Oct 19, 2020

Some professions require that a registrant be responsible for the overall policies and procedures of a practice. For example, the Ontario College of Pharmacists imposes responsibilities on a designated manager. Each pharmacy must have one. The case of Jaffer v Ontario (Health Professions Appeal and Review Board), 2019 ONSC 6770, http://canlii.ca/t/j3lh5 raises the issue of the duties of the designated manager where a serious error was made by another registrant. In this case, if the other registrant had followed the policies and procedures in place in the pharmacy at the time, the error would not have occurred. The regulator imposed remedial measures on the designated manager because he had not used the error as an opportunity to review the policies and procedures to see whether improvements could be made to prevent future mistakes. The designated manager challenged the decision on the basis that he should not be held accountable for the human error of another registrant who had not followed existing policies. The Divisional Court upheld the remedial measures as reasonable. Designated managers are accountable for their own role where mistakes occur.

There were also issues about whether the regulator had been procedurally fair in giving adequate notice that the communications of the designated manager were in issue in the complaint and whether the prior history, including instances related to communications issues, would be considered. The Court concluded that the designated manager had been given adequate notice of the scope of the complaint and a sufficient opportunity to respond to the prior history.

The designated manager also challenged the failure of the regulator to address in its reasons the generally favourable inspection report that was released contemporaneously with the incident in issue. The Court indicated that a regulator’s reasons need not cover every point raised by the practitioner. The basis for the directed remediation was clear. The fact that the policies and procedures of the practice were generally acceptable did not detract from the need for the designated manager to respond appropriately to the error in this case.

The Court also provided some procedural guidance on judicial review of decisions by the Health Professions Appeal and Review Board (HPARB) in complaints matters under the Regulated Health Professions Act. The Court indicated that while the Inquiries, Complaints and Reports Committee can generally provide submissions on the merits of the decision (at least where the complainant does not appear), HPARB should not do so. The Court also indicated that where an inappropriate affidavit is filed on an application for judicial review, the party opposing its admission should bring a motion before the hearing to determine the affidavit’s admissibility so that the record before the Court can be finalized.