Beverley Vey Appellant And: Pharmacy Board of Newfoundland v. Labrador, 2019 NLSC 111

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Vey v. Newfoundland and Labrador (Pharmacy Board ) , 2019 NLSC 111 Date : May 27, 2019 Docket : 201801G2093 Between: Beverley Vey Appellant And: Pharmacy Board of Newfoundland and Labrador Respondent Before: Justice Vikas Khaladkar On Judicial Review From: A Decision of the Adjudication Tribunal of the Disciplinary Panel of the Newfoundland and Labrador Pharmacy Board, Registration No. 86-577 dated the 22nd day of February, 2018. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 5, 2019

Summary: The Appellant refused to participate in a community pharmacy practice site assessment sought to be carried out by a pharmacist and employee of the Pharmacy Board. The Appellant argued that the Pharmacy Board has no lawful authority to carry out a practice site assessment and, if one is to be conducted, then it must be done under the auspices of a Quality Assurance Committee appointed by the Pharmacy Board. At all material times the Pharmacy Board had not appointed a Quality Assurance Committee, but had appointed an employee of the Pharmacy Board to carry out, inter alia , practice site assessments. This person’s title was “Associate Deputy Registrar of Quality Assurance”.

The Appellant further argued that the provisions of the Personal Health Information Act prevented her from disclosing patient information to the Associate Deputy Registrar of Quality Assurance.

The Adjudication Tribunal empaneled to hear a complaint filed by the Registrar of the Pharmacy Board held that the Pharmacy Board was within its jurisdiction to appoint a person to carry out practice site assessments, that such practice site assessments were carried out in furtherance of the Pharmacy Board’s statutory obligation to establish and maintain a Quality Assurance Program and that the Respondent was obligated, pursuant to the provisions of the Personal Health Information Act , to divulge such patient records as were required for the purposes of the Pharmacy Board’s Quality Assurance Program.

The Tribunal’s findings are within the range of possible, defensible outcomes and, as such, are deserving of deference by this Court. The Appeal is dismissed. Appearances: Cletus E. Flaherty Appearing on behalf of the Appellant Augustine F. Bruce, Q.C. Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: British Columbia (Securities Commission) v. McLean , 2013 SCC 67 ; A.T.A. v. Alberta (Information and Privacy Commissioner) , 2011 SCC 61 ; Dunsmuir v. New Brunswick , 2008 SCC 9 STATUTES CONSIDERED: Personal Health Information Act, S.N.L. 2008, c. P-7.01 ; Pharmacy Act , 2012 S.N.L 2012, c.

P-12.2 RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] The Appellant owns and operates a pharmacy in the City of St. John’s, Newfoundland and Labrador.

In 2016, the Appellant needed to renovate her pharmacy to create a private consulting room which was equipped with a privacy glass allowing the pharmacist on duty to keep any eye on the pharmacy counter while consulting with patients in the consulting room. [ 2 ] The Pharmacy Board of Newfoundland and Labrador (“Pharmacy Board”) must approve the plans for the renovation and conduct inspections following construction to ensure that the site standards stipulated for pharmacists are continuing to be met. [ 3 ] The Pharmacy Board had implemented a Quality Assurance Program that, inter alia , contemplated practice site assessment of community pharmacies.

Since a physical inspection of the Appellant’s pharmacy was going to be necessary owing to the renovations, the Pharmacy Board’s employees felt it would be expedient to do the practice site assessment of the pharmacy at the same time. [ 4 ] From May 2016 onwards, there was an effort on the part of the Pharmacy Board’s Associate Deputy Registrar of Quality Assurance (“Assessor”) to

schedule a practice site assessment.

[ 5 ] As part of a practice site assessment, the pharmacist in charge of the pharmacy is asked to complete a self-assessment form and submit it to the Pharmacy Board for review. The Appellant never completed or remitted the required form. [ 6 ] A number of attempts were unsuccessfully made to conduct a practice site assessment.

Eventually, a practice site assessment was scheduled for November 4th, 2016. [ 7 ] On November 3rd, 2016 the Appellant’s solicitor wrote a letter advising that the assessment could not go forward because the Pharmacy Board was remiss in complying with the statutory requirement to constitute a Quality Assurance Committee (“Committee”). The solicitor took the position that in the absence of the Committee being appointed, no assessment could be conducted and that the Assessor could only be appointed by the Committee.

The solicitor also took the position that since the Assessor had not been appointed by the Committee, the Personal Health Information Act, S.N.L. 2008, c. P-7.01 (“ PHIA ”) disallowed the pharmacist from releasing patient records to any person that had not been appointed by the Committee. [ 8 ] The Pharmacy Board had in place a Quality Assurance Program prior to the coming in force of the Pharmacy Act, 2012 , S.N.L 2012, c. P-12.2 (“ Act ”) and afterwards. It has never appointed a Quality Assurance Committee, but has undertaken the tasks that may be delegated to a Committee that could be constituted under

section 53 of the Act . [ 9 ] The Assessor attended the Appellant’s pharmacy on November 4, 2016 but the Appellant refused to take

part in a practice site assessment. As a result the refusal became the subject of an allegation and, later a complaint, which was adjudicated by the Adjudication Tribunal (“Tribunal”). [ 10 ] The within appeal arises out of a “Decision and Reasons for Decision of the Adjudication Tribunal” constituted pursuant to the Act regarding a complaint made by the Registrar of the Pharmacy Board. THE TRIBUNAL’S FINDINGS [ 11 ] The Tribunal held that the Pharmacy Board had jurisdiction, under

section 52 of the Act , to put in place a Quality Assurance Program and, in doing so, to appoint an Assessor (the Associate Deputy Registrar of Quality Assurance) for the purpose of conducting practice site assessments. [ 12 ] The Tribunal held that the PHIA provided for the dissemination of patient information to bodies such as the Pharmacy Board and, as such, the Appellant could not take the position that she was prohibited from disclosing patient records to the Assessor. [ 13 ] The Tribunal held that the Appellant was not entitled to use her own solicitor’s opinion as the means of establishing a mistake of law defence absolving her of professional misconduct.

THE APPELLANT’S POSITION [ 14 ] The Appellant says that the standard of review concerning whether she engaged in conduct deserving of sanction is reasonableness. However, she says that the Tribunal’s decision to not accept the defenses raised by her are to be reviewed on a standard of correctness. Furthermore, she says that the standard of review concerning questions of

interpretation of the Act requires a standard of review analysis since, in particular,

Part VI of the Act has not been considered by a Court. Lastly, she submits that the provisions of the PHIA are beyond the Tribunal’s expertise and are best determined by this Court. [ 15 ] The Appellant argues that

Part VI of the Act and, in particular,

section 52, limits the Pharmacy Board to establishing a Quality Assurance Program but that the only mandatory component of the Quality Assurance Program is continuing educational and professional development. The Appellant says that in order to carry out assessments, the Pharmacy Board is obligated by law to appoint a Quality Assurance Committee. [ 16 ] The Appellant says that she is not required to disclose patient records unless the Assessor requesting same has been duly appointed to that role by a Quality Assurance Committee constituted under

section 53 of the Act . The Appellant says that the Tribunal misconstrued section 41(1)(

a) of the PHIA and, therefore, the Tribunal’s finding that the Appellant was guilty of conduct deserving sanction was unreasonable. [ 17 ] Lastly, the Appellant says that the Tribunal erred by failing to consider that there was no attempt by the Registrar of the Pharmacy Board to resolve the allegation prior to it being made a complaint and, as such, there was a breach of procedural fairness towards her. Furthermore, she says that if the Associate Deputy Registrar of Quality Assurance was properly appointed as an Assessor, she acted arbitrarily insofar as she did not offer the Appellant a partial assessment.

The Appellant says that the failure to consider these defences is an error of law requiring the Court to direct the Tribunal to adjudicate upon them in the event that the Tribunal’s decision is upheld. THE RESPONDENT’S POSITION [ 18 ] The Respondent says that the standard of review with respect to statutory

interpretation is reasonableness. It says that the Tribunal is interpreting its own home statute and deserves deference. With respect to the issue concerning patient records, the Respondent says that the privacy legislation is being applied in the context of its area of expertise and, therefore, the standard of review remains reasonableness. [ 19 ] The Respondent argues that it is entirely appropriate for the Pharmacy Board to conduct pharmacy practice site assessments without appointing a Quality Assurance Committee. [ 20 ] The Respondent says that the Tribunal’s

interpretation of its home statute and the PHIA fall within the range of reasonable outcomes.

[ 21 ] With respect to the issue of raised defences, the Respondent says that the Tribunal had no jurisdiction to determine whether the Registrar of the Pharmacy Board breached the Appellant’s right to procedural fairness by failing to resolve the allegation against her. The Tribunal, in the Respondent’s submission, was convened for the purpose of determining a discrete issue: whether or not the Appellant had engaged in conduct deserving of sanction. [ 22 ] The Respondent says that there is no evidence that the Tribunal could have considered that the Assessor acted in an arbitrary manner.

Therefore, it cannot be said, submits the Respondent, that the Tribunal failed to consider such a defence. [ 23 ] The Respondent argues that the Tribunal was correct in holding that a mistake of law is not a defence unless the error of law is officially induced. In this case the mistake of law, if there was one, arose as a result of a legal opinion obtained by the Appellant from her own counsel and was not officially induced. ANALYSIS What is the correct standard to apply in this Judicial Review? [ 24 ] In British Columbia (Securities Commission) v. McLean , 2013 SCC 67 the Court, quoting A.T.A. v.

Alberta (Information and Privacy Commissioner) , 2011 SCC 61 at paragraph 34 held that an administrative decision-maker’s

interpretation of its home or closely connected statutes “should be presumed to be a question of statutory

interpretation subject to deference on judicial review”. [ 25 ] The presumption is rebuttable if it can be established that the issue for review falls under one of the several exceptions identified in Dunsmuir v. New Brunswick , 2008 SCC 9 . The exceptions are as follows: 1. Division of powers; 2. Issues of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise; 3. True questions of jurisdiction or vires; 4. Issues regarding the jurisdictional lines between two or more competing specialized tribunals; 5.

Where there is a clear, demonstrable legislative intent that the correctness standard should apply. [ 26 ] The issue in the case before me concerns the determination of whether or not a pharmacist has engaged in behaviour deserving of sanction. It is an issue that involves the

interpretation, by the Tribunal, of its own statute together with the PHIA – a piece of legislation that is closely connected to its function since patients of pharmacies are consumers of the overall health care system and the information collected and maintained by pharmacists is caught by the umbrella of the PHIA . [ 27 ] I have no hesitation, in accordance with the dicta of the Supreme Court of Canada in Dunsmuir at paragraph 54 , in finding that the Tribunal was interpreting its home legislation and, as such, the standard of reasonableness is the correct standard to apply.

There are no issues here of division of powers. It cannot be said that the issues are of central importance to the justice system as a whole. There is no clear legislative intention that the correctness standard should displace the reasonableness standard. There is no basis, therefore, upon which the reasonableness standard can be rebutted.

Did the Pharmacy Board lack the jurisdiction to undertake a pharmacy site assessment? [ 28 ] Counsel for the Appellant spent considerable effort in attempting to persuade me that the Pharmacy Board lacked the jurisdiction to conduct a pharmacy site assessment of the Appellant’s pharmacy. This would be an appropriate time to deal with that argument. [ 29 ] There are various sections of the Act that are germane to the discussion. I set them out for easy reference: 7.

(1) The board shall regulate the practice of pharmacy and the pharmacy profession in the public interest.

(2) The objects of the board include (

a) the promotion of (

i) high standards of practice, and (ii) continuing competency and quality improvement through continuing education; (

b) the administration of a registration and licensing program;

(

c) the establishment, maintenance and development of standards for the operation of pharmacies; and (

d) ensuring that the public interest is protected in all matters relating to the practice of pharmacy. 12. The board may appoint committees to carry out duties and functions directed by the board. 52.

(1) The board shall establish and maintain a quality assurance program to promote high standards of practice within the pharmacy profession.

(2) The quality assurance program shall include mandatory continuing education and professional development and shall be designed to promote continuing (

a) competence; and (

b) quality improvement. 53.

(1) The board may appoint a committee known as the quality assurance committee consisting of a number of pharmacists and pharmacy technicians determined by the board and at least one person appointed to the board under subsection 6(1) or (2).

(2) The quality assurance committee shall investigate a concern (

a) on the referral of a quality assurance issue by (

i) the registrar, or (ii) the complaints authorization committee; or (

b) on its own accord.

(3) The quality assurance committee may (

a) subpoena records, including patient records; (

b) order a pharmacist or pharmacy technician to undergo an evaluation, assessment or examination;

(

c) order a review of a pharmacists or pharmacy technician's practice, including any consequential review of patient records; (

d) order periodic or random audits of aspects of a pharmacist’s or pharmacy technician's practice; and (

e) accept an agreement between the board and the pharmacist or pharmacy technician to give effect to matters which could be ordered by the quality assurance committee.

(4) Where a pharmacist or pharmacy technician fails to comply with an order made by the quality assurance committee, that committee shall refer that failure to comply as an allegation to the complaints authorization committee. 54.

(1) The quality assurance committee may appoint persons registered as pharmacists or pharmacy technicians under this Act as Assessors for the purpose of the quality assurance program.

(2) An Assessor may, for the purpose of the quality assurance program (

a) enter, without notice and at reasonable times, places where pharmacy is practised to make necessary inspections; (

b) inspect that pharmacists or pharmacy technician's records of care administered to patients; (

c) require from the pharmacist or pharmacy technician information required by the quality assurance committee or the Assessor respecting the assessment and care of patients by the pharmacist or pharmacy technician, or his or her records of care administered to patients; and (

d) require that that pharmacist or pharmacy technician confer with the quality assurance committee.

(3) A pharmacist or pharmacy technician whose standards of practice are the subject of an assessment under the quality assurance program shall cooperate fully with the quality assurance committee and Assessors.

(4) An Assessor may access patient records without the consent of that patient. [ 30 ] All records and specific information relating to the Quality Assurance Program or a review or recommendation under it are confidential. The main object of the legislation is, clearly, the protection of the public. Pharmacies form an integral part of the health care system. It is essential that they be properly regulated, well managed and adhere to high standards of practice.

The Pharmacy Board has been given the mandate, and jurisdiction, to license pharmacists and see to it that their performance meets or exceeds established standards of professional excellence. Mistakes can, literally, make the difference between life and death. [ 31 ] The Appellant says that the Pharmacy Board’s Quality Assurance Program is limited to mandatory continuing education and professional development.

However, such an analysis ignores section 52(1) of the Act which directs the Pharmacy Board to “ establish and maintain a quality assurance program to promote high standards of practice within the pharmacy profession (emphasis added).” This necessarily entails the design, creation and operation of a Quality Assurance Program that will look after the needs of patients by ensuring that pharmacists are adhering to professional best practices as defined by the Pharmacy Board. [ 32 ]

Section 53 of the Act allows the Pharmacy Board to delegate a portion of its quality assurance power to a Quality Assurance Committee. However, the

section is permissive. The Pharmacy Board is not obliged to do so. And, by not so doing, it does not lose its jurisdiction to establish and maintain a Quality Assurance Program to promote high standards of practice as directed by the legislation. [ 33 ] In this case the Pharmacy Board chose not to appoint a Quality Assurance Committee. It retained that jurisdiction and, in furtherance of it, appointed an Assessor who was given the title of Associate Deputy Registrar of Quality Assurance. This the Pharmacy Board is entitled to do. The Quality Assurance Committee, if there was one, could do so also.

Their rights to do so under the legislation are not exclusive. [ 34 ] The Tribunal specifically found that the Pharmacy Board has the jurisdiction, and mandate, to carry out practice site assessments using Assessors which it has appointed. The Tribunal held that the legislation should be interpreted as giving the Pharmacy

Board the power to do all the things that the Quality Assurance Committee could do. [ 35 ] The Tribunal’s decision concerning the Pharmacy Board’s jurisdiction is entitled to deference. It is within the range of reasonable outcomes. The Tribunal’s decision is also correct. This is so because committees appointed by the Pharmacy Board carry out functions that are delegated to them by the Pharmacy Board. The Pharmacy Board has the discretion to refrain from appointing a committee and, where it does so, it does not lose the jurisdiction to carry out the committee’s functions. It retains them for itself.

There is no limit on the Pharmacy Board’s authority to appoint an Assessor for the purpose of carrying out its quality assurance mandate. [ 36 ] Under either the reasonableness standard, or the correctness standard, the Tribunal arrived at the appropriate conclusion. Is the PHIA a closely related statute? [ 37 ] Is this a case where there is a conflict in jurisdictional lines between two competing specialized tribunals? It was urged upon me by the Appellant to consider the PHIA as a quasi-constitutional instrument that had the effect of making sacrosanct the private health information of pharmacy patients.

This was the reason that was given by the Appellant when she refused to participate in a practice site assessment. [ 38 ] The Tribunal found that section 41(1) of the PHIA requires the Appellant to disclose personal health information, without the consent of the individual, to the Pharmacy Board. [ 39 ] Section 41(1) of the PHIA states as follows: 41.

(1) A custodian shall disclose personal health information without the consent of the individual who is the subject of the information (

a) to a body with statutory responsibility for the discipline of a health care professional or for the quality or standards of professional services provided by a health care professional, including an investigation by that body; [ 40 ] The Appellant is a health care professional and a custodian of health information pursuant to the PHIA .

The Pharmacy Board is a body with statutory responsibility for the discipline of pharmacists and, as well, has oversight over the quality or standards of professional services provided by pharmacists. [ 41 ] The Appellant was required by the PHIA to turn over the personal health information of her patients to the representative of the Pharmacy Board. The Tribunal heard evidence that the Assessor never required patient identities in the course of carrying out the practice site assessments.

However, pursuant to section 41(1) of the PHIA she could have asked for that information and the Appellant would have had to comply with the request. And had she done so, she would have been acting in accordance with the legislation and she would not have been illegally breaching her patients’ confidentiality. [ 42 ] The two pieces of legislation are complementary. While the personal health information of patients is protected from unlawful uses, the PHIA recognizes that in many instances the information must be shared without the consent of the person to whom the information relates.

One of those exceptions, quite properly, is related to requests for information made by statutorily constituted bodies who regulate the provision of health related services by the health care professionals who they are tasked to oversee. [ 43 ] There is no competition between the Pharmacy Board and, for example, the board of a health care district or, for that matter, with the Information and Privacy Commissioner.

The two pieces of legislation work hand in glove to protect the public. [ 44 ] The House of Assembly has provided that, in limited circumstances, custodians of health care information must divulge patient information if they are requested to do so by an appropriate regulatory body. That is what might have happened in this case if the regulatory body had actually asked for patient information. The Tribunal found, however, that matters never got that far.

The Appellant’s counsel attempted to foreclose the Pharmacy Board’s opportunity to request any information on the day before the practice site assessment was to take place. And on the day of the practice site assessment, the Appellant refused to cooperate whatsoever. [ 45 ] At paragraph 82 of its decision, the Tribunal said: 82. In our view, the legislation should be interpreted as giving the Board the right to do all the things that the Committee it has yet to appoint, could do. [ 46 ] I agree with that statement.

The Tribunal reasonably concluded that the Assessor was appointed within the jurisdiction of the Pharmacy Board and that it was entitled to request patient health information without breaching the provisions of the PHIA . [ 47 ] The Tribunal based its decision, in part, on the evidence led at the hearing to the effect that an Assessor does not normally take information from a pharmacy relating to patients but, when the Assessor must, the personal health information of patients is redacted before the records are taken by the Assessor.

It would seem, therefore, that the privacy interests of patients are being safeguarded even more than is required by the legislation. [ 48 ] The Tribunal’s finding that the Pharmacy Board had the authority to appoint an Assessor, and that the Assessor had the authority to carry out the assessment were reasonable. The Tribunal’s conclusion that the Appellant would not have contravened the provisions of the PHIA was also reasonable. [ 49 ] The purpose of the PHIA is, of course, primarily to safeguard the legitimate privacy interests of consumers of the health care system.

However, the Act is clear that personal health information may be shared for various reasons without the patient’s consent. The sharing can relate to the informational needs of those who fall within a patient’s circle of care or, as in this case, can be a sharing with the

regulators of health care providers. The legislation recognizes that, in some circumstances, patient health information needs to be disclosed to, for example, self-governing disciplinary bodies so that those bodies can fulfill their legislated mandates. Failure to resolve the allegation prior to making a complaint. [ 50 ] The Appellant argued that the Registrar had a duty to attempt to resolve the allegation with the Appellant before moving the matter to the complaint stage. The provision for alternative dispute resolution is contained within section 38(1) of the Act , which states as follows: 38.

(1) Where it appears to the registrar after notifying the respondent of the allegation that the allegation may be resolved satisfactorily and where the complainant and respondent consent, the registrar may attempt to resolve the matter. [ 51 ] Whether or not to resolve the allegation before it moves to the complaint stage is solely within the discretion of the Registrar. Where, as here, the Registrar is laying the complaint one can surmise that there is no room for satisfactory resolution prior to the complaint being prosecuted.

The evidence here is that the Assessor tried on a number of occasions to obtain the Appellant’s cooperation - without success. The Registrar cannot be faulted for choosing the course which she ultimately took. Refusal to allow a partial assessment. [ 52 ] The Tribunal considered evidence that the Appellant’s pharmacy had not undergone a full practice site assessment in the previous 3-5 years. She had just completed a renovation that required an assessment. The Assessor sought to conduct both assessments at the same time.

It was the Pharmacy Board’s practice to carry out full practice site assessments and renovation assessments simultaneously. The only exception was where a full practice assessment had been conducted shortly before the renovation – in which case only a renovation assessment would be carried out. [ 53 ] There was no reason to conduct a partial assessment of the Appellant’s pharmacy. The Registrar’s actions in seeking to carry out a full practice assessment and a site assessment cannot be characterized as arbitrary if they were in accordance with the Pharmacy Board’s established practice.

There is no merit to the argument that the Registrar acted in an arbitrary manner. Was the defence of mistake of law available to the Appellant? [ 54 ] The mistake of law related to advice given to the Appellant concerning the jurisdiction of the Assessor and the Pharmacy Board to conduct a practice site assessment and liability under the PHIA relating to disclosure of patient health information to the Assessor. It was induced by the Appellant’s own counsel. The advice that the Appellant received was incorrect. She chose to rely upon it.

This is not an error that was promulgated, in any way, by the Pharmacy Board. Rather, it was of the Appellant’s own making. As such, she is not allowed to use it as a lawful excuse for her conduct. Conclusion [ 55 ] The Tribunal’s decision concerns the

interpretation of its home statute and falls within a range of acceptable, reasonable outcomes. As such, it is entitled to deference. [ 56 ] The Appeal is dismissed with costs to be calculated under Rule 55, Column 3, of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . ______________________________ Vikas Khaladkar Justice