The Appellant pharmacists were the sole shareholders in a pharmaceutical distribution company. The company was convicted of income tax evasion under the Income Tax Act. Following the company’s conviction, the Appellants were charged and convicted of professional misconduct by the Ontario College of Pharmacists. The pharmacists appealed to the court, arguing that breach of a taxing statute by a corporation is not conduct “relevant” to the practice of pharmacy. The court held that the standard of review was reasonableness and that the committee’s decision met the standard.

Administrative law – Pharmacists – Disciplinary proceedings – Tax evasion – Professional misconduct or conduct unbecoming – Judicial review – Standard of review – Reasonableness

Davies v. Ontario College of Pharmacists, [2003] O.J. No. 91, Ontario Superior Court of Justice, January 15, 2003, Blair, E. Macdonald and MacDougall JJ.

The Appellants were pharmacists and members of the Ontario College of Pharmacists. The Respondents were also shareholders and the only officers and directors of a company operating several pharmacies. The company was convicted of income tax evasion under the Income Tax Act and proceedings relating to undeclared volume rebates received from drug companies. Following the company’s conviction, the Appellants were charged with professional misconduct for engaging in conduct relevant to the practice of pharmacy that, having regard to all of the circumstances, would reasonably be regarded by the members of the profession as disgraceful, dishonourable and/or unprofessional. The Appellants argued that breach of a taxing statute by a corporation of which members of the College are shareholders, directors or officers, is not “conduct relevant to the practice of pharmacy” on the part of the members.

The College argued that the words “relevant to the practice of pharmacy” are broader than the “practice of pharmacy”, and that operating a company that manages pharmacies is clearly within the meaning.

The court held that the language of the statute may reasonably bear more than one interpretation and that the Committee, given its expertise, was in a better position than the court to determine what constitutes professional misconduct. The court held that there is authority for the proposition that the practice of pharmacy involves more than merely dispensing pharmaceutical products. They found that the committee was reasonable in concluding that the Appellants’ participation in a closely held corporation’s tax evasion scheme was conduct that reflected adversely on the profession and could therefore be characterized as conduct “relevant to the practice of pharmacy”. The court found that there was no basis upon which the courts should interfere with the Discipline Committee’s decision and the appeal was dismissed.

To stay current with the new case law and emerging legal issues in this area, subscribe here.