which allowed for regulations) specifically for the purpose of controlling and reducing drug prices. [11] In essence, the Court in Katz was dealing with enabling statutes, which had a specific purpose in setting a “Course Policy”. Asa result, the Court stated that the vires inquiry could not assess the policy merits of the regulations made under the statutes to determinewhether they are “necessary, wise or effective in practice” (para 27 of Katz).

The Court continued at para 27 explaining the limit of theinquiry for vires as it relates to policy, by relying on the following: ... the judicial review of regulations, as opposed to administrative decisions, is usually restricted to the grounds that they are inconsistentwith the purpose of the statute or that some condition precedent in the statute has not been observed. The motives for their promulgationare irrelevant. [Ontario Federation of Anglers & Hunters v. Ontario (Ministry of Natural Resources) (2002), (ONCA), 211 D.L.R. (4th) 741 (Ont.

C.A.), at para 41] Therefore, if the review is of a delegated legislation or regulation (as is the case here), then motive is irrelevant. [12] Katz further went on to state that “it is not an inquiry into the underlying “political, economic, social or partisanconsiderations”” (para 28).

What is important to recognize in relation to this limited inquiry is that the facts dealt with in Katz relate tothe originating authority – that is an elected body, the legislature – authorizing the enactment of regulations under provincial statutes,with the specific purpose of reducing drug costs. [13] The facts of this case are that the legislature, in enacting the very broad HPA (applicable to 28 health care providers) didn’t setout to enact a specific law to deal with a specific identified problem, such as inducements. [14] A further example of this general broad legislation is the fact that the HPA governs all those professions that are subject to it,such that whatever they do in terms of regulating members and their activities must be done “in a manner that protects and serves thepublic interest” (s. 3(1)).

This is another clear indication that the legislature intended that the health professions as outlined in the HPAdo not have unfettered or carte blanche in exercising their delegated mandates. B.

Interpretation of the Statute [15] As stated earlier, the impugned delegated legislation or regulation and its enabling statute should be interpreted using a “broadand purposive approach” consistent with the general principles of statutory

interpretation (Katz at para 26). The Alberta Court of Appealalso provided direction as it relates to the

interpretation of a statute in AD v Alberta (Child, Youth and Family Enhancement Act,Director), 2010 ABCA 83 at para 22, 317 DLR (4th) 299, where it specifically observed that: As a matter of statutory

interpretation, the words of

an Act are to [be] read in context in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature: Ruth Sullivan, Sullivan andDriedger on the Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 1. That text also sets forth the governing principle ofthe presumption of coherence, which presumes that the parts of a statute fit together. This principle is explained at 168: It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioningwhole.

The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the frameworkhas a purpose the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intendedgoal. This presumption is the basis for analyzing legislative schemes, which is often the most persuasive from [sic] of analysis. Thepresumption of coherence is also expressed as a presumption against internal conflict.

It is presumed that the body of legislation enactedby a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming intoconflict with any other. [16] It is therefore presumed that the legislature did not intend to create contradiction or inconsistency in its legislation. As a result,it is necessary to determine the objectives, scope and/or intent of the legislature in enacting the HPA. [17] In addition to the legislation itself, the legislature often provides its objectives, intent or scope in a

preamble or recital to thelegislation. Unfortunately, there is no

preamble or recital to the HPA nor the Pharmacy and Drug Act, RSA 2000, c P-13 [Pharmacy andDrug Act]. However, a review of Alberta Hansard provides guidance into the intent and the objective of the legislature in enacting theHPA. Prior to reviewing Alberta Hansard to determine the legislature’s objective, it is to be noted that the HPA provided a regulatoryframework for 28 colleges, which governs 31 health professions. The Act is in fact divided such that parts 1 to 8.1 are applicable to all ofthe health professions.

Part 10 provides for 28 different specific provisions for each of the regulated professions. [18] The objective of the HPA was clearly stated by Mr. Renner, member for Medicine Hat during the second reading of the Bill: With this Act, our objective is to make the system work better by enhancing the provisions, making regulated health professionsaccountable to the public, and by providing the professions the tools they need to ensure their members meet expectations for competentand ethical practice.

Alberta Hansard, 13 April 1999 at p. 969 [19] Alberta Hansard provides further guidance in determining the scope and intent of the HPA in that it set out five principles thatguided the legislation itself. Those five principles were as follows: 1) The public must be protected from incompetent or unethical health professions. 2) The health professional regulatory system should provide flexibility in the scope and roles of professional practice so the healthsystem operates with maximum effectiveness.

3) The health professional regulatory system should be transparent to the public. Information about its workings and purpose should be credible and easily available to Albertans. 4) The regulatory process for health professions must be demonstrably fair in its application. The principles of natural justice must be observed throughout and decision makers should be accountable for decisions they make. 5) The health regulatory system must support the efficient and effective delivery of health services.

Alberta Hansard , 13 April 1999 at p. 969 [ 20 ] A further review of Alberta Hansard reveals that the legislature also intended on providing for greater flexibility when it comes to improved choice and access for consumers. Mr. Renner stated the following: The legislation will provide greater flexibility to address cross-professional issues such as overlapping scopes of practice and interdisciplinary practice.

Under this Act , professions will no longer have exclusive rights to provide health services… One of our four main objectives when we first began looking at health profession legislation was to reduce barriers to interdisciplinary practice and improve choice and access to health practitioners for consumers, employers and communities. Alberta Hansard , 13 April 1999 at p. 970 [ 21 ] Competency of the professions was also of significant importance to the legislature: In the new HPA , there will be a new increased emphasis upon professions maintaining and improving their competence.

Alberta Hansard , 13 April 1999 at p. 970 [ 22 ] As to the public interest, the legislature clearly saw and drew a distinction between the Colleges’ regulatory functions, in terms of professional self-regulation of practice by its members, and their economic functions: Mr. Renner stated the following: The role of regulatory colleges in serving the public interest will be clearly identified. The legislation will require that professions clearly separate regulatory and economic functions [ Emphasis added ].

Alberta Hansard , 28 April 1998 at p. 1779 [ 23 ] There is also further guidance as to the intent of the HPA , which is directly focused at dealing with professional conduct and competency of pharmacists. This is reflected in the adoption of the companion act, the Pharmacy and Drug Act . In enacting the HPA , the legislature sought to adopt the Pharmacy and Drug Act because: “When the HPA was being drafted, it became obvious that certain provisions in the Pharmaceutical Profession Act were inappropriate for inclusion under the HPA .” (Ms.

Tarchuk, 13 April 1999 at p. 990). [ 24 ] The review of the Alberta Hansard also demonstrates clearly that the licensing and operating of pharmacies, including scheduling of drugs, was to be contained in the Pharmacy and Drug Act , while the conduct and competency of pharmacists would be dealt with in the Health Professions Act . Ms.

Tarchuk stated the following in the legislature: The result is that the provisions of the Pharmaceutical Profession Act relating to the licensing and operation of pharmacies and the scheduling of drugs will now be contained in the Bill we are debating today, the Pharmacy and Drug Act , and provisions for professional conduct and competency of pharmacists will be contained in the HPA . Alberta Hansard , 13 April 1999 at p. 990 [ 25 ] The link between the HPA and the Pharmacy and Drug Act was stated by Ms. Tarchuk as being the complaint and discipline process under s. 22 (now s. 23 of the Pharmacy and Drug Act ).

The legislature went on to state the purpose of the Pharmacy and Drug Act as follows: The regulation of drugs and pharmacies in Alberta is critical in ensuring the health and safety of the public and to control costs. That is the purpose of the Pharmacy and Drug Act . Alberta Hansard , 13 April 1999 at p. 990 [ 26 ] Therefore, the legislature clearly intended the HPA to provide the framework necessary to ensure that all health professionals be competent and accountable to the public.

Further, the legislature clearly intended that the HPA would require the role of the regulatory colleges to be separate from economic functions. Section 3(2) of the HPA , which deals with the issue of professional fees, is clearly indicative of the fact that economic related issues are not one of the contemplated roles of the colleges under the HPA . This is in the sense that HPA, s 3(2) specifically excluded professional fees (an economic function) from their roles. This is further supported by the parallel, stated purpose of the Pharmacy and Drug Act , which is directed at the economic control of costs. C.

Katz Analysis

i) Are the Inducement Prohibitions inconsistent with the objective of the Health Professions Act or the scope of the statutory mandate? ( Katz at para 24)

[ 27 ] In order to determine if the Inducement Prohibitions are inconsistent with the objectives and the scope of the HPA , it is necessary to establish what those objectives and scope are. A review of Alberta Hansard as noted above clearly indicates that the objective and purpose of the HPA was to ensure that all health professionals be competent and accountable to the public. [ 28 ] Are the Inducement Prohibitions consistent with the above objectives and purpose of the HPA ? The only way to make that determination is to establish what the Inducement Prohibitions do.

The Inducement Prohibitions amount to controlling the way commercial entities (pharmacies) operate and compete amongst themselves in terms of prices offered to consumers and costs incurred by the affected patient consumers.

As a result, the Inducement Prohibitions are inconsistent with the objectives of the HPA , which as clearly set out by the legislature, are directed at the practice of the profession (see para 19 above). ii) Has the Applicant demonstrated the invalidity of the Inducement Prohibitions, based on an interpretative approach that aims at reconciling the Inducement Prohibitions with the HPA so that, where possible , the Inducement Prohibitions are construed in a manner which renders it intra vires ? ( Katz at para 25) [ 29 ] The applicant has demonstrated the invalidity of the Inducement Prohibitions based on an interpretive approach aimed at reconciling those very same Inducement Prohibitions with the HPA .

The Inducement Prohibitions relate to costing and pricing of drugs and what is ultimately the cost to the consumer. The Inducement Prohibitions have a clear and direct economic function. When the legislature adopted the HPA , it made it abundantly clear that the HPA was not to deal with economic issues as it relates to controlling costs.

That is the reason for the legislature’s adoption and enactment of the Pharmacy and Drug Act . [ 30 ] The legislature clearly intended that the regulatory aspects regarding the practice of the professions (pharmacists) would be dealt with in a separate legislation that is distinct from the economic aspects of the profession (pharmacies). As stated by Mr. Renner ( Hansard 28 April 1998 at p. 1779) the scope of the HPA would be separate from economic functions encapsulated in the Pharmacy and Drug Act .

He stated the following: The role of regulatory colleges in serving the public interest will be clearly identified. The legislation would require that professions clearly separate regulatory and economic functions. [ 31 ] Those economic functions were identified by the legislature to be dealt with under the Pharmacy and Drug Act . As stated by Ms. Tarchuk ( Hansard 13 April 1999 at p.990) the provisions of the Pharmacy and Drug Act would be for the purpose of licensing and operating of pharmacies and scheduling of drugs and the HPA was to deal with professional conduct and competency of pharmacists.

In addition, the legislature made it very clear that the purpose of the Pharmacy and Drug Act was the regulation of drugs and pharmacies as it relates to the health and safety of the public and to control costs.

Banning the offer to customers of benefits through loyalty programs by pharmacies is not related to the practice of the profession that engages issues of professional conduct and competency of individual pharmacists. iii) Using a “broad and purposive approach” to interpret the challenged Inducement Prohibitions and the HPA , are the amendments to the College’s Code of Ethics intra vires ? ( Katz at para 26) [ 32 ] Following the five principles set out that informed the enactment of the HPA , there does not appear to be any connection between the Inducement Prohibitions and the objective, purpose and scope of the HPA . [ 33 ] The Inducement Prohibitions do nothing to protect from incompetent or unethical pharmacists. [ 34 ] Further, the Inducement Prohibitions do not add flexibility to the role of the pharmacists so that the health system operates with maximum effectiveness.

Although the third principle guiding the legislation, that the health profession regulatory system should be transparent to the public, is not directly at issue, it bears noting that the Inducement Prohibitions are selective in that they do not prohibit, for example, free home delivery of drugs, free parking to the consumers of drugs, the charging of reduced or complete waiver of dispensing drugs’ fees or co-op patronage returns. That selective approach does not appear to be transparent.

The fourth objective regarding the regulatory process, along with the fifth objective that the system should support the efficient and effective delivery of health services, is in no way reflected in the Inducement Prohibitions. iv) Without “assessing the policy merits of the Inducement Prohibitions to determine whether they are ‘necessary, wise, or effective in practice,’” are the amendments to the College’s Code of Ethics intra vires ? ( Katz at para 27) [ 35 ] The College’s Code of Ethics , as contemplated under the HPA , are for the specific purpose of ensuring the competency and the professional conduct of pharmacists ( Hansard , 13 April 1999 at p. 990).

Without a determination of whether the Inducement Prohibitions are “necessary, wise or effective in practice,” what is clear is that their effect is a restriction placed on the operation of the pharmacy business with patient customers.

Loyalty programs relate to costing and competition, and the legislature adopted the Pharmacy and Drug Act , for that purpose. [ 36 ] In addition, section 3(2) of the HPA , which prevents the College from dealing with the economics of its regulated members, is further evidence of the legislative intent to exclude this subject matter (i.e. economic function in relation to professional fees).

v) Given that assessing vires is not an inquiry into the underlying “political, economic, social or partisan considerations” of the Inducement Prohibitions or the likelihood of their success at achieving the statutory objectives, are the amendments to the College’s Code of Ethics “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose of the HPA ? ( Katz at para 28)

[37] The Inducement Prohibitions are unrelated to the statutory purpose of the HPA. As discussed earlier, the InducementProhibitions have nothing to do with the competency or unethical behaviour of its regulated members.

Neither do these amendments haveany relationship to providing a regulatory system which operates with maximum effectiveness, nor make the regulated health professionof pharmacists accountable to the public. [38] The assessment of the vires of the Inducement Prohibitions, in the present application, transcends the boundaries of theprovision of s 3(2) of the HPA, which limits the College’s ability to control professional fees.

In this regard, I agree with the College’sobservation that “professional fees” are distinctive from costs or prices “charged by corporate entities for drugs or services that thecorporate entities provide through pharmacists who may be employed by the corporate entities”: College’s Supplemental Brief, para 58. [39] The legislative act of the College, when it enacted the Inducement Prohibitions, trenches on the issue of prices andcommercial competition vis-à-vis the public as consumers.

The provision of loyalty programs by businesses that operate pharmacies, asintegral parts of their businesses, is an aspect of competition designed to attract consumers. Effectively, loyalty and reward programsgenerally amount “to a price reduction, or a discount to the [cost or price] that would otherwise be charged to the customer”: ApplicantsSupplemental Brief, para 56.

This is also true of free delivery, free parking, discounted or waived drugs’ dispensing fees, and co-oppatronage returns. [40] The College’s legislative action amounts to controlling the way commercial entities operate and compete among themselves interms of prices offered to consumers and costs.

By enacting the Inducement Prohibitions, the College is effectively dictating to thesebusinesses that they cannot offer loyalty programs in respect of certain units of their commercial operations. [41] In other words, based on the singular fact that commercial entities have pharmacy units as integral parts of their operations,the College is indirectly restricting commercial competition (and prohibiting the offering of price discounts) among those businesses, bydirectly prohibiting professional pharmacists (and pharmacies) from providing inducements to patient consumers.

In Attorney General ofthe Province of Quebec v Attorney General of Canada, (SCC), [1979] 1 SCR 218 at 242-43, 90 DLR (3d) 161, theSupreme Court observed that “you cannot do that indirectly which you are prohibited from doing directly.” [42] The HPA does not contemplate that the College’s authority or jurisdiction in regulating the practice of the pharmacyprofession would extend to the regulation of economic relations or competition among commercial or business entities.

As such, theamendments contained in the Inducement Prohibitions are “irrelevant, extraneous or completely unrelated” to the statutory purpose of theHPA. D. Catalyst Analysis [43] Alternatively, if the Inducement Prohibitions is intra vires - which I have concluded earlier, it is not - is the policy choicereasonable?: Bow River Restaurant v Alberta (Workers' Compensation Board), 2015 ABQB 688 at para 27 [Bow River]. In that case,Crighton J concluded that “the test for determining whether WCB policy is ultra vires requires a two part analysis.

First the Court mustdetermine, on the correctness standard, whether the policy is grounded in the Act, and second, if it is, whether the choice of policy isreasonable in the sense that it is not clearly irrational.” [44] In this context, it is worthy of reiteration that the College’s action was an administrative or subordinate legislation and was nota “decision” in the sense of applying the provisions of the HPA to a set of facts, with written reasons provided at the end of theadjudication. [45] The Supreme Court of Canada in Catalyst Paper Corp v North Cowichan (District), 2012 SCC 2 at para15, [2012] 1 SCR 5[Catalyst] made it very clear that when it comes to delegated legislation, the standard of correctness may still be applicable.

In para 15 ofCatalyst, the Court stated: “Numerous cases have accepted that courts can review the substance of bylaws to ensure the lawful exercise of the power conferred onmunicipal councils and other regulatory bodies.” [46] The Supreme Court of Canada further stated at para 12 that: “This substantive review is premised on the fundamental assumption that derived from the rule of law that a legislature does not intendthe power it delegates to be exercised unreasonably, or in some cases incorrectly” (Emphasis added).

Therefore, if upon substantive review it is shown that the delegated authority made a policy choice that was not contemplated by theenabling statute, then the policy would be unreasonable or incorrect; Catalyst at para 12 and Bow River at para 27. [47] In the HPA, the legislature imposed a mandatory positive obligation upon the College that all of its activities and thegoverning of its regulated members must be done in a manner that protects and serves the public interest. [48] This high standard imposed upon the College under s 3(1)(

a) is in fact in keeping with the five principles that guided thelegislation itself as stated earlier. In Alberta Hansard, 13 April 1999 at para 969, the word “must” is mentioned several times.

The firstof the five principles states “(1) the public must be protected”; … (4) “The regulatory process for health professionals must bedemonstrably fair in its application to the principles of natural justice”; (5) “The health regulatory system must support the efficient andeffective delivery of health services.” Therefore, all amendments to the Code of Ethics or Standards of Practice are subject to therequirements of s 3(1)(a).

It is important to remember that the legislature not only intended that the public must be protected and servedwhen dealing with pharmacists, but contemplated 28 health care providers to which the HPA applies. [49] As a result, any college who wishes to adopt regulations must do so in a manner that protects and serves the public interest.Protecting and serving the public interest was of central importance to the legislature. The public interest is not limited to the interests ofthe College or its regulated members or pharmacies. In fact, the interest to be protected and served is much broader.

That public interest,

as it relates to the HPA , is tied to the health and safety of the public. The health of the public is not restricted to physical health but also includes mental and economic health. [ 50 ] What are the obligations upon the College to protect and serve that public interest? The word “must” is defined in the Canadian Oxford Dictionary as: “be obliged or required to, be necessary that, be certain to, should, ought to.” [ 51 ] Therefore, when regulating its members, the College is obliged to demonstrate that its actions will protect and serve the public.

If the legislature had intended that the College be permitted to enact Inducement Prohibitions without assessing its merits to ensure that they protect and serve the public interest, they would have said so. The language used by the legislature in 3(1)(

a) is not permissive. Although the standard imposed by the legislature, “must”, cannot be said to be proof beyond a reasonable doubt, it is clear that it must at least be based on some convincing evidence. [ 52 ] If the legislature had intended that all of the colleges, being governed by the HPA , including pharmacists, be entitled to adopt regulations that are aspirational or political or partisan, without a foundational basis to ensure the protection and service to the public, then they would have said so. Section 3(1) (

a) in fact placed a specific limitation on all the colleges to not adopt regulations unless there is a solid foundation (i.e. must protect and serve the public interest) which justifies it. [ 53 ] Although this Court, on December 3, 2015, allowed the applications to enhance the record with evidence that existed prior to the decision of the College and allowed fresh evidence, I need not rely on the enhanced and fresh evidence whatsoever.

In that regard, I adopt as my own, the findings of Gill J in Sobeys West 1 at para 24: In particular, there is little evidence in the extensive Record filed by the College to support the conclusion that the loyalty programs cause harm to the public or are not in the public interest. Much of the information relied upon by the College to support its course of action appears to be anecdotal. There were no formal complaints by members of the College or the public concerning the loyalty programs.

There were no investigations by the College into cases involving loyalty programs. [ 54 ] There is no evidence of actual or reasonable possible harm to customers (patients) as a result of loyalty programs or other forms of inducements. I also agree with the assessment made by the Competition Bureau of Canada regarding the lack of empirical evidence as it relates to the impact of Inducements. In a letter to the College dated September 26, 2013 (Record-Vol.

III, 87 page 838) the Competition Bureau stated the following: While we understand the view that consumer choice over medications should be primarily influenced by medical need, it is not clear from your document that the [Alberta College of Pharmacists’] views on the impact of inducements on consumer decisions to purchase prescription drugs is based on any empirical evidence.

We would respectfully suggest that, without such evidence, it is difficult to conclude that any of the negative consequences associated with this consumer behaviour can be determined. [ 55 ] The record relied upon by the College to enact the Inducement Prohibitions (without the amplified record or fresh evidence) provides no evidence that the public interest will be protected and served by these Inducement Prohibitions.

As a result, the College has exercised its delegated power improperly, because it went beyond what was intended by the legislature. [ 56 ] Contrary to the current Inducement Prohibitions, the College’s 2009 Amendment clearly was dealing with the competency and prevention of unethical behaviour of a pharmacist. The public interest was protected and served by obligating the pharmacist to be competent and ethical. That was the first objective of HPA as noted above (para 19). Therefore, the 2009 Amendment, which was consistent with the purpose of the HPA , would protect and serve the public interest. E.

Section 133 of the HPA [ 57 ] The College also argues that s 133 of the HPA , in essence, empowers the College to adopt bylaws or regulations irrespective of their contents, so long as the College has provided the proposals for review and comment to its members and the Minister. I am of the view that the provisions of s 133(2) provide no assistance to the reviewing court in applying the appropriate standard of review.

Section 133(2) cannot stand for the proposition that the administrative body (College) could adopt any regulation it wished irrespective of whether or not they were ultra vires (beyond the powers it was delegated) or egregiously unreasonable, so long as they provide its members with the proposals for their review and comment. The purpose of s 133(2) is to provide procedural fairness and ensure adherence to the principles of natural justice (as evidenced in the legislature’s objectives 3 and 4 in para 19 above).

It is not to be interpreted as a means of avoiding judicial review or giving the College carte blanche to enact any legislation they so choose. VI. Conclusion [ 58 ] For all of the reasons stated above, the prohibition of inducements offered through loyalty programs by pharmacies is ultra vires the College under the Health Professions Act . Heard on the 2 nd and 3 rd days of December, 2015, and the 4 th day of March, 2016. Dated at the City of Edmonton, Alberta this 21 st day of April, 2016.

V.O. Ouellette J.C.Q.B.A. Appearances: Peter A. Gall, Q.C. & Andrea L. Zwack Gall Legge Grant & Munroe LLP for the Plaintiffs David N. Jardine & William W. Shores, Q.C. Shores Jardine LLP for the Defendants