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RHPA - Penalties. Rak v. Ontario College of Pharmacists
In Rak v. Ontario College of Pharmacists (Div Court, 2024) the Divisional Court dismissed an RHPA [HPPC s.70] penalties appeal, here after a finding of "discraceful, dishonourable, or unprofessional conduct by breaching a condition that had been put on his Certificate of Registration in 2014" and related penalties:C. Standard of Review
[19] Mr. Rak has a right to appeal the Discipline Committee’s penalty redetermination decision: Health Professions Procedural Code, s. 70, being Schedule 2 to the Regulated Health Professions Act, 1991, S.O. 1991, c. 18. As a result, the appellate standard of review apply: Canada (Minister of Immigration and Citizenship) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[20] On an appeal from a penalty decision from a regulatory tribunal, the Court will only interfere if the Discipline Committee made an error in principle or if the penalty is clearly unfit. To be “unfit”, the penalty must be disproportionate or fall outside the range of penalties imposed for similar conduct committed in similar circumstances: Mitelman v. College of Veterinarians of Ontario, 2020 ONSC 3039, (Div. Ct.), at para. 18.
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[22] Proportionality is an important principle when a regulatory body crafts a disciplinary penalty. The penalty imposed must be proportionate to the wrongdoing in question: Stetler v. Ontario Flue-Cured Tobacco Growers’ Marketing Board, 2009 ONCA 234, 311 D.L.R. (4th), at para. 37. At the same time, professional regulatory tribunals are owed a significant level of deference on the issue of penalty: College of Physicians and Surgeons of Ontario v. Peirovy, 2018 ONCA 420, 143 O.R. (3d) 596, at para. 38. The Discipline Committee has expertise to determine the degree to which Mr. Rak’s conduct threatened the public and the profession: Peirovy, at para. 73. We must not intervene just because we might have given more or less weight to a particular factor. To do so would be to apply the wrong standard of review.
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[30] I find the Committee considered and weighed all the relevant aggravating and mitigating factors. Those findings are entitled to deference by this court: Stetler, at paras. 31 and 32.
[31] A four-month suspension was not disproportionate having regard to the Discpline Committee’s findings about the seriousness of Mr. Rak’s conduct and the penalties imposed in other comparable cases.
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[36] The Discipline Committee correctly noted that its “primary purpose” is the College’s mandate to protect the public interest. It was open to the Discpline Committee to find that a condition restricting Mr. Rak from providing services to or for minors in any context was necessary to protect the public and maintain public confidence in the College’s ability to regulate the profession. At the penalty redetermination hearing, Mr. Rak offered to give the College an undertaking that his practice would be limited to “serving group homes and retirement homes with a supervisor, approved by the College.” He also offered to undertake not to provide any services over the counter in any pharmacy. The only difference between what Mr. Rak proposed and what the Discpline Committee ordered is that he is prohibited from serving group homes that house children. He is still able to serve retirement homes and adult group homes. This finding was reasonable given the nature of Mr. Rak’s underlying criminal conduct, his history of breaching orders and the fact that he lied to College in 2014 about the scope of his practice to hide the fact he was engaging with people under the age of 18. It was open to the Discipline Committee that a clear condition was required to ensure Mr. Rak was not providing services to minors in any capacity, directly or indirectly.
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