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N.L. Decision Demonstrates Why Legal Literacy of Regulators Matters

Published:

November 8, 2022

Author(s):

• Morgan Chafe
• Ryan Baxter

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The October 3, 2022, decision of the Newfoundland and Labrador Court of Appeal to dismiss the decision of the Newfoundland and Labrador Pharmacy Board’s adjudication tribunal in Vey v. Newfoundland and Labrador Pharmacy Board carries an important lesson for regulators and administrative decision-makers: it is imperative to be properly educated and skilled in statutory interpretation to ensure a proper understanding of the scope of their authority, and to avoid the expenses associated with statutory appeals and accompanying cost awards.  Regulators aren’t expected to exercise the same legal expertise as a lawyer or judge when interpreting legislation. They are, however, required to go beyond applying the words on their face: their legislative interpretation must be consistent with the text, context, and purpose of the legislation and particular provision at issue. This requires regulators to have a proper understanding of the established legal principles of statutory interpretation, and the resulting scope of their authority – principles that can only be communicated and understood through comprehensive training and education.

The Case. In Vey v. Newfoundland and Labrador Pharmacy Board, the owner and lead pharmacist of a local pharmacy applied to the Newfoundland and Labrador Pharmacy Board for approval of renovations to her pharmacy. Once completed, the renovations were subject to an inspection by the Board. The Board advised the pharmacist that it would complete a practice site assessment, part of the Board’s quality assurance program, at the same time. The pharmacist refused to comply with the practice site assessment on three grounds:

• The Board didn’t have the authority to appoint a person to conduct a practice site assessment.
• Only an assessor appointed by a quality assurance committee had the authority to conduct a practice site assessment.
• The Board had failed to appoint a quality assurance committee.

The Board’s registrar filed an allegation against the pharmacist pursuant to section 37(1) of the N.L. Pharmacy Act, 2012 for conduct deserving of sanction for failure to comply with the practice site assessment.

The Adjudication Tribunal. The Newfoundland and Labrador Pharmacy Board’s adjudication tribunal concluded the pharmacist engaged in conduct deserving of sanction for contravening s. 12(o) of the N.L. Pharmacy Regulations, 2014:

1. 12. In addition to the responsibilities prescribed in the Act, a pharmacist in charge shall be responsible for the following:
       …
       (o) cooperating with any person appointed by the board in accordance with the Act.

The adjudication tribunal adopted the following interpretation of the Act: It is not mandatory to appoint a quality assurance committee, and, if no committee is appointed, the Board retains the authority itself to conduct quality assurance assessments. As such, the tribunal imposed a 42-day suspension of the pharmacist’s professional licence, and ordered the completion of an ethics course, a two-year suspension from acting as a preceptor, costs in the amount of $90,000, and publication of a summary of its decision. The pharmacist appealed the decision to the Newfoundland and Labrador Supreme Court.

The N.L. Supreme Court. Relying on the Supreme Court of Canada’s 2008 decision in Dunsmuir v New Brunswick (the Supreme Court of Canada hadn’t yet released its 2019 decision in Canada (Minister of Citizenship and Immigration) v. Vavilov), the Court determined the appropriate standard of review was reasonableness, even though the issues on appeal were questions of law. The Court found the adjudication tribunal’s decision was concerned with the interpretation of its own legislation and fell within the range of acceptable, reasonable outcomes and dismissed the appeal. The pharmacist further appealed to the Newfoundland and Labrador Court of Appeal.

The N.L. Court of Appeal. The parties and the Court agreed the issues on appeal were questions of law, which, under Vavilov, attract the correctness standard. The Court focused its review on statutory interpretation and the scope of the Board’s authority under the N.L. Pharmacy Act, 2012 and in particular, on sections 52(1), 53(1) and 54(1):

52.(1) The board shall establish and maintain a quality assurance program to promote high standards of practice within the pharmacy profession.
 …
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 [who is not a pharmacists but who is suitable to represent the public interest].
 …
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.

The Court disagreed with the interpretation of the Act that both the adjudication tribunal and Supreme Court adopted. Applying the principles of statutory interpretation, and considering the Act’s language, legislative intent, purpose and scheme, and evolution, the Court concluded the legislature intended the Board’s authority to appoint a quality assurance committee be coupled with a duty to make that appointment. It is the quality assurance committee, not the Board, that has the authority to conduct quality assurance assessments. In the absence of a quality assurance committee, the Board has no authority to conduct quality assurance assessments. The Court set the adjudication tribunal’s decision aside and ordered the Board to pay the pharmacist’s costs at both the Supreme Court and the Court of Appeal.

Please contact your McInnes Cooper lawyer or any member of our Regulation of Professions Team @ McInnes Cooper to discuss how we can provide the training you need.

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