) ) ATTORNEY GENERAL OF ONTARIO Moving Party - v. –, 2013 ONSC 6991

CITATION : Mohamed Imran Hanif v. Ontario College of Pharmacists; Her Majesty the Queen in Right of Ontario and AGO, 2013 ONSC 6991 DATE: 20131112 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT DIVISIONAL COURT FILE NO.: 363/13 BETWEEN: ) ) ATTORNEY GENERAL OF ONTARIO Moving Party - and – MOHAMED HANIF AND ONTARIO COLLEGE OF PHARMACISTS Respondents )) )) )) )) )) ) Josh Hunter , for the Moving Party Neil M.

Abramson and Marco Falco , for the Respondent Mohamed Hanif Aaron Dantowitz , for the Respondent Ontario College of Pharmacists BETWEEN: MOHAMED IMRAN HANIF Appellant – and – ONTARIO COLLEGE OF PHARMACISTS Respondent - and – ) ) ) ) ) ) ) ) ) ) ) ) ) ) DIVISIONAL COURT FILE NO.: 370/12 Neil M. Abramson and Marco Falco , for the Appellant Aaron Dantowitz , for the Respondent

ATTORNEY GENERAL OF ONTARIO Intervener BETWEEN: MOHAMED IMRAN HANIF Applicant - and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ONTARIO COLLEGE OF PHARMACISTS Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Josh Hunter , for the Intervener SUPERIOR COURT FILE NO.: CV-12- 448727 Neil M. Abramson and Marco Falco , for the Applicant Josh Hunter , for the Respondents HEARD: November 7, 2013 HIMEL J. [ 1 ] The Attorney General brings a motion to consolidate two proceedings: an application brought in the Superior Court by Mohamed Imran Hanif (“Hanif”) concerning the constitutionality of certain provisions of the Health Professions Procedural Code (the “Code”) being

Schedule 2 of the Regulated Health Professions Act, 1991 , S.O. 1991, c. 18 (the “Act”) and an appeal brought in the Divisional Court by Hanif of the decision of the Discipline Committee of the College of Pharmacists (the “College”). That appeal is being held in abeyance pending the outcome of the application in the Superior Court.

Counsel for the Attorney General also asks that those two proceedings not be advanced at this time but that the case should be remitted back to the Discipline Committee to consider the constitutionality of the provisions. [ 2 ] At the same time, the Attorney General has also brought an appeal in the Divisional Court of a decision of the Discipline Committee of the College in the same proceeding and asks that that case proceed. In the alternative, the Attorney General asks that the Superior Court application be stayed or dismissed.

Factual Background [ 3 ] Mohamed Imran Hanif (“Hanif”) is a licensed pharmacist who, on May 16, 2011, was charged with professional misconduct contrary to subsection 51(1)(

c) of the Health Professions Procedural Code for having engaged in “sexual abuse of a patient.” The patient was a cashier in the grocery store where the pharmacy he operated was located. Hanif had filled prescriptions for her and conducted cardiovascular risk assessments for her. They had a personal relationship and engaged in one act of consensual intimate sexual activity including oral sex.

The consequence of sexual abuse of a patient is a mandatory and permanent revocation of the licence to practise pharmacy. [ 4 ] In March 2012, Hanif brought an application to the Superior Court on notice to the Attorney General challenging the constitutionality of the provisions of the Code that require the mandatory revocation of the Certificate of Registration of a member found guilty of having sexual relations with a patient. The basis of the challenge is that the provisions are criminal law and, thus, ultra vires the

provincial Legislature under Sections 91 and 92 of the Constitution Act, 1867 . He also sought to quash the charges against him in the discipline proceedings but later indicated he would not proceed with seeking that remedy. [ 5 ] Haniff attempted to have the Discipline Committee of the College stay the discipline proceedings pending the conclusion of the Superior Court application but on May 24, 2012, the Discipline Committee denied his motion to stay.

Hanif and the College entered into an agreement in which he agreed to plead guilty in exchange for the Discipline Committee suspending the mandatory revocation pending the conclusion of the Superior Court application and any appeals therefrom.

At the same time, it was agreed that Hanif would file an appeal in the Divisional Court of the Discipline Committee’s finding of professional misconduct against him in order to preserve his right to re-examine the conviction and penalty only if the Superior Court application was successful and he could raise the same constitutional issues in the Divisional Court appeal to have the College’s decision overturned.

The agreement also provided that if Hanif were unsuccessful in the Superior Court application, the five year period before he can bring an application for reinstatement would begin to run from the conclusion of the Superior Court application and any appeals therefrom. [ 6 ] The matter proceeded to a hearing before the Discipline Committee on June 14, 15, 20, and 21, 2012. At the conclusion of the hearing, the compromise agreement was presented. The majority of the Discipline Committee held that it had the jurisdiction to suspend the mandatory order of revocation it was required to issue.

The Committee ordered that Hanif be reprimanded, that the Registrar revoke his Certificate of Registration but that paragraph 2 of the Order be suspended until the constitutional challenge in the application was decided. It was also ordered that the Registrar impose specified terms, conditions and limitations on Hanif’s Certificate of Registration including that he attend a program on ethics of health care professionals. This agreement enabled Hanif to continue to work as a pharmacist while the Superior Court application was ongoing.

The Discipline Committee issued reasons for its decision on July 4, 2012. [ 7 ] On July18, 2012, Hanif issued a notice of appeal of the decision to the Divisional Court. He said this was “to preserve his right …to argue that the Decision should be re-examined and possibly overturned” if he is successful in the Superior Court application. On August 9, 2012, Hanif’s counsel wrote to counsel for the Attorney General that he would no longer be requesting that the Superior Court quash the charges against him.

On September 5, 2012, the Attorney General intervened in the Divisional Court appeal. [ 8 ] On September 14, 2012, the Attorney General brought a motion before the Discipline Committee asking it to reconsider its order to suspend the mandatory revocation pending the outcome of the Superior Court application. There was a preliminary motion heard in November 2012 concerning the standing of the Attorney General to bring such a motion. The panel found it had jurisdiction to hear the Attorney General’s motion and heard it.

The Attorney General asserted that the Committee did not have jurisdiction to suspend the resulting mandatory revocation and asked that the Committee set aside the paragraph purporting to suspend the mandatory revocation of Hanif’s Certificate of Registration. In July 2013, the Discipline Committee released its decision denying the motion for reconsideration and reiterated its jurisdiction to order suspension of the revocation. On August 8, 2013, the Attorney General launched an appeal of that decision regarding the denial of the reconsideration motion to the Divisional Court.

On September 18, 2012, the Attorney General brought this motion to consolidate proceedings. Positions of the parties [ 9 ] The Attorney General takes the position that the actions of Hanif and the College have resulted in unnecessary multiplicity of proceedings. It submits that the Superior Court application and the Divisional Court appeal should be consolidated into one proceeding in the Divisional Court.

It argues that Hanif brought proceedings in both the Superior Court and the Divisional Court claiming the same thing: that the mandatory revocation provisions are ultra vires because they are in pith and substance criminal law rather than the regulation of health care professionals. The Attorney General argues that all the grounds on which consolidation may be ordered are met in this case.

In the alternative, counsel asks that the Superior Court application be stayed or dismissed. [ 10 ] The Attorney General submits that the challenge to the constitutionality of the mandatory revocation provisions should be remitted to the Discipline Committee to determine the matter in the first instance so that the court will have the benefit of the Committee’s expertise and reasons.

He points to the jurisprudence which holds that, absent exceptional circumstances, courts should not interfere with administrative processes until after they are completed or until effective remedies are exhausted and, therefore, the matter should be remitted to allow the Discipline Committee to consider the constitutional question and the Superior Court application and the Divisional Court appeal should be consolidated in one proceeding in the Divisional Court and stayed pending that decision. [ 11 ] The College consents to the consolidation or hearing together of the three matters which include the Superior Court application, Hanif’s appeal to the Divisional Court and the Attorney General’s appeal to the Divisional Court.

It agrees that they relate to the same proceeding in which Mr. Hanif was found guilty of professional misconduct of a sexual nature triggering a mandatory revocation of his certificate of registration by the operation of the Code .

Counsel submits that the three applications raise two questions: (1) are the mandatory revocation provisions of the Code unconstitutional? and (2) did the Discipline Committee have jurisdiction to suspend the mandatory revocation pending the outcome of the constitutional determination? [ 12 ] Counsel for the College points to the difficulty that counsel have had in finding suitable dates in common for these different proceedings and submits that it is in the interest of justice and the public interest that the matters be resolved at the same time by the same court.

Counsel further submits that there will be no prejudice to the parties in consolidating these matters and that they should all be consolidated in the Divisional Court appeal. However, the College opposes the position taken by the Attorney General that the matter be remitted first to the Discipline Committee to consider the constitutionality of the provisions. [ 13 ] The respondent Hanif opposes the motion to consolidate these proceedings and to have the matter remitted to the Discipline Committee.

Counsel requests that the motion be dismissed as an abuse of process by the Attorney General whose intervention, it is submitted, is a collateral appeal of the agreement entered into by Hanif and the College and affirmed by the Discipline Committee, is oppressive and will cause significant cost and delay to the parties. Alternatively, he argues there is no good reason to grant the relief requested which would undo the agreement of Hanif and the College and affirmed by the Discipline Committee on two occasions for an orderly disposition of the case.

The Attorney General’s involvement has resulted in a multiplicity of proceedings. Hanif submits that the Attorney General is now making its fourth attempt to impose the weight of its office on how these matters ought to proceed.

[14] Counsel also argues there is no chance of inconsistent decisions in the proceedings and that the constitutional applicationshould not be remitted to the Discipline Committee which cannot make a declaration of constitutional invalidity and has no specialexpertise in interpreting constitutional questions. The Relevant Provisions for Consolidation [15]

Section 138 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 provides, “As far as possible, multiplicity of legal proceedingsshall be avoided”.

Section 107 provides as follows: [16] Where two or more proceedings are pending in two or more different courts, and the proceedings, (

a) have a question of law or fact in common; (

b) claim relief arising out of the same transaction or occurrence or series of transactions or occurrences; or (

c) for any other reason ought to be the subject of an order under this section, An order may, on motion, be made, (

d) transferring any of the proceedings to another court and requiring the proceedings to be consolidated, or to be heard at the sametime, or one immediately after the other; or (

e) Requiring any of the proceedings to be, (

i) stayed until after the determination of any other of them, or (ii) asserted by way of counterclaim in any other of them. [17] Where multiple proceedings are pending in the same court, they may be consolidated or tried together if they embracecommon questions of law or fact, claim relief arising out of the same situation or if the court ought to so order: see Rule 6.01 of the Rulesof Civil Procedure.

Conclusion [18] As stated above, the legislative and procedural framework offers a vehicle to avoid multiplicity of proceedings andconsolidate two or more proceedings which are pending in two or more different courts in specific circumstances. Avoiding multiplicityof proceedings, preventing inconsistent dispositions, protecting scarce judicial resources and saving expense for the parties is theunderlying purpose behind Rule 6.01(1) which allows the court to order matters pending in the same to court to be consolidated or heardtogether, or stayed until a determination has been made in one of them: see Wood v.

Farr Ford Ltd., [2008] O.J. No. 4092 at para. 23.The principles for consolidation of matters in different courts is the same. [19] In the case at bar, both proceedings arise from the same set of facts—the discipline proceedings taken against Hanif by theCollege of Pharmacists that led to him being found guilty of professional misconduct and his Certificate of Registration being revoked.Both proceedings involve the same question of law, that is, the constitutionality of the provisions of the Code related to mandatoryrevocation.

The proceedings claim relief arising out of the same transaction or occurrence or series of transactions or occurrences whichwere that Hanif had a sexual relationship with a patient, was found guilty of professional misconduct and had his Certificate ofRegistration revoked as the Code requires. [20] Counsel for the Attorney General submits that to allow the three proceedings to continue separately could create thepossibility of inconsistent verdicts or decisions.

In fact, that is not possible as the Superior Court has the jurisdiction to make adeclaration concerning constitutionality of the provisions pursuant to s. 52 of the Constitution Act, 1982 on the application brought underRule 14 of the Rules of Civil Procedure.

The appeal by Hanif in the Divisional Court is being held in abeyance pending that result and,only if the applicant is successful, will the revocation and penalty imposed by the Discipline Committee be overturned. [21] Counsel for the Attorney General argues that it has been two and a half years since the discipline proceedings werecommenced and sixteen months since Hanif was found by the Discipline Committee to have engaged in professional misconduct. Hepoints to this delay as a reason for consolidation.

Frankly, I consider the intervention of the Attorney General in bringing proceedingsbefore the Committee for reconsideration to have contributed to the delay in advancing the Superior Court application and the resolutionof the case. Even this motion for consolidation which was launched in September 2012 is being heard in November 2013. [22] Counsel for the College supports the Attorney General and points out that it has been difficult to find dates whichaccommodate the schedules of busy counsel involved in three sets of proceedings.

I agree that delay is a concern, especially where thereare public interest considerations. However, the issue of timing can be addressed through case management or proper timetabling of theproceeding in the Superior Court. [23] Counsel for the Attorney General and the College submit that there is no prejudice to any party in consolidating proceedingsin the Divisional Court. [24] Counsel for the Attorney General also asks that the matter be remitted to the Discipline Committee to consider theconstitutionality of the provisions.

He submits that the legislature has specifically provided that the Discipline Committee can decidequestions of law and the jurisprudence supports that administrative bodies can consider and apply the Constitution including the Charterwhen those matters are linked to matters properly before them: see R. v. Conway 2010 SCC 22 , [2010] 1 S.C.R. 765 at para. 78. [25] Counsel for Hanif opposes remitting the matter and points out that the Committee has no expertise in conductingconstitutional analysis and, in fact, constitutional remedies available to administrative tribunals are limited. An administrative tribunal

does not have the power to make a general declaration of invalidity under s. 52 of the Constitution Act, 1982: see Nova Scotia (Workers’Compensation Board) v. Martin 2003 SCC 54, [2003] 2 S.C.R. 504 at para. 31. To remit the case to the Discipline Committee for it toconduct constitutional analysis would cause undue and unnecessary delay. There is little to be gained as the Committee which iscomprised of pharmacists and lay persons does not have the necessary expertise to conduct constitutional analysis. While there must be asufficient evidentiary record to resolve a Charter issue: see R. v.

Brown (1993) (SCC), 83 C.C.C. (3d) 129 (S.C.C.) at133-4, there is no need for a further factual record in this case in order to have the constitutional challenge proceed. The facts wereagreed upon before the Discipline Committee and are not in dispute.

Most significantly, the Discipline Committee considered the veryquestion of not addressing the constitutional issue at that level and recognized its limited knowledge in the area and that it would beexpeditious to proceed in the fashion agreed upon by the parties and, for that reason, endorsed the agreement of the parties. [26] I acknowledge that, absent exceptional circumstances, an administrative tribunal is to consider all matters before the courtaccepts jurisdiction. The parties are to exhaust their rights and remedies before pursuing any recourse to the courts: see C.B. Powell Ltd.v.

Canada (Border Services Agency) [2010] F.C.J. No. 274, 2010 FCA 61. However, as Stratas JJ. A. wrote in C.B. Powell at para. 31: …This means that absent exceptional circumstances those who are dissatisfied with some matter arising in the ongoing administrativeprocess must pursue all effective remedies that are available within that process; only when the administrative process has finished orwhen the administrative process affords no effective remedy can they proceed to court.

Put another way, absent exceptionalcircumstances, courts should not interfere with ongoing administrative processes until after they are complete, or until the available,effective remedies are exhausted. [emphasis added] [27] This approach was approved by the Supreme Court in Halifax (Regional Municipality) v.

Nova Scotia (Human RightsCommission) [2010] 1 S.C.R. 364 where Cromwell J. wrote at para. 36: …Early judicial intervention risks depriving the reviewing court of a full record bearing on the issue; allows for judicial imposition of a“correctness” standard with respect to legal questions that, had they been decided by the tribunal, might be entitled to deference;encourages an inefficient multiplicity of proceedings in tribunals and courts; and may compromise carefully crafted, comprehensivelegislative regimes…. [28] Although the “threshold for exceptionality is high”, I consider the case at bar to be one where there is no effective remedybefore the administrative body.

I do not consider it to be premature to proceed with the court application. To remit the matter would bewasteful, unnecessary and unproductive, and not in the interests of justice to these litigants or the public in the specific circumstances ofthe case. I consider the case before me to be distinguished from the case of Volochay v. College of Massage Therapists [2012] O.JH. No.387, 2012 ONCA 541, where the court held that early judicial review was not justified as there were no exceptional circumstances giventhat the respondent had an alternate remedy.

In that case, the respondent had a review before the Health Professions Appeal and ReviewBoard available which he declined to exercise and the court wrote at para. 69: …The principle respects administrative decision-making and the legislature’s intent that internal review processes be exhausted beforethe court intervenes.

At the same time, the principle preserves the right of the court to intervene in those exceptional circumstanceswhere the justice of the case calls for intervention. [29] I view the case before me to be one where exceptional circumstances exist and the justice of the case calls for intervention bythe court rather than remitting the matter to the administrative tribunal to conduct a constitutional analysis. The fact that it is aconstitutional question does not automatically mean that the tribunal should not consider the issue.

However, in light of the DisciplineCommittee’s own view, its composition, that the arguments concern whether provisions are ultra vires the Provincial legislature and theCommittee cannot make a declaration of invalidity, the parties agreed to a process which was sensible. [30] To remit the case or to grant consolidation of these proceedings would undo an agreement reached between Hanif and theCollege.

This would undermine an important aspect of the entire process where there would appear to be no prejudice to any party tomaintain the agreement and the agreement resulted in an efficient and effective resolution of a matter. The Attorney General wishes toparticipate in the constitutional challenge and point to Hansard to demonstrate the intent of the Legislature to support theconstitutionality of the provisions of mandatory revocation.

The Attorney General has been given notice of such constitutionalproceedings and counsel will have such an opportunity to make such submissions during the hearing in the Superior Court. [31] The final and most important factor, in my view, is that the Divisional Court is a statutory court with its authority set out in theCourts of Justice Act.

Section 19 provides: An appeal lies to the Divisional Court from, (

a) a final order of a judge of the Superior Court of Justice, as described in subsections (1.1) and (1.2); (

b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court; (

c) a final order of a master or case management master. [32] A proceeding in the Divisional Court is to be heard and determined by three judges sitting together (s. 21(1)). By statute, thereare many appeals that lie to the Divisional Court from the decisions of administrative tribunals. Further, the Divisional Court is the courtthat hears applications for judicial review under s. 6(2) of the Judicial Review Procedure Act. While the procedure for attackingdecisions of public administrative bodies is by way of judicial review to the Divisional Court (see also: J.N. v.

Durham (RegionalMunicipality) Police Service [2012] O.MJ. No. 2909, 2012 ONCA 428), that is not the nature of the proceeding brought by Hanif whochallenges the constitutional validity of the provisions of the Code. [33] A constitutional challenge commenced as an application under Rule 14 (originating process) of the Rules of Civil Procedure isbrought for declaratory relief before a single judge of the Superior Court of Justice under Rule 14.05(3)(h) “in respect of any matterwhere it is unlikely that there will be any material facts in dispute.” An appeal from the determination of the Superior Court is brought to

the Court of Appeal of Ontario. [34] In my view, the Divisional Court does not have jurisdiction to determine the constitutional question so that a consolidation ofthe Superior Court application and the Divisional Court appeal would not be possible in the Divisional Court. Result [35] Having considered all of these factors, I conclude that it is neither an available option nor is it in the interests of justice nor inthe public interest to have these proceedings consolidated so that they may be resolved at the same time by the same court, that is, theDivisional Court as requested by the Attorney General.

What is in the interests of justice and in the public interest is that the agreementof Hanif and the College, as affirmed by the Discipline Committee of the College, be permitted to proceed in the manner negotiated bythose parties. I do not go so far as to find that the matter should be dismissed because of abuse of process by the Attorney General as I donot consider the Attorney General to have an oblique motive here.

Certainly, judges have an inherent and residual discretion to preventan abuse of the court’s process where: “…(1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles ofjustice underlying the community’s sense of fair play and decency…”: see R. v. Scott, (SCC), [1990] 3 S.C.R. 979 at p.1007. However, I find that the proceedings do not yet involve a party (the Attorney General) misusing the court procedure in a way thatwould bring the administration of justice into disrepute.

I note the Attorney General already has a forum in which to raise thesearguments within the Superior Court application. I agree with counsel for Hanif that there is no good reason to consolidate theseproceedings and, in fact, I conclude that they could not be consolidated in the Divisional Court appeal. [36] For these reasons, the motion to consolidate proceedings is dismissed. I exercise my inherent jurisdiction and order thatcounsel

schedule the Superior Court application by attending Motion Scheduling Court at the earliest opportunity to set a date for thehearing of the constitutional application and to set a timetable for the filing of facta and materials and the conduct of any necessary cross-examinations.

As agreed by the parties, the Divisional Court appeal launched by Hanif in order to preserve his rights shall remain inabeyance pending the decision in the constitutional application. [37] The matter shall not be remitted to the Discipline Committee to consider the constitutional issue as I deem this to be anexceptional case where it is not in the interests of justice to do so. [38] Having heard submissions from counsel on costs, I exercise my discretion pursuant to s. 131 of the Courts of Justice Act andorder that costs be paid by the Attorney General to the respondent Hanif in the amount of $20,000 inclusive of disbursements and HST,an amount I deem fair and reasonable in the circumstances of this case.

There shall be no order of costs either in favour of or against theCollege. HIMEL J. Released: November 12, 2013 CITATION: Mohamed Imran Hanif v. Ontario College of Pharmacists; Her Majesty the Queen in Right of Ontario and AGO, 2013ONSC 6991 DATE: 20131112 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURTHIMEL J.DIVISIONAL COURT FILE NO.: 363/13 BETWEEN:

ATTORNEY GENERAL OF ONTARIO Moving Party - and – MOHAMED HANIF AND ONTARIO COLLEGE OF PHARMACISTS Respondents

DIVISIONAL COURT FILE NO.: 370/12 BETWEEN: MOHAMED IMRAN HANIF Appellant – and – ONTARIO COLLEGE OF PHARMACISTS Respondent - and – ATTORNEY GENERAL OF ONTARIO Intervener SUPERIOR COURT FILE NO.: CV-12-448727 BETWEEN: MOHAMED IMRAN HANIF Applicant - and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and ONTARIO COLLEGE OF PHARMACISTS Moving Parties _____________________________________________ ____________________________________________ REASONS FOR JUDGMENT ______________________________________________ Himel J. Released: November 12, 2013