Elguindi v. Canada ( Minister of Health )
A-973-96
Desjardins J.A.
19/6/97
22 pp.
Appeal from Motions Judge's denial of application for judicial review of decision of Director of Bureau of Drug Surveillance to issue notices to Ontario pharmacists, licensed dealers ordering them not to supply any narcotic medications pursuant to appellant's orders-Appellant pharmacy manager of Meditrust from March 25 to November 1 or 3, 1994-Subsequent inventory count revealing shortages of several drugs-Drug Control Unit investigation revealing further shortages and failure by appellant to enter narcotics shipments in Narcotic/Controlled Drug (N/CD) register as required by Narcotic Control Regulations-Appellant advised by letter in April 1995 of shortages-Appellant replying, but not denying existence of shortages-In August 1995 Director advising appellant considering invoking Minister's authority to give notice to pharmacists not to sell narcotic drugs on appellant's order-Director's decision issued in January 1996-Motions Judge finding decision attracting general duty of fairness given impact of decision on appellant-Also finding clear breach of procedural fairness due to non-disclosure of documents, but refusing to quash decision, refer matter back to decision-maker for redetermination as outcome "inevitable" notwithstanding error committed-Rejecting contention Director predetermining issue prior to giving notice to appellant of determination had violated Regulations-Appeal dismissed-No breach of procedural fairness-Appellant claiming Medis papers (purchase records, monthly sales reports), attached to director's decision should have been disclosed to her-Those papers relating directly to appellant's responsibility as pharmacy manager to record every entry upon receipt-Alerted to existence, full content of documents in April 1995-That papers only sent to her at time of decision in January 1996 not breach of procedural fairness-Appellant never disputing pills missing-Number of missing pills not per se vital element since appellant admitting theft occurring while holding position of manager pharmacist-Procedure followed or not followed as pharmacy manager vital-From first notice in April 1995 appellant knew with specificity that issue relating to responsibilities and manner in which complied with them-Letter indicating Medis documents revealing failure to enter three shipments in designated N/CD register-Never explained whether had complied, or even attempted to comply with duties-Never required to prove who stole narcotics, how stolen, but to address procedure compelled to follow-Knew case against her at first moment of hearing-Second set of documents appellant alleging should have been disclosed written before April 1995 notice-Relating to meeting with police regarding missing narcotics at time appellant having signing authority, significance of street value of narcotics-As evidence regarding missing narcotics brought to appellant's attention in April 1995, no breach of natural justice-Third set of documents concerning activities unrelated to period appellant having signing authority with Meditrust-No evidence relying on such information in any way-No duty to disclose such documents because to see irrelevant information not amounting to breach of natural justice-Nothing can shield decision-maker from information in public domain-Decision-maker's failure to disclose awareness of event not breach of natural justice-Remaining undisclosed documents simply submissions of draft letters, requests for comments-Nothing contained therein in nature of evidence or representations heard by director or received from one side behind back of other-No papers contained ex parte evidence-No breach of natural justice in non-disclosure-Statement Bureau determining had violated Regulations simply indicating matter would be proceeding to further administrative stage, not predetermination.