) ) SOHAIL ASLAM ) Craig Colraine v. Zarnab Durrani, 2023 ONSC 2549

Notice of publication ban On April 18, 2023 the Court confirmed the following order of the Discipline Committee of the Ontario College of Pharmacists: The Discipline Committee issued an Order on October 30, 2017 banning the disclosure, publication or broadcasting of certain information. On June 19, 2019, the Discipline Committee amended the Order and made the following Order in accordance with s. 45(3) of the Health Professions Procedural Code: 1. That no person shall publicly disclose, publish, broadcast, or transmit the name of the Complainant or any patient(

s) referred to in this proceeding or in documents filed as exhibits in this proceeding, or any information or evidence that could disclose their identities, in accordance with s. 45(3) of the Health Professions Procedural Code. 2. That no person shall publicly disclose, publish, broadcast or transmit any information that could disclose who testified as a witness at Mr. Aslam’s criminal trial, heard March 7 and 8, 2016, in accordance with s. 486.4 of the Criminal Code of Canada . 3.

Subject to section 36(3) of the Regulated Health Professions Act, 1991 , this order does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. CITATION : Aslam v. Ontario College of Pharmacists, 2023 ONSC 2549 DIVISIONAL COURT FILE NO.: 586/20 DATE: 20230428 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT SACHS, D.L. CORBETT AND J.A RAMSAY JJ.

BETWEEN: ) ) SOHAIL ASLAM ) Craig Colraine and Zarnab Durrani , ) for the Appellant ) Plaintiff / Appellant ) ) – and – ) ) ONTARIO COLLEGE OF ) Edward Marrocco and Olivia Eng , PHARMACISTS ) for the Respondent ) Defendant / Respondent ) ) HEARD: at Toronto April 18, 2023 REASONS FOR DECISION BY THE COURT: [ 1 ] The appellant was found guilty of professional misconduct by the Discipline Committee of the Ontario College of Pharmacists. The Committee imposed a penalty consisting of a reprimand, a 16-month suspension, a $10,000 fine and $250,000 in costs.

He appeals both the finding and the penalty under s.70 of the Health Professions Procedural Code, which is

Schedule 2 to the Regulated

Health Professions Act, 1991 , S.O. 1991, c.18 . The standard of review is correctness on a question of law and palpable and overriding error on a question of fact. [ 2 ] The complainant testified about several incidents of harassment including touching and comments said to have occurred during her tenure as an employee of the appellant’s pharmacy, during part of which time she was also a patient.

The Committee accepted the complainant’s evidence in part and found the appellant guilty on two heads of misconduct – an incident that occurred in his office, and sexual advances and harassment from time to time over the course of the complainant’s employment. The appellant was charged criminally and acquitted before the discipline hearing took place. The Committee also found the appellant guilty of failing to report the criminal charges to the College within 30 days of their institution. [ 3 ] The grounds of appeal: 1.

The Committee’s assessment of the credibility and reliability of the complainant’s evidence was so flawed that it constituted an error of law or was palpably unreasonable. 2. The Committee made findings of fact without sufficient evidentiary support. 3. The Committee erred by refusing to require production of the complainant’s medical records. 4. The Committee erred by declining to reopen the evidence between the culpability and penalty stages of the proceedings. 5. The Committee erred in finding the failure to report the criminal charges to the College to be misconduct in the circumstances. 6.

The penalty was unreasonable. Failing to report the criminal charges [ 4 ] This ground can be readily dealt with. The appellant testified that he did not report the criminal proceedings because he did not know that he had to do so within 30 days of their institution. He thought that he had until his next annual filing, at which time he did report them. The Committee did not believe him. In any event, his explanation did not amount to a defence. It was his duty to know the rule. His omission amounts to professional misconduct.

The committee’s assessment of credibility – the office incident [ 5 ] The appellant was accused of misconduct for the following acts: (

i) on or about September 14, 2013, he repeatedly attempted to grab the complainant’s breast, reach into her pants and shirt, and placed her hand on his groin area (the “office incident”); (ii) in or around the summer of 2014, he reached out and placed his hands on her breasts after she went into his office at the Pharmacy to discuss her available sick hours for breast surgery; (iii) in September 2014, he attempted to hug her after she went into his office to get proof of her alleged sexual abuse and harassment by audio recording his activities on her phone; (iv) in December 2014, he touched her buttock during a visit by the pharmacy’s district manager in the storage area of the Pharmacy with four or five staff present; (

v) in February 2015, he asked her to accompany him to the freezer in the storage area and attempted to touch her (the “fridge incident”); and (vi) in May 2015, while in the public lunchroom at the pharmacy, he attempted to touch her breasts and force his hands onto her and chased her down the hallway (the “lunchroom incident”) (vii) during the two and a half years she worked at the pharmacy the appellant sexually harassed and assaulted the complainant at least once or twice a week including unwelcome touching and advances from time to time. [ 6 ] The Committee found the appellant guilty of misconduct with respect to the office incident and the allegation of unwelcome touching and advances from time to time.

In brief, the Committee did not accept the evidence of the appellant, but it did not find the complainant’s evidence reliable enough to support a finding of guilt on the preponderance of the evidence with respect to the other five allegations. [ 7 ] With respect to the first incident, the office incident of September 14, 2013, the Committee accepted the complainant’s evidence that the appellant grabbed the appellant’s hand and put it on his private area, that his finger was inside her uniform around her chest area and that he reached into the back of her pants.

The complainant told another her immediate supervisor, Employee A, about the incident three days later, upon Employee A’s return from vacation. [ 8 ] The appellant testified that Employee A told him in September 2013 that the complainant had complained of misbehaviour but did not specify sexual assault. At his criminal trial the appellant had said that he was told that it was sexual assault.

The Committee held this against his credibility and did not believe his denial of the sexual touching in the office. [ 9 ] In finding the appellant guilty of misconduct for the September 2013 incident, the Committee noted that the complainant did not have any apparent motive to lie at that point because she had had no performance issues at the pharmacy and had already been promoted. Her account was plausible in that the conduct could have taken place undetected in the manager’s office, which was not under video surveillance.

The Committee considered to be immaterial inconsistencies between the complainant’s testimony and her earlier

statements as to whether the appellant locked the door to the office or not and whether the complainant left the office first, or the appellant left after being called on the loudspeaker. [ 10 ] The complainant reported the incident to Employee A a few days after it happened and gave Employee A an audio taped statement. The Committee said: The Complainant’s testimony was consistent with other evidence before the Panel.

Her testimony of her report was corroborated by the testimony of [Employee A] and the audio recording (Exhibit 4, Tab 3: Filename - A – Audio Recording dated September 19, 2013.m4a), adding further to the Complainant’s credibility. [ 11 ] Employee A’s evidence and the audio-taped statement were not, strictly speaking, corroborative, because they were not independent of the complainant. There is, however, a bigger problem with the Committee’s handling of the complainant’s credibility.

In its analysis of the office incident, the Committee did not mention a number of issues with respect to the complainant’s reliability that arose on the evidence as a whole: a. With respect to the fridge incident, the complainant maintained both that the appellant touched her, and that he did not touch her. b. With respect to the lunchroom incident, the complainant said both that the appellant was able to reach her breasts and that he did not succeed in touching her. c.

With respect to an allegation of attempting to hug the complainant during a promotion announcement, which was part of the complaint about ongoing harassment from time to time, Employee A contradicted the complainant as to whether an attempt at hugging took place. d. Another part of the allegation of ongoing harassment from time to time was the complainant’s allegation that the appellant made suggestive comments about her lipstick. The Committee accepted the evidence of Employee A who said that those comments were directed at Employee H, not at the complainant. e.

The complainant testified that she told Employee A about the incidents of touching and harassment. Employee A, who the Committee found credible, testified that the complainant told her about the September 2013 office incident, but not the other incidents. f. The complainant testified that various security videos showed the appellant assaulting her, but they did not. g. The complainant testified that the appellant had sexually assaulted another female employee, M. But M. denied that he had done so. h.

During her employment the complainant made allegations of sexual and other serious misconduct against other employees of the store. She alleged that she had been sexually harassed by a merchandiser She alleged that two employees were involved in theft and fraud. She tried to catch these employees and spent hours reviewing video surveillance evidence to do so. Based on her accusations investigations were commenced. None of her allegations were substantiated. [ 12 ] The findings of a trier of fact with respect to credibility and reliability are entitled to deference. In R. v.

G.F ., 2021 SCC 20 , at para. 69 , the Supreme Court emphasized that appellate courts “must not finely parse the trial judge’s reasons in a search for error.” The trier of fact is uniquely positioned to assess credibility and reliability of witnesses. See R. v. A.B., 2023 ONCA 254 , at para. 3 . [ 13 ] The Committee stated correctly the legal principles involved in assessing the credibility of witnesses. The Committee was entitled to believe all, part or none of the complainant’s evidence. It was not obliged to mention every item of evidence in its reasons.

But the Committee made no reference to several important aspects of the evidence that had the potential to weigh heavily on the overall credibility and reliability of the complainant. We do not infer that the Committee simply thought them to be unimportant, because many of them were important enough for the Committee to decline to act on the complainant’s evidence with respect to most of the charges. [ 14 ] Viewed as a whole the complainant’s evidence was self-contradictory and arguably bizarre at times. It was also contradicted by another employee whose evidence was accepted and by video surveillance evidence.

She alleged that the appellant had sexually assaulted another employee, an allegation that the other employee denied occurred. She had a history of making serious allegations against fellow employees, allegations that were never substantiated. Rather than deal with these issues, it appears that the Committee compartmentalized the evidence charge by charge and omitted to consider it as a whole when determining the reliability of the complainant on the charges on which it found misconduct. That was an error.

The concerns about the complainant’s reliability were concerns that went to her reliability as a whole, not just to her reliability when it came to one particular incident. [ 15 ] The finding of misconduct is based entirely on the complainant’s evidence. The Committee’s approach to assessing her reliability was flawed. The verdict on the office incident, then, cannot stand. It must be tried again.

Sexual harassment and assault from time to time [ 16 ] The appellant testified that when he was told of the complainant’s report about the office incident shortly after it allegedly happened in September 2013, he told the complainant to stay away from him. [ 17 ] The Committee found that certain video evidence was consistent with discrete incidents of opportunistic harassment. The videos showed the appellant having conversation with the complainant on August 2, 2014 and walking past her on August 5 and December 9, 2014.

The Committee was of the view that this conflicted with the appellant’s own direction to the complainant (given a year earlier) to stay away from him. The Committee found that the appellant was violating his own rule by not taking an alternate route. It went on to say: The Panel cannot determine from the videos whether the Member made actual physical contact with the Complainant. However, after considering the totality of the evidence, the Panel finds that the videos depict the Member engaging in unwelcome advances with the

Complainant from time to time. Contrary to his instructions to the Complaint, the Member did not avoid her on the sales floor. It is the Panel’s view that the Member engaged in opportunistic conduct which he knew was unwelcome, thus meeting the College’s definition of harassment under the Preventing Sexual Abuse and Harassment Guideline. [ 18 ] With respect, the videos did not depict the appellant engaging in unwelcome advances. In the first video, the complainant approached the appellant and engaged him in conversation. His arms were crossed the whole time.

In the other two videos the appellant walked past the complainant. These events took place a year after the appellant told the complainant to stay away from him. None of this constitutes harassment and none of it is capable of supporting a conclusion that the appellant engaged in unwelcome advances from time to time. The fact that the appellant may have told the complainant to stay away from him and then did not take sufficient steps to stay away from her is not a basis for finding that the appellant engaged in unwelcome advances.

This finding of misconduct was not available to the Committee on the evidence It is set aside, and the allegation is dismissed. Disposition [ 19 ] We do not need to consider the remaining grounds of appeal. [ 20 ] The penalty was imposed for three acts of misconduct, two of which we have set aside. The penalty is set aside as well.

The matter is remitted to the Committee, differently constituted, to try whether the appellant committed misconduct with respect to the office incident of September 14, 2013 and, if so, to impose a penalty for it, or if not, to dismiss it, and in either event to impose a penalty for failing to report criminal charges to the College within 30 days. [ 21 ] To that extent the appeal is allowed, with costs to the appellant in the agreed amount of $17,500. There shall be no award of costs of the first hearing. “Sachs J.” “D.L. Corbett J.” “J.A. Ramsay J.” Released: April 28, 2023 CITATION : Aslam v.

Ontario College of Pharmacists, 2023 ONSC 2549 DIVISIONAL COURT FILE NO.: 586/20 DATE: 20230428

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Sachs, D.L. Corbett and J.A. Ramsay JJ. BETWEEN: SOHAIL ASLAM Appellant and ONTARIO COLLEGE OF PHARMACISTS Respondent REASONS FOR DECISION Released: April 28, 2023