Oct 27, 2020

During the early months of the pandemic the New Brunswick regulator for pharmacists felt the urgent need to be able to waive some of its registration requirements to ensure that there were enough pharmacists to meet the province’s health care demands. However, their registration requirements were set out in mandatory language without the ability to exempt them. In New Brunswick College of Pharmacists v Province of New Brunswick, 2020 NBQB 92, <http://canlii.ca/t/j8hzz>, the regulator asked the Court to use its inherent jurisdiction to enable the regulator to register applicants who did not meet all of the compulsory requirements. The government consented to the application. However, the Court declined the request. The Court viewed its role as interpreting the law, including ensuring that laws comply with the Constitution of Canada. The Court did not see its role as creating law in a manner that was inconsistent with laws already enacted by the Legislature or created by the government (e.g., in a regulation). The Court suggested that the regulator approach the government to enact amending regulations on an urgent basis.

This case illustrates the importance of the Legislature and regulators considering exceptional circumstances when making legislation.