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Medical Professionals (RHPA) - Pharmacies - Cases. R. v. El-Azrak
In R. v. El-Azrak (Ont CA, 2023) the Court of Appeal considered privacy impact of the RHPA regulatory scheme, here in the course of a criminal appeal challenge to the transfer of warrant-obtained information from the College of Pharmacists to the police:1. The Impact of the Regulatory Framework on the Appellant’s Privacy Interest
[65] In my view, while not determinative of the privacy issue at work in this case, the regulatory framework within which the s. 8 issue operates diminishes the appellant’s reasonable expectation of privacy. To understand why this is so, we have to first look to the statutory provisions at work.
a. Sections 36(1)(e), 36(1.2), 36(1.3) and 36(1.4) of the RHPA
[66] Section 36(1)(e) of the RHPA permitted, but did not require, the OCP to disclose the information about the appellant and her pharmacy in aid of the police investigation. The salient provisions follow:Confidentiality
36 (1) Every person employed, retained or appointed for the purposes of the administration of this Act, a health profession Act or the Drug and Pharmacies Regulation Act … shall keep confidential all information that comes to his or her knowledge in the course of his or her duties and shall not communicate any information to any other person except,
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(e) to a police officer to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;
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Definition
(1.2) In clause (1) (e),
“law enforcement proceeding” means a proceeding in a court or tribunal that could result in a penalty or sanction being imposed. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (2).
Limitation
(1.3) No person or member described in subsection (1) shall disclose, under clause (1) (e), any information with respect to a person other than a member. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (3).
No requirement
(1.4) Nothing in clause (1) (e) shall require a person described in subsection (1) to disclose information to a police officer unless the information is required to be produced under a warrant. 1998, c. 18, Sched. G, s. 7 (2); 2007, c. 10, Sched. M, s. 7 (4). [Emphasis added.] [67] The term “member” is defined in s. 1(1) of the RHPA as a “member of a College” and the term “College” refers to “the College of a health profession or group of health professions established or continued under a health profession Act”. Each “health profession Act” is listed in Schedule 1 of the RHPA, including the Pharmacy Act, 1991, S.O. 1991, c. 36, which continues the OCP (s. 5). As a licenced pharmacist, the appellant was a “member” of the OCP.
[68] Distilled, I see the statute as operating in the following way:(1) subject to some statutorily defined exceptions, the OCP must keep confidential “all information” that comes into its knowledge in the course of its duties (s. 36(1));
(2) one such exception is where the information is given to the police in aid of an investigation with a view to, or which will likely lead to, a legal proceeding that could result in a penalty or sanction (ss. 36(1)(e), 36(1.2));
(3) where that exception applies, the OCP may provide information about members but not about non-members (ss. 1(1), 36(1.3)); and
(4) unless the information is required to be provided by “warrant”, the provision of that information is at the discretion of the OCP (s. 36(1.4)). b. The RHPA Reduces the Objective Reasonableness of the Privacy Interest at Work
[69] The appellant says that these sections enhance, not detract from, the appellant’s reasonable expectation of privacy because they create a presumption of confidentiality.
[70] Before responding directly to this argument, it is important to clarify the role a legislative scheme, such as the RHPA, plays in determining whether there is a reasonable expectation of privacy. In Gomboc, at para. 33, Deschamps J. for the plurality noted that, in the contractual context, contracts of adhesion require a cautious approach because a person may not know the terms governing their relationship with the holder of the information or that those terms could permit disclosure to the police. As Deschamps J. put it:In view of the multitudinous forms of information that are generated in customer relationships and given that consumer relationships are often governed by contracts of adhesion … there is every reason for proceeding with caution when deciding what independent constitutional effect disclosure clauses similar to those in the [operative terms] may have on determining a reasonable expectation of privacy. [71] Accordingly, rather than concluding that the legislative scheme, which permitted disclosure, was sufficient to erode the expectation of privacy, the plurality in Gomboc viewed this as but one factor among many constituting the totality of circumstances informing whether there existed an objectively reasonable expectation of privacy. The two dissenting judges, McLachlin C.J. and Fish J., joined the plurality in this observation, making for a majority on the point. As the dissenting judges put it, at para. 115: “The legislation is only one factor that is to be considered when determining whether an expectation of privacy is objectively reasonable and it may be insufficient to negate an expectation of privacy that is otherwise particularly compelling.”
[72] Therefore, I start by recognizing that the operation of the RHPA in this case is not dispositive of the claimed privacy interest. The respondent correctly acknowledges this fact. At the same time, it is in my view a strong factor for consideration.
[73] This is not a case involving a contract of adhesion, the nuances of which may not be known by a consumer who has been drawn into said contract. While the appellant could not have negotiated her way out of the disclosure provisions in the RHPA, as a professional pharmacist, she is to be taken to have known the rules and regulations governing the profession that she willingly entered.
[74] In this case, the legislation clearly works against any objectively reasonable privacy interest. The appellant was operating in a highly regulated environment. She knew the rules by which she was governed, including those related to disclosure. She knew that the OCP would be highly engaged, indeed, concerned with narcotic distribution, would be watching such distribution closely, and would be in a position to share information with the police provided that it only related to her.
[75] The appellant maintains that, even if the RHPA worked to decrease her reasonable expectation of privacy, the OCP needed to engage with the disclosure provisions through the exercise of “independent and informed judgment”. This language is borrowed from para. 107 of the Orlandis-Habsburgo decision. In that case, Doherty J.A. found that s. 32(g) of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 (the “MFIPPA”), which was then worded very similarly to the current s. 36(1)(e) of the RHPA, vested a discretion in the record holder to release information to the police. Section 32(g) of the MFIPPA at the time of Doherty J.A.’s decision read as follows:Where disclosure permitted
32 An institution shall not disclose personal information in its custody or under its control except,
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(g) if disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result. [76] Doherty J.A. held that s. 32(g) of the MFIPPA did not contemplate an ongoing sharing of information, but rather, to meet s. 8 compliance, it required an “independent and informed judgment” on the part of the record holder.
[77] That is precisely what happened in this case.
[78] The police made specific requests for information. The OCP considered and responded to those requests. The OCP, and Mr. Hui, in particular, exercised independent judgment in deciding what information to provide. For example, when Det. Ibbott asked to see the Drug Usage Report, Mr. Hui decided to redact the information provided. Mr. Hui also denied the police request for further information, namely, the unredacted Drug Usage Report, because, in his independent judgment, providing that information would breach s. 36 of the RHPA.
[79] While the appellant argues that there was an internal protocol in place at the OCP that required all police requests for information to be dealt with by a person who did not work at the investigative level, and Mr. Hui breached that protocol by responding to the request himself, the question is not whether internal protocols are breached, but whether independent and informed judgment is exercised. Regardless of whether an internal protocol was breached or not, and I should not be taken as suggesting it was, Mr. Hui’s actions demonstrate the exercise of independent and informed judgment. . Geris v. Ontario College of Pharmacists
In Geris v. Ontario College of Pharmacists (Div Ct, 2020) the Divisional Court considered the role of the 'Inquiries, Complaints and Reports Committee' (ICRC) of the Ontario College of Pharmacists. Such bodies are common with Regulated Health Professions Act-governed professions:[32] The ICRC performs a screening function. It does not make findings of disputed fact and is not required to resolve every factual dispute through additional investigation or, for that matter, in its reasons. Neither does it make findings of professional misconduct. Rather, it investigates concerns and determines whether they warrant a referral to discipline or other, less intrusive, responses: Armogan v Health Professions Appeal and Review Board, 2013 ONSC 3095 (Div. Ct.) at para. 5.
[33] Cautions and educational or remedial directions are not meant as sanctions or penalties but are meant to benefit the practitioner and the patients by avoiding future complaints of a similar nature: Armogan, para. 9. . Longman v. Ontario College of Pharmacists
In Longman v. Ontario College of Pharmacists (Div Ct, 2021) the Divisional Court sets out the role of the ICRC under the Regulated Health Professions Act:[33] The ICRC performs a screening function. Its role is to investigate concerns and determine whether the matter warrants a referral to discipline on account of professional misconduct or incompetence or some lesser remedial measure including closing the file is called for. See: Léger-Legault v. Ontario College of Teachers (2008), 2008 CanLII 54307 (ON SCDC), 242 OAC 126 (Div. Ct.) at para. 10.
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[43] The Applicant objects to the ICRC’s requirement that he receive an oral caution and take a course in medication safety. He submits that both are unduly severe in the circumstances, given that he has taken responsibility for his error in the September 16, 2018 refill. Further, because both the caution and the educational requirement are posted on the College’s website and made public, he submits the requirements amount to a penalty which is not warranted.
[44] Cautions and educational directions are remedial in nature and not sanctions or penalties. They are meant to improve the Member’s practice and benefit the public they serve by avoiding future concerns. See: Banner v. College of Physicians and Surgeons of Ontario, 2012 ONSC 5547 (Div. Ct.) at para. 11; Fielden v. Health Professions Appeal and Review Board, 2013 ONSC 4261 (Div. Ct.) at para. 10.
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