LNR v Mountview Pharma Corp, 2017 ABQB 730

Court of Queen’s Bench of Alberta Citation: LNR v Mountview Pharma Corp, 2017 ABQB 730 Date: 20171206 Docket: 1510 00925 Registry: Red Deer Between: L.N.R. and C.S. Inc.

Plaintiffs (Respondents) - and - Mountview Pharma Corp. operating as Sproule's Mountview IDA Drug Store, Ian Hollingshead, Bryon Wright and John Doe Defendants (Appellants) Notice Regarding Publication The Court has used initials regarding certain parties as a result of this judgment making reference to medical information of such parties or their principals. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice C.S. Phillips _______________________________________________________ Appeal of Master Farrington’s Decision Filed on the 28 th day of February, 2017

Dated the 27 th day of February, 2017 Introduction [ 1 ] The individual Respondent L.N.R. and her company, C.S. Inc. commenced an action against the Appellants pharmacists, Ian Hollingshead and Byron Wright, and pharmacy business, Mountview Pharma Corp. operating as Sproule’s Mountview IDA Drug Store (“Mountview”).

The Respondent, alleges professional negligence against the Appellants for dispensing Novo-Azathioprine, (“Novo”), a generic form of the brand name drug Imuran, instead of her medication, Apo-Azathioprine (“Apo”), another generic form of Imuran, which she had previously been taking to deal with a hair loss issue. The Respondent alleges that the Appellant pharmacists, Hollingshead and Wright ought to have provided her with Apo and that she suffered personal injuries, including loss of hair, as a result of taking Novo. The Appellants appeal the decision of Master Farrington that dismissed their applications for

summary dismissal. They argue that they have a complete defence on the basis of section 6(2) of

Schedule 19 to the Health Professions Act , RSA 2000, c H-7 (“ HPA ”) and that the Master’s decision should be reversed. [ 2 ] This Appeal deals with the Master’s

interpretation of

section 6 of

Schedule 19 of the HPA and in particular its section 6(2). More specifically, what are the consequences, if any to pharmacists and pharmacies and in this case to these Appellants, who substitute one generic drug for another generic drug and a claim is brought against them? [ 3 ] Access to affordable medication is an important goal. On one hand access to generic drugs is certainly one way to reduce costs. On the other hand, did the Alberta legislature in

section 6 of

Schedule 19 of the HPA mean to favour low cost of drugs, eliminate any duty of care and grant blanket protection through its section 6(2) to pharmacists when dispensing generic equivalent drugs? Is it clear that the Alberta legislature favoured the benefit of costs savings over the risk of harm to patients? As explained below, I dismiss the appeal because the importance of the legal and factual issues in this case means that the issues cannot be fairly decided on a

summary record. Facts [ 4 ] The Respondent had been taking Apo to deal with a hair loss issue. She was happy with the medication and her treatment. Her recollection of events is that when she picked up her prescription on August 20, 2013 from Mountview, nothing was said to her about the change in her medication from the generic drug Apo to another generic drug Novo, which substitution had been made because the Apo version of the drug was unavailable. She did not notice that she had received a different generic drug right away, because she still had some medication from the prior refill.

As an aside, apparently Novo and Apo are different versions of the generic drug Azathioprine made by different manufacturers. The original brand name version and formulation of the drug is Imuran. [ 5 ] On October 22, 2013, the Respondent opened the bag that she had picked up at Mountview on August 20, 2013 and noticed that the pills were of a “different shape and crumbled badly when broken in half.” She also noted that there was no drug information printout provided. She immediately contacted Mountview, by telephone, as she believed it was a mistake.

The Respondent’s recollection is that the pharmacist she spoke to (who is confirmed to be the Appellant Hollingshead) replied to her “direct statement that they had given me the wrong pills, that Novo-Azathioprine was exactly the same medication as Apo Azathioprine.” She also remembers repeatedly questioning the change, despite Mr. Hollingshead’s assurance to her it was the “same” drug as Apo and they were interchangeable. According to her, she had never been given anything other than Apo for some time.

She also remembers mentioning her sensitivity and allergies to medications including to antibiotics and penicillin. She also specifically mentioned that she did not want to have chunks of her hair falling out again. The Respondent’s recollection is that “[h]e proceeded to reassure me ‘no, nothing like that’ and did not indicate any potential risks whatsoever.

After receiving this reassurance from the Appellant, Hollingshead, the Respondent took Novo for a brief period of time and then claims she suffered significant hair loss and other adverse effects. [ 6 ] The Appellant pharmacists claim the pharmacists at Mountview had a standard practice where they would attach a handwritten note indicating the brand change and would take the drug out of the bag to show the customer (the “patient”). Also, their practice was that if they had the original generic brand in stock (for example, Apo), they would have filled it with Apo and not Novo as they had in the past.

However, as noted, Apo was not available when the Respondent picked up the prescription. [ 7 ] The Appellant Mountview says that if the Respondent had not wished to switch from Apo to Novo, she had the option to call other pharmacies in the area to obtain Apo. Master’s Decision [ 8 ] The Master dismissed the

summary dismissal applications. The issue in front of the Master was whether

section 6 of

Schedule 19 to the HPA and in particular section 6(2) is an entire defence to the action for the Appellants. The Master wrote that the issues in the case before him were whether the facts are sufficiently undisputed to consider the case for

summary judgment and whether the facts fell clearly within

section 6. He noted there did not appear to be any reported cases dealing with

section 6 or similar sections in Canada. [ 9 ] The Master was of the opinion that section 6(1) authorizes a pharmacist to make drug changes in the circumstances described in that subsection. He also concluded that section 6(2) provides protection for the pharmacist who makes a substitution or change in accordance with subsection 1 of

section 6. The Master saw no ambiguity and was of the opinion that the two subsections could be read together harmoniously. [ 10 ] The Master noted that the original prescription was handwritten and was for “Azathioprine”. He also noted that the pharmacy’s electronic version of the prescription on the pharmacy’s system referred to “Novo-Azathioprine” being filled as a

replacement for “Apo-Azathioprine” and not to Azathioprine. He concluded that there was some factual room for debate as to whether this was a filling of a prescription for the generic drug “Azathioprine”, or whether the prescription had evolved to being treated as one for Apo-Azathioprine in the pharmacy’s system. On the Master’s latter comment, the Appellant Mountview says that the Master erred in that he confused the prescription written by the prescriber Dr. Searles with the pharmacy’s computer generated document. They add that the pharmacy’s system is not the prescription. [ 11 ] The Master concluded that section 6(1) of

Schedule 19 to the HPA did not apply to what occurred here (i.e. a change from one generic drug to another generic drug) because section 6(1) is about changing from a brand name drug to an equivalent generic drug or changing from a drug with a name other than its generic name to an equivalent generic drug. In the result, because what happened here did not fit into these two scenarios described in section 6(1) of

Schedule 19 to the HPA and because the two sections 6(1) and 6(2) are to be read together harmoniously, the Master could not give the Appellants the protection afforded by section 6(2) of

Schedule 19 to the HPA , for in his view, section 6(2) only provides protection to a pharmacist making a substitution or change in a drug in accordance with section 6(1). [ 12 ] The Master also went on to say he was of the opinion that the issues in this case are about equivalence of drugs, advice and expertise but that the

summary dismissal application before him was solely based on

section 6. Issue [ 13 ] The issue on appeal is whether this action should be summarily dismissed under Rule 7.3 of the Alberta Rules of Court , Alta Reg 124/2010 on the basis that the Appellants, Hollingshead and Wright and by extension Mountview are statutorily protected by section 6(2) of

Schedule 19 of the HPA, such that there can be no merit to the Respondents’ claim. [ 14 ] I should note that following argument by all counsel on this Appeal, I requested from counsel that I be provided with further written submissions regarding the meaning of the word “dispense” and “dispensing” as used in

section 6 of

Schedule 19 to the HPA and the evolution of the practice of pharmacy over the years. I received those supplemental briefs, which I have taken into account in rendering my decision on this Appeal. Standard of Review [ 15 ] All agree that the standard of review with respect to an appeal from a master’s decision to a judge is correctness. No deference is owed to the master’s decision : Bahcheli v Yorkton Securities Inc . , 2012 ABCA 166 ; see also for example Grivic v Alberta Health Services (Tom Baker Cancer Clinic) , 2015 ABQB 811 at paras 7 and 8 , aff’d 2017 ABCA 246 .

Legislation [ 16 ] Rule 6.14 regarding appeals of a master's judgment of the Alberta Rules of Court provides as follows: 6.14(1) If a master makes a judgment or order, the applicant or respondent to the application may appeal the judgment or order to a judge. [...]

(3) An appeal from a master’s judgment or order is an appeal on the record of proceedings before the master and may also be based on additional evidence that is, in the opinion of the judge hearing the appeal, relevant and material. [...]

(8) A party may rely on its original written argument, if any, that was before the master or any further argument filed under subrule (5) (

c) or (6)(a), or both the original argument and the further argument. [ 17 ] Rule 7.3(1) provides as follows with respect to an application for

summary judgment: 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. [ 18 ] The relevant provisions of

Schedule 19 (Profession of Pharmacists and Pharmacy Technicians) of the HPA are as follows: Practice 3(1) In their practice, pharmacists promote health and prevent and treat diseases, dysfunction and disorders through proper drug therapy and non drug decisions and, in relation to that, do one or more of the following: (

a) assist and advise clients, patients and other health care providers by contributing unique drug and non drug therapy knowledge on drug and non drug selection and use,

(

b) monitor responses and outcomes to drug therapy, (

c) compound, prepare and dispense drugs, (

d) provide non prescription drugs, blood products, parental nutrition, health care aids and devices, (

e) supervise and manage drug distribution systems to maintain public safety and drug system security, (

f) educate clients, patients and regulated members of the Alberta College of Pharmacists and of other colleges in matters described in this section, (

g) conduct or collaborate in drug related research, (

h) conduct or administer drug and other health related programs, and (

i) provide restricted activities authorized by the regulations.

(2) In their practice, pharmacy technicians promote safe and effective drug distribution and, in relation to that, do one or more of the following under the direction of a pharmacist: (

a) receive, gather, enter and store prescription and patient information, (

b) store and repackage products, (

c) participate in the management of systems for drug distribution and inventory control, (

d) participate in the research, development, implementation and evaluation of quality assurance and risk management policies, procedures and activities, (

e) provide restricted activities authorized by the regulations, (

f) instruct patients about the use of health aids and devices, and (

g) teach the practice of pharmacy technicians. Dispensing of generic or brand name equivalents 6(1) If a prescription refers to a drug or drug combination by a brand name or a name other than its generic name, the regulated member who dispenses the prescription may dispense a drug or drug combination that is the generic or brand name equivalent of that named in the prescription unless the prescriber indicates otherwise (

a) by designating the name of the manufacturer on the prescription, or (

b) by specifying in the prescriber’s original handwriting that no generic or brand name equivalent may be dispensed.

(2) No action may be commenced against a regulated member for dispensing a drug that is the generic or brand name equivalent of the drug named in the prescription unless the prescriber has indicated in accordance with subsection (1) that no drug other than the drug specified in the prescription may be dispensed. [ 19 ]

Section 133 of the HPA provides as follows: Code of ethics, standards of practice 133(1) A council may, in accordance with procedures set out in the bylaws, develop and propose the adoption of a code of ethics and standards of practice for a regulated profession and may develop and propose amendments to an adopted code of ethics or standards of practice.

(2) The college must provide, for review and comment, a copy of a proposed code of ethics and proposed standards of practice and proposed amendments to (

a) its regulated members, (

b) the Minister, and (

c) any other persons the council considers necessary.

(3) A council may adopt a code of ethics and standards of practice and may adopt amendments to a code of ethics or standards of practice after it has reviewed and considered the comments received from a review described in subsection (2).

(4) The Regulations Act does not apply to a code of ethics or to standards of practice adopted or amended under this section.

(5) The college must ensure that copies of the code of ethics and standards of practice adopted under subsection (3) are readily available to the public and regulated members, and the copies may be distributed in the manner directed by the council. [ 20 ] Sections 1 (

d) and 10 of the Pharmacy and Drug Act , RSA 2000, c P-13 (“PDA”) provide as follows:

(1) In this Act, [...] (d) “dispense” means, with respect to a drug, any one or more of the following: (

i) evaluating a prescription for a drug; (ii) assessing the patient and the patient's health history and medication record; (iii) packaging and labelling of a drug; (iv) providing a drug to or for a person pursuant to a prescription; 10

(1) A licensee must (

a) ensure that the licensed pharmacy operates in accordance with this Act, (

b) ensure that due diligence is exercised in the dispensing of drugs in accordance with the standards of practice under the Health Professions Act for the practice of pharmacy, (

c) comply with any conditions imposed on the licence, and (

d) ensure that (

i) all drugs dispensed to or for a patient are dispensed pursuant to a prescription that has been received by the pharmacy, (ii) counselling in respect of a patient is conducted in accordance with the standards of practice under the Health Professions Act for the practice of pharmacy, (iii) a patient or a patient's agent is able, with reasonable ease, to contact a clinical pharmacist who is engaged by the pharmacy, (iv) all required records are created and maintained in accordance with this Act, (

v) the drugs being dispensed by or through the pharmacy meet the laws of Canada and Alberta, (vi) pharmacy services are provided by regulated members, and (vii) a pharmacist providing services within the practice of pharmacy does so under the management of the licensee. Positions of the Parties [ 21 ] The Appellants argue that although the action against the two pharmacists, Hollingshead and Wright, alleges professional

negligence, the application to summarily dismiss the claim does not require the Court to undertake a typical negligence analysis. Theyargue that the Court does not need to consider whether a duty of care was owed, whether the duty was breached or whether the breach ofthe duty caused the Respondent to suffer damages. The Appellants argue that, rather, the Court only needs to determine whether theyhave a complete defence on the basis of section 6(2) of

Schedule 19 of the HPA. [22] The Appellants argue that section 6(2) stands on its own and the protection from liability does not depend on whether a drugwas dispensed in accordance with section 6(1). They submit that section 6(2) provides protection from liability to pharmacists for simplydispensing a drug that is the generic or brand name equivalent of the drug named in the prescription, unless the prescriber otherwisedirects.

They submit that as the prescription at issue did not indicate that no drug other than the drug specified in the prescription may bedispensed, section 6(1) does not apply to a section 6(2) analysis. [23] The Respondent argues that if a pharmacist fails to exercise due diligence, then there is no dispensing in accordance with theapplicable legislation, being sections 1(

d) and 10(1)(

b) of the PDA; the legislative scheme that regulates the pharmacy profession. As aresult, in order for the Appellants to receive protection from liability under section 6(2) of

Schedule 19 of the HPA, a pharmacist mustdispense in compliance with sections 1(

d) and 10(1)(

b) of the PDA and the Alberta College of Pharmacists’ Standards of Practice forPharmacists and Pharmacy Technicians, including Standard 12.5 which provides that a pharmacist has a duty to determine whether it isappropriate to adapt a prescription. [24] Furthermore, the Respondent argues that dispensing constitutes a smaller part of the pharmacists’ practice and is subordinateto their counselling duties. In other words, counselling is independent from the act of dispensing drugs.

The Respondent argues that onthe facts of this case, the Appellants are not protected from liability under section 6(2), should it be found there was negligence in theadvice given by the Appellant, Hollingshead to the Respondent when she phoned and spoke to him on October 22, 2013, as thatconversation between them constituted “counselling” and not “dispensing”. [25] Also, in the alternative, the Respondent argues that the telephone conversation of October 22, 2013 was not part of“dispensing” and therefore not within the purview of the protection afforded by section 6(2), because if the Appellant pharmacists hadexercised due diligence in communicating and counselling at the time the Respondent picked up her prescription from Mountview onAugust 20, 2013, there would have been no need, two months later, to identify the generic drug Novo that had been given to her andexplain that it was a substitution equivalent to her previous medication Apo.

In short, the Respondent submits that by the time a patientpays for their drug and takes it home, as was the case here, the “dispensing” is completed with respect to the prescription. [26] The Appellants Hollingshead and Wright argue that “dispensing” is more than filling a prescription and handing themedication to a patient and includes assessing the patient and the patient’s health history and medication record. They say that, in thiscase, it means that “dispensing” includes the interactions on both August 20 and October 22, 2013.

In particular, they say it includes thetelephone conversation of October 22, 2013 between the Appellant Hollingshead and the Respondent where they discussed her healthhistory and where he reviewed her medication record and determined that she was being switched from one generic drug equivalent toanother generic drug.

They also add that, in light of the case law, “dispensing” may be part of a continuum of activities which in thesecircumstances extends to the interactions between the Appellant Hollingshead and the Respondent that occurred on October 22, 2013.As a result, they submit that no action may be commenced against the Appellant pharmacists for assessing the Respondent and herhealth history and medication record, when filling her prescription with Novo instead of Apo. They argue that the AppellantHollingshead is protected from liability under section 6(2) of

Schedule 19 of the HPA for “dispensing” Novo to the Respondent insubstitution for Apo, both when she picked up the prescription in August of 2013 and during their telephone conversation on October 22,2013, since “dispense” and “dispensing” have such a broad meaning as per the PDA and the case of King Optical Group Inc. v Collegeof Opticians (Ontario), (ON CA), [2001] OJ No. 4779 (CA). [27] Similarly, the Appellant Mountview argues that “counselling” is captured in the wording of “dispense” and “dispensing”under

section 6 of

Schedule 19 of the HPA. Relying on the presumption of legislative coherence, it submits that the Court can considerthe meaning in similar statutes in order to interpret an undefined term. Referring to the definition of “dispense” under the PDA, theyargue that “dispense” encompasses a broad range of interrelated and interconnected activities and processes of pharmacists. It says that itis logical for the definition of “dispense” under the HPA to mirror the definition of “dispense” under the PDA.

Mountview adds that hadthe Alberta legislature intended for patient counselling to be discrete and excluded from “dispensing” under section 6(2) of the HPA,then the wording of that provision would have reflected that intention.

It submits the use of the phrase “dispense” and/or “dispensing”clearly supports the inclusion of patient counselling and further achieves the Alberta legislature’s intention to have a clear unifiedStandards of Practice that applies to all pharmacists. [28] The Appellants, Hollingshead and Wright also argue that, in light of the commentary in Hansard, the Alberta Legislatureintended to provide pharmacists with protection from liability under section 6(2) of

Schedule 19 of the HPA for exercising theirdiscretion to dispense interchangeable drugs when their discretion has not been removed by instructions from a prescriber indicatingotherwise. The argument is that it enables pharmacists to dispense a generic drug for the prescribed drug, whether that be a generic orbrand name equivalent, without the fear of prosecution. They argue that these provisions do not operate independently of the HPA, thePDA, the Pharmacists and Pharmacy Technicians Profession Regulation, and the Standards of Practice.

Rather, they operate within thisbroader regulatory framework to ensure there is consistency and congruity in dispensing drugs. [29] Given all of these conflicting statutory

interpretations and ambiguity, the Respondent argues that, in any event, it would beunfair and unjust for the matter to be determined summarily.

Summary Dismissal [30] Generally,

summary dismissal should be granted under Rule 7.3 where, in light of the existing record, “a disposition that isfair and just to both parties can be made” Windsor v Canadian Pacific Railway Ltd., 2014 ABCA 108 at para 13. For example inMaxwell v Wal-Mart Canada Corp., 2014 ABCA 383 at para 12, the Court of Appeal summarized the test as follows:

This test has been recently interpreted to be somewhat wider than the rule it replaced, which required an applicant to demonstrate thatthere was no genuine issue which could or should be put to trial. Under the new Rule, no genuine issue for trial exists where the judge isable to make a fair and just determination on the merits without a trial, because the

summary judgment process allows him or her tomake the necessary findings of fact, to apply the law to those facts and is a proportionate, more expeditious and just means to achieve ajust result. Under the new Rule,

summary judgment may be granted if a disposition that is fair and just to both parties can be made on theexisting record [...][Citations omitted]. [31] A

summary dismissal application will often be appropriate where the main issue is a legal issue: Windsor at para 16.However, where a judge is not confident that the issues can be fairly decided on the record before the Court where legal issues areunsettled, complex or intertwined with facts, a full trial should be held: Templanza v Wolfman, 2016 ABCA 1 at para 20; Amack vWishewan, 2015 ABCA 147 at para 36; Tottrup v Clearwater (Municipal District No 99), 2006 ABCA 380 at para 11 . [32] In Amack v Wishewan, 2015 ABCA 147 at paragraph 36 the Court stated the following: Accordingly, a full trial will still be required where a

summary record cannot fairly be used to decide legal issues which are unsettled,complex or intertwined with the facts: see Gayton, supra at para 11; Condominium Corporation No. 0321365 v MCAP FinancialCorporation, 2012 ABCA 26 at para 5, 519 AR 322; Elbow River Marketing Limited Partnership v Canada Clean Fuels Inc., 2012ABCA 328 at para 6, 539 AR 68. This is consistent with the principle set out in Hryniak that

summary judgment is appropriate wherethe motion judge is confident that he or she can fairly resolve the dispute: see paras 50, 57. If not so confident, then a trial is in order. [33] In Beier v Proper Cat Construction Ltd., 2013 ABQB 351 at para 69, Wakeling J. (as he then was) summarized the principlesgoverning

summary judgment in cases where the law is unclear: Fourth, if the law is unclear, either because the moving party is seeking to extend the scope of a well established proposition or to makenew law, a chambers judge may decline to resolve the dispute. This is so even though the trial judge is, arguably, in no better position todecide this challenging legal issue than the chambers judge. The chambers judge may legitimately conclude that her proper role is toidentify unassailable positions, which assumes the law on the issue is settled, not develop the law in the course of a

summary judgmentchambers application. See Romano v. D'Onofrio, (ON CA), 262 D.L.R. (4th) 181, 184 (Ont. C.A. 2005) (motionjudge erred in deciding "a significant question of law ... in the context of a Rule 20 motion"); R.D. Belanger & Associates Ltd. v.Stadium Corp., (ON CA), 5 O.R. (3d) 778, 782 (C.A. 1991) ("Matters of law which have not been settled fully in ourjurisprudence should not be disposed of at this [early] stage of proceedings"; Richter v. Chemerinski, 2010 ABQB 302, para 20("Judgment should not be given ... if there are difficult or intricate legal issues"); Barrett v.

Enfield London Borough Council, [2001] 2A.C. 550, 557 (1999) & Farah v. British Airways plc, The Times (January 26, 2000) (C.A. 1999). But the chambers judge is entitled todecide the novel legal issue if she wishes to do so. A willingness to decide such a legal issue would be consistent with the goal ofexpedited justice. See Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 20.04(4) (the court may determine the question of law). [34] In Can v.

Calgary Police Service, 2014 ABCA 322, Wakeling J.A. at para 80 reiterated this principle in his concurringreasons. [35] Regarding the meaning of “dispensing” as provided under section 6(2), the parties were unaware of any case law that wouldhave interpreted it in a similar context to that of

section 6. However, they referred to the Ontario case King Optical, which was renderedin the context of dispensing prescription eye glasses under the Ontario Regulated Health Professions Act, 1991, SO 1991, c 18. In thatcase, the Court of Appeal for Ontario determined at para 34 that “dispense” may be a single act or part of a continuum of activitiesalthough perhaps not necessarily meaning that each act taken in isolation should necessarily be taken as such: I agree that the trial judge overstated his conclusion when he said of the activities performed by Ms. Wadden: “[e]ach act was

an act ofdispensing”. I observe, however, that dispensing may be a single act or part of a continuum of activities. Carried out in isolation,activities such as commenting on the appearance of frames, and receiving payment would not in and of themselves constitute dispensing.Nevertheless, I find no error in the trial judge's overall finding of guilt. [36] Given all of the foregoing, I am not confident that I can fairly and justly decide on the

summary record before me that section6(2) of

Schedule 19 to the HPA automatically provides a complete defence to a claim such as this, where a pharmacist provides a genericdrug in replacement of another generic drug and while further counselling has been sought from that pharmacist after the fact. [37] Furthermore, I am not confident that I can fairly determine and answer the following questions arising from this Appeal andwhich relate to the statutory

interpretation of

section 6 and in particular section 6(2) of

Schedule 19 of the HPA: (

i) The scope of dispensing – Is “dispensing” as used in section 6(2) qualified or all encompassing? (ii) Importantly, did “dispensing” end when the Respondent picked up her prescription or did it continue up to and including thephone call with the Appellant Hollingshead on October 22, 2013? (iii) Were the standard practices in place followed by the Appellant pharmacists, when substituting the generic drug (Novo) foranother generic drug (Apo)?

And if we believe that to be so, does that mean “dispensing” occurred and nothing more is required to bedetermined, as the Appellants submit, or is it as the Respondent submits that “dispensing” only occurs, if done in accordance with theapplicable legislation, being sections 1(

d) and 10(1)(

b) of the PDA? (iv) To trigger protection from liability under section 6(2) of

Schedule 19 to the HPA, is the only condition precedent that ageneric drug or brand name equivalent be “given” to a patient? If the Appellants’ argument on this is accepted, does it mean that if, forexample, a pharmacist who dispenses with the wrong directions or disregards a disclosed patient’s allergies with respect to a non-medicinal ingredient found in a certain generic drug substituted for another generic drug, without qualification, is afforded the protectionof section 6(2) such that no action may be commenced by a plaintiff against that pharmacist? (

v) Or is it that everything else being equal, and after exercising due diligence, a pharmacist who dispenses a generic drug in

substitution for a brand name drug or another generic drug, is then and only then afforded the protection from liability found in section 6(2)? and (vi) Does it mean that the risk of liability is greater to a pharmacist when dispensing exactly what is prescribed, than when a pharmacist dispenses a drug equivalent (i.e. a generic drug) and who falls within the protection from liability under section 6(2)? [ 38 ] In the result, I conclude that the legal and factual issues are so intertwined that they cannot be fairly decided on a

summary record. To use the words of the majority of the Court in Warman v Law Society of Alberta , 2015 ABCA 368 paragraph 1 . “It is appropriate and important that the legal issues raised be dealt with by a court that has the benefit of a complete record.” [ 39 ] Furthermore, as noted above, much of this calls for a statutory

interpretation. As a judge sitting on an appeal from a Master, I decline to resolve the dispute regarding the

interpretation and meaning of

section 6, and in particular section 6(2) of

Schedule 19 of the HPA as it relates to the facts of this case. In my opinion, the law is very much unclear on this and any determination by me would require this Court to make new law. I am not prepared to do so based on the

summary record before me. [ 40 ] Although, it is not necessary for a determination of this Appeal, I should add that in my opinion the Master’s

interpretation of sections 6(1) and 6(2) of

Schedule 19 of the HPA appear to be unpersuasive. I do not believe it necessary for section 6(1) to be met in order to trigger section 6(2). In my view, they operate independently. However, I will not further comment because I leave it to the trial judge to decide this issue with the benefit of a full record. Conclusion [ 41 ] Accordingly, the appeal is dismissed. [ 42 ] Since I have dismissed this Appeal and therefore upheld the Master’s decision to dismiss the Appellants’

summary dismissal applications, albeit for somewhat different reasons than that of the Master’s, I see no need to deal with the issue of whether the corporate Appellant Mountview is statutorily protected by section 6(2) of

Schedule 19 of the HPA on the facts of this case. I leave that to the trial judge to decide. [ 43 ] The parties may contact my assistant to arrange a time mutually convenient to all to speak to the matter of costs, if necessary. [ 44 ] I want to thank all counsel for their excellent written arguments and their cooperation in providing the requested supplemental briefs, as well as their helpful submissions during argument of this matter. Heard on the 19 th day of September, 2017. Dated at the City of Calgary, Alberta this 6 th day of December, 2017. C.S. Phillips J.C.Q.B.A. Appearances: Donna C.

Purcell, Q.C. for the Plaintiffs (Respondents), L.N.R and C.S. Inc. Jessie Larter for the Defendants (Appellants), Ian Hollingshead and Bryon Wright Galan T. Lund for the Defendant (Appellant), Mountview Pharma Corp, operating as Sproule’s Mountview IDA Drug Store