) ) VARTAN MANOUKIAN Applicant – v. –, 2017 ONSC 589

CITATION : Manoukian v. Ontario College of Pharmacists, 2017 ONSC 589 DIVISIONAL COURT FILE NO.: 282/16 DATE: 20170124 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT AITKEN, NORDHEIMER and STEWART JJ.

BETWEEN: ) ) VARTAN MANOUKIAN Applicant – and – ONTARIO COLLEGE OF PHARMACISTS and the DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF PHARMACISTS Respondents ) ) ) ) ) ) ) ) ) ) ) ) Scott Bergman , for the Applicant, Vartan Manoukian Nick Coleman and Jean-Claude Killey , for the Respondent, Ontario College of Pharmacists ) HEARD at Toronto: January 24, 2017 NORDHEIMER J. (Orally) [ 1 ] Vartan Manoukian seeks judicial review of the decision of a discipline panel of the Ontario College of Pharmacists, dated January 25, 2016, wherein a majority of the hearing panel dismissed the applicant’s application to be reinstated as a member of the College. [ 2 ] The applicant obtained his Certificate from the College in 1981.

In 1982, the applicant was charged with trafficking a narcotic after selling oxycodone to undercover officers without requesting or obtaining valid prescriptions. In January 1983, the applicant pleaded guilty to two counts of trafficking a narcotic, contrary to the Narcotic Control Act. He was sentenced to two years imprisonment. [ 3 ] After his release from custody, the College sought to revoke his Certificate and a hearing was convened before a panel of the Discipline Committee.

On September 20, 1983, the Discipline Committee ordered that the applicant’s Certificate be revoked, effective December 21, 1983. [ 4 ] On December 1, 1983, while still on parole for the trafficking offences - and before the revocation took effect - the applicant was charged under the Food and Drugs Act for selling valium to an undercover officer without requesting or obtaining a prescription. He was subsequently convicted of that charge. [ 5 ] In January, 1989, the applicant applied to the College for reinstatement of his Certificate.

On June 20, 1989, after a contested hearing, the Discipline Committee granted the application and reinstated the applicant’s Certificate but on certain terms and conditions. [ 6 ] In March 1992, the Applicant was charged with fraud over $1000 for having submitted false claims to the Ontario Drug Benefit Plan for unfilled prescriptions. On January 18, 1994, following a trial before a judge and jury, the applicant was convicted of fraud over $1000.

On July 24, 1996, the Discipline Committee revoked the applicant’s Certificate for the second time. [ 7 ] Since that time, the applicant has become licenced, and has worked, as a paralegal. [ 8 ] In support of his application, the applicant filed a psychological assessment and a psychiatric assessment, both of which found that the applicant’s risk of reoffending was minimal. The applicant also filed letters of support from two judges of the Ontario Court of Justice, along with several from Justices of the Peace.

The applicant has also undertaken various continuing education courses and completed a medical professional ethics course. [ 9 ] It is acknowledged that the standard of review applicable to the College’s decision is one of reasonableness. Consequently,

the onus on the applicant is to show, not just that another reasonable decision exists, but that the decision reached by the College is anunreasonable one: McLean v. British Columbia (Securities Commission), 2013 SCC 67 , [2013] 3 S.C.R. 895. [10] In terms of the errors relied upon by the applicant, I do not agree that the panel erred in the manner with which they dealt withthe standard or framework to be applied. The panel said that they were “guided” by the principles summarized in Richard Steinecke’stext, “A Complete Guide to the Regulated Health Professions Act”.

The panel was not obliged to apply those principles slavishly norwere they precluded from considering other matters. In particular, there was no error in the panel having regard to the impact that theirdecision might have on the public and on the profession. While the applicant fixes on the word “benefit” used by the panel in theirreasons, I read that reference as nothing more than the panel recognizing that there is a necessary balancing that must be undertaken inmaking their decision.

Indeed, the applicant accepts that a balancing is inherent in the nature of the decision being reached. [11] I also do not accept the applicant’s criticism that the panel applied a higher standard of proof than required, that is, thestandard of proof on a balance of probabilities. The panel was not required to expressly set out the burden of proof. There was no issueregarding the proper burden to be applied. The applicant’s submissions that isolate certain words or phrases in the reasons, to suggestthat a higher burden of proof was applied, do an unfairness to the reasons.

What the reasons reflect is the panel members’ review of theevidence and whether they were satisfied, based on the evidence, that the requisite burden of proof was satisfied. Their reference to a“very high bar” simply reflects their view of the nature of the evidence that will be required to meet that burden. [12] It was also within the purview of the panel to reject the imposition of conditions on the reinstatement of the applicant as beingsufficient in order to protect the public.

They were also entitled to discount the education programs that the applicant had taken, basedon what was required to successfully complete those programs. They were certainly entitled to find that the completion of programs wasnot sufficient to allay the concerns that arose from the applicant’s prior conduct. [13] The applicant complains that the panel rejected the evidence of the expert reports. The panel was not required to accept theexpert evidence just because it was placed before them. The expert evidence was not categorical regarding any risk that the applicantmight pose – nor could it properly be so.

The panel was entitled, in the circumstances presented, to decide that, if any risk remained, itwas something for the panel to take into account. [14] Finally, the applicant complains that the panel improperly rejected his evidence. As a basic proposition, it is not the role ofthis court to second guess credibility findings made by the panel. The panel rejected the applicant’s evidence as self-serving and notforthright. They had the benefit of seeing and hearing the applicant and they were uniquely positioned to make those determinations.

The conduct of the applicant, over the years, in terms of his other offences, fairly gave the panel considerable pause in considering hisevidence. The panel gave reasons for the concerns that they had regarding the applicant’s evidence. There is no basis for this court tointerfere with those findings. [15] In the end result, the applicant had twice before committed serious offences in his capacity as a pharmacist. He had hisCertificate revoked previously and reinstated only to then again engage in improper conduct.

The panel concluded that to reinstate theapplicant, a second time, would not only pose a risk to the public, but it would also not reflect well on the profession. That was areasonable conclusion for the panel to reach. It was certainly a decision that “falls within a range of possible, acceptable outcomes whichare defensible in respect of the facts and law” - Dunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190. [16] The application for judicial review is dismissed. costs – Aitken J. [17] I have endorsed the Applicant’s Application Record as follows: “Application for judicial review dismissed for oral reasonsprovided. Costs to the College fixed in the amount of $5,000 inclusive of disbursements and HST.” ___________________________ Nordheimer J. I agree ___________________________ Aitken J. I agree ___________________________ Stewart J. Date of Reasons for Judgment: January 24, 2017 Date of Release: January 26, 2017

CITATION : Manoukian v. Ontario College of Pharmacists, 2017 ONSC 589 DIVISIONAL COURT FILE NO.: 282/16 DATE: 20170124 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT AITKEN, NORDHEIMER and STEWART JJ. BETWEEN: VARTAN MANOUKIAN Applicant – and – ONTARIO COLLEGE OF PHARMACISTS and the DISCIPLINE COMMITTEE OF THE ONTARIO COLLEGE OF PHARMACISTS Respondents ORAL REASONS FOR JUDGMENT NORDHEIMER J. Date of Reasons for Judgment: January 24, 2017 Date of Release: January 26, 2017