Nov 23, 2020

Can regulators advise the profession about new developments that appear to be unethical or unprofessional? One New Brunswick court suggests that this is a proper function of a regulator that will rarely be subject to judicial review: Laboratories C.O.P. Inc. v New Brunswick College of Pharmacists, 2020 NBQB 96, http://canlii.ca/t/j8hhg.

The applicant was marketing a diet protocol through pharmacies. The program involved pharmacists performing an assessment of clients and recommending the protocol. The regulator issued an advisory statement saying that this approach (not naming the company) risked pharmacists straying beyond their scope of practice, in effect practising dietetics. The advisory statement also suggested that a pharmacist participating in such an activity risked using their professional status to market a commercial product. As a result, fewer pharmacists became involved in the protocol and the Applicant’s revenues were reduced. The Applicant sought judicial review to set aside the advisory statement.

The Court concluded that the advisory statement did not amount to a “decision” that was subject to judicial review. It involved a general statement reminding practitioners of their professional obligations in a certain context. It was too vague to be directly enforceable at a discipline hearing.

Even if it were a reviewable “decision” the Court concluded that there was no procedural unfairness. Given the nature of the statement, any procedural requirements were at the low end of the spectrum. The consultation process followed in this particular case was adequate even though the advisory statement had a financial impact on the Applicant.

The Court concluded: “I am also satisfied that the College, by issuing the Statement, was acting in a manner consistent with its overarching obligation as a self-regulating profession to uphold the welfare of the public.”